COURT OF APPEAL FOR ONTARIO

CITATION: York (Regional Municipality) v. McGuigan, 2018 ONCA
    1062

DATE: 20181221

DOCKET: C63364

MacFarland, Watt and Paciocco JJ.A.

BETWEEN

The Regional Municipality of York

Applicant (Respondent)

and

James McGuigan

Respondent (Appellant)

Adam Little, for the appellant

Chris Bendick, for the respondent

Heard: May 17, 2018

On appeal from the order in lieu of
certiorari
entered on January 18, 2017 by Justice Susan E. Healey of the Superior Court of
    Justice, with reasons reported at 2017 ONSC 436, 136 O.R. (3d) 149, quashing
    the disclosure order granted by Her Worship Justice of the Peace Rhonda
    Shousterman, dated September 13, 2016.

Watt and Paciocco JJ.A.:

OVERVIEW

[1]

The charge James McGuigan faces is mundane. His alleged offence is speeding
     driving 75 kilometres per hour in a 60 kilometre per hour zone. The $52.50
    fine he faces if convicted will not break him. Yet his case has taken on
    importance. It has become a test case about disclosure obligations in speeding
    prosecutions under the
Provincial Offences Act
, R.S.O. 1990, c. P.33
    (POA). It also raises issues about the availability of
certiorari
review
    from disclosure orders made in provincial offence prosecutions. The appeal is
    now being carried by the Ontario Paralegal Association (OPA), but Mr.
    McGuigan remains the appellant.
[1]

[2]

It all began when the appellant contested his speeding ticket. The
    paralegal agent he hired asked the office of the Director of Prosecutions for
    the Regional Municipality of York (the prosecutor) for disclosure of the testing
    and operating procedures from the user manual for the device used by the
    traffic officer to measure the speed of his vehicle. The prosecutor refused to
    furnish the appellants agent with photocopies of the pages that the appellant was
    requesting.

[3]

The justice of the peace presiding at the appellants trial ordered the
    prosecutor to make the disclosure. The prosecutor obtained an order in lieu of
certiorari
(
certiorari
order)
[2]
quashing the disclosure order. This is an appeal from the
certiorari
order.

[4]

We conclude that the application judge erred in granting the
certiorari
order. Even if the justice of the peace had been wrong to order disclosure,
    the error would not have been jurisdictional in nature. Subsection 140(1) of
    the POA confines
certiorari
orders in POA matters to situations were
    an applicant would be entitled to such relief at common law, and for parties to
    a proceeding,
certiorari
orders are confined to jurisdictional errors.
    Moreover,
certiorari
should not have been granted in the course of
    ongoing proceedings. Nor was there a substantial wrong or miscarriage of
    justice to address, a prerequisite to
certiorari
under POA, s. 141(4).

[5]

This would be enough to allow the appeal but, in the interest of
    providing guidance and given the extensive argument before us, we choose to
    deal with the grounds of appeal relating to the correctness of the application
    judges decision. In our view, contrary to the application judges decision, the
    justice of the peace did not err in making the disclosure order. Where a
    prosecutor is relying on a speed measuring device to prosecute an offence, it
    must, on request, disclose the testing and operating procedures set out in the user
    manual for that device. It is up to the prosecutor to hand such information
    over on request. The person charged need not bring an application or obtain a
    court order. This is first party disclosure, not third party disclosure.

[6]

The charging police force has a corresponding duty to furnish the
    pertinent passages from the user manual to the prosecutor to enable the
    prosecutor to discharge its first party disclosure obligations.

[7]

This is not a crushing administrative task. The disclosure at issue here
    is not case specific information. The disclosure obligation can therefore be discharged
    by the prosecutor posting the relevant content from the user manual online and
    providing the ticketed driver with the required URL.

[8]

We would therefore allow the appeal, set aside the
certiorari
order,
    and re-instate the disclosure order made by the presiding justice of the peace.
    To be clear, we consider both our decision that the
certiorari
order
    was improper, and our conclusion that the disclosure in this case was required first
    party disclosure, to be alternative and equally important grounds for allowing
    the appeal:
R. v. Warner
, [1961] S.C.R. 144, at pp. 151-52, and see
Commissioners
    of Taxation for the State of New South Wales v. Palmer
, [1907] A.C. 179
    (P.C.), at p. 184, and
Jacobs v. London City Council
, [1950] A.C. 361
    (H.L.), at pp. 369-70.

THE BACKGROUND FACTS

[9]

On November 6, 2015, a York Regional Police officer charged the
    appellant with speeding, contrary to
Highway Traffic Act
, R.S.O. 1990,
    c. H.8, s. 128. The officer had measured the speed of the appellants vehicle with
    a Genesis Handheld Directional traffic radar device (GHD) that the York
    Regional Police force owned.

[10]

The
    appellant decided to fight his charge. He hired a paralegal agent, Thomas
    Thoma, to defend him. Soon after, Mr. Thoma made a written request to the
    prosecutor on the appellants behalf for disclosure of the testing and
    operating procedures for the GHD.

[11]

Such
    disclosure requests are common. There are more than 40,000 speeding tickets
    issued in York Region each year, leading to thousands of requests for the
    disclosure of pages from user manuals for the speed measuring devices that
    police officers use.

[12]

Several
    years ago, because of the administrative weight of complying with such
    disclosure requests, the prosecutors office took two steps to stem the number
    of disclosure requests it had to respond to.

[13]

First,
    it provided copies of the user manuals for speed measuring devices to paralegal
    agents appearing regularly in traffic court. Prior to the appellants
    prosecution, Mr. Thoma had received a copy of the 2008 GHD user manual.

[14]

Second,
    the prosecutors office collected user manuals for all speed measuring devices.
    It provided notice on its standard form disclosure cover page that these user manuals
    could be viewed in the prosecutors office.

[15]

By
    the time the appellant sought disclosure, this courts decision in
R. v.
    Jackson
, 2015 ONCA 832, 128 O.R. (3d) 161, leave to appeal to S.C.C. refused,
    [2016] S.C.C.A. No. 38, had been released. The prosecutor read the
Jackson
case
    as confirming that it need not disclose excerpts from user manuals. It took the
    position that those who want them must bring third party records applications
    to obtain court orders for production from the third party record holder, in
    this case the York Regional Police.

[16]

The
    prosecutor therefore declined Mr. Thomas request for disclosure of the testing
    and operating procedures for the GHD. Instead, Mr. Thoma was told that [f]ull
    manuals on all speed measuring devices can be viewed at the Prosecutors
    Office. At the time, the prosecutors office held a copy of the 2010 GHD user
    manual.

[17]

Mr.
    Thoma chose not to go to the prosecutors office to view the GHD user manual or
    to rely on his own copy of the 2008 GHD user manual. Instead, he made two
    further written requests on the appellants behalf to the prosecutors office for
    disclosure of the GHD user manual, both of which were ignored.

[18]

At
    the commencement of the appellants trial, Mr. Thoma brought an oral motion to
    stay the proceedings for non-disclosure. No evidence was presented about
    whether the officer that issued the ticket used or referenced the user manual the
    day the appellant was charged. Mr. Thomas request was based on the claim that
    if the prosecutor was relying on a device, the officers compliance with the
    manufacturers testing and operating procedures is relevant to the reliability
    of the result. Hence, the pertinent passages from the user manual are relevant.
    He argued that since the user manual was in the possession of the prosecutor, the
    prosecutor had to disclose it.

[19]

Mr.
    Thoma also argued that the fact that he had previously been given his own copy
    of the 2008 GHD user manual could not satisfy the prosecutors disclosure
    obligations to the appellant. He said that it is the appellants right to
    disclosure that is at issue, and therefore the delivery to the paralegal agent
    five years before of a user manual cannot suffice, even if it had not been
    out of date. Nor would an invitation to visit the prosecutors office to
    inspect the user manual suffice. He claimed that the appellant had a right to disclosure
    of a photocopy of the relevant passages.

[20]

In
    response, the prosecutor told the presiding justice of the peace that the
    prosecutors office was no longer disclosing photocopies of the few pages from
    the relevant user manual containing the testing and operating procedures. The
    prosecutor explained that providing this disclosure was burdensome. It took the
    position that the user manuals are police property and are therefore third
    party records. It argued that if the appellant wanted copies of pages from the
    user manual he should bring a third party record application to obtain
    production of those pages from the York Regional Police.

[21]

The
    presiding justice of the peace ruled that the appellant had the right to the disclosure
    that he claimed. She ordered disclosure of the testing information but denied
    the stay of proceedings the appellant had sought, adjourning the trial instead.

[22]

The
    prosecutor decided to take a stand and get a direct ruling it could use to stem
    similar requests. It brought a
certiorari
application to the Superior
    Court, seeking to quash the justice of the peaces decision.

[23]

The
    appellant chose not to participate personally in the
certiorari
proceeding.
    The OPA was given leave to intervene. By intervening it could assist in
    providing the application judge with full argument, including by relaying the
    arguments the appellant would have made.

[24]

The
    OPA argued that the application judge should not consider the
certiorari
application,
    and if she was to consider the application, she should deny it as the justice
    of the peace had committed no error.

[25]

The
    OPAs first objection to the
certiorari
application was that the
    prosecutor had not served the York Regional Police  the party it claimed to be
    the third party record holder  with the
certiorari
application. The application
    judge disagreed, holding that it was appropriate to proceed without the
    participation of the York Regional Police since the York Regional Police had a
    right to appeal the
certiorari
decision under
Criminal Code
, R.S.C.
    1985, c. C-46, s. 784(1) if it was dissatisfied with the outcome.
[3]

[26]

Second,
    the OPA questioned whether
certiorari
was the correct procedure for
    challenging the disclosure order, given the prosecutors right of appeal. The
    application judge rejected this objection. She ruled that an order to make
    disclosure finally disposes of a legal right, making
certiorari
available
    to the Crown for both errors of jurisdiction and errors of law on the face of
    the record.

[27]

The
    application judge therefore heard the application. She ruled in favour of the prosecutor.
    She found that the justice of the peace made a legal error on the face of the
    record in holding that the user manual was subject to first party disclosure,
    and she quashed the disclosure order.

[28]

In
    coming to this conclusion, the application judge examined the two principal
    factors offered in
Jackson
at para. 91 for determining whether access
    to information is to be obtained through first party disclosure, or by third
    party production orders, specifically, the nature of the information sought
    and who is in possession or control of that information.

[29]

In
    her view, the nature of the information sought  the user manuals  fell
    outside of the first party disclosure regime because user manuals are not fruits
    of the investigation. Specifically, they were not  a consequence of the
    investigation of Mr. McGuigan, as they were not created, produced or even
    located during the investigation of [Mr. McGuigan] and his alleged offences.

[30]

The
    application judge agreed with the justice of the peace that the user manual was
    in the possession of the prosecutors office, but she said:

[U]nless the document can properly be characterized as fruits
    of the investigation, there is no obligation on the prosecutors office to
    provide it as part of routine disclosure in speeding offences. This is so even
    if there is a reasonable possibility that the disclosure sought may assist Mr.
    McGuigan in the exercise of his right to make full answer and defence.

[31]

After
    holding that the user manuals were not subject to first party disclosure, the
    application judge dismissed the concern expressed by the OPA that if user
    manuals were to be treated as third party disclosure, courts would be inundated
    with complex third party records applications under the
OConnor
regime
    that would delay proceedings. She said:

This submission disregards the fact that  the disclosure
    sought is readily available for review at the prosecutors office. There is no
    impediment to an accused making full answer and defence. From a practical point
    of view, an
OConnor
application is not needed.

Also, from a practical point of view, the [York Regional
    Police] is not likely to change its practice of providing a copy of the manual
    to the prosecutors office, so as not to be inundated with
OConnor
applications
    solely to obtain the portions pertaining to the testing procedures.

[32]

At
    the commencement of the appeal hearing, this panel was presented with a copy of
    a letter from the York Regional Police service to the Director of Prosecutions for
    the Regional Municipality of York. It said, in material part:

Having regard to the Court of Appeals decision in
R. v.
Jackson,
    2015 ONCA 832 as well as the appeal that your office recently argued  in
Region
    of York v. McGuigan
, 2017 ONSC 436, it has become apparent that these
    manuals should not be subject to first party disclosure. As such, I would
    kindly request that your office return all copies of these manuals to York
    Regional Police at your earliest convenience.

ISSUES

[33]

During
    this appeal, the appellant brought procedural challenges to the
certiorari
order.
    He recognizes that it is appropriate for third parties subject to production
    orders to obtain
certiorari
relief to quash those orders where there
    have been errors of law on the face of the record. He questions whether it is
    appropriate, however, for the prosecutor, a party, to obtain
certiorari
to
    quash a first party disclosure order.

[34]

The
    appellant also relied before us on two provisions from the POA, ss. 141(3) and
    (4), that the prosecutor failed to draw to the application judges attention, and
    that the application judge failed to consider.

[35]

The
    appellant maintains that s. 141(3), a privative clause, deprived the
    application judge of the jurisdiction to grant
certiorari
from an
    appealable order made in a POA trial. The appellant argues that the disclosure
    order was appealable and therefore should not have been the subject of a
certiorari
order.

[36]

The
    appellant also argues that s. 141(4) required the application judge to deny a
certiorari
order unless she made a finding that a substantial wrong or miscarriage of
    justice occurred. He says she erred by issuing a
certiorari
order
    without making such a finding.

[37]

The
    appellant also challenges the correctness of the order itself. He says that the
    application judge erred by concluding that relevant user manual excerpts are
    not caught by first party disclosure obligations.

[38]

Finally,
    the appellant contends that the application judge erred by finding his ability
    to view the 2010 GHD user manual in the prosecutors office constituted
    disclosure.

[39]

The
    prosecutor argues that not only was this sufficient disclosure, so too was the
    provision to Mr. Thoma of the 2008 GHD user manual.

[40]

The
    issues on appeal can therefore be stated as follows:

1.

Did the
    application judge err in granting a
certiorari
order without a
    jurisdictional error, contrary to POA, s. 140(1)?

2.

Did the
    application judge err in failing to consider the privative clause in POA, s.
    141(3)?

3.

Did the
    application judge err in granting
certiorari
without considering
    whether a substantial wrong or miscarriage of justice had occurred, as required
    by POA, s. 141(4)?

4.

Did the
    application judge err in finding that user manual directions for the testing
    and operation of a speed measuring device relied on by the prosecutor are not
    subject to first party disclosure?

5.

If user manual excerpts
    pertaining to testing and operation are subject to first party disclosure, was disclosure
    adequately made by the prior delivery of a user manual to the appellants representative,
    or by making the user manual available for viewing?

ANALYSIS  THE AVAILABILITY OF
CERTIORARI

[41]

The
    appellant challenges the availability of
certiorari
to quash the
    disclosure order made by the justice of the peace at the outset of the
    appellants trial. The challenge is grounded on the decision by the application
    judge to grant
certiorari
in the absence of a jurisdictional error,
    and the alleged failure of the application judge to consider and give effect to
    two provisions of the
POA
which
    limit the availability of
certiorari
to quash convictions, orders, and
    rulings:

i.

the privative clause in s. 141(3); and

ii.

the proviso in s. 141(4).

A.

THE GOVERNING PRINCIPLES

[42]

The
    principles that control our decision on the availability of
certiorari
to quash the order of the justice of the peace include both statutory
    provisions and common law limitations that apply.

[43]

We
    begin with the common law.

(1)

Certiorari
as a Common Law Remedy

[44]

At
    common law,
certiorari
is one of several extraordinary remedies issued
    by the superior court to superintend the process of courts of limited
    jurisdiction, ensuring that those courts do exercise their jurisdiction but do
    not exceed its limits. In more modern times, the extraordinary remedies involve
    the issuance of orders in lieu of the old prerogative writs. These remedies are
    discretionary. They do not issue as of right:
R. v. Arcand
(2004), 73
    O.R. (3d) 758 (C.A.), at para. 13;
R. v. Johnson
(1991), 3 O.R. (3d)
    49 (C.A.), at p. 53; and
R. v. 1353837 Ontario Inc.
(2005), 74 O.R.
    (3d) 401 (C.A.), at para. 19.

[45]

Where
    a party to a proceeding seeks
certiorari, certiorari
lies only for
    jurisdictional errors, which include denials of natural justice or procedural
    fairness:
R. v. Awashish
, 2018 SCC 45, at paras. 20, 23; and
1353837
    Ontario Inc.
, at para. 13.

[46]

In
    addition to the limitations inherent in
certiorari
as a discretionary
    remedy confined to jurisdictional errors, further impediments limit its
    availability when what an applicant seeks is an order quashing a pre-trial ruling:
1353837 Ontario Inc
., at paras. 14-20.

[47]

Faced
    with an adverse pre-trial ruling said to involve jurisdictional error, a party
    should generally await final disposition of the proceeding and, if adverse,
    appeal that disposition, asserting error in the pre-trial ruling as a ground of
    appeal. Depending upon the applicable rights of appeal, it may not be necessary
    for the appellant to demonstrate jurisdictional error or perhaps even legal
    error on appeal.

[48]

As
    a general rule, we do not permit appeals from rulings on pre-trial or in-trial
    applications until proceedings have concluded with an adjudication on the
    merits. The same is true, generally at least, where the review mechanism
    invoked is
certiorari
. The reasons are familiar:

i.

to maintain the integrity of the trial process;

ii.

to avoid fragmentation or delay in the proceedings;

iii.

to allow for the development of a full record for appeal; and

iv.

to ensure the efficacy of the appeal process.

See,
Awashish
, at para. 10;
1353837
    Ontario Inc
., at paras. 21-23;
Johnson
, at pp. 53-54; and
Arcand
,
    at paras. 13-14. A party may nevertheless seek an order in lieu of
certiorari

in limine litis
in exceptional circumstances, for example when a
    pre-trial ruling denies that party procedural fairness in a court of limited
    jurisdiction. But even in those circumstances, the superior court retains the
    discretion to deny the prerogative relief:
1353837 Ontario Inc
., at
    para. 20.

[49]

The
    policy considerations which underpin the general prohibitions we have just
    described apply equally to proceedings under the
POA
:
1353837 Ontario Inc
., at para. 23; and
Arcand
,
    at para. 14.

[50]

It
    is uncontroversial that, under the
POA,
applications for
certiorari
are rarely granted. The reasons are
    two-fold. First, most erroneous pre-trial or in-trial rulings are errors made
    within jurisdiction. Errors of law made in the exercise of jurisdiction do not
    become jurisdictional error just because one of the parties confers this
    characterization upon them. On
certiorari
review, the issue is not the
    correctness of the ruling, but rather the authority to make it. Second, the
    extraordinary remedies are discretionary. That they do not issue as of right is
    a principle confirmed by the inclusion of s. 141(4) in the
POA
, as explained below.

(2)

The Statutory Provisions

[51]

Subsection
    140(1) of the
POA
preserves the
    availability of
certiorari
in respect of matters arising under this
    Act:

140 (1) On application, the Superior Court of Justice
    may by order grant any relief in respect of matters arising under this Act that
    the applicant would be entitled to in an application for an order in the nature
    of mandamus, prohibition or certiorari. R.S.O. 1990, c. P.33, s. 140 (1); 2000,
    c. 26, Sched. A, s. 13 (5).

[52]

The
    permissive may in s. 140(1) confirms the discretionary nature of the
    extraordinary remedies listed in the subsection. None issue as of right. The
    language of the subsection also makes it clear that although the extraordinary
    remedies, including
certiorari
,
are available in respect of matters arising under this Act, their reach is no
    more expansive than it is in other contexts. Said somewhat differently, the
    relief available on
certiorari
under s. 140(1) is co-extensive with
    the relief available on
certiorari
otherwise.

[53]

Subsection
    140(1) tells us only part of the story about the availability of
certiorari
in respect of matters arising under the
POA
.
    Two provisions circumscribe the plenary language of s. 140(1).

[54]

First,
    the privative clause in s. 141(3):

(3) No application shall be made to quash a
    conviction, order or ruling from which an appeal is provided by this Act,
    whether subject to leave or otherwise. R.S.O. 1990, c. P.33, s. 141 (3).

[55]

Subsection
    141(3) contains mandatory language  the imperative shall, not the permissive
    may. The subsection proscribes the use of
certiorari
to quash a
    conviction, order, or ruling where the
POA
provides a right of appeal from the conviction, order, or ruling, even if leave
    to appeal is required.

[56]

In
    proceedings commenced by a
cert
ificate
    of offence under Part I or Part II of the
POA
,
    s. 135(1) of the
Act
confers a
    right of appeal from:

i.

an acquittal;

ii.

a conviction; or

iii.

a sentence.

The right of appeal is conferred on the defendant, the
    prosecutor, or the Attorney General by way of intervention. The appeal is to a
    judge of the Ontario Court of Justice. Leave to appeal is not required: POA, s.
    135(1).

[57]

Together,
    ss. 135(1) and 141(3) of the
POA limit the
    availability of
certiorari
and provide a right of appeal instead. However, while s. 135(1) only
    provides a right of appeal for
an acquittal, conviction or
    sentence, s. 141(3) makes
certiorari
unavailable for any conviction,
    order or ruling that can be appealed. Because both provisions refer to
    convictions, convictions cannot be challenged by way of
certiorari
.
Certiorari
is also unavailable for an acquittal or a sentence, but seemingly no other
    orders or rulings.

[58]

Subsection
    141(4) imposes a second limitation on the availability of
certiorari
as a review mechanism. The subsection provides:

(4) On an application for relief in the nature of
    certiorari, the Superior Court of Justice shall not grant relief unless the
    court finds that a substantial wrong or miscarriage of justice has occurred,
    and the court may amend or validate any decision already made, with effect from
    such time and on such terms as the court considers proper. R.S.O. 1990, c.
    P.33, s. 141 (4); 2000, c. 26, Sched. A, s. 13 (5).

[59]

In
    mandatory language, s. 141(4) limits
certiorari
relief to cases in
    which the reviewing court finds that a substantial wrong or miscarriage of
    justice has occurred. The subsection also invests the reviewing court with
    broad discretionary powers to amend or validate any decision already made, with
    effect from any time and on any terms the reviewing court considers proper.

[60]

A
    final point concerns the authority of a justice of the peace sitting as a
    provincial offences court to make a disclosure order. As under Part III of the
POA
, a justice of the peace sitting as a
    provincial offences court under Part I or Part II of the
Act
is entitled to determine questions of
    relevance, materiality and admissibility of evidence and has the authority to
    grant or refuse to make disclosure orders:
York (Municipality) v. Irwin
,
    2017 ONCA 906, 68 M.P.L.R. (5th) 179, at para. 7; and
1353837 Ontario Inc.
,
    at para. 18.

B.

THE PRINCIPLES APPLIED

[61]

For
    a variety of reasons, although POA, s. 141(3) is not contravened here, we are
    satisfied that the application judge erred in concluding that the extraordinary
    remedy of
certiorari
was available in the circumstances of this case
    to quash the disclosure order made by the justice of the peace.

[62]

To
    be fair to the application judge, we are not at all satisfied that the parties
    or the intervener who appeared before her properly apprised her of the several
    common law and statutory limitations that curtailed the availability of
certiorari
in this case.

[63]

We
    begin with a proposition that we regard as well-settled: the justice of the
    peace, sitting as a provincial offences court, had the jurisdiction to
    determine disclosure issues and to grant or deny disclosure orders. It follows,
    in our view, that the justice of the peace had the jurisdiction to determine
    whether the disclosure sought fell within the first party or third party
    disclosure regime. The jurisdiction of the justice of the peace to determine
    these disclosure issues was not dependent upon the correctness of her decision.
    She might be right. She might be wrong. Jurisdiction and the correct exercise
    of it are not the same thing.

[64]

Certiorari
is an extraordinary remedy, which issues from the superior court to ensure that
    courts of limited authority, such as the provincial offences court, do not
    exceed their limited jurisdiction. Provided courts of limited jurisdiction do
    not exceed the scope of their authority,
certiorari
is not available
    to the parties to a proceeding to control the manner in which the authority is
    exercised. As indicated, POA, s. 140(1) imports this limitation so that it
    applies under this Act.

[65]

The
    prosecutor argues, to the contrary, that since POA, s. 141(2.1) allows orders
    to be obtained requiring trials to proceed pending an application for a
certiorari
order, the POA contemplates parties bringing interlocutory applications
    for
certiorari
orders to quash non-jurisdictional errors. We disagree.
    Subsection 141(2.1) of the POA says nothing about when interlocutory
    applications are proper. It signals no more than what it says  where interlocutory
    applications for relief in the nature of
mandamus
, prohibition or
certiorari
are brought, the superior court may order that the trial continue in the
    meantime.

[66]

Second,
    the application judge does not appear to have been apprised or to have appreciated
    that the extraordinary remedy of
certiorari
should be granted only
    rarely under the
POA
. For the
    most part, erroneous pre-trial rulings, such as those relating to disclosure,
    are errors of law within jurisdiction, at least where the errors do not have a
    fundamentally important impact on the fairness of the proceedings. Errors
    within jurisdiction are appealable at the end of the trial as part of an appeal
    from acquittal, conviction, or sentence.

[67]

Third,
    the application judge appears not to have been mindful of the firmly
    established principle that, absent exceptional circumstances, a superior court
    ought not to exercise extraordinary remedy jurisdiction where the application
    is brought in the course of ongoing proceedings. This principle, which sets its
    face against
in limine litis
applications, is rooted in sound policy
    considerations. Avoidance of delay and fragmentation of the trial process.
    Determination of issues on an inadequate record. Expenditure of judicial time
    and effort on issues which may not have arisen had the trial process been left
    to run its course.

[68]

Fourth,
    the application judge failed to consider the injunction against relief on
certiorari
imposed by s. 141(4) of the
POA
.
The remedy is only available where the order under review has caused a
    substantial wrong or miscarriage of justice. The disclosure order made here
    falls well short of the standard required to overcome the bar put in place by
    s. 141(4).

[69]

These
    reasons are sufficient to set aside the application judges decision and to reinstate
    the disclosure order made by the justice of the peace. But we prefer not to
    rest our decision on this ground alone after hearing full argument on the
    substantive question from the parties and an intervener on an issue of
    significance in the prosecution of speeding offences across the province.

ANALYSIS  DISCLOSURE

A.

THE GOVERNING PRINCIPLES

[70]

To
    be eligible for disclosure, information and material must be relevant. There
    are different modes of achieving disclosure, and the relevance inquiry operates
    in modestly different ways between them. What is common to each disclosure
    mechanism is that if the information or material lacks logical relevance, no
    right of disclosure will exist.

[71]

There
    are two general categories of disclosure.

[72]

First
    party disclosure refers to information or material the Crown is obliged, on
    request, to deliver to the defendant without the need for an application to the
    court. Material will be subject to first party disclosure only if it is in the
    possession or control of the prosecuting Crown:
R. v. Gubbins
, 2018
    SCC 44, at para. 33.

[73]

If
    the accused wishes to compel the production of information that does not qualify
    for first party disclosure, it must bring a successful third party disclosure
    application, resulting in an order to have the third party produce the
    information. Mechanistically, this is achieved by serving notice on the third
    party record holder along with a subpoena requiring the target information to
    be brought to court so that it will be within the control of the court if
    production is ordered after a third party records hearing.

[74]

In
Gubbins
, Rowe J. discussed two ways that information can become
    subject to first party disclosure, thereby avoiding the need, delay, expense
    and formality of a third party record application, namely (1) as the fruits of
    the investigation, or (2) as obviously relevant information: at para. 33. They
    are the disclosure mechanisms most directly at issue here.

(1)

The Fruits of the Investigation

[75]

The
    most familiar first party disclosure mechanism, developed in
R. v.
    Stinchcombe
, [1991] 1 S.C.R. 326, relates to the fruits of the
    investigation. Pursuant to
Stinchcombe
, the prosecuting Crown is
    obliged, on request, to disclose all relevant information in its possession or
    control relating to the investigation against a defendant.

[76]

As
    explained in
Jackson
, at paras. 93, 95, the fruits of the
    investigation posits a relationship between the subject-matter sought and the
    investigation that leads to the charges against an accused. This information
    is generated or acquired during or as a result of the specific investigation
    into the charges against the accused:
Gubbins
, at para. 22.

[77]

It
    does not matter whether the Crown intends to rely on the fruits of the
    investigation at trial. The disclosure obligation includes not only
    information related to those matters the Crown intends to adduce in evidence
    against the accused, but also any information in respect of which there is a
    reasonable possibility that it may assist the accused in the exercise of the
    right to make full answer and defence:
R. v. McNeil
, 2009 SCC 3,
    [2009] 1 S.C.R. 66, at para. 17.

[78]

Still,
    the

disclosure obligation does not encompass all things that fall into
    the fruits of the investigation basket. It does not extend to information in
    the Crowns possession that is clearly irrelevant, privileged, or the
    disclosure of which is otherwise governed by law:
McNeil
, at para. 18.

[79]

Even
    though this first party disclosure obligation is confined to information
    possessed by the prosecutor, it cannot be defeated by leaving the fruits of the
    investigation in the hands of the investigating police force. As Charron J.
    explained in
McNeil
, at para. 14:

The necessary corollary to the Crowns disclosure duty under
Stinchcombe
is the obligation of police (or other investigating state authority) to
    disclose to the Crown all material pertaining to its investigation of the
    accused. For the purposes of fulfilling this corollary obligation, the
    investigating police force, although distinct and independent from the Crown at
    law, is not a third party. Rather, it acts on the same first party footing as
    the Crown.

[80]

She
    further explained, at para. 18, that the Crown has limited, reviewable
    discretion relating to the disclosure it makes: The Crown retains discretion
    as to the manner and timing of disclosure where the circumstances are such that
    disclosure in the usual course may result in harm to anyone or prejudice to the
    public interest.

(2)

Obviously Relevant Information possessed by the Investigating
    Police Force

[81]

McNeil
dealt with the disclosure of police disciplinary records. Justice Charron
    held for the court, at para. 53, that where the disciplinary information is
    relevant, it should form part of the first party disclosure package. She based
    this conclusion on the obligation of the investigating police force to
    participate in the disclosure process by ensuring that the Crown has all
    relevant information in its possession, including information relevant to the
    credibility of witnesses.

[82]

Since
    relevant disciplinary information is not typically found in the investigative
    file for the charges the accused is facing, Charron J. did not impose an
    unrealistic obligation on the investigating police force to scour all of its other
    records for potentially relevant information. She provided a more workable standard.
    She said, at para. 59, that [w]here the information is obviously relevant to
    the accuseds case, it should form part of the first party disclosure package
    to the Crown
without prompting
 (emphasis in the original).

[83]

Although
McNeil
dealt with police disciplinary records, this disclosure
    obligation applies to all obviously relevant information or material possessed
    by the investigating police force, not just obviously relevant police
    discipline information. This follows not only as a matter of principle. It
    finds support in direction provided by Karakatsanis J., for the court, in
R.
    v. Quesnelle
, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 12:

In
R. v. McNeil
[t]his Court  recognized that
    police have a duty to disclose, without prompting, all material pertaining to
    the investigation of the accused as well as other information obviously
    relevant to the accuseds case. [Citations omitted.]

[84]

The
    phrase obviously relevant represents a comment on the obvious nature of the
    relevance of the record in the case:
Jackson
, at para. 125; see also
Gubbins
,
    at para. 23. It does not describe a higher degree of relevance, since there is
    no such thing. Relevance exists if evidence has some logical tendency to make a
    material proposition more or less likely:
R. v. J.-L.J.
, 2000 SCC 51, [2000]
    2 S.C.R. 600, at para. 47. The term probative value is used to describe how
    compelling the relevant inference is.
McNeil
called for obviously
    relevant information, not obviously probative information.
[4]
As Rowe J. explained in
Gubbins
, at para. 23, this phrase simply
    describes information that is not within the investigative file, but that would
    nonetheless be required to be disclosed under
Stinchcombe
because it
    relates to the accuseds ability to meet the Crowns case, raise a defence, or
    otherwise consider the conduct of the defence.

[85]

In
    context, the without prompting reference means that there should be no need
    for the accused to bring a third party record application to secure obviously
    relevant information in the hands of the investigating police force. Once the
    investigating police force supplies the information to the Crown, it should be
    turned over to the defence in compliance with the Crowns
Stinchcombe
obligation
    of disclosure:
McNeil
, at para. 58.

[86]

This
    is so notwithstanding that the information may not fall fairly within the
    ordinary sweep of fruits of the investigation:
Jackson
, at para.
    116. Information that is obviously relevant to the defence case may need to be
    rustled up by the police, provided to the Crown and disclosed to the defence:
Jackson
,
    at para. 116. Provided, of course, that the obviously relevant information is
    not privileged or subject to statutory disclosure regimes.

(3)

Other Relevant Information in Possession of the Prosecuting Crown

[87]

There
    is a third way in which information can become subject to first party
    disclosure obligations, namely, where it is relevant and comes into the possession
    of the prosecuting Crown.

[88]

In
McNeil
, Charron J. recognized as much. She was addressing cases where the
    Crown is put on notice of the existence of other relevant information in the
    hands of other Crown agencies or departments, including the investigating
    police force. She said that in such cases the prosecuting Crown has a duty to
    inquire about that relevant information and to obtain it if reasonably feasible
    to do so:
McNeil
, at para. 49.

[89]

This
    obligation was described by Karakatsanis J. in
Quesnelle
, at para. 12,
    this way:

In
R. v. McNeil
this Court recognized that the Crown
    cannot merely be a passive recipient of disclosure material. Instead, the Crown
    has a duty to make reasonable inquiries when put on notice of material in the
    hands of police or other Crown entities that is potentially relevant to the
    prosecution or the defence.

[90]

As
    this passage makes plain, this obligation exists because the Crown is not an
    ordinary litigant, but a minister of justice, duty-bound to seek justice, not
    convictions, and to avoid wrongful convictions, in the prosecutions of all
    offences:
Quesnelle
, at para. 18. It owes this duty as an officer of
    the court unless the notice it receives appears unfounded:
McNeil
, at
    para. 49.

[91]

The
    prosecuting Crowns duty to request relevant information from other Crown
    agents does not undermine the separation of the Crown and other Crown agents.
    The other Crown agents are not under an enforceable, reciprocal legal duty to
    hand over information that the Crown inquires about and asks for that is not
    the fruits of the investigation or obviously relevant. Quoting
R. v.
    Arsenault
(1994), 153 N.B.R. (2d) 81 (C.A.), at para. 15, Charron J. made
    plain in
McNeil
, at para. 49, that if the Crown is denied access after
    making a good faith effort to secure such information it is to advise the
    defence that the request was denied. The accuseds remedy is not against the
    Crown. Instead, it should pursue a third party record application.

[92]

It
    follows from the
McNeil
decision that if the Crown receives the information
    it requested, it is to act as gate-keeper. If the information is relevant and
    not privileged or covered by a statutory disclosure regime, the Crown must make
    first party disclosure of that information to the defence.

(4)

The Manner of Disclosure

[93]

Ordinarily,
    disclosure is achieved by providing photographs, photocopies or electronic
    copies of documents or things capable of reproduction:
Report of the
    Attorney Generals Advisory Committee on Charge Screening, Disclosure, and
    Resolution Discussions
, the Hon. G. Arthur Martin, Chair (Ontario: Queens
    Printer, 1993), at pp. 234-35, 470-72, recommendation 41.12 (the Martin
    Report). This is arguably what Sopinka J. envisaged in
Stinchcombe
when
    he spoke, at p. 338, of [p]roduction to the defence. Yet some things, such as
    pornographic images of children, should not be copied. Other information may be
    too sensitive to lose control over. In these exceptional cases, where it is in
    the interests of justice to do so, inspection by the defence may have to do:
R.
    v. Blencowe
(1997), 35 O.R. (3d) 536 (Gen. Div.), at p. 44.

[94]

The
    Crown therefore has discretion as to the manner in which disclosure is made. That
    discretion is not unbridled. The first principle is that disclosure must be meaningful,
    in the sense that it is adequate to enable the accused to make full answer and
    defence:
R. v. Pan
, 2014 ONSC 4645, 2014 CanLII 74050, at paras. 72-75.
    This requires that disclosure must be accessible. The disclosed information
    must be capable of identification and the disclosure must enable proper trial
    preparation:
R. v. Dunn
(2009), 251 C.C.C. (3d) 384 (Ont. S.C.). To
    enable full answer and defence, the accused must also have the means to access
    the disclosed information in court, as needed.

(5)

First Party Disclosure under the
Provincial Offences Act

[95]

The
    prosecutor conceded before us that first party disclosure obligations apply to POA
    prosecutions. Although the
Stinchcombe
obligation was created in an
    indictable offence prosecution, the prosecutor was correct to make the
    concession it did. It is non-contentious that full-blown
Stinchcombe
obligations
    apply in the summary prosecution of criminal offences. Similarly, although this
    court has not ruled directly on the question
[5]
,
    the obligation to make first party disclosure in POA prosecutions appears to be
    non-controversial:
Bruce (County) v. Kramer
(2007), 31 M.P.L.R. (4th)
    79 (Ont. S.C.); and
Ontario (Ministry of the Environment) v. Sault Ste.
    Marie (City)
(2007), 34 C.E.L.R. (3d) 123 (Ont. S.C.). It does not matter
    whether the defendants life, liberty or security of the person is at risk. The
    obligation on the Crown to make first party disclosure is supported by ss. 7
    and 11(d) of the
Charter
, but does not depend on the
Charter
.
Stinchcombe
rested largely on the common law right to make full answer
    and defence, which is provided for in POA, s. 46(2).

[96]

There
    is Ontario Court of Justice authority that while
Stinchcombe
disclosure
    applies, it should be simple and brief given the distinction recognized in POA,

s. 2 between POA and criminal matters. In other words, disclosure
    obligations should be less extensive and comprehensive in POA matters than they
    are in criminal cases. The leading decision is
Durham (Regional Municipality)
    v. Driscoll-Rogers
, 2008 ONCJ 581. The prosecutor asked us to bear this in
    mind, given that this case involves a Part I prosecution of a speeding
    violation. The prosecutor did not provide any specific guidance on what that
    should mean for the disclosure obligations that apply.

[97]

We
    do not need to resolve whether the nature and intensity of disclosure
    obligations differ between criminal cases and POA traffic prosecutions to
    resolve this appeal, and choose not to do so in the absence of full argument.
[6]
We explain below that the information sought to be disclosed was obviously relevant,
    and capable of easy disclosure. In our view, even if the low end nature of this
    prosecution promotes limits on the disclosure obligations that apply, those
    limits would not apply here.

B.

WAS THE MATERIAL SOUGHT RELEVANT?

[98]

The
    prosecutor argued in this case that the application judge did not err in
    denying first party disclosure to the appellant because the user manual
    excerpts the appellant seeks are not relevant, and absent relevance, no right
    of disclosure can exist.

[99]

We
    disagree. In our view, a manufacturers testing and operating procedures for a
    speed measuring device are relevant and must be disclosed. By presenting the
    results obtained by a speed measuring device, the prosecutor is necessarily
    representing that those results are a reliable measure of vehicle speed.
    Evidence that has a logical tendency to cast doubt on that claim is therefore relevant.
    The question is whether information about the manufacturers testing and
    operating procedures is relevant in challenging the prosecutors necessary and
    implicit claim that the speed measurement is reliable.

[100]

In our view,
    this cannot reasonably be contested. Testing and operating procedures are
    provided precisely so that users can accomplish what the device is designed to
    accomplish, in this case, to provide an accurate measure of speed. If testing
    and operating procedures are not complied with, it may cast doubt on the
    integrity of the results. Naturally, compliance with testing and operating procedures
    cannot be determined unless those testing and operating procedures are known.
    Hence, the relevance for disclosure and production purposes of the
    manufacturers testing and operating procedures for a speed measuring device that
    is relied on in the prosecution of a case.

[101]

Not
    surprisingly, evidence about compliance with manufacturers testing and
    operating procedures for speed measuring devices has been used on numerous
    occasions both to undercut and support a prosecution that depends on the
    accuracy of a speed measurement: see, for example,
R. v. Kololgi
,
    [2009] O.J. No. 5742 (C.J.);
R. v. Tran
(17 February 2005), Toronto
    (Ont. C.J.);
R. v. Siu
(2 November 2000), Cambridge File No.
    44619990061543 (Ont. C.J.);
R. v. Dischiavi
(15 December 2017),
    Brampton Cert. No. 6379534B (Ont. C.J.);
R. v. Barnes
(12 August
    2011), Kitchener File No. 4461 999 3078166A 00 (Ont. C.J.);
R. v. Hofland
,
    2011 ONCJ 40
; R. v. Puncher
, 2007 ONCJ 274;
R. v. Sidhu
(27
    October 2011), Kenora File No. 4650446A (Ont. C.J.);
R. v. Asgharzadeh
(4 July 2001), Whitby File No. 2860 999 00 63650776 (Ont. C.J.); and
R. v.
    He
(20 June 2002), Whitby File No. 2860 999 00 65107447 (Ont. C.J.).

[102]

In support of
    its argument that testing and operating procedures for speed measuring devices
    are irrelevant, the prosecutor relied primarily on the decisions in
R. v.
    Bigioni
,

[1988] O.J. No. 2220 (C.A.), and
R. v. Chair
, 2015
    ONCA 868. These decisions recognize that a
prima facie
case of
    speeding will be made out if the officer testifies that he was qualified to use
    the speed measuring device, tested the device, and that it measured the
    defendants speed accurately. A
prima facie
case does not require
    proof of how the machine was tested, or whether testing complied with the
    manufacturers standards. The prosecutor contends that this makes the
    manufacturers user manual irrelevant.

[103]

We are not
    persuaded. These cases do not demonstrate the irrelevance of the manufacturers
    testing and operating procedures for a speed measuring device. A case is a
prima
    facie
 case precisely because it is not conclusive. It is subject to
    rebuttal by relevant evidence.

[104]

The presiding
    justice of the peace recognized as much in
Bigioni
. After finding a
prima
    facie
case he said, if anybody wants to challenge the officer as to how
    [the speed measuring device] was tested, if the method was done correctly, then
    that is their prerogative:
R. v. Bigioni
, [1986] O.J. No. 2753 (Prov.
    Off. Ct.), at para. 88.

[105]

The prosecutor
    also argues that
Jackson
and
Gubbins
establish that the user manual
    excerpts sought in this case are irrelevant. In our view, they do not do so
    because those cases are different from the one before us. Mr. Jackson and Mr.
    Gubbins sought disclosure of historical records relating to the performance of
    an approved instrument on other occasions. Yet the material issue in those
    cases was how the approved instrument performed when Mr. Jacksons and Mr.
    Gubbinss blood alcohol levels were being measured, not how the approved
    instrument performed on other occasions. Expert evidence confirmed that the
    historical data could tell nothing of that. In contrast, the user manual
    excerpts sought in this case describe how the speed measuring device was to be
    used when the speed of the appellants vehicle was being measured.

[106]

Nor do we accept
    that because expert evidence was required by
Gubbins
, at para. 57, to
    demonstrate the relevance of the historical records of approved instruments
    for measuring blood alcohol content, expert evidence is also required to
    establish relevance in this case.
Gubbins
accepts that expert evidence
    is required to show the relevance of historical data because the link between the
    past performance of an instrument and its present functionality cannot be made
    by persons of ordinary experience. In contrast, it takes no expertise to
    recognize that the failure to test or operate a speed measuring device as it is
    designed to be tested and operated has a logical tendency to impact on the reliability
    of the result obtained.

[107]

The instructive
    analogy is not with the information about the historical functioning of
    approved instruments for measuring blood alcohol content. Rather, the
    instructive analogy is with proper operation of approved instruments for
    measuring blood alcohol content at the time they are being used to obtain the
    sample in issue. Even though the readings approved instruments generate are
    presumed by statute to be accurate by
Criminal Code
,

s.
    258(1)(c), that presumption can be rebutted by showing that the approved
    instrument was operated improperly, in other words, not in compliance with
    testing and operating procedures.
[7]
Not surprisingly, cross-examination of qualified technicians about their
    compliance with testing and operating procedures is commonplace in blood
    alcohol cases, without expert evidence about the significance of a failure to
    comply.

[108]

Finally, the
    prosecutor argues that speed measuring devices have internal controls which cause
    the devices to self-check when the Test button is pressed, and that this makes
    the testing and operating procedures irrelevant. We do not agree with this
    argument, either.

[109]

First, the prosecutors
    argument does not describe, with precision, the evidence that was before the
    application judge. The 2008 GHD user manual supplied to the application judge
    did require only that the Test button be pressed, but the evidence before her
    was that the 2010 GHD user manual requires operators to self-test the device
    prior to enforcement and at the conclusion of the officers tour of duty. The
    application judge was also alerted that the affiant who presented this
    information was unaware whether the GHD user manual had been updated after
    2010.

[110]

More
    importantly, even presuming the 2010 information to be accurate, how is a
    person charged to know, without access to the testing and operating procedures,
    that the operator is supposed to press a test button prior to enforcement and
    again at the end of the officers tour of duty? It may be that compliance with
    testing and operating procedures is a simple matter likely to be complied with
    by operators, but relevance for disclosure purposes is not to be determined by
    whether information is apt to be decisive in a case. It is to be determined by
    logical relevance alone, and, in our view, compliance with the manufacturers testing
    and operating procedures is logically relevant information, making those testing
    and operating procedures relevant for disclosure purposes.

C.

WAS THE THIRD PARTY RECORD HOLDING
    WRONG?

[111]

Did the
    application judge err in finding that user manual procedures for the testing
    and operation of a speed measuring device relied on by the prosecutor are not
    subject to first party disclosure? In our view, she did err in this regard.

[112]

The application
    judge held that the user manual excerpts containing the testing and operating procedures
    were not the fruits of the investigation and therefore were not subject to
    first party disclosure under the authority in
Stinchcombe
. The
    prosecutor agreed, arguing that the user manual excerpts were not the fruits of
    the investigation and therefore not subject to first party disclosure. It also
    argued that the testing and operating procedures were not subject to
Stinchcombe
disclosure because they were not in the hands of the prosecuting Crown.

[113]

We will return
    to the prosecutors latter point shortly. Since
Gubbins
has been
    released, the appellant agrees with the prosecutor on the former point, conceding
    that the testing and operating procedures are not the fruits of the
    investigation. To qualify as the fruits of the investigation, information must
    be generated or acquired during or as a result of the specific investigation
    into the charges against the accused:
Gubbins
, at para. 22. The appellant
    does not contend that the relevant user manual excerpts were generated or
    acquired during or as a result of the investigation into the charges against
    the appellant.

[114]

The application
    judge was therefore correct in finding that user manual excerpts of the testing
    and operating procedures are not the fruits of the investigation. She erred,
    however, in failing to recognize that the testing and operating procedures
    qualified for first party disclosure through the second branch described in
Gubbins
,
    as obviously relevant information. While not in the investigative file, this
    information was so inextricably linked to the speed measuring device used by
    the charging officer to identify the appellants alleged offence that it was required
    to be disclosed under
Stinchcombe
because it relates to the accuseds
    ability to meet the Crowns case, raise a defence, or otherwise consider the conduct
    of the defence:
Gubbins
, at para. 23.

[115]

In argument before
    us, the prosecutor tried to draw an untenable line to limit its first party
    disclosure obligations. It acknowledged that if there was evidence that the
    traffic officer actually consulted the user manual that day, the user manual would
    have played a role in the acquisition of the speed measurement and would have
    qualified for first party disclosure, but that absent such evidence, the user manual
    cannot be found to have played such a role. This is tantamount to arguing that
    a user manual that the manufacturer intends to be followed is subject to
Stinchcombe
disclosure only if that user manual has been followed. That would be a
    perverse result. The fact that the device that created the evidence of recorded
    speed was designed to be used according to instructions links those
    instructions to the evidence, making those instructions subject to first party
    disclosure.

[116]

There is a
    general principle at play that can be put this way. Information that plays a
    central role in the integrity of evidence gathered by a prosecutor in an
    investigation is obviously relevant and therefore subject to first party
    disclosure even though that information was not itself created, produced or
    located during the investigation.

[117]

For this reason,
    since the inception of first party disclosure,
Stinchcombe
disclosure has
    routinely been made of a proposed expert witnesss
curriculum vitae
even
    though the
curriculum vitae
has not been created, produced or located
    during the investigation.

[118]

Certification
    documents for qualified technicians and evaluating officers also qualify for
Stinchcombe
disclosure on the same basis.

[119]

Where a search
    warrant affiant makes claims about the reliability on other occasions of a
    confidential informant, information about the track record and prior relationship
    of the confidential informant may have to be disclosed, subject to informer privilege:
R. v. Bennett
, 2017 ONCA 780, 396 C.R.R. (2d) 306. This would be so
    whether that track record information was consulted during the investigation or
    not.

[120]

Given the
    importance assigned by the law of evidence to the criminal records of material
    witnesses, they too must be disclosed on request, even though they are not
    created or produced during the investigation, and may be located during the
    investigation only because of the disclosure request:
R. v. Fiddler
,
    2012 ONSC 2539, 258 C.R.R. (2d) 193, at paras. 44-46;
R. v. Kassam
,
    2016 ONSC 6961, at para. 32; and see
McNeil
, at para. 54.

[121]

McNeil
now
    gives us the analytical tools needed to explain these longstanding disclosure
    practices, even though none of these things are the fruits of the
    investigation. Such information qualifies for first party disclosure because it
    is obviously relevant.

[122]

In the same way,
    the manufacturers testing and operating procedures linked to a speed measuring
    device are central to the integrity of the reading secured by a traffic officer
    using that speed measuring device. They are therefore obviously relevant and
    subject to first party disclosure.

[123]

As the result, even
    if the prosecuting Crown was not in possession of the user manual excerpts, as
    the prosecutor argued before us, the investigating police force was under a
    correlative obligation to furnish this information to the prosecutor so the
    prosecutor could fulfil its disclosure obligation to the appellant.

[124]

As it happens,
    the prosecuting Crown was already in possession of the material that was the subject
    of the disclosure request. The prosecutor argued before us that this was not
    shown to be so because it does not know whether the 2010 GHD user manual it
    held at the time was the latest edition when the appellant was seeking
    disclosure. No evidence was presented to confirm this claim. More importantly,
    the prosecutor invited the appellant to review the user manual it possessed in
    preparation for his trial, and argued in this court that the opportunity to
    review this manual satisfied the
Stinchcombe
disclosure obligation.
    The prosecutor cannot have it both ways. On the evidence, the application judge
    was correct in finding that the prosecutor possessed the user manual containing
    the excerpts the appellant sought.

[125]

Naturally, the
    fact that the prosecutor had already secured this obviously relevant
    information before the appellant made his request does not defeat the
    appellants right of access pursuant to
McNeil
. As we have explained,
McNeil
recognizes that even where a prosecutor obtains information that is simply
    relevant to the prosecution of a case, let alone obviously relevant, the Crown
    must make first party disclosure of that information to the defence. The
    prosecutors possession in this case of the user manual excerpts simply saved
    the investigating police force the need to gather and deliver this information
    to the prosecutor for disclosure to the appellant.

[126]

The application
    judge therefore erred. The user manual excerpts containing the testing and
    operating procedures were subject to first party disclosure obligations.

D.

WAS THE FIRST PARTY DISCLOSURE
    OBLIGATION SATISFIED?

[127]

Given that the
    user manual excerpts pertaining to testing and operating the device are subject
    to first party disclosure, was disclosure adequately made by the prior delivery
    of a user manual to the appellants agent, or by making the user manual
    available for viewing? The answer to both questions is no. Neither of these
    mechanisms satisfied the prosecutors disclosure obligation.

(1)

Prior delivery of the 2008 GHD user manual was not sufficient

[128]

The prior
    delivery of the user manual to the appellants agent is insufficient to fulfill
    the prosecutors disclosure obligation, even leaving aside that, on the
    evidence, the version of the GHD user manual provided to the appellants agent was
    out of date. The prosecutors disclosure obligation was owed to the appellant.
    That disclosure obligation cannot be discharged by disclosure on another
    occasion to another party. At the time the appellants agent received the 2008
    copy of the GHD user manual he was not the appellants agent.

[129]

The implication
    of the prosecutors argument that the agents prior possession of the user manual
    gave the appellant access to the relevant information is to transfer to the
    appellants agent the prosecutors obligation to furnish the relevant
    information to the appellant for use in his case. This is not appropriate.

(2)

Inspection instead of production as not sufficient

[130]

Nor was the
    prosecutors invitation to view the user manual at the prosecutors office
    sufficient. The first principle governing the manner of disclosure is that it
    be meaningful, in the sense that it be adequate to make full answer and
    defence. Disclosure of user manual instructions will be meaningful where the
    defendant can capture a precise record of the information. It will be
    meaningful if the information can be captured to be shared in consulting and
    preparing an expert witness, if necessary. And it will be meaningful if the
    defendant has access to a copy of that information during trial so that it can
    be used during the cross-examination of the traffic officer, or as an exhibit, if
    appropriate. This is not a case where the interests of justice require
    inspection instead of production.

(3)

Website Disclosure

[131]

Subject to one proviso,
    meaningful disclosure of relevant information from the user manual can be made
    simply and inexpensively. The prosecutor may post the relevant contents on its
    website, and then provide the URL to the specific webpage to defendants
    requesting disclosure. This form of disclosure is possible because the information
    is not case specific. It is general information suitable for a general mode of
    delivery.

[132]

There is a proviso
    that must apply to generalized website disclosure such as this. If the
    prosecutor chooses to make disclosure in this way, but then contests the
    authenticity of a printout that can be verified to have come from its website,
    it will not have provided meaningful disclosure. The defendant should be in no
    worse position for having printed the document from a website, than it would have
    been in had the prosecutor provided a hard copy.

CONCLUSION

[133]

We would
    therefore allow the appeal, set aside the order of
certiorari
, and
    reinstate the disclosure order.

Released: DW Dec 21 2018

David Watt J.A.
David M. Paciocco J.A.
I agree. J. MacFarland J.A.

[1]
The prosecutor announced at the appeal hearing that it would be withdrawing the
    charge against the appellant at the close of the hearing.

[2]
The writ of
certiorari
is no longer issued. We use the phrase the
certiorari
order as shorthand for the more cumbersome order in lieu of
certiorari
.

[3]

The issue was not pursued on appeal.

[4]

If a
Charter
remedy is sought because of
    non-disclosure, the probative value of non-disclosed information takes on
    importance because a
Charter
remedy depends on showing that there was a
    reasonable possibility that the failure to disclose affected the outcome at
    trial or the overall fairness of the trial process:
R. v. Taillefer
;
R.
    v. Duguay
, 2003 SCC 70,

[2003] 3. S.C.R. 307, at para. 71. Probative
    value also features large in third party records applications. Here, we are
    speaking solely of first party disclosure obligations and of requests to obtain
    first party disclosure.

[5]
In
1353837 Ontario Inc.
, a justice of the peace denied cross-examination
    sought in aid of a
Stinchcombe
disclosure application. A
certiorari
application
    was brought and granted on the basis that this was a jurisdictional error. This
    court allowed the appeal, setting aside the
certiorari
order. The appeal
    proceeded on consensus that
Stinchcombe
disclosure obligations applied.
    In
Ontario v. 974649 Ontario Inc.
(1998), 42 O.R. (3d) 354 (C.A.), and
R.
    v. Ul-Rashid
, 2014 ONCA 896, 70 M.V.R. (6th) 181, the Crown conceded before
    this court that it had failed to make proper
Stinchcombe
disclosure.

[6]
It should be pointed out, however, that we do not read the Martin Report the
    same way it was read in
Durham
.
Durham
interpreted the Martin
    Reports reference to simple and brief disclosure as saying that disclosure
    can be less comprehensive in POA matters, than in criminal cases. In fact, the
    Martin Reports recommendation 36 is that the nature and extent of disclosure
    should not vary based on whether the charge was prosecuted by way of
    indictment, summary conviction procedure, or prosecuted under the
Provincial
    Offences Act
. When the Martin Report referred to disclosure in POA matters
    being simple and brief, the Committee was doing no more than predicting what
    full disclosure is apt to look like in simple prosecutions.

[7]
This approved instrument analogy is not undermined by the fact that testing
    and operating procedures are defined, not directly by the manufacturer, but by
    the Alcohol Test Committee of the Canadian Society of Forensic Science. There
    is overlap between Alcohol Test Committee and manufacturer standards, since, to
    be approved, instruments must be manufactured to comply with Alcohol Test
    Committee standards: Canadian Society of Forensic Science Alcohol Test
    Committee Recommended Operational Procedures, Effective 2016 September 29,
    online: www.csfs.ca/wp-content/uploads/2016/05/2016-09-29-Operational-Procedures.pdf.
    Moreover, the Alcohol Test Committee relies directly on compliance with
    manufacturers testing and operating procedures: Canadian Society of Forensic
    Science Alcohol Test Committee Recommended Operational Procedures, Effective
    2016 September 29, at I. Approved Instruments, para. 3 and II. Approved
    Screening Devices, para. 8.


COURT OF APPEAL FOR ONTARIO

CITATION: York Region Standard Condominium Corporation No.
    1279 v. 1806780 Ontario Inc., 2018 ONCA 1015

DATE: 20181211

DOCKET: C64266

Rouleau, van Rensburg and Roberts JJ.A.

BETWEEN

York Region Standard Condominium Corporation No.
    1279

Applicant
(Appellant in Appeal)

and

1806780 Ontario Inc. and Liberty Development
    Corporation

Respondents
(Respondents in Appeal)

Joshua Milgrom and Joseph Salmon, for the appellant

Micheal Simaan, for the respondent

Heard: December 10, 2018

On appeal from the judgment of Justice James Diamond of
    the Superior Court of Justice, dated July 27 2017.

APPEAL BOOK ENDORSEMENT

[1]

In our view it is unnecessary to determine whether as argued by the
    appellant that the total cost to the condominium corporation of the lease of
    the parking units had to be treated as a common expense in the disclosure
    statement. The central issue before the application judge was whether the
    disclosure statement was false, deceptive or misleading in relation to the
    manner in which the parking lease obligations were disclosed and whether that
    gave rise to a claim for damages under s. 133 of the Act.

[2]

We see no error in the application judges conclusion, based on his
    review and assessment of the record before him, that sufficient information was
    included in the disclosure statement and that it was not false, deceptive or
    misleading. As agreed, the respondent is entitled to its costs in the amount of
    $19,500 inclusive of disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: 1079268 Ontario Inc. v. GoodLife Fitness Centres
    Inc.,

2017 ONCA 12

DATE: 20170110

DOCKET: C61367

Cronk, Rouleau and Huscroft JJ.A.

BETWEEN

1079268 Ontario Inc.

Applicant (Respondent)

and

GoodLife Fitness Centres Inc.

Respondent (Appellant)

John K. Downing and Brian Whitwham, for the appellant
    GoodLife Fitness Centres Inc.

Kevin D. Sherkin, Elizabeth Barrass and Carmine Scalzi,
    for the respondent 1079268 Ontario Inc.

Heard:  September 19, 2016

On appeal from the order of Justice Ruth E. Mesbur of the
    Superior Court of Justice, dated October 5, 2015, with reasons reported at 2015
    ONSC 6772.

Huscroft J.A.:

[1]

The issue in this appeal is ostensibly a simple one: does the appellant GoodLife
    Fitness Centres Inc.s (GoodLife) lease with the respondent 1079268 Ontario
    Inc. (107) of 635 Danforth Avenue, in Toronto, include the basement of the
    premises?

[2]

One would expect the matter to be resolved by the provisions of the
    lease, but, as counsel acknowledged, the lease in this case is not a model of
    clarity. It includes inconsistent and contradictory provisions.

[3]

The application judge held that the lease does not include the basement,
    which GoodLife has been using since its tenancy began. She declined 107s
    request to rectify the lease, but ordered GoodLife to pay occupation rent for its
    past use of the basement.

[4]

GoodLife appeals from this order.

[5]

I would allow the appeal. In my view, although the application judge acknowledged
    the need to consider the circumstances surrounding the negotiation in
    interpreting the lease, she erred in law in failing to consider all the
    relevant circumstances. Considered as a whole, the surrounding circumstances
    demonstrate that the lease includes the basement.

Background

The lease

[6]

The lease in question was executed by 107 with GoodLifes predecessor, Extreme
    Fitness (Extreme), on October 30, 2006, following lengthy negotiations
    between their lawyers and the exchange of several draft leases.

[7]

The lease included the following provisions:

1.1     Basic terms

(c) Property: the development situate on the Lands legally
    described as Part Lot 7 to 8, Plan 200 Toronto and Part Lot 24 -27, Plan 306E
    Toronto as in CT782043, City of Toronto (being PIN 21062-0414 LT) and
    municipally known as 635 Danforth Avenue, Toronto, Ontario M4K 1R2.

(d) Premises: the entire property. The premises consist of
    three floors plus mezzanine, and the floors have the following areas: ground
    floor 11,461 square feet, second-floor 5,526 square feet, third floor 1,026
    square feet, a platform area of 1,654 square feet, and a mezzanine of 4,443
    square feet, which floors are shown on the plans annexed as Schedule A.

(e) Rentable Area of Premises: approximately 24,110 square
    feet, subject to Section 2.2.

...

(g) Basic Rent (Section 4.1):

Period                   Per Sq. Ft./Year    Per Year                Per
    Month

Term 1-2               $24.786                 $597,600.00 $49,800.00

Renewal 1: 3-5      $24.786                 $597,600.00 $49,800.00

Renewal 2: 6-10     $25.881                 $624,000.00 $52,000.00

Renewal 3: 11-15   $26.768                 $648,000.00 $54,000.00

2.2 Measurement

[Intentionally Deleted]

...

5.4 Operating Costs

[Intentionally Deleted]

...

6.1 Payment for Utilities

The tenant shall pay promptly when due all charges, costs,
    accounts and any other sums payable by reason of the supply of the utilities
    and services to the Premises. The Landlord shall prior to the commencement date
    at the Landlord's cost, install a separate meter to measure consumption of hydro,
    washer and gas for the Premises and the Tenant shall contract with and pay the
    supplier directly.

6.2 Above-normal Utilization

[Intentionally deleted]

The use of the basement by Extreme

[8]

107 removed kitchen equipment it owned from the basement of the premises
    shortly following execution of the lease. In 2007, Extreme made alterations to
    the premises, including the basement. 107 alleged that these renovations were
    made in breach of the lease, but the dispute was settled with Extremes
    agreement to exercise its first two renewal options and extend the term of the
    lease.

[9]

A second dispute arose in 2008. On April 4, 2008, 107s lawyer, Mr. Singer,
    wrote to Extreme claiming that it had made extensive renovations to the
    basement level as well as the ground, second, third floors and mezzanine of the
    building. He stated that Extreme had converted the basement from a storage area
    to a functional area for use by Extremes fitness club business and that the
    alterations had increased the usable rental area of the building by approximately
    4,600 square feet.

[10]

Extremes
    lawyer, Mr. Westwood, replied in an email dated April 22, 2008. He asserted
    that Extreme was not in breach of the lease because the lease included the
    basement and Extreme was under no obligation to pay additional rent for using it.

[11]

Extreme
    continued to pay the rent due under the lease and 107 took no further action.

[12]

Three
    years later, Extreme was in financial difficulty and as part of its banking
    arrangements required an estoppel certificate from 107. In May, 2011, 107
    signed a certificate stating that its lease with Extreme:

is in full force and effect; the Lease has not been amended or
    modified; no default exists under the Lease; and, to the best of its knowledge,
    all rent and other charges have been paid to the extent payable  .

Assignment of the lease from Extreme to GoodLife

[13]

Extreme
    attempted to restructure its business under the
Companies Creditors
    Arrangement Act
, R.S.C. 1985, c. C-36 (
CCAA
) in 2013. 107
    advanced a claim against Extreme while it was under
CCAA
protection,
    among other things, for back rent for Extremes use of the basement from
    2007-2013. In the course of the
CCAA
proceedings, and with knowledge
    of 107s claim, GoodLife entered into an asset purchase agreement pursuant to
    which it took an assignment of Extremes lease with 107.

[14]

The
    asset purchase agreement required court approval. 107 opposed the sale to
    GoodLife on the basis that Extreme was in breach of its obligations under the
    lease. 107 reiterated its earlier position that the lease did not include the
    basement and that Extreme owed back rent for its use of the basement. In
    addition, 107 asserted that the square footage had been understated in the
    lease and that the premises were significantly larger.

[15]

The
    asset purchase agreement was approved in a vesting order dated March 27, 2013.
    107s claims against Extreme were settled subsequently, and the court ordered
    that 107s claims against GoodLife (post-March 27, 2013) should be adjudicated by
    way of a separate application.

[16]

107
    then brought an application for rectification of its lease with GoodLife and a
    determination of the amount of back rent, if any, that GoodLife owed under the
    lease.

The application judges decision

[17]

On
    the main point  whether the lease included the basement  the application
    judge noted that the lease is internally inconsistent: it describes the
    property both in terms of the whole property and a portion of the property that
    includes specified elements. The application judge could not give meaning to
    all the terms of the lease because some terms contradicted others. Thus, she considered
    some of the features of the negotiations surrounding the formation of the lease
    in order to inform her interpretation of its terms.

[18]

The
    application judge noted that, although Extreme had required approximately
    30,000 square feet for its operations, the figure in the lease was only slightly
    more than 24,000 square feet and the lease referred only to the upper floors
    and mezzanine. The application judge noted, further, that 107 owned a building
    next door that had 6,000 square feet available to lease and that the parties had
    entered into a letter of intent for Extreme to lease that space (although no
    lease of this space was ultimately concluded).

[19]

The
    application judge concluded that the lease did not include the basement. She
    reasoned as follows, at paras. 49 -51:

When I look at the lease as a whole, the square footage
    referred to in it, and the description and schedules describing only the upper
    floors and mezzanine, I conclude the basement was not included in the leased
    premises.

I say this because the approximate square footage referred to
    in the lease is not nearly large enough to include the basement. The schedules
    setting out what is leased do not include the basement floor plan. The lease
    itself says the premises consist of three floors plus a mezzanine. It does not
    refer to the basement as being part of the leased premises. While I recognize
    parts of the lease refer to the whole property, and require the tenant to pay
    all the utilities rather than a proportionate share of them, I see the lease,
    taken as a whole, as excluding the basement.

Other factors support this conclusion as well, including the
    parties continued negotiations for Extreme to take additional space next door
    that would bring its premises to about 30,000 square feet. Those negotiations
    continued over a long period of time, with Extreme continually promising 107 it
    was going to go ahead and lease the additional space.

[20]

The
    application judge went on to conclude that 107 was not entitled to rectification
    of the lease and that 107s claim for rent arrears was not barred by the
    estoppel certificate or its delay in bringing the claim. She calculated rent
    GoodLife owed for its use of the basement based on the rate per square foot set
    out in the lease.

Issues

[21]

GoodLife
    submits that the application judge erred in five ways:

1. By finding that
    the lease was only for three floors plus a mezzanine, and did not include the
    basement;

2. By finding the rent was based on
    cost per square foot;

3. By finding that occupation rent is
    owed;

4. By failing to find that 107s claims
    were barred by estoppel and waiver; and

5. By drawing an adverse inference
    against it for failing to call evidence about what transpired prior to the
    proceedings under the
CCAA
involving Extreme and for failing to examine
    anyone from Extreme.

[22]

The
    first issue  whether the lease includes the basement  is key to the appeal.
    The remaining issues need to be determined only if the application judges
    conclusion that the lease does not include the basement is upheld.

Analysis

The standard of review

[23]

As
    the Supreme Court of Canada explained in
Sattva Capital Corp. v. Creston
    Moly Corp.
,

2014 SCC 53, [2014] 2 S.C.R. 633, contractual
    interpretation is properly characterized as a mixed question of fact and law
    and is subject to deferential review on appeal. Although the court has since
    held that standard form contracts are an exception to this rule and are subject
    to review on the standard of correctness, that exception does not apply here: see
Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co
., 2016
    SCC 37. The provisions of the lease in question were negotiated by the parties and
    their interpretation is subject to the
Sattva
principles.

[24]

Sattva
makes clear that the standard of review is palpable and overriding error, unless
    it is possible to identify an extricable question of law, in which case
    correctness review applies.
Sattva
emphasizes that questions of law are
    relatively rare; courts must be cautious in identifying extricable questions of
    law, lest contractual interpretation collapse into correctness review. Nevertheless,
    the Supreme Court identified three examples of legal errors that may be made in
    the course of contractual interpretation: the application of an incorrect
    principle, the failure to consider a required element of a legal test, or the
    failure to consider a relevant factor:
Sattva
, at para. 53 (citing
King
    v. Operating Engineers Training Institute of Manitoba Inc.
, 2011 MBCA 80,
    270 Man. R. (2d) 63,

at para. 21).

[25]

GoodLife
    submits that the application judge made a palpable and overriding error in
    overlooking critical evidence in the circumstances surrounding the negotiation
    of the lease. 107 submits that the application judges decision reveals no such
    error and that her decision is supported by her factual findings and is
    entitled to deference.

[26]

Although
    I agree with GoodLife that the application judge erred in overlooking critical
    evidence, I would characterize the error as an error of law. In my view, although
    the application judge referred to some of the circumstances surrounding the
    negotiation of the lease, she failed to interpret the lease having regard to
    the circumstances as a whole. The evidence, and in particular email
    correspondence between the parties lawyers, confirms that the parties intended
    to lease the entire premises, including the basement, on a lump sum basis.

The surrounding circumstances

[27]

As
    the Supreme Court explained in
Sattva
, the court must read the
    contract as a whole, giving the words used their ordinary and grammatical
    meaning, consistent with the surrounding circumstances known to the parties at
    the time of formation of the contract:
Sattva
, at

para. 47.

[28]

The
    circumstances surrounding the formation of the lease take on particular
    importance in a case such as this, given the inconsistent and contradictory
    provisions that were included in the lease in its final form.

[29]

The
    application judge referred to several of the draft leases exchanged by the
    parties during the negotiation process, but her consideration of the
    surrounding circumstances is incomplete. Although she refers to some of the
    email correspondence between the parties, she does not consider the key correspondence
    that took place early in the negotiations  correspondence that makes clear the
    parties intention to lease the entire premises, including the basement, on a
    lump sum basis.

[30]

On
    September 1, 2006 Mr. Westwood asked specifically whether the rent was an
    agreed amount or was based upon a cost per square foot, and whether the tenant
    was leasing the entire property. Mr. Singer replied in an email dated September
    18, 2006. His answer was categorical:

The Tenant will accept 635 Danforth on an as is basis and the
    rent will be the rent negotiated per year and
not based on actual square
    feet
.
The Tenant will lease the entire building
    (other than the kitchen area in the basement
which will be used by the Landlord for its
    storage area)
. [Emphasis added.]

[31]

Thus,
    early in the negotiation process, 107 acknowledged that the lease was not based
    on the actual square footage being rented. The entire building was being leased
    for a lump sum rent, albeit that 107 was to retain a portion of the basement
    that included a kitchen, for future purposes.

[32]

This
    understanding is also confirmed by evidence given by Mr. Singer on
    cross-examination on his affidavit

concerning
    his September 18, 2006 email:

Q: If I go on at paragraph number 3 in your e-mail message of
    September 18, you say right after the sentence weve reviewed, The Tenant will
    lease the entire building other than the kitchen area in the basement, which
    will be used by the landlord for its storage area.

A: Thats correct.

Q: And youre indicating to the tenant at [t]his time that the
    tenant is going to lease the entire building other than that kitchen area in
    the basement, fair?

A: Thats correct, thats what it says.

Q: You indicate to the tenant that because those were the
    instructions you were receiving from the landlord.

A: I would assume thats the case, yes.

Q: You were aware at that time that the kitchen area in the
    basement was only a portion of the basement, not all of it.

A: Thats correct.

Q: You were indicating to the tenant that the entire building would
    be leased including that portion of the basement that was not occupied by a
    kitchen, fair?

A: Correct.

Q: And that was your instructions from the landlord.

A: Correct.

[33]

Subsequent
    drafts of the lease confirm this understanding.

[34]

Extreme
    was concerned about the presence of a kitchen in the basement and the
    possibility that odours from the kitchen would adversely affect its fitness
    business, and further correspondence between the parties solicitors ensued. On
    September 20, 2006, Mr. Westwood wrote to Mr. Singer that he understood that
    107 no longer required the use of the kitchen, and that: This space will now
    become part of the Leased Premises.

[35]

Mr.
    Singer neither confirmed nor rejected Mr. Westwoods assertion concerning the
    kitchen in either his September 26 or 28 email correspondence. However, Mr.
    Singer deleted the provision excluding the kitchen from the leased space from
    the next draft of the lease he provided to Mr. Westwood on October 6, 2006, and
    the provision remained deleted from the lease as finally executed.

[36]

In
    the result, the only limitation on the scope of the leased premises set out in Mr.
    Singers September 18, 2006 email no longer applied: the entire premises,
    including the basement, were being leased by Extreme.

[37]

This
    understanding  that the lease was for the entire premises  was not altered by
    the parties subsequent negotiations. On the contrary, the deletion of several provisions
    from subsequent drafts of the lease confirms the conclusion that the lease was
    for the entire premises, including the basement. For example, the
    proportionate share provision, which required the tenant to pay only the
    utilities for the portion of the premises it was leasing, was deleted from the
    October 6, 2006 draft and, as a result, Extreme was required to pay the
    utilities for the entire premises. The above normal utilization clause, which
    would have permitted the landlord to charge additional rent for above-normal
    utility use, was deleted from the October 11, 2006 draft. The measurement
    clause, which would have permitted the landlord to measure the premises and
    adjust the rent if the stated measurements in the lease were inaccurate, was deleted
    from the October 23, 2006 draft.

[38]

In
    each case, these provisions were deleted in response to comments from Mr.
    Westwood on previous drafts of the lease indicating they were inconsistent with
    the understanding that the tenant was leasing the entire premises on a lump
    sump basis. Finally, the definition of premises in the October 27, 2006 draft
    was shortened to refer simply to the entire property.

[39]

Although
    the application judge acknowledged the deletion of these provisions, she did
    not consider their deletion in the context of the e-mail exchange setting out
    the agreement reached by the parties. She considered that other provisions in
    the lease  in particular, provisions referring to the square footage and the
    description of the premises as consisting of three floors plus a mezzanine
    had the effect of excluding the basement.

[40]

With
    respect, that conclusion was negated by the evidence of the surrounding
    circumstances outlined above. The problem in this case is not that the
    application judge simply failed to refer to all the material evidence in the reasons
    for her decision; indeed, she was not required to do so. The problem is that
    the application judge failed to consider all the material evidence before
    reaching her decision. The result is an interpretation of the lease that was
    inconsistent with the intention of the parties.

[41]

Plainly,
    some inconsistent provisions remained in the lease. However, when the
    interpretation of the lease is informed by consideration of all the surrounding
    circumstances  and in particular, the email correspondence and the evidence of
    Mr. Singer  the parties intention that the entire premises, including the
    basement, were to be leased on a lump sum basis is clear and must be given
    effect. That some inconsistent provisions remained in the lease does not,
    without more, provide a basis for concluding otherwise.

[42]

The
    application judge considered it significant that 107 appears to have assumed
    that Extreme would agree to lease additional space in adjoining premises that
    it owned, but this did not come to pass. It may be that Extremes use of the
    basement  which was known to 107 for some time  rendered the leasing of additional
    premises unnecessary. Be that as it may, 107 is entitled only to the rent GoodLife
    is required to pay under the lease, and in my view the lease includes the
    basement.

[43]

This
    conclusion is determinative of this appeal, and as a result I do not reach the
    other issues raised by GoodLife.

Disposition

[44]

I
    would allow the appeal.

[45]

I
    would award GoodLife its costs on the appeal, fixed by agreement of the parties
    at $20,000, inclusive of taxes and disbursements. I would reverse the costs
    award on the application.

Grant Huscroft J.A.

I agree E.A. Cronk
    J.A.

I agree Paul Rouleau
    J.A.

Released: January 10, 2017