WARNING

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

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

Criminal
    Code
provide:

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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)     any of the
    following offences;

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

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

(iii)     REPEALED: S.C.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

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

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

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

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

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    that could identify the victim shall not be published in any document or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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. W.M., 2020 ONCA 236

DATE: 20200324

DOCKET: C65108

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

BETWEEN

Her Majesty the Queen

Respondent

and

W.M.

Appellant

W. John McCulligh, for the appellant

Caitlin Sharawy, for the respondent

Heard: March 6, 2020

On appeal from the conviction entered on
    May 30, 2017 by Justice John R. Sproat of the Superior Court of Justice.

Strathy C.J.O.:

[1]

The appellant appeals his convictions for sexual
    interference and sexual assault of his daughter, who was approximately four
    years and ten months of age at the time of the offences. A stay was entered in
    relation to the second count. He was sentenced to four years imprisonment and
    ancillary orders were made.

[2]

For the reasons that follow, I would allow the
    appeal and order a new trial.

The Evidence

[3]

The childs mother testified that the incident
    came to light after the Childrens Aid Society (CAS) informed her that the
    child had engaged in sexualized behaviour at school. The mother had some
    knowledge of her husbands past, discussed below, which prompted her to ask her
    daughter, did daddy touch your vagina? The child replied, yes. The mother told
    the child that if her father ever touched her again, she should run and get
    her. The mother ultimately notified the police, and the appellant was charged.

[4]

Shortly after the alleged incident, the child
    made a video statement. It was admitted in evidence at trial and she adopted it
    as true. She said that her father had touched her vagina with his hand, over
    her pyjamas, while he was standing beside her bed. She claimed that she had
    screamed for her mother, who came into the room and said, Did dad touch your
    vagina again? She replied yes.

[5]

In the course of trial preparation, the child
    disclosed a second incident in which she alleged that the appellant had touched
    her vagina with a spoon or a round object. At trial, she said that she was in
    bed sleeping when the appellant, who was standing beside her bed, pulled down
    her pyjamas and touched her vagina. She did not see the spoon, but the object
    was metal, smooth, and circle-shaped. She said that the spoon incident took
    place when she was five years old and that it occurred before the touching with
    the hand. She said that she forgot to tell the officer who took her statement
    about the touching with the spoon.

[6]

There were some inconsistencies in the
    complainants evidence. This was not surprising in view of the childs age when
    the events were alleged to have occurred, and the passage of about two years
    between those events and the trial. There were also some inconsistencies
    between the mothers evidence and the childs.

[7]

The appellant testified and denied the
    allegations.

[8]

The trial judge admitted similar fact evidence
    of offences that the appellant pleaded guilty to in 1998:

a.

between 1985 and 1987, when he was 13 to 15
    years old, he sexually assaulted a three to five-year-old child he was
    babysitting, lifting her night clothes and touching her vagina;

b.

between 1995 and 1997, when he was 23 to 25
    years old, he sexually assaulted a five to seven-year-old child, going into her
    bedroom while she was sleeping, exposing her body and touching her vagina.

[9]

In addition to convictions for the offences
    above, the appellant testified that he was convicted in 2000 for dangerous
    operation of a motor vehicle, possession of proceeds of crime, and break and
    enter. He was convicted again in 2008 for possession of a weapon, assault with
    a weapon, and theft under $5,000.

[10]

The appellant testified that he himself had been
    sexually abused as a child while in the care of the CAS. He said that he knew
    what he was doing was wrong at 13-15 years old, but he did not appreciate just
    how wrong it was. He said that he better understood the wrongfulness of his
    actions in 1995-97 when he was 23-25 years old, but nevertheless did what he
    knew to be wrong because of the sexual gratification he received. However, the
    1998 conviction drove home for him how wrong it was. He testified that he was
    a changed man as of 1998 because of his better understanding and his resolve
    to change.

[11]

The appellant testified that he had received sex
    offender treatment while in custody at the Ontario Correctional Institute for
    the 2000 convictions. He testified that prior to commencing the sex offender
    course, he underwent phallometric testing, and his understanding of the results
    was that he was not a pedophile. He also said that the treatment helped him
    learn how to  better understand the feelings of others, to be accountable to
    the victims, and to learn how to empathise, to have victim empathy. He looked
    at his own triggers  and stressors, and why [he] did what [he] did. In
    addition, the appellant testified that as a result of the motor vehicle
    accident that resulted in his 2000 conviction, he had suffered physical injuries
    that affected his ability to get an erection and left him unable to experience
    sexual gratification in the way he had before.

[12]

In cross-examination, the appellant testified
    that he did not have any concerns about re-offending because of: (1) his
    increased appreciation of the wrongness of his actions as a result of the 1998
    conviction and the 2000 sex offender course; and (2) the physiological changes
    in his body as a result of the 2000 motor vehicle accident.

The Trial Judges Reasons

[13]

The trial judge correctly described the
    principles in
R. v. W.(D.)
, [1991] 1 S.C.R. 742. These principles apply
    to the assessment of evidence in cases of sexual assault and outline the common
    sense approach for assessing the evidence of young children, while at the same
    time respecting the presumption of innocence and the burden of proof in
    criminal cases.

[14]

The trial judge found that the complainant was
    credible, in the sense that she wanted to tell the truth. He found that the
    childs mother did not influence the childs evidence, either intentionally or
    unintentionally, and that the allegations of touching came from the complainant
    and not from her mother. The inconsistencies between the evidence of the mother
    and the child did not cause him to doubt the main points of the childs
    evidence.

[15]

The trial judge noted that the appellants
    cross-examination disclosed aspects of his evidence that were self-serving or
    exaggerated or contradictory. For example, he claimed that he was unable to
    achieve an erection after the motor vehicle accident in 2000, but it was
    pointed out to him that he had been able to father a child, the complainant,
    after that accident. He also initially claimed that he did not realize that
    touching a childs vagina was wrong when he was a young person, but
    acknowledged that the acts were done in private so that he would not be caught
    and ultimately agreed that he knew it was wrong.

[16]

In commenting on the appellants evidence in
    relation to the similar fact evidence, the trial judge observed:

He was asked if he had any concern of
    reoffending after
2008
. He said the sex offender
    treatment and other programs he took at the Ontario Correctional Institute in
2008
were such that he did not have a concern about
    reoffending. [Emphasis added.]

[17]

In assessing the weight of the similar fact
    evidence, the trial judge said:

I accept and take into account that [the
    appellant] received sex offender treatment while he was incarcerated. That
    evidence logically does tend to diminish the significance of the
    situational-specific propensity that [the appellant] had demonstrated in the
    conduct underpinning his convictions for offences in 1985 to 1987, and 1995 to
    1997.

I do note, however, that
implicit in [the appellants] evidence, that he received and
    benefited from sex offender treatment in 2008, is that he still had some need
    of treatment at that time
. He still needed to manage his impulses and
    learn to empathize with victims and learn to recognize triggers and stressors
    that lead to this behaviour. In other words,
the
    situation-specific propensity that demonstrated itself in 1985 to 1987, and
    1990 to 1997 was also present in 2008
. Given that
this
    propensity persisted or at least demonstrated itself over the period 1985 to
    2008
, there is every reason to believe it would still be a factor in
    2015. No one would suggest that any treatment program is a hundred percent
    effective.

So, while I factor the treatment program into
    my analysis, it certainly does not preclude consideration of
the long-standing situation-specific propensity that [the
    appellant] had to touch female children inappropriately
.  The
    significance of similar fact evidence lies in the improbability of coincidence.
    I think there is virtually no chance that coincidence explains [the appellant] having
    a criminal record for touching prepubescent females on the vagina while they
    are in his care and sleeping, and this complainant making the same allegation.
    [Emphasis added.]

[18]

Ultimately, the trial judge did not accept the
    appellants denial of the allegation and stated that the Crown evidence he
    accepted satisfied him of the appellants guilt beyond a reasonable doubt.

Grounds of Appeal

[19]

The appellant raises three grounds of appeal:

1. The trial
    judge erred in his application of
W.(D.)
and misapplied the burden of
    proof;

2. The trial
    judges reasons were insufficient in that they failed to adequately address inconsistencies
    in the Crowns evidence; and

3. The trial
    judge misapprehended the appellants evidence concerning his sexual offender
    treatment and this error had a material impact on the conviction.

[20]

As I would allow the appeal on the third ground,
    I do not find it necessary to address the other two.

Analysis

(1)

Legal Principles for the Misapprehension of
    Evidence

[21]

A new trial is required when the appellant has
    met the stringent standard for determining whether a misapprehension of
    evidence resulted in a miscarriage of justice, as set out in
R. v.
    Morrissey
(1995), 22 O.R. (3d) 514, at p. 541, see also
R. v. Lohrer
,
    2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1-2. Specifically, the
    misapprehension of evidence must go to substance rather than detail, it must be
    material rather than peripheral to the reasoning, and the errors must play an
    essential part not just in the narrative of the judgment, but in the reasoning
    process resulting in a conviction:
Lohrer
, at para. 2. If the
    appellant can show that the conviction was based on a misapprehension of
    evidence, the appellant is entitled to a new trial even if the evidence, as
    actually adduced at trial, was capable of supporting a conviction:
Morrissey
,
    at p. 541.

[22]

The impact of a misapprehension of evidence is
    particularly marked in cases where the principle issue is credibility. In such
    cases, it is essential that the findings be based on a correct version of the
    actual evidence, as wrong findings on what the evidence is destroy the basis
    of findings of credibility:
Morrissey
, at p. 541, citing
Whitehouse
    v. Reimer
(1980), 116 D.L.R. (3d) 594 (Alta. C.A.).

(2)

Application

(a)

The Factual Error

[23]

The trial judges reasons quoted above, at para.
    17, contain a misapprehension of the evidence. The uncontested evidence was
    that the appellant received sex offender treatment in the Ontario Correctional
    Institute while he was in custody in
2000
, not in
2008
. Based on the factual error with respect to the
    date of treatment, the trial judge also found that it was implicit in the
    appellants evidence that he still needed treatment in 2008, ten years after
    his previous offence.

(b)

Impact of the Misapprehension of Evidence

[24]

The misapprehension of evidence affected the
    trial judges reasons for conviction in two interconnected ways: (1) it led the
    trial judge to find that the appellants propensity to offend was likely active
    in 2015, when the offences were alleged to have occurred; and (2) the trial
    judge found, implicitly, that the treatment did not reduce the probative value
    of the similar fact evidence.

(i)

Propensity to Offend in 2015

[25]

The trial judge found the fact that the
    appellant required sex offender treatment in
2008
was evidence that his propensity was still active in
2008
,
    and therefore, the propensity was likely active in 2015, the time of the charged
    offences. This factual error led the trial judge to believe that there was
    evidence of an ongoing propensity that persisted for a 23-year period (from
    1985 to 2008). This mistaken finding of fact factored into the trial judges
    rejection of the appellants evidence that he had benefitted from treatment and
    was confident that he would not re-offend as a result.

[26]

Under the correct timeline, the appellants evidence,
    including his claim of confidence, would have been more credible. Properly
    understood, the evidence demonstrated that the appellant had received sexual
    offender treatment in 2000, within three years of his previous offence in 1998.
    Furthermore, the propensity had not demonstrated itself in the 15 years after
    treatment.

(ii)

Weight of the Similar Fact Evidence

[27]

Second, the factual error affected the weight of
    the similar fact evidence. This is because treatment could be viewed as an intervening
    event that diminished the probative value of the similar fact evidence: see
R.
    v. Handy
, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 132. The trial judge correctly
    recognized this in his reasons, stating that treatment logically does tend to
    diminish the significance of the situational-specific propensity. However, the
    factual error would have impacted the trial judges assessment of treatment as
    an intervening event.

[28]

In analyzing the similar fact evidence, the
    trial judge considered how much time had passed between incidents of
    demonstrated propensity. As discussed, the trial judge reasoned that the
    propensity exhibited in the similar fact offences was still a factor in 2015
because
of the factual error that the appellant received
    sexual offender treatment in 2008, only seven years before. This line of
    reasoning would not have been available on the correct timeline of treatment in
    2000. In actuality, the appellant had received treatment eight years earlier,
    meaning 15 years had passed between treatment and the charged offences

more than twice as
    long as the trial judge believed. This is a material length of time that would
    have affected the trial judges assessment of the appellants evidence that he
    had benefitted from treatment, and relatedly, the extent to which treatment
    could be considered an intervening event that diminished the probative value
    of the similar fact evidence.

Conclusion

[29]

I am satisfied that the appellant has met the
    stringent standard for determining whether a misapprehension of evidence led
    to a miscarriage of justice. In the present case, the similar fact evidence
    played a significant role in the conviction, as did the trial judges
    discounting of the appellants evidence concerning the effect of the sexual offender
    treatment. The misapprehension of the evidence was material and played an
    essential part in the trial judges reasoning process. In cases predicated on
    credibility, such as this one, it is essential that the findings be based on a
    correct version of the actual evidence:
Morrissey
, at p. 541.

[30]

I would allow the appeal and order a new trial.

G.R.
    Strathy C.J.O.

I
    agree. Trotter J.A.

B.W. Miller J.A. (dissenting):

[31]

I have had the benefit of reading the reasons of
    the Chief Justice and have come to a different conclusion about the materiality
    of the trial judges misapprehension of evidence, which compels a different
    result. As explained below, I do not believe that the trial judges
    misapprehension of evidence played an essential role in the reasoning process
    resulting in the conviction. Accordingly, I would dismiss the appeal.

[32]

As I understand the trial judges reasons,
    nothing in his reasoning turns on the year in which the appellant undertook sex
    offender treatment at the Ontario Correctional Institute. The trial judge
    considered a number of factors in rejecting the appellants testimony and
    determining his guilt beyond reasonable doubt. One of these was the similar
    fact evidence, and I agree that this evidence carried considerable force. But
    several other factors led the trial judge to conclude that elements of the
    appellants testimony were self-serving or exaggerated or contradictory. All
    of these factors undermined the appellants evidence. Conversely, the trial
    judge found the complainant to be credible and reliable, despite the
    inconsistencies in her testimony. The evidence, taken together, convinced the
    trial judge of the appellants guilt beyond reasonable doubt.

[33]

With respect to the similar fact evidence, the
    trial judge drew a powerful conclusion from the appellants prior convictions:
    there is virtually no chance that coincidence explains [the appellant] having
    a criminal record for touching prepubescent females on the vagina while they
    are in his care and sleeping, and this complainant making the same allegation.
    He reached this conclusion, notwithstanding the appellants voluntary
    enrollment in a sex offender treatment program, for two reasons.

[34]

First, he started from the common sense
    assessment that such a treatment program would not be completely effective.
    That is, it could not be asserted that because the appellant took a course for
    sexual offenders, that he would therefore no longer pose a risk of
    re-offending. And indeed the appellant did not assert that. He argued that he was
    a changed man as of 1998, as a result of his convictions for sexual offences.
    On his evidence, it was his new awareness and resolve in 1998, as a result of
    his convictions, that meant he would not re-offend. He testified that the OCI
    course was beneficial, but he did not credit the course with bringing out the
    dramatic change that he said occurred. The trial judge of course rejected the
    appellants evidence that the 1998 convictions wrought the changes he said they
    did.

[35]

Second, the trial judge concluded that because
    the appellant testified that he benefitted from sex offender treatment, then he
    must, at the time he chose to undertake the treatment, still have had a
    propensity towards touching the vaginas of young girls for his sexual
    gratification. If he had no such propensity, the trial judge reasoned, he would
    not have chosen to undertake the sexual offender course.

[36]

From the evidence of the prior convictions and
    that the appellant implicitly acknowledged a propensity towards touching young
    girls for sexual gratification, the trial judge reasoned to a further
    conclusion: that the situation-specific propensity that manifested itself in
    the sexual assaults of 1985-87 and 1990-97  a considerable stretch of time
    was still operative when the appellant took the course at OCI, which the trial
    judge incorrectly dated to 2008.

[37]

Nothing turns, in my view, on the fact that the
    trial judge misstated the year in which the appellant conceded that he still
    had a propensity towards sexual touching of young girls. It was one data point
    in an extended analysis. Whether it was 2000 or 2008 (as the trial judge
    misstated), the salient point was that it was a long-held propensity (whether
    it was 15 years or 23 years), and the fact of having completed a treatment
    program at OCI (whenever it was completed) did not blunt its significance.

[38]

On appeal, the appellant argues that if the
    trial judge had used the correct date of 2000, the appellant would have
    benefitted from the additional datum that the appellant had not had any negative
    incidents for a 15-year period post incarceration, rather than 7 years. This
    would have bolstered the appellants credibility in arguing that he did not
    commit the offence.

[39]

I do not find this argument persuasive. It was
    not advanced at trial. The appellant did not argue at trial that the length of
    time that had passed since he took the OCI course on sexual assault  and more
    specifically his positive behaviour during that time  blunted the similar fact
    evidence. The fact of having taken the OCI sexual assault course was accepted
    as being capable, as a matter of logic, of diminishing the significance of the
    similar fact evidence. The fact that it did not diminish its significance, in
    the trial judges final analysis, was not due to how little time had passed
    since the course was completed or how long the appellant had been of apparently
    good behaviour. It was because the trial judge doubted the efficacy of the
    course  a course that the appellant himself did not significantly credit for
    making him a changed man and unlikely to re-offend.

[40]

In any event, the appellants conviction did not
    hinge on the similar fact evidence.

[41]

First, the trial judge had ample reason to
    disbelieve the appellant, quite apart from the similar fact evidence. He
    testified that he did not understand the wrongfulness of touching a childs
    vagina because of his own experiences as a victim of sexual assault, but then
    admitted in cross-examination that he knew it was wrong to sexually assault a
    child. He testified that a car accident rendered him unable to sustain an
    erection and experience sexual gratification as before, but conceded in
    cross-examination that, as he had fathered a child since the accident, he could
    indeed sustain an erection. He testified that he told the complainants mother
    about his convictions before they had a child together, which the trial judge
    found to be implausible in the circumstances and contradicted by the mothers
    own testimony that his disclosure was far more general than he claimed.

[42]

Second, the trial judge subjected the
    complainants testimony to scrutiny before accepting her core allegations. He
    found her to be credible in the sense of wanting to tell the truth. He
    determined that her mother did not influence her reporting of the sexual
    assault, whether deliberately or inadvertently. Although her mother asked the
    complainant leading questions about whether her father had touched her vagina,
    she also offered the complainant innocent explanations for her fathers
    behaviour, such as that he was cleaning her. The complainant rejected these
    explanations. The trial judge found the complainants allegations to be
    specific enough to not be figments of her imagination. While the trial judge
    noted several aspects of the complainants evidence that were factually incorrect,
    such as her age at the time of the incidents and her behaviour following the
    incidents, he properly recognized the peripheral nature of these
    inconsistencies, given the complainants age. I reject the appellants
    arguments with respect to the complainants testimony.

[43]

For all of these reasons, I cannot agree that
    the trial judges error meets the test set out in
R. v. Lohrer
, 2004
    SCC 80, [2004] 3 S.C.R. 732. The appellant has not demonstrated that the error
    figured prominently in the reasoning process which led to crucial findings of
    credibility and reliability:
Morrissey
(1995), 22 O.R. (3d) 514, at
    p. 541. Nor has he shown that it played an essential part not just in the
    narrative of the judgment but in the reasoning process resulting in a conviction:
Lohrer
, at para. 2, citing
Morrissey
(1995), at p. 541.

[44]

As the central thrust of the appeal focuses on
    the trial judges misapprehension of the evidence, I would dismiss the appeal.

Released: GS     MAR 24 2020

B.W. Miller J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. White, 2020 ONCA 207

DATE: 20200316

DOCKET: C60260

Feldman,
    Pardu and Roberts JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Tyler
    White

Appellant

Geoff Haskell, for the appellant

Christopher Webb, for the respondent

Heard: February 26, 2020

On appeal from the sentence imposed
    by Regional Senior Justice Michelle Fuerst of the Superior Court of Justice, on
    September 24, 2014, with reasons reported at 2014 ONSC 5543.

Roberts J.A.:

A.

Overview

[1]

On September 24, 2014, the sentencing judge
    declared the appellant a dangerous offender and imposed an indeterminate
    sentence.

[2]

The appellant appeals the dangerous
    offender designation, arguing the sentencing judge made reversible errors in
    her interpretation and application of the dangerous offender criteria under ss.
    752 and 753(1)(a)(i) of the
Criminal Code
, R.S.C. 1985, c. C-46. If the designation is upheld,
    the appellant submits that based on his rehabilitative strides since his incarceration
    in 2014, he should receive a determinate sentence of four years followed by a ten-year
    long-term supervision order (LTSO).

[3]

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

B.

BACKGROUND

[4]

On May 22, 2012, the appellant pleaded
    guilty to the offences of sexual interference, child luring and making child
    pornography involving a 15-year-old girl.

[5]

The circumstances of these offences are
    not disputed. In the Fall of 2010, the appellants girlfriend at that time put
    the complainant in touch with the appellant. The complainant and the appellant communicated
    over the internet and by text. The appellant was 24 years old at that point and
    learned the complainant was 15 years old and a virgin. He told the complainant
    he really wanted to meet her. They eventually met at a coffee shop. They went
    back to the appellants apartment where he took off their shirts and kissed.
    The appellant asked if she wanted to take off her pants and she declined. He
    also told her that he wanted to have sex with her. She declined, became fearful,
    and left the apartment.

[6]

They continued to text every day, with the
    appellant initiating the majority of the time. Periodically, the appellant would
    ask if the complainant wanted to get a hotel room to have sex. On two occasions
    the appellant met up with the complainant and they kissed. Eventually, the
    appellant provided her with a cell phone. He asked her to send him naked
    pictures of herself on it, which she did. He replied with pictures of himself,
    including one of his penis. The complainants mother eventually found the cell phone,
    brought her to the police and convinced her to cooperate with the
    investigation.

[7]

Prior to these offences, the appellant had
    amassed a lengthy criminal record, spanning over a decade. It includes a prior conviction
    for sexual assault against a 14-year-old girl whom he had met online and numerous
    prior convictions for violent offences against his previous domestic partners.

[8]

The respondent brought an application to have
    the appellant declared a dangerous offender and asked the court to impose an
    indeterminate sentence. The appellant disputed that he was a dangerous offender
    or a long-term offender. However, if the court found otherwise, he submitted
    that the appropriate sentence was a further four-year custodial sentence,
    followed by a ten-year LTSO.

[9]

The parties psychiatric experts were
    largely in agreement that the appellant was at a high risk to reoffend both violently
    and sexually and that he met the criteria for a dangerous offender from a psychiatric
    point of view. Their jointly held opinion included the following factors:

·

the
    appellants high scores on the various and standard actuarial diagnostic tests
    that measure risk for violent and sexually violent recidivism;

·

his
    diagnosed antisocial personality disorder with prominent psychopathic traits;

·

his
    substance abuse of drugs and alcohol over the years that contributed to his
    violent actions; and

·

his
    significant history of violent criminal behaviour.

[10]

The experts parted company only on the
    issue of sentence. The respondents expert opined that the appellants ability to
    change his pattern of behaviour, given his diagnoses, was poor, and that even
    if he followed the recommended intensive treatment, there was little prospect
    his risk could be managed successfully in the community within ten years of close
    supervision under a LTSO. He recommended an indeterminate sentence. The
    appellants expert agreed with the treatment and supervision recommendations made
    by the respondents expert but believed the appellants risk could be managed
    with substantial treatment and a plan of control. He opined that the appellants
    antisocial traits and aggressive behaviour would attenuate over time. He
    recommended the imposition of a determinate sentence of two to four years, followed
    by a LTSO for ten years.

[11]

In her victim impact statement, the complainant said that the offences
    have had a big impact on her life. She described experiencing anxiety and depression,
    struggling with drugs and having difficulty with intimacy and showing
    affection. She has contemplated suicide.

[12]

The complainant testified at the sentencing hearing. She testified that
    she would not have gone to the police but for the fact that her mother had
    found the cell phone the appellant had given her. She also testified to having
    experienced other difficulties in her life, such that she could not be sure to
    what extent she can attribute her problems to the appellant. However, she did
    attribute issues with anxiety, depression and relationships to him.

[13]

The sentencing judge accepted that the appellant
    was a dangerous offender and preferred the opinion of the respondents expert
    that the appellants high risk to reoffend could not be reasonably managed in
    the community. She imposed an indeterminate sentence.

C.

Issues

[14]

The appellant challenges the dangerous offender
    designation and indeterminate sentence on the following grounds:

1.

The sentencing judge erred in finding that the predicate offence was a serious
    personal injury offence as defined in s. 752 of the
Criminal Code
.

2.

The sentencing judge erred in considering, for the purposes of s. 753(1)(a)(i)
    of the
Criminal Code
, the appellants previous history of domestic
    violence against his adult partners as part of the pattern of the appellants repetitive
    behaviour.

3.

If the dangerous offender designation is upheld, although it was open to
    the sentencing judge to impose an indeterminate sentence in 2014, the fresh evidence
    admitted on consent demonstrates that it is unreasonable.

[15]

The appellant submits a determinate sentence of four years followed by a
    ten-year LTSO should be imposed.

D.

Analysis

[16]

In determining whether the appellant is a dangerous offender, the
    sentencing judge was required to consider the criteria under ss. 752 and 753(1)
    of the
Code
. For this appeal, the relevant provisions are as follows:

752 In this Part,

serious personal injury offence means

(a) an indictable offence, other than high treason, treason,
    first degree murder or second degree murder, involving:

(i)  the use or attempted use of violence against another person,
    or

(ii) conduct endangering or likely to endanger the life or
    safety of another person or inflicting or likely to inflict severe
    psychological damage on another person,

and for which the offender may be sentenced to imprisonment for
    ten years or more, or

(b) an offence or attempt to commit an offence mentioned in
    section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a
    third party or causing bodily harm) or 273 (aggravated sexual assault).

753 (1)    On application made under this part after an assessment
    report is filed under subsection 752.1(2), the court shall find the offender to
    be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted
    is a serious personal injury offence described in paragraph (a) of the definition
    of that expression in section 752 and the offender constitutes a threat to the
    life, safety or physical or mental well-being of other persons on the basis of
    evidence establishing

(i)  a pattern of repetitive behaviour by the offender, of which
    the offence for which he or she has been convicted forms a part, showing a
    failure to restrain his or her behaviour and a likelihood of causing death or
    injury to other persons, or inflicting severe psychological damage on other persons,
    through failure in the future to restrain his or her behaviour .

[17]

The appellant focussed his submissions on the conviction for sexual
    interference under s. 151 of the
Criminal Code
. He does not challenge
    that the predicate sexual interference offence carries a potential sentence of
    ten years or more because the Crown proceeded by way of indictment. Rather, he
    challenges the sentencing judges finding that the predicate offence was a serious
    personal injury offence and her finding of a repetitive pattern of behaviour
    for the purposes of s. 753(1)(a)(i).

(1)

The Sentencing Judge Did Not Err in Finding the Predicate Offence Was a
    Serious Personal Injury Offence

[18]

The appellant argues that the sentencing judge erred in finding that the
    predicate offence was a serious personal injury offence.

[19]

He argues first that the sentencing judge effectively characterized the
    offence of sexual interference as a deemed serious personal injury offence under
    s. 752(b) notwithstanding its exclusion from that subsection, and disputes that
    the specific circumstances of the offence in this case constituted violence
    for the purposes of the definition of a serious personal injury offence.

[20]

He argues further that the sentencing judge erred in concluding that the
    predicate offence resulted in severe psychological damage for the purposes of
    that definition.

[21]

I am not persuaded by either of these submissions for the following reasons.

(a)

The Sentencing Judge Did Not Err in Finding the Predicate Offence Involved
    the Use of Violence

[22]

The Supreme Court of Canada considered the meaning of the term use or
    attempted use of violence for the purposes of the definition of serious personal
    injury offence in
R. v. Steele
, 2014 SCC 61, [2014] 3 S.C.R. 138. Violence
    in this context encompasses acts in which a person intentionally causes, attempts
    to cause or threatens to cause harm, rather than simply acts involving the
    application of physical force:
Steele
, at para. 58.

[23]

The sentencing judges finding that violence was used in the predicate
    offence is a factual determination:
R. v. Lebar
, 2010 ONCA 220, 101
    O.R. (3d) 263, at para. 50. Absent error there is no basis for appellate intervention.

[24]

In considering whether the predicate offence of sexual interference involved
    the use or attempted use of violence, the sentencing judge recognized that sexual
    abuse of children is inherently violent in its effects, even in the absence of
    tangible physical violence, and that it is likely to cause significant psychological
    harm. Her conclusion is well supported.

[25]

In
R. v. Stuckless
, this court concluded that sexual abuse of children
    is an act of violence, representing the use of compulsion against a
    population that is inherently vulnerable: (1998) 41 O.R. (3d) 103 (C.A.), at p.
    117. Similarly, in
Bossé v. R.
, Deschênes J.A. found that having a
    child engage in sexual acts through persistent requests, as opposed to physical
    acts or threats, remained a violent act: 2005 NBCA 72, 288 N.B.R. (2d) 82, at
    para. 10.

[26]

This court has recognized that devastating consequences often follow
    from the sexual abuse of children, including both immediate psychological harm,
    and ongoing issues that may persist into adulthood:
R. v. Woodward
, 2011
    ONCA 610, 107 O.R. (3d) 81, at para. 72, citing
R. v. D.(D.)
(2002), 58
    O.R. (3d) 788 (C.A.). Notably, the harm caused to a child complainant may not
    always be fully apparent at the time of sentencing but may manifest later when
    the child reaches adulthood:
R. v. G.R.B.
, 2013 ABCA 93, 544 A.R. 127,
    at para. 14.

[27]

Unsurprisingly then, offences of sexual interference have been found to
    constitute serious personal injury offences even in the absence of immediate physical
    harm. See for example:
R. v. T.L.P.
, 2017 BCSC 1868, at para. 225;
R. v.
    Groves
, 2015 ONSC 2590, at para. 91, affd 2020 ONCA 86.

[28]

Further, it is clear from her reasons that the sentencing judge did not simply
    conclude that because the predicate offence was sexual interference it was
    inherently violent. Rather, she went on to consider the particulars of the offence
    in issue before she concluded that she was satisfied beyond a reasonable doubt
    that the specific predicate offence involved the use of violence against the
    victim:

There is no dispute that the touching of [the complainant] by Mr.
    White was not accompanied by threats of harm or the use of overt force. Mr.
    White, however, was 24 years old at the time, while [the complainant], as he
    well knew, was only 15. She could not in law consent to the sexual touching.
    Mr. White knew that, as a result of his prior conviction in Edmonton. The
    circumstances of the offence against [the complainant] show the exploitative
    and abusive nature of Mr. Whites conduct, including the manner in which he and
    she met over the internet; the fact that he knew she was only 15 and a virgin
    but initiated sexual contact with her the very first time they met and suggested
    that they have sexual intercourse; that on subsequent occasions he again suggested
    that they have sexual intercourse even though she had previously declined; that
    he provided her with a cell phone; and that he convinced her to send him naked pictures
    of herself and he sent her a picture of his penis, over that cell phone.

[29]

While the sentencing judge did not have the benefit of
Steele
, her
    approach is consistent with the Supreme Courts endorsement of a harm-based, rather
    than force-based, interpretation of the term violence, which is not defined
    in the
Criminal Code
.

[30]

In my view, the predicate offence, viewed in the context of the appellants
    exploitative and abusive pursuit of a 15-year-old girl, as found by the sentencing
    judge, involved intentionally causing harm and therefore constitutes violence
    for the purpose of the definition of serious personal injury offence under s.
    752 of the
Criminal Code
. This is also consistent with Parliaments
    recognition by its enactment of s. 151 of the
Criminal Code
that sexual
    interference is inherently harmful to both children and society and that children
    are in need of protection:
R. v. Hajar
, 2016 ABCA 222, 338 C.C.C. (3d)
    477, at para. 1. In
R. v. A.B.
, 2015 ONCA 803, 333 C.C.C. (3d) 382, at
    para. 45, Feldman J.A. described the gravamen of the offence of sexual interference
    as follows:

[T]he protection for children is not simply from sexual
    exploitation but from any sexual contact or the invitation to sexual contact
    with adults. Parliament viewed the protection to be necessary because of the
    inherent power imbalance that undermines consent, and because of the physical
    and psychological consequences of a sexual encounter between a child and an adult
    stemming from that imbalance.

[31]

I see no error in the sentencing judges analysis. I agree that the
    predicate offence involved the use of violence.

(b)

The Sentencing Judge Did Not Err in Finding the Predicate Offence Inflicted
    Severe Psychological Damage

[32]

Given that the predicate offence involved the use of violence, it is a
    serious personal injury offence. As a result, while not strictly necessary, for
    completeness I consider whether the trial judge erred in determining that the
    offence inflicted severe psychological damage.

[33]

I do not accept the appellants submission that there was no evidence that
    the appellants actions caused harm to the complainant as understood under clause
    (a)(ii) of the definition of serious personal injury offence in s. 752. The appellant
    relies on the cross-examination of the complainant that he says undermined her
    victim impact statement.

[34]

The sentencing judge was alert to the inconsistencies between the victim
    impact statement and the complainants evidence at the sentencing hearing. However,
    as she was permitted to do, the sentencing judge accepted that while the
    complainant could not attribute all her issues to the appellant, she found that
    his conduct caused [the complainant] anxiety, depression, relationship problems
    and some fear, all of which constitutes severe psychological damage. These
    findings are firmly rooted in the evidence that was before the sentencing judge.
    Moreover, I agree with the sentencing judges further conclusion that the appellants
    conduct was likely to inflict severe psychological damage upon the victim,
    which, as already noted, is well-founded in the jurisprudence.

(2)

The Sentencing Judge Did Not Err in Finding the Predicate Offence Formed
    Part of a Repetitive Pattern of Behaviour

[35]

With respect to the pattern of behaviour, the appellant concedes that
    the predicate offence and his prior conviction for sexual assault of a 14-year-old
    constitutes a pattern of behaviour. However, he argues that the sentencing judge,
    in finding a pattern of repetitive behaviour for the purposes of s. 753(1)(a)(i),
    erred by referring to his previous history of violence against his former,
    adult domestic partners when the particulars of that history are completely
    different from the two sets of offences against girls.

[36]

I disagree. It was open to the sentencing judge to rely on the appellants
    past history as reflecting a failure on Mr. Whites part to recognize and
    observe boundaries in his relationships with females and that this pattern of behaviour
    is a manifestation of his antisocial personality disorder. She correctly
    concluded:

Mr. Whites pattern of repetitive behaviour, including the
    predicate offence, shows a failure to restrain his behaviour with females. It also
    shows a likelihood of causing injury to other persons, or inflicting severe
    psychological damage on other persons, through failure to restrain his
    behaviour in the future.

[37]

The sentencing judges conclusions are consistent with this courts
    approach in
R. v. Hogg
, 2011 ONCA 840, 287 O.A.C. 82, to the meaning
    of a pattern of repetitive behaviour. As this court concluded, at para. 40, this
    pattern must contain enough of the same elements of unrestrained dangerous conduct
    to be able to predict that the offender will likely offend in the same way in
    the future. I agree with the respondents submissions that the appellants history
    supports a general pattern of criminal misconduct against females with whom he
    has intimate relationships, and that this history speaks directly to his lack of
    amenability to treatment and management in the community.

[38]

Accordingly, I find no error in the sentencing judges designation of the
    appellant as a dangerous offender. The predicate offence was a serious personal
    injury offence, both because it involved the use of violence and because it inflicted
    severe psychological harm. The appellant constitutes a threat to the safety or
    well-being of others based on a pattern of repetitive behaviour that includes
    the predicate offence.

(3)

An Indeterminate Sentence Is Reasonable Despite the Fresh Evidence

[39]

The appellant concedes that given the record before her in 2014, the sentencing
    judge made no error in imposing an indeterminate sentence at that time.
    However, he argues that in light of the fresh evidence concerning his significant
    rehabilitative progress, he no longer represents an unmanageable risk to reoffend,
    warranting the substitution of a determinate sentence and a LTSO.

[40]

The fresh evidence consists primarily of the appellants affidavit. It
    speaks to his treatment and rehabilitation since commencing his sentence. In
    particular, the appellant has completed all available programming for violent and
    sex offenders, and his high school equivalency courses. He is currently housed
    in a responsibility based unit which requires him to be actively involved in his
    correctional plan; employed full-time; free of any misconducts; and free of drugs
    and alcohol. He is employed as a plumbers assistant, which allows him entry into
    restricted areas and use of otherwise unauthorized tools.

[41]

On appeals of dangerous offender designations, this court may admit
    fresh evidence when it is in the interests of justice to do so:
R. v. Sipos
,
    2014 SCC 47, [2014] 2 S.C.R. 423, at para. 28;
Criminal Code
, ss.
    759(7), 683(1). Here the fresh evidence was admitted on consent of the parties.

[42]

I am of the view that notwithstanding the fresh evidence, the sentencing
    judges decision to impose an indeterminate sentence was not unreasonable. An
    appellate court reviews the imposition of an indeterminate sentence for legal
    error and reasonableness:
R. v. Sawyer
, 2015 ONCA 602, 127 O.R. (3d) 686,
    at para. 29. While the appellants evidence shows progress within his highly
    structured custodial environment, in light of the entire record before the sentencing
    judge it falls considerably short of demonstrating that an indeterminate
    sentence is unreasonable. Specifically, the appellants evidence fails to
    address the forensic psychiatric evidence of both experts given on the
    dangerous offender application, including the actuarial risk assessment testing,
    that speaks to his unmanageable high risk of reoffending upon his release into
    the community.

E.

Disposition

[43]

I would dismiss the appeal.

Released: March 16, 2020 (K.F.)

L.B. Roberts J.A.

I agree. K. Feldman
    J.A.

I agree. G. Pardu J.A.


WARNING

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

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

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

(a)      any of the following offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yong, 2020 ONCA 215

DATE: 20200316

DOCKET: C67719

Watt, Fairburn and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darryl Anthony Yong

Appellant

Darryl Anthony Yong, acting in person

Michael Fawcett, for the respondent

Naomi Lutes, duty counsel

Heard and released orally: March 10, 2020

On appeal from the conviction entered on November 14,
    2018 and the sentence imposed on November 14, 2019 by Justice Beth A. Allen of
    the Superior Court of Justice.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior Court of Justice sitting
    without a jury, the appellant was found guilty of counts of administering a
    noxious substance; invitation to sexual touching; and trafficking cocaine. The
    finding of guilt of trafficking was stayed.

[2]

The trial judge imposed a sentence of imprisonment for 21 months, which
    she reduced to 6 months after deducting credit for time spent in pre-sentence
    custody.

The Background Facts

[3]

One day after school, the complainant, a relative who was then 11 years
    old, went to the appellants home. As they watched a movie, the appellant took
    out a glass tube with some white powder in it and lit it up. He told the
    complainant, that it was a vape. At his insistence, she inhaled the smoke. Twice.
    She felt dizzy. Her legs were shaky. Her throat burned. Her vision blurred. The
    white powder was cocaine, a substance later found in her system.

[4]

The appellant then asked the complainant to touch an area of his body
    around his thigh. He told her to keep moving her hand higher until she touched
    his penis. The touching was over the appellants clothes and lasted, by the
    complainants account, about three seconds. The appellant did not touch the
    complainant.

[5]

The appellant did not testify. He relied on a series of texts he sent
    and voicemail and telephone messages he left with the complainants mother.
    Among other submissions, trial counsel contended that the complainant,
    mimicking the behaviour of the appellant, lit up the cocaine-filled tube when
    the appellant was briefly absent from the apartment. Trial counsel also argued
    that the sexual conduct never occurred. Rather, the allegation was fabricated
    due to the influence, principally, of the complainants mother.

The Appeal from Conviction

[6]

In this court, the appellant advances three grounds of appeal against
    conviction:

i.

that the trial judge materially misapprehended the evidence adduced at
    trial in three respects, each of which had to do with the complainants core
    allegations and the credibility of her testimony about them;

ii.

that the trial judge erred in her treatment of evidence of the
    appellants post-offence conduct; and

iii.

that the trial judge erred in her description and application of the
mens
    rea
for the offence of administering a noxious substance.

[7]

The misapprehensions of evidence alleged are threefold. They may be
    summarized as the complainants evidence about:

i.

whether she could leave the apartment;

ii.

whether she entered the appellants bedroom; and

iii.

the timing of her disclosure about the touching by the appellant.

[8]

In our view, the trial judge considered these alleged inconsistencies in
    the complainants testimony, and explained why she did not consider them to
    impact adversely on the complainants credibility, or the reliability of the
    core elements of her account. We defer to those findings.

[9]

Second, we see no error in the manner in which the trial judge dealt
    with the evidence of the appellants post-offence conduct.

[10]

Third, when the reasons of the trial judge are taken as a whole, her conclusion
    on the
mens rea
required to establish guilt of the offence of
    administering a noxious substance, do not reflect error. In particular, we are not
    persuaded, as the appellant contends, that she found guilt established on the
    basis of recklessness.

The Appeal from Sentence

[11]

On the appeal from sentence, the parties are
ad idem
that the
    s. 161 order, as executed, does not accurately reflect the reasons of the trial
    judge. We agree and would allow the appeal to the following extent of amending
    in the formal order:

i.

paragraph (a), by adding the words unless in the presence of one of the
    offenders daughters;

ii.

paragraph (b), by adding the words unless the position of trust relates
    solely to one of the offenders daughters;

iii.

paragraph (c), by deleting the condition in its entirety; and

iv.

by inserting 10 years as the term of the order.

Disposition

[12]

The appeal from conviction is dismissed. Leave to appeal sentence is
    granted and the appeal from sentence allowed to the extent of the variation of
    the terms of the s. 161 order. The appeal from sentence is otherwise dismissed.

David Watt J.A.

Fairburn J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: RINC Consulting Inc. (Roustan Capital)
    v. Grant Thornton LLP, 2020 ONCA 182

DATE: 20200309

DOCKET: C66698

Brown, Huscroft and Nordheimer JJ.A.

BETWEEN

RINC Consulting Inc., c.o.b. as Roustan
    Capital and

Walter Graeme Roustan, in his personal
    capacity as trustee of the

Walter Graeme Roustan Trust

Plaintiffs (Appellants/

Respondents by way of
    cross-appeal)

and

Grant Thornton LLP

Defendant (Respondent/

Appellant by way of cross-appeal)

M. Philip Tunley and Jennifer P. Saville, for the
    appellants/respondents by way of cross-appeal

Peter Downard and Rachel Laurion, for the respondent/appellant
    by way of cross-appeal

Heard: January 8, 2020

On appeal from the judgment of Justice James Diamond of
    the Superior Court of Justice, dated January 14, 2019, with reasons reported at
    2019 ONSC 7725, 2019 ONSC 808, and 2019 ONSC 1844.

Huscroft J.A.:

overview

[1]

The appellants lost several million dollars when they sold their shares
    in Performance Sports Group (PSG) at a loss. They sued the respondent
    accounting firm, Grant Thornton LLP (GT), alleging that the loss was caused by
    GTs refusal to complete a survey of PSGs business practices the appellant Roustan
    had engaged the firm to conduct. Roustan argued that, had he known the results
    of the survey, he would have arranged to sell his shares well before PSG
    sustained the losses that caused its share price to tumble.

[2]

The trial judge concluded that although GT breached the contract to
    complete the survey, the appellants did not suffer any damages as a result of
    the breach. Thus, he dismissed the action and awarded GT $175,000 in costs, on
    the basis that it was the more successful of the two parties.

[3]

The appellants argue that the trial judge erred in finding that GTs
    breach did not cause their loss and in failing to award damages for lost
    opportunity, share loss, special damages, and nominal damages. The respondent
    GT seeks leave to cross-appeal, arguing that the trial judge erred in awarding
    it only a portion of its costs on the basis that there was mixed success.

[4]

I would dismiss both the appeal and the cross-appeal for the reasons
    that follow.

background

[5]

The appellant Roustan was the Chairman of the Board of PSG from
    2008-2012. PSG is a sports equipment company that manufactured and sold Bauer
    hockey equipment. In 2014, Roustan owned approximately 1.4 percent of PSGs
    common stock through the vehicle of a trust.

[6]

In January 2015, Roustan wrote to PSGs then-current Chairman,
    requesting that he be re-appointed to the PSG Board of Directors. While his
    request was pending, PSG announced that it planned to become a retailer of
    hockey equipment, while continuing to supply products for sale by retail partners.
    Roustan strongly opposed this plan, and in May 2015 he retained GT to conduct a
    survey of ten of PSGs major retail partners to obtain their views on PSG and
    its practices. Roustan intended to distribute GTs report to PSGs officers,
    directors, and shareholders at an upcoming meeting.

[7]

Roustan devised a 30-question survey for GT to administer, which among
    other things asked: whether the retailer had ever been asked by PSG to move any
    orders forward to an earlier quarter; whether the retailer trusted PSG to be
    both a product supplier and retail competitor at the same time; and whether the
    retailer trusted the CEO of PSG. The survey was to be answered in confidence
    and Roustan was not to be informed which retailers had given specific answers
    to the questions.

The engagement letter

[8]

The appellant Roustan signed the engagement letter with GT on May 12,
    2015. The letter included the following three provisions:

[9]

The reputation clause:

In addition, Grant Thornton reserves the right, in whole or in
    part, to decline the performance of any Service(s) if, in the sole discretion
    of Grant Thornton, the performance of any of the Service(s) may cause Grant
    Thornton to be in violation of any applicable law, regulations, professional
    standards or obligations or which may otherwise result in damage to Grant
    Thornton's reputation.

[10]

The termination clause:

Either The Company or Grant
    Thornton may terminate the Engagement upon fourteen (14) days prior written
    notice to the other party. In addition to the foregoing, Grant Thornton may
    also terminate the Engagement in the event of a breach of any term of the
    Engagement by The Company which is not cured by The Company within ten (10)
    days of receipt of written notice as to the breach.

[11]

The limitation clause:

In any action, claim, loss or
    damage arising out of the Engagement, you agree that our liability will be
    several and not joint and several and you may only claim payment from us of a
    proportionate share of the total liability based on degree of fault as finally
    determined.

The total liability assumed by us for any action, claim, loss
    or damage arising out of or in connection with the Engagement, regardless of
    the form of action, claim, loss or damage, be it tort, contract or otherwise,
    shall in no event exceed the aggregate of the professional fees paid to us
    under the terms of the Engagement. In addition, we shall not under any
    circumstances, be liable for any special, direct or consequential damages
    including, without limitation, loss of profit or revenue, failure to realize
    expected costs reductions or savings or similar losses of any kind.

The conduct of the survey

[12]

By May 15, 2015, seven of ten retailers contacted by GT had replied to
    the survey. On May 18, 2015, PSG wrote to GT informing it that the survey
    risked significant harm to PSGs relationships with its retailers and
    demanding that GT cease and desist with the survey. PSG also asked that it be
    provided with the identity of the shareholder for whom the survey was being
    conducted, a list of the retailers that had been contacted, the survey
    questions, and any reports or draft reports that had been prepared.

[13]

GT continued to perform the survey despite PSGs letter, following up
    with an eighth retailer and beginning to prepare a draft report. On May 21,
    2015, the Chairman of PSG sent an email to GTs CEO. He stated that GT was
    engaged in an effort to disrupt PSGs business plans and retail relationships
    on behalf of Roustan and expressed the view that the survey was motivated by
    PSGs refusal to appoint Roustan to the Board, his opposition to PSGs business
    plans, and his personal animosity. The Chairman of PSG wrote:

The survey questions appear designed to advance Mr. Roustan's
    personal agenda and seem to be written in a manner to elicit negative responses
    from PSG's retailers, insinuating that PSG and its management are
    untrustworthy, sabotaging PSG's retail relationships, and fabricating support
    for Mr. Roustan's campaign against PSG's plans to open Bauer retail stores.

Questions that ask whether PSG has been honest and by what
    percentage retailers intend to reduce their purchase from Bauer, for example,
    are consistent with an attack on the company, not a professional market survey
    that one would expect to receive from a firm such as Grant Thornton. Moreover, the
    public release of answers to these biased, illegitimate questions would pose
    significant risk to PSG's business relationships, business plans, and
    shareholder value.

[14]

On May 25, 2015, a representative of GT asked Roustan whether he would
    change the title of the report from survey to questionnaire and asked him
    not to disclose the report beyond PSGs institutional shareholders. Roustan
    agreed to the first request but not the second.

GT withdraws its services

[15]

On May 28, 2015 GT wrote Roustan, informing him that it was withdrawing
    its services and refunding the $2,000 deposit he had paid. Citing the reputation
    clause, the letter stated that the decision to terminate the agreement was
    reached after concluding that continuing with this engagement will result in
    damage to Grant Thorntons reputation.

Post-termination events

[16]

Roustan asked GT to release the results of its survey to him prior to
    his upcoming meeting with PSG even if its report was not complete, but GT
    refused to do so. Roustan then attempted to conduct his own survey of PSGs
    retail partners using an online survey tool called SurveyMonkey. This survey
    used the same questions as the GT survey and five of PSGs ten major retailers
    responded to it. Three of those five retailers answered that they had been
    asked to move orders to an earlier quarter, something Roustan regarded as
    channel stuffing.

[17]

Roustan attended a meeting with the PSG Board on June 5, 2015 but failed
    to convince the Board to abandon its proposed sales plan. PSG proceeded to
    implement the new sales plan in the late summer of 2015. On June 12, 2015,
    Roustan prepared a draft letter to PSGs Board of Directors. The subject of
    that letter was Possible Sales Manipulation. Roustan outlined the informal
    survey of PSGs retailers that he had conducted and mentioned concerns that had
    arisen from the survey, including the concern that PSG had asked several
    retailers to move orders forward into an earlier quarter. He said that this was
    very alarming to me and I believe should be alarming to you. The letter went
    on to say that he believed extreme discounting was taking place to make
    quarterly numbers. The impression, he said, was that PSG was improperly
    manipulating prices  in essence, running a Ponzi scheme of sorts  and further
    investigation was required.

Roustans stockholding

[18]

Roustan did not sell any of his shares in PSG following his meeting with
    the Board. On the contrary, between the meeting on June 5, 2015 and November
    30, 2015 he purchased additional PSG shares, taking advantage of a decline in PSGs
    share price.

[19]

The price of PSG shares continued to drop in 2015. On March 18, 2016,
    PSG shares lost 66 percent of their value in one day, in response to a downward
    revision of PSGs revenue and earnings guidance. Roustan liquidated his shares
    that month. PSG filed for protection under the
Companies Creditors
    Arrangement Act
, R.S.C., 1985, c. C-36
later that year.

The trial judges decision

[20]

The appellants sued GT for breach of fiduciary duty and breach of
    contract, alleging that Roustan lost between $9.5 and $12.4 million as a result
    of the drop in PSGs share price.

[21]

The trial judge dismissed the appellants claim against GT for breach of
    fiduciary duty. He found the parties relationship was contractual in nature
    and that GT had never undertaken to act in the appellants best interests or
    solely for his benefit. The trial judge declined to create a new type of
    fiduciary relationship. GT had no power over Roustan beyond the rights it had
    under its contract with him. It was simply carrying out a survey of questions
    he had written, and the vulnerability necessary to ground a fiduciary
    relationship did not exist.

[22]

However, the trial judge went on to conclude that GT had breached its
    contract in exercising its discretion to withdraw its services. He found that
    GT was not entitled to withdraw its services in accordance with its reputation
    clause, as it asserted in its May 28, 2015 letter. The trial judge rejected
    the submission that the survey was potentially defamatory of PSG and its CEO
    and that GTs reputation would be at risk by participating in publication of
    the survey results. He found that nothing that occurred following the commencement
    of the survey should have come as a surprise to GT in any event. Specifically,
    GT knew that: Roustan opposed PSGs proposed sales initiative and was seeking
    to obtain evidence to help him oppose it; Roustan intended to distribute the
    survey results at his meeting with the Board, so they would likely enter the
    public domain; PSG would have reacted unfavourably to this; and some of the
    survey questions, which GT had approved, potentially disparaged both PSG and
    its CEO.

[23]

Accordingly, the trial judge found that GT had not exercised its
    discretion to terminate the contract reasonably and in good faith. All of the
    reasons proffered by GT for relying on the reputation clause were known to GT before
    the contract was entered. As the trial judge put it: At the outset, GT knew,
    underwrote and assumed the very risks which it now seeks to resurrect as
    grounds for terminating the Engagement Letter. The implicit threat of
    litigation by PSG was not a new fact that allowed GT to exercise its discretion
    anew.

[24]

The trial judge found, further, that GT could not rely on the limitation
    clause in the contract limiting its exposure to damages to the aggregate of the
    fees paid to it under the contract, as the limitation clause did not apply to
    the particular factual circumstances of the dispute. However, he concluded that
    the appellants were not entitled to damages for PSGs breach of contract in any
    event.

[25]

The appellants theory of damages that was presented at trial was that
    if GT had disclosed the survey results to Roustan  and in particular, that
    five of the eight major retailers had confirmed that PSG was engaging in
    misrepresenting the strength of their business by channel stuffing  then
    Roustan would have begun to liquidate PSG shares at that time, resulting in a
    much smaller loss. However, the trial judge did not find that the relevant
    question in the survey led to the channel stuffing conclusion. There was no
    evidence that product orders had in fact been moved, that deep product
    discounts had been promised, or that there was a repeat practice of doing so.

[26]

The trial judge found that the claim failed even looking at the issue
    from Roustans subjective perspective. Roustan purchased additional shares of
    PSG after the June 5, 2015 meeting, even though he had information from his
    SurveyMonkey survey that was essentially the same as the GT survey would have
    revealed. The trial judge noted that, subjectively, Roustan viewed the
    SurveyMonkey information as credible.

The r. 59.06(1) motion

[27]

Following release of the decision, the appellants brought a motion under
    r. 59.06 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
    arguing that the trial judge had failed to adjudicate four issues raised in
    their action: nominal damages, special damages, damages for purchase of new
    shares, and damages for loss of chance.

[28]

The trial judge held that the appellants theory of damages was based on
    fictitious losses and that an award of nominal damages should be rejected as
    well, citing this courts decision in
Rosenhek v. Windsor Regional Hospital,
2010 ONCA 13, 257 O.A.C. 283, leave to appeal refused, [2010] S.C.C.A. No. 89, for
    the proposition that an award of nominal damages presumes that there are
    perhaps some unquantified damages which a party has failed to prove. The trial
    judge rejected the appellants claim for special damages because the appellants
    failed to establish a causal link between the services performed for the
    appellants and GTs breach of contract. He refused to entertain the appellants
    request for damages for the purchase of the additional shares, because he found
    that Roustan purchased the shares for his own strategic investment goals in a
    declining market. Finally, the trial judge refused to entertain the appellants
    request for damages for loss of an opportunity to secure resignations of PSG
    Board members and to convince PSG to abandon its new sales strategy, a theory
    not pursued at trial and for which there was insufficient evidence in any
    event.

Costs

[29]

The trial judge concluded that there was mixed success in the
    proceeding. He found that GT had breached the contract but also that no damages
    flowed from any of his findings. He rejected the other claims made by the
    appellants, both at trial and on their r. 59.06 motion. In summary, the trial
    judge concluded that GT was the more successful party and was entitled to a
    portion of its costs on a partial indemnity basis.

[30]

Taking all these considerations into account, and noting the numerous
    issues, the complexity of the case, and the size of the appellants claim, the
    trial judge awarded GT costs fixed at $175,000. He specifically rejected GTs
    claim for disbursements relating to expert opinion evidence that he had
    rejected as irrelevant and inadmissible.

Issues on appeal

[31]

The appellants advance two principal arguments on appeal. First, they
    say that the trial judge erred in determining causation of the loss in the
    value of the shares that they incurred. Second, the trial judge erred in
    failing to award damages for lost opportunity, share loss, special damages, and
    nominal damages.

The causation issue

[32]

The appellants assert that the trial judge made several palpable and
    overriding errors. Specifically, the trial judge:

·

failed to find that affirmative answers to the channel stuffing
    question could lead to a conclusion that it was occurring as a practice;

·

wrongly found that the SurveyMonkey information was substantially
    or essentially the same as the information that GT would have provided had it
    completed its report; and

·

wrongly found that Roustan subjectively believed that the
    SurveyMonkey results were credible information, despite finding that Roustan
    was a sophisticated investor and that he purchased additional shares on margin
    after receiving the SurveyMonkey results.

[33]

I see no such errors.

[34]

First, it was for the trial judge to interpret the meaning and
    significance of the channel stuffing question. He found that the relevant
    question did not ask whether the retailers were offered deep discounts; it did
    not ask whether the retailers had in fact moved any orders into an earlier
    quarter; and it did not establish a practice in any event, because a retailer
    could have answered yes to the question while only having been asked to move an
    order forward on a single occasion. These findings were open to the trial
    judge. Moreover, it was for the trial judge to determine what, if anything, was
    to be inferred from the retailers answers to the survey. He was not obliged to
    accept either Roustans view that PSG was engaged in channel stuffing or his
    evidence as to the effects of engaging in channel stuffing.

[35]

Second, the trial judge was entitled to conclude that despite GTs failure
    to complete the survey, Roustan obtained essentially the same information as a
    result of the SurveyMonkey survey. The trial judge noted that 60 percent of the
    retailers who responded to the SurveyMonkey survey answered the channel
    stuffing question affirmatively, whereas 62.5 percent of the respondents to
    the GT survey answered affirmatively. The conclusion that the information is
    essentially the same cannot be characterized as an error, much less a palpable
    and overriding error that would justify overturning the trial judges decision.

[36]

Third, the trial judge cannot be said to have erred in concluding that
    Roustan believed the SurveyMonkey information was credible. The trial judge
    rejected Roustans evidence that he could not rely on the SurveyMonkey answers
    because the retailers had been threatened by PSG, noting that no evidence had
    been presented to show that PSG threatened any major retailers. Moreover, the
    draft letter Roustan prepared, but did not send to the Board, amply supports
    the conclusion that he had a subjective belief that the SurveyMonkey
    information was credible. In that letter, Roustan describes the information
    that several retailers have been asked to move orders forward as very alarming
    to me, adding that he had received credible information which led me to
    believe that extreme discounting is taking place, which he speculated could be
    PSG dumping products. The letter went on to state that the information gave
    rise to the perception that PSG was improperly manipulating prices  conduct
    [that] emulates a Ponzi scheme of sorts.

[37]

The appellants parse this letter, emphasizing the tentative nature of
    some of its language. But the trial judges interpretation cannot be impugned
    on this account. The trial judges finding as to Roustans subjective belief is
    amply supported by the record.

[38]

The appellants argument also fails for another reason. The appellants
    argued that if GT had disclosed the survey results, they would have begun to
    liquidate their shares at that time. But as the trial judge concluded, this was
    wholly inconsistent with Roustans action in buying a further 163,962 PSG
    shares on margin following his unsuccessful meeting with PSG on June 5, 2015.
    The appellants argue that it would have been irrational for a sophisticated
    investor like Roustan to purchase additional shares if he believed the
    SurveyMonkey information. This argument seeks to make a virtue out of Roustans
    improvident decision to purchase additional shares of PSG. The purchase of
    additional shares does not undermine the trial judges findings, let alone
    demonstrate palpable and overriding error.

[39]

At the end of the day, the appellants simply invite this court to
    relitigate the case. The appellants go so far as to assert that all the
    findings made in support of the trial judges causation conclusion are tainted
    by palpable and overriding error. None of them are, and there is no basis for
    this court to interfere with them.

The r. 59.06 motion

[40]

The appellants argue that the trial judge erred in dismissing their motion
    under r. 59.06 by applying the wrong test. This was not a case in which they
    alleged that the judge erred in his reasons, nor did the appellants seek to
    vary matters that had been decided. The motion concerned four matters that had
    not been adjudicated upon. In these circumstances, the appellants say, the
    trial judge had a broad discretion to grant relief on their motion if it was in
    the interests of justice to do so.

[41]

The trial judge did not apply the wrong test. He recognized that r. 59.06
    was to be used for the purpose of correcting errors in a judgment, not in the
    reasons, as this court explained in
Meridian Credit Union Ltd. v. Baig
,
    2016 ONCA 942. In that case, the court explained that there is no
    jurisdictional impediment to a court reconsidering a decision if an order has
    not been taken out and entered, but a party seeking to re-open an appeal faces
    a high hurdle. As the court noted at para. 7, citing
Mujagic v. Kamps
,
    2015 ONCA 360, 125 O.R. (3d) 715, leave to appeal refused, [2015] S.C.C.A. No.
    330, a trial judge may re-open an appeal prior to the entering of an order
    sparingly and only where it is clearly in the interests of justice to do so.

[42]

In this case, given that a judgment had not been taken out and entered,
    it was open to the trial judge to entertain the appellants motion. He
    proceeded to consider and reject all the grounds raised by the appellants. I
    will address the alleged errors in the order raised by the appellants.

Loss of opportunity

[43]

The appellants argue that the trial judge erred in refusing to entertain
    their alternative claim for loss of opportunity to use the GT report to secure
    resignations from the PSG Board of Directors, thereby changing the direction of
    the Board and avoiding the share loss later incurred. The appellants submit
    that they were entitled to damages for the loss of a chance, which they assess
    at least 50 percent of the loss of share value  approximately $4.7 million.
    The appellants acknowledge an inadvertent failure to address this matter in their
    closing submissions.

[44]

The respondents point out that the appellants did not claim this relief
    in their 72-page written argument or oral submissions and characterize the
    motion as an attempt to reopen final argument.

[45]

I agree.

[46]

The trial judge cannot be faulted for not addressing a matter that the
    appellants admitted was not pursued at trial or in their written or closing
    oral submissions, despite it being raised in their pleadings. The trial judge
    found that because the matter was not before the court, it was not a matter
    that had been overlooked by the court, and as a result he was not prepared to
    entertain the request. But the trial judge provided cogent reasons for
    concluding that the claim would have failed in any event. He found that there
    was insufficient evidence in the record to support a claim of damages for a
    loss of opportunity. Specifically, he found that [n]othing was going to change
    the course of PSGs new sales strategy. That finding is fatal to the claim for
    damages for loss of opportunity and there is no basis to interfere with it.
    Moreover, as the respondent notes, Roustans evidence was that if he had the GT
    survey information, he would have sold his shares before his meeting with the Board.
    He could not get damages for the loss of an opportunity that he would not have
    pursued.

Damages for the loss of value on the 2015 share purchase

[47]

The appellants argue that GT should be liable at least for the damages
    resulting from Roustans purchase of additional shares on margin, because he
    would not have purchased these shares if GT had completed the survey.

[48]

There is no merit to this submission. The trial judges finding that
    Roustan purchased the shares despite his concerns that channel stuffing was
    occurring is entitled to deference and is dispositive of this claim for
    damages.

Special damages for professional fees

[49]

The appellants submit that they were entitled to approximately $300,000 for
    professional fees they incurred in bringing the action. They say that the trial
    judge misconstrued the case law and failed to give effect to Roustans
    uncontroverted evidence concerning the professional services he retained in
    pursuing the action.

[50]

The trial judge found that it was difficult, if not impossible, to find
    a causal link between the services performed for the appellants and GTs breach
    of contract. Moreover, the trial judge found that the appellants evidence was
    far from clear and cogent, and lacking in particulars. In short, he found
    that the appellants failed to meet their onus to establish that they were
    entitled to special damages. This was the trial judges call to make and there
    is no basis to interfere with it on appeal.

Nominal damages

[51]

Finally, the appellants argue that the trial judge erred in refusing to
    award nominal damages. The appellants say that, having established a valid
    contract and a breach, they were entitled to nominal damages, as such damages
    are always available:
Mars Canada Inc. v. Bemco Cash & Carry Inc.
,
    2018 ONCA 239, 140 O.R. (3d) 81, at para. 33; see also
Place Concorde East
    Ltd. Partnership v. Shelter Corp. of Canada Ltd.
(2006), 270 D.L.R. (4th) 181 (Ont. C.A.), at para.
    76.

[52]

It is well established that nominal damages may be awarded where a
    breach of contract has been established but damages flowing from that breach
    have not. Nominal damages are a trivial amount  typically one dollar  and
    serve a symbolic rather than a compensatory purpose: they mark a breach of
    contract in the same way that a declaration would. See, generally, S.M. Waddams,
The Law of Damages
, 5th ed. (Toronto: Thomson Reuters, 2012), at c. 10.10-10.30;
    James Edelman,
McGregor on Damages
, 20th ed. (London: Thomson Reuters
    (Professional) UK Limited, 2018), at c. 12-001-12-013.

[53]

The award of nominal damages might be important in some cases. For
    example, in the context of an ongoing contract in order to clarify future
    performance obligations, or to vindicate a partys rights. But there are no
    such special circumstances in this case. The appellants did not bring their
    action merely to seek a judicial statement or declaration that the respondent
    had breached the contract; they brought their action with the intention of
    claiming over $9 million in damages as compensation for losses they claim to
    have suffered as a result of the respondents breach of contract.

[54]

The trial judge declined to exercise his discretion to award nominal
    damages on the basis that the appellants failed to prove that the respondents
    breach of contract caused their losses. The trial judge appears to have thought
    that the courts discretion to award nominal damages depends on the existence
    of unquantified damages. It does not.

[55]

But the trial judges error is of no moment, for the award of nominal
    damages would have served no purpose in this case. The appellants appear to
    assume that an award of nominal damages would have turned their substantive
    lack of success into a basis for awarding them costs. It would not. Even if the
    trial judge had awarded the appellants nominal damages, it would still be
    within the discretion of the trial judge to make no award of costs to the
    appellants, or to make the award of costs to the respondent that he did on the
    basis of the extreme disparity between the amount claimed and the amount
    recovered in the proceeding: r. 57.01(1)(a).

The cross-appeal

[56]

The respondents cross-appeal seeks leave to appeal the trial judges
    costs order. The respondent says that the trial judge erred in finding that 1)
    the reputation clause in the engagement letter did not authorize its withdrawal
    from the engagement; 2) it was not entitled to rely on the limitation clause in
    the contract; and 3) its expert evidence was irrelevant and inadmissible. These
    errors, the respondent says, caused the trial judge to conclude that success
    was mixed, and to award it $175,000 instead of $485,736.42 on a partial
    indemnity basis.

[57]

The first two arguments do not concern the costs order. Instead, they
    concern the trial judges reasons for dismissing the action and, as such, they
    are not properly the subject of a costs appeal. The only basis on which leave
    to appeal the costs order could be granted is the respondents third argument,
    which concerns the trial judges decision not to award special damages for the
    expert evidence.

[58]

The test for leave to appeal costs is well established. Costs awards
    should be set aside on appeal only if the trial judge erred in principle or
    made an award that is plainly wrong:
Hamilton v. Open Window Bakery Ltd.
,
    2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. The trial judge found that the
    expert evidence was of little to no evidentiary value, as it was both irrelevant
    and arguably inadmissible. There is no error in principle here, nor is the
    award plainly wrong. The award of special damages was a matter within the trial
    judges discretion and his decision is entitled to deference. The trial judge
    gave clear reasons for fixing the costs in the amount that he did.

[59]

I would deny leave to appeal the costs order.

CONCLUSION

[60]

I would dismiss the appeal and cross-appeal.

[61]

In light of the divided success, each party should bear its own costs.

Released: March 9, 2020 (G.H.)

Grant Huscroft J.A.

I agree. David Brown J.A.

I agree. I.V.B. Nordheimer
    J.A.