COURT OF APPEAL FOR ONTARIO

CITATION: Ochnik (Trustee) v. Belusa, 2019
    ONCA 785

DATE: 20191002

DOCKET: C66611

Lauwers, Fairburn and Zarnett
    JJ.A.

BETWEEN

Richard
    Ochnik (Trustee) for the Ochnik Family Trust

Plaintiff (Appellant)

and

Claudia Belusa a.k.a. Claudia
    Irma Ochnik

Defendant
    (Respondent)

Matthew
    Tubie, for the appellant

Lindsay
    Woods, for the respondent

Heard: September
    26, 2019

On appeal from the order of Justice Janet Wilson of the Superior
    Court of Justice dated February 15, 2019 with reasons reported at 2019 ONSC
    1155.

REASONS FOR DECISION

[1]

As the parties agree the appeal must be allowed.

[2]

In the circumstances we award no costs. Mr.
    Ochnik is not entitled to costs because he did not prove forgone income, and
    because shortly after counsel was retained the appeal was conceded without any
    additional work.

P.
    Lauwers J.A.

Fairburn
    J.A.

B.
    Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Labour) v. Sudbury (City), 2019 ONCA 854

DATE: 20191028

DOCKET: M50582

Brown J.A. (Motion
    Judge)

BETWEEN

Her Majesty the Queen in
    Right of Ontario (Ministry of Labour)

Applicant

(Moving Party)

and

The Corporation of the
    City of Greater Sudbury

Respondent

(Responding Party)

David McCaskill, for the moving party

Ryan Conlin and Frank Portman, for the responding party

Heard: September 26, 2019

REASONS FOR DECISION

[1]

Although the threshold for granting leave to appeal pursuant to s. 131
    of the
Provincial Offences Act
, R.S.O. 1990, c. P.33
    (
POA
),
is very high, I am satisfied
    that this case is one where the resolution of a question of law alone may have
    an impact on the jurisprudence in a way that is of interest to the public at
    large:
Ontario (Labour) v. Enbridge Gas Distribution Inc.
, 2011 ONCA 13,
    382 D.L.R. (4th) 343, at para. 34.

[2]

The factual matrix in which the question of law arises involves a common
    type of construction project: a municipality enters into a contract for the
    repair and reconstruction of urban municipal roadways. In the present case, a
    piece of heavy equipment backed up without the presence of a signaller, and a
    human life was lost. The legal issue then arises about what, if any, liability
    the municipality may bear for that occurrence under the
Occupational Health
    and Safety Act
, R.S.O. 1990, c. O.1 (the
OHSA
).

[3]

The respondent, The Corporation of the City of Greater Sudbury
    (Sudbury), was charged with offences under the
OHSA
alleging the
    contravention of statutory duties as a constructor and employer in respect
    of the road repair project. Sudbury was acquitted on all counts. The Crowns
    appeal to the Superior Court of Justice was dismissed: 2019 ONSC 3285, 88
    M.P.L.R. (5th) 158.

[4]

The moving party, Her Majesty the Queen in Right of Ontario (Ministry
    of Labour) (the Crown), seeks leave to appeal the acquittals on the basis
    that both courts below erred in their interpretation or application of the
OHSA

s

definitions of constructor and employer, improperly importing an
    element regarding the degree of the municipalitys control over the project
    into the definition of employer and improperly applying the control element in
    the definition of constructor.

[5]

The Crown concedes, at para. 25 of its factum, that control is an
    essential element of the definition of constructor. Consequently, its
    complaint that the courts below erred in their assessment of the degree of
    control exercised by Sudbury over the project engages a question of mixed fact
    and law, which is not appealable under
POA
s. 131.

[6]

However, I am satisfied that a question of law alone is engaged
    by the Crowns contention that the courts below erred by importing into the
    definition of employer an element regarding the degree of control that Sudbury
    exercised over the project. The interpretation of employer in the
OHSA
adopted by the courts below may, at the end of the
    day, be free from legal error. However, a large number of municipal
    infrastructure projects are undertaken in this province each year in which the
    municipality contracts the work out to a third party. Whether a municipality
    may or may not fall within the definition of employer in respect of such
    projects by reason of the degree of control it exercises over the project
    engages a question of law alone of interest to the public at large. As such,
    special grounds for leave to appeal exist within the meaning of
POA

s. 131.

[7]

I recognize that the trial judge also examined Sudburys liability on
    the assumption that it was an employer and concluded that Sudbury had
    established a defence of due diligence. The Crown contends that the trial judge
    erred at law by considering general, not specific, acts of due diligence. The Crown
    observes that the appeal judge did not address the issue of due diligence in
    his appeal reasons. This court has recognized that whether the acts of due
    diligence are sufficiently specific to support a due diligence defence at law
    may constitute a question of law alone sufficient to support granting leave to
    appeal under
POA
s. 131:
Her Majesty the Queen v. Petro-Canada
(January 30, 2001), Toronto, M26383 (Ont. C.A.). In the present case, the Crowns
    ground of appeal in respect of the due diligence defence is arguable.
    Notwithstanding that Sudbury contends the issue largely turns on facts, not
    law, I do not regard the trial judges findings on the due diligence defence as
    an obstacle to granting leave to appeal on the legal question of the definition
    of employer, given the interest to the public at large of that legal issue.

[8]

As a result, I grant the Crown leave to appeal from the
    acquittals of Sudbury on the counts that alleged the municipality had breached
    its duties under the
OHSA
as an employer.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Pagliuso v. Primerica Financial
    Services Ltd., 2019 ONCA 778

DATE: 20191001

DOCKET: C66583

Sharpe, Hourigan and Jamal JJ.A.

BETWEEN

Fiori
    Pagliuso

Plaintiff
(Appellant)

and

Primerica Financial Services
    Ltd., Primerica Life Insurance
Company of Canada, PFSL Investments Canada Ltd., Primerica
Client Services Inc., Joseph Joe Muro (discontinued), Giuseppe
Joe Mozzone (discontinued), Claudia Mozzone (discontinued), Steve
Battiston (discontinued), Patrizia Battiston (discontinued), Julian
Serena (discontinued), and Franco Greco (discontinued)

Defendants
(Respondents)

Daniel Yudashkin, for the appellant

Caitlin R. Sainsbury and Maureen
    Doherty, for the respondents

Heard and released orally: September 30, 2019

On
    appeal from the order and endorsement of Justice Douglas K. Gray of the
    Superior Court of Justice, dated January 16, 2019.

REASONS FOR DECISION

[1]

In our view, the motion judge did not err in
    refusing to extend the time for the appellant to serve the statement of claim.
    The motion judge found that the appellant was aware of the facts giving rise to
    the claim in December 2012.  The appellant issued the statement of claim in
    March 2015. The rules required him to serve the statement of claim within six
    months of its issuance. The respondent was not served or given any notice of
    the claim. The appellant made a deliberate decision not to serve the statement
    of claim for three years when this motion for extension was brought.

[2]

We do not agree that the motion judge erred by
    taking into consideration the fact that the appellant intentionally did not
    serve the statement of claim.  Conduct of that nature is a relevant factor on a
    motion to extend a statement of claim: see
McGroarty v. CIBC Mellon Trust Company
,
    2012 ONCA 241 at para. 14: a tactical decision to delay service beyond the
    timeframe allowed for service by the rules will certainly redound against a
    party who subsequently seeks an extension of time.

[3]

In any event, we do not agree that the motion
    judge failed to consider prejudice or the overall equities of the case. The
    motion judge found that the respondent was entitled to rely on the presumptive
    prejudice arising from the expiry of the limitation period. The respondent
    argues that the limitation period expired even before the statement of claim
    was issued.  It certainly had expired before this motion was brought. The
    motion judge also found that the defendant had shown actual prejudice given the
    length of delay that occurred. We see no basis to interfere with that finding.

[4]

Nor do we see any basis upon which to interfere
    with the costs award made by the motion judge.

[5]

Accordingly, the appeal is dismissed. Costs in
    favour of the respondent fixed at $17,000, inclusive of disbursements and
    applicable taxes.

Robert J. Sharpe J.A.
C.W. Hourigan J.A.
M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Peoples Trust Company v. Atas,
    2019 ONCA 783

DATE: 20191002

DOCKET: M50530 (C64955)

Strathy
    C.J.O., Doherty and Roberts JJ.A.

BETWEEN

Peoples
    Trust Company, David Brooker, Taras Kulish, Moses Muyal, Michael Harold
    Kimberly, Irene Mary Kimberly, Stancer Gossin Rose, Raymond Stancer, Mitchell
    Hart Rose, Rose and Rose, Blair Coleman Rose, Scott Kelly, Rahul Shastri, Ira
    T. Kagan, David Winer, David Sloan, Baker Schneider Ruggiero, Patrice Côté, Ron
    Hatcher, Steinberg Morton Frymer LLP, Michael John Mitchell, Nicholas Carlos
    Canizares, David Hart, Bresver Scheininger & Chapman LLP, Rui Ruivo, Frank
    Pa, Atlantic (HS) Financial Corporation, Tom Pires, Megacorp, Krishan Chahal
    and Nutan Chahal

Applicants
(Respondents)

and

Nadire
    Atas and 626381 Ontario Limited

Respondents
(Appellants)

Nadire Atas, acting in person

Christina J. Wallis, for the respondent
    Peoples Trust Company

Heard and released orally: September 30, 2019

REASONS
    FOR DECISION

[1]

The moving party was declared a vexatious
    litigant in January 2018. She appealed to this court.

[2]

Motions for a stay of the judgment pending
    appeal to this court were dismissed on two separate occasions. Her appeal to
    this court was dismissed on May 6, 2019. She then moved for a stay of the
    judgment and subsequent case management orders pending an application for leave
    to appeal to the Supreme Court of Canada. That motion was dismissed by a judge of
    this court on June 4, 2019.

[3]

The moving party now seeks a review of that
    decision pursuant to s. 7(5) of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43. We agree with the reasons of the motion judge and dismiss the
    motion. The moving party failed to meet the test in
RJR-MacDonald Inc. v.
    Canada (Attorney General)
, [1994] 1 S.C.R. 311, on three prior occasions,
    and she has failed to do so today. Leaving aside the merits of her application
    for leave, she has failed to demonstrate that she is likely to suffer
    irreparable harm in the interim, or that the balance of convenience favours a
    stay.

[4]

The motion is dismissed. The costs of the motion
    are fixed at $2,646.30, inclusive of disbursements and all applicable taxes, in
    favour of the respondent.

G.R.
    Strathy C.J.O.

Doherty
    J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Potentia Renewables Inc. v. Deltro
    Electric Ltd., 2019 ONCA 779

DATE: 20191002

DOCKET: C65744

Tulloch, Roberts and Miller JJ.A.

BETWEEN

Potentia Renewables Inc.

Applicant (Respondent)

and

Deltro
    Electric Ltd.

Respondent (Appellant)

Fred Platt and
    Michael Mazzuca
, for the appellant

George Benchetrit and Aryan Ziaie, for
    the respondent

Heard:  June 5, 2019

On appeal from the order of Justice Thomas
    J. McEwen of the Superior Court of Justice, dated July 27, 2018, with reasons
    reported at 2018 ONSC 3437.

ROBERTS J.A.:

[1]

The appellant, Deltro Electric Ltd., appeals
    from the order that it repay to the respondent, Potentia Renewables Inc., the
    amount in Canadian currency sufficient to purchase $2 million USD and that, failing
    repayment, a receiver be appointed over the appellants assets, undertakings
    and property.

[2]

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

A.

Background facts and procedural history

[3]

As this appeal turns on the application judges
    interpretation of documents exchanged between the parties and the procedural
    underpinnings of the proceedings initiated by them, it is useful to set out a
    brief summary of the background facts and procedural history.

[4]

The respondents application was one of three
    proceedings arising out of the parties failed business relationship in
    relation to the development of a ground-mount solar project in Barbados (the
    Barbados project) and an unrelated renewable energy project in the Dominican
    Republic. The other two proceedings were actions that the respondent and
    appellant instigated against each other. The application judge was appointed to
    case manage these proceedings on the Commercial List of the Superior Court of
    Justice in Toronto.

[5]

The application judge determined that the appellant,
    as part of a group of related companies, controlled by Mr. Del Mastro,
    referenced as the Deltro Group of Companies, had entered into a number of
    obligations with the respondent to finance and complete the Barbados project,
    as largely memorialized in the letter of intent (LOI) dated May 15, 2016, and
    the amendment to the letter of intent (ALOI) and General Security Agreement
    (GSA) dated November 15, 2016. In accordance with those agreements, the
    respondent advanced $2 million USD in two tranches to the appellant: $500,000
    USD under the LOI and $1.5 million USD pursuant to the ALOI and GSA.

[6]

By its counsels letter on behalf of the Deltro
    Group of Companies, dated January 28, 2017, the appellant advised the
    respondent that as a result of the latters alleged misconduct in relation to
    an unrelated solar project in the Dominican Republic, Deltro is no longer under
    any contractual or other obligation to sell, assign, transfer, notify or
    deliver any interests in any project under any agreement between the parties.
    In its counsels responding letter of February 6, 2017, the respondent denied
    the allegations of misconduct but accepted the appellants repudiation of all
    agreements, including the Barbados project, and demanded repayment of the $2
    million USD that it had advanced.

[7]

In its counsels subsequent correspondence of
    February 23, 2017, the appellant advised that it had obtained final approval of
    the Barbados project, as required under the parties agreements, and demanded
    that the GSA be discharged. Responding by its counsels letter of February 28,
    2017, the respondent did not accept that the appellant provided proper proof of
    the requisite final approval and advised that, in any event, it was not
    obligated to discharge the GSA in light of the appellants repudiation that the
    respondent had accepted.

[8]

Taking the position that final approval had not
    been achieved and that the appellant had repudiated the LOI and ALOI, the
    respondent brought an application seeking the appointment of a receiver, as
    well as a declaration of the appellants indebtedness and corresponding
    judgment.

The application judges
    decisions

[9]

The application judge rejected the appellants
    argument that final approval of the Barbados project had been obtained and concluded
    that the appellant had breached and repudiated its obligations and was
    therefore required to repay the respondent the equivalent of $2 million USD. In
    the event that the appellant failed to make payment within 30 days, the
    application judge appointed KSV Kofman Inc. (KSV) as an interim receiver over
    the appellants assets and undertakings for 30 days to determine if a sensible
    plan of repayment could be made, failing which, the respondent would be
    entitled to have KSV appointed as receiver of all the appellants property. The
    appellant did not repay the amounts ordered and KSV became receiver to ensure
    payment was made.

[10]

The appellant asked the application judge to
    re-open the application, arguing that the appellant could not have repudiated
    the LOI because it was not a party to it; and the appellant had not breached
    the ALOI because final approval of the Barbados project had been obtained, in
    support of which the appellant tendered as fresh evidence the affidavits of two
    former Barbadian ministerial officials.

[11]

The application judge refused to re-open the
    application. He precluded the appellant from raising the new argument that it
    was not a party to the LOI. He also rejected the fresh evidence, holding that
    it was, at best, equivocal as to whether final approval had been obtained, and
    would not therefore have changed the outcome of the application.

B.

Issues

[12]

The appellant pursued the following issues on
    the hearing of the appeal:

1.

The application judge had no jurisdiction to grant any of the relief
    requested on the application and should have directed it proceed to trial with
    the other two actions that were ordered to be heard together.

2.

The application judge erred in finding that the appellant had failed
    to obtain final approval of the Barbados project and had repudiated the ALOI,
    and in failing to admit fresh evidence and re-open the application on this
    issue.

3.

The application judge erred in finding that the appellant had
    repudiated and breached the LOI to which it was not a party, and in failing to
    re-open the application on this issue.

[13]

The appellant relied on its factum for the other
    discrete issues raised on this appeal, namely: the application judge erred in
    appointing KSV as receiver and in limiting KSVs liability as receiver to gross
    negligence or wilful misconduct.

C.

Analysis

(i)

The application judges jurisdiction

[14]

The appellant submits that the application judge
    should not have allowed the proceeding to be commenced by application as it was
    not authorized under r. 14 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194. The appellant also argued that the application judge lacked
    jurisdiction to appoint a receiver under s. 101 of the
Courts of Justice
    Act
, R.S.O. 1990, c. C.43 that allows only for interlocutory orders to be
    granted. Moreover, no recourse could be had to s. 243 of the
Bankruptcy and
    Insolvency Act
, R.S.C. 1985, c. B-3 that permits the appointment of a
    receiver where the debtor is insolvent because, as the application judge found,
    the appellant was not insolvent.

[15]

I would not accept these submissions.

[16]

The application was properly brought under r. 14
    of the
Rules of Civil Procedure.
While, in accordance with r. 14.06(3),
    the respondent should have stated the rule or statute under which the
    application is brought, this is a procedural, not a substantive, requirement.
    Its omission does not invalidate an application that otherwise complies in
    substance with r. 14.02: see r. 2.01 of the
Rules of Civil Procedure
.

[17]

Here, the substance of the application was in
    respect of a matter under r. 14.05(3)(d): the determination of rights that
    depend on the interpretation of a  contract or other instrument. This included
    the interpretation of the LOI, ALOI and GSA, about which there were no issues
    of credibility that required a trial to resolve. Rule 14.05(3)(g) permitted the
    respondents request for a declaration, the appointment of a receiver and
    damages, as other consequential relief when ancillary to relief claimed in a
    proceeding properly commenced by a notice of application.

[18]

Moreover, there was no need for the respondent
    or the application judge to resort to s. 101 of the
Courts of Justice Act
or s. 243 of the
Bankruptcy and Insolvency Act
, for authority to
    appoint a receiver. Article 6.1(l) of the GSA specifically allows the
    respondent to appoint, by an instrument in writing delivered to the
    [appellant], a receiver, manager or a receiver and manager (a Receiver)  or
    institute proceedings in any court of competent jurisdiction for the
    appointment of a Receiver, upon the appellants default.

[19]

As a result, the application judge had
    jurisdiction to hear and determine the respondents application and to grant
    the requested relief.

(ii)

Final approval of the Barbados project

[20]

It is common ground that according to the LOI,
    the second progress payment of $1.5 million USD was payable by the respondent
    when the final formal zoning and site approval by the Barbados Town and Country
    Planning for the Barbados project was obtained. The dispute between the parties
    as to whether final approval had been obtained led them to enter into the ALOI
    and the GSA to secure the second progress payment.

[21]

There is also no dispute that the ALOI provided
    that the appellant could keep the second progress payment if, within 12 months
    of the date of the disbursement, final approval was granted by the Barbados
    Town and Country Planning Office or any other Barbados governmental body with
    the authority to grant the final approval. But, if final approval was not
    obtained within this 12-month period, the ALOI stipulated that the respondent
    shall have the right (but not the obligation) to demand full and immediate
    repayment of the $1.5 million USD progress payment. Following full repayment,
    the GSA would be discharged.

[22]

The appellant does not dispute that if final
    approval were not obtained within the stipulated period, it would be obliged to
    make the $1.5 million USD repayment. However, it maintains that the application
    judge made palpable and overriding errors in his interpretation of the various
    letters and affidavits of the former Barbadian ministers which, according to
    the appellant, established that final approval had been granted. The application
    judge erred, according to the appellant, in failing to admit the fresh evidence
    of the ministers affidavits and in failing to reopen the application.  As a
    result, the appellant argues, the GSA should have been discharged and there was
    no obligation to repay the $1.5 million USD progress payment.

[23]

I disagree.

[24]

First, it was open to the application judge to
    conclude that the documents proffered by the appellant, including the proposed
    fresh evidence, fell far short of demonstrating that final approval had been
    granted. His interpretation was reasonable and is owed deference on appeal. Moreover,
    he was not obliged to accept the fresh affidavits of the former Barbadian
    ministers or re-open the application.

[25]

It has long been
    established that, absent an error of law, an appellate court should not
    interfere with the exercise by a trial judge of his or her discretion in the
    conduct of a trial.  Appellate courts should defer to the trial judge who is in
    the best position to decide whether, at the expense of finality, fairness
    dictates that the trial be reopened.  Further, the case law dictates that the
    trial judge must exercise his discretion to reopen the trial "sparingly
    and with the greatest care"
so that "fraud and abuse of the Court's processes" do not result:
671122 Ontario Ltd. v. Sagaz Industries Canada Inc.
, 2001 SCC 59, [2001] 2 S.C.R. 983, at paras. 60-61.

[26]

I see no error in the application judges refusal
    to re-open the application based on the fresh evidence of the former ministers
    affidavits. As already noted, his conclusion that the fresh evidence would not
    have affected the outcome was reasonable. There is no basis to interfere with
    it.

[27]

Further and in any event, as the application
    judge found, regardless if final approval were ultimately obtained, that
    approval came too late because it followed the appellants clear repudiation of
    the ALOI by its counsels January 28, 2017 letter and the respondents equally
    clear acceptance of its repudiation. Upon the respondents acceptance of the
    appellants repudiation, the appellants obligation to obtain final approval,
    among other obligations, came to an end but its obligation to repay $1.5
    million USD arose.

[28]

I would therefore reject this ground of appeal.

(iii)

Did the appellant repudiate the LOI?

[29]

Nor do I accept the appellants argument that
    the application judge erred in finding that the appellant had repudiated the
    LOI when, according to the appellant, it was not a party to that agreement. Accordingly,
    the application judge was not required, as the appellant submits, to re-open
    the application to correct any error or to prevent a miscarriage of justice.

[30]

With respect to the appellants request to
    re-open the application, the application judge concluded:

The argument now advanced by Deltro was
    available when the matter first appeared before me. I have, however, reviewed
    my Reasons, the documents Deltro produced for this motion, and considered
    Deltros argument. I see no basis to change the relevant findings in my Reasons.
    This is particularly so in light of Deltros admission at this motion that the
    January 28, 2017, letter sent by counsel for the Deltro Group of Companies to
    Potentia included both/either Deltro and DGL.

[31]

As the application judge correctly observed,
    prior to its request to re-open the application, the appellant had never
    advanced the position that it was not a party to the LOI. Indeed, the
    artificial and technical distinction that the appellant now advocates for is
    not supported by the evidence or its pleadings. Rather, the appellants correspondence
    with the respondent, its pleadings, and the appellants supporting affidavits
    on the application establish that the appellant consistently represented itself
    and operated as part of an integrated group of related companies of which Mr.
    Del Mastro is the directing mind and will, and which was a party to the LOI.

[32]

In particular, in its statement of defence and
    counterclaim to the action commenced by the respondent, the appellant does not
    differentiate itself from the other members of the Deltro Group of Companies.
    Instead, the appellant describes itself in para. 4 as a company that together
    with its related companies, conducts business development, financing,
    construction, and operations of renewable energy projects  throughout the
    Caribbean.  Importantly, in para. 6 of its statement of defence and
    counterclaim, the appellant expressly admits that it entered into the LOI:

In response to Paragraphs 4 and 5 of the
    Statement of Claim, [the appellant] admits that it entered into  the [LOI]
    with [the respondent], the former with respect to the Barbados Project.

[33]

This admission formed the basis for the
    appellants claim for damages in paras. 25 to 28 of its counterclaim
related to [the respondents] breach of contract of the [LOI]  for
    the greater of the expectation interest that [the appellant] would have
    reasonably expected to receive under the [LOI] but for [the respondents]
    breach or in the alternative [the appellants] reliance interest for funds it
    has expended in reliance of the said agreement.

[34]

The appellant has never sought to withdraw its
    admission, amend its pleadings or withdraw its counterclaim.

[35]

As a result, I see no error in the application
    judges refusal to re-open the application.

[36]

Given the application judges finding that the
    appellant had repudiated the LOI, it was reasonable for him to determine that ss.
    7 and 12 of the LOI are of no assistance to the appellant. As the application
    judge stated: Deltro cannot accept Potentias money, repudiate the agreement,
    and then rely on a clause from the very same agreement as justification for
    keeping the money. I see no error in the application judges conclusion.

(iv)

KSVs appointment as Receiver and the exclusion
    of liability

[37]

The appellant submits that the application judge
    erred in appointing KSV as receiver because it has a conflict of interest given
    its ongoing professional relationship with the respondents counsel in other receivership
    matters. Further, the appellant submits that the application judge erred in
    limiting the receivers liability to gross negligence or wilful misconduct in
    the formal order.

[38]

I would not give effect to these submissions. In
    my view, both these decisions represented a reasonable exercise of the application
    judges discretion as a case management judge of the Commercial List of the
    Ontario Superior Court of Justice in Toronto.

[39]

Absent reviewable error, deference must be shown
    to the reasonable case management decisions of the highly specialized judges who
    sit on the Commercial List: see
Western Larch Limited v. Di Poce Management
    Limited
, 2013 ONCA 722, 117 O.R. (3d) 561, at para. 16. Established in
    1991, the
Commercial List of the Ontario Superior Court
    of Justice specializes in the hearing and case management of only commercial
    law cases, including receiverships. Matters on the Commercial List are governed
    by a Practice Direction that sets out special procedures specifically adopted
    for the hearing of matters on the Commercial List.
The
    Practice Direction anticipates that the same judge who determines a substantive
    component of a proceeding will continue to hear all substantive matters. It is
    also expected that the proceeding shall be subject to a form of case
    management.
See:
Consolidated
    Practice Direction Concerning the Commercial List
,
    effective July 1, 2014.

[40]

With that context in mind, I turn first to the
    appointment of KSV as receiver. I see no error in the exercise of the application
    judges discretion to appoint KSV. There is no dispute that KSV was qualified
    to act as receiver. Moreover, KSV was independent; it had no connection with
    the respondent or the appellant. The fact that KSV has worked professionally
    with the respondents counsel on other unrelated matters does not raise a
    disqualifying conflict or prevent it from complying with its professional
    obligations to the court. As the application judge reasonably observed, it is
    not unusual for professional law and accounting firms specializing in
    insolvency matters to have had previous or ongoing professional relationships.
    Finally, it must be recalled that KSV, as the court-appointed receiver, is an
    officer of the court, accountable to the court and all interested parties,
    including the appellant
: see
Jethwani v. Damji
, 2017 ONSC 1702, at para. 8.

[41]

With respect to the application judges limitation
    of the receivers liability in the receivership order, I similarly see no basis
    for appellate intervention.

[42]

The provisions of the receivership order, with
    which the appellant takes issue, are standard provisions that form part of the
    model receivership order prescribed by the Commercial List Users Committee for
    the use of practitioners and the court.
While not bound by them, counsel is expected to use
    the model orders developed by the Users Committee as templates for the draft
    orders they put before the Court, appropriately adapted as the particular
    circumstances of each case require, with suggested revisions black-lined. This
    follows the direction in para. 57 of Part XVIII of the Practice Direction:
[t]he prior preparation of draft orders for
    consideration by the court at the end of a hearing will greatly expedite the
    issuance of orders. Where relevant model orders have been approved by the Commercial
    List Users Committee, a copy of the draft order blacklined to the model order
    and indicating all variations sought from the model order must be filed.

[43]

The theory and approach behind the recommended
    model orders promote the Commercial Lists purposes of efficiency, expediency
    and uniformity in commercial law matters, while recognizing that any model order
    serves only as a guide and must be tailored to suit the circumstances of each
    case before the court.
While model orders are extremely
    useful to parties and the court, they are only tools and must be treated with
    care. They are not mandatory. Not every provision in the model orders will be
    suitable in every case. A judge must always appropriately exercise discretion
    to determine what provisions are reasonable in the circumstances.

[44]

For ease of reference, I have highlighted the
    impugned provisions in the text of para. 20 of the order, reproduced below:

THIS COURT ORDERS that the Receiver shall
    incur no liability or obligation as a result of its appointment or the carrying
    out the provisions of this Order,
save and except for any gross negligence
    or wilful misconduct on its part
, or in respect of its obligations under sections
    81.4(5) or 81.6(3) of the BIA or under the
Wage Earner Protection Program
    Act
. Nothing in this Order shall derogate from the protections afforded
    the Receiver by section 14.06 of the BIA or by any other applicable
    legislation. [Emphasis added.]

[45]

The appellant objected to these provisions on
    the basis that there was no reason to limit the receivers liability beyond negligence
    as the ordinary standard of liability to gross negligence or wilful misconduct.
    The application judge did not accept this submission and determined, in the
    circumstances of this case, that it was appropriate to include the standard
    limiting provisions of the model order.

[46]

In my view, the application judges decision was
    reasonable. The application judge understood that he was not obliged to limit
    the receivers liability to gross negligence or wilful misconduct. He did not
    indicate that he was obliged to follow the model order or that the model order
    was determinative.  Rather, he properly exercised his discretion to include the
    impugned provisions based on the circumstances of the case before him.

[47]

Why then was it reasonable in this case to
    include the limited liability shield for the receiver?

[48]

It is a fair inference,
    in my view, that, without it, KSV may have refused to act as receiver in the
    circumstances of this case. A qualified receiver considering accepting an
    appointment can legitimately take into account whether the limited liability
    shield will be in place, as contemplated in the model order, to allow for
    the proper and orderly conduct of the receivership and avoid unnecessary and
    unjustified proceedings. As observed in the explanatory notes for the 2004
    version of the model receivership order:

the Receiver is not a legitimate target for
    the competing creditors. [A] gross negligence floor has been continued as the
    standard of culpability in order to limit the ability of creditors or the
    debtor from seeking to mount a challenge to the reasonableness of every
    exercise of the Receivers discretion.

[49]

The reasonable expectation of a limited
    liability shield is also reflected in the respondents engagement letter to BDO,
    the proposed predecessor receiver, which provided that it would indemnify the
    receiver for all liabilities incurred in connection with the receivership,
    excepting only any liabilities  that arise out of a wrongful act of [the
    receiver] which is proven to have been committed by it wilfully or out of gross
    negligence.

[50]

While it may not be appropriate or required in
    all cases, KSVs limited liability permits the orderly execution of its duties
    without the concern that it will be subject to needless litigation, especially in
    the circumstances of this case, with a recalcitrant debtor who has already
    objected to KSVs appointment. Recall KSVs mandate in this case: while the
    scope of its powers is broad, its narrow purpose is to ensure payment of the $2
    million USD debt to the respondent, which the appellant has steadfastly refused
    to pay notwithstanding its liability under the LOI, ALOI and GSA. The
    limitation of KSVs liability to gross negligence and wilful misconduct lessens
    the likelihood that the appellant will interfere with the completion of the
    receivers mandate.

[51]

That said, the limitation of its liability does
    not mean that KSV can act with impunity. KSV is a court-appointed receiver
    whose conduct of the receivership is subject to the courts scrutiny in which
    process the appellant will actively participate.

[52]

As a result, I see no basis to interfere with the
    provisions of the application judges order that limit the receivers liability
    to gross negligence and wilful misconduct.

D.

Disposition

[53]

For these reasons, I would dismiss the appeal.

[54]

In accordance with the provisions of the GSA, the
    respondent is entitled to its full indemnity costs that I would fix in the
    amount of $50,000, inclusive of disbursements and applicable taxes.

Released: MT OCT 02, 2019

L.B. Roberts J.A.
I agree. M. Tulloch J.A.
I agree. B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Raki Holdings Inc. v. Lionheart
    Enterprises Inc., 2019 ONCA 786

DATE: 20191002

DOCKET: C66178

Sharpe, Hourigan and Jamal JJ.A.

BETWEEN

Raki
    Holdings Inc.

Applicant
(Respondent)

and

Lionheart Enterprises Inc. and
    583753 Ontario Inc.

Respondents
(Appellants)

James M. Wortzman and Karey A. Dhirani,
    for the appellants

Neil G. Wilson and Wei Jiang, for the
    respondents

Heard and released orally: September 30, 2019

On
    appeal from the judgment of Justice Gregory M. Mulligan of the Superior Court
    of Justice, dated October 26, 2018.

REASONS FOR DECISION

[1]

The sole issue on this appeal is whether the
    application judge erred in interpreting the following clause in two agreements
    between the appellant as vendor and the respondents as purchasers of
    development lands:

(c) Net Developable Area refers to the Gross
    Area of the property less those lands designated by the Town, the Region or the
    Toronto and Region Conservation Authority as: Environmental Protection Area 1
    lands, Environmental Protection Area 2 lands, Buffer Areas, Zones of Influence,
    Ecological Corridors and Linkages, including but not limited to valley lands,
    wetlands, woodlots, open space lands
(save and except tableland used for
    storm water management ponds)
and Ecological Restoration Areas, Natural
    Heritage System as defined by Minister of Natural Resources and/or the Toronto
    and Region Conservation Authority, Protected Countryside as set out in the
    Greenbelt Plan (as established by the Province of Ontario) which is currently
    estimated to be 59.90 acres. [Emphasis added.]

[2]

The issue is whether the words in parenthesis
    that have the effect of including table land used for storm water management
    ponds in the definition of Net Developable Area apply to lands defined as Protected
    Countryside as set out in the Greenbelt Plan.

[3]

The application judge held that they did not,
    and we see no error in his finding. We agree with the submission of the
    respondent that to achieve the interpretation sought by the appellant it would
    be necessary to rewrite the agreement between the parties and move the words in
    parenthesis from where they are to end of the clause.

[4]

The central point made by appellant before us is
    that the Greenbelt lands were designated as open space lands by the town and
    that they therefore fall within the exception. We do not accept that
    submission.

[5]

The terms open space lands and Greenbelt
    lands have distinct meanings and are subject to different planning controls. At
    the time of closing, the Greenbelt lands had not been designated as open space
    lands. Moreover, the parties were aware that it might be possible to put the
    storm water management ponds on the Greenbelt lands. The exception in the
    agreement did not apply to the Greenbelt Plans at the time of closing and that
    did not change when the town subsequently designated the lands as open space.

[6]

Accordingly, the appeal is dismissed. In
    accordance with the agreement between the parties, costs payable by the
    appellants to the respondents fixed at $35,000, inclusive of disbursements and
    taxes.

Robert J. Sharpe J.A.

C.W. Hourigan J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bowman, 2019 ONCA 801

DATE: 20191004

DOCKET: M49683

Rouleau, Trotter and Harvison
Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Keith Bowman

Appellant

Keith Bowman, in person

Brian Snell, duty counsel

Andrew Hotke, for the respondent

Heard: October 1, 2019

APPEAL BOOK ENDORSEMENT

[1]

The moving party seeks leave to appeal. He was
convicted of refusing to comply with a breath demand. His appeal to the
Superior Court was dismissed. In this court, duty counsel on his behalf argues
that the trial judge did not consider whether the moving partys disorientation
following the accident and possible concussion raised a reasonable doubt.
Although this was not raised before the Superior Court, duty counsel submits
that it is in the interest of justice that leave to appeal be granted so that
this issue can be addressed in this court.

[2]

We disagree.

[3]

The trial judge was clearly alive to the moving
partys disorientation as it was the basis for her acquittal of the moving
party on the impaired driving charge. In our view, there is no basis for
concluding that the trial judge overlooked this evidence when later in her
reasons she found that the moving party had refused to provide the breath
sample. The moving party then argues that one of the police officers lied about
his interactions with him at the scene and that this provides a basis for
granting leave.

[4]

Again, we disagree.

[5]

As explained by the Superior Court judge, the
alleged lie had no impact on the conviction of refusing to provide a breath
sample.

[6]

Leave to appeal is denied. With the consent of
the Crown, the sentence appeal is allowed in part to strike down the victim
surcharge of $400.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boyce, 2019 ONCA 828

DATE: 20191021

DOCKET: C62277

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

BETWEEN

Her Majesty the Queen

Respondent

and

Dexter Boyce

Appellant

Dean F. Embry and Eric S. Neubauer, for the appellant

David Quayat, for the respondent

Heard: March 7, 2019

On appeal from the conviction entered by Justice Nancy J.
    Spies of the Superior Court of Justice, dated December 11, 2015 with reasons
    reported at 2015 ONSC 7672.

B.W. Miller J.A.:

Background

[1]

The appellant was convicted of offences under s. 6(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19, and ss. 463 and 465 of the
Criminal
    Code
, arising from his part in a failed conspiracy to import cocaine from
    Costa Rica to Toronto. The parties to the conspiracy arranged for almost 356 grams
    of cocaine to be hidden inside two packages of travel brochures to be shipped to
    Toronto via Federal Express courier. The packages were intercepted in Panama, a
    transit point for the shipments. Laboratory analysis conducted by Panamanian
    authorities indicated that the substance hidden in the travel brochures was
    cocaine.

[2]

The trial judge found that surveillance evidence and intercepted
    communications established that the appellant was part of a conspiracy, and the
    object of that conspiracy was to import something illegal from Costa Rica to
    Toronto, hidden inside two Federal Express packages. These findings have not been
    appealed. This evidence could not establish, however, what the conspiracy was
    attempting to import. The sole evidence that could identify the object matter
    was provided by a laboratory analysis and other documentation provided to the
    Crown by Panamanian authorities pursuant to a request made under the
Mutual
    Legal Assistance Treaty
(
MLAT
).

[3]

Canadas obligations under
MLAT
, as well as rules for the evidentiary
    use of documents received pursuant to
MLAT
requests, are established in
    the
Mutual Legal Assistance in Criminal Matters Act
, R.S.C., 1985, c.
    30 (4th Supp.) (
MLACMA
).

[4]

The issue on this appeal is whether the trial judge erred in admitting
    into evidence the documentation received from Panama pursuant to the
MLAT
request (the
MLAT
documents) that attests to the nature of the substance
    hidden in the travel brochures.

[5]

The Crown relied on the
MLAT
documents to establish various
    steps in the Panamanian investigation, including how the cocaine was discovered,
    the continuous chain of custody to the Panamanian Laboratory of Controlled
    Substances, and the chemical analysis conducted at that laboratory by the head
    chemist.

[6]

The appellant brought a pre-trial application to exclude the
MLAT
documents from evidence, particularly the Panamanian laboratory report. Both
    parties agreed to be bound by the ruling. On June 25, 2015, the appellants
    application was dismissed, with reasons reported at 2015 ONSC 4062.

[7]

The trial judge found the
MLAT
documents to be reliable based
    on the cumulative effect of the documents, as well as corroboration from
    information obtained through intercepted communications. Based on the
    Panamanian drug testing, expert evidence testifying about the nature of the
    three tests used by the Panamanian laboratory, and other evidence that
    reinforced the reliability of the
MLAT
documents, the trial judge
    concluded that the substance found in the intercepted packages was cocaine. The
    appellant was convicted.

Issues

[8]

The appellant raises two issues on appeal:

1. Did the
    trial judge misinterpret and misapply s. 36(1) of
MLACMA
and thereby
    improperly admit hearsay expert evidence?

2. In the
    alternative, if the trial judges interpretation of s. 36(1) is correct, does s.
    36(1) infringe s. 7 and 11(d) of the
Charter of Rights and Freedoms
?

Analysis

1.

The
    interpretation and application of s. 36(1) of
MLACMA

[9]

At common law, hearsay evidence and opinion evidence are presumptively
    inadmissible. At issue in this appeal is whether s. 36 of
MLACMA
gives
    a trial judge the discretion to admit foreign records containing hearsay and
    opinion evidence that have been sent pursuant to a Canadian request.

[10]

Section
    36 provides:

Foreign Records

(1) In a proceeding with respect to which Parliament
    has jurisdiction, a record or a copy of the record and any affidavit,
    certificate or other statement pertaining to the record made by a person who
    has custody or knowledge of the record, sent to the Minister by a state or
    entity in accordance with a Canadian request, is not inadmissible in evidence
    by reason only that a statement contained in the record, copy, affidavit,
    certificate or other statement is hearsay or a statement of opinion.

Probative value

(2) For the purpose of determining the probative
    value of a record or a copy of a record admitted in evidence under this Act,
    the trier of fact may examine the record or copy, receive evidence orally or by
    affidavit, or by a certificate or other statement pertaining to the record in
    which a person attests that the certificate or statement is made in conformity
    with the laws that apply to a state or entity, whether or not the certificate
    or statement is in the form of an affidavit attested to before an official of
    the state or entity, including evidence as to the circumstances in which the
    data contained in the record or copy was written, stored or reproduced, and
    draw any reasonable inference from the form or content of the record or copy.

[11]

The
    trial judge, at para. 84, accepted the interpretation of this section proffered
    by the Crown,

that relevant hearsay documents that meet the requirements of
    s. 36(1) are admissible and that it is not necessary to consider the two prongs
    of necessity and threshold reliability. That interpretation makes the most
    sense in light of s. 36(2), which provides that the ultimate probative value of
    these hearsay documents and the reasonable inferences that can be drawn from
    them is for the trier of fact.

[12]

That
    is, s. 36(1) makes relevant tendered evidence admissible without considering either
    its necessity or threshold reliability. This is consistent with the
    interpretation of that section recently provided by the British Columbia Court
    of Appeal in
R. v. Rajaratnam
, 2019 BCCA 209, 376 C.C.C. (3d) 181, at
    para. 123:

We agree with the Crown that s. 36 precludes a successful
    objection to the admissibility of a document solely on the basis that it
    contains hearsay or an opinion, which is a form of hearsay. We also agree with
    the Crown that, by reasons of s. 36, a document containing hearsay can be
    tendered for the truth of its contents without the need to establish the
    evidence either falls within a recognized common law exception to the hearsay
    rule or meets the requirements of the principled approach to hearsay.

[13]

Section
    36(1) does not, on this reading, determine the question of ultimate admissibility.
    Evidence derived from foreign law enforcement is still subject to the general
    exclusionary rule  weighing probative value as against prejudicial effect  as
    articulated in
R. v. Mohan
,

[1994] 2 S.C.R. 9. Furthermore,
    trial judges retain the power to exclude otherwise admissible hearsay evidence
    where its admission would infringe on the fair trial rights of an accused:
R.
    v. Harrer
, [1995] 3 S.C.R. 562, at paras. 21-24.

[14]

The
    appellant argues that this is not a sound interpretation of s. 36(1). The appellant
    argues that s. 36(1), properly interpreted, does not remove the presumptive
    inadmissibility of hearsay and expert evidence, and the Crown is still required
    to establish necessity and threshold reliability. On the appellants
    interpretation, s. 36(1) merely restates the common law position that hearsay
    documents will not be excluded from trial simply because they contain hearsay
    or opinion provided they come within an exception to the rule against their
    admissibility. The appellant claims support from the reasons of the application
    judge in this case as well as
R. v. Armour Pharmaceutical Company
, 2007
    CanLII 82855 (ON SC).

[15]

In
    support of this position, the appellant argues that s. 36(1) is ambiguous and
    can be read either as the trial judge did or in the manner he proposes. He
    argues that his interpretation is to be preferred because it would better realize
    constitutional principles related to ss. 7 and 11(b) of the
Charter
:
Bell
    ExpressVu Limited Partnership v. Rex
,

2002 SCC 42, [2002] 2
    S.C.R. 559. That is, removing the barrier to the admission of hearsay, as
    proposed by the interpretation of the trial judge, would jeopardize the fair
    trial rights of an accused.

[16]

In
    further support, the appellant argues that were s. 36(1) to be interpreted as the
    trial judge did, it would result in a change to the common law, rendering evidence
    admissible which would not be admissible but for s. 36(1). However, the
    appellant argues, legislation is not to be interpreted as setting aside or
    otherwise changing the common law unless Parliament has expressed its intention
    to do so using clear and unambiguous language. It did not do so in this case.

[17]

I
    would reject both arguments, on the basis that each depends on the existence of
    an ambiguity in the statutory provision. As explained below, no such ambiguity
    exists.

[18]

An
    ambiguity, in the relevant sense, means that the words of the provision are
    reasonably capable of bearing more than one meaning. The Supreme Court has
    cautioned that one must consider the entire context of a provision before
    one can determine if it is reasonably capable of multiple interpretations and
    that It is only when genuine ambiguity arises between two or more plausible
    readings,
each equally in accordance with the intentions
    of the statute
, that the courts need to resort to external interpretive
    aids  to which I would add, including other principles of interpretation.:
Bell ExpressVu
, at para. 29.

[19]

However,
    the appellants interpretation does not account for the purpose of the statute,
    characterized by the trial judge  relying on
Pokidysheve Re
, (1999)
    138 C.C.C. (3d) 321 and
Zingre v. R.
, [1981] 2 S.C.R. 392  as combatting
    international crime by co-operating with other states, and recognizing a comity
    of a nations based on mutual deference and respect for the legal systems of
    Canadas treaty partners.

[20]

As
    explained by Goldstein and Dennison in Mutual Legal Assistance in Canadian
    Criminal Courts (2002) 45 Crim LQ 126, s. 36(1) eases the admission of foreign
    evidence that ordinarily would have encountered procedural obstacles to its
    admission. This advances the purpose of
MLACMA
by facilitating the
    admission of evidence obtained abroad in order to efficiently and effectively prosecute
    international and transnational crime. Allowing foreign evidence to be
    requested from foreign governments and received in documentary form respects
    the comity of nations by avoiding the intrusive and
ad hoc
process of
    Crown counsel directly contacting people in other countries and asking them to
    testify. It is premised on Canada and its treaty partners having confidence in
    and respect for each others legal systems.

[21]

The
    interpretation of s. 36(1) proposed by the appellant is thus inconsistent with its
    purposes and is not a plausible interpretation. No ambiguity has been
    demonstrated and the trial judge made no error in this respect.

The application of s. 36

[22]

Having
    rejected the appellants argument that the trial judge misinterpreted s. 36(1),
    the next question is whether the trial judge, or the application judge before
    her, nevertheless misapplied s. 36(1) in admitting the
MLAT
documents.

[23]

Most
    of the appellants arguments with respect to the application judges decision
    to admit the evidence are premised on the reading of s. 36(1) that was rejected
    above. They therefore cannot succeed.

[24]

With
    respect to the argument that the trial judge erred in not exercising her
    residual discretion to exclude the evidence on fair trial grounds, I am not
    persuaded that the trial judge made such an error.

[25]

The
    trial judge relied on the Panamanian drug test results in finding that the
    substance the appellant conspired to import, and attempted to import, was
    cocaine. At trial, the only basis on which the appellant argued for the
    exclusion of the evidence was that it constituted hearsay and opinion evidence.
    The trial judge noted that the unavailability of cross-examination to test the
    evidence was not a matter of admissibility, but of what weight to give the
    evidence. She found that the traditional concerns about hearsay were virtually
    non-existent with the
MLAT
documents, with little if anything to be
    gained by cross-examination of the authors.

[26]

The
    appellant argues that the trial was unfair because he did not have an
    opportunity to cross-examine the Panamanian chemist on the procedures that were
    followed in the drug testing. The trial judge rejected this argument on the
    basis that the nature of the confirmatory testing is such that, absent
    contamination with cocaine from a source other than the white powder found in
    the packages, a false positive could not result. A substance that was not
    cocaine could not be positively identified by the infrared spectroscopy test as
    cocaine. The Crowns expert witness admitted that a successful test would
    depend on functioning equipment and a competent operator. However, based on her
    explanation of the test method, the trial judge inferred that a failure of the
    equipment or a competent operator would result in non-identification, rather
    than a positive identification of cocaine. This is an inference that was
    available to the trial judge from the evidence, and there is no basis for this
    court to interfere with it.

[27]

The
    trial judge had no difficultly in giving the expert report significant weight,
    given that it was prepared by the head chemist of a government laboratory,
    using internationally recognized tests, for use of the Panamanian prosecutors
    office, and reported to a Panamanian court. Furthermore, the trial judges
    conclusion was supported by the evidence that the substance found in the parcels
    was a white powder, and that the intercepted communications had made it clear
    that the substance to be imported was something illegal.

[28]

I
    see no error in the trial judges analysis.

2.

The
    constitutional question

[29]

At
    trial, the appellant did not bring a
Charter
challenge seeking to
    invalidate s. 36 under s. 52 of the
Constitution Act, 1982
. Constitutional
    invalidity was raised for the first time in a Notice of Constitutional Question
    on appeal, and s. 52 arguments were advanced in the appellants factum. In oral
    submissions, however, the appellant took the position that s. 36(1) was not
    unconstitutional, but merely that the interpretation given by the trial judge
    was unconstitutional. The remedy sought was not a declaration of invalidity
    pursuant to s. 52, but that the provision be interpreted in a manner that is
    consistent with ss. 7 and 11(d) of the
Charter
. After oral argument,
    the B.C. Court of Appeal released its judgment in
Rajaratnam
, in which
    it declared s. 36(1) to be of no force and effect pursuant to s. 52 of the
Constitution
    Act
. This court then invited the parties to make written submissions on whether
    or to what extent
Rajaratnam
had any bearing on the matters at issue
    in this appeal. In his submissions in response, the appellant argued that the B.C.
    Court of Appeal erred by misinterpreting s. 36(1) in the same manner as the
    trial judge had done. However, he argued in the alternative that if this court
    were to agree with the interpretation given by the B.C. Court of Appeal and the
    trial judge, then this court ought to find s. 36(1) to be inconsistent with ss.
    7 and 11(d) of the
Charter
and declare s. 36(1) to be of no force and
    effect pursuant to s. 52.

[30]

The
    respondent, although agreeing with the B.C. Court of Appeal on the question of
    statutory interpretation, takes the position that the constitutional analysis
    in
Rajaratnam
is flawed and should not be adopted. The respondents primary
    position, however, is that the s. 52 argument should not be decided, given that
    it was raised for the first time on appeal.

[31]

In
    general, this court is reluctant to consider constitutional challenges to
    legislation that are not advanced at trial: e.g.
R. v. Wookey
, 2016
    ONCA 611, 351 O.A.C. 14, at paras. 55-57:

[55] The appellant raises this constitutional challenge for the
    first time on appeal.

[56] As the Supreme Court recently explained in
Guindon v.
    Canada
, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 20-22, while appellate
    courts can hear and decide new issues not raised at trial, whether or not to do
    so is a matter for the courts discretion. This discretion is exceptional; it
    should not be exercised routinely or lightly. When determining whether to
    exercise its discretion, a court should take into account all of the
    circumstances, including the following:

·

the state of the record,

·

fairness to all parties,

·

the importance of having the issue resolved by
    the court,

·

its suitability for decision, and

·

the broader interests of the administration of
    justice.

[57] The court should not exercise its discretion unless
    convinced that doing so would cause no prejudice to the parties or that failing
    to do so would risk injustice:
Guindon
, at paras. 22-23;
Performance
    Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd.,
2002 SCC 19,
    [2002] 1 S.C.R. 678, at para. 33.

[32]

I
    would not exercise this courts discretion in favour of hearing the
    constitutional argument.

Disposition

[33]

I
    would dismiss the appeal.

Released: GS OCT 21 2019

B.W. Miller J.A.

I agree. G.R.
    Strathy C.J.O.

I agree. Paul
    Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bushiri, 2019 ONCA 797
DATE: 20191007

DOCKET: C64156

Watt, Huscroft and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Glodi Bushiri

Appellant

Howard L. Krongold, for the appellant

Elena C. Middelkamp, for the respondent

Heard: August 21, 2019

On appeal from the conviction entered on
    September 28, 2016 by Justice Peter D. Griffiths of the Ontario Court of
    Justice.

Jamal J.A.:

Overview

[1]

At common law, an accused who advances an alibi
    defence at trial must disclose the substance of that defence to the prosecution
    in sufficient time and with sufficient particularity to allow the authorities
    to investigate it before trial. When the accused does not do so, the trier of
    fact may draw an adverse inference when weighing the alibi evidence. The courts
    have recognized this qualification of an accuseds constitutional right to
    silence in order to guard against surprise alibis [being] fabricated in the
    witness box which the prosecution is almost powerless to challenge
: R. v.
    Cleghorn
, [1995] 3 S.C.R. 175, at para. 4; see also
R. v. Noble
, [1997]
    1 S.C.R. 874, at paras. 111-13;
R. v. Wright
, 2009 ONCA 623, 98 O.R.
    (3d) 665, at paras. 18-20; and
R. v. Hill
(1995), 25 O.R. (3d) 97
    (C.A.), at pp. 477-78.

[2]

At issue in this appeal is whether the trial
    judge erred by drawing an adverse inference when weighing the appellants alibi
    evidence because it was not disclosed on a timely basis and in disbelieving the
    explanation as to why it was not disclosed earlier.

[3]

The appellant was convicted of several offences,
    the most serious of which was shooting a handgun at Mr. Jean Isralon on a
    residential street in Ottawa just after midday on November 18, 2015. The shot
    narrowly missed Mr. Isralon.

[4]

Mr. Isralon had known the appellant for several
    years and identified him as the shooter from a photo line-up later that day.
    That evening the police contacted the appellants first lawyer, who was not
    trial or appeal counsel, to advise that they had grounds to arrest the
    appellant. The appellant immediately turned himself in to the police and remained
    in custody until trial, almost a year later. At no point in this interval did
    the appellant or his lawyer mention to the authorities that he might have an
    alibi.

[5]

Then, on the first day of trial, the appellant
    advised the Crown that he might be relying on an alibi defence. On the second
    day of trial, the appellant provided the Crown with notice of his alibi, his
    brother, who later testified that the appellant had been with him all day and
    therefore could not have been the shooter. The brother explained that he had not
    disclosed this to the authorities sooner because the appellants first lawyer had
    repeatedly told him not to do so.

[6]

The trial judge admitted the alibi evidence but
    gave it no weight, partly because of its late disclosure and partly because he
    found the brothers explanation for the late disclosure to be simply not
    believable. Based on Mr. Isralons evidence, the trial judge convicted the appellant.

[7]

The appellant now appeals his conviction on the basis
    that the trial judge erred on both grounds for giving the alibi evidence no
    weight.

[8]

As I will explain, I see no error in the trial
    judges ruling and would dismiss the appeal. First, the appellants alibi defence
    placed him elsewhere than the scene of the crime, and there was nothing in the
    facts of this case that would have put the Crown on notice of this. The trial
    judge was therefore entitled to draw an adverse inference when weighing the
    alibi evidence because of its late disclosure. Second, the trial judge was
    entitled to rely on his common sense and experience to disbelieve the
    explanation proffered by the appellants brother for not disclosing this alibi evidence
    earlier.

Background Facts

(a)

The prosecutions case

[9]

At trial, Mr. Isralon testified in detail about how
    the appellant shot at him.

[10]

On November 18, 2015, Mr. Isralon arrived at 955
    Debra Avenue, unit 61 in Ottawa at about 11:00 a.m. This was the home of his
    former girlfriend and the mother of his two children.

[11]

When the appellant  whom Mr. Isralon had known
    for several years arrived about 90 minutes later, the two of them argued because
    Mr. Isralon believed that his former girlfriend was working for the appellant
    as a prostitute. The argument escalated into pushing and punching. At one point,
    Mr. Isralon picked up a knife, but he put it down when his former girlfriend told
    him to do so. The appellant then pulled out a handgun holstered in a sock and
    threatened to shoot Mr. Isralon and Mr. Isralons former girlfriend.

[12]

After briefly trying to hide behind his former
    girlfriend, Mr. Isralon ran outside, jumped into his car, and sped away. When
    he saw that the appellant was not chasing him, he turned around to drive home,
    even though this would take him past the house again. Mr. Isralon saw the
    appellant cross the road with another man. When the appellant saw Mr. Isralon, he
    shot at him, hitting his car, penetrating the windshield, and only narrowly
    missing him. Mr. Isralon stopped the car at a restaurant and called the police just
    after 12:30 p.m. The police arrived and interviewed Mr. Isralon.

[13]

Mr. Isralons 911 call was played in court. The
    trial judge found that Mr. Isralons demeanour on the call supports his
    assertion that something serious had just happened. On the call, Mr. Isralon
    gave the police a detailed description of the appellant as the shooter, the
    appellants address, his street name, Shadow (he did not know his real name),
    and the colour of his clothing, all of which turned out to be accurate.

[14]

Later the same day, Mr. Isralon identified the
    appellant as the shooter from a photo line-up. The trial judge noted that
    [t]his is not an instance of a mistaken identity. Isralon well knew the
    accused and had just been in an argument with him at the house. This was not so
    much an identification as a recognition.

[15]

Mr. Isralon was subsequently threatened several
    times by others for reporting the appellant to the police. He complained to the
    police, but the threats continued.

[16]

Fearing for his safety, by February 2016 Mr.
    Isralon provided sworn statements recanting his identification of the appellant
    as the shooter.

[17]

In June 2016, Mr. Isralon attended the
    appellants bail hearing, where the appellants first lawyer gave the police
    Mr. Isralons sworn statement that the appellant was not the shooter. The
    hearing was adjourned to allow the police to investigate, and at that time Mr.
    Isralon explained to the police that he had recanted because of the threats.

[18]

At trial, in September 2016, Mr. Isralon
    returned to his initial story that the appellant was the shooter and explained his
    reason for recanting. As a result, the appellant was also charged with obstructing
    justice by attempting to intimidate Mr. Isralon into recanting his accusation.

(b)

The alibi evidence

[19]

The appellants brother, Mr. William Bushiri,
    testified for the defence. He, along with their mother, was one of the
    appellants two sureties for unrelated charges. The appellant was subject to a
    house-arrest bail, the conditions of which required him to reside with his
    surety at Williams address on Laurier Avenue West, Ottawa, and to remain in
    his residence, except for medical emergencies, to attend in court, meet with
    his lawyer, comply with a court order, or if otherwise with his surety.

[20]

Williams testimony was that, on November 18,
    2015, their mother dropped off the appellant at Williams apartment at about 9:00
    a.m. and they largely remained there together until 8:00 p.m., when the
    appellants lawyer picked him up for him to surrender to the police. Between 11:00
    a.m. and 12:00 p.m. or 12:30 p.m., William and the appellant were watching the
    first half of a soccer game between the Democratic Republic of Congo (the DRC),
    where they were from, and Rwanda at Williams apartment. At 12:00 pm or 12:30
    p.m.  around the time of the shooting, which was at about 12:30 p.m.  William
    and the appellant walked a few blocks to the apartment of another brother, Sylvain
    Bushiri, where they watched the second half of the game, before returning to Williams
    apartment somewhere between 2:30 pm and 3:00 p.m.

[21]

Thus, Williams testimony was that, at the time
    of the shooting, the appellant was with him either walking to or at his brother
    Sylvains apartment, and therefore he could not have been the shooter.

(c)

The trial judges ruling

[22]

The trial judge addressed three points.

[23]

First, the trial judge found that the alibi
    evidence did not raise a reasonable doubt that the appellant shot at Mr.
    Isralon, for the following reasons:

·

The soccer match  a key memory trigger for
    William  was not between the DRC and Rwanda but rather between the DRC and
    Burundi. Williams memory was therefore suspect.

·

Since the day of the shooting, William had made
    no notes of what happened that day, even though he had taken a two-year police
    foundation course where he had learned the importance of keeping notes.

·

While the alibi evidence was admissible, it was
    not entitled to any weight, partly because of its late disclosure and partly
    because Williams explanation for the late disclosure was not credible. The
    alibi defence was not disclosed properly until William testified in court, on
    September 8, 2016  day three of a four-day trial. The written alibi notice,
    given to the Crown on the second day of trial, provided inadequate specifics
    for the police to investigate. The written alibi notice stated: Please be
    advised that Glodi Bushiri has an alibi for the offence alleged to have been
    committed on November 18, 2015. Mr. Bushiri was with his surety William Bushiri
    on the date in question and did not attend at 955 Debra Ave. The trial judge
    noted that, between the arrest on November 18 and the beginning of trial in
    September, there was no hint of an alibi, even though the accused was denied
    bail and in custody throughout that time.

·

Williams explanation for why the alibi evidence
    was not disclosed earlier was simply not believable. William said he repeatedly
    told the appellants first lawyer  including on the night of the arrest and
    leading up to the bail hearing  that he could provide an alibi for the appellant,
    but the lawyer told him not to tell the police because it was not necessary, it
    would not help his brother, and the police would not do anything about it. The
    trial judge found that a defence lawyer knows the importance of timely
    disclosure of alibi evidence and he could not imagine a lawyer giving that
    advice, especially since the appellants first lawyer was very experienced.

[24]

Second, the trial judge found that Mr. Isralons
    evidence proved beyond a reasonable doubt that the appellant was the shooter. Mr.
    Isralon was both believable and compelling and testified in vivid detail. The
    trial judge therefore convicted the appellant of the shooting offences and breach
    of his bail conditions.

[25]

Finally, the trial judge was not satisfied beyond
    a reasonable doubt that the appellant was personally behind the threats to
    dissuade Mr. Isralon from testifying, and therefore acquitted him of obstructing
    justice.

Issues

[26]

The appellant claims that the trial judge erred by
    (1) drawing an adverse inference when weighing the appellants alibi evidence
    because of its late disclosure; and (2) disbelieving his brothers explanation
    for why the alibi evidence was not disclosed earlier.

Analysis

(a)     Did
    the trial judge err in drawing an adverse inference when weighing the
    appellants alibi evidence because of its late disclosure?

[27]

The appellants first ground of appeal is that the
    trial judge erred in law by drawing an adverse inference when weighing the
    appellants alibi evidence due to its late disclosure because, contrary to his
    trial counsels position, no alibi notice was required on the facts of this
    case.

[28]

The appellant says that the alibi notice rule
    must be applied purposively, and that where the rules purpose is not engaged,
    no alibi notice is required. The purpose of an alibi notice is to guard against
    a surprise alibi being fabricated in the witness box, which the prosecution is then
    effectively left powerless to investigate or dispute; but where the Crown could
    not have been surprised by the alibi defence, and thus was already in a
    position to investigate it, no alibi notice is required, and hence no adverse
    inference is permissible when weighing the alibi evidence, even if the alibi is
    not disclosed promptly.

[29]

Applying these principles to this case, the appellant
    says that the Crown could not have been surprised by the appellants alibi
    defence: in addition to the weapons offences, the appellant pleaded not guilty
    to breaching his house-arrest bail conditions, and thus impliedly claimed to
    have been with his surety at the time of the shooting, which was what his alibi
    witness, William, later testified at trial. Thus, no alibi notice was required.
    And because it was always reasonably open to the Crown to investigate the
    alibi, the trial judge erred by drawing an adverse inference when weighing the
    alibi evidence.

[30]

I do not accept the appellants argument.

[31]

The relevant legal principles are not in
    dispute.

[32]

Alibi is Latin for elsewhere. It is settled
    that [w]here an accused advances an alibi defence, he claims that as he was
    elsewhere he could not have committed the crime alleged. The alibi defence
    moves the factual focus from the facts alleged by the Crown to an entirely
    different factual scenario. But for the alibi defence, the factual scenario
    introduced by the alibi has no relevance to the Crowns allegation:
Wright
,
    at para. 19.

[33]

Put another way, [a]libi evidence, by its very
    nature, takes the focus right away from the area of the main facts, and gives the

defence a fresh and untrammelled start.
    It is easy to prepare perjured evidence to support it in advance:
Cleghorn
,
    at para. 22, citing R.N. Gooderson,
Alibi
(London: Heinemann
    Educational Books, 1977), at p. 30;
Wright
, at para. 19.

[34]

Where there is not timely disclosure of an alibi
    defence, the adverse inference when weighing alibi evidence that is permitted, but
    not required, is said to be a rule of expediency, given the risk of
    fabrication and the Crowns inability to effectively challenge alibi defences
    revealed long after the relevant events occurred:
Wright
, at paras.
    19-20. But the adverse inference can be justified only where the rationale for
    that qualification [of the right to silence] actually operates. Thus, if the
    alibi defence is disclosed in time to permit meaningful investigation of the
    defence, there are can be no justification for the [adverse inference]:
Wright,
at para. 20, citing
R. v. Hogan
(1982), 2 C.C.C. (3d) 557 (Ont. C.A.),
    at p. 566, leave to appeal to S.C.C. refused, 51 N.R. 154 (note), and
Cleghorn
,
    at paras. 3-5.

[35]

In this case, it is not disputed that the
    appellant did not make timely disclosure of his alibi defence: he disclosed it only
    on the second day of trial, almost a year after the shooting. At that time, the
    appellants trial counsel advised the court that he had been retained only a
    month before trial and conceded that under normal circumstances of course such
    [an alibi] notice would be filed well in advance.

[36]

The operative question is thus: did the Crown
    require disclosure of the appellants alibi defence sooner, in order to
    effectively investigate and respond to the defence actually advanced? In my view,
    it did.

[37]

The focus of the facts alleged by the Crown was
    that the appellant shot at Mr. Isralon outside 955 Debra Avenue in Ottawa. The
    Crown relied on the appellants presence at the scene of the shooting to
    support both the various weapons charges and the charge of breach of the bail
    conditions.

[38]

By contrast, the appellants alibi defence was
    that he was elsewhere  either walking to or at his brother Sylvains apartment
     and therefore could not have been the shooter. This defence moved the factual
    focus from the facts alleged by the Crown (presence outside 955 Debra Avenue) to
    an entirely different factual scenario (en route to or at Sylvains apartment).
    But for the alibi defence, the factual scenario introduced by the appellants brother
    had no relevance to the Crowns allegation that the appellant was the shooter. In
    sum, the appellants defence was entirely divorced from the main factual
    issues surrounding the
corpus delicti
:
Cleghorn
, at para.
    22;
Wright
, at para. 22.

[39]

Here, nothing in the facts or circumstances of
    the offences alleged, or in the police investigation, would have suggested that
    the appellant might have been with one brother in transit to or at another
    brothers apartment at the time of the shooting. The common-law alibi notice
    rule therefore required the appellant to provide timely disclosure of his alibi
    defence to permit the authorities to investigate it. Because the appellant did
    not do so, the trial judge was entitled to give his alibi evidence less weight.

[40]

The appellant nevertheless asserts in his factum
    that the the
corpus delicti
of this prosecution included not only the
    Appellants
presence
at the scene of the shooting, but also his
absence
from his brothers apartment (emphasis in original). As such, the appellant
    asserts that the Crown could not have been surprised by a defence that sought
    to rebut one of the elements that the Crown set out to prove as part of its
    case.

[41]

I disagree. The Crown was not required to prove
    a negative  the appellants absence from his brothers apartment. It was
    required to prove beyond a reasonable doubt that the appellant was the shooter,
    proof of which would inevitably establish the breach of several of the bail conditions
    beyond a reasonable doubt. This is exactly what the Crown set out to do.

[42]

Moreover, the appellants not-guilty plea to
    breach of his bail conditions did not sufficiently put the Crown on notice of
    his alibi defence, that he was with his brother William either walking to or at
    his brother Sylvains apartment. The appellants bail conditions permitted him
    to be in any number of places, with or without William: at Williams apartment with
    or without William, to be with his other surety (his mother), or to be at any
    number of other locations for medical emergencies, to attend in court, meet
    with his lawyer, or comply with a court order. On the facts of this case, it
    cannot be said that the appellants not-guilty plea put the Crown sufficiently
    on notice of his undisclosed alibi defence.

[43]

Lastly, the cases cited by the appellant, which are
    examples where no alibi notice was required on the facts of those cases, are
    distinguishable.

[44]

In
R. v. Mahoney
(1979), 50 C.C.C. (2d)
    380 (Ont. C.A.), at paras. 18-21, the court found that the police were aware of
    a witness who was crucial for the accuseds alibi defence and had called that
    witness as part of its case at trial. In those circumstances, the court held
    that where the Crowns witness was available to it at such an early moment, the
    Crown had notice of the accuseds alibi defence in sufficient time to allow the
    police to test it. As such, no alibi notice was required. In this case, by
    contrast, the prosecution had no reason to believe that the appellants brothers
    evidence was relevant to the factual scenario advanced by the Crown.

[45]

Similarly, in
Wright
, the accuseds
    defence came from an individual who, on the Crowns own evidence, was directly
    involved in the events leading up to the crime. On those facts, this court held
    that [t]he prosecution did not need advance notice from the defence to
    appreciate that [the individuals] version of events was relevant to its case
    against the [accused]: at para. 23. In any event, the court held that the
    defence was not properly characterized as an alibi defence as it did not
    involve placing the accused elsewhere than the crime, but rather was an
    admission of some involvement in the relevant events coupled with a denial of
    any involvement in the crimes: at para. 22. In this case, by contrast, the
    appellant did rely on a true alibi defence, and the Crown had no prior reason
    to believe the facts relied on for that defence were relevant to the facts advanced
    by the Crown.

[46]

For these reasons, I conclude that it was open
    to the trial judge to draw an adverse inference when weighing the appellants
    alibi evidence.

(b)     Did
    the trial judge err in rejecting the explanation for why the alibi defence was
    not disclosed earlier?

[47]

The appellants second ground of appeal is that
    the trial judge erred in rejecting the explanation proffered by the appellants
    brother, William, for not disclosing the alibi earlier.

[48]

The appellant argues that Williams uncontradicted
    evidence was that the appellants first lawyer repeatedly told William not to
    disclose the alibi evidence to the police. The appellant says that the trial
    judge erred in finding that, in the circumstances of this case, it was simply
    unbelievable that very experienced counsel such as the appellants first
    lawyer would advise William not to tell the police about the alibi and that he
    could not imagine the lawyer giving that advice. The appellant further argues
    that his first lawyer may have been wrong in his advice, as even competent
    counsel can err, and there may have been several legitimate strategic reasons why
    counsel discouraged William from disclosing the alibi evidence to the police.

[49]

I do not accept the appellants argument.

[50]

An appeal court must defer to the credibility
    findings of a trial judge, absent palpable and overriding error. Such deference
    recognizes the special position of the trier of fact on matters of credibility,
    including the advantage enjoyed by the trial judge of seeing and hearing the
    evidence of witnesses. An appeal court cannot intervene simply because it has a
    difference of opinion with the trial judge:
R. v. Gagnon
, 2006 SCC 17,
    [2006] 1 S.C.R. 621, at para. 10;
R. v. W.(R.)
, [1992] 2 S.C.R. 122,
    at p. 131; and
R. v. Canavan
, 2019 ONCA 567, at para. 36.

[51]

Here, it was open to the appellant to try to
    explain why his alibi evidence was not disclosed earlier, but equally it was
    open to the trial judge to reject that explanation. The trial judge was
    entitled
to
disbelieve Williams assertion that the
    appellants first lawyer repeatedly told him not to disclose the alibi evidence
    to the police, and to thereby let his innocent brother languish in custody for
    295 days.

[52]

Nor, in the circumstances of this case, was it
    erroneous for the trial judge to find that it was simply unbelievable that
    very experienced counsel would advise William not to tell the police about
    his alibi and that he could not imagine the lawyer giving that advice. While
    trial judges must be wary of stereotypical reasoning (
R. v. A.B.A.
,
    2019 ONCA 124, 145 O.R. (3d) 634, at paras. 5-7) and of second-guessing
    tactical decisions made by trial counsel (
R. v. Borde
, 2011 ONCA 534, 283
    O.A.C. 181, at para. 21), they are nevertheless entitled to rely on their
    common sense and experience in making credibility findings (
R. v. R.D.S.
,
    [1997] 3 S.C.R. 484, at para. 129).

[53]

Here, the trial judges finding did not involve
    a stereotype. Nor did it involve second-guessing counsels tactical decisions,
    as nothing else in the record suggests that the appellants first lawyer made a
    tactical decision to refrain from disclosing the alibi evidence. To the
    contrary, the record shows that trial counsel thought that an alibi notice was
    required and would have disclosed it to the Crown sooner had he been retained
    earlier. In short, the trial judge relied on his common sense and experience to
    reject what was, on the facts of this case, an inherently implausible explanation
    for the late disclosure of the alibi evidence.

[54]

In these circumstances, the trial judge was
    entitled to disbelieve Williams evidence. I see no basis for this court to
    intervene.

Disposition

[55]

I would dismiss the appeal.

Released: DW OCT 07, 2019

M. Jamal J.A.

I agree. David Watt J.A.

I agree. Grant Huscroft J.A.