CITATION:
Smith Estate v. Rotstein, 2011 ONCA 833

DATE: 20111223

DOCKET: C52105

COURT OF APPEAL FOR ONTARIO

Armstrong, Epstein and Karakatsanis JJ.A.

In the Matter of
          the Estate of Ruth Dorothea Smith, deceased

BETWEEN

Lawrence
          Jerome Berk Smith,

Executor and Estate
          Trustee of the Estate of Ruth Dorothea Smith, deceased

Moving Party (Respondent)

and

Nancy-Gay Rotstein
,
          Marilyn Chapnik Smith, Cynthia Joy Smith,

Ilyse Jan
          Smith, Natalie Jill Smith, Tracey Tremayne-Lloyd Smith

and Claude R.
          Thomson, Trustee of the I. & R. Trust

settled on
          November 7, 1991

Responding Party (
Appellant
)

Earl A. Cherniak, Q.C., and Jasmine Akbarali, for the
          appellant

Richard H. Shekter, and Debra L. Stephens, for the
          respondent

Heard: January 26, 2011

On appeal from the judgment of Justice David M. Brown of the
          Superior Court of Justice, dated April 15, 2010, with reasons reported at 2010
          ONSC 2117, 56 E.T.R. (3d) 216, and the costs order dated July 30, 2010, with
          reasons reported at 2010 ONSC 4487, 59 E.T.R. (3d) 279.

COSTS ENDORSEMENT

Introduction

[1]

This appeal concerned the application of the so-called General Rule of Probate
    Law (General Rule) which is said to require that all testamentary documents
    be proven or probated at the same time.

[2]

In a motion for summary judgment, the motion judge ordered that partial
    probate be issued to the respondent, Lawrence Smith, in respect of his mothers
    will and in respect of the first and second codicils of the will, upon payment
    of the usual fees.  The motion judge also required, as a condition of ordering
    probate, that the respondent file an undertaking to hold back $250,000 from the
    distribution of the estate until such time as a certificate of appointment is
    issued in respect of the third or fourth codicils, or both.

[3]

The appellant, Nancy-Gay Rotstein, the daughter of the testatrix,
    appealed the judgment of the motion judge.  Her primary ground of appeal was a
    claim that the judgment breached the General Rule, which requires that all five
    testamentary documents should have been admitted to probate together.

[4]

The appellant also sought leave to appeal the motion judges order for
    costs in the amount of $737,580.29.

[5]

We dismissed the appeal in respect of the General Rule (the appeal on
    the merits).  However, we granted leave to appeal the motion judges order for
    costs (the costs appeal).  On the costs appeal, we set aside the costs award
    and referred the issue of the quantum of the fees claimed back to the motion
    judge for reassessment.

[6]

This endorsement deals with the costs of both the appeal on the merits
    and the costs appeal.

The Position of the Respondent

[7]

The respondent seeks his costs of the appeal on the merits on a full
    indemnity scale in the amount of $72,420 or on a substantial indemnity scale in
    the amount of $59,537.  He submits that such an award is called for because the
    appeal is a continuation of a reprehensible[,] harassing[,] and meritless
    Will challenge brought by the respondent.

[8]

In the event that the court is not prepared to order costs on a full
    indemnity or substantial indemnity scale, the respondent submits that the court
    consider his offer to settle the issues on appeal, which was outstanding until
    the commencement of argument before this court.  This submission is advanced on
    the basis that the failure of the appellant to beat the offer on the appeal
    triggers the costs consequences of Rule 49.  In the alternative, the respondent
    argues that the court should consider deferring its costs award on the appeal
    until the motion judge conducts his reassessment or that the court make
    alternative costs awards contingent on whether the respondent does better or
    worse than his offer to settle.

[9]

In respect of the costs appeal, the respondent submits that success was
    equally divided so each party should bear his or her own costs.  Specifically,
    the respondent submits that success was equally divided because the appellant
    succeeded on two of her arguments on costs and the respondent succeeded in
    upholding the motion judges decision that costs should be awarded on a full
    indemnity scale.

The Position of the Appellant

[10]

In response, the appellant argues that given the divided success in
    respect of the appeal on the merits and the costs appeal, it is appropriate
    that each party bear its own costs  especially since there was a significant
    dollar value associated with the issue on which the appellant was successful on
    the costs appeal.

[11]

The appellant also submits that the appeal should not be divided into
    two parts  the merits and the costs  as the respondent suggests.  She argues
    that there is, in fact, only one appeal before the court.

[12]

The appellant further argues that, contrary to the respondents
    allegations, her conduct in respect of the appeal cannot be characterized as improper
    in any way.

[13]

The appellant states that Rule 49 does not apply to an offer made
    pending appeal, and even if the court were to take the offer into account, it
    is impossible for the court to determine at this time whether the respondent obtained
    a better result in the appeal than contained in his offer.  The appellant also
    rejects the submission of the respondent that the court consider deferring its
    costs award until the motion judge conducts his reassessment or that the court
    make alternative costs awards contingent on whether the respondent does better
    or worse than his offer to settle.

Analysis

[14]

Whether the proceeding before us constituted one appeal or two separate
    appeals is not determinative of what we have to decide.  That said, we are of
    the opinion that the appeal on the merits and the appeal on the costs are
    separate appeals.

[15]

We reject the respondents submission that this is a case for either
    full indemnity or substantial indemnity costs.  There is no basis for it.  The
    argument advanced on appeal by the appellant was on a narrow question of law.
    The appellant accepted the findings of fact made by the motion judge.  It
    cannot be said, with credibility, that the prosecution of the appeal on the
    merits represented a continuation of what the respondent describes as the reprehensible[,]
    harassing[,] and meritless Will challenge before the motion judge.

[16]

We do not accept the respondents submission concerning the application
    of Rule 49 or Rule 49-like consequences.  Rule 49 does not apply to appeals.
    This court has, on an earlier occasion, said that an offer to settle an appeal
    prior to argument may be taken into account when fixing costs: see
Douglas
    Hamilton Design Inc. v. Mark
(1993), 66 O.A.C. 44.  However, this power of
    the court is exercised only on rare occasions.  It follows from the above that
    we see no merit in deferring our decision on costs until the costs below are
    reassessed.  Similarly, we do not accept the suggestion that we should approve
    two bills of costs contingent on the outcome of the reassessment.

[17]

As to the costs appeal, we do not accept that each party should be
    responsible for its own costs.  Costs of $737,580.29 for a three day summary
    judgment have been set aside.  This represents a significant victory for the
    appellant at this stage.  The fact that the motion judges order for full
    indemnity costs was upheld in favour of the respondent does not suggest that
    there was equal success.  The full indemnity issue was not a major issue in the
    costs appeal.  The issue that occupied, by far, the greater part of counsels
    and the courts time was the respondents bill of costs and the critique of the
    bill by counsel for the appellant.  The appellant succeeded on this issue.

[18]

In our view, the respondent is entitled to his costs of the appeal on
    the merits on a partial indemnity scale.  The appellant is entitled to her costs
    of the costs appeal on a partial indemnity scale.

The Respondents Costs for the
    Appeal on the Merits

[19]

The respondent has provided a bill of costs on a partial indemnity scale
    in the amount of $40,145.  In considering the appropriate quantum, we observe
    that a part of the respondents factum and much of his argument in our court
    was taken up with a review of the facts and, in particular, a review of the
    conduct of the appellant.  None of this was at issue in the appeal.  However,
    we accept that it was necessary that the factual matrix be understood in order
    to dispose of the legal issue.  Nevertheless, some discount of the respondents
    bill is necessary, which is attributable to the excessive attention to the
    facts that were not in issue.  We would therefore apply a discount of $5,000.

[20]

The respondents bill includes a claim for $2,279 for a motion to
    deliver the certificate of appointment of estate trustee with a will.  This
    item is not properly chargeable to the costs of the appeal.  It relates to the
    probate of the will and should be deducted from the respondents bill.

[21]

In the result, we would award the respondent his costs of the appeal on
    a partial indemnity scale fixed at $32,866, inclusive of disbursements and
    applicable taxes.

The Appellants Costs for the
    Costs Appeal

[22]

The appellant filed a partial indemnity bill of costs, which covered
    both the appeal on the merits and the costs appeal.  The total bill is
    $40,357.47.  There is no breakdown of the costs between the two appeals.  The
    respondent suggests an appropriate allocation to the costs appeal would be 25%
    of the docketed hours and 10% of the disbursements on the appellants bill of
    costs, which produces a figure of $9,273.30.  We accept the approach taken by
    counsel for the respondent.  We therefore fix the award of costs to the
    appellant for the costs appeal on a partial indemnity scale in the amount of
    $9,273.30, inclusive of disbursements and applicable taxes.

Disposition

[23]

In the result, the respondent is entitled to set off the $9,273.30
    against the respondents award of $32,866.  The respondent is therefore owed $23,592.70
    by the appellant for its remaining costs of the appeal on the merits.

Armstrong J.A.

G.J. Epstein
    J.A.

Karakatsanis J.A.


CITATION:
Suwary v. Women's College Hospital, 2011
          ONCA 818

DATE: 20111222

DOCKET: C50772

COURT OF APPEAL FOR ONTARIO

Simmons, Armstrong and LaForme JJ.A.

BETWEEN

Robert Gregory Suwary and Kylie Suwary, minors by their
          Litigation Guardian, Kimberly Long-Suwary, Robert Edward Suwary, Katie
          Buchanan and the said Kimberly Long-Suwary, personally

Plaintiffs (Appellants)

and

Women's College Hospital, Clifford Librach,
Sarah
          Ferguson, Sharon Unger
and Laura Lee

Defendants (Respondents)

Paul J. Pape and Shantona Chaudhury for the appellants

Frank McLaughlin, Ken Morris and Sharon Wilmot for the
          respondent Clifford Librach

Michael K. McKelvey and Anna L. Marrison for the respondents
          Women's College Hospital and Laura Lee

Heard: April 26, 27 and 28, 2011

Judgment Released: October 31, 2011

COSTS ENDORSEMENT

[1]

The appellants requested $207,612.83 on account of partial indemnity
    costs of the appeal (exclusive of disbursements) as against Dr. Librach and Dr.
    Librach proposed $101,571.06.

[2]

Although we think even the latter figure is on the high end of what is
    appropriate, given the length of the trial and the issues on appeal and Dr.
    Librach's position on costs, the appellants' partial indemnity costs against
    Dr. Librach are fixed at $100,000 inclusive of applicable taxes plus
    disbursements.

Signed:           Janet Simmons
    J.A.

R. P. Armstrong
    J.A.

H. S.
    LaForme J.A.


CITATION:
Tarion Warranty
          Corporation v. Kozy, 2011 ONCA 795

DATE: 20111216

DOCKET: C53513

COURT OF APPEAL FOR ONTARIO

Rosenberg, MacPherson and Epstein JJ.A.

BETWEEN

Tarion Warranty Corporation

Appellant (Appellant)

and

David L. Kozy

Respondent (Respondent)

David Outerbridge, for the appellant

Martin J. Prost, for the respondent

Heard: September 8, 2011

On appeal from the judgment of Justice Donald Downie of the
          Ontario Court of Justice, dated December 31, 2010, dismissing the appeal from
          the acquittal of the respondent by Justice of the Peace Gerry Solursh of the
          Ontario Court of Justice, dated September 9, 2008, on two charges under
          section 22 of the
Ontario New Home Warranties Plan Act
.

MacPherson J.A.:

A.
INTRODUCTION

[1]

The appellant Tarion Warranty Corporation (Tarion) appeals from the
    decision of Justice Donald Downie of the Ontario Court of Justice dated
    December 13, 2010.  In that decision, Downie J. dismissed an appeal from
    Justice of the Peace Gerry Solurshs acquittal of the respondent David Kozy on
    two charges under the
Ontario New Home Warranties Plan Act
, R.S.O. 1990,
    c. O-31 (
ONHWP Act
).  Both judges based their decisions on a
    conclusion that Mr. Kozy was not a builder within the meaning of the term in
    the
ONHWP Act
.

B.
FACTS

(1)
The parties and
    events

[2]

Tarion is the corporation designated by regulation to administer the
ONHWP
    Act
.  The
ONHWP Act
is consumer protection legislation aimed at
    protecting purchasers of new homes in Ontario.

[3]

In 2006, Joseph and Irena Kobylinski purchased a rural property at 91
    Farlain Lake Road East in the Township of Tiny in Simcoe County.  In August
    2006, they entered into a contract with Mr. Kozy for the construction of a
    house on the property.  The contract provided:

The Contractor agrees to supply all the materials,
    and perform all the work... as described in the contract documents and as set
    out below.  The Work shall be done on the premises... which are owned by the
    Owner....

[4]

Mr. Kozy performed the majority of the construction work for a price of
    $153,594, including GST.  The Kobylinskis paid for several items outside the
    scope of the contract: $6,600 for driveway work and the septic system, $6,254
    for the well and water system connected to the house, and $4,458 for two
    fireplaces.

[5]

Mr. Kozy did not register as a builder under the
ONHWP Act
. The statute
    provides that:

1.         In this Act,

builder means a
    person who undertakes the performance of all the work and supply of all the
    materials necessary to construct a completed home whether for the purpose of
    sale by the person or under a contract with a vendor or owner;

[6]

Because he did not register, Mr. Kozy was charged with two offences
    under s.22(1)(b) of the
ONHWP Act
for violating ss. 6 and 12 of the
Act
,
    which provide:

6.         No
    person shall act as a vendor or a builder unless the person is registered by
    the Registrar under this Act.

12.       A
    builder shall not commence to construct a home until the builder has notified
    the Corporation of the fact, has provided the Corporation with such particulars
    as the Corporation requires and has paid the prescribed fee to the Corporation.

(2)
The trial

[7]

Justice of the Peace Solursh acquitted Mr. Kozy of both charges.  For
    the purpose of this appeal, the parties prepared an Agreed Statement of Facts
    which includes this summary of the Justice of the Peaces decision:

Justice of the Peace Solursh held that Mr. Kozy did
    not fall within the definition of builder or vendor.  He based his decision
    primarily on: (a) the fact that the construction contract was silent on the
    question of who would construct the major structural components of the
    Residence, and (b) what he described as an absence of evidence as to who
    performed this work.

(3)
The appeal

[8]

Justice Downie dismissed Tarions appeal from the Justice of the Peaces
    acquittal of Mr. Kozy.  In the Agreed Statement of Facts, the parties record
    this description of Downie J.s decision:

The issues of statutory interpretation were the
    same on appeal as they were at trial.  Also at issue on appeal was whether the
    decision of the Justice of the Peace at trial was unreasonable in light of the
    evidence.

The appeal judge held that the Justice of the Peace
    at trial had misapprehended the evidence regarding the role played by Mr. Kozy
    in building the Residence.  Downie J. stated at paragraph 20 of his Reasons for
    Judgment:

It is clear that the
    learned Justice of the Peace was in error when he stated on page six of his
    judgment There was no evidence before the court as to who performed these services,
    and at what cost, while he was referring to major structural components of the
    building such as footings, foundation, framing, plumbing and rough-in
    electrical.  There was evidence before the court by Mr. Kozy and Mr. Kobylinski
    that it was in fact Mr. Kozy who performed most of these services....  It is
    clear from the evidence... that Mr. Kozys workers did in fact do the majority
    of the work.  It is only the work that was evidenced in Exhibit #21 where Mr.
    Kobylinski acted as contractor and hired outside persons, other than Mr. Kozy,
    to do the work.  It is clear that Mr. Kozy was not doing the well drilling, the
    connection of the well to the house, the septic system and the connection of
    the septic system to the house, as well as certain fireplace work that was
    contracted out.

The appeal judge went on to consider whether Mr.
    Kozy qualified as a builder and vendor for purposes of the
ONHWP Act
,
    in light of the roles played by Mr. Kozy and by the Kobylinskis.

The appeal judge held that:

(a)       the addition of fireplaces by the
    Kobylinskis would not take the construction by David Kozy out of the definition
    of builder; and

(b)       the Kobylinskis involvement in
    arranging and paying for the well and septic system did take the construction
    by David Kozy out of the definition of builder.

(4)
Leave to appeal

[9]

By order dated March 24, 2011, Winkler C.J.O. granted Tarions
    application for leave to appeal pursuant to s. 131 of the
Provincial
    Offences Act
, R.S.O. 1990, c. P33.  In his endorsement supporting the order,
    the Chief Justice said, at para. 5:

The interpretation of the definition of builder
    is a question of law.  As to whether it is essential in the public interest,
    the issue of the definition of builder is central to the entire statute.
    This is consumer protection legislation which affects any potential new home
    buyer in Ontario.

C.
ISSUE

[10]

The sole issue on the appeal is whether the appeal judge erred in his
    interpretation of the term builder as used in the
ONHWP Act
.

D.
ANALYSIS

[11]

The appeal judge noted that the definition of builder in the
ONHWP
    Act
is a person who undertakes the performance of all the work and supply
    of all the materials necessary to construct a completed home.  He concluded
    that the addition of fireplaces by the owners did not remove Mr. Kozy as the
    builder.  However, he reached the opposite result with respect to the owners
    separate arrangements for the installation of septic and well systems.  The
    core of his reasoning is contained in this passage:

The question in this case is, did Mr. Kozy and his
    workers do all of the work necessary to build a completed home.  In the view of
    the court they did not.  They did not do the septic system and they did not do
    the well.  There is no way a home could be described as a completed home that
    did not have an operational toilet and sewer system, whether connected to a
    municipal system or to a septic system and there is no way a home could be
    considered a completed home if it did not have a water system.  The Kobylinskis
    as owners arranged and paid for the installation of these systems.  Therefore,
    to this court it seems that Mr. Kozy is not a builder as defined in the Act,
    even as that term has been expanded by some of the case law.

[12]

With respect, I am not persuaded by this analysis.  In my view, the
    purpose of the
ONHWP Act
, the leading cases interpreting the term
    builder, and the facts of this case suggest that Mr. Kozy is a builder
    within the meaning of the
Act
.

(1)
The purpose of the
ONHWP Act

[13]

Justice MacFarland of this court recently had occasion to consider the
    purpose of the
Act
and, specifically, the implication  of that purpose
    for the interpretation of the term builder in
Tarion Warranty Corporation
    v. Boros
, 2011 ONCA 374, at paras. 20-22:

I begin with the observation of this court in
Ontario
    New Home Warranty Program v. Lukenda
. (1991), 2 O.R. (3d) 675 (Ont. C.A.),
    at p. 676;

The major purpose of the
Plan Act
is to
    protect purchasers of new homes by requiring that vendors and builders be
    screened for financial responsibility, integrity and technical competence. To
    assure public protection, it provides warranties, a guarantee bond and
    compensation in the event of loss by a purchaser resulting from dealings with a
    registrant.  In order to effect this purpose of the
Plan Act
, a
    broad and liberal interpretation of its provisions is appropriate.

This court further observed in
Mandos v. Ontario
    New Home Warranty Program
(1995), 86 O.A.C. 382 (Ont. C.A.), at p. 383:
    The
Ontario New Home Warranties Plan Act
,
R.S.O. 1990, c. O-13 is remedial legislation
    and should be given a fair and liberal interpretation.

The central issue in this case is whether the
    respondent meets the definition of builder as it is defined in the
ONHWP
    Act
.  It would appear that this question has not arisen in this court
    before. However, as outlined above, the prior jurisprudence of this court with
    respect to the
ONHWP Act
requires that a broad and liberal approach be
    taken to interpreting the meaning of the term builder in order to reflect the
    remedial purpose of the Act.

[14]

This approach requires an interpretation of builder that would cover
    persons who build a home but leave some work to be performed by the owner.
    Courts have recognized that the
Act
contemplates that owners will often
    perform some work relating to a construction project: see, for example,
Ontario
    New Home Warranty Plan v. McPhail
, [1997] O.J. No. 4570, at para. 21 (C.J.),
    MacDonnell Prov. J. (discussing s. 13(2)(a) of the
ONHWP Act
, which
    provides that ONHWP warranties do not cover work supplied by the owner).  Given
    the purpose of the
Act
, it is important not to deny such owners New Home
    Warranty Program coverage.  To hold that a contractor who leaves some work to a
    homeowner is not a builder would therefore be inconsistent with the statutory
    scheme.

(2)
The leading cases

[15]

In several cases involving interpretation of the
ONHWP Act
,
    courts have articulated tests delineating when a person falls within the term
    builder.

[16]

In
JRC Developments Inc. v. Tarion Warranty Corp.
, 2010 ONSC
    6205, [2010] O.J. No. 5089, at para. 4 (Div. Ct.), Molloy J. said that whether
    a contractor is a builder involves consideration of who was responsible for
    completing the essential elements of the home and who had control over the construction
    of the home.

[17]

In
R. v. Segal
, 2006 ONCJ 80, [2006] O.J. No. 1034, at para. 54
    (C.J.), Reinhardt J. said:

In order to rationalize section 13(2)(a), which
    contemplates that an owner may provide some work or materials to the
    construction of the new home, with the definition of a builder, which refers
    to the provision of all work and materials,
the definition of a builder
    has been interpreted as meaning the provision of a significant portion of
    construction
.  A home is not taken outside of the purview of the
Act
only because the owner was responsible for some work or materials.  [Emphasis
    added.]

[18]

Applying these tests, a long line of decisions in the courts and before
    the Ontario Licence Appeal Tribunal and the Ontario Commercial Registration Appeal
    tribunal have held that the fact that an owner is responsible for the
    installation of water and septic systems does not mean that a contractor is not
    a builder under the
ONHWP Act
: see, for example,
Ontario
    (5319-ONHWPA-Claim), (Re)
[2009] O.L.A.T.D. No. 363, affd
JRC
    Developments Inc. v. Tarion Warranty Corp.
,
supra
;
R. v.
    Boissonneault
(14 July 2004), North Bay, unreported (C.J.);
Lam (Re)
,
    [1997] O.C.R.A.T.D. No. 92;
Ontario (2947-ONHWPA-Claim)(Re)
, [2006]
    O.L.A.T.D. No. 54; and
Staples (Re)
, [2006] O.L.A.T.D. No. 175.

[19]

The appeal judge was aware of this case law.  He said that [t]he
    existing cases have purported to try and get around the definition of
    builder and changed the definition from the one in the statute.

[20]

With respect, I do not agree.  The interpretation of the definition of
    builder in cases like
McPhail
,
JRC Developments Inc.
,
Segal
and
Boissonneault
is, in my view, consistent with the consumer
    protection purpose of the
ONHWP Act
, the wording of the definition of
    the word builder, and a contextual reading of the definition with other
    provisions of the
Act
, such as s. 13(2)(a).

(2)
Application to
    this case

[21]

Finally, once the proper definition of builder is set down, its
    application in this case is easy.  Mr. Kozy did almost all of the construction
    work on the new Kobylinski home.  The contract listed 12 separate categories of
    exterior work and about 20 separate categories of interior work to be performed
    by Mr. Kozy.  Mr. Kozy was responsible for constructing virtually the entire
    home. The only work outside Mr. Kozys responsibility related to the water and
    septic systems and two fireplaces.  The work done by Mr. Kozy cost $153,594.
    The water and septic system work cost $12,854.  By either yardstick, Mr. Kozy
    was the builder.  The owners subsidiary participation in the construction
    project did not negate warranty coverage for them; nor did it remove the duty
    on Mr. Kozy to comply with the
ONHWP Act
.

E.
DISPOSITION

[22]

I would allow the appeal and order a new trial on both charges.  I would
    not award costs.

RELEASED:  December 16, 2011 (M.R.)

J.C. MacPherson J.A.

I agree M. Rosenberg J.A.

I agree G.J. Epstein J.A.


CITATION:
Toronto-Dominion Bank v. Di Iorio, 2011 ONCA
          792

DATE: 20111214

DOCKET: C53894

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Epstein JJ.A.

BETWEEN

The Toronto-Dominion Bank

Plaintiff (Respondent)

and

Elio David Di Iorio and Sandra Kathleen Di Iorio, also
          known as Sandra Kathleen Cunningham

Defendants (Appellants)

Elio Di Iorio and Sandra Di Iorio, appellants appearing in
          person

Philip Polster, for the respondent

Heard:
December 12, 2011

On appeal from the order of Justice David Price of the
          Superior Court of Justice dated June 2, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The appellants appeal from the summary judgment granted by Price J. of
    the Superior Court of Justice on June 2, 2011.  The judgment was in favour of
    the respondent T-D Bank in two amounts, $156,603.46 and $22,178.78, relating to
    mortgage, line of credit, and credit card debts owed by the appellants.

[2]

The appellants contend that the motion judge erred by not accepting that
    the documents they submitted to the respondent, namely, so-called
    Bill-Consumer Purchases were legal tender for their debts.

[3]

We disagree.  The appellants documents have no commercial value
    whatsoever.  Accordingly, the appellants debts to T-D Bank remain unpaid.

[4]

The appeal is dismissed.  The respondent is entitled to its costs of the
    appeal fixed at $3000 inclusive of disbursements and HST.


CITATION: United
          States of America v. Beltran, 2011
          ONCA 775

DATE: 20111208

DOCKET: M40477 (C53106 & C53906)

COURT OF APPEAL FOR
          ONTARIO

Sharpe J.A. (In Chambers)

BETWEEN

The Attorney
          General of Canada on behalf of the United States of America

Respondents

and

Francisco Javier Beltran

Applicant

Michael H. Gordner, for the applicant

Moiz Rahman, for the respondents

Heard: December 02, 2011

Sharpe J.A.:

[1]

The applicant seeks an order
    pursuant to s. 684 of the
Criminal Code
for the appointment of counsel
    to argue his appeal from committal for extradition and his application for
    judicial review of the surrender order made by the Minister of Justice (the
    Minister).
[2]

The United States of America seeks
    the applicants extradition for prosecution in Texas on charges of fraud and
    aggravated identity theft. The applicant was committed by the extradition judge
    on a charge of fraud and the Minister has ordered his surrender for trial on
    both charges specified in the extradition request. The applicant filed an
    inmate notice of appeal from committal as well as an in-person application for
    judicial review of the surrender order. He has been denied a legal aid
    certificate on the grounds that his case has insufficient merit. The applicant
    appears to have no assets to retain counsel, although he has had the assistance
    of counsel at the committal hearing, in making submissions to the Minister and in
    making this application.
2.

Jurisdiction
[3]

As directed by the order of Cronk
    J.A., October 21, 2011, counsel made submissions as to the jurisdiction of this
    court to make a s. 684 order in the circumstances of this case.
[4]

It is common ground that a single
    judge of this court has jurisdiction to appoint counsel for an appeal from a
    committal order. Although, the Attorney General concedes that a panel of this
    court has jurisdiction to appoint counsel to argue judicial review of the
    Ministers order, the contentious issue is whether a single judge of this court
    also has jurisdiction to appoint counsel for a judicial review.
[5]

Section 684 provides:
A court of appeal or a judge
    of that court may, at any time, assign counsel to act on behalf of an accused
    who is a party to an appeal or to proceedings preliminary or incidental to an
    appeal where, in the opinion of the court or judge, it appears desirable in the
    interests of justice that the accused should have legal assistance and where it
    appears that the accused has not sufficient means to obtain that assistance.
[6]

The
Extradition Act
, S.C.
    1999, c. 18, s. 52, expressly incorporates s. 684 of the
Criminal Code
in relation to appeals under this Act. An application for judicial review
    from the Ministers surrender order pursuant to s. 57 of the
Extradition Act
is a proceeding distinct from an appeal from the committal order pursuant to s.
    49. There is no provision comparable to s. 52 that expressly incorporates s.
    684 in relation to applications for judicial review.
[7]

The question, therefore, becomes:
    does that leave me without jurisdiction to appoint counsel to assist an
    applicant for judicial review?
[8]

The Attorney General submits that
    absent express statutory authority, the only possible source of jurisdiction to
    appoint counsel in relation to the judicial review application is this courts
    ancillary jurisdiction to make orders to control its own process.
R. v. Russel,
2011 ONCA 303, 270 C.C.C. (3d) 256, at paras. 40-43 holds that a statutory
    trial court has the authority to appoint
amicus
where such an order is
    necessary for the court to properly exercise the jurisdiction conferred by statute.
    The Attorney General concedes that it therefore must follow that this court
    also has that jurisdiction. However, the Attorney General further submits that
    as the power is that of the court, it must be exercised by a panel of three
    judges and that a single judge sitting in chambers has no such authority:
R.
    v. Church of Scientology of Toronto
(1986), 25 C.C.C. (3d) 149 (Ont. C.A.).
[9]

That analysis allows this court to
    appoint counsel where necessary, but requires the additional time-consuming
    step of an application to a three judge panel, rather than allowing the matter
    to proceed more efficiently and expeditiously before a single judge in
    chambers.
[10]

The case law is inconclusive as to
    the jurisdiction of a single judge. In
United States of America v. Peay,
[1996] O.J. No. 1688 (Ont. C.A. [In Chambers]), Moldaver J.A. assumed, without
    deciding, that he had jurisdiction to appoint counsel in a case like the
    present, but declined to do so. Other cases have considered the merits of
    appointing of counsel for an application for judicial review without raising or
    dealing with the jurisdictional issue: see
United States of America v.
    Wilson,
2011 BCCA 96, B.C.W.L.D. 2601 [In Chambers]; affd 2011 BCCA 164,
    B.C.W.L.D. 3640;
United States of America v. OBrien,
[2009] B.C.J. No.
    966 (B.C.C.A. [In Chambers])
[11]

In my view, the answer is found in
    s. 57(9):
If an appeal under section 49 or any other appeal
    in respect of a matter arising under this Act is pending, the court of appeal
    may join the hearing of that appeal with the hearing of an application for
    judicial review.
Here, the hearing of the application
    for judicial review has been joined with the hearing of the s. 49 appeal. I see
    no reason why I should not regard the two proceedings as joined for the
    purposes of the preliminary and incidental procedural issue of appointment of
    counsel pursuant to s. 684. I note that s. 684 allows for the appointment of
    counsel in relation to proceedings preliminary or incidental to an appeal.
[12]

This interpretation is consistent
    with the language of the
Extradition Act
read as a whole. Moreover, it
    achieves the practical and efficient result of allowing these applications to
    be dealt with by a single chambers judge.
[13]

Accordingly, I find that I do have
    jurisdiction to appoint counsel for the purposes of all aspects of the joined
    appeal and judicial review proceeding before this court.
2. Should counsel be appointed pursuant to s
    684?
[14]

There does not appear to be any
    issue that the applicant lacks the means to obtain legal assistance and the
    issue is whether it is in the interests of justice that counsel be appointed to
    argue his appeal and application for judicial review.
R. v. Bernardo
(1997), 121 C.C.C. (3d) 123 (Ont. C.A.) at paras.
20-21, directs an inquiry whether the applicant
    requires the assistance of counsel to be afforded a meaningful opportunity to
    establish the merits of the grounds advanced.  That question falls to be
    assessed on the basis of two closely related principles:
First, counsel must be appointed where an accused
    cannot effectively present his or her appeal without the help of a lawyer.
    Second, counsel must be appointed where the court cannot properly decide the
    appeal without the assistance of counsel. In most situations, both or neither
    principle will operate to require the appointment of counsel. Sometimes,
    however, one or the other, standing alone, will justify the appointment of a
    lawyer for the appellant.
[15]

The first step in assessing a s.
    684 application is to inquire into the merits of the appeal. This inquiry is limited
    to asking whether the appeal is arguable. In my view, for  the applicant, this
    will be a difficult appeal and application for judicial review.
[16]

Given the low threshold for
    committal and the carefully considered reasons of the committal judge, the
    appellant faces a decidedly uphill battle in contending that the committal
    judge erred in finding that the evidence warranted committal for fraud.
[17]

The application for judicial
    review will also face substantial challenges. In making the surrender order,
    the Minister considered and rejected the contention that to surrender the
    appellant would be unjust, oppressive and contrary to s. 7 of the
Charter
on the following bases:
·

the
    impact of false allegations made in support of the extradition arrest warrant application;
·

prejudicial
    effect of the Canadian criminal investigations on the extradition proceedings
    and the United States prosecution;
·

the
    evidence of duress and restricted application of the law of duress in the
    United States;
·

the
    misleading allegations in the record of the case regarding the nature of the
    fraud in the amount of the loss; and
·

the
    unduly harsh penalty sought by the United States authorities.
[18]

The Minister considered these
    submissions individually and collectively and concluded that it would not be
    unjust or oppressive to surrender the applicant. While there were false
    allegations made in support of the extradition warrant, those allegations were
    withdrawn and not relied upon at the extradition hearing. The Minister
    explained why the Canadian criminal investigation had no impact on, and caused
    no prejudice with respect to, the extradition proceedings. The Minister also
    explained that matters of defence were for trial in the requesting state and
    that differences in substantive law do not constitute a reason to refuse
    surrender. The nature of the fraud in the amount of the loss were, according to
    the Minister, matters for the extradition judge in assessing the sufficiency of
    the evidence warranted committal, not matters for the Minister. The fact that a
    person sought for extradition faces a harsher sentence in the requesting state
    does not automatically make surrender unfair or oppressive.
[19]

The applicant also contends that
    it was not open to the Minister to surrender the applicant on the aggravated
    identity theft charge that was not dealt with by the committal judge. To
    succeed on that argument, the applicant will have to distinguish both
Canada
    (Minister of Justice) v. Fischbacher
, 2009 SCC 46, 3 S.C.R. 170, and
United
    States of America v. Barbu
2010 ONCA 891,  265 C.C.C. (3d) 244, leave to
    appeal refused
[2011] S.C.C.A. No. 66
.
    I fail to see how he will be able to do so.
[20]

I conclude that there is little
    hope of success on the appeal and application for judicial review.
[21]

Even if the applicant satisfies
    the minimal arguable threshold test on the merits, I am not persuaded that he
    satisfies the second step, set out in
Bernardo
, at para. 21:
can the appellant effectively advance his grounds
    of appeal without the assistance of counsel? This inquiry looks to the
    complexities of the arguments to be advanced and the appellants ability to
    make an oral argument in support of the grounds of appeal. The complexity of
    the argument is a product of the grounds of appeal, the length and content of
    the record on appeal, the legal principles engaged, and the application of
    those principles to the facts of the case. An appellants ability to make
    arguments in support of his or her grounds of appeal turns on a number of
    factors, including the appellants ability to understand the written word,
    comprehend the applicable legal principles, relate those principles to the
    facts of the case, and articulate the end product of that process before the
    court.
[22]

While extradition proceedings in
    this court involve a level of complexity that a lay person would find difficult
    to navigate, this appeal will be heard as an inmate appeal where the appellant
    will have the assistance of duty counsel. Counsel for the applicant outlined
    for me the arguments to be advanced on the appeal from the committal order and
    on the application for judicial review. The panel hearing the appeal will have
    the benefit of the applicants written submissions to the Minister of Justice
    which set out, in some detail, the applicants position. This is not a case,
    like
Bernardo
, involving a voluminous record yet to be compiled. Nor
    does it involve legal issues that will be unfamiliar to either the panel
    hearing the appeal or to duty counsel. In my view, particularly with the added
    benefit of duty counsel, this case falls into the same category as
United
    States v. Peay
where Moldaver observed, at para. 3,
I am confident that if the panel hearing the appeal
    and the application for judicial review is provided with this material, as well
    as the additional material in the appeal book, the applicant should have little
    difficulty presenting his own case with full assurance that the court will have
    a firm grasp of the issues raised and the arguments for and against.
[23]

The appellant has not persuaded me
    that it is in the interests of justice to appoint counsel pursuant to s. 684.
[24]

Finally, I note that where a
    single judge refuses as s. 684 application, it remains open to a panel to
    consider the matter afresh: see
Bernardo
at para. 12. Accordingly,
    should the panel conclude, for reasons not apparent to me on this application,
    that more than duty counsel assistance is required to satisfy the interest of
    justice in this case, it will be open to the panel to entertain a renewed s.
    684 application.
Disposition
[25]

Accordingly, the application for
    the appointment of counsel pursuant to s. 684 is dismissed.
Robert
    J. Sharpe J.A.
RELEASED: December 08, 2011


CITATION:
United States of America v. Dumitrescu, 2011
          ONCA 802

DATE: 20111216

DOCKET: C53418

COURT OF APPEAL FOR ONTARIO

Simmons, Blair and Hoy JJ.A.

BETWEEN

The Attorney General of Canada on behalf of the United
          States of America

Respondent

and

Ioan Dumitrescu (a.k.a. Dan)

Appellant

Demetrius Kotsakis, for the appellant

Moiz Rahman, for the respondent

Heard and endorsed: December 14, 2011

On appeal against a committal order made by Justice Gary
          Tranmer of the Superior court of Justice dated February 11, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The appellant was committed for extradition to
    the United States to stand trial on a charge the Canadian equivalent of which
    is conspiracy to traffic in cocaine. He raises two issues on his appeal from
    the committal order.

[2]

First, the appellant claims that the evidence
    presented at the extradition hearing was insufficient to support a committal
    because it failed to rise beyond the level of demonstrating an attempt to enter
    into a conspiracy. Put another way, the evidence was insufficient to
    demonstrate the necessary agreement and intention to support a finding of
    conspiracy.

[3]

We reject this submission. On our review, of the
    record of the case, the evidence presented was capable of supporting the
    following findings:

The appellant had been
    in contact with a man named Hernandez in Los Angeles.

·

Hernandez
      operated a stash house as part of a larger drug trafficking organization.

·

The
      appellant spoke to Hernandez on May 23 and May 26, 2006. He discussed
      travelling to California on his "regular schedule" to meet with
      Hernandez to pick up cocaine. The two men also discussed picking up additional
      cocaine and splitting the Canadian sale proceeds of that cocaine between
      themselves.

·

A
      confidential source had multiple dealings with the appellant to arrange for the
      transport of cocaine from the United States to Canada. The source was able to
      identify the appellant's voice on wiretapped conversations with Hernandez.

·

The
      appellant was arrested in Windsor on September 14, 2006 for importing 15
      kilograms of cocaine. When arrested, he was in possession of the cell phone
      used to receive telephone calls from Hernandez. Hernandez
      was in jail at the time of the appellant's arrest.

[4]

In our view, at a minimum, the foregoing
    findings are capable of supporting an inference that the appellant and
    Hernandez had an ongoing agreement that the appellant would pick up cocaine
    from Hernandez in the United States and transport the cocaine to Canada for
    distribution in this country and that they intended to carry out that
    agreement.

[5]

The second issue raised by the appellant is that
    the extradition judge improperly relied on expert evidence that there was an
    agreement between the appellant and Hernandez in order to find an agreement. We
    do not accept this submission. On our reading of the expert evidence, she did
    not testify that there was an agreement. In essence, the extradition judge
    found that her evidence interpreting the code meaning of the wiretapped
    conversations was capable of supporting a finding of an agreement.

[6]

The appeal is therefore dismissed.


CITATION:
United States of America v. Thamby, 2011 ONCA
          829

DATE: 20111222

DOCKET: C54224

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Epstein JJ.A.

BETWEEN

The Minister
          of Justice and Attorney General of Canada

on behalf of
          The United States of America

Respondent

and

Ragavan Thamby

Applicant

Alan D. Gold, for the applicant

Richard Kramer, for the respondent

Heard and released orally:
December 16, 2011

On application for judicial review, pursuant to s. 57 of the
Extradition
          Act
, S.C. 1999, c. 18, of the decision dated August 17, 2011 of the
          Honourable Robert Nicholson, Minister of Justice and Attorney General of
          Canada.

ENDORSEMENT

[1]

The applicant Ragavan Thamby applies for judicial review of the decision
    of the Minister of Justice dated August 17, 2011 ordering the surrender of the
    applicant to the United Sates to face serious fraud charges.

[2]

The extradition judge ordered the applicants committal order for
    extradition on May 20, 2010.  The Minister of Justice ordered the applicants
    surrender on October 15, 2010.

[3]

The applicant appealed the committal order and sought judicial review of
    the surrender order.  In a decision dated April 29, 2011, this court upheld the
    decision of the extradition judge.  However, with respect to the surrender
    decision, the court determined that the Minister of Justice had failed to
    consider the unusual facts of this case (the almost completed guilty plea by
    the applicant to the Canadian fraud charges) and had not sufficiently
    considered the so-called
Cotroni
factors in assessing the applicants s.
    6
Charter
submission.  The court allowed the application for judicial
    review and remitted the matter to the Minister of Justice for reconsideration.

[4]

The applicant made additional submissions to the Minister.  In a letter
    dated August 17, 2011, the Minister informed the applicants counsel that I
    have concluded that Mr. Thambys surrender to the United States is still
    warranted on the offences for which his extradition is sought.

[5]

The applicant submits that the Ministers decision is unreasonable and
    based upon errors in law.  His principal submission is that the Ministers
Cotroni
assessment is still flawed because the Minister failed to recognize and
    properly weigh the fact that carelessness of court staff prevented the
    prosecution from arriving at a final conclusion.  As Mr. Gold put it, the
    Minister allowed clerical carelessness to trump the applicants s. 6
Charter
right to remain in Canada.  He says that the Minister has authority,
    independent of any exercise of prosecutorial discretion by the Attorney General
    of Ontario, to request charges be relaid or to prosecute any
Criminal Code
charge, and that this is what the Minister should do in this case.

[6]

We are not persuaded by this submission.  In his supplemental reasons,
    the Minister engaged in a proper
Cotroni
analysis.  He considered the
    unusual factual history of this case, noting that the applicant would have
    pleaded guilty to the Canadian charges before the United States requested his
    extradition.  He observed that the decision of the provincial Crown to stay the
    Canadian charges on the eve of resolution because of the extradition request
    was entirely proper, as found by both the extradition judge and this court.

[7]

The Minister then reviewed the factors relating to the American charges,
    emphasizing the extent of the alleged fraud, the number of victims, and the
    fact that those victims were elderly residents of the United States.  He
    concluded:

Accordingly, I am of the view that the United
    States has a significantly greater interest in prosecuting this case and that
    it is in the interests of justice that Mr. Thamby face prosecution in the
    jurisdiction in which he is alleged to have targeted vulnerable persons who
    cannot easily travel to Canada to testify.

[8]

In our view, the Minister made no legal error in his analysis.  Nor is
    his decision unreasonable.  In his supplementary reasons, the Minister has
    properly addressed the concerns expressed by this court in its April 29, 2011
    decision.

[9]

The application for judicial review is dismissed.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G.J. Epstein J.A.


CITATION:
Vair v. Ramsammy, 2011 ONCA 788

DATE: 20111214

DOCKET: C54048

COURT OF APPEAL FOR ONTARIO

Cronk, Lang and Watt JJ.A.

BETWEEN

Violet Vair

Plaintiff/Appellant

and

Elizabeth
          Ramsammy, Heather Bryan

and Coseco
          Insurance Company

Defendants/Respondents

Jane Poproski, for the appellant

Bruce Keay, for the respondents

Heard and released orally:
December 8, 2011

On appeal from the order of Justice
          A.C.R. Whitten of the Superior Court of Justice, dated October 13, 2010.

ENDORSEMENT

[1]

The appellant, Violet Vair, at her own initiative, settled all her
    claims against the respondent insurance company in January 2003.  As a
    condition of that settlement, she provided a form of final release in favour of
    the insurer.

[2]

Thereafter, in an action commenced in 2004, she sought to set aside the
    release and the settlement on the basis of alleged improprieties and bad faith
    by the insurer.  Her counsel later agreed to the dismissal of that action and
    the dismissal was confirmed by consent court order dated October 17, 2007.

[3]

Almost two years later, on May 14, 2009, the appellant, through the same
    counsel who acted for her in respect of the 2004 action, commenced a second
    action against her insurer and others in which she sought damages for the
    alleged tort of conspiracy to cause economic harm, among other relief.  The
    underlying facts advanced in support of this claim were essentially the same as
    those pleaded in the appellants 2004 action, with the exception of the bald
    assertion of the requisite elements of a conspiracy.

[4]

Also in her 2009 pleading, the appellant admitted that she discovered the
    alleged conspiracy on May 13, 2003 and pleaded that a six-year limitation
    period for her conspiracy claim ran from that date.  This pleading was never
    amended to withdraw or modify this admission.

[5]

Thus, by the time that the appellants 2009 action was commenced on May
    14, 2009, by the appellants own admission in her pleading, the six-year
    limitation period had expired.

[6]

Perhaps more importantly, in response to the respondents summary
    judgment motion, the appellant led no evidence to support her conspiracy
    claim.  Simply stated, on the record before the motion judge, there was no
    evidentiary foundation for a genuine issue requiring trial on the conspiracy
    allegation.

[7]

In these circumstances, even assuming that it was open to the appellant
    to raise the conspiracy allegation in 2009 for the first time, the motion judge
    did not err by granting the respondents summary judgment motion.

[8]

The respondents are entitled to their costs of the appeal, if sought
    having regard to the appellants circumstances, fixed in the amount of $2,000,
    inclusive of disbursements and all applicable taxes.

E.A. Cronk J.A.

S.E. Lang J.A.

David Watt J.A.


CITATION:
Wenze v. De Paoli, 2011 ONCA 773

DATE: 20111208

DOCKET: C51578

COURT OF APPEAL FOR ONTARIO

Doherty and Armstrong JJ.A. and Hoy J. (
ad hoc
)

BETWEEN

Amanda Wenze

Appellant

and

Dean Louis De Paoli

Respondent

Shawn M. Philbert, for the appellant

James S.G. Macdonald, for the respondent

Heard and released orally:
November 30, 2011

On appeal from the judgment of
          Justice Gisele M. Miller of the Superior Court of Justice, dated December 30,
          2009.

ENDORSEMENT

[1]

The appellant, Amanda Wenze, and the respondent, Dean Louis De Paoli,
    are the parents of Emerson De Paoli who was born on April 29, 2007.  At the
    time of the trial in November 2009, the child was 2-1/2 years old.

[2]

The appellant and respondent never married.  They lived together from May
    2007 to October 2007.

[3]

The trial judge awarded sole custody of the child and sole
    decision-making for the child to Mr. De Paoli.  Mr. De Paoli is to consult Ms.
    Wenze concerning major decisions involving the health and schooling of the
    child.  The trial judge also ordered that each parent is to have equal time
    with the child.  The trial judge provided a detailed and elaborate access
    order.

[4]

The trial judge also made orders in respect of the financial
    arrangements between the parties concerning child and spousal support.  In
    doing so, she credited Mr. De Paoli with certain expenses paid by him related
    to the home occupied by Ms. Wenze and the child for over two years.

[5]

Ms. Wenze has appealed all aspects of the trial judgment although her
    counsel confined his argument to the issues of sole custody and what he referred
    to as occupation rent.  In support of her appeal, Ms. Wenze has made an
    application to admit fresh evidence consisting of her affidavit in respect of
    Mr. De Paolis exercise of his custodial responsibility.

[6]

We dismiss the application to admit fresh evidence as it does not
    satisfy the criteria for its admission.  The proposed fresh evidence does not
    support the contention that the custody and access order is not workable.

[7]

As to the merits of the appeal, we cannot find any error made by the
    trial judge.  There was ample evidence to support the conclusion that Mr. De
    Paoli should be granted sole custody of the child.  There was also evidence to
    support the other orders the trial judge made.

[8]

In respect of the argument of counsel concerning occupation rent we
    observe first, that the trial judge did not characterize the order as one for
    occupation rent.  Second, the credit she gave to Mr. De Paoli for the household
    expenses was fully justified on the record: see paragraphs 97 to 102 of the
    trial judges reasons.

[9]

This was a fact driven case.  The appellant seeks to retry the case in
    this court, which she is not permitted to do.  The appeal is therefore
    dismissed.

[10]

In respect of the costs award at trial, we see no basis to interfere and
    we therefore decline to grant leave to appeal.  In respect of the costs of the
    appeal, the respondent is entitled to his costs of the appeal on a partial
    indemnity scale fixed at $5,000 inclusive of disbursements and applicable
    taxes.

Doherty J.A.

Armstrong J.A.

Alexandra Hoy
ad hoc


Citation:

Archibald
          v. Archibald

Date:
20030102

2003
          BCCA 4

Docket:

CA028950

CA029597

CA029759

COURT
          OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

MONICA FAITH ARCHIBALD

APPELLANT

(RESPONDENT
          BY CROSS-APPEAL)

(PLAINTIFF}

AND:

RANDAL DAVID ARCHIBALD

RESPONDENT

(APPELLANT
          BY CROSS-APPEAL)

(DEFENDANT)

Before:

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Saunders

The
          Honourable Madam Justice Levine

Appellant
          acting on her own behalf

C.
          Linde

Counsel
          for the Respondent

Written
          Submissions Received:

Vancouver,
          British Columbia

October
          30 and November 12, 2002

Place
          and Date of Judgment:

Vancouver,
          British Columbia

January 2, 2003

Supplementary
    Reasons of the Court on Costs

Reasons for Judgment of the Court:

[1]

In reasons for judgment released on August 28, 2002, the Court ordered
    that the parties to these appeals bear their own costs.  The parties made
    no submissions on costs at the hearing of the appeals.  We have since received
    written submissions.

[2]

The procedural difficulties that arose in hearing these appeals are
    outlined in our earlier reasons for judgment.  Our order that the parties
    bear their own costs acknowledged that the costs of the appeals were affected
    by those procedural difficulties.

[3]

Counsel for the respondent argues that his client was successful on
    all three appeals and that costs in this Court generally follow the event,
    unless there are reasons for a different order: see
Gold v. Gold
(1993), 82 B.C.L.R. (2d) 180 (C.A.).  He submits that if the three appeals
    were collapsed into one, his client would be entitled to his costs.  The procedural
    difficulties were not of his client's making, and he should not be penalized.

[4]

The appellant says that the factors set out in
Gold
(at
    para. 20) to be considered by a judge in awarding costs apply to her:

Factors
    such as hardship, earning capacity, the purpose of the particular award, the
    conduct of the parties in the litigation, and the importance of not upsetting
    the balance achieved by the award itself are all matters which a trial judge,
    quite properly, may be asked to take into account.

[5]

She points out that the trial judge took those factors into account
    in ordering that the parties bear their own costs of the trial, when he said
    in his reasons for judgment concerning costs:

[7]
    Sad to say, both parties have been impoverished by the ramping up of costs
    due to the mother's actions.  The father is better able to recover, as his
    income is substantially greater than that of the mother, and will likely remain
    so.  She is not in a position to pay a substantial cost award.

[6]

The appellant disclosed in her submissions that she has incurred substantial
    debt in these proceedings, which will "take the rest of her life to pay".
     The respondent did not address his financial circumstances in his submissions.
     As the trial judge noted, however, both parties bear the financial scars
    of this litigation.

[7]

The facts remain that the mother pursued the appeals and was unsuccessful.
     Having considered the parties' submissions, we are now of the view that we
    gave insufficient consideration to those facts in our order with respect to
    costs.

[8]

The substantive issues presented by the trial judge's orders with respect
    to custody and access were primarily addressed by the first appeal.  The Court
    found that the trial judge did not err in deciding that the parties would
    have joint custody of the children, with the children's place of residence
    with the father.  The second and third appeals arose primarily because the
    initial orders of the trial judge were interim orders, which gave rise to
    the procedural difficulties.  On the hearing of the appeals, the procedural
    difficulties took a prominent position, which is reflected in the initial
    order for costs.

[9]

The order that the parties bear their own costs is varied to provide
    that the respondent will have the costs of the first appeal and the parties
    will bear their own costs of the second and third appeals.

The
    Honourable Madam Justice Newbury

The
    Honourable Madam Justice Saunders

The
    Honourable Madam Justice Levine


Citation:

Gill
          et al v. Darbar et al

Date:
20030102

2003
          BCCA 3

Docket:

CA029974

COURT OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

WAHIGUROO PALL SINGH GILL, HARABANS KAUR GILL,

TAGE KAUR SHOKKER (nee SIDHU), JASMOHANJJIT KAUR GILL,

Administrator of the Estate of SURINDER KAUR SINDHU, Deceased

RESPONDENTS

(Plaintiffs)

AND:

NANAKSAR THATH ISHAR DARBAR and AMAR SINGH SIDHU also known as

AMARSING SIDHI also known as AMAR SINGH also known as AMARSINGH also
          known as BABBA AMAR SINGH JI

APPELLANTS

(Defendants)

Before:

The
          Honourable Mr. Justice Smith

(In
          Chambers)

A.J.
          Roberts

Counsel
          for the Appellant

D.H.
          Unterman

Counsel
          for the Respondent

Place
          and Date of Hearing:

Vancouver,
          British Columbia

17
          December 2002

Place
          and Date of Judgment:

Vancouver,
          British Columbia

2
          January 2003

Reasons for Judgment of the Honourable
    Mr. Justice Smith:

[1]

There are two applications before the Court.  The respondents (plaintiffs)
    apply for security for the trial judgment and for costs of the appeal and
    costs of the trial.  The appellants (defendants) respond with an application
    to stay proceedings, including execution, in the Supreme Court pending disposition
    of the appeal.

[2]

For ease of narrative, I will refer to the parties as plaintiffs and
    defendants in these reasons.

[3]

The mother, brother, daughter, and legal representative of Surinder
    Kaur Sidhu, deceased, brought action in the Supreme Court to recover certain
    land from the defendants on the ground that the defendant Amar Singh had unduly
    influenced the deceased to transfer the land to the defendant society, which
    is controlled by the defendant Amar Singh.

[4]

Following a lengthy trial, the trial judge granted judgment to the
    plaintiffs.  On June 25, 2002, he ordered that title to the land be vested
    and registered in the name of the deceaseds daughter, Tage Kaur Shokker.
    On July 29, 2002, the defendants filed their notice of appeal.  In supplementary
    reasons handed down on October 10, 2002, the trial judge ordered the defendants
    to pay to the plaintiffs $155,000 in assessed costs of the action and $172,000
    for adjustments in respect of the land.

[5]

Title to the land has since issued in the name of Tage Kaur Shokker
    consequent upon the judgment and she has raised money on the land and has
    spent money developing it for sale.

[6]

I will deal first with the defendants application for a stay of proceedings
    pending disposition of the appeal.  I observe, at the outset, that the defendants
    have identified no authority in support of their submission that I may enjoin
    further dealings with the land.  These reasons will be concerned only with
    the pecuniary aspects of the trial judgment.

[7]

The applicable principles are not in dispute.  Generally, a successful
    plaintiff is entitled to the fruits of the judgment but this Court may stay
    proceedings if satisfied that it is in the interests of justice to do so:
Voth Brothers Construction (1974) v. National Bank of Canada
(1987), 12 B.C.L.R. (2d) 43 at 44-45 (C.A. [In Chambers]).  The trial judgment
    must be assumed to be correct and protection of the successful plaintiff is
    a pre-condition to granting a stay:
Morrison-Knudsen Co. v. British
    Columbia Hydro & Power Authority
(1976), 112 D.L.R. (3d) 397 at
    404 (B.C.C.A.).  The applicant for a stay must satisfy the familiar three-stage
    test, that is, the applicant must show that there is some merit in the appeal,
    that the applicant will suffer irreparable harm if the stay should be refused,
    and that, on balance, the inconvenience to the applicant if the stay should
    be refused would be greater than the inconvenience to the respondent if the
    stay should be granted:
British Columbia (Milk Marketing Board) v. Grisnich
(1996), 50 C.P.C. (3d) 249 at 252 (B.C.C.A. [In Chambers]).

[8]

The defendants raise three grounds of appeal.

[9]

First, they submit that the trial judge committed palpable and overriding
    error in drawing the inference that the defendant Amar Singh exerted undue
    influence or fraudulently induced Surinder Kaur Sidhu to give him the land.
    The plaintiffs alleged that Amar Singh promised Surinder Kaur Sidhu that,
    if she would give the land to him, he would cure her cancer and build a temple
    in her honour on the land.  The trial judge noted that there was no direct
    evidence of such promises.  However, he concluded:

[150]
    For the last quarter century of her life, Surinder had been in the thrall
    of Amar Singh.  He was the most influential person in her life.  She believed
    that he had powers which might be described as supernatural: she believed
    he was a Sant.

[151]
    Specifically, at the material times before the transfer took place, Surinder
    believed that Amar Singh could and would intercede with God to cure her cancer.
    She believed that it was a condition of obtaining a cure that she transfer
    the land to him.  Surinder also believed that Amar Singh would build a temple
    on the land, in her name and in her honour, if she gave the land to him.

[152]
    Amar Singh knew that Surinder believed these things and he allowed her to
    entertain those beliefs.  I doubt that he ever made such promises in express
    words but I do find that his words to Surinder and to Tage were intended to
    and did convey to Surinder that what she believed would come to pass, if she
    gave the land to him.

[153]
    I find that Surinder gave the land to Amar Singh in return for what she regarded
    as promises and which, I find, by a combination of the words spoken by Amar
    Singh and the acquiescence by him in knowingly allowing Surinder to entertain
    her beliefs, were in fact promises.

[10]

Counsel
    for the defendants referred to evidence that, if accepted at face value, might
    support the inference that Surinder Kaur Sidhu was not the victim of fraud
    or undue influence perpetrated by Amar Singh.  However, the trial judge considered
    all of that evidence.  Moreover, there was much evidence from which the trial
    judge could rationally infer that Surinders will was indeed overborne by
    Amar Singh.

[11]

The
    defendants second ground of appeal is that the trial judge committed reversible
    error in concluding that Surinder Kaur Sidhu was the beneficial owner of the
    land at the time that it was transferred to the defendant Society by her brother
    and her mother, who were the registered owners of the land in the Land Title
    Office.

[12]

The
    plaintiffs pleaded that Surinder Kaur Sidhu was the beneficial owner of the
    land.  The defendants pleaded that the land was held in trust for Surinder
    by her mother and her brother and that Surinder, in turn, held it on behalf
    of Amar Singh.  In the alternative, they pleaded that Surinder gave the land
    to Amar Singh for charitable purposes.

[13]

The
    defendants led no evidence to support their plea that Surinder held the land
    in trust for Amar Singh.  During his submission, counsel for the defendants
    referred to certain parts of the evidence and appeared to suggest that the
    beneficial owners of the land were Surinders brother and mother.  However,
    such an allegation was not pleaded and, I am advised, was not argued at trial.
    Accordingly, it is not open to the defendants to make this submission in this
    Court.

[14]

The
    trial judge recounted a great deal of the evidence in his reasons, some of
    which, arguably, tended to show that Surinder Kaur Sidhu was not the beneficial
    owner of the land.  However, his ultimate conclusion was that she purchased
    the property as an investment in 1973, when she was employed in the real estate
    industry and was investing in land, buying and selling properties and registering
    them in her own name.  He traced the dealings with the land in considerable
    detail from that date until the material times.  He concluded:

[143]
    Based on the evidence recited above, I have arrived at the following conclusions
    of fact.

[144]
    First, Surinder was the sole, beneficial owner of the land at the time it
    was transferred to Amar Singh.

[145]
    Although there was considerable informality over the years among members of
    the Gill family as to the use of and benefit from various homes and properties
    which on title were owned by one or other of them, and although all members
    of the family helped out in the maintenance of the properties, nothing in
    their words or actions suggested anything but that Surinder was the sole owner.
    Among other things, this is true of the 1995 mortgage, from which Surinder
    did not benefit.  She allowed the mortgage to be placed simply as a loyal
    and helpful member of the family, when the family needed financial help.

[146]
    The ultimate proof that the land was hers is the transfer itself.  When Surinder
    told Pall and Harbans to transfer the land to Amar Singh, they did so.

[147]
    Nor was the land ever held in trust by Surinder for Amar Singh.  The evidence
    as to the various dealings with the land, such as the attempts to develop
    it and the taking out of the 1995 mortgage, are inconsistent with the existence
    of a trust.

[15]

In
    respect of these two grounds of appeal, the defendants will be essentially
    asking a panel of this Court to re-try the case and to substitute their view
    of the facts for that of the trial judge.  That is not something that this
    Court can do: see, for example,
Toneguzzo-Norvell v. Burnaby Hospital
,
    [1994] 1 S.C.R. 114 at pp. 121-22.  Accordingly, while I am not prepared to
    say that the appeal cannot possibly succeed, it is my view that the chance
    of success on these issues is minimal.

[16]

The
    third ground of appeal alleges an error of law arising from the fact that,
    on numerous applications for social assistance over a lengthy period of time,
    Surinder Kaur Sidhu declared that she did not own property.  The defendants
    contended before the trial judge that, if she was the beneficial owner of
    the property, her estate was disentitled to relief in equity because it did
    not come with clean hands.  The trial judge said of this submission:

[167]
    I have found that Surinders receipt of welfare was based on repeated applications
    by her which fraudulently concealed her ownership of land.  The defence contends
    that this history disentitles her estate to equitable relief.

[168]
    The short answer to this is that the blameworthy conduct must have some connection
    with the relief sought. In this case, it did not.

[17]

The
    defendants submit that the trial judge erred in law in that passage.  They
    refer to the following authorities:
Canada (Attorney General) v. Massinghill
(1915), 17 Ex. C.R. 510 (Exch. Ct.),
Gascoigne v. Gascoigne
,
    [1918] 1 K.B. 223, and
Re Emerys Investments Trusts, Emery v. Emery
,
    [1959] 1 All E.R. 577 (Ch. D.).  Those cases appear to me to make it clear
    that the basis of the clean hands doctrine is that No man can take advantage
    of his own wrong:
Canada (Attorney General) v. Massinghill
,
    supra
, at 514.  The point is made in other terms by the learned authors
    of
Hanbury & Martin Modern Equity
, 15
th
ed. (London:
    Sweet & Maxwell, 1997) at p. 26, where they say of the clean hands doctrine
    that:

...equitable
    relief will only be debarred on this ground if the plaintiffs blameworthy
    conduct has some connection with the relief sought.  The court is not concerned
    with the plaintiffs general conduct.  Thus, in
Argyll (Duchess) v. Argyll
    (Duke)
, the fact that the wifes adultery had led to the divorce proceedings
    was no ground for refusing her an injunction to restrain her husband from
    publishing confidential material.  Nor will unclean hands debar a claim which
    does not involve reliance on ones own misconduct. [
Tinsley v. Milligan
,
    [1994] 1 A.C. 340 (H.L.)].

[18]

Counsel
    for the defendants did not suggest that the improper conduct which the defendants
    invoke in this regard was in any way relied upon in the litigation by the
    plaintiffs.  In my opinion, it is unlikely that this ground of appeal will
    succeed.

[19]

The
    next two stages of the three-stage approach require a consideration of whether,
    if the stay should not be granted, the defendants will suffer irremediable
    harm and where the balance of convenience lies.   I will deal with these branches
    of the test together.

[20]

The
    defendant Society was incorporated in Ontario and is registered extra-provincially
    in B.C.  It is wholly controlled by the defendant Amar Singh.  The plaintiffs
    have been unable to find any assets in British Columbia or elsewhere owned
    by either defendant, except for a parcel of real estate in Ontario owned by
    the defendant Society.  The Society purchased that parcel for $675,000 in
    1997.  On the date of purchase, it granted a mortgage of the land for $414,000.
    As of September 2002, the balance owing on that mortgage was $360,357.  On
    September 12, 2002, the Society granted a second mortgage on the land in the
    amount of $100,000.  Thus, the defendant Society has an apparent equity in
    the land of approximately $215,000.

[21]

On
    January 6, 2000, judgment was granted in the Supreme Court of British Columbia
    against the defendant Society in favour of Jatinder Minhas and Bhupinder Singh
    Nijjar for $250,909 and costs for the return of a deposit that they paid to
    the defendant Society on account of the purchase price of the land that was
    returned to the plaintiffs in this action, which the defendants had agreed
    to sell to them.  The judgment was registered in Ontario on November 21, 2002,
    and a writ of execution has since been issued by the Superior Court of Justice
    in Toronto to the Sheriff in the Region of Peel, instructing him to sell the
    property.  Unless the plaintiffs place their execution in the hands of the
    Sheriff before he sells the land and distributes the proceeds of sale, they
    will not be entitled to share in the proceeds under the Ontario
Creditors
    Relief Act
.

[22]

None
    of that is controverted in the defendants evidence, which is contained in
    an affidavit sworn by a Mr. Baljit Dhaliwal on information and belief.  His
    informants are said to be Amar Singh and members of the defendant Society.
    He does not say what information he obtained from each source.  In his affidavit,
    the defendants disclose the land in Ontario as an asset and assert that it
    is exposed to claims from the aforesaid judgment creditors in excess of $1
    million, as well as to the claims of the plaintiffs in this action.  Mr. Dhaliwal
    deposes that, if this appeal fails and if the judgment creditors proceed to
    execute on their judgment, the Ontario society will have insufficient assets
    to satisfy those claims, and will be unable to survive.  He deposes, further,
    that the defendant Society serves a congregation of one to two hundred Ontario
    resident Sikhs who are of modest means and who have donated and loaned
    monies to assist the society to survive.  Notably, there is no assertion
    that the defendant Society has no other assets or no income and no assertion
    as to the personal means of the defendant Amar Singh.

[23]

Accordingly,
    it appears that whether a stay of execution on the judgment is granted or
    not, the defendant Society stands to lose all of its equity in the Ontario
    land.  On the other hand, if a stay is granted, the plaintiffs will be precluded
    from sharing in the proceeds of the sale of that land.  Therefore, the harm
    that will be suffered by the plaintiffs if a stay is granted outweighs the
    harm that will be suffered by the defendants if a stay is refused.

[24]

I
    am not persuaded that a case for a stay of proceedings has been made out.
    There is little merit in the proposed grounds of appeal and the balance of
    convenience test favours the refusal of a stay.  Accordingly, the defendants
    application to stay proceedings, including execution, in the Supreme Court
    is dismissed.

[25]

The
    plaintiffs seek an order for security for costs of the appeal.  The burden
    is on the defendants on this application to show that it is in the interests
    of justice that security for costs not be awarded:
Zen v. M.R.S. Trust
    Company
(1997), 88 B.C.A.C. 198 at 201-02 (In Chambers).  After a
    preliminary consideration of the merits of the appeal and after considering
    the evidence of the defendants means, I am satisfied that security for costs
    of the appeal should be awarded.

[26]

Counsel
    for the plaintiffs has estimated their costs, if the appeal should be unsuccessful,
    at approximately $15,000 to $20,000 including disbursements.  He emphasized
    that this estimate is not a considered one.  I must consider the means of
    the defendants when making an order for security for costs but, as I have
    already noted, their evidence in this regard is not compelling.  I note, as
    well, that the plaintiffs brought their application in a timely way after
    notice of appeal was filed and that it appears that they will have difficulty
    realizing on a judgment for costs if they should succeed on the appeal.  On
    the whole of the evidence, and given the weakness of the evidence on both
    sides of this issue, I consider that security for costs in the amount of $10,000
    would be appropriate.  The appeal will be stayed until security in that amount
    is posted in a form satisfactory to the Registrar.

[27]

On
    the application for security for the costs of trial and for the trial judgment,
    the burden is on the plaintiffs to show that it is in the interests of justice
    to order security and that the plaintiffs will suffer prejudice if the order
    is not made.  In determining the interests of justice I may take into account
    the merits of the appeal and the effect of an order for security on the ability
    of the defendants to continue the appeal:
Aikenhead v. Jenkins
2002 BCCA 234 at para. 30.

[28]

This
    appeal has little chance of success.  The defendants evidence does not permit
    me to conclude that they have made full and frank disclosure of their financial
    means.  Moreover, as the evidence stands, if the plaintiffs succeed in retaining
    their judgment, which seems likely, they are unlikely to be able to recover
    anything beyond their rateable share of the sale proceeds of the land in Ontario,
    assuming they are able to participate in their distribution. To allow the
    appeal to proceed without requiring the defendants to post substantial security
    would be to allow the defendants to gamble with the plaintiffs money: see
Fraser Canyon Transport Ltd. v. 5391945 B.C. Ltd., 539197 B.C. Ltd.,
    and Teal Cedar Products Ltd.
2002 BCCA 625 at para. 11.

[29]

On
    a consideration of all of the circumstances, I conclude that it is appropriate
    that the defendants be required to post substantial security for the trial
    costs and for the pecuniary portion of the trial judgment as a condition of
    proceeding with this appeal.  I fix the amount of that security at $300,000.
     It may be posted in a form satisfactory to the Registrar.  The defendants
    have not satisfied me that they will be unable to prosecute the appeal if
    they should be required to post security.  The plaintiffs will be entitled
    to withdraw all or parts of that sum on account of their judgment upon lodging
    security in a form satisfactory to the Registrar for repayment, including
    interest at post-judgment rates, should the appeal be allowed.

[30]

In
    summary:

1.   The defendants application for a stay of proceedings, including
    execution, in the Supreme Court is dismissed;

2.   The plaintiffs application for security for costs of the appeal
    is allowed and it is ordered that proceedings in the appeal be stayed until
    the defendants post security in the amount of $10,000 in a form satisfactory
    to the Registrar;

3.   The plaintiffs application for security for the trial costs and
    the trial judgment is allowed and it is ordered that proceedings in the appeal
    be stayed until the defendants post security in the amount of $300,000 in
    a form satisfactory to the Registrar.

The
    Honourable Mr. Justice Smith


Citation:

R.
          v. J.G.T.

Date:  20030102

2003
          BCCA 1

Docket:  CA028657

COURT
          OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

REGINA

RESPONDENT

AND:

J.G.T.

(Y.O.A.)

APPELLANT

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Huddart

H.
          S. Rosenberg

Counsel
          for the Appellant

K.
          Ker

Counsel
          for the Respondent (Crown)

Place
          and Date of Hearing:

Vancouver,
          British Columbia

November
          28, 2002

Place
          and Date of Judgment:

Vancouver,
          British Columbia

January 2, 2003

Written
    Reasons by:

The
    Honourable Madam Justice Rowles

Concurred
    in by:

The
    Honourable Chief Justice Finch

The
    Honourable Madam Justice Huddart

Reasons for
    Judgment of the Honourable Madam Justice Rowles:

[1]

The appellant's conviction appeal was dismissed at the conclusion of
    the oral hearing, with reasons to follow.  These are the reasons.

[2]

The appellant was arrested in Sparwood, British Columbia, on 4 June
    2001 on a charge of robbery.  The incident leading to his arrest involved
    three teenagers, including the appellant.  Two days later the appellant pleaded
    guilty in Youth Court to the following count in an Information:

[JGT],
    on or about the 4th day of June, 2001, at or near Sparwood, in the Province
    of British Columbia, did rob [MAG] of knives, contrary to Section 344(b) of
    the Criminal Code.

[3]

On his appeal, the appellant seeks to have his plea withdrawn, his
    conviction set aside and a new trial ordered.

[4]

The appeal is brought under s. 686(1)(a)(iii) of the
Criminal
    Code
on the ground there was a miscarriage of justice.  One of the
    appellant's arguments is that he was not guilty of one of the essential elements
    of the offence of robbery and therefore a guilty plea ought not to have been
    entered.

[5]

The appellant's factum sets out four grounds of appeal in relation
    to the proceedings in which his plea was taken.  The first ground was abandoned
    at the commencement of oral argument.  In the remaining grounds, the appellant
    asserts that the learned Youth Court judge:

(i)
    ... failed to satisfy himself that the Appellant understood the exact nature
    of the offence charged;

(ii)
    ... failed to satisfy himself that the Appellant was in fact pleading guilty
    to all of the essential elements of the offence charged;

and

(iii)
    ... failed to conduct the proceedings on the guilty plea in substantial compliance
    with procedural requirements.

[6]

During oral argument, appellant's counsel added a further ground, namely,
    that the appellant had ineffective assistance of counsel.  In that regard,
    the appellant argued that his trial counsel had permitted a plea to be taken
    precipitously when he was not guilty of one of the essential elements of the
    offence of robbery and when the Crown had "overcharged" the offence,
    as the proceedings in relation to one of the other teenagers later showed.

[7]

By way of background, the appellant appeared in Youth Court in Cranbrook,
    British Columbia, on the afternoon of 5 June 2001.  He was charged in
    an Information with failure to comply with a probation order contrary to section
    26 of the
Young Offenders Act
and with robbery contrary to section
    344(b) of the
Criminal Code
.  A judicial interim release hearing
    was held at that time.  Mr. Richard J. Strahl, who was duty counsel at the
    time, represented the appellant.

[8]

During the hearing, the following description of the circumstances
    of the alleged robbery was provided by Crown counsel.  The seven year old
    complainant was playing with a friend near his home and elementary school.
    They were accompanied by an adult male.  Three teenagers including the appellant
    were also in the area.  The adult male momentarily left the complainant unattended.
    The teenagers then approached and asked the complainant to show them, or give
    to them, two knives he had in his pockets.  When the child refused, the appellant
    picked him up and turned him upside down by his heels, while one of the other
    teenagers went through his belongings.  She took two knives from the complainant
    before he was dropped to the ground.  The teenagers took the knives and ran.

[9]

Appellant's counsel responded briefly to the circumstances as follows:

Just briefly on the circumstances, Your Honour.  I can advise the court that
    the behaviour of my client which is certainly untoward towards this seven
    year old was not to obtain weapons, but to -‑ he tells me to teach the
    young lad a lesson.  He says that we're all by the river, the young boy and
    others were saying unkind things towards his group and others and as well
    throwing stones and as well waving these two knives.  So, they thought they
    would take it upon themselves, incorrectly, to teach this young lad a lesson
    and unfortunately the charges arose as a result.  He tells me he did not mean
    to hurt the child, but only meant to frighten him with regard to his involvement
    with the knife business.  He did not want the boy doing that.  He feels very
    bad that the boy was traumatized as a result and certainly should have known
    better, he says.  He feels very bad for what took place.  He was not trying
    to hurt the boy, but only to scare him and he certainly succeeded in doing
    that.

[10]

At
    the conclusion of the hearing, the appellant was detained pending his trial.

[11]

The following morning,
    the appellant again appeared in Youth Court with Mr. Strahl as his counsel.
    Mr. Strahl indicated to the judge that the matter was for sentencing.  Mr.
    Strahl waived reading of the Information and entered a plea of guilty to the
    robbery charge.  Immediately thereafter, the judge said:

THE
    COURT:  Yes, thank you.  The record should show that [J.G.T.], a youth, is
    present before the court in custody, that Mr. Strahl is his counsel, and that
    he has waived Mr. [T.]'s right to be read Count 2 of Information 2286 and
    entered a plea of guilty to that count.

You can deal very briefly with the circumstances, Ms. Hough, because I heard
    them yesterday afternoon.

MS.
    HOUGH:  Yes, Your Honour, just to recap what the Crown advised you yesterday,
    was that three teenagers, one being Mr. [T.], were in the vicinity of two
    other young seven year olds who were being watched by the other boy's father,
    when the father left the area momentarily, these three teenagers approached
    the young boy [G.], asked to see his knives.  When the little boy said no,
    Mr. [T.] is the one that picked him up by his -- lifted him up, suspended
    him upside down by his heels, and the female teenager then frisked the boy,
    took the two knives from the little boy.  They then dropped the little boy
    on the ground.  He received no injuries and they took his knives.  The knives
    were located a short distance away, about two hundred metres away from where
    the robbery took place.  And the little boy has been highly, highly traumatized.
    That's where the Crown's major concern is, Your Honour.  The weapons were
    recovered.

And does Your Honour wish to have his record re-entered?  I can -

[12]

The
    Youth Court Judge then interjected to ask Mr. Strahl whether the facts outlined
    by Crown counsel were admitted:

THE
    COURT:  Any quarrel with the facts as outlined?

MR.
    STRAHL:  Only to say, Your Honour, that he does admit that he took hold of
    him and shook him, but didn't hang him upside down, but admits to all the
    other elements of the --

THE
    COURT:  Thank you.

[13]

Crown
    counsel later directed a stay of proceedings on the first count in the Information
    which charged the offence of failing to comply with a probation order.

[14]

The
    appellant was sentenced to a period of two months and 26 days in open custody.
    The appellant filed an appeal against sentence but we were told during oral
    argument that the sentence appeal has been abandoned.

[15]

The
    conviction appeal was originally set to be heard in this Court on 11 March
    2002.  Shortly before that date, the appellant gave notice to the respondent
    that he intended to put forward fresh evidence in the form of affidavits from
    himself and Mr. Strahl.  Upon being served with the affidavits, Crown counsel
    moved for an adjournment and sought directions in chambers, asking that cross-examination
    of the affiants be permitted.  Madam Justice Southin directed, among other
    things, that the cross-examination could take place before the Court.  The
    appeal was re-set for hearing on 28 November 2002.

[16]

Shortly
    before the appeal was to be heard, Crown counsel informed the Court through
    the Deputy Registrar that cross-examination of the affiants would not be required
    as she understood there was no suggestion on the appellant's part that the
    plea to the robbery count had been entered without instructions.

[17]

When
    an appeal is put forward under s. 686(1)(a)(iii) of the
Criminal Code
,
    it is for the appellant to persuade this Court that a miscarriage of justice
    occurred in the court below.  In this case that means that the appellant must
    establish "valid grounds" to set aside the plea.  What might constitute
    valid grounds has been examined in cases such as
R. v. Adgey
,
    [1975] 2 S.C.R. 426;
R. v. Bamsey
, [1960] S.C.R. 294; and
R.
    v. Meers
(1991), 64 C.C.C. (3d) 221 (B.C.C.A.) and include the plea
    being involuntary because the accused did not understand the nature of the
    offence or the consequences of pleading guilty.  When seeking to set aside
    a plea, the appellant bears the onus of establishing that his guilty plea
    was not voluntary, not informed or not unequivocal.  Generally speaking, affidavit
    evidence is required to support such a submission because a guilty plea is
    presumed to be voluntary.

[18]

An
    examination of the transcript in this case does not support the assertion
    in the third ground of appeal that the Youth Court judge failed to conduct
    the proceedings in substantial compliance with procedural requirements.  The
    appellant was represented by counsel at the time of the plea and sentencing.
    Although the robbery charge was never formally read to the appellant, his
    counsel indicated at the bail hearing that they had discussed the charges
    and the appellant was aware of the nature and circumstances of them.  During
    the bail hearing, the youth court judge twice referred to the fact that the
    appellant was charged with robbery.

[19]

The
    taking of the plea was not done formally but it was done in accordance with

the

accepted practice

in

this Province.  A plea entered by counsel binds the accused.  Nothing
    in the transcript suggests that the appellant's intention was to do anything
    other than to admit fully his guilt for the offence and to admit the circumstances
    of the offence as read out by Crown counsel, with the exception of the qualification
    that he had not held the complainant upside down.  In the circumstances,
    the judge was not bound to interrogate the appellant before accepting his
    guilty plea through counsel.

[20]

Trial
    counsel's submissions on both the bail and the sentence hearings were responsive
    to the issues raised and demonstrated the appellant's awareness of the consequences
    of the proceedings.  I see nothing in the transcript or the affidavit evidence
    put forward by the appellant which would support a suggestion that the Youth
    Court judge ought to have gone further than he did to satisfy himself that
    the appellant both understood the nature of the offence charged and was acknowledging
    his guilt on all the essential elements of the offence.

[21]

There
    is no evidence before us that trial counsel or anyone else pressured, coerced,
    or induced the appellant into pleading guilty.  Nor is there any evidence
    to show that the appellant's ability to understand the proceedings or the
    effect of the plea was impaired in any way.

[22]

I
    turn now to the appellant's argument that had it not been for the ineffective
    assistance of his trial counsel, a plea to the robbery count would not have
    been entered.

[23]

The
    general approach to an ineffectiveness claim was considered by the Supreme
    Court of Canada in
R. v. G.D.B.
, [2000] 1 S.C.R. 520, 2000 SCC
    22, commencing at paragraph 26:

The approach to an ineffectiveness claim is explained in
Strickland v.
    Washington
, 466 U.S. 688 (1984), per O'Connor J.  The reasons contain
    a performance component and a prejudice component.  For an appeal to succeed,
    it must be established, first, that counsel's acts or omissions constituted
    incompetence and second, that a miscarriage of justice resulted.

Incompetence is determined by a reasonableness standard.  The analysis proceeds
    upon a strong presumption that counsel's conduct fell within the wide range
    of reasonable professional assistance.  The onus is on the appellant to establish
    the acts or omissions of counsel that are alleged not to have been the result
    of reasonable professional judgment.  The wisdom of hindsight has no place
    in this assessment.

[24]

The appellant's
    first point is that his trial counsel ought to have advised him not to enter
    a plea to robbery because he was not guilty of one of the essential elements
    of that offence, that is, the intent to steal.  In the affidavit the appellant
    has put forward as fresh evidence, he has deposed, in part:

5.
    Among other things, I told Mr. Strahl that the boy had been waving his knives
    at us, that I decided to teach him a lesson, that I decided to take the knives
    away from him, that I wasn't trying to harm the boy, that I held the boy and
    that [one of the other teenagers] took the knives from him and then I put
    the boy down.  I told Mr. Strahl that [the other teenagers] and I left the
    area and that the knives were dropped on the ground not far from where we
    left the boy.  Mr. Strahl asked me if I thought I had committed a robbery
    and I said no.

* * *

9.
    I had no intention to hurt the boy; I had no intention to keep his knives.
    All I did, with [the other teenagers], was to help take the knives away from
    the boy because he was swinging them around at people.

[25]

Appellant's
    counsel conceded there was no issue with respect to the assault component
    of the offence of robbery but argued that a plea ought not to have been entered
    when the appellant had "no intention to keep the knives".  That
    argument cannot succeed for the simple reason that an intention to temporarily
    deprive the complainant of the knives sufficed.  Section 322(1) of the
Criminal
    Code
provides that every one commits theft who fraudulently and without
    colour of right takes anything with intent to deprive, temporarily or absolutely,
    the owner of it.

[26]

The
    appellant's other point concerning ineffective assistance of counsel amounts
    to no more than an assertion that trial counsel might have obtained a better
    result, for example, a plea to an included offence.  This argument must also
    be rejected.  Nothing in the affidavit material shows that any act or omission
    on the part of trial counsel constituted incompetence in relation to the proceedings
    or resulted in a miscarriage of justice.

[27]

In
    summary, the appellant has not established valid grounds to set aside the
    plea and has not shown that any act or omission on the part of trial counsel
    amounted to incompetence or resulted in a miscarriage of justice.

[28]

The
    appeal is dismissed.

THE HONOURABLE MADAM JUSTICE ROWLES

I
    AGREE:

THE
    HONOURABLE CHIEF JUSTICE FINCH

I
    AGREE:

THE
    HONOURABLE MADAM JUSTICE HUDDART