COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zakos, 2022 ONCA 121

DATE: 20220211

DOCKET: C68429

Feldman, MacPherson and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Zakos

Appellant

Thomas F. Balka,
    for the appellants

David Quayat,
    for the respondent

Heard: January 18,
    2022 by video conference

On appeal from the convictions entered
    on October 26, 2018 by Justice Sharon Lavine of the Superior Court of Justice, and
    from the dismissal of an application for a stay of proceedings on March 1, 2019.

Thorburn J.A.:

OVERVIEW

[1]

The appellant, Thomas Zakos, appeals his convictions
    for three counts of trafficking in cocaine, and possession of the proceeds of
    crime. He has served his sentence.

[2]

The appellant claims he was entrapped by the
    police and that the trial judge therefore erred in declining to stay the
    charges against him.

[3]

The issues to be addressed are:

i.

When Detective Constable Green gave the
    appellant the opportunity to traffic cocaine;

ii.

Whether Detective Constable Green formed a
    reasonable suspicion that the appellant was already engaged in trafficking before
    giving him the opportunity to traffic cocaine; and

iii.

Whether the circumstances in this case are the
    same as in the case of Mr. Williams, one of the appellants in
R. v.
    Ahmad
, 2020 SCC 11 (
Ahmad SCC
), such that the appellant should
    also be found to have been entrapped.

BACKGROUND FACTS

[4]

On July 20, 2016, Detective Constable Green received
    an anonymous tip. The tip was that Thomas Zakos, who went by the name TJ, was
    a cocaine and marijuana dealer who conducted his drug deals at the Ultramar gas
    station near Durham College in Oshawa, using the cellphone number 613-329-8098.

[5]

After receiving the tip, Detective Constable Green
    checked the police record management system and MTO records and found a person
    named Thomas Zakos with an address in Lyndhurst, Ontario who had no criminal
    record.

[6]

Detective Constable Green continued his
    investigation of this tip by texting the target at the number 613-329-8098. He
    and the target exchanged the following text messages:

Green
: This tj?

8098
: Who is this

Green
: Scot, got your number from my cousin.
    You still around the college?

8098
: Whos your cousin

8098
: Yes still close but I moved

Green
: Jay said he got off you at the gas
    station a while back. U good for powder?

8098
: How much were you looking for

Green
: How much for a b?

8098
: 230

8098
: Real nice

Green
: Thats good man Good stuff tho?

8098
: Its real nice. havent had a complaint
    all year haha

Green
: When can u meet?

8098
: Let me text me roommate he can meet you
    Im out of town.

Green
: Ok let me know. how long u think hell
    be?

8098
: An hour, I think.

Green
: you want me to message you or your
    roommate

8098
: 289-928-5474.

[7]

Detective Constable Green then sent a text
    message to the phone number given to him by the target, 289-928-5474. Later
    that day, Detective Constable Green purchased 2.8 grams of cocaine from the
    appellants contact at 1756 McGill Court in Oshawa.

[8]

On July 21, 2016, Detective Constable Green
    again texted 613-329-8098 (the number for TJ) and arranged to purchase a half
    ball of cocaine. He collected 1.76 grams of cocaine later that day from the
    appellants contact at 1756 McGill Court.

[9]

Later in the evening on July 21, 2016, Detective
    Constable Green attended 1756 McGill Court again. The appellant met him at the
    door and went down to the basement of the residence to retrieve the drugs. Detective
    Constable Green purchased a half ball of cocaine from the appellant for $130.

[10]

Early in the morning on July 22, 2016, a search
    warrant was executed at the premises and the appellant was arrested. Thirty-three
    grams of cocaine were found on a desk in the basement of the residence. (The
    appellant was acquitted of the charge of possession for the purpose of
    trafficking relating to the 33 grams of cocaine. The trial judge held that the
    area where the 33 grams were found was accessible to all and that there were no
    personal identifiers nearby linking it to the appellant. She therefore concluded
    that, in all the circumstances, the Crown had not proven beyond a reasonable
    doubt that the appellant had knowledge and some measure of control over the
    package.)

[11]

The appellant was convicted of three charges of trafficking
    in cocaine from July 20 to July 22, 2016, and possession of the proceeds of
    crime.

THE APPLICATION FOR A STAY OF PROCEEDINGS

[12]

After his conviction but before being sentenced,
    the appellant sought a stay of proceedings on the grounds that he had been
    entrapped.

[13]

He claimed he was provided the opportunity to
    traffic cocaine when Detective Constable Green asked the appellant, U good for
    powder? (In drug parlance, cocaine in powder form). He further claimed that at
    this point, police had not yet formed a reasonable suspicion that the appellant
    was engaged in criminal activity or that the phone line was being used to
    traffic cocaine. This, he said, was entrapment by Detective Constable Green and
    for this reason, a stay of proceedings should be entered.

[14]

The respondent took the position that the
    appellant was not entrapped as the question U good for powder? was simply an
    open-ended, exploratory question about whether the appellant was a drug dealer.
    It was not until Detective Constable Green asked, How much for a b? that the
    appellant was given the opportunity to commit the offence of trafficking
    cocaine, which he did. The respondent therefore claimed the appellant was not
    entrapped.

THE TRIAL JUDGES DECISION ON THE ISSUE OF
    ENTRAPMENT

[15]

The trial judge dismissed the appellants
    application for a stay of proceedings. She held that the appellant was not
    entrapped because:

This was not a random call or random virtue
    testing, but a focused investigation directed at a particular phone line.

Although the person on the phone did not
    confirm he was TJ, he did not question it or redirect the caller. Moreover, he
    continued to engage in conversation responding that he was still around the
    college, adding to the development of reasonable suspicion.

The call continued, not with a request to
    purchase a specific quantity of drugs but a less definite and still, more in
    the nature of an exploratory question, employing language commonly used in the
    drug trade.

Applying the principles and tests set out in
Williams and Ahmad
, I find that
    Detective Constable Green had a reasonable suspicion that the phone line was
    being used as a means for a prospective drug buyer to contact the seller and arrange
    to purchase drugs and was engaged in a
bona fide
inquiry.

[]

As a result, Mr. Zakos and Mr. Walsh have not
    met their burden of establishing entrapment on a balance of probabilities. It
    is not one of the clearest of cases warranting a stay.

THE ISSUES ON THIS APPEAL

[16]

The appellants position on this appeal is that
    the trial judge erred in concluding that he was not entrapped by Detective Constable
    Green. Specifically, he claims the trial judge erred:

i.

in deciding that Detective Constable Greens
    question, U good for powder did not provide the appellant an opportunity to
    commit a crime, and

ii.

in holding that Detective Constable Green did
    not provide the appellant with the opportunity to traffic cocaine until he asked,
    How much for a b?

[17]

The trial judge relied on this courts decision
    in
R. v. Ahmad,
2018 ONCA 534, 141 O.R. (3d) 241 (
Ahmad ONCA
),
    revd in part, 2020 SCC 11 (
Ahmad SCC
).

[18]

The trial judge did not have the benefit of the
    Supreme Courts judgment in
Ahmad SCC
when she rendered her decision
    on this application.

[19]

The appellant claims his situation is
    indistinguishable from that of Mr. Williams, one of the appellants in
Ahmad
    SCC
, who received a stay of proceedings by the Supreme Court on the
    grounds that he was entrapped. As such, he claims a stay of proceedings should
    be entered.

[20]

Before analyzing the circumstances in this case,
    I will set out the legal test for finding entrapment.

THE LAW OF ENTRAPMENT

What is Entrapment?

[21]

Entrapment is the conception and planning of an
    offence by an officer, and his procurement of its commission by one who would
    not have perpetrated it except for the trickery, persuasion, or fraud of the
    officer:
R. v. Mack
,

[1988] 2 S.C.R. 903, at pp. 917-18,
    citing
Sorrells v. United States
, 287 U.S. 435 (1932), at p. 454.

[22]

Entrapment is not a defence. It is an
    application of the doctrine of abuse of process for which the remedy is to stay
    the proceedings:
Mack
, at pp. 938-42;
Ahmad SCC,
at paras.
    16-17.

Reasons for the Entrapment Remedy

[23]

Entrapment recognizes that the state may not
    engage in conduct that violates the notions of decency and fair play as the
    ends do not justify the means utilized:
Mack,
at pp. 938-40;
Ahmad
    SCC,
at para. 16.
T
he
    administration of justice would be brought into disrepute if the state were
    permitted to punish someone whom the state itself caused to transgress:
Mack,
at pp. 938-42, 944;
Ahmad SCC
,

at paras. 16-17.

[24]

The entrapment framework balances the need to
    protect privacy interests and personal freedom from state intrusion against the
    states legitimate interests in investigating and prosecuting crime:
Mack,
at
    pp. 941-42;
Ahmad SCC,
at para. 22.

[25]

In
Mack,
Lamer J.

(as he then
    was), explained, at p. 941:

There is perhaps a sense that the police
    should not themselves commit crimes or engage in unlawful activity solely for
    the purpose of entrapping others, as this seems to militate against the
    principle of the rule of law. We may feel that the manufacture of crime is not an
    appropriate use of the police power.... Ultimately, we may be saying that there
    are inherent limits on the power of the state to manipulate people and events
    for the purpose of attaining the specific objective of obtaining convictions.
    These reasons and others support the view that there is a societal interest in
    limiting the use of entrapment techniques by the state.

[26]

He noted, at p. 917:

There is a crucial distinction, one which is
    not easy to draw, however, between the police or their agentsacting on
    reasonable suspicion or in the course of a
bona fide
inquiryproviding
    an opportunity to a person to commit a crime, and the state actually creating a
    crime for the purpose of prosecution. The former is completely acceptable as is
    police conduct that is directed only at obtaining evidence of an offence when
    committed. The concern is rather with law enforcement techniques that involve
    conduct that the citizenry cannot tolerate. [Emphasis in original; citations omitted.]

[27]

Because the state is not permitted to engage in
    abusive police conduct
, where
    police are involved in the commission of an offence, entrapment is made out and
a stay of proceedings will be entered:
Mack,
at para. 942;
Ahmad
    SCC,
at para. 16.

[28]

A finding of entrapment is reserved for the clearest
    of cases of intolerable state conduct:
Mack
, at pp. 976-77;
R. v.
    Ray,
2020 ONCA 351, 155 O.R. (3d) 481, at para. 36.

The Two Branches of Entrapment

[29]

There are two alternative branches of entrapment,
    either of which may lead to a finding of entrapment justifying a stay of
    proceedings:

i.

Where police offer an individual the opportunity
    to commit an offence without acting on a reasonable suspicion that the
    individual is already engaged in that type of criminal activity or pursuant to
    a
bona fide
inquiry; or

ii.

Where, although acting with reasonable suspicion
    or pursuant to a
bona fide
inquiry, police go beyond providing an
    opportunity to commit an offence and induce a person to commit an offence:
Mack
, at pp. 964‑65;
Ahmad SCC
,
at para. 15
.

The Factors to be Considered on the First Branch of Entrapment

[30]

The parties agree that while the appellant was
    given the opportunity to traffic cocaine, he was not induced to do so. As such,
    only the first branch of entrapment is at issue in this case, that is, whether Detective
    Constable Green offered the appellant the opportunity to traffic cocaine
    without reasonably suspecting that he was engaged in trafficking cocaine.

A.

Reasonable suspicion as a prerequisite to
    providing an opportunity to commit an offence

[31]

Entrapment under the first branch is made out
    when police provide the accused with an opportunity to commit an offence,
    without first having a reasonable suspicion that
either (1) a specific person is engaged in criminal
    activity; (2) people are carrying out criminal activity at a specific location,
    sometimes referred to as a
bona fide
inquiry:
Ahmad
    SCC,
at para. 19, citing
Mack,
at pp.
    956, 959. A
bona fide
inquiry is not a separate and freestanding way to
    entrap an individual, but describes the reasonable suspicion standard in a
    location:
Ahmad SCC,
at para. 20;
R. v.
    Henry-Osborne
, 2021 ONCA
    561,

at para. 16.

[32]

In the context of a dial-a-dope operation, police
    must have a reasonable suspicion that the person answering the phone is already
    engaged in drug trafficking before providing an opportunity to traffic drugs:
Ahmad
    SCC,
at para. 42;
Henry-Osborne,
at para. 16. The factors
    supporting reasonable suspicion may relate to the individual, the telephone
    number, or both:
Ahmad SCC,
at para. 42.

[33]

When police receive a tip, a police officer
may develop reasonable suspicion before contacting the
target
, or in the course of a conversation
    with the target:
Ahmad SCC
, at para. 54.

[34]

If the
police
have not formed a reasonable suspicion before making the call, they
    must form a reasonable suspicion in the course of the call
before
providing an opportunity to commit a crime:
Ahmad
    SCC
, at para. 69.

[35]

The difficulty lies in determining at what point
    in a conversation exploration ends, and an opportunity to commit an offence is
    provided.

B.

What constitutes reasonable suspicion

[36]

Reasonable suspicion requires a constellation
    of objectively discernible facts giving the officer reasonable cause to
    suspect that a certain kind of offence is being committed by a particular
    person in a particular place:
Ahmad SCC,
at para. 46, citing
R. v.
    Simpson
(1993), 79 C.C.C. (3d) 482 (Ont. C.A.)
,
at p. 501.

[37]

The reasonable suspicion standard requires only
    the possibility, rather than the probability, of criminal activity:
Ahmad
    SCC,
at para. 46. The suspicion must be focused, precise, reasonable, and
    based in objective facts that stand up to independent scrutiny:
Ahmad
    SCC,
at para. 46, citing
R. v. MacKenzie
, 2013 SCC 50, [2013] 3
    S.C.R. 250
,
at para. 74.

[38]

Reasonable suspicion is not an unduly onerous
    standard:
Mack,
at p. 958;
Ahmad SCC
, at para. 45.

[39]

The majority in
R. v. Bank
, 2021 ABCA
    223, 406 C.C.C. (3d) 329, at para. 104, noted that:

[A] court cannot convict an accused of a
    criminal offence unless the Crown has proved the physical and mental elements
    of the crime beyond a reasonable doubt. because of the severity of the
    consequences of a criminal conviction. A lesser degree of certainty is needed
    to validate an arrest  which, while it temporarily deprives a person of his or
    her liberty, it results in no verdict of criminal wrongdoing.... And a still
    lesser degree of certainty is needed to justify a police officer interacting
    with a target and presenting him or her with an opportunity to commit a crime
    or not.

[40]

The primary purpose of the reasonable suspicion
    standard is to permit meaningful judicial review of police conduct:
Ahmad
    SCC,
at paras. 24, 45-46 & 83.

[41]

In assessing whether a case for reasonable
    suspicion has been made out, the analysis of objective reasonableness should be
    conducted through the lens of a reasonable person standing in the shoes of the
    police officer:
MacKenzie
, at para. 63;
Bank
, at para. 113.
    An officers training or experience can make otherwise equivocal information
    probative of criminal activity:
Ahmad SCC,
at para. 47.

[42]

However, hunches grounded in an officers
    experience are not sufficient, and deference is not owed to a police officers
    view of the circumstances based on their training or experience:
MacKenzie,
at para. 64;
R. v. Chehil,
2013 SCC 49, [2013] 3 S.C.R. 220, at
    para. 47. Reasonable suspicion remains an objective standard that must
    withstand judicial scrutiny:
MacKenzie,
at para. 64;
Chehil,
at
    para. 26.

[43]

A bare tip from an unknown source that someone
    is dealing drugs from a phone number is therefore insufficient to create
    reasonable suspicion:
Ahmed SCC,
at paras. 4, 53. However, a
    reasonable suspicion may develop if this information is supplemented by the
    discovery of other facts in the course of a post-tip investigation.

[44]

Corroboration of the tip must suggest that it is
    reliable in its assertion of illegality, not just in its identification of a
    particular person:
Ahmad SCC,
at para. 50, citing
Florida v. J.
    L.,
529 U.S. 266 (2000),

at p. 272. The targets responsiveness
    to details in the tip, and to slang used in drug trafficking, along with other
    factors, may reinforce the reliability of the tip:
Ahmad SCC
, at para.
    55.

C.      The
    difference between exploratory questions and questions that provide the accused
    with an opportunity to commit an offence

[45]

Police can make exploratory requests of the
    target without providing an opportunity to traffic, including asking whether
    they sell drugs:
Ahmad SCC
, at para. 66.

[46]

In
R. v. Imoro
, 2010 ONCA 122, 251
    C.C.C. (3d) 131, at para. 16, affd 2010 SCC 50, [2010] 3 S.C.R. 62, Laskin
    J.A. for this court also held that the officers question to the target, Can
    you hook me up? was simply an exploratory question. And in
R. v. Ralph
,
    2014 ONCA 3, 313 O.A.C. 384, at para. 32, leave to appeal refused, [2014]
    S.C.C.A. No. 262, Rosenberg J.A. for this court held that the words I need
    product was a legitimate investigative step. In
Ralph,
the
    appellants response together with the tip was sufficient to provide the
    officer with reasonable suspicion.
Rosenberg J.A. held
, at para. 2, that [t]he exact words of the telephone conversation
    are important for the entrapment issue.

[47]

The majority in
Ahmad
    SCC
, at paras. 64-66, held that,

[A]n opportunity to commit an offence is
    offered when the officer says something to which the accused can commit an
    offence by simply answering yes.

[
]

An opportunity has been provided only when the
    terms of the deal have narrowed to the point that the request is for a specific
    type of drug and, therefore, the target can commit an offence by simply
    agreeing to provide what the officer has requested. In some cases, a request to
    purchase a specific quantity of drugs will suffice.... [C]ourts have
    consistently recognized that a request to purchase a specific type of drug
    during the conversation will amount to an opportunity to commit a crime. [Emphasis
    added.]

[48]

In determining when an opportunity is provided,
    the majority in
Ahmad SCC
adopted the characterization of the trial
    judge, Trotter J. (as he then was), of the difference between exploratory
    conversation and creating an opportunity to traffic, in
R. v.

Williams,
2014 ONSC 2370, 141 O.R. (3d) 241, revd in part on other grounds, 2020
    SCC 11. Trotter J. held, at para. 27, that:

The distinction between statements such as I
    need product/Can you hook me up?/ Are you around? /Where are you?,
    on the one hand, and I need 80 /I need 40 /I need 6 greens/I need half a
    B, on the other, might appear quite subtle. However,
the latter statements,
    involving requests to purchase a specific quantity of drugs, are more definite
    and less exploratory. With the former, the possibility of a deal still needs to
    be explored and developed; with the latter, all the accused needs to say is say
    yes.
[Emphasis added.]

[49]

In sum, the feature that distinguishes exploratory statements from those
    that create an opportunity to commit an offence seems to be the making of an
    offer to purchase, such that all the target must do is accept the terms. A
    court must examine all the circumstances, including the language used in the
    communication with the target, in determining whether police formed a
    reasonable suspicion before providing an opportunity:
Ahmad SCC,
at
    para. 61.

[50]

The words used, the meaning of the words used, and the context of
    the words in the conversation up to the point the question or statement at
    issue is made, are all factors to be considered in determining whether there
    was an offer to purchase:
Ahmad SCC
, at paras. 61-66.

The police officers language to the target
    must be an offer that, if accepted, would constitute an offence.

[51]

Entrapment
    is not made out if the opportunity to commit an offence is made after police

have a reasonable suspicion that the target is engaged in specific criminal
    activity or that specific criminal activity is taking place at a specific
    location:
Ahmad SCC
, at para. 19.

ANALYSIS AND CONCLUSION

The Issue

[52]

The appellant claims Detective Constable Green
    gave him the opportunity to traffic cocaine when he asked, U good for powder?
    and that, at this point, Detective Constable Green did not have reasonable
    suspicion that he was trafficking cocaine. As such, he claims he was entrapped.

[53]

The respondent submits that the appellant was
    not given the opportunity to traffic cocaine until Detective Constable Green
    asked him, How much for a b?. By this time, Detective Constable Green had
    formed a reasonable suspicion before he provided the opportunity to traffic
    cocaine such that the appellant was not entrapped.

[54]

The
key issue is whether Detective Constable Green provided the
opportunity to traffic cocaine
before he had reasonable suspicion that the appellant was
    trafficking cocaine.

[55]

In deciding whether a question is merely
    exploratory or constitutes an opportunity to commit an offence, one must look
    at the words used, the meaning of the words, and the context of the
    conversation up to the point the question or statement at issue is made.

[56]

Whether there was entrapment in this case
    depends
on the
meaning of the words U good for powder? and whether they
    constitute an opportunity to traffic.

[57]

If the question U good for powder? is merely an
    exploratory question, there was no entrapment, as the appellants response to
    the question was sufficient to ground a reasonable suspicion. However, if the
    words constitute an opportunity to traffic cocaine, as the appellant suggests,
    the appellant was entrapped, as Detective Constable Green did not have
    sufficient information before this question was asked to ground a reasonable
    suspicion.

Detective Constable Greens Exploration of the Tip

[58]

Detective Constable Green did not have a
    reasonable suspicion about the target prior to making the call as the tip was
    from an anonymous source. The further information he obtained about the target
    did not corroborate the tip, as there was no confirmation that the target lived
    in the area where the deals were alleged to take place, or that he had prior
    criminal convictions: see
Ahmad SCC
, at para. 50. He therefore needed to conduct further
    exploration to corroborate the tip he had received that the target was selling marijuana
    and cocaine near Durham College using the cellphone number provided.

[59]

Detective Constable Green texted the number to pursue
    his inquiry into the tip. He needed to obtain further information about whether
    the target was engaged in trafficking or that the phone number was used by someone
    engaged in trafficking.

[60]

When Detective Constable Green asked the target
    if he was TJ, the target did not deny that he was TJ nor did he redirect his text.
    Instead, the target engaged in conversation and confirmed that he was still
    around Durham College, thereby confirming some details of the tip. However,
    this was not sufficient to form a reasonable suspicion that the target was
    selling cocaine, because it did not strengthen the reliability of the tip in
    its assertion of illegality:
Ahmad SCC
, at paras. 50, 80, citing
J. L.
, at p. 272.

The Significance of the Question U good for powder? and the Development
    of a Reasonable Suspicion

[61]

Detective Constable Green then asked, U good for powder?

[62]

Detective Constable Green testified that powder
    means cocaine.

[63]

This was not an opportunity to traffic cocaine. There was (i) no
    offer on the part of Officer Green to buy cocaine, and (ii) no terms of an
    offer discussed. As such, the terms of the deal had not been narrowed to the
    point where the appellant could commit an offence by responding affirmatively
    to what Detective Constable Green requested. At most, he was asking whether the
    appellant had cocaine to sell. As this court found in
Imoro,
at para. 16, the question
    amounted to whether the appellant was a drug dealer.
As such, this
    question did not provide the appellant the opportunity to traffic cocaine.

[64]

Once
    the appellant answered, How much were you looking for, Detective Constable
    Green had sufficient information to generate a reasonable suspicion that the
    appellant trafficked cocaine. He had (i) received the tip
that
    a person who went by the name TJ sold cocaine and marijuana near Durham College
    and used an 8098 telephone number
, (ii) some information in the tip had
    been verified including the appellants location near Durham College, (iii) the
    appellant did not deny that he was TJ, suggest the caller had the wrong number or
    redirect the call and instead, continued to converse with Detective Constable Green,
    and (iv) the appellant responded positively to Detective Constable Greens use of
    language particular to the drug subculture: U good for powder? by asking How
    much were you looking for.

[65]

Having
    connected the tip to the person on the phone, the aspect of the tip that
    asserted illegality was corroborated by the appellants understanding of drug
    trafficking slang and willingness to engage in it: see
Ahmad
    SCC,
at para. 75. Taken together, these factors grounded a
    reasonable possibility that the appellant was involved in drug trafficking: see
Ahmad SCC,
at para. 76.

[66]

Drawing
    the distinction at this juncture is consistent with the need to balance protecting
    privacy interests and personal freedom from state intrusion and the states
    legitimate interest in investigating and prosecuting crime: see
Mack,
at pp. 941-42;
Ahmad SCC,
at para. 22.

The Significance
    of the Question How much for a b?

[67]

Detective Constable Green then asked the target the further
    question, How much for a b? The appellant replied, 230.

[68]

The question How much for a b? provided the appellant with the
    opportunity to commit the offence of trafficking cocaine.
As
    noted above, it is the specific offer to purchase the drugs that amounts to an
    opportunity to commit the crime:
Ahmad SCC
, at para. 59;
Imoro
,
at
    paras.
3, 16
.

[69]

By the time Detective Constable Green asked, How much for a b?,
    he had
a reasonable suspicion that the appellant was involved
    in trafficking cocaine and it was therefore permissible to provide the
    appellant the opportunity to commit the offence.

Whether the Facts in this Case are Indistinguishable from Those in Mr. Williams
    Case

[70]

I
    do not accept the appellants submission that this case is indistinguishable
    from the case of Mr. Williams, one of the appellants in
Ahmad
    SCC
. In both cases, the
police
    were working from a tip that the individual was a cocaine dealer
and contacted
    the number they were given in the tip. However, unlike this case, in the case
    of Mr. Williams
,
immediately after introducing
    himself, the police officer requested a specific quantity of cocaine from Mr. Williams.
    This was an offer to purchase, which offer was accepted. The exchange was as
    follows:

Male
:
    Hello.

Canepa
: Jay?

Male
:
    Yeah.

Canepa
: You around?

Male
:
    Who is this?

Canepa
: Its Vinny.

Male
:
    Vinny who?

Canepa
: Vinny. Jesse from Queen and Jarvis gave me your name
    . . . your number. Said you could help me out.
I need 80.

Male
:
    Okay. You have to come to me.

[71]

In
    the case of Mr. Williams, as soon as the target confirmed who he was, the
    officer presented
an opportunity to traffic drugs by asking to
    purchase a specific quantity, 80, slang for a dollar amount of cocaine. Once Mr.
    Williams responded Okay the offence of trafficking by offer was complete:
Ahmad
    SCC,
at para. 79.

[72]

However, there was nothing in Mr. Williams responses before the officer
    provided the opportunity to traffic that suggested the phone number was being
    used to traffic drugs. Mr. Williams responded positively to the name Jay
    provided in the tip, but this corroboration of one aspect of the tip was not
    enough to ground a reasonable suspicion as it does not strengthen the tip in
    its assertion of illegality:
Ahmad SCC
, at para. 80, citing
J. L.
,
    at p. 272.

[73]

Therefore, in Mr. Williams circumstances
,
the police
    provided the opportunity to traffic cocaine without yet having reasonable
    suspicion that Mr. Williams was selling cocaine. In this case, the
    question How much for a b? constituted an opportunity to traffic. Unlike the
    situation involving Mr. Williams
,
Detective Constable Green provided
    the opportunity to traffic after he had formed reasonable suspicion, based on the
    information he had and the appellants response to the question U good for
    powder?

[74]

As such, this case is distinguishable from the circumstances in Mr. Williams
    case, discussed in
Ahmad SCC
.

CONCLUSION

[75]

For
    the above reasons, while the trial judge did not have the benefit of the
    Supreme Courts decision in
Ahmad SCC
, I see
    no error in her analysis or her conclusion that the appellant was not
    entrapped.

[76]

I would therefore dismiss the appeal.

Released: February 11, 2022 K.F.

J.A.
    Thorburn J.A.

I
    agree. K. Feldman J.A.

I agree. J.C. MacPherson J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE : R. c. Mohamed, 2022 ONCA
    124

DATE: 20220201

DOSSIER: M53132 (C69159)

Le Juge Rouleau (juge de motion)

ENTRE

Sa Majesté la reine

Intimée

et

Mubarak Mohamed

Requérant

Nicholas St-Pierre, pour le requérant

Davin Michael Garg, pour l
intimée

Date de laudience : le
    28 janvier 2022 par visioconférence

INSCRIPTION

[1]

Le requérant sollicite une mise en liberté sous
    caution en attendant la décision de son appel. La couronne oppose la demande.

[2]

La couronne ne conteste pas que lappel nest
    pas futile ou que le requérant se livrera en conformité avec les termes de lordonnance.
    Par contre la couronne maintient que l
e requérant ne sest
    pas acquitté de son fardeau sur le troisième critère décrit dans larrêt
R. c. Oland
, 2017 CSC 17, [2017] 1 R.C.S.
    250, cest-à-dire de démontrer que sa détention nest pas nécessaire dans lintérêt
    public. Le critère de lintérêt public comporte deux volets : la sécurité publique
    et la confiance du public
envers l
administration
    de la justice.

[3]

Quant au deuxième volet, la cour doit balancer deux
    considérations opposées : la force exécutoire du jugement et le caractère
    révisable
de celui-ci.

[4]

La couronne souligne correctement qu
il sagit ici dune infraction sérieuse.
Le
    requérant a commis une agression sexuelle contre une jeune femme qui comprenait
    la pénétration de son vagin avec le pénis du requérant. La plaignante demeure
    traumatisée par cet incident.

[5]

De plus, la couronne signale que le requérant

possède un casier judiciaire pertinent ayant
    été condamné pour
des infractions à plusieurs reprises
    de 2015 au présent. Notamment, son casier judiciaire comporte plusieurs
    condamnations pour défaut de se conformer à son engagement en attendant l
issue de son procès en cette affaire.

[6]

La peine imposée en
lespèce
    est de quatre ans et, à date,
le requérant a purgé près
    dun an de celle-ci. En ce qui a trait aux

moyens dappel, la couronne maintient que ceux-ci sont faibles et tentent
    de remettre en cause les conclusions du juge concernant la crédibilité des
    témoins, domaine où un juge du procès commande une déférence particulière.

[7]

Finalement, la couronne est davis que le plan de
    surveillance est
insuffisant. Deux des cautions proposées
    par le requérant étaient des cautions chargées de superviser le requérant au moment
    de son bris avant le procès. Ceci, la couronne explique, laisse entendre que
    les cautions proposées ne sont pas capables d
assurer la
    bonne conduite de lappelant.

[8]

À mon avis, la demande doit être accordée.
    Puisque l
appel na pas encore été mis en état, il est
    difficile dévaluer la force des moyens dappels avancés. Lavocat du requérant
    explique que le requérant lui-même a préparé son avis dappel. Son avocat
    propose maintenant davancer de différents moyens dappel que ceux présentés
    dans lavis dappel déposé à la cour. Les moyens dappel quil propose maintenant
    ne sont pas, à mon avis,
frivoles. Il soulève des
    questions qui ne sont pas strictement liées à la crédibilité des témoins. Il a,
    par exemple, identifié deux instances o
ù
, selon lui, le juge de première instance se serait engagé dans de
    la spéculation non permise.

[9]

En ce qui a trait au plan de surveillance, le
    requérant reconnait qu
il a violé ses engagements en attendant
    lissu de son procès, mais,
ceci dit, il a par la suite
    plaidé coupable à cette infraction et, pour presque un an avant le procès, n
a commis aucun bris additionnel. De plus, une troisième caution
    sajoute aux deux cautions originales, et tous les trois sengagent à sacquitter
    de leur devoir de façon consciencieuse.

[10]

Lavocat du requérant maintient quil peut mettre
    le dossier en état assez rapidement. Il reconnait que linfraction est certainement
    sérieuse,
mais le fait que le requérant a déjà purgé
    près d
un an de sa peine est certainement
pertinent à la confiance du public envers l
administration
    de la justice.

[11]

Lavocat du requérant a reconnu au cours de la plaidoirie
    que les conditions quil proposait ne sont pas appropriées dans les
    circonstances et que les conditions
qui étaient en
    place dans la période qui a mené au procès sont préférables. Je suis daccord.

[12]

Pour ces motifs, jaccorde la mise en liberté sous
    caution du requérant. Le requérant a démontré que lintérêt public lié au
    caractère révisable lemporte sur lintérêt lié à la force exécutoire. Je
    demande aux parties de sentendre sur les conditions appropriées. Elles devraient
    ressembler aux conditions en place dans la période précèdent le procès du
    requérant. Si les parties ne peuvent pas sentendre, je demande qu
e chacune présente une ébauche de ce qu
elle
    propose.

« Paul
    Rouleau j.c.a. »


WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the
    information relates to a young person who has received an adult sentence;

(b) in a case where the
    information relates to a young person who has received a youth sentence for a
    violent offence and the youth justice court has ordered a lifting of the
    publication ban under subsection 75(2); and

(c) in a case where the
    publication of the information is made in the course of the administration of
    justice, if it is not the purpose of the publication to make the information
    known in the community.

(3) A young person
    referred to in subsection (1) may, after he or she attains the age of eighteen
    years, publish or cause to be published information that would identify him or
    her as having been dealt with under this Act or the
Young Offenders Act
,
    chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is
    not in custody pursuant to either Act at the time of the publication.

111(1)          Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having
    appeared as a witness in connection with, an offence committed or alleged to
    have been committed by a young person.

138(1)          Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985,

(a) is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b) is guilty of an
    offence punishable on summary conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.S., 2022 ONCA 123

DATE: 20220214

DOCKET: C69889

Miller,
    Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S.

Appellant

R.S., acting in person

Breanna Vandebeek, appearing as duty counsel

Nicole Rivers, for the respondent

Heard: February 7, 2022 by
    videoconference

On appeal from
    the disposition imposed on August 17, 2021 by Justice Larry B. OBrien of the
    Ontario Court of Justice.

REASONS FOR DECISION

[1]

After a trial, R.S. was found guilty of two counts
    of sexual assault. He was sentenced to an 18-month custody and supervision order,
    comprised of 12 months in open custody, followed by six months of custody and supervision.
    He was also made subject to a 12-month probation order. R.S. appeals this
    disposition.

[2]

R.S. was 14-15 years old at the time of the
    offences. Both victims were his former intimate partners. With respect to the
    victim, M.J., in the course of consensual vaginal intercourse, R.S. penetrated
    her anally without her consent. This caused her to jump out of the bed. When
    she returned, R.S. engaged in another brief bout of anal intercourse. M.J. was
    15 years old at the time.

[3]

There were three incidents in relation to the
    other victim, E.H. On the first occasion, they were at a movie theatre. R.S.
    touched E.H. between her legs without her consent. He then forced her hand down
    his pants, onto his penis. During the second incident, after consensual
    kissing, R.S. forced oral sex on E.H. and then made her perform oral sex on
    him. R.S. then forced his penis with a condom into E.H.s anus, causing her
    pain and to jump off the bed. Once she returned, he did the same thing again.
    On the third occasion, R.S. had forced vaginal intercourse with E.H.; he
    stopped when he noticed that she was bleeding. E.H. was 14 at the time.

[4]

R.S. advanced three grounds of appeal against
    his sentence.

[5]

First, R.S. submits that the youth court justice
    erred in finding that a deferred custody and supervision order was not
    available in the circumstances. Section 42(5) of the
Youth Criminal Justice
    Act
, S.C. 2002, c. 1 provides that a deferred custody and supervision
    order is available if the young person is found guilty of an offence other
    than one in the commission of which a young person causes or attempts to cause
    serious bodily harm. The Crown and defence counsel at trial agreed that this
    disposition was not available. However, it is unclear whether they agreed that
    a deferred custody and supervision order is never available in the context of a
    sexual assault, or whether they were in agreement that it was not available on
    the facts as found by the youth justice court judge. Duty counsel also submits
    that the youth justice court judge was required to explain how he reached his
    conclusion that serious bodily harm was caused or attempted. Moreover, she
    submits that, because no evidence was called on this issue, the youth justice
    court judge must have improperly taken judicial notice of this fact.

[6]

This ground of appeal can be decided on the basis
    that there was evidence before the trial judge that allowed him to make the
    finding that s. 42(5)(a) precluded the imposition of a deferred custody and
    supervision order. The evidence of the victims at trial and the victim impact statement
    written by E.H. provided ample support for the conclusion that R.S.s actions
    caused the victims serious psychological harm.

[7]

R.S. further submits that the sentence was
    unduly harsh. We do not accept this submission. The youth justice court judge carefully
    considered all of the aggravating and mitigating factors. R.S.s conduct was
    very serious, involving two victims and multiple incidents, including vaginal
    and anal penetration. In relation to E.H., he only stopped after noticing that
    she was bleeding. These offences had a profound impact on both young victims.

[8]

The youth justice court judge took into account
    the mitigating factors, including R.S.s age and his lack of a prior youth
    justice court record. He characterized the pre-sentence report as relatively
    positive. Although the report underscored R.S.s considerable rehabilitative
    potential, it also reflected a lack of empathy for his victims.

[9]

In all of the circumstances, it cannot be said
    that the disposition crafted by the youth justice court judge was unfit.

[10]

Lastly, R.S. relies on fresh evidence that
    details his progress while subject to the open custody and supervision order. The
    Crown does not oppose the admission of this evidence; however, she submits that
    the evidence merely confirms what was established at the disposition hearing
    R.S. has excellent rehabilitative potential. It also demonstrates that R.S. is
    a low risk to re-offend.

[11]

We commend R.S. for his commitment to a good
    deal of the programming offered to him while subject to his current
    disposition. We also note his very positive scholastic achievements to date. It
    would appear that R.S. is on the right path and we encourage him to continue
    these efforts. However, this updated information does not impact the fitness of
    the disposition that was imposed.

[12]

Leave to appeal is granted, but the appeal is
    dismissed.

B.W.
    Miller J.A.

Gary
    Trotter J.A.

B. Zarnett
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gateman, 2022 ONCA 125

DATE: 20220214

DOCKET: C69772

Miller,
    Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joshua Gateman

Appellant

Joshua Gateman, acting in person

Xenia Proestos, for the respondent

Heard: February 8, 2022 by
    video conference

On appeal from
    the sentence imposed by Justice George L. Orsini of the Ontario Court of
    Justice on July 2, 2021.

REASONS FOR DECISION

[1]

The appellant entered pleas of guilty to the
    following offences: mischief under $5,000, possession of a restricted firearm
    and two counts of possession of methamphetamine.

[2]

Further to a joint submission, the trial judge
    imposed concurrent sentences of 15 months imprisonment (450 days), less credit
    for pre-sentence custody (PSC) in the amount of 68 days. The remaining time to
    be served was 382 days.

[3]

The appellant appeals his sentence on the basis
    that the sentencing judge failed to allocate proper credit for PSC. Instead of
    receiving credit on a 1:5:1 basis, the appellant says the ratio should have
    been 2:1, especially in light of the impact of COVID-19 on custodial
    communities. We do not accept this submission. The allocation of credit for PSC
    is within the discretion of sentencing judges. In this case, the amount of
    credit for PSC was an important component of the joint position. The sentence
    judge did not err in failing to give greater credit.

[4]

The appellant says he was forced into the joint
    submission by his trial counsel. However, he has not properly advanced a claim
    of ineffective assistance of counsel. The claim is unsubstantiated, and we do
    not accept it.

[5]

Ms. Proestos for the Crown advises us that there
    was an error in the sentencing judges imposition of a 15-month sentence for
    one of the counts of possession of a controlled substance. Given that the Crown
    elected to proceed summarily on this count, the maximum sentence that could be
    imposed was 12 months imprisonment. Consequently, on the Information #21-7402,
    we adjust the sentence as follows: the term that would have been imposed before
    credit is granted will be reduced to 365 days, from which 68 days credit PSC
    will be deducted. The total term of imprisonment on that count is therefore reduced
    to 297 days, to be served concurrently. All other aspects of the sentence
    remain unaltered.

[6]

Leave to appeal sentence is granted and the
    appeal is allowed in part.

B.W.
    Miller J.A.

Gary
    Trotter J.A.

B.
    Zarnett J.A.


COURT
    OF APPEAL FOR ONTARIO

CITATION: 1758704 Ontario Inc. v. Priest,
    2022 ONCA 126

DATE: 20220210

DOCKET: M52869 (C68390)

Benotto, Miller and Trotter
    JJ.A.

BETWEEN

1758704 Ontario Inc. and 1191305
    Ontario Inc.

Plaintiffs
(Respondents/Appellants by way of cross-appeal)

and

Carl Priest

Defendant
(Appellant/Respondent by way of cross-appeal)

AND BETWEEN

Carl Priest and 1737161 Ontario
    Limited

Plaintiffs by Counterclaim
(Appellants/Respondents by way of cross-appeal)

and

1758704 Ontario Inc., 1191305
    Ontario Inc. and Martin Donkers

Defendants by Counterclaim
(Respondents/Appellants by way of cross-appeal)

Maanit Zemel, for the appellants/respondents
    by way of cross-appeal

Krista McKenzie, for the
    respondents/appellants by way of cross-appeal

Heard: In writing

REASONS FOR DECISION

[1]

This is a motion for a reconsideration of the determination of this
    appeal.

[2]

On August 30, 2021, this panel released its decision:

i.

Allowing the appellants appeal against the dismissal of its
    counterclaim;

ii.

Remitting the matter back to the Superior Court for an assessment of
    damages;

iii.

Dis
missing the cross-appeal against the trial
    judges award of damages in the main action.

[3]

On September 9, 2021, the respondents wrote to the court seeking to make
    further submissions. The Executive Legal Officer of the court wrote to the
    parties and said:

The panel will not be entertaining
    further submissions on the substantive matters and accordingly will not be
    addressing the other issues set out in counsels correspondence.

[4]

Five months later, in February 2022, the same respondents brought this
    motion seeking to re-argue the appeal. They raise issues the court already said
    would not be entertained. For that reason alone, the motion must fail. In any
    event, the respondents have not come close to the high hurdle required to cause
    the court to reopen the appeal: see
Meridian Credit Union
    Ltd. v. Baig
, 2016 ONCA 942, at para. 7;
RINC
    Consulting Inc. (Roustan Capital) v. Grant Thornton LLP
, 2020 ONCA
    182, at para. 41. Nor did they establish an accidental slip or omission of
    the courts order to satisfy r. 59.06:
Baig
,
    at para. 6.

[5]

The motion is dismissed with costs in the all-inclusive amount of
    $6,000.

M.L. Benotto J.A.

B.W. Miller J.A.

Gary Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jack Ganz Consulting Ltd. v.
    Recipe Unlimited Corporation, 2022 ONCA 127

DATE: 20220210

DOCKET: C68546

Feldman, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Jack Ganz Consulting Ltd.

Plaintiff (Appellant)

and

Recipe Unlimited Corporation

Defendant (Respondent)

Patricia Virc and M. Michael Title, for
    the appellant

Ken Prehogan, Hayley Peglar and Max
    Skrow, for the respondent

Heard: in writing

On appeal from the judgment of Justice Sandra
    Nishikawa of the Superior Court of Justice, dated May 28, 2020, with reasons reported
    at 2020 ONSC 3319.

COSTS ENDORSEMENT

[1]

On December 20, 2021, this court released its decision allowing
    the appeal, setting aside the summary judgment below and remitting the matter
    for trial. The court awarded the appellant the costs of the appeal, fixed in
    the agreed amount of $20,000, and invited the parties to make written
    submissions on the costs of the summary judgment motion. We have reviewed their
    written submissions and bills of costs.

[2]

The appellant asks for its costs of the motion on
    a partial indemnity basis in the amount of $100,000. The appellant submits
    that, given the complexity of the action and its counsels unusually low rates
    relative to their years of call, it is appropriate to discount its actual costs
    by much less than the usual 40% discount to arrive at a partial indemnity
    amount. The amount requested by the appellant reflects a discount of approximately
    7% from its actual costs of the motion.

[3]

The respondent does not dispute that the
    appellant is entitled to its costs of the motion but submits that the costs
    sought by the appellant are excessive. The respondent says that a reasonable
    amount would be, at the very most, $66,047.26. However, the respondent argues
    that this amount captures costs in respect of duplicative steps taken by the
    appellant, and that a fair and reasonable costs award would therefore be
    $45,281.10.

[4]

In our view, an award of costs in the amount of
    $80,000 inclusive of disbursements and HST is a fair and reasonable amount to
    fix for the costs of the summary judgment motion. We order the costs of the
    motion to the appellant in this amount.

K.
    Feldman J.A.

A.
    Harvison Young J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Singh v. Heft, 2022 ONCA 135

DATE: 20220211

DOCKET: M52917 (C69683)

Pepall, Thorburn and Coroza
    JJ.A.

BETWEEN

Alka Singh

Client/Respondent

(Appellant/Moving Party)

and

Reesa Heft and Heft Law

Solicitors/Appellants

(Respondents/Responding Parties)

Alka Singh,
    acting in person

Nancy Cellucci, for the responding
    parties

Heard: February 4, 2022 by video conference

Pepall J.A.:

Background

[1]

The respondent, Reesa Heft, is a lawyer with the respondent, Heft Law.
    The appellant, Alka Singh, was her client. The respondents rendered six
    accounts totaling $152,262.48 to Ms. Singh of which she has already paid
    $146,940.18.

[2]

Ms. Singh applied to have the respondents legal bills assessed pursuant
    to the provisions of the
Solicitors Act
,
    R.S.O. 1990, c. S.15. In May 2017, Perell J. made such an order on consent.

[3]

The Assessment Officer conducted the assessment and concluded that the
    respondents had failed to establish that their fees were fair and reasonable.
    The Assessment Officer reduced the fees to $80,000 plus HST and disbursements.
    Ms. Singh was therefore entitled to a refund of over $50,000.

[4]

The respondents brought a motion before a judge of the Superior Court of
    Justice opposing confirmation of the Assessment Officers Certificate of
    Assessment.

[5]

The motion judge set aside the Assessment Officers order and referred
    the fees to be assessed anew before a different assessment officer. The motion
    judge concluded that the Assessment Officer had exceeded her jurisdiction as
    under the
Solicitors Act
,
an assessment
    officer may not conduct an assessment where, as here, the retainer is disputed.
    In addition, the motion judge concluded that the Assessment Officer had erred
    by failing to consider the respondents objections and in refusing to receive
    evidence proffered by the respondents in response to serious allegations of
    misconduct.

[6]

Ms. Singh sought to appeal the order of the motion judge to this court.

[7]

The parties then raised the issue of jurisdiction before a single judge
    of this court. However, a single judge does not have the power to decide
    whether an appeal is within the jurisdiction of this court and the issue was
    therefore referred to this panel to decide.

[8]

Before us, the respondents argue that the order under appeal is
    interlocutory and not final in nature and hence any appeal lies to the
    Divisional Court with leave. Ms. Singh submits that, to the contrary, the order
    under appeal is final.

Analysis

[9]

Section 6(1)(b) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43, provides that an appeal lies to the Court of Appeal from
    a final order of a judge of the Superior Court of Justice, while s. 19(1)(b)
    provides that an appeal lies to the Divisional Court from an interlocutory
    order of a judge of the Superior Court of Justice, with leave as provided in
    the rules of court. Long ago, in
Hendrickson v. Kallio
,
    [1932] O.R. 675 (C.A.), at p. 678, Middleton J.A. for the court explained the
    distinction between final and interlocutory orders:

The interlocutory order from which there is no
    appeal is an order which does not determine the real matter in dispute between
    the parties  the very subject matter of the litigation, but only some matter
    collateral. It may be final in the sense that it determines the very question
    raised by the application, but it is interlocutory if the merits of the case
    remain to be determined.

[10]

Since
Hendrickson
, the court has, on
    many occasions, considered and refined the distinction between final and
    interlocutory orders. For example, in
Ball v. Donais

(1993),
    13 O.R. (3d) 322 (C.A.), at p. 324, the court held that even where an order
    does not finally dispose of the rights of the parties to the litigation, it
    will be final for the purposes of appeal if it disposes of an issue raised by
    way of defence and thereby deprive[s] the defendant of a substantive right which
    could be determinative of the entire action. And in
Buck Brothers Ltd. v.
    Frontenac Builders Ltd.
(1994), 19 O.R. (3d) 97 (C.A.), the court held
    that an order disposing of an application is a final order if it ends the
    particular proceeding before the court, even if it does not finally determine
    another, quite possibly larger, issue between the parties which may be
    determined in a subsequent proceeding or process.

[11]

Recently, in
Paulpillai Estate v. Yusuf
,
    2020 ONCA 655, at para. 16, Jamal J.A. (as he then was) summarized the
    applicable principles as follows:

The main principles that determine whether an
    order is interlocutory or final are well known:

1. An appeal lies from the courts order, not
    from the reasons given for making the order.

2. An interlocutory order does not determine
    the real matter in dispute between the parties  the very subject matter of the
    litigation  or any substantive right[.] Even though the order determines the
    question raised by the motion, it is interlocutory if these substantive matters
    remain undecided.

3. In determining whether an order is final or
    interlocutory, one must examine the terms of the order, the motion judges
    reasons for the order, the nature of the proceedings giving rise to the order,
    and other contextual factors that may inform the nature of the order.

4. The question of access to appellate review
    must be decided on the basis of the legal nature of the order and not on a
    case by case basis depending on the application of the order to the facts of a
    particular case. In other words, the characterization of the order depends
    upon its legal nature, not its practical effect. [Citations omitted.]

[12]

The
    decision of this court in
Karbaliotis v. Anaheim Unit
    Investors
(1996), 89 O.A.C. 58 (C.A.) exemplifies these principles.
    There, a judge set aside an assessment officers certificate of assessment and
    directed a trial of an issue. On appeal to this court, the appeal was quashed
    on the basis that it was interlocutory in that it did not finally dispose of
    the rights of the parties.

[13]

Similarly, in
Zaldin & Zaldin v.
    Carpenter
, 1994 CarswellOnt 4517 (Div. Ct.), citing
    this courts decision in
Buck Brothers Ltd.
, the Divisional Court held
    that an order setting aside a certificate of assessment and remitting the
    matter for a new hearing was interlocutory. In contrast, in
Somerleigh v.
    Brayshaw
(1993), 15 C.P.C. (3d) 160 (Ont. Div. Ct.), the Divisional Court
    held that an order that set aside an assessment officers report but settled
    the account was a final order. The motion judge had finally determined the
    substantive issue between the parties.

[14]

As in
Kabaliotis

and
Zaldin
,
    in the case before us, the motion judge set aside the certificate of assessment
    and
directed that a new assessment be conducted
    before a different assessment officer. The motion judge
did not finally
    dispose of the matter. The subject matter of the litigation between the parties
    and their substantive rights remain to be determined. As a result, the order Ms.
    Singh seeks to appeal is interlocutory.

[15]

Ms. Singh relies on this courts decision in
Lala
    v. Basman Smith LLP
,
2017 ONCA 614,

where this court
    considered an appeal of an order setting aside an assessment officers
    certificate of assessment and referring the matter to a new assessment officer.
    The fact that this court may have heard an appeal from such an order does not
    establish the courts jurisdiction. Where a party seeks to rely on case law in
    which the issue of jurisdiction was not raised or decided, the case law is not
    conclusive. For example, in
CIBC Mortgages Inc. (FirstLine Mortgages) v.
    Computershare Trust Co. of Canada
,

2015 ONCA 846, 342 O.A.C. 49, at para. 12, the
    court held that appeal decisions where the issue of jurisdiction was not raised
    or decided do not establish the jurisdiction of the court in a subsequent
    appeal. In
Lala
,
although appellants counsel cited the basis
    for jurisdiction in the notice of appeal and factum, there is no suggestion
    that the courts jurisdiction was contested by the respondent, nor did the
    court address or even mention the issue of jurisdiction. As such,
Lala
and cases like it are not determinative of jurisdiction.

[16]

In the alternative, Ms. Singh submits that both
    the motion judges conclusion that the Assessment Officer exceeded her
    jurisdiction by interpreting the scope of the retainer and her decision
    relating to the admissibility of certain evidence were final decisions. As
    such, she argues that this court has jurisdiction over any attendant
    interlocutory component of the order.

[17]

I do not agree with Ms. Singhs submission. As
    mentioned, an appeal lies from the order, not from the reasons for decision.
    The order made by the motion judge is not similar to the orders relied upon by
    Ms. Singh:
Ball
;
Stoiantsis v. Spirou
, 2008 ONCA 553,
    91 O.R. (3d) 184;
Hopkins v. Kay
, 2014 ONCA 514; and
Abbott v.
    Collins
(2002), 62 O.R. (3d) 99 (C.A.). In all of these cases, the court
    considered the order to be final because it disposed of a substantive right of
    the defendant by precluding it from raising an issue that could be
    determinative of the appeal. This is not the case here.

[18]

Similarly, the evidentiary decision was
    interlocutory in nature as it did not determine the matter in dispute nor any
    substantive right: see e.g.,
Bonello v. Gores Landing Marina
    (1986) Limited
, 2017 ONCA 632, 39 C.C.L.T. (4th) 175, at para. 14.

Disposition

[19]

In
    conclusion, the order of the motion judge is interlocutory in nature and the
    appeal is to the Divisional Court with leave. Accordingly, I would order that
    the appeal to this court be quashed and that the appellant pay the respondents
    $1,500 in costs inclusive of disbursements and applicable tax. Counsel for the
    respondents advised at the hearing of this motion that the respondents will
    consent to an extension of time for Ms. Singh to seek leave to appeal to the
    Divisional Court.

Released: February 11, 2022 S.E.P.

S.E.
    Pepall J.A.

I
    agree. Thorburn J.A.

I
    agree. S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Desjardins General Insurance Group
    v. Campbell, 2022 ONCA 128

DATE: 20220215

DOCKET: C68843

Benotto, Brown and
    Harvison Young JJ.A.

BETWEEN

Desjardins General
    Insurance Group, and The Personal Insurance Company, and State Farm Insurance

Applicants (Appellants)

and

Ruth
and Leonard
Campbell
, and Grace (Grazyna) and Thomas
    Blazejewski

Respondents (
Respondent
)

Pasquale Santini, for the appellants

Joseph Obagi and Sarah Russell, for the
    respondent Ruth Campbell

Heard: September 10, 2021, by video
    conference

On appeal from the order of Justice Marc
    Smith of the Superior Court of Justice, dated October 30, 2020.

Harvison Young J.A.:

A.

Overview

[1]

This appeal arises out of a number of
    applications and motions involving three separate insurance claims for damages
    to homes caused by a tornado that hit the city of Ottawa on September 21, 2018.
    The respondent Ruth Campbells home was one of them. The appellant Desjardins
    General Insurance Group [Desjardins] was the homes insurer.

[2]

Following a disagreement between the parties
    over the value of the loss, the respondent triggered the appraisal mechanism
    under s. 128 of the
Insurance Act
, R.S.O. 1990, c. I.8. She appointed
    as appraiser her lawyer Mr. Joseph Obagi. Desjardins appointed an employee, who
    was the adjuster assigned to the respondents file. The appraisers agreed on
    the choice of an umpire.

[3]

After Mr. Obagi advised that he might be
    bringing a bad faith claim on the respondents behalf arising from the
    adjustment of her file, the umpire expressed concern about Mr. Obagis dual
    role as both an appraiser and a lawyer in the incipient action. He also
    expressed concern with the independence of Desjardins appraiser. He advised
    the parties that the appraisal must be seen to function as an independent
    panel under the Insurance Act where there is no actual or perceived conflict of
    interest. He was not prepared to proceed without directions from the Superior
    Court of Justice.

[4]

While Desjardins satisfied the umpires
    concern by eventually appointing an appraiser who was not an employee, the
    respondent maintained her choice of Mr. Obagi. Desjardins brought an
    application for judicial direction, asking the court, among other things, to
    remove Mr. Obagi as the respondents appraiser. The application judge held that
    while the umpire is required to be impartial, that is not true of the
    appraisers selected by the parties. The appellants
Desjardins General Insurance Group, The Personal Insurance Company,
    and State Farm Insurance
appeal from that decision.

[5]

The only issue on appeal is whether the
    application judge erred in not removing Mr. Obagi as the respondents appraiser
    for lack of independence.

[6]

I would dismiss this appeal. While the
    application judge erred in characterizing the appraisal process as an
    administrative tribunal, he was correct in finding that there was no basis for
    requiring the removal of Desjardins choice of appraiser who is also her
    lawyer.

B.

Background

[7]

On September 21, 2018, a tornado damaged the
    respondents home, which was deemed a total loss. Steven Keane, a Desjardins
    employee, was the adjuster assigned to her file. Between January and March
    2019, Desjardins presented estimates to the respondent. In March 2019, the respondents
    family (the Campbell family) contracted with Omega Homes to rebuild their
    home. In April, Ms. Campbell requested an appraisal and, in May, she submitted
    an interim proof of loss. Desjardins appointed Mr. Keane (the adjuster) as
    appraiser and Ms. Campbell appointed Mr. Obagi. The appraisers agreed to
    appoint William Neville as umpire.

[8]

On May 23, 2019, the appraisers and the umpire
    held their first case conference. At that point, Mr. Obagi advised that he
    might be asserting a bad faith claim on behalf of Ms. Campbell arising from the
    adjustment of her file.

[9]

On May 27, 2019, Mr. Obagis law firm was
    retained to represent the Campbell family and two other families in an action
    for punitive damages against the appellants, Mr. Keane and others. This
    concerned Mr. Neville, who, in an email on the same day, wrote the following: Based
    on the previous experience that I shared with you both, I am certain you will
    appreciate that I would be less inclined to proceed with the appraisal if there
    was going to be a lawsuit with bad faith elements imbued within it about to
    be launched as between the insured and insurer.

[10]

On June 14, 2019, Mr. Neville unilaterally suspended
    the appraisal pending direction from the Superior Court of Justice on whether (a)
    Mr. Obagi can reasonably function as an appraiser on behalf of Ruth Campbell
    while continuing to act as her counsel in the lawsuit (my view is that he
    cannot); and if not, who his replacement should be; (b) Mr. Keane can
    reasonably function as an appraiser on behalf of his nominating insurer while
    remaining a party in the lawsuit (my view is that he cannot); and if not, who
    his replacement should be.

[11]

On July 8, 2019, Mr. Neville advised the
    appraisers that he was not prepared to proceed with the appraisal if the
    Campbell Family maintained their wish to have Mr. Obagi (or a member of his
    firm) act as an appraiser and similarly, where Desjardins sought to have an
    employee serve as an appraiser. He stated: Surely the Tribunal must be seen to
    function as an independent panel under the
Insurance Act
where there
    is no actual or perceived conflict of interest.

[12]

Desjardins responded to the umpires concerns.
    It removed Mr. Keane as the appraiser and appointed Michael Martin, another
    employee of Desjardins who had not been involved in the dispute or in adjusting
    the loss. This change did not alleviate the umpires concerns because
    Desjardins was a party in the claim. Desjardins therefore appointed a
    non-employee, John Valeriote of Crawford & Company. The Campbell Family did
    not wish to change Mr. Obagi as their appraiser.

[13]

Desjardins then brought an application to, among
    other things, remove Mr. Obagi as an appraiser, arguing that the appraisal
    process is an administrative tribunal and the two appraisers and the umpire
    must all be impartial. Desjardins contended that although the Ontario
    legislature had not specifically stated in the
Insurance Act
that an
    appraiser should be impartial and/or disinterested, the statute implied that
    they should be.

[14]

The application judge found that the appraisal
    process under the
Insurance Act
is an administrative tribunal, created
    to establish the value of the loss. He
noted that
s. 128(2)
of the Act,
    which provides that both parties shall appoint an appraiser, contains no
    restrictions imposed upon the parties regarding
who
can act as an
    appraiser. He took heed of the common practice in the insurance sector, whereby
    the insurers appoint an employee (property adjuster) to act as their appraiser
    while the insureds appoint a lawyer, a public adjuster, or even themselves to
    act as appraiser.

The Statutory Framework

[15]

It will be useful for the purposes of the
    following discussion to set out the relevant sections of the
Insurance Act
,
    namely ss. 128 and 148:

Contracts providing for appraisals

128
(1) This
    section applies to a contract containing a condition, statutory or otherwise,
    providing for an appraisal to determine specified matters in the event of a
    disagreement between the insured and the insurer.

Appraisers, appointment

(2) The insured and the insurer shall each
    appoint an appraiser, and the two appraisers so appointed shall appoint an
    umpire.

Appraisers, duties

(3) The appraisers shall determine the matters
    in disagreement and, if they fail to agree, they shall submit their differences
    to the umpire, and the finding in writing of any two determines the matters.

Costs

(4) Each party to the appraisal shall pay the
    appraiser appointed by the party and shall bear equally the expense of the
    appraisal and the umpire.

Appointment by judge

(5) Where,

(a)  a party fails
    to appoint an appraiser within seven clear days after being served with written
    notice to do so;

(b)  the appraisers
    fail to agree upon an umpire within fifteen days after their appointment; or

(c)  an appraiser or
    umpire refuses to act or is incapable of acting or dies,

a judge of the Superior Court of Justice may
    appoint an appraiser or umpire, as the case may be, upon the application of the
    insured or of the insurer.

[]

Statutory conditions

148
(1) The
    conditions set forth in this section shall be deemed to be part of every
    contract in force in Ontario and shall be printed in English or French in every
    policy with the heading Statutory Conditions or Conditions légales, as may
    be appropriate, and no variation or omission of or addition to any statutory
    condition is binding on the insured.

[]

Appraisal

11. In the event
    of disagreement as to the value of the property insured, the property saved or
    the amount of the loss, those questions shall be determined by appraisal as
    provided under the
Insurance Act
before there can be any recovery under
    this contract whether the right to recover on the contract is disputed or not,
    and independently of all other questions. There shall be no right to an
    appraisal until a specific demand therefor is made in writing and until after
    proof of loss has been delivered.

The Decision Below

[16]

The application judge described the appraisal
    process as an informal valuation, not an arbitration, run entirely by the
    umpire as they see fit. To that end, he noted:

·

There is no requirement for a hearing, nor is
    there a prohibition that one take place;

·

If oral evidence is presented, contractors
    and/or insureds can be called to testify, and cross-examinations can occur;

·

Experts can be asked to attend a hearing and
    provide their opinion;

·

The hearing can last a few hours, one day or
    span over many days; and

·

The valuation can also be entirely based upon
    written documentation.

[17]

The application judge found that the umpire is
    the sole decision maker.
While s. 128(3) of the Act
    sets out the duty of the appraisers to determine the matters in disagreement,
    it is silent regarding the umpires role and responsibilities. The umpire,
    after hearing and considering all the evidence (oral and/or documentary), as
    presented by the appraisers, decides between two competing valuations (insurer
    or insured), and the umpires selection determines the value of the loss. It is
    the umpires choice and nothing else that creates the majority decision that
    determines the value of the loss. The umpire, he stated, must always be
    independent and impartial, and in the event that they find it appropriate to
    hold a hearing, it must be conducted in a manner that ensures procedural
    fairness.

[18]

The application judge described
the appraisers role as one of presenting evidence that supports their
    assessments of the loss. The appraisers do not give evidence but merely plead
    the case on behalf of the clients and present the evidence in a manner meant to
    persuade the umpire that their valuation of the loss is reasonable and
    appropriate in the circumstances. He summarized these points as follows:

In sum, the choice
    of the appraiser belongs to the party.  It is expected that the chosen
    appraiser will vigorously advocate the clients position, with the goal of
    convincing the other appraiser, or more importantly, the umpire as the sole
    decision maker of the appraisal process.  Selecting an advocate as an appraiser
    does not eliminate the integrity of the appraisal process. Rather, it ensures
    that the partys respective positions are properly advanced before the umpire,
    in the best interest of the client.

[19]

After the application judges decision, the
    parties agreed to proceed with the appraisal with the same parties,
    notwithstanding the pending appeal. As at the time of the appeal hearing, both
    appraisers had submitted their appraisal brief and put forward their numbers.

C.

Issues on Appeal

[20]

The central issue on the appeal is whether the
    application judge erred in rejecting the appellants submission that the
Insurance
    Act
implicitly imposes a duty of independence and impartiality on
    appraisers. In the course of the oral hearing, the correctness of the application
    judges decision in characterizing the appraisal scheme under the
Insurance
    Act
as an administrative tribunal was also questioned.

D.

Submission of the Parties

[21]

The appellants argue that the application judge
    erred in finding that an appraiser is an advocate and not a decision maker
    because this offends the principle of impartiality and breaches procedural
    fairness. In doing so, they argue, he also erred in relying on the witnesses
    understanding of the role rather than the wording of s. 128(3) of the
Insurance
    Act
and the jurisprudence. Moreover, they submit, the application judge
    also erred by misinterpreting and misapplying the legislative amendment of Statutory
    Condition 11 under s. 148, which removed the word disinterested, and failed
    to give effect to the requirement that a decision maker in the context of an
    administrative tribunal be independent from the parties before them.

[22]

The respondent argues that the
Insurance Act
expressly permits the parties to an appraisal to appoint an appraiser of their
    choice and that choice need not be neutral, non-partisan or independent
    of the parties. She further notes that the suggestion that an appraiser
    appointed by the parties must be neutral runs contrary to the legislative
    scheme created by the
Insurance Act
and to the practice in the
    industry where insurers regularly appoint their own employees or adjusters as
    appraisers and parties often appoint their lawyer.

[23]

There is no dispute between the parties that
    this appeal depends on  statutory interpretation, which is a pure question of
    law. The standard of review is therefore one of correctness:
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.

E.

Discussion

(1)

The application judge correctly interpreted the
    relevant provisions of the
Insurance Act.

[24]

In modern statutory interpretation, the words
    of an Act are to be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of Parliament:
Rizzo & Rizzo Shoes Ltd. (Re)
,
    [1998] 1 S.C.R. 27, at para. 21. As Professor Ruth Sullivan notes in her text
    on statutory interpretation, [t]he ordinary meaning of a word or a group of
    words is not their dictionary meaning but the meaning that would be understood
    by a competent language user upon reading the words in their immediate context:
    Ruth Sullivan,
Statutory Interpretation
, 3rd ed. (Toronto: Irwin Law,
    2016), at p. 61.

[25]

The appellants submit that because s. 128 of the
Insurance Act
removes the quantification of the loss from the courts
    and gives it to the appraisal process, all participants in the appraisal
    process who have the power to quantify the loss must also act judicially.
Put another way, the argument is that it is not only the umpire who
    must act judicially but also the two appraisers. For that reason, the
    appraisers must be impartial as well as the umpire.

[26]

This submission is flawed for a number of
    reasons.

[27]

First, it is well established that the purpose
    of the appraisal scheme under the
Insurance Act
is to provide an easy,
    expeditious, and cost-effective means for the settlement of claims for
    indemnity under insurance policies:
Madhani v. Wawanesa Mutual Insurance
    Company
, 2018 ONSC 4282 (Div. Ct.), at para. 46;
Northbridge General
    Insurance Corp. v. Ashcroft Homes-Capital Hall Inc
., 2021 ONSC 1684, at
    para. 23. The narrow function of the appraisal process is to provide the
    parties to the dispute with a valuation of the loss, and not the determination
    of legal rights:
Madhani
, at para. 40.

[28]

The appraisal process is not exhaustive of all
    potential disputes between the parties. For example, there may be a dispute
    about the scope of coverage such as whether landscaping restoration is covered.
    While such a loss might be valued as part of the appraisal process, that
    process cannot address other issues.

[29]

Second, as Perell J. noted in
Northbridge
,
    at para. 29, the process is designed to be collaborative and not adjudicative:

The appraisal
    process is designed to be collaborative and not adjudicative, and the process,
    which does not require a hearing with evidence, contemplates that the
    appraisers and the umpire will arrive at a binding decision based on their own
    knowledge and expertise. The umpire is the ultimate impartial decision-maker
    that makes a binding determination that removes the quantification of the loss
    from the court. As for procedure, the umpire may permit viva voce testimony
    under oath and may receive affidavit evidence but he or she is not required to
    do so. [Footnotes omitted.]

This point also relates to the
    question of whether the application judge correctly described the process as an
    adjudicative tribunal which will be addressed further below.

[30]

Third, as the application judge noted, the
    legislature removed the qualification competent and disinterested from the
    word appraiser through
An Act to Amend the Insurance Act
, S.O. 1966,
    c. 71, s. 8. The appellants, in effect, ask this court to read this
    qualification back into the statute.

[31]

The court must give effect to what the
    legislature intended. The best source of the legislatures intention is the
    legislation itself. As the application judge noted, ss. 128(2) and (3) of the
    Act have never stipulated that appraisers must be competent and disinterested.
    While a previous version of Statutory Condition 11 at s. 148 of the Act
    stipulated that both appraisers and umpires had to be competent and
    disinterested, this condition was removed by the 1966 amendment. Although no
    explanation was given for this change, it must be presumed that the legislature
    was not simply careless with the language and did not intentionally make the
    statute vague: see Sullivan, at p. 41;
D. R. Fraser Co. v. Minister of
    National Revenue
, [1948] 4 D.L.R. 776 (P.C.), at p. 781. The legislature
    must have intended to remove the qualification competent and disinterested
    for appraisers. Were it found otherwise, insureds would not be able to
    self-represent and provide a valuation of their own loss.

[32]

The appellants argue that the reason s. 128 of
    the
Insurance Act
does not explicitly state that an appraiser must be
    independent is because the ordinary meaning of the terms appraisal and
    appraiser imply a degree of independence. In support of this argument the
    appellants submit the
Blacks Law Dictionary
definition of the term
    appraisal as meaning [a] valuation or estimation of value of property by
    disinterested persons of suitable qualifications and of the term appraiser
    as meaning [a]n impartial person who estimates the value of something, such as
    real estate, jewelry, or rare books.  Also termed valuer. It must be noted
    that these definitions have been lifted out of different editions of the
    dictionary: Joseph R. Nolan et al.,
Blacks Law Dictionary
, 6th ed.
    (St. Paul, Minn.: West Publishing, 1990), sub verbo appraisal; Bryan A.
    Garner et al. 8th ed. (St. Paul, Minn.: Thomson/West, 2004), sub verbo
    appraiser. In any event,
Blacks Law Dictionary
definitions are not
    helpful as they cannot take into account the context and purpose of the
    appraisal process under the
Insurance Act
.

[33]

The cases relied on by the appellants for the
    proposition that appraisers must be disinterested do not assist them.

[34]

In both
Ice Pork Genetics Inc. v Lombard
    Canada Ltd. et al
, 2010 MBQB 77, and
Florida Insurance Guaranty
    Association, etc. v. Branco
(2014), 148 So. 3d 488 (Fla. 5th Dist. Ct.
    App.), the court was interpreting legislation or an insurance policy which
    specified that appraisers must be disinterested. There is no such provision in
    the Ontario
Insurance Act
.

[35]

In
Congregation of Knox's Church (Trustees)
    v. Hudson's Bay Co
., [1993] O.J. No. 764 (Ont. C. J. (Gen. Div.)), the
    court was concerned with the narrow issue of whether valuators appointed
    pursuant to a private act of the Ontario legislature to determine rental lands
    leased to Hudsons Bay Company had to be independent. As such, the case is not
    helpful in the insurance context.

[36]

While appraisers need not be disinterested, I
    would disagree with the application judge that they are therefore advocates.
    The purpose of the appraisal scheme under the
Insurance Act
is to
    provide an easy, expeditious, and cost-effective means for the settlement of
    claims for indemnity under insurance policies:
Madhani
, at para. 46;
Northbridge
,
    at para. 23. It is designed to be collaborative and not adjudicative:
Northbridge
,
    at para. 29. To fulfil the purposes of the appraisal scheme outlined above and
    to facilitate a collaborative process, an appraiser must attempt, in good
    faith, to reach a compromise with their fellow appraiser. That does not
    preclude the appointment of one partys lawyer as their appraiser as well, but
    the appraisal process presupposes that each appraiser work collaboratively.
    While this involves advocacy in the sense that each side may be expected to
    advocate their valuation to the other, their overall role within the appraisal
    process is more collaborative and less adversarial. The umpire will ultimately
    choose one side or the other. That places a premium on each side to be reasonable
    and also to reach agreement with the other side if possible.

[37]

If the appraisers are nevertheless unable to
    agree and therefore appoint an umpire to resolve their disagreement, then the
    umpire becomes the tie breaker. At that point, the umpire becomes the ultimate
    decision maker, who must necessarily be impartial and make a binding
    determination:
Northbridge
, at para. 29. While the appraisal process
    is not subject to the SPPA, it is subject to judicial review for denial of
    procedural fairness at common law from the moment of the umpires involvement:
Madhani
,
    at paras. 37-38. It is the umpire who bears the responsibility for ensuring
    that the process is fair.

[38]

The content of procedural fairness in the
    appraisal process is modest and flexible, and will depend upon the exigencies
    of the particular case, having regard to, for example, the amount of money
    involved in the dispute:
Northbridge
, at paras. 34, 71 and 73. There
    is no requirement that reasons for decision be provided:
Madhani
, at
    para. 41. The more complex cases may require a more structured and formal
    appraisal process:
Northbridge
, at para. 73. To that end, the umpire
    enjoys considerable discretion. Courts afford the umpires choice of procedure
    considerable deference and will be reluctant to interfere unless there is proof
    of fraud, collusion, bias, or partiality on the part of the umpire, or the
    umpire or the appraisers exceed their jurisdiction under the Act:
Northbridge
,
    at para. 34,
Shinkaruk Enterprises Ltd. and Mr. Klean Enterprises Ltd. v.
    Commonwealth Insurance Company et al.
, 71 D.L.R. (4th) 681 (Sask. C.A.), at
    p. 688.

[39]

This lack of a rigid structure is deliberate,
    intended to provide the insureds and the insurers with an expeditious and easy
    means for the settlement of claims for indemnity under insurance policies:
Northbridge
,
    at para. 68. It is in the best interests of appraisers to be objective in the
    appraisal process and not harm their position by losing credibility in the eyes
    of the umpire. In other words, the appraisal process itself provides sufficient
    constraint on the conduct of appraisers.

[40]

On appeal, the appellants argued that the real
    issue in this case was Mr. Obagis dual role as appraiser and counsel in the
    insureds bad faith action against the insurer. They submit that this creates a
    conflict of interest and Mr. Obagi, in his role as appraiser, has the ability
    to influence and impact the decision in such a way that it could impact upon
    the bad faith claim.

[41]

This submission was not put to the application
    judge. The issue was rather framed as whether a lawyer, whose duties are to the
    client, can act as a disinterested appraiser. The application judge
reviewed the Acts provisions, surveyed the Hansard records, looked
    at the usual practice in the field, and concluded that an appraiser need not be
    disinterested.

[42]

In any event, the bad faith claim and the
    appraisal are different issues. The bad faith claim involves the conduct of the
    insurer prior to the reconstruction of the homes at issue, which have now been
    reconstructed and the sole issue for appraisal is their replacement cost.
    Should these issues become intertwined at a later point, for example if there
    arose a possibility that Mr. Obagi may be called as a witness, the conflict of
    interest that arose may be cured by Mr. Obagis removal as counsel of record in
    accordance with s. 5.2 of the
Rules of Professional Conduct
.

[43]

In short, the flaw in the appellants argument
    that appraisers must be independent is that it collapses the roles of the
    umpire and the appraisers. The integrity of the process depends on the
    impartiality of the umpire. The structure of the process, according to which
    the umpire ultimately chooses one appraisal over the other, encourages
    compromise and collaboration between the parties.

(2)

The appraisal process is not a tribunal.

[44]

I conclude that the application judge erred in
    finding that the appraisal process was an administrative tribunal. This issue
    was raised by the panel in the course of the oral hearing.

[45]

Before the application judge, the respondent
    argued that the appraisal process is not an administrative tribunal. The
    application judge rejected this submission and determined that [o]nce the
    appraisers and umpire have been appointed, an administrative tribunal has been
    created for the limited purposes of establishing the value of the loss. It
    removes the quantification of the loss from the Court. However, he did not
    provide any reasons in support of this determination.

[46]

With respect, the application judge erred in
    classifying the appraisal process as a tribunal. Tribunals are quasi-judicial
    decision-making bodies tasked with determining issues on the facts and law in
    each case that comes before them:
Prince Edward County Field Naturalists v.
    Ontario (Environment and Climate Change) (2016), 2 C.E.L.R. (4th) 140 (Ont.
    Environmental Review Trib.)
, at para. 42, per Gibbs and Wright (Vice
    Chairs).

[47]

There is no indication in the Act that the appraisal
    mechanism is an administrative tribunal. The appraisal process under the Act is
    not adjudicative or quasi-judicial in nature but is rather based on discussion
    and on the sharing of expertise in valuation:
Birmingham Business Centre
    Inc. v. Intact Insurance Company
, 2018 ONSC 6174 (Div. Ct.), at para. 5;
Madhani
,
    at para. 42. It is not an arbitration:
Madhani
, at para. 40. Appraisal
    does not require a hearing, consideration of evidence, or reasons:
Madhani
,
    at paras. 40-41. Appraisers and the umpire do not determine legal questions:
Madhani
,
    at para. 30.

[48]

Moreover, while the process contemplates a
    valuation process that is comprised of the appraisers and the umpire, the
    ultimate decision maker if the parties are unable to agree is the umpire and
    not the appraisers. The fact that the umpire chooses one partys appraisal over
    another does not change this. Seen in the context of the process as a whole and
    its purpose, this reflects the premium put on collaboration and efficient
    process because, as discussed earlier, the process creates incentive for the
    parties to present reasonable valuations to the umpire to maximize the prospect
    that theirs will be chosen.

F.

Costs

[49]

I would dismiss the appeal with costs in the
    amount of $8,750, including disbursements, plus HST to be paid by the
    appellants to the respondent.

Released: February 15, 2022 M.L.B.

A. Harvison Young J.A.

I agree M.L. Benotto J.A.

I agree David Brown J.A.