COURT OF APPEAL FOR ONTARIO

CITATION:
Indcondo Building
    Corporation v. Sloan, 2012 ONCA 502

DATE: 20120718

DOCKET: C54391

Goudge, Sharpe and Juriansz JJ.A.

BETWEEN

Indcondo Building Corporation

Plaintiff (Appellant)

and

Valerie Francis Sloan, David Robin Sloan and Cave
    Hill Properties Ltd.

Defendants (Respondents)

P. James Zibarras and Trung Nguyen, for the appellant

Philip P. Healey and Miranda Spence, for the respondents

Heard: March 14, 2012

On appeal from the order of Justice Ruth E. Mesbur of the
    Superior Court of Justice, dated August 30, 2011.

Goudge
    J.A.:

[1]

On March 14, 2012, this court heard two separate matters in this case.
    The first was the respondents motion to review the decision of Armstrong J.A.
    refusing to order security for costs pending appeal. The order was sought
    against counsel for the appellant because counsel was acting on contingency and
    the appeal was said to be frivolous and the appellant impecunious.

[2]

The second was the appeal itself. The appellant appeals from Mesbur J.s
    order dismissing its action commenced pursuant to an order under section 38(1)
    of the
Bankruptcy and Insolvency Act
, R.S.C. 1985 c. B-3 (the
BIA
).
    The motion judge found that the action was an abuse of process and barred by
res
    judicata
and issue estoppel because of the discharge of the appellant in
    bankruptcy and the dismissal of a prior action for the same relief brought by
    the appellant in its own capacity.

[3]

Although an order for security for costs pending appeal would have had
    only short duration, the court acceded to the respondents request to hear the
    motion for review because of the nature of the issue presented. Both matters
    were reserved.

[4]

For the reasons that follow, I would dismiss the motion to review the
    decision of Armstrong J.A. and allow the appeal.

The Motion to Review

[5]

This can readily be disposed of. In seeking security for costs against
    the appellants counsel, the respondents argue, as required by Rule 61.06, that
    the appeal is frivolous and the appellant is impecunious. They urge that
    because of the contingency arrangement, counsel has such a stake in the
    litigation that it would be unjust not to require counsel to post security.

[6]

Armstrong J.A. disposed of the respondents request without needing to
    address the requirements of Rule 61.06, because, in his view, to order counsel acting
    on contingency to post security would chill the very access to justice that is
    a main objective of the contingency fee regime.  He found that while in future,
    exceptions to this governing principle may arise, this was not such a case.

[7]

I agree. Moreover, because of the result I have reached on the appeal
    itself, it is obvious that this appeal could not be said to be frivolous, and
    in this respect Rule 61.06 could not be complied with.

[8]

I would therefore dismiss with costs the respondents motion to review
    the decision of Armstrong J.A.

The Appeal

[9]

The proceedings leading to this appeal have a somewhat tortured history.
    It began in 1992 when the appellant commenced an action against the respondent
    David Robin Sloan (Mr. Sloan). On December 10, 2001, the appellant obtained
    judgment against Mr. Sloan for $8,010,573.30.

[10]

After
    obtaining judgment, the appellant learned that Mr. Sloan had apparently
    transferred the matrimonial home to his wife, the respondent Valerie Francis
    Sloan, for no consideration, forty-five days after being served with the
    statement of claim.

[11]

As
    a consequence, on August 6, 2002, the appellant commenced an action (the 2002
    action) against Mr. Sloan, his wife and their company, the respondent Cave Hill
    Properties Ltd. to set this transfer aside as a fraudulent conveyance. The
    appellant subsequently broadened its action to claim that Mr. Sloans transfers
    of other assets and properties were fraudulent preferences as well.

[12]

On
    January 13, 2004, Mr. Sloan declared personal bankruptcy. This stayed the 2002
    action. Mr. Sloan listed the appellant as a creditor in the amount of $8.7
    million. The appellant proved its claim in bankruptcy.

[13]

At
    a meeting of creditors in March 2004, the appellant asked the Trustee whether
    he would be pursuing the transactions that were the subject of the 2002 action.
    The Trustee advised that any action to be pursued by the estate would have to
    be undertaken by creditors pursuant to s. 38 of the
BIA
because the
    estate was impecunious.

[14]

On
    August 19, 2005, Mr. Sloan was discharged from bankruptcy by order of the
    Deputy Registrar. The appellant opposed the discharge but did not attend the
    discharge hearing. It appears that no evidence was offered concerning the
    transactions that were the subject of the 2002 action, nor did the Deputy
    Registrar make any decision in connection with them.

[15]

On
    April 5, 2006, the respondents obtained an order dismissing the 2002 action.
    The action was dismissed as required by s. 178(2) of the
BIA
. There
    was no adjudication of the issues raised in that action. The appellant did not
    attend, but some months later, moved to set the order aside saying that its
    failure to attend was due to inadvertence. This motion was unsuccessful and the
    appellant has since conceded that the 2002 action was properly dismissed by
    operation of s. 178(2) of the
BIA
.

[16]

On
    April 6, 2006, the appellant attended before the Registrar and obtained an
    order pursuant to s. 38(1) of the
BIA
. That order included the
    following:

2.       THIS COURT ORDERS that the Applicant may and it is
    hereby authorized to commence and prosecute proceedings against Cave Hill
    Properties Ltd., Valerie Frances Sloan and David Robin Sloan, or any of them,
    in its own name and at its own expense and risk, for the purpose of setting
    aside any fraudulent preference, fraudulent conveyance or settlement involving
    such parties (the Proceedings).

6.       THIS COURT ORDERS that all benefits to be derived from
    the Proceedings authorized by this Order together with the costs of same, shall
    belong exclusively to the Applicant and to such other creditors of the Bankrupt
    who may within fourteen (14) days of the service upon them of the Notice agree
    to contribute
pro rata
according to the amount of their respective
    claims (or as otherwise may be agreed in accordance with the terms set out in
    the Notice) to the expense and risk of the Proceedings...

10.      THIS COURT ORDERS that any surplus that remains after
    payment of the costs of the Proceedings and the claims of the Applicant and any
    Included Creditor shall be paid to the Trustee in favour of the Bankrupts
    estate.

13.     THIS COURT ORDERS that the Trustee shall within four
    days of service of this Order upon it, execute an assignment assigning all of
    its right, title and interest in the subject matter of the Proceeding and shall
    transfer and make available, all books and documents in support thereof of
    relevance thereto and that such assignment shall vest in the Applicant and any
    Included Creditor all the right, title and interest which the Trustee has, had
    or shall have in the subject matter of the proceeding by virtue of its office
    as Trustee.

[17]

Mr.
    Sloan moved to set aside the s. 38(1) order, but ultimately abandoned his
    motion. The appellant then commenced this action on June 20, 2008 (the 2008
    action) in accordance with that order.

[18]

The
    respondents moved to dismiss the action on the basis that it was barred by the
Limitations
    Act
, 2002, S.O. 2002, c. 24, and by abuse of process,
res judicata
and issue estoppel.

[19]

The
    motion judge who heard the motion granted the order, finding that the 2008
    action was out of time. He did not deal with the other issues raised by the
    respondents. On appeal, this court set that order aside, declared that the 2008
    action was not statute-barred and reinstated the action. This required that the
    issues of abuse of process,
res judicata
and issue estoppel raised by
    the respondents motion be dealt with on the merits. That motion was heard on
    July 26, 2011. It is the decision of the motion judge on those issues that is
    before this court now.

[20]

The
    motion judge found that the 2008 action constitutes an abuse of process for
    several reasons. She found it to be a collateral attack on the discharge order
    granted to Mr. Sloan and on the order dismissing the 2002 action. She also
    found that the 2008 action cannot succeed because the underlying debt owed to
    the appellant has been released by the discharge order, and that this too makes
    it an abuse of process.

[21]

The
    motion judge also found that the 2008 action should be dismissed because the
    dismissal of the 2002 action meant that the doctrines of
res judicata
and issue estoppel apply to the issues raised in the 2008 action.

[22]

In
    this court, the respondents sought to support each of the reasons of the motion
    judge. In my view, their arguments cannot succeed. All rest on a faulty premise;
    namely, that in the 2008 action, the appellant is advancing claims identical to
    those it advanced in the 2002 action. This fails to recognize that, unlike the
    2002 action, which the appellant brought on its own behalf, the 2008 action is
    brought pursuant to s. 38(1) of the
BIA
and the claim is that of the Trustee.

[23]

In
Shaw Estate (Trustee of) v. Nicol Island Development Inc
., 2009 ONCA
    276, 51, C.B.R. (5th) at 12, this court set out the purpose of s. 38 of the
BIA
.
    Speaking for the court, Cronk J.A., at para. 37, cited with approval
Toyota
    Canada Inc. v. Imperial Richmond Holdings Ltd.
(1994), 27 C.B.R. (3d) 1
    (Alta. C.A.), at paras. 14-15, leave to appeal to S.C.C. refused, [1994]
    S.C.C.A. No. 346:

In my view, its primary purpose is to ensure that the
    bankrupts assets are preserved for the benefit of the creditors.  It
    provides the mechanism for creditors to proceed with an action when the trustee
    refuses or fails to act; thereby ensuring that assets of the bankrupt (which
    may otherwise go unrecovered) are available to creditors willing to finance the
    litigation.

The secondary purpose, relating to notice, is to make sure the
    section operates fairly.  While it is fair that those parties willing to
    accept the risks and costs of litigation receive a preference in terms of
    recovering their losses, the right to that preference must be shared with all
    creditors.

[24]

Cronk
    J.A. went on, at para. 72, to clearly describe the difference I have
    delineated:

A creditor obtaining a s. 38 order advances not his or her own
    cause of action but, rather, the trustees cause of action:
Re Zammit
(1998),
    3 C.B.R. (4
th
) 193
    (Ont. Gen. Div.), at para. 4.  The proceeding authorized by a
s. 38
order is brought
    on the basis that the trustee in bankruptcy has the right to bring the action,
    and the creditor with a
s. 38
order is taking
    the action as if the creditor were the trustee.  As the Motion Judge
    indicated, once a
s. 38
order is made,
    the creditor to whom it is granted stands in the shoes of the trustee: see for
    example,
Swerdlow
, at para. 17.  This accords with the intended
    purpose of
s. 38(1)
of the Act,
    namely, to ensure that the bankrupts assets are preserved for the benefit of
    all creditors.

[25]

This
    distinction is explicit in the s. 38(1) order obtained by the appellant. The
    order authorizes it to commence proceedings in its own name to set aside any
    fraudulent preferences involving the respondents, and for that purpose the Trustee
    is ordered to assign its right, title and interest in such claims to the
    appellant. The order provides that the appellant and such other creditors of
    the bankrupt as joined with it in contributing to the litigation, can claim any
    recovery to satisfy their claims in bankruptcy, but any surpluses must be paid
    to the Trustee in favour of the bankrupts estate.

[26]

In
    short, the proceeding authorized by this order is not an action by the
    appellant on its unsatisfied judgment. To paraphrase Cronk J.A. at para. 73 of
Shaw
    Estate
, in the s. 38 motion, the appellant was not seeking to pursue its
    own claim in bankruptcy based on its default judgment. Rather, it was seeking
    leave of the court to proceed with the Trustees claim against the respondents
    in relation to conveyances said to be fraudulent.

[27]

The
    respondents do not argue that the Trustee could not bring such an action. Nor
    do they argue that the appellant failed to meet the three prerequisites for the
    invocation of s. 38(1) of the
BIA;
namely, that it was a creditor of
    the bankrupt at the date of the bankruptcy, that it has requested the Trustee
    to take these proceedings, and that the Trustee has refused. Moreover, the
    discharge order did not bring the bankruptcy to an end, nor is it a bar to a
    subsequent s. 38 motion. See:
Shaw Estate
, footnote 5.

[28]

Rather,
    the respondents argue that the motion judge was correct to find that the 2008
    action is an abuse of process because it constitutes a collateral attack on the
    discharge order and the order dismissing the 2002 action, and because its
    foundation, the underlying debt owed to the appellant, was released by the
    discharge. The respondents also argue that the motion judge was correct to find
    the issues in the 2008 action to be subject to
res judicata
and issue
    estoppel because of the dismissal of the 2002 action.

[29]

In
    my view, these arguments all fail. The 2008 action does not constitute a
    collateral attack on the discharge order. The appellant does not bring this
    action in its personal capacity. Rather, in bringing this action, the appellant
    is standing in the shoes of the Trustee. The Trustee is indifferent to the
    discharge order in that the bankruptcy continues despite that order. Moreover,
    the discharge order is not a bar to a subsequent s. 38 motion: see
Shaw
    Estate
,
at footnote 5. As
    I have noted, the appellant does not argue that the Trustee could not bring such
    an action. Hence, by asserting the Trustees claim, the appellant can bring the
    action without indirectly attacking the discharge order by which it as creditor
    would be bound. That action is no more of an indirect attack on the discharge
    order than it would be if the Trustee brought it.

[30]

Nor
    is the 2008 action a collateral attack on the order dismissing the 2002 action.
    Had the Trustee brought the 2008 action it would not have been a collateral
    attack on the 2002 order, both because that order did not dismiss the claim on
    the merits and because in any event the Trustee was not a party to the earlier
    action. The 2008 action is no more of an attack on the dismissal order because
    it was brought by the appellant than it would be if the Trustee brought the
    2008 action.

[31]

Moreover,
    I do not think that the release of the debt owed to the appellant renders the
    2008 action an abuse of process. That action is not the assertion of the
    appellants claim in bankruptcy based on the debt owed to it, but the assertion
    of the Trustees claim based on alleged fraudulent conveyances.

[32]

Finally,
    in my view,
res judicata
and issue estoppel do not apply to the 2008
    action either as a result of the discharge order, or the order dismissing the
    2002 action. In neither of these proceedings was there an adjudication of the
    issues sought to be raised in the present action.

[33]

In
    my view, this case is distinguishable from
Morganti v. Strong
(1999),
    14 C.B.R. (4th) 127 (Ont. C.A.). In that case, the basis for this courts
    decision was that the parties had participated in a proceeding resulting in an
    adjudication of the issues sought to be raised in the s. 38(1) action at the
    hearing for the discharge order.

[34]

In
    summary, therefore, I would allow the appeal and dismiss the respondents
    motion to dismiss the 2008 action. The appellant is entitled to its costs for
    the motion and in this court, including the review of the order of Armstrong
    J.A. and the appeal itself. Because of the convoluted history of this matter,
    the best course is to have the parties make their costs submissions in writing
    in no more than five pages, to be filed within 30 days of the release of these
    reasons.

Released: July 18, 2012 (S.T.G.)

S.T.
    Goudge J.A.

I
    agree. Robert J. Sharpe J.A.

I
    agree. R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Keewatin v. Ontario
    (Natural Resources), 2012 ONCA 472

DATE: 20120703

DOCKET: M41405, M41465, M41468, M41472, M41473, M41474 (C54314)

Sharpe J.A. (In Chambers)

BETWEEN

Andrew Keewatin Jr. and Joseph William Fobister on
    their own behalf and on behalf of all other members of Grassy Narrows First
    Nation

Plaintiffs (Respondents)

and

Minister of Natural Resources

Defendant (Appellant)

and

Resolute FP Canada Inc.
    (formerly Abitibi-Consolidated Inc.)

Defendant (Appellant)

and

The Attorney General of
    Canada

Third Party (Appellant)

Robert Janes and Elin Sigundson for Keewatin et al

Michael Stephenson and Mark Crow, for the Minister of
    Natural Resources

Christopher Matthews, for Resolute FP Canada Inc.
    (formerly Abitibi)

William J. Burden and Linda I. Knol, for Goldcorp Inc.

Sean Fairhurst, for Ermineskin First Nation et al

Gary Penner and Barry Ennis, for the Attorney General of
    Canada

Peter Hutchins and Robin Campbell, for Grand Council
    Treaty 3

Bruce McIvor, for Wabauskang First Nation and Big Grassy
    First Nation

David Leitch, for Lac Seul First Nation

Heard: June 28, 2012

ENDORSEMENT

[1]

This appeal involves important issues relating to Aboriginal Harvesting
    Rights under Treaty 3 and whether Ontario has jurisdiction to grant logging
    permits that involve taking up portions of the lands covered by Treaty 3 (the
    Keewatin Lands) or to otherwise limit or qualify the Aboriginal rights at
    issue.

[2]

The following parties move for intervener status pursuant to Rule 13 of
    the
Rules of Civil Procedure
: Goldcorp Inc. (Goldcorp); Grand
    Council of Treaty 3 (Grand Council); Leslie Cameron on his own behalf and on
    behalf of all other members of Wabauskang First Nation (Wabauskang); Lac Seul
    First Nation (Lac Seul); Big Grassy First Nation, OchiichagweBabigoIning
    Ojibway Nation, Ojibways of Onigaming First Nation, Naotkamegwanning First
    Nation and Shoal Lake #40 First Nation (Big Grassy); and Ermineskin Cree
    Nation, Muskeg Lake Cree Nation #102, Whitefish (Goodfish) Lake First Nation
    #128 and Samson Cree Nation (Treaty 6).

[3]

Goldcorp and Wabauskang seek party status pursuant to rule 13.01,
    failing which they seek status as friends of the court pursuant to rule 13.02.

[4]

All other moving parties seek status as friends of the court pursuant to
    rule 13.02.

[5]

The appellants and respondents to the appeal do not oppose any of the
    moving parties being permitted to intervene as friends of the court. The
    respondent Grassy Narrows First Nation (Grassy Narrows) opposes the motions
    for party status. The appellants the Attorney General of Canada (Canada) and the
    Minister of natural Resources (Ontario) do not take strong positions on that
    issue: Ontario opposes the motions for party status but not strongly, and
    Canada supports the motions but again, not strongly. The respondent Resolute FP
    Canada Inc. supports the party status motions.

[6]

There are also issues raised with respect to the scope of possible
    argument by the interveners as well as with respect to the admission of further
    evidence.

1. Motions to intervene as friends of the court

a. Grand Council

[7]

The Grand Council represents twenty-eight First Nation communities of
    the Anishinaabe Nation. These communities all have reserves in the territory of
    Treaty 3. The legal and treaty rights of these communities are clearly affected
    by the judgment under appeal. I am satisfied that it would be only fair to
    allow the Grand Council to participate in this appeal as a friend of the court.
    I am also satisfied that it would assist this court to have before it the
    perspective of the Grand Council as the representative body of these First
    Nations communities.

b. Lac Seul

[8]

Lac Seul is a Treaty 3 First Nation and its traditional territory
    includes portions of the Keewatin Lands. Lac Seul has indicated that it will
    support the trial judgment on the same record but on different legal grounds. I
    am satisfied that it would assist court to have that different perspective
    before it when deciding this appeal.

c. Big Grassy

[9]

The Big Grassy moving parties are five Treaty 3 First Nations who have
    reserves located in the "Disputed Territory" south of the English
    River and adjacent to the Keewatin Lands. They enjoy and exercise the same
    Harvesting Rights under Treaty 3 as those of the respondent Grassy Narrows. Big
    Grassy is particularly concerned about certain portions of the trial judge's
    reasons relating to the 1891 legislation and the 1894 agreement between Canada
    and Ontario and the implications of those instruments for the status of reserve
    lands south of the English River. I will return to the question of the
    permissible scope of argument on that issue but, for the purpose of determining
    intervener status, I am satisfied that it would assist this court to have the
    particular perspective offered by these applicants.

d. Treaty 6

[10]

Counsel
    clarified in oral argument that the Treaty 6 interveners seek friend of the
    court status. The First Nations communities in this group have Treaty
    Harvesting Rights under Treaty 6 in Alberta and Saskatchewan in virtually
    identical language to the rights at issue in this appeal. I am satisfied that
    it would assist this court to decide the issues before us to have the
    perspective of these First Nations communities who have virtually identical
    Treaty Harvesting Rights but under a different Treaty.

Motions to intervene as friends of the court: conclusion

[11]

Accordingly,
    I grant the motions of these four proposed interveners to participate in this
    appeal as friends of the court pursuant to rule 13.02 on the usual terms,
    namely, that they must accept the record as it is and that they are not
    permitted to expand the issues beyond those raised by the original parties.

2. Motion to intervene as parties

a. Goldcorp

[12]

Goldcorp
    seeks to be added as party pursuant to rule 13.01. Goldcorp is a large mining
    company with extensive operations in the Keewatin Lands. Goldcorp employs over
    1000 people in the area and has significant financial and economic interests
    that it asserts could be affected by these proceedings.

[13]

Grassy
    Narrows submits that Goldcorp should not be given party status, essentially on
    the ground that to do so would be to disrupt its right as plaintiff to control
    the litigation of its carefully focussed claim in relation the impact of
    specific forestry and clear-cut logging activities on its Treaty 3 Harvesting
    Rights.

[14]

That
    argument must be considered in light of the way in which this litigation has
    been structured with the full participation of Grassy Narrows. The litigation
    has been divided into two phases. The first phase was to answer two questions:

Question One:

Does Her Majesty the Queen
    in Right of Ontario have the authority within that part of the lands subject to
    Treaty 3 that were added to Ontario in 1912, to exercise the right to take up
    tracts of land for forestry, within the meaning of Treaty 3, so as to limit the
    rights of the Plaintiff to hunt or fish as provided for in Treaty 3?

Question Two:

If the answer to
    question/issue 1 is no, does Ontario have the authority pursuant to the
    division of powers between Parliament and the legislatures under the
Constitution
    Act, 1867
to justifiably infringe the rights of the Plaintiffs to hunt and
    fish as provided for in Treaty 3?

[15]

Those
    questions have been answered by the judgment under appeal and it is common
    ground that appeal rights are triggered at this stage. The specific claims
    relating to forestry and clear-cut logging will be dealt with at the second
    stage. The declaration under appeal is broad in its scope:

THIS COURT DECLARES AND ADJUDGES THAT the Province of Ontario
    does not have the authority within that part of the lands subject to Treaty 3
    that were added to Ontario in 1912 [the Keewatin Lands], to exercise the
    right to take up tracts of land for forestry, within the meaning of Treaty 3,
    so as to limit the geographical area over which the plaintiffs are entitled to
    exercise their rights to hunt or fish as provided for in Treaty 3.

THIS COURT DECLARES AND ADJUDGES THAT the Province of Ontario
    does not have the authority pursuant to the Constitution to justifiably
    infringe the rights of the Plaintiffs to hunt and fish as provided for in
    Treaty 3 so as to validly authorize forestry operations.

[16]

In
    my view, the issue of intervention must be assessed on the basis of the scope
    of that declaration rather than on the specifically focussed judgment Grassy
    Narrows hopes to secure after the second phase of the trial. Grassy Narrows
    participated in and presumably stands to benefit from the rather unusual
    structure for the litigation and must, accordingly, live with the consequences.

[17]

Goldcorp
    operates pursuant to licenses and permits granted by Ontario. While the
    specific focus of the respondents claim relates to forestry and clear-cut
    logging, the Treaty 3 provision at issue on this appeal provides for tracts of
    Treaty 3 lands being taken up for settlement, mining, lumbering or other
    purposes Goldcorp submits that any ruling with respect to lands being taken
    up for lumbering will necessarily have implications for lands taken up for
    mining.

[18]

I
    am satisfied that given its breadth, the declaration under appeal directly
    affects Goldcorps legal and property rights and that it follows that Goldcorp
    has satisfied all three elements of rule 13.01, namely, Goldcorp has an
    interest in the subject matter of the proceeding, Goldcorp may be adversely
    affected by the judgment and the issue of Goldcorps legal and property rights
    in the Keewatin Lands raises a question of law in common with the issues raised
    in these proceedings.

[19]

I
    am also satisfied that Goldcorps participation as a party would not unduly delay
    or prejudice the determination of the rights of the parties. Goldcorp does not
    seek to expand the issues beyond those raised by the original parties. It
    would, in my opinion, be unfair to deny Goldcorp an opportunity to be heard in
    a case that appears to have significant implications for its legal and property
    rights. I conclude that I should exercise my discretion in favour of allowing
    Goldcorp to intervene as a party to this appeal.

b. Wabauskang

[20]

I
    am satisfied that Wabauskang also meets the test for party status. Grassy
    Narrows and Wabauskang were both represented by Chief Sakatcheway at the
    negotiation of Treaty 3 in 1873 and Wabauskangs traditional territory includes
    lands within the Keewatin Lands. Members of the Wabauskang First Nation enjoy
    and exercise precisely the same Treaty Harvesting Rights and they are affected
    by precisely the same licenses and logging activities as Grassy Narrows. As
    their Aboriginal rights are directly affected by the judgment under appeal,
    they meet the test for permission to intervene as a party pursuant to rule
    13.01.

[21]

Wabauskang
    does not seek to expand the issues beyond those raised by the original parties.
    I am satisfied that Wabauskangs participation as a party would not unduly
    delay or prejudice the determination of the rights of the parties and that I
    should exercise my discretion in favour of allowing Wabauskang to intervene as
    a party to this appeal.

Motion to intervene as parties: conclusion

[22]

Accordingly,
    I grant both Goldcorp and Wabauskang leave to intervene in this appeal as
    parties pursuant to rule 13.01.

3. Evidence

a. Goldcorp

[23]

Goldcorp
    asks for leave to file evidence to demonstrate its interest in the litigation
    and to describe the nature and extent of its activities. It is submitted that
    this is simply to provide background and context for its participation in this
    litigation.  Goldcorp has filed the relatively short affidavit it seeks to
    introduce but concedes that portions of that affidavit relating to its history
    of consultation with First Nations should be deleted.

[24]

As
    a single judge I have no power to admit fresh evidence. In my view, however,
    Goldcorp should be permitted to file a redacted version of the affidavit that
    is before me on this intervention motion to be used solely for the purpose of
    explaining to the panel the basis for Goldcorps intervention in this appeal.
    The affidavit is not, without further order of a panel of this court,
    admissible with respect to issues of adjudicative fact that might arise on the
    appeal.

b. Grand Council

[25]

The
    Grand Council indicated that it was having further archival research done as to
    the 1891 legislation and the 1894 agreement. The Grand Council asks that the
    order provide that it is at liberty to move to introduce further evidence if
    the archival research bears fruit.

[26]

It
    is obviously impossible to assess the admissibility of evidence yet to be
    produced or whether the Grand Council could justify a departure from the usual
    order that a friend of the court must accept the record as it stands. Any order
    relating to such evidence would be entirely hypothetical and speculative.
    Accordingly I make no order with respect to this evidence.

4. Scope of permissible argument

[27]

Considerable
    argument was addressed to the concerns expressed by Big Grassy and the Grand
    Council regarding certain statements made by the trial judge in her reasons
    relating to the 1891 legislation and the 1894 agreement, particularly in
    relation to the impact of those instruments on the extinguishment of treaty
    rights in the Disputed Lands.

[28]

I
    am not persuaded that at this stage of the proceedings it is possible or
    practicable for me to attempt to provide specific or fine-tuned directions with
    respect to the scope of the arguments the various interveners should be
    permitted to make. In my view, the most appropriate order is the usual order,
    namely, that the interveners must accept the record as it is and that the
    interveners are not permitted to expand the issues beyond those raised by the
    original parties.

[29]

I
    recognize that this may leave unresolved competing arguments as to what issues
    were raised or decided at trial and as to whether the trial judge went beyond
    those issues in her reasons for judgment. Those arguments may be addressed by
    way of motion after the factums are filed when, hopefully, the issues will have
    been more clearly defined and joined.

5. Factum length

[30]

In
    this appeal, we will have very extensive written submissions from the parties.
    While I recognize that this is an unusually complex case and that it is of
    great importance to the interveners, there is a limit to the assistance the
    court can derive from further lengthy written arguments.

[31]

Accordingly,
    I order that the friend of the court interveners be permitted to file factums
    of up to 20 pages each and that the party interveners be permitted to file
    factums of up to 30 pages.

[32]

I
    note that Wabauskang and Big Grassy are represented by the same counsel and
    propose to file a joint factum. In my view, that could be confusing and
    unhelpful. Accordingly, I direct that they file separate factums, each dealing
    with their own particular perspectives.  I hardly need add that it is quite
    acceptable for these parties or any other party to simply adopt a position
    taken in the factum of another party or intervener if so advised.

6. Time for oral argument

[33]

In
    my view, it would be premature to set the time limits for oral argument of
    these interveners. No time limits have yet been set for the parties and I
    direct that time limits be set after all factums have been filed.

7. Filing dates

[34]

It
    appears to be more or less common ground that the interveners should file their
    factums not later than October 15, 2012.


COURT OF APPEAL FOR ONTARIO

CITATION:
Kowal v. Shyiak, 2012
    ONCA 512

DATE: 20120725

DOCKET: C54684

Rouleau, Watt and Pepall JJ.A.

BETWEEN

Henry Kowal and Julia Ciddio

Plaintiffs (Respondents)

and

Jerry Shyiak and Giant Builders (Thunder Bay)
    Inc.

Defendants (Appellants)

and

Ronald Bingham and
    Overall Plastering

Third Parties

Chantal M. Brochu, for the appellant Jerry Shyiak

W. Danial Newton and Tina M. Petrick, for the respondent
    Henry Kowal

David Scott, for the respondent Overall Plastering

Heard: June 28, 2012

On appeal from the order of Justice Shaw of the Superior
    Court of Justice, dated October 25, 2011.

Pepall J.A.:

[1]

The appellants, Giant Builders (Thunder Bay) Inc. and its
    principal, Jerry Shytiak, appeal the October 25, 2011 decision of Shaw J. in
    which he dismissed their summary judgment motion and determined that the claim
    of the respondents, Henry Kowal and Julia Ciddio, was not barred by the two
    year limitation period prescribed by s. 4 of the
Limitations Act, S.O.
2002,

c. 24, Sch. B.

[2]

The appellants constructed
    the respondents new house. The respondents contracted separately with the third
    parties, Overall Plastering and its principal, Ronald Bingham, to install
    stucco finishing on the exterior of the home. The respondents took possession of
    their newly constructed home on December 28, 2005.

[3]

In the spring of 2006,
    the respondents observed water leakage around certain windows and doors and
    damage to their floors. By the fall of 2006, the house was leaking in four
    locations.

[4]

To address the leakages,
    the respondents and the appellants met. On one occasion, the appellant Shyiaks
    son attended at the home and suggested that the leaks could have been caused by
    the third parties. The appellants did some caulking and installed some flashing
    and, according to the respondent Kowal, the appellant Shyiak indicated that he
    was going to fix the problem.

[5]

He did not. Ultimately, in
    a telephone conversation on August 31, 2007, the appellant Shytiak told the
    respondent Kowal, among other things, to fix the flooring himself to which the
    latter responded, See you in court. The respondent Kowal acknowledged that he
    knew that the situation would not be rectified by Giant Builders at that point and
    that he would have to resolve the problem through his lawyer by way of a claim
    under the new home warranty (under the
Ontario New Home
    Warranties Plan Act
, R.S.O. 1990, c.
    O.31) and/or a court action.

[6]

On November 1, 2007, the
    respondent Kowal wrote to the appellants and copied the third parties. He
    indicated that he felt that the ongoing problems at their residence were the
    result of Giant Builders insufficient supervision of the work as well as not
    responding to my request to correct the deficiencies and he requested a
    planned repair schedule. In the letter, he also reported on a conversation he
    had had with the third party Bingham and stated that Bingham had indicated that
    he would be working with the appellants.

[7]

Having received no
    response to his letter, the respondent Kowal wrote again on January 7, 2008,
    but still received no answer. He retained counsel on February 11, 2008.

[8]

On February 21, 2008,
    counsel for the respondents wrote to the appellants advising that Giant
    Builders had until June 1, 2008 to rectify the leaking problems failing which
    the plaintiffs would make a claim under the new home warranty and commence
    civil proceedings in the Superior Court of Justice.

[9]

The respondents retained
    Walter Kembel, a professional engineer, to examine the house.  He concluded in
    a report dated August 20, 2008, that Giant Builders had been negligent and, among
    other things, had failed to construct a rain tight exterior envelope for the
    house.

[10]

Tarion Warranty Corporation
    also arranged for an inspection of the home.  The engineer who inspected the
    home concluded in his October 28, 2008 report, which was given to the
    respondents, that the problems arose from work done by the third parties.

[11]

In 2009, the respondents
    retained another professional engineer, Gord Wickham. He provided them with a
    report dated October 22, 2009 in which he blamed the leaks on the work of Giant
    Builders.

[12]

The respondents commenced
    their action against the appellants on November 17, 2009. They asserted a claim
    for damages in the estimated amount of $95,068 to $115,538 for breach of
    contract, breach of statutory warranty and negligence. Among other things, they
    pleaded that although they paid Overall Plastering directly, its work was
    completed under the direction and co-ordination of Giant Builders.

[13]

In their statement of
    defence, the appellants pleaded the expiry of the two year limitation period.
    They also issued a third party claim against Overall Plastering and Ronald
    Bingham and brought a motion for summary judgment.

[14]

The motions judge
    dismissed the summary judgment motion on the basis that the action was
    commenced within the limitation period. He determined that as of the See you
    in court August 31, 2007 telephone conversation or the November 1, 2007
    letter, the respondents did not have sufficient knowledge as to whether the
    fault was reasonably that of the appellants or that of the third parties. The
    most a reasonably prudent person in the position of the respondents could say
    was that he or she had a claim against Giant Builders or the Overall Plastering
    but could not be sure which one was the tortfeasor. The respondents knew they
    had suffered damages, but did not know which of the two tortfeasors was
    responsible.

[15]

The appellants submit
    that the motions judge erred and, in particular, with respect to his finding
    that the respondents must or should know with some certainty which of the two
    potential tortfeasors was responsible for their loss before the commencement of
    the limitation period is triggered.

[16]

The respondents submit
    that the
Act
requires that damage be caused by or contributed to
    by an act or omission and that the act or omission be that of the person
    against whom the claim is made. The motions judge properly determined that the respondents
    did not know whether Giant Builders or Overall Plastering was responsible until
    the receipt of expert opinions.

[17]

The relevant sections of
    the Act are as follows:

4.       Unless this Act
    provides otherwise, a proceeding shall not be commenced in respect of a claim
    after the second anniversary of the day on which the claim was discovered.

5. (1)  A claim is
    discovered on the earlier of,

(a)     the day on which
    the person with the claim first knew,

(i)      that
    the injury, loss or damage had occurred,

(ii)      that the injury, loss or damage was caused by or contributed
    to by an act or omission,

(iii)     that the act or omission was that of the person against whom
    the claim is made, and

(iv)     that, having regard to the nature of the injury, loss or
    damage, a proceeding would be an appropriate means to seek to remedy it; and

(b)     the day on which
    a reasonable person with the abilities and in the circumstances of the person
    with the claim first ought to have known of the matters referred to in clause
    (a).

(2)     A person with a
    claim shall be presumed to have known of the matters referred to in clause
    (1)(a) on the day the act or omission on which the claim is based took place,
    unless the contrary is proved.

[18]

Certainty of a defendants responsibility for the act or
    omission that caused or contributed to the loss is not a requirement.  It is
    enough to have
prima facie
grounds to infer that the acts or omissions
    were caused by the party or parties identified:
Gaudet et al. v. Levy et
    al.
(1984), 47 O.R. (2d) 577 (H.C.). Expert opinions are not required in
    all cases:
McSween v. Louis
(2000), 187 D.L.R. (4
th
) 446
    (Ont. C.A.); and
Lawless v. Anderson
,
2011 ONCA 102, at para. 28.

[19]

By
    August 31, 2007, and certainly by November 1, 2007, the respondents were
    familiar with all the material facts. They knew that they had contracted with
    both Giant Builders and Overall Plastering. They were aware who had done the
    work on their home. They knew they had suffered a loss and that the acts or
    omissions were caused by either the appellants, or the third parties, or both.
    This was confirmed by the motions judge. There was ample evidence on which to
    base a claim against the appellants without the necessity of obtaining any
    expert opinions.  In our view, the motions judge erred in concluding that the
    respondents needed to obtain expert opinions before determining that they had a
    cause of action against the appellants. Indeed, cumulatively, the three reports
    were inconclusive.  In any event, an element of the claim is that, as a general
    contractor, Giant Builders had a duty to oversee the third partys work and
    Giant Builders is alleged to have breached that duty.  No expert report was
    required in order to advance this claim.

[20]

Although
    the respondents circumstances are unfortunate, the
Act

was not enacted to be ignored. The respondents
    action against the appellants was only commenced on November 17, 2009. It was
    therefore too late and is barred by s. 4 of the Act.

[21]

The
    appeal is allowed. As agreed by the parties, the respondents shall pay the
    appellants costs fixed in the amount of $7000 inclusive of disbursements and
    all applicable taxes.

Released: July 25, 2012 DW

S.E.
    Pepall J.A.

I
    agree Paul Rouleau J.A.

I
    agree David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Laurentian
    Bank of Canada v. Bonhomme, 2012 ONCA 515

DATE: 20120725

DOCKET: C54856

Simmons, Juriansz and Epstein JJ.A.

BETWEEN

Laurentian Bank of Canada

Plaintiff

(Respondent)

and

Jean-Claude Bonhomme

Defendant

(Appellant)

Michael B. Miller, for the appellant

James M. Butson, for the respondent

Heard: July 17, 2012

On appeal from the judgment of Justice Katherine M. van
    Rensburg of the Superior Court of Justice, dated December 7, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The motion judge granted summary judgment to the Bank on a line of
    credit. The appellant contends that the only advance he was aware of under the
    line of credit was repaid and that the Bank subsequently breached the terms of
    the line of credit agreement by making advances without the authorization of
    both signatories to the line of credit agreement.

[2]

Paragraph 11 of the line of credit agreement provides in part as
    follows:

Signatories

The Bank shall be authorized to extend loans on presentation of
    any cheque or other written request bearing the signature of the Customer as
    subscribed to the present document or that of any other person authorized to
    draw cheques on the Customers Line of Credit account.

[3]

On page 1 of the line of credit agreement, the appellant and his
    co-signatory, Mr. Jean-Claude Bonhomme and Mr. Richard Martel, are described as
    the Customer. In our view, on its face, the line of credit agreement is
    ambiguous concerning whether the Customer means one or both signatories to
    the line of credit agreement. This issue can only be resolved with the benefit
    of extrinsic evidence and requires a trial.

[4]

In fairness to the motion judge, there is a dispute concerning whether
    this issue was raised in the court below. However, we entertain it because it was
    pled.

[5]

For the reasons given the appeal is allowed, the motion judges order is
    set aside and the motion for summary judgment is dismissed.

[6]

The costs order below is set aside and in its place is substituted an
    order for costs of the appeal and costs of the motion below to the appellant on
    appeal (respondent on the motion), on a partial indemnity scale fixed in the
    amount of $8,000 inclusive of disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
Ma v. Ma, 2012
    ONCA 514

DATE: 20120725

DOCKET: C54490

OConnor A.C.J.O., Feldman and Ducharme JJ.A.

BETWEEN

Ying Ma also known as Michelle Ma

Plaintiff
    (Appellant)

and

Jeffrey Jiyang Ma, Fang Ji and 2010965 Ontario
    Corporation o/a Steam Sauna

Defendants (Respondents)

J. Gardner Hodder and Yan Wang, for the appellant

Jeffrey Radnoff, for the respondents

Heard: May 15, 2012

On appeal from the order of the Divisional Court
    (Jennings, Swinton and Durno JJ.), dated June 14, 2011, dismissing an
    appeal from the order of Justice H.J. Wilton-Siegel of the Superior Court of
    Justice, dated July 22, 2010, with reasons reported at 2010 ONSC 1273.

COSTS ENDORSEMENT

[1]

Following release of the reasons of the court on June 15, 2012, counsel
    asked to make further submissions on the issue of costs in the proceedings
    below. The court allowed the parties to make brief written submissions which
    have now been received and reviewed.

[2]

The court ordered costs of the appeal to the appellant in the amount of
    $7,500. That will include the costs of the leave to appeal motion.

[3]

The Divisional Court ordered costs of $8,500 to the respondents. That
    court dealt with two issues, one of which was the subject of the appeal to this
    court. As the appellant was successful in overturning the decision of the
    Divisional Court on that issue, she should have her costs for that issue.
    Therefore costs of the Divisional Court to the appellant in the amount of
    $4,250.

[4]

As there was ultimately mixed success before the motion judge on a
    number of issues including the one ultimately appealed to this court, there
    shall be no costs award in respect of the motion.

[5]

In summary, total costs to the appellant in the amount of $11,750
    inclusive of disbursements and H.S.T.

Dennis
    OConnor A.C.J.O.

K. Feldman
    J.A.

E.
    Ducharme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
N.M.
    Sutherland Developments Inc. v. Platinum Plus Products Inc.,
    2012 ONCA 509

DATE: 20120720

DOCKET: M41385 (C54893)

Simmons, Juriansz and Epstein JJ.A.

BETWEEN

N.M. Sutherland Developments Inc.

Plaintiff (Respondent/Moving Party)

and

Platinum Plus Products Inc.

Defendant (Appellant/Responding Party)

Brent J. Arnold, for the moving party

James R. Webster, for the responding party

Heard: July 17, 2012

On appeal from the order of Justice Stanley J. Kershman
    of the Superior Court of Justice, dated December 22, 2011, and on motion to
    quash the appeal.

MOTION RECORD ENDORSEMENT

[1]

The order under appeal does not terminate any of the
    responding partys rights to seek relief in this action. In particular, the
    order does not terminate the responding partys right to seek injunctive
    relief, nor does it terminate the responding partys right to have the notice
    of sale declared invalid.

[2]

Concerning the latter issue, the motion judge
    said he was unable to determine the issue because the standard charge terms
    governing the charge had not been filed. Given that the responding party
    claimed this relief on a motion for summary judgment, the issue has not been
    finally determined.

[3]

The terms of the order requiring the responding
    party to make mortgage and tax payments pending trial were imposed as part of
    the order granting a stay pending trial. That order was requested by the
    responding party and is in no sense a final order.

[4]

For the reasons we have explained, the order
    under appeal is interlocutory. The appeal is therefore quashed for want of
    jurisdiction.

[5]

Costs of the motion are to the moving party on a
    partial indemnity scale fixed in the amount of $2,500 including disbursements
    and applicable taxes.


WARNING

The President of the panel hearing this appeal directs that an
    order restricting publication of certain documents in the Motion Record in this
    proceeding, pursuant to the Order of Swinton J., dated December 8, 2010, shall
    remain in effect until the conclusion of the criminal trial.

COURT OF APPEAL FOR ONTARIO

CITATION:
Ontario (Provincial
    Police) v. Rutigliano, 2012 ONCA 484

DATE: 20120706

DOCKET: C53914

OConnor A.C.J.O., MacPherson and Rouleau JJ.A.

BETWEEN

Commissioner, Ontario Provincial Police

Appellant

and

Michael Rutigliano

Respondent

David Rose, for the appellant

Owen M. Rees,
amicus curiae

Heard and released orally: July 4, 2012

On appeal from the order of the Divisional Court (Ferrier,
    Aston and Lederer JJ.), dated January 5, 2011.

ENDORSEMENT

[1]

The appellant is the Commissioner of the Ontario Provincial Police
    (OPP). The respondent Michael Rutigliano (Rutigliano) was at the relevant
    time a sergeant of the OPP. He was charged under the
Police Services Act
,
    R.S.O. 1990, c.P.15 (
PSA
) with discreditable conduct.

[2]

The then Commissioner appointed Retired Superintendent Maurice Elbers as
    the Adjudicator for the discipline hearing relating to Rutigliano. Rutigliano
    objected to the appointment on the basis of reasonable apprehension of bias and
    moved for the Adjudicator to recuse himself. In a ruling dated October 15,
    2010, the Adjudicator dismissed Rutiglianos motion. He concluded that [t]he
    cases and the evidence supplied to me in this Motion does not meet the test
    required for a recusal of the Adjudicator.

[3]

Rutigliano sought judicial review of this decision in the Divisional
    Court. In an oral decision dated January 5, 2011, the court (Ferrier, Aston and
    Lederer JJ.) held that there was a reasonable apprehension of bias as a result
    of the information the Adjudicator received, and the Adjudicators comments,
    during two previous
PSA
charges against Rutigliano. It ordered that
    the Adjudicator be removed from the proceedings.

[4]

On June 17, 2011, this court granted the Commissioners motion for leave
    to appeal.

[5]

Rutigliano retired from the OPP on July 1, 2011. By operation of s.
    90(1) of the
PSA
 no further action shall be taken under this Part
    in respect of the complaint after the date of resignation  the proceedings
    against Rutigliano came to an end.

[6]

On consent, the Commissioner sought an order appointing former counsel
    for Rutigliano as
amicus curiae
. On February 3, 2012, OConnor A.C.J.O.
    granted the order, but with this observation: It remains open to the panel to
    decide whether it should hear the appeal in light of the fact that it is moot.

[7]

Amicus
 first position is that the court should not hear the
    appeal because, in light of Rutiglianos retirement after leave to appeal was
    granted, it is moot since no hearing under the PSA can proceed.

[8]

In order to respond to this submission, it is necessary to follow the
    two-step analysis set out by Sopinka J. in
Borowski v. Canada (Attorney
    General)
, [1989] 1 S.C.R. 342, at para. 16:

First, it is necessary to determine whether the required
    tangible and concrete dispute has disappeared and the issues have become
    academic. Second, if the response to the first question is affirmative, it is
    necessary to decide if the court should exercise its discretion to decide the
    case.

[9]

In this appeal, the first question is easy to answer. Rutigliano is
    retired. The PSA proceedings against him cannot proceed. The substratum of his
    appeal has disappeared: see
Borowski
, at para. 26.

[10]

On
    the second question, we decline to exercise our discretion to hear the appeal.
    Rutigliano has been retired for more than a year. The alleged events giving
    rise to the disciplinary hearing involving him took place almost a decade ago,
    on October 17, 2002. Moreover, we note that at one point in the proceedings,
    the prosecutor agreed that a new Adjudicator should be appointed in light of
    Rutiglianos concern that there might be a reasonable apprehension that the
    designated Adjudicator might be biased.

[11]

Further,
    the appellant submits that the Divisional Courts decision changes the law
    relating to the reasonable apprehension of bias of adjudicators. We do not
    think that the Divisional Courts decision alters the well-known test in this domain.

[12]

Finally,
    the Commissioner contends that the issue posed by this appeal is important for
PSA
prosecutions and, potentially, in other contexts as well, including for judges
    in criminal courts in small jurisdictions.

[13]

We
    disagree.  The focus of the Divisional Courts decision  a brief oral decision
     was highly fact-specific.  There is nothing of a jurisprudential nature in
    the decision that would apply to judges presiding in small jurisdications.

[14]

In
Tamil Co-operative Homes Inc. v. Arulappah
, (2000), 49 O.R. (3d) 566 (C.A.),
    at para. 26, Doherty J.A. stated:

A review of the cases in which the Supreme Court of Canada has
    heard moot appeals demonstrates that there was a strong public interest in the
    resolution of the issues raised in those cases. The issues involved questions
    of broad social and constitutional importance.

[15]

The
    discrete discipline complaint against a retired OPP officer does not come
    within this description.

[16]

The
    appeal is dismissed as moot.  No order as to costs.

D.
    OConnor A.C.J.O.

J.C. MacPherson J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Papapetrou v. 1054422
    Ontario Limited, 2012 ONCA 506

DATE: 20120723

DOCKET: C54259

Laskin, Simmons and Cronk JJ.A.

BETWEEN

Maria Papapetrou

Plaintiff

and

1054422 Ontario Limited, The Cora Group Inc. and
Collingwood
    Landscape Inc
.

Defendants (Respondents/
Appellant
)

Andrew A. Evangelista and David W. Powrie, for the
    appellant

Nancy Crespo, for the respondents

Heard: April 10, 2012

On appeal from the order of Justice Jane Milanetti of the
    Superior Court of Justice, dated August 8, 2011, with reasons reported at 2011
    ONSC 4731.

Simmons
    J.A.:

1.

Introduction

[1]

Maria Papapetrou claims she was injured when she slipped and fell on
    black ice that had accumulated on stairs of The Galleria, a building owned by
    1054422 Ontario Limited and managed by The Cora Group Inc. (collectively, The
    Cora Group).

[2]

Collingwood Landscape Inc. contracted with The Cora Group to provide
    winter maintenance and snow removal services for The Galleria. In its service
    contract, Collingwood promised to name The Cora Group as an additional insured
    on Collingwoods commercial general liability insurance policy; however,
    Collingwood breached its obligation to do so.

[3]

On a motion for summary judgment, Milanetti J. ordered Collingwood to
    assume The Cora Groups defence in Ms. Papapetrous personal injury action and
    to indemnify The Cora Group for any damages awarded in the action.

[4]

In making her decision, the motion judge found that the true nature of
    [Ms. Papapetrous] claim is that [Collingwood and The Cora Group] were
    negligent in failing to maintain an ice free pedestrian stairway. In the
    motion judges view, based on the [service] contract, a duty to defend and
    indemnify therefore arose.

[5]

On appeal, The Cora Group concedes
that the order to
    indemnify was premature and should therefore be set aside.

[6]

Accordingly, the main issue on appeal is whether
    the motion judge erred in ordering Collingwood to assume the defence of
The
    Cora Group.

[7]

For the reasons that follow, I would allow the appeal and set
    aside the motion judges order. I would substitute an order requiring that
    Collingwood pay for The Cora Groups defence of the third partys action, save
    for any costs incurred exclusively to defend claims that do not arise from
    Collingwoods performance or non-performance of the service contract.

2.

Background

[8]

Collingwood and The Cora Group are defendants in an action brought by Ms.
    Papapetrou in which she claims damages for personal injuries resulting from a slip
    and fall on black ice that had accumulated on stairs at the entrance of The
    Galleria.

[9]

In her statement of claim, Ms. Papapetrou makes several allegations of
    negligence against Collingwood and The Cora Group, either individually or
    collectively. Her allegations include:

·

failing to prevent the formation and accumulation of ice;

·

failing to properly inspect or maintain the steps;

·

failing to remove the ice;

·

failing to warn of the danger created by the ice;

·

failing to have a regular system of inspection and maintenance;

·

failing to ensure that the defendants employees, agents and
    servants carried out their responsibilities to keep the premises safe; and

·

failing to ensure that the defendants employees, agents and
    servants had the requisite training, skill and knowledge to inspect and
    maintain the premises.

[10]

In addition,
    Ms. Papapetrou relies on ss. 3 and 4 of the
Occupiers Liability Act
,
    R.S.O. 1990, c. O.2, which set out an occupiers duty to take reasonable care
    that persons entering on premises are reasonably safe. The text of these
    provisions is set out in Appendix A.

[11]

Prior to
    the date on which Ms. Papapetrou says she was injured, Collingwood entered into
    a service contract with The Cora Group. Under the terms of the contract,
    Collingwood agreed to provide winter maintenance, and snow removal services at
    The Galleria.

[12]

As well, under
    the terms of its service contract, Collingwood agreed to indemnify the Owner
    and its agents against all claims, losses, liabilities, demands, suits and
    expenses  arising out of the performance or non-performance of the contract.
    The relevant parts of the indemnity provision read as follows:

The Contractor assumes sole responsibility for all persons
    engaged or employed in respect of the Work and shall take all reasonable and
    necessary precautions to protect persons and property from injury or damage.
The Owner shall not be responsible in any way for any injury to or the death of
    the Contractors employees  or to any other person  in any way resulting from
    any act or omission of the Contractor.
The Contractor shall indemnify and
    save harmless the Owner  against all claims, losses, liabilities, demands,
    suits and expenses
from whatever source, nature and kind in any manner
based
    upon, incidental to or arising out of the performance or non-performance of the
    contract by the Contractor
. [Emphasis added.]

[13]

Further,
    Collingwood agreed to obtain comprehensive general liability insurance
    covering the liability of the Contract [sic], his employees, agents and
    representatives for bodily injury  for a minimum of $2,000,000 and to include
    the Owners as an additional insured on the policy.

[14]

Contrary
    to its obligations under the service contract, Collingwood obtained an
    insurance policy covering a maximum of $1,000,000, instead of a minimum of $2,000,000.
    In addition, Collingwood failed to name The Cora Group as an additional
    insured.

[15]

Following
    examinations for discovery in the action, The Cora Group brought a motion for
    summary judgment asking: (i) that Ms. Papapetrous action against them be
    dismissed; or, (ii) in the alternative, that Collingwood assume The Cora
    Groups defence of Ms. Papapetrous claims against them. In support of the
    motion, The Cora Group relied on the insurance obligation and the indemnity
    provisions in the service contract.

[16]

Prior to
    the return of the motion, The Cora Group advised all parties that they would
    not be pursuing their request that Ms. Papapetrous claims against them be
    dismissed. Ms. Papapetrou did not attend the motion.

3.

The Motion Judges Decision

[17]

As I have said, the motion judge ordered that Collingwood both assume
    the defence of the action on behalf of The Cora Group and indemnify The Cora
    Group with respect to any damages awarded in the action.

[18]

In making her decision, the motion judge observed that Collingwood
    claimed that some of Ms. Papapetrous allegations against The Cora Group were
    for a breach of their responsibilities as occupiers apart from allegations
    relative to the icy stairs. She noted that, on this basis, Collingwood contested
    its obligation to defend and/or indemnify The Cora Group in relation to all the
    allegations in the statement of claim.

[19]

The motion judge agreed that some of the allegations of negligence
    fall within the general occupiers liability basket; however, she concluded
    that such allegations were still linked to the essential negligence alleged
    the defendants failure to address icy conditions on the pedestrian stairway
    leading into the building.

[20]

The motion judge also observed that the service contract required
    Collingwood to assume sole responsibility  to protect persons and property
    from injury and damage and also to indemnify and save harmless the owner
    against all claims  arising out of the performance or non-performance of the
    contract.

[21]

Relying on
RioCan Real Estate Investment Trust v. Lombard
    General Insurance Co.
(2008)
, 91 O.R. (3d) 63 (S.C.), the motion judge found that the true
    nature of Ms. Papapetrous claim is that the defendants were negligent in
    failing to maintain an ice-free pedestrian stairway and that, as a result, Ms.
    Papapetrou fell and sustained injuries.

[22]

Having regard to the nature of the claim and the terms of the
    service contract, the motion judge concluded that Collingwood is obligated to
    defend and indemnify the property owners. Moreover, the motion judge stated
    that Collingwood should not escape responsibility to defend/indemnify merely
    because [it] failed to meet [its] contractual responsibility [to name The Cora
    Group as an additional insured in its comprehensive general insurance policy].

4.

Discussion

[23]

Collingwood
    raises two main issues on appeal. First, it argues that the motion judge erred
    in ordering Collingwood to indemnify The Cora Group at this stage of the
    action. Second, the motion judge erred in ordering that Collingwood assume the
    defence of The Cora Group in the absence of any contractual duty to defend.

(i)

The Order that Collingwood Indemnify The Cora
    Group

[24]

As I have
    said, The
Cora Group concedes that the order that Collingwood
    indemnify them with respect to any damages awarded in the action is premature.

[25]

I agree with this concession. No evidence concerning the issues of
    liability or damages was led on the motion.

[26]

Moreover, contrary to the motion judges finding, the service
    contract does not provide that Collingwood will assume sole responsibility
    to protect persons and property from injury and damage. Rather, it provides
    that Collingwood assumes sole responsibility for all persons engaged or employed
    in respect of the Work and that it shall take all reasonable and necessary
    precautions to protect persons and property from injury and damage.

[27]

In addition, Collingwoods obligation to indemnify The Cora Group
    under the terms of the service contract is not absolute. It is limited to
    claims based upon, incidental to or arising out of [Collingwoods] performance
    or non-performance of the [service] contract.

[28]

To make an order that Collingwood must indemnify The Cora Group, a
    court will first have to determine whether Collingwoods contractual obligation
    to indemnify has been triggered. As no evidence concerning the issues of
    liability or damages was led on the motion, this cannot yet be determined. Accordingly,
    I would set aside the motion judges order to indemnify.

(ii)

The Order that Collingwood assume The Cora
    Groups Defence

[29]

Collingwood
    argues that the motion judge erred in ordering that it assume the defence of
    The Cora Group. Specifically, Collingwood notes that, although the service
    contract includes an indemnity provision, the indemnity provision does not say
    that Collingwood must defend actions brought against The Cora Group. Further,
    Collingwood relies on the fact that The Cora Group did not object to the form
    of insurance Collingwood obtained  namely, coverage which failed to list The
    Cora Group as an additional insured.

[30]

Finally,
    even if a duty to defend arises from the insurance obligation in the service
    contract, Collingwood says that the motion judge erred in ordering Collingwood
    to assume the defence of the entire action against The Cora Group. At most, any
    defence obligation should extend only to claims arising out of Collingwoods
    performance or non-performance of the service contract.

(a)

Collingwoods Duty to Defend

[31]

I agree
    that the motion judge erred in ordering Collingwood to assume The Cora Groups
    defence.

[32]

In my
    view, however, Collingwood is liable in damages to The Cora Group for the cost
    of The Cora Groups defence of the Papapetrou action, save for any costs
    incurred exclusively to defend claims that do not arise from Collingwoods
    performance or non-performance of the service contract.

[33]

On appeal,
    The Cora Group did not argue that Collingwoods obligation to defend arises out
    of the indemnification provision in the service contract. Rather, it relied on Collingwoods
    failure to satisfy its contractual obligation to have The Cora Group named as
    an additional insured in its comprehensive general insurance policy.

[34]

However,
    Collingwoods breach of this contractual obligation does not create a duty to
    defend; rather, it gives rise to a remedy in damages.

[35]

The fact
    that The Cora Group did not object to the form of insurance Collingwood
    obtained is irrelevant. Collingwoods contractual obligation remained. Collingwood
    is liable to The Cora Group in damages for failing to satisfy its duty to have
    The Cora Group named as an additional insured.

[36]

The
    quantum of such damages is the amount The Cora Group will be required to pay
    for a defence of the claims Collingwoods insurer would have been obliged to
    defend on The Cora Groups behalf had Collingwood fulfilled its contractual
    obligations.

[37]

Ordinarily,
    the
scope of this obligation would be determined by the terms
    of the insurance contract (in particular, the additional insured endorsement).
    The difficulty in this case is that the terms of coverage for The Cora Group as
    an additional insured were not included in the insurance contract. Accordingly,
    the terms of the intended insurance coverage must be discerned from the
    insurance obligation and
the indemnity provision in the service
    contract.

[38]

As noted
    above, Collingwood was obliged to obtain comprehensive general liability
    insurance to insure against bodily injury. However, the scope of Collingwoods
    obligation to indemnify under the service contract was limited to claims  based
    upon, incidental to or arising out of the performance or non-performance of the
    contract by the Contractor.

[39]

Accordingly,
    in my view, the quantum of damages is the amount The Cora Group must pay to
    defend claims for bodily injury arising out of the manner in which Collingwood
    performed or failed to perform the service contract.

[40]

As I have
    said, in my opinion, these costs will include all costs of The Cora Groups
    defence of the Papapetrou action, save for any costs incurred exclusively to
    defend claims that do not arise from Collingwoods performance or
    non-performance of the service contract

[41]

I reach
    this conclusion for two reasons. The first is that an
insurers
    obligation to defend is limited to defending claims that  if proven true
    would fall within coverage under the policy:
Non-Marine
    Underwriters, Lloyds of London v. Scalera,
2000 SCC 24,

[2000] 1
    S.C.R. 551, at paras. 74-76
and
Nichols v. American
    Home Assurance Co.
, [1990] 1 S.C.R. 801, at pp. 810-12. On
    this issue, McLachlin J.s comments in
Nichols
,
    at p. 812, are worth noting:

Requiring the insurer to defend claims which cannot fall
    within the policy puts the insurer in the position of having to defend claims
    which it is in its interest should succeed.
The
    respondent suggested that this potential conflict could be avoided if the
    insured was able to retain his own lawyer, with the cost to be borne by the
    insurer. However, this would not end the difficulty. An insurer would be
    understandably reluctant to sign a "blank cheque", and cover whatever
    costs are borne by whatever lawyer is retained, no matter how expensive. Yet
    the insurer could not challenge any of these expenses without raising precisely
    the same conflict.
For this reason, the practice is for the insurer
    to defend only those claims which potentially fall under the policy, while
    calling upon the insured to obtain independent counsel with respect to those
    which clearly fall outside its terms.
[Emphasis added.]

[42]

As Collingwoods obligation to pay for The Cora Groups defence is
    limited to the cost of defending claims that Collingwoods insurer would have
    been obliged to defend, Collingwoods obligation does not extend to paying for
    the cost of defending
independent claims against The Cora Group that Collingwoods
    insurer would not have been required to defend on The Cora Groups behalf.

[43]

In this
    regard, I do not agree with the motion judges conclusion that, because the
    claims in the action can all be characterized generally as claims in
negligence for failing to maintain an ice-free pedestrian stairway, this
    means that all the claims in the action would necessarily be captured under the
    insurers duty to defend.

[44]

In order
    to determine whether an insurers duty to defend arises in relation to the
    claims raised in a particular action, the
court is required to
    assess the substance or the true nature of each claim contained within the pleadings
    to see if it falls within the scope of coverage:
Monenco Ltd. v.
    Commonwealth Insurance Co.
, 2001 SCC 50, [2001] 2 S.C.R.
    699, at paras. 28-35;
Scalera
,

at paras. 74 and 79-82;
and
Nichols
,

at pp.
    810-11
.

[45]

T
his assessment must be made substantially on the facts as
    stated in the pleadings themselves; however, extrinsic evidence sometimes may
    be considered, including when such evidence has been referred to in the
    pleadings:
Monenco
, at paras. 36-38.

[46]

In this
    regard, it is important to bear in mind that
a pleading may
    contain both covered and uncovered claims.

As Doherty J.A. stated in
obiter
in
Unger (Litigation Guardian of) v. Unger
(2003), 68 O.R. (3d) 257 (C.A.), at para. 10: If there is a possibility that
    any of the claims are captured by [an insurers] coverage, [that insurer] has a
    duty to defend
those
claims (emphasis added).
See also
Atlific
    Hotels and Resorts Ltd. v. Aviva Insurance Co. of Canada
(2009), 97 O.R.
    (3d) 233 (S.C.).

[47]

However, assessing the true nature of a particular claim is not an
    exercise to be undertaken in the abstract. Rather it should be approached with
    a view to the specific limitations of the insurance coverage at issue.

[48]

In this case, the coverage would be limited to the matters relating
    to Collingwoods performance or non-performance of the contract.

[49]

With a view to the limits of coverage, the true nature of the
    claims in the action are best classified as allegations concerning: (i)
    negligent maintenance due to Collingwoods performance or non-performance of
    the service contract (which may include claims under the
Occupiers
    Liability Act
with regard to obligations which have been
    delegated to Collingwood); (ii) negligent conduct on the part of The Cora Group
    extending beyond Collingwoods obligations under the contract; as well as (iii)
    a statutory cause of action under the
Occupiers Liability Act
extending beyond those obligations delegated to Collingwood under the contract
. The duty to defend only extends to allegations that can be
    classified as falling under the first category of claims.

[50]

To the extent that this conclusion may differ from
Riocan
, I disagree with that decision.

[51]

The second
    reason for my conclusion about the extent of Collingwoods liability to pay for
    The Cora Groups defence is that
where an action includes both
    covered and uncovered claims, an insurer may nonetheless be obliged by the
    terms of the policy to pay all costs of defending the action save for those
    costs incurred exclusively to defend uncovered claims:
Hanis v.
    Teevan
, 2008 ONCA 678, 92 O.R. (3d) 594, leave to appeal to S.C.C.
    refused, [2008] S.C.C.A. No. 504.
[1]

[52]

In this
    case, as Collingwood failed to satisfy its insurance obligation under the
    service contract, it is unable to demonstrate that it should escape
    responsibility for paying for
The Cora Groups costs of
    defending the action save for those costs incurred exclusively to defend
    uncovered claims.

(b)

The Need for Separate Counsel

[53]

Collingwood also argued that its insurer is, in effect, already
    defending The Cora Group by defending Collingwood against the claims arising
    from its performance of the service contract. Collingwood argued that this is a
    sufficient answer to The Cora Groups claim for a defence.

[54]

I disagree. In this case, it would not be appropriate for
    Collingwood to assume The Cora Groups defence, nor is it sufficient for
    Collingwood to simply defend the primary allegations of negligence for which both
    Collingwood and The Cora Group may be found liable; rather, the proper remedy
    is in damages, and Collingwood must pay The Cora Group a quantum of damages
    equivalent to the cost of The Cora Groups defence in the manner I have
    explained.

[55]

In any event, where, as here, distinct claims are made against a
    service provider and a property owner, the ability of a single counsel to defend
    both claims is hampered by an inherent conflict. In this case, the conflict is
    accentuated by the fact that both Collingwood and The Cora Group have cross-claimed
    against each other. The service provider and the property owner each have an
    interest in blaming the other for the circumstances giving rise to the claim.

[56]

An insurer has a right to control its own defence (and appoint its
    own defence counsel), which, though not absolute, can only be shifted where
    there is a reasonable apprehension of conflict of interest
on
    the part of counsel appointed by the insurer
: see
Brockton
    (Municipality) v. Frank Cowan Co.
(2002), 57 O.R. (3d)
    447 (C.A.), at paras. 31-32 and 43; also see
Appin Realty Corp. v.
    Economical Mutual Insurance Co.
, 2008 ONCA 95, 89 O.R.
    (3d) 654, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 145. However, the
    present case is not governed by this rule.

[57]

The Cora Group is not, in fact, insured under Collingwoods policy
    and the duty to defend does not flow from the policy, itself. Rather, Collingwood
    is simply being ordered to pay damages for the breach of a contractual
    obligation under the service contract.     Thus, in considering whether The
    Cora Group is entitled to choose their own counsel for whom Collingwood must
    pay, it is unnecessary to consider whether the potential conflict in this case
    meets the standard set in
Brockton
.

[58]

Nevertheless, the potential for conflict between Collingwood and The
    Cora Groups interests is clear. In fact, it likely meets the
Brockton
standard: see
Brockton
, at para.
    43. This conflict is best dealt with by The Cora Group continuing to retain independent
    counsel in respect of all allegations in the action. The obligation to pay (at
    least, in part,) for two defence counsel is a necessary consequence of Collingwoods
    breach of its contractual obligation.

5.

Disposition

[59]

Based on the foregoing reasons,

I
    would allow the appeal and set aside the motion judges order. I would
    substitute an order requiring that Collingwood pay for The Cora Groups defence
    of the third partys action, save for any costs incurred exclusively to defend
    claims that do not arise from Collingwoods performance or non-performance of
    the service contract.

[60]

As success on the appeal was divided, there will
    be no order as to costs of the appeal.

[61]

I understand that costs below have not yet been
    dealt with because of the appeal. If the parties are unable to resolve the
    issue of costs below themselves, I would remit the issue to the motion judge to
    consider in the light of, what is now, the divided success on the motion.

Signed:        J.
    M. Simmons J.A.

I
    agree J. I. Laskin J.A.

I
    agree E. A. Cronk J.A.

Released: J.S. July 23, 2012

Appendix A

Sections
    3 and 4 of the
Occupiers Liability Act,
R.S.O. 1990, c. O.2,
provide as follows:

3.--(1) An occupier of
    premises owes a duty to take such care as in all the circumstances of the case
    is reasonable to see that persons entering on the premises, and the property
    brought on the premises by those persons are reasonably safe while on the
    premises.

(2) The duty of care
    provided for in subsection (1) applies whether the danger is caused by the
    condition of the premises or by an activity carried on on the premises.

(3) The duty of care
    provided for in subsection (1) applies except in so far as the occupier of premises
    is free to and does restrict, modify or exclude the occupier's duty.

4.--(1) The duty of care
    provided for in subsection 3 (1) does not apply in respect of risks willingly
    assumed by the person who enters on the premises, but in that case the occupier
    owes a duty to the person to not create a danger with the deliberate intent of
    doing harm or damage to the person or his or her property and to not act with
    reckless disregard of the presence of the person or his or her property.

[1]
In
Hanis

v. Teevan
, Doherty J.A. explained the process by which defence costs are to
    be apportioned when an action raises both covered and uncovered claims
. In
Hanis
, the plaintiff sued the insured for wrongful
    dismissal and malicious prosecution. The insurance policy provided coverage for
    malicious prosecution. The insurer failed to defend. The insured launched third
    party proceedings against the insurer which were stayed pending the trial of
    the main action. At the trial of the main action, the plaintiff succeeded in
    its claim for wrongful dismissal.

Following
    the trial of the main action, the trial judge had to determine what part of the
    costs of defending the main action the insurer was required to pay. Costs
    incurred exclusively to defend the wrongful dismissal action were clearly the
    insureds responsibility. Accordingly, the main issue was how to apportion
    costs that were attributable to defending both the wrongful dismissal claim and
    the malicious prosecution claim.

On appeal,
Doherty J.A., writing for the court, determined that where costs
    are incurred in the defence of both covered and non-covered claims the extent
    of
the
insurers obligation to pay should be guided by
    the precise language of the insurance contract, and not by any principle of
    general application: para. 22.

The
    language of the policy at issue in
Hanis
required that the insurer
    defend in the name and on behalf of the Insured and at the cost of the Insurer
    any civil action which may at any time be brought against be Insured on account
    of [injury or damage falling under the policy coverage]. Doherty J.A, at para.
    32, observed that:

On a plain reading of the relevant part of the policy, [the
    insurer] was responsible for all costs associated with the defence of the
    [covered] claim. There is nothing in the language of the policy that qualifies
    that obligation or suggests that it does not apply to so called mixed
    claims.... If the costs were reasonably associated with the defence of the
    [covered] claim, nothing in the policy exempts [the insurer] from paying those
    costs simply because they also assisted ... in the defence of uncovered claims.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Chau, 2012 ONCA 501

DATE: 20120717

DOCKET: C53710

Rosenberg, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Loc Huu Chau

Appellant

Russell Silverstein, for the appellant

Thomas C. Lemon, for the respondent

Heard: June 28, 2012

On appeal from the conviction entered on October 22,
    2010, by Justice John Ritchie of the Ontario Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

On March 3, 2009, police, in the execution of a search warrant,
    discovered 181 marijuana plants, 16 ballasts twenty high-intensity lights and a
    timer board, in an apartment on Eva Road in Toronto.  On November 7, 2008, the
    apartment had been leased to the Appellant.

[2]

The Appellant was charged with two counts of produce marijuana and two
    counts of possession of marijuana for the purposes of trafficking.  The only
    issue at trial was whether the Crown had proven, beyond a reasonable doubt,
    that the Appellant had knowledge of or was connected to the grow-op.  Following
    a one-day judge-alone trial, the Appellant was convicted both offences.

[3]

The first of the Appellants two submissions on this conviction appeal
    is that the verdict is unreasonable.

[4]

We did not call upon the Crown to respond to this issue.  The trial
    judge concluded, based on what he described as strong circumstantial evidence
    that the Appellant was a party to the offences.  This conclusion was supported
    by reasonable inferences arising from the evidence.  We refer to the
    uncontested evidence that the Appellant filled out the rental application and
    provided a supporting letter of employment, his bank statement, two pieces of
    identification, and the names and dates of birth of three proposed tenants. In
    fact, once the trial judge rejected the Appellants evidence and found that it
    did not raise a reasonable doubt, the evidence did not reasonably lead to any
    other conclusion.

[5]

The Appellants second argument rests on the sufficiency of the reasons.

[6]

He submits that the reasons are deficient as they do not specifically identify
    the evidence upon which the trial judge relied to support a finding that he was
    involved with the grow-op.  The Appellant contends that he is therefore forced
    to speculate as to the evidentiary path that led to his conviction.

[7]

As indicated, we have concluded that the trial judges finding that the
    Appellant was connected to the apartment and therefore the grow-op is supported
    by the evidence and that accordingly the verdict is not unreasonable.

[8]

It follows that the only argument that remains available to the Appellant
    is that the reasons do not allow for appellate review. See,
R. v. Sheppard
,
[2002] 1 S.C.R. 869 at para. 28.  However, in
Sheppard
at para. 50
    Binnie J. expressed the view that a finding that the verdict is not
    unreasonable, yet the appeal is nevertheless frustrated by inadequate reasons,
    would be rare.

[9]

This is not one of those rare situations.  The evidence was
    straight-forward.  In fact, the Crowns case consisted of facts what were
    agreed-upon and documents that were admitted, on consent. While, we agree with
    Appellants counsel that the reasons could have more comprehensively dealt with
    the trial judges analysis of the one issue upon which the case depended, the
    basis of the finding that the Appellant was connected with the grow-op is
    apparent from the record.

[10]

The
    appeal is therefore dismissed.

M. Rosenberg J.A.

R. Juriansz J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Courtney, 2012
    ONCA 478

DATE: 20120706

DOCKET: C55129

Laskin, Cronk and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Courtney

Appellant

Richard Litkowski, for the appellant

Michael Medeiros, for the respondent

Heard: July 3, 2012

On appeal from the sentence imposed by Justice Edward J.
    McGrath of the Ontario Court of Justice, on August 11, 2011.

By the Court:

I.   Introduction

[1]

The appellant was convicted of robbery, dangerous driving, failing to stop
    for police, assaulting a peace officer and perjury.  He was sentenced, on a
    joint submission by counsel, to five years imprisonment on the robbery charge,
    less three months credit for pre-trial custody, and six months imprisonment,
    concurrent, on each of the other offences.  A restitution order in the amount
    of $567.67  the total amount stolen during the robbery  was also imposed.

[2]

The appellant appeals against sentence.  He submits that: (1) his
    sentence on the robbery charge offends the parity principle since his related accused,
    who was also convicted of robbery, received an effective sentence of nine
    months imprisonment; and (2) the five-year sentence on the robbery count also
    violates the jump principle, as the appellant had never been sentenced
    previously to more than 90 days in custody.  The appellant also contends that
    the restitution order was illegal because the circumstances of the offence
    support the reasonable inference that all the stolen cash was recovered by the
    police.

II.       Parity Principle Not Violated

[3]

The appellant acknowledges that several aggravating factors were
    relevant to his sentencing that did not apply to the sentencing of his
    companion in the robbery, Brandon White.  Based on these factors, he concedes
    that he should have received a longer custodial sentence than that imposed on
    White.  However, relying on the parity principle, he argues that the disparity
    in sentences here is extreme and unwarranted.  He submits that on application
    of the parity principle, an appropriate sentence for his robbery conviction is
    three years imprisonment, less credit for pre-trial custody, resulting in a
    sentence of 33 months imprisonment.

[4]

We disagree.  The parity principle does not require that all co-accused
    be subject to the same sentence, or even that they be treated similarly for
    sentencing purposes.  On the contrary, disparate sentences for different
    offenders, for the same offence, do not violate the parity principle so long as
    they are warranted by all the circumstances.  See
R. v. Ipeelee
,
    [2012] S.C.J. No. 13, at paras. 78 to 79,
per
LeBel J.

[5]

In this case, we see little, if any, parallel between the circumstances
    of the appellant and those of White.  Indeed, on this record, there were
    fundamental differences in the antecedents of the two men and in the offences
    for which they were convicted.

[6]

The appellant was 31 years of age at the time of the robbery.  He had a
    lengthy criminal record with 43 convictions (albeit mostly for property
    offences and repeated breaches of court orders).  Further, in addition to the
    robbery count, he was charged with a series of serious offences arising out of
    or associated with the robbery.  These additional offences themselves warranted
    significant sanctions.

[7]

In contrast, to the limited extent evident on this record, Whites
    circumstances were materially different from those of the appellant.  White was
    a youthful offender (18 or 19 years of age at the time of the robbery) and had
    no prior criminal record.  He was charged and convicted of one count of robbery,
    while the appellant pleaded guilty to different and multiple crimes.  As the
    Crown points out, the principles of sentencing that apply to a youthful first
    offender, like White, differ greatly from those applicable to the appellant.
    Different sentences for these offenders, given their disparate circumstances,
    would be expected especially if, as is likely, rehabilitation figured in
    Whites sentencing.

[8]

Little else is known on the record before us concerning Whites
    conviction and sentence.  In particular, the record contains no information
    regarding the facts to which he admitted at trial, his background and any
    relevant mitigating circumstances.  As a result, we agree with the Crown that
    only a limited comparison can be made between the appellants circumstances and
    those of White.

[9]

We therefore conclude, on the available information, that a violation of
    the parity principle is not made out.

III.      Jump Principle Not Violated

[10]

We
    reach a similar conclusion concerning the appellants claim that his sentence on
    the robbery charge offends the jump principle.  The appellants crimes are
    fundamentally different in kind and seriousness than the crimes for which he
    was previously sentenced.  Accordingly, the rationale for the jump principle
    that successive sentences should be increased gradually  is simply not
    engaged.  As this court observed in
R. v. Borde
(2003), 63 O.R. (3d)
    417, at para. 39:

[The jump] principle cautions a court against imposing a
    dramatically more severe sentence than the sentences imposed upon the offender
    for similar offences in the recent past.  It has little application where the
    severity of the offenders crimes shows a dramatic increase in violence and
    seriousness.

[11]

It
    also bears emphasis that the appellants sentence was the product of a joint
    submission.  This court has repeatedly held that it will not lightly interfere
    with a sentence imposed in accordance with a joint submission.  The appellant
    does not contend that the sentence imposed was manifestly unfit given the
    nature of his crimes.

IV.     Restitution

[12]

It
    remains to consider the restitution order imposed on the appellant.  The Crown
    has now determined that, in fact, the full amount of the cash stolen in the
    robbery was recovered by the police, as the appellant asserts.  As a result,
    the Crown acknowledges, quite properly, that the restitution order cannot stand
    since no loss was sustained by the victim of the robbery.  We agree.

V.      Disposition

[13]

Accordingly,
    for the reasons given, leave to appeal sentence is granted and the sentence appeal
    is allowed, in part, by quashing the restitution order.  In all other respects,
    the appeal is dismissed.

Released: JUL -6 2012

JL                                          John Laskin
    J.A.

E.A.
    Cronk J.A.

Alexandra
    Hoy J.A.