WARNING

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

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

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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)     any of the
    following offences;

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

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

(iii)     REPEALED: S.C.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

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

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

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

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

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    that could identify the victim shall not be published in any document or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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. W.R., 2020 ONCA 813

DATE: 20201217

DOCKET: C65088

Simmons, Lauwers and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.R.

Appellant

James Mencel, for the appellant

Lisa Fineberg, for the respondent

Heard: November 18, 2020 by video conference

On appeal from the convictions entered by
    Justice Nancy S. Kastner of the Ontario Court of Justice on September 28, 2017.

Nordheimer J.A.:

[1]

WR appeals from his convictions for sexual
    assault and assault. The allegations involve his stepson with respect to the
    sexual assault conviction and his son with respect to the assault conviction.
    While originally also charged with sexual assault respecting his son and sexual
    interference with respect to both boys, the appellant was acquitted of those
    charges.

Background

[2]

The appellant was charged with sexually
    assaulting his son CD on one occasion and his stepson AB on two occasions. At
    the relevant time, the appellant, CD, and AB, all lived together with GH, who
    was the mother of both complainants.

[3]

According to CD, when he was six years old, his
    father forcibly removed a soccer shirt from his back. CD believed that, in the
    course of removing the shirt, the appellant fondled his genitals. His memory of
    this incident came back to him through flashbacks starting when he was 16.
    During cross-examination, CD admitted that he was unsure if the touching was
    incidental to the removal of the shirt. Due to this uncertainty, the trial
    judge acquitted the appellant of sexually assaulting CD but convicted him of
    simple assault.

[4]

While the evidence on how the events involving
    both CD and AB came to be disclosed is somewhat confused, it seems clear that
    CDs initial disclosure of what CD believed was a sexual assault, led to ABs
    disclosure. All of this occurred after the appellant had left the family and
    moved out of the family home. CD says that he told his mother of the assault in
    response to her continuing to muse about reconciling with the appellant. That
    possibility angered CD and, in the course of trying to dissuade his mother from
    any such reconciliation, CD eventually told her that the appellant had sexually
    assaulted him. Indeed, CD initially told his mother that the appellant had
    raped him, but CD later admitted that there had not been any rape. CDs
    mother told him that she did not believe his allegations.

[5]

CD was angry that his mother did not believe him.
    He spoke to AB, to whom CD had been very close as they grew up. CD is unclear
    as to what he precisely told AB although he latterly admitted that he may have
    told AB that the appellant had raped him. There is also disagreement over what
    AB said in response. AB said that he did not tell CD about the appellant having
    sexually assaulted him, whereas CD says that AB did tell him. AB says that he
    only told his mother about the sexual assault when he told her that she should
    believe CD because the same thing had happened to him. To further the
    confusion, the mother says that CD did tell her about the appellants abuse of
    AB and that is what caused her to call AB and ask him about it. One thing is
    clear and that is that AB told his mother about the abuse so that she would
    believe what CD was telling her, as AB was very protective of CD.

[6]

CD was twenty years old at the time that he told
    his mother of the abuse. AB was twenty-eight. Both of them were very angry with
    the appellant who had been generally abusive towards them, and their mother,
    during the time that he lived in the home. The appellant was also unfaithful,
    and he abused both alcohol and drugs. After the appellant left the family home,
    the mother was constantly tearful about his departure. In response, CD and AB
    were making every effort to remind GH how awful the appellant was to her and to
    them, so that she would stop crying, and to ensure she would not reconcile with
    the appellant.

[7]

In terms of the allegations involving AB, he gave
    evidence that he was abused twice when he was 14 years old. According to his
    testimony, AB was wrestling with CD when the appellant joined in. AB said that
    the appellant grabbed his butt momentarily.

[8]

With respect to the second assault, AB testified
    that he was asleep in his bed when he woke to grunting noises. For a fleeting
    moment, he realized that someone was thrusting on his back. As soon as he woke,
    the person jumped off and went to the doorway, where he stood for maybe two
    seconds before disappearing down the hall. While he was standing in the
    doorway, AB, who admitted he was in a confused state, said that he could see that
    the person was the appellant. AB got up and went to the hallway, to find no one
    there. He then went to the appellants door, which was 44 feet down the
    hallway, to find what AB described as the appellant pretending to be asleep in
    his bed.

[9]

AB was confused as to what had happened, until
    he went to the bathroom, wiped his behind, and saw blood on the tissue. He then
    realized what had happened: the appellant had anally penetrated him. AB did not
    tell anyone about what had happened. He only came forward when he became aware
    that CD was making similar allegations and that their mother was not believing CD.

The finding of assault involving CD

[10]

There was no dispute at the trial that the
    incident with the soccer shirt had taken place. A friend of the appellant was
    visiting in the home and expressed interest in the soccer shirt that CD was
    wearing. The appellant told CD to take the shirt off and give it to the friend.
    The appellant was drunk at the time and may have also been consuming drugs.
    When CD refused to give up his shirt, the appellant took CD to the bathroom and
    physically removed the shirt. In doing so, CD says that the appellant touched
    his genitals and his buttocks, although he ultimately admitted that the
    touching might have resulted from the appellant reaching in to grab the shirt, which
    was tucked in.

[11]

The trial judge acquitted the appellant of
    sexual assault and sexual interference arising from this incident, because of
    the uncertainty that there was any sexual motive to the touching. However, she
    convicted the appellant of the lesser included offence of simple assault. In
    doing so, the trial judge said, at para. 275:

This assault was not to discipline C.D. or for
    any educative purpose. It was the act of a bully upon a vulnerable child.

[12]

In my view, there can be no serious challenge to
    the trial judges conclusion in this regard. On the evidence, it was open to
    the trial judge to find that the appellant had not removed CDs shirt for any
    legitimate parental objective but, rather, had done so in a drunken state as a
    way of showing his power over CD. The trial judges conclusion in this regard
    is owed deference by this court.

The sexual assault involving AB

[13]

With respect to the wrestling incident, the
    trial judge said that she could not be sure that the appellants actions in
    grabbing ABs buttocks had been sexual in nature, given the surrounding
    circumstances. She noted that AB himself was unsure of whether there was a
    sexual connotation to the action. Thus, she acquitted the appellant of the
    charges arising from that incident.

[14]

However, on the second incident, the anal rape
    incident, the trial judge convicted the appellant. She did so for several
    reasons. One was that she found AB to be a very good witness, who she said was thoughtful
    and credible in his evidence. Another was that while there were inconsistencies
    in ABs evidence, they did not raise a reasonable doubt in her mind. She
    reviewed four of those inconsistencies and found that three of them were not
    inconsistencies deserving of any weight. The fourth inconsistency, namely differences
    in what he had said about the event at different points in time, especially
    relating to the amount of blood that was present, was of more concern to her.
    However, she ultimately concluded that the inconsistencies were of the type
    that were to be expected, when one took into account that AB was fourteen at
    the time, and many years had passed since the event when AB was first called
    upon to speak about it.

[15]

Ultimately, the trial judge believed AB and
    found the appellant guilty of sexual assault arising from the anal rape
    incident. She gave detailed reasons for her conclusion. Her evaluation of the
    evidence is, again, entitled to deference.

The motive issue

[16]

One issue that the appellant raises that is of
    concern is the trial judges handling of the issue of motive. Both CD and AB
    admitted that they hated the appellant, and both wanted to see him go to jail
    for what he had done, not only to them, but also to their mother. Consequently,
    they both had reasons to either fabricate their allegations involving the
    appellant, or to embellish the events.

[17]

The trial judges analysis of this issue is problematic.
    In her reasons, at para. 144, she said:

Motive is a question of fact. In this case,
    the Court finds that AB and CD have no discernable motive to fabricate their
    evidence. The Court is not in doubt.

[18]

I begin this issue by noting that there is a
    difference in law between an absence of evidence of a motive to fabricate (that
    is, no evidence either way) and a proven absence of a motive to fabricate (that
    is evidence that establishes that no motive existed). The former is an element
    that may be considered in assessing the credibility of a witness, but it is
    only one element. On the other hand, the latter may be a compelling reason to
    conclude that the witness is telling the truth. This distinction is set out in
R.
    v. L. (L.)
,
2009 ONCA 413, 96 O.R. (3d) 412, where Simmons J.A.
    said, at para. 44:

When dealing with the issue of a complainant's
    motive to fabricate, it is important to recognize that the absence of evidence
    of motive to fabricate is not the same as absence of motive to fabricate.

[19]

Neither of these situations arose in this case.
    There was evidence of a motive to fabricate, as I have already set out. It
    follows from that fact that there could be no evidence of a proven absence of motive
    to fabricate. The problem that arises from the trial judges choice of words is
    that they could be read as saying the opposite.

[20]

Despite the language used, I do not take the
    trial judge as having found that there was a proven absence of a motive to
    fabricate. Rather, I see her language as indicating that she did not accept
    that AB and CD, despite evidence of a motive to fabricate, were, in fact, fabricating
    their allegations for that ulterior purpose. In particular, as it relates to
    AB, the trial judge reviewed the reasons why she accepted ABs evidence, all of
    which were within her purview as the trial judge. Motive was but one of the
    considerations in her analysis.

[21]

I would add, in considering this issue, the
    corollary point which is that the fact that there may be a motive to fabricate
    does not mean that a witness is not telling the truth. As this court said in
R.
    v. Batte
, (2000) 49 O.R. (3d) 321 (C.A.), 145 C.C.C. (3d) 449, at para.
    121: "[t]he presence or absence of a motive to fabricate evidence is only
    one factor to be considered in assessing credibility."

[22]

Thus, while the issue of motive to fabricate
    could have been better explained, I do not find that the trial judges handling
    of this issue amounts to a palpable and overriding error. Of importance is the
    fact that the issue of motive did not drive the trial judges credibility
    findings as they relate to either AB or CD. Equally important is the fact that,
    at no point, did the trial judge suggest that her views on the motive issue led
    her to conclude that AB and CD must be telling the truth.

The tainting issue

[23]

The appellant also complains that the trial
    judge erred in her consideration of the possibility of tainting of the evidence
    between CD and AB. I do not accept that the trial judge made any such error.

[24]

This case is not factually similar to the
    situation in
R. v. J.F
.
(2003), 177 C.C.C. (3d) 1 (Ont. C.A.), upon
    which the appellant relies. There was virtually no evidence in this case to
    suggest that CD and AB had colluded with each other in making their allegations
    and there was very little evidence that could sustain any suggestion of
    tainting, whether consciously or unconsciously.

[25]

The alleged assaults were very different in
    nature. In addition, both CD and AB admitted that they were uncertain whether
    the touching was of a sexual nature, except, of course, for the anal rape. The
    fact that both boys were prepared, independently, to offer that acknowledgment
    would, by itself, discount any suggestion of tainting.

[26]

Further, the facts demonstrated that there was
    very little discussion between CD and AB about the respective incidents. Indeed,
    the evidence shows that both of them were very reluctant to speak about these
    matters with anyone. Consequently, there was little opportunity for there to be
    any real prospect for any tainting of their evidence.

[27]

The trial judge directly addressed this issue in
    her reasons. She set out her conclusion that there was no collusion or tainting
    of the evidence between CD and AB and gave her reasons for that conclusion,
    including noting that CD made his allegations before he knew anything about
    what had happened to AB. The trial judges conclusion on this issue is entitled
    to deference. It cannot be interfered with, absent a showing that the trial
    judge committed a palpable and overriding error. None has been shown in this
    case.

Conclusion

[28]

The appeal is
    dismissed.

I.V.B. Nordheimer J.A.

I agree. Janet Simmons J.A.

Lauwers J.A.
    (Concurring):

[29]

I concur in the
    decision to dismiss the appeal. I came to this conclusion hesitantly and with
    reservations related to the adequacy of the reasons for decision, as I will
    explain.

[30]

I accept the
    law, as my colleagues lay it out, on the difference between an absence of
    evidence of a motive to fabricate (that is, no evidence either way) and a
    proven absence of a motive to fabricate (that is evidence that establishes that
    no motive existed). For me, the case does not turn on this legal issue. My
    disquiet was rooted in the trial judges unsatisfactory treatment of the motive
    to lie or fabricate on the part of the complainants.

[31]

The trial
    judges treatment of the motive to lie extends over four pages and 32
    paragraphs. My colleagues cite para. 143 of the trial judges reasons, which I
    repeat for convenience:

Motive is question
    of fact. In this case, the court finds that AB and CD have no discernable
    motive to fabricate their evidence. The court is not in doubt.

[32]

I agree with my
    colleagues that: The trial judges analysis of this issue is problematic. As
    my colleagues acknowledge:

Both CD and AB
    admitted that they hated the appellant, and both wanted to see him go to jail
    for what he had done, not only to them, but also to their mother. Consequently,
    they both had reasons to either fabricate their allegations involving the
    appellant or to embellish the events.

[33]

There were
    several elements of the narrative that troubled me. First, CD admitted that he
    lied to his mother when he told her that the appellant had raped him. He told
    police that he had not been raped and adopted that statement on
    cross-examination. His shifting allegation is important because CD first disclosed
    the alleged sexual assault in an attempt to persuade his mother give up on
    reconciling with his father. He explained on cross-examination:

Q. I see. And then
    you were trying to convince her that really, look, your father is a bad guy,
    you shouldnt be defending him, right?

A. Yeah.

Q. And you said in
    the context - in that context you said, look, hes not a good guy, you
    shouldnt defend him, and in fact the first thing you said was that he raped
    you.

A. Yeah, I - yeah.
    Very, like - Id say at that time it was very unstable.

Q. Look, Im not
    trying to trick you. Im trying to get at the sequence of what was said by
    which people, because...

A. Yeah, thats what
    I said.

[34]

CD wanted to
    say something sufficiently serious to shut down his mothers continual lament
    over the loss of her relationship with the appellant and her hope of
    reconciliation. The trial judge acknowledged but did not adequately grapple in
    her reasons with the possibility that CD fabricated the story in order to
    further drive the wedge in between his parents.

[35]

Second, the
    evidence is unclear as to whether CD disclosed the allegation of rape to AB, or
    whether his mother did so. AB initially testified that They [CD and GH] were
    arguing about her  her drinking, and [CD] basically told my mom that he was
    sexually abused by his biological father. AB then said: And then, after a
    while, my mom called me to reach out to my brother, to find out whats going on
    with him, and when I did talk to him, he said, no one believes me, my
    biological father sexually abused me. However, AB also indicated that CD had
    called him after the argument, saying when my brother called me, and he said
    no one would believe him, I knew exactly what he was feeling. On
    cross-examination, AB seemingly confirmed that CD had called him first after
    the argument with his mother, saying: He called me crying, saying this is what
    happened to him, and no one would believe him. CD also testified that he
    called AB first, shortly after telling GH. The trial judge did not resolve how
    it came to be that AB knew about CDs rape allegation, and how this might play
    into her assessments of both credibility and reliability.

[36]

Third, ABs
    motivation seems to turn in part on his protective relationship with his
    younger brother CD and his desire to support CD as he had in the past. It is
    clear that CDs allegation of sexual abuse provoked ABs disclosure of anal
    rape. AB said so at least three times during his testimony. The trial judge
    failed to consider how CDs false disclosure might have motivated a false
    disclosure by AB.

[37]

I agree with
    the observation in
Batte
that: The presence or absence of a
    motive to fabricate evidence is only one factor to be considered in assessing
    credibility. But the motive to fabricate here was palpable. The trial judges
    bald statement that AB and CD have no discernable motive to fabricate their
    evidence is simply untenable. Regrettably, the trial judge failed to grapple
    directly with the evidence of the brothers strong motivation to fabricate in
    her reasons.

[38]

However, I join
    with my colleagues in the result based on the trial judges superior ability to
    assess credibility and reliability, and my own review of the transcripts. But
    there is no doubt, as my colleagues acknowledge: the issue of motive to
    fabricate could have been better explained.

Released: December 17, 2020 JS

P.
    Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Walters, 2020 ONCA 825

DATE: 20201217

DOCKET: M52014 (C68871)

Brown J.A.
    (Motion Judge)

BETWEEN

Her
    Majesty the Queen

Respondent

and

Christian
    Walters

Applicant (Appellant)

George (Knia) Singh and Kyle Corbin,
    for the applicant

Katie Beaudoin, for the respondent

Heard: December 10, 2020 by video conference

REASONS
    FOR DECISION

[1]

The applicant, Christian Walters, applies for
    bail pending appeal pursuant to s. 679(1)(a) of the
Criminal Code
,
    R.S.C. 1985, c. C-46.

[2]

On November 7, 2019, the applicant was convicted
    of six possession of firearms-related offences and one drug-related offence. On
    December 4, 2020, he was sentenced to 38-months incarceration with a reduction
    of 22 months for pre-sentence custody and restrictive bail conditions. The
    applicant appeals both his conviction and sentence.

THE CROWNS BASIS FOR OPPOSING THE APPLICATION

[3]

The Crown concedes that the applicant satisfies
    the first two grounds for bail pending appeal, set out at ss. 679(3)(a) and (b)
    of the
Criminal Code
.

[4]

The Crown opposes the bail application on the
    third ground, submitting that the applicant has failed to demonstrate that his detention
    is not necessary in the public interest:
Criminal Code,
at s.
    679(3)(c). The Crown submits that the nature of the applicants offences raises
    significant public safety concerns. Further, the enforceability interest outweighs
    the reviewability interest given the low strength of his grounds of appeal. On
    this basis, the Crown contends that the applicant has not established the third
    ground under s. 679(3).

ANALYSIS

[5]

I am not persuaded by the Crowns submission.

[6]

Mr. Walters is 29 years old. He has no prior
    criminal record and complied with his pre-trial bail conditions. The surety who
    acted for his pre-trial bail is willing to act again. She has known the
    applicant for 15 years. The sentencing judge noted that the surety had not
    experienced any difficulty with the applicant.

[7]

That said, I acknowledge that the offences for
    which the applicant was convicted are serious. As part of an investigation into
    other offences, on June 18, 2018, the police executed a search warrant at the
    apartment of the applicants then girlfriend. The applicant spent about 70% of
    his time at the apartment. In a laundry hamper in the bedroom closet, the
    police found a loaded .40 caliber handgun, a bag with 18 rounds of ammunition,
    and a digital scale. In a night table in the bedroom, the police found a
    magazine loaded with 15 rounds, a digital scale, and 2 baggies containing 7.8
    grams of cocaine. The Crown submits that the applicants possession of a gun
    and ammunition in an apartment building indicates that his release would give
    rise to public safety concerns.

[8]

However, the case against the applicant was one
    of constructive possession of the seized items based upon circumstantial
    evidence. There was no direct evidence from a witness that the applicant placed
    the items in the laundry hamper or night table or knew that they were there.
    Nor was there any forensic DNA or fingerprint evidence that linked the seized
    items to the applicant or his girlfriend.

[9]

As well, there was evidence that third-party
    suspects had access to the apartment. The applicants girlfriend testified that
    on June 12, 2018  two days before she and the applicant went to his mothers
    cottage  she had done a thorough cleaning of the apartment, including the
    laundry hamper and the shelf of the night table, but had not seen the items.
    The applicant and his girlfriend were at the cottage from June 14 until June
    16, 2018. On their return, they found the applicants brother and his
    girlfriend asleep in the apartment. There was also internet-based evidence that
    the suspect in a June 14, 2018 shooting, TQuan Robertson, had been in the
    apartment during the applicants absence on June 15 and 16. Video files showing
    Mr. Robertson holding a gun identical to the one seized were filed in evidence.

[10]

The trial judge gave extensive reasons. But the
    applicant submits, citing
R. v. Villaroman
, 2016 SCC 33, [2016] 1
    S.C.R. 1000, that the trial judge erred in concluding that the applicants
    guilt was the only reasonable inference available on the totality of the
    circumstantial evidence. The applicant points to the following to support this
    submission:

(i)    the absence of the applicant and his girlfriend from the
    apartment for several days;

(ii)    the presence of third parties in the apartment during their absence,
    one of whom was the suspect in a shooting and was shown to have had possession
    of a gun identical to that found in the apartment; and

(iii)   the circumstantial nature of the evidence.

[11]

I am satisfied that the applicant has
    demonstrated that his release would not pose a substantial risk to public
    safety:
R. v. Oland
, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 39. He
    has complied with his pre-trial bail conditions, his surety is prepared to act
    once again, and the case against him was one of constructive possession based
    on circumstantial evidence.

[12]

On the third ground, the merits of the
    applicants appeal fall to be assessed as part the final balancing of factors
    described in
Oland
, at paras. 47 to 49. The applicants grounds of
    appeal surpass the minimum standard required to meet the not frivolous
    criterion. The combination of the circumstantial nature of the case against the
    applicant and the presence of third parties in the apartment at material times
    afford arguable grounds of appeal with respect to the trial judges application
    of the
Villamoran
principle.

Conclusion

[13]

There is no doubt that the offences for which
    the applicant was convicted are serious. But, as I have found, he does not pose
    a substantial risk to public safety. Balancing these factors, I conclude that
    the applicant has demonstrated that his detention is not necessary in the
    public interest.

DISPOSITION

[14]

Accordingly, I grant the application for bail
    pending appeal.

[15]

As to the terms of
    release, the parties have worked out a consent order. I am satisfied that the
    terms are reasonable, with one exception  the time in which to perfect the
    appeal.

[16]

The applicant has
    approximately 16 months left to serve on his sentence. He was represented at
    trial. Just over a year elapsed between the date of the applicants conviction
    and the initiation of this application. Yet, no steps were taken to order the trial
    transcripts during that lengthy period of time. Given that circumstance, I am
    not prepared to approve the usual condition of pursuing the appeal with due
    diligence. A perfection date needs to be imposed so that this appeal will be
    heard well in advance of the expiration of the applicants sentence.

[17]

Accordingly, I would
    vary condition 3 of the draft order to read: You must perfect the appeal by
    April 30, 2021.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wittke, 2020 ONCA 835

DATE: 20201218

DOCKET: C62050

Hoy,
    Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zachary Wittke

Appellant

Zachary Wittke, in person

Brian Snell, appearing as duty counsel

Hannah Freeman, for the respondent

Heard: December 10, 2020 by videoconference

On
    appeal from the sentence imposed by Justice Robert G. Selkirk of the Superior
    Court of Justice, on April 19, 2016.

REASONS FOR DECISION

[1]

The appellant entered pleas of guilty to the
    following offences: theft of a motor vehicle (
Criminal Code
, R.S.C.
    1985, c. C-46, s. 333.1); possession of a weapon for a purpose dangerous to the
    public peace (s. 88); uttering a threat to members of the public (s.
    264.1(1)(a)); threatening a justice system participant (s. 423.1(1)(b)); theft
    under $5,000 (s. 334(b)); and driving while disqualified (s. 259(4)). The trial
    judge imposed a jail sentence of two years less a day, followed by two years of
    probation. He also made ancillary orders, including a lifetime driving
    prohibition.

[2]

The appellant appeals the imposition of the
    lifetime driving prohibition. Ms. Freeman for the Crown fairly concedes that
    the trial judge erred by purporting to impose a prohibition for life pursuant
    to what was then s. 259(1)(c) of the
Criminal Code
; the maximum length
    of a prohibition that was available in this case was five years: s. 259(1)(b). She
    submits that we should substitute a five-year prohibition for the order made by
    the trial judge. The appellant does not oppose this order.

[3]

In our view, the nature of the offences
    committed by the appellant, along with his criminal record at the time of
    sentencing, which includes numerous driving-related offences, warrant the
    maximum prohibition in the circumstances  five years.

[4]

Accordingly, the appeal against sentence is
    allowed to the extent that the lifetime driving prohibition is set aside. We
    substitute a prohibition of five years. All other aspects of the appellants
    sentence remain unaltered. In the circumstances, it is not necessary to
    consider the Crowns application to admit fresh evidence.

Alexandra Hoy J.A.

Gary Trotter J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sokoloff v.
    Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 849

DATE: 20201230

DOCKET: C67387

Huscroft, Zarnett and
    Coroza JJ.A.

BETWEEN

Wendy Sokoloff and
    Wendy Sokoloff Professional

Corporation
    c.o.b. Sokoloff Lawyers

Plaintiffs
    (Respondents)

and

Tru-Path Occupational
    Therapy Services Ltd.

and
    Troy Campbell

Defendants
    (Appellants)

Paul J. Pape, for the
    appellants

Jonathan C. Lisus, Andrew
    Winton and Vlad A. Calina, for the respondents

Heard: July 20, 2020 by video
    conference; additional written submissions filed

On appeal from the order of Justice Edward M. Morgan of the Superior
    Court of Justice, dated July 25, 2019, with reasons reported at 2019 ONSC 4756.

COSTS ENDORSEMENT

[1]

The respondents are entitled to costs fixed in the amount of $30,000,
    inclusive of taxes and disbursements.

Grant Huscroft J.A.

B. Zarnett J.A.

S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sparr v. Downing, 2020 ONCA 793

DATE: 20201211

DOCKET: C67981

van Rensburg, Benotto and
    Thorburn JJ.A.

BETWEEN

Bernard
    René Jean Sparr

Applicant (Appellant)

and

Denise Lee Downing

Respondent (Respondent)

Karen Kernisant, for the appellant

Ian C. Vallance
, for the respondent

Heard: December 3, 2020 by video conference

On
    appeal from the orders of Justice Michelle OBonsawin of the Superior Court of
    Justice, dated May 24, and June 20, 2019.

REASONS FOR DECISION

[1]

The appellants pleadings in a family law application
    were struck for failure to comply with financial disclosure orders. He appeals
    on the basis that the remedy was excessive and that he did provide sufficient
    disclosure.

[2]

We do not accept these submissions.

[3]

The only issue before the court was the quantum
    of child support. Four judges made six different orders that the appellant
    produce specific financial documentation. He was regularly in breach of these
    orders and received multiple warnings that his pleadings would be struck. As
    the motion judge said in her reasons,  he had been recently warned that this
    was his last chance.

[4]

The remedy was not excessive. Financial
    disclosure in a family law case is  without doubt  one of the most important
    obligations. It should be automatic without the need for court intervention.
    This action was started in 2012. The appellant breached six orders. This court
    has upheld the use of r. 1(8)c of the
Family Law Rules
, O. Reg. 114/99,
in similar circumstances:
Roberts v.

Roberts
,
2015 ONCA 450,
65 R.F.L. (7d) 6
;
Manchanda
v.
Thethi
,
2016 ONCA 909,
84 R.F.L. (7d) 374,
leave to appeal refused, [2017] S.C.C.A. No. 29;
Peerenboom
v.
Peerenboom
,

2020
    ONCA 240,
446 D.L.R. (4d) 418
.

[5]

Nor do we accept that the disclosure he made was
    sufficient, or all he could do. He submits that he disclosed all the documents
    that were necessary. These submissions were rejected by the motion judge who
    found that the disclosure was clearly lacking.

[6]

The appellant also appeals the most recent costs
    order. Given the record and her findings, it was open to the motion judge to
    conclude that the appellant had acted in bad faith and  in accordance with r.
    24(8)  order full recovery costs.

[7]

The appeal is dismissed. If the parties do not
    agree on the costs of the appeal, they may send written submissions limited to
    7 pages within 15 days.

K.
    van Rensburg J.A.

M.L.
    Benotto J.A.

J.A.
    Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Zoutman v. Graham, 2020 ONCA 767

DATE: 20201203

DOCKET: C67036

Pepall, Benotto and Coroza JJ.A.

BETWEEN

Dr. Dick Eric Zoutman

Plaintiff (Respondent)

and

James Graham
and RateMDs.com

Defendants (
Appellant
)

Marc Munro, for the appellant

Frank McLaughlin, Dorothy Charach and Erin Chesney, for
    the respondent

Heard: September 23, 2020 by video conference

On appeal from the judgment of Justice Graeme Mew of the Superior
    Court of Justice, dated May 7, 2019, with reasons reported at 2019 ONSC 2834,
    and from the costs order, dated August 21, 2019, with reasons reported at 2019
    ONSC 4921.

REASONS FOR DECISION

Introduction

[1]

The appellant, James Graham, appeals from a
    judgment dismissing his anti-SLAPP motion under s. 137.1 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43 and granting summary
    judgment in the amount of $50,000 in favour of the respondent physician, Dr. Dick
    Zoutman.

Background Facts

[2]

Tragically, the appellants brother died
    following a medical operation. The appellant, his brothers estate, and other
    family members sued the attending physician, Hamilton Health Sciences
    Corporation and others. At the trial of the action, the respondent, a specialist
    in infectious diseases, was called by the defendants and gave expert testimony
    on causation. The jury dismissed the action.  The jury concluded that the physician
    had not met the applicable standard of care but the plaintiffs had failed to
    establish causation.

[3]

RateMDs.com is a doctor rating website for
    patients to comment on their physicians. Its terms of use make it clear that only
    actual patients should comment on a physicians profile. After the trial, although
    not a patient of the respondent, the appellant admitted to posting two derogatory
    comments about the respondent on RateMDs.com but denied posting eight additional
    derogatory comments about the respondent on the website and two others on
    another website. The respondent asked the appellant to remove all of the
    postings, but the appellant declined to remove any.

[4]

There was no evidence from anyone other than the
    respondent about the extent to which, if at all, persons other than he or his
    lawyers had viewed the postings.

[5]

On March 3, 2015, the respondent commenced an
    action against the appellant and RateMDs.com for defamation. He discontinued the
    action against RateMDs.com on May 26, 2015. On July 6, 2018, the respondent
    served a notice of motion for summary judgment, which was returnable on
    November 20, 2018. He served his motion record in support on August 2, 2018.

[6]

On October 5, 2018, relying on s. 137.1 of the
Courts
    of Justice Act
, the appellant served motion materials to
    dismiss the respondents action.

[7]

Both the respondents summary judgment motion
    and the appellants anti-SLAPP motion were adjourned and ordered to be heard
    together on January 15 and 16, 2019. Accordingly, both motions came before the
    motions judge at the same time.

Motions Judges Decision

[8]

The motions judge dismissed the appellants
    anti-SLAPP motion. He was prepared to accept that the passage of time alone
    should not disentitle the appellant from relief. However, the respondents
    summary judgment motion had been served and filed more than two months before
    the appellant brought his anti-SLAPP motion, a hearing date had been set for
    the summary judgment motion, and an order had been made for the two motions to
    be heard concurrently. In these circumstances, the appellants delay was fatal
    to his motion. It subverted the intent and purpose of s.137.1.

[9]

The motions judge stated that in any event, he would
    also reject the motion on the basis that the appellant had failed to establish
    that the proceedings arose from an expression made by him in that he did not
    acknowledge that 10 of the 12 postings were authored by him or that they
    related to a matter of public interest, both requirements of s. 137.1(3) of the
    anti-SLAPP provisions. In addition, the appellant had no valid defence to the
    respondents claim, which had substantial merit. Finally, the harm suffered by
    the respondent was sufficiently serious that the public interest in permitting
    the proceeding to continue prevailed.

[10]

As for the summary judgment motion, despite the
    appellants denial of authorship of 10 of the 12 impugned postings, the motions
    judge concluded that the appellant had authored all 12 of them, not just the
    two he acknowledged. The appellant admitted authorship of the July 31, 2014
    posting, yet the July 30 posting was virtually identical. Moreover, the July
    30, 2014 posting emanated from the same IP address as four other postings. In
    addition, the postings revealed a consistent style and recurring words and
    phrases that were suggestive of common authorship.

[11]

The motions judge readily accepted that the
    content of the postings was defamatory of the respondent. Among other things,
    they were derogatory and degrading to the respondent, both personally and
    professionally and some of the postings went to the core of his integrity.

[12]

The motions judge noted that to be actionable, a
    defamatory remark must be communicated to a third person, other than the
    defamed individual or his lawyers. He surveyed the case law and noted that
    while there is no presumption of publication in relation to allegedly
    defamatory material posted on the internet, in some cases publication can
    reasonably be inferred from the proven facts.  The motions judge cited the
    following statement from
Gatley on Libel and Slander
,
relied upon by the Supreme Court in
Gaskin
    v. Retail Credit Co.
, [1965] 2 SCR 297 at p. 300, and
    referred to by Deschamps J. in
Crookes v. Newton
,
2011 SCC 47, [2011] 3 S.C.R. 269, at
    para. 109:

It is not necessary for the plaintiff in every
    case to prove directly that the words complained of were brought to the actual knowledge
    of some third person. If he proves facts from which it can reasonably be
    inferred that the words were brought to the knowledge of some third person, he
    will establish a
prima facie
case.

[13]

The motions judge acknowledged that there was
    no evidence from anyone other than the respondent about the extent to which, if
    at all, persons other than the respondent or his lawyers had viewed the
    defamatory postings. However, he determined that an inference of publication
    could be drawn from the totality of the circumstances, including:

a.

The comment by an apparent third party on 14 July 2014, referring to
    Mr. Grahams earlier posting of 27 November 2013;

b.

RateMDs.com and similar physician rating websites are frequently
    used by the public for the purpose of choosing a physician;

c.

Mr. Grahams evidence that he authored postings to warn prospective
    patients about Dr. Zoutman;

d.

Mr. Grahams acknowledgment that he posted the second of the
    postings that he admits having authored because he found that the first posting
    had been deleted and was concerned that his message would not be received by
    the public; and

e.

The prominence of the RateMDs.com and OntarioDoctorDirectory.ca
    profile in Google searches concerning Dr. Zoutman.

[14]

The motions judge concluded that the cumulative
    effect of these factors provided ample evidence of publication.

[15]

He rejected the appellants defence of fair
    comment and had no hesitation in concluding that he acted out of malice. He
    also concluded that he should award general damages of $25,000, aggravated
    damages of $25,000 for a total of $50,000 and a permanent injunction preventing
    the appellant from disseminating defamatory content relating to the respondent.
    Lastly, he ordered the appellant to pay costs of $50,000 in favour of the
    respondent.

Analysis

[16]

Although not pressed in oral submissions, the
    appellant submits that the motions judge had no jurisdiction to rule on the
    summary judgment motion once the appellant brought his anti-SLAPP motion due to
    the language of s. 137.1(5). Section 137.1(5) provides that once a s. 137.1
    motion is made, no further steps may be taken in the proceeding until the
    anti-SLAPP motion, including any appeal, has been finally disposed of.

[17]

However, the respondent brought and scheduled
    his summary judgment motion well before the appellant brought his motion under
    s. 137.1. Furthermore, the two motions were ordered to be heard at the same
    time, and the appellant did not seek to appeal that decision. In this context,
    the respondent did not take any further step within the meaning of s. 137.1(5).
    It will not be every case that the presence of a motion for summary judgment precludes
    a s.137.1 motion: see
Labourers International Union of North
    America, Local 183 v. Castellano
, 2020 ONCA 71, at para.
    9. However, given the constellation of facts in this case, it was open to the
    motions judge to decline the s.137.1 relief on the basis of its timing.

[18]

That said, as discussed, the motions judge nonetheless
    addressed the merits of the appellants motion. In that regard, we reject the
    appellants argument that the motions judge erred in concluding that the
    anti-SLAPP motion failed due to the appellants failure to admit authorship of all
    but two of the postings. As the appellant denied authorship of 10 of the 12 postings,
    he could not have succeeded in his motion to have the respondents entire claim
    dismissed. No viable argument could be advanced with respect to 10 postings.  We
    are not persuaded that the motions judge erred in his conclusion that the
    public interest requirement found in s. 137.1(3) had not been established.
[i]
It is therefore unnecessary to
    address whether the respondent met the requirements of s. 137.1(4)(a) and (b)
    that the respondents proceeding had substantial merit and the appellant had no
    valid defence. However, as we will discuss when dealing with the motion for
    summary judgment, the respondent did establish these requirements in any event.
    In our view, the motions judge correctly dismissed the appellants motion under
    s. 137.1.

[19]

The appellant also submits that summary judgment
    ought not to have been granted. First, he argues that the respondent failed to
    prove that the words complained of were published. He claims that material
    posted on the internet is not deemed to be published and there was no pleading
    or evidence that the postings were ever communicated to anyone other than the
    respondent or his legal counsel.  Second, he submits that there was no evidence
    of authorship with the exception of the two postings the appellant admitted.
    Lastly, the appellant argues that the respondent had not identified any
    tangible injury or harm and indeed, his career has and continues to flourish.

[20]

A defamation claim requires a claimant to prove
    three elements, on a balance of probabilities: (i) the defendant made a
    defamatory statement, in the sense that the impugned words would tend to lower
    the plaintiffs reputation in the eyes of a reasonable person; (ii) the words
    in fact referred to the plaintiff; and (iii) the words were communicated to at
    least one person other than the plaintiff:
Grant v. Torstar Corp.
, 2009 SCC 61, [2009] 3 S.C.R. 640 , at para. 28.  Relying on the aforementioned
    quotation from
Gatley on Libel and Slander
, the
    motions judge found that there was evidence of review by at least one other
    person and he drew an inference of publication from that and other findings of
    facts, as described in his reasons at paras. 82-83. We would not disturb his
    conclusion of publication.

[21]

We also see no palpable and overriding error in
    the motions judges finding that the appellant was the author of all the
    defamatory postings. His finding was explained and was grounded in the evidence
    before him. Similarly, his finding of malice, also anchored in the evidence,
    was a full answer to the appellants fair comment defence. There was no
    palpable and overriding error in his conclusion that the appellant was
    motivated by malice, a conclusion that was heavily dependent on factual findings
    evident from the postings. We also note that the factors relied upon by the
    motions judge were present in both of the postings that the appellant admitted
    to authoring. As the motions judge stated, he had no hesitation in concluding
    that the appellant acted out of malice.

[22]

Similarly, his damages and costs awards are
    entitled to deference and we see no basis to interfere.

Disposition

[23]

For these reasons, the appeal is dismissed. The
    appellant is to pay the respondent $16,000 in costs inclusive of disbursements
    and applicable tax.

S.E. Pepall J.A.

M.L. Benotto J.A.

S. Coroza J.A.

[i]
Given how interrelated the issues of the anti-SLAPP and summary judgment motions
    are, w
e have treated the entire order as final for the
    purposes of this appeal: see
Lax v. Lax
(2004), 70 O.R. (3d) 520 (C.A.)
    and
Burtch v. Barnes Estate
(2006), 80 O.R. (3d) 365 (C.A.).


COURT OF APPEAL FOR ONTARIO

CITATION: 1853491 Ontario Inc. v. Regional Waste North Inc.,
    2019 ONCA 37

DATE: 20190123

DOCKET: C65329

Rouleau, van Rensburg and Zarnett JJ.A.

BETWEEN

1853491
    Ontario Inc. and 2278385 Ontario Limited,

operating as Kirby Waste
    Transfer Solutions

Plaintiffs (Respondents)

and

Regional Waste North Inc., and Alex Sivitelli

Defendants (Appellants)

AND BETWEEN

Regional
    Waste North Inc., Alex Sivitilli,

Regional Waste Transit
    Inc. and Snowpro Winter Services Ltd.

Plaintiffs by
    Counterclaim (Appellants)

and

1853491
    Ontario Inc., 2278385 Ontario Inc. c.o.b. as

Kirby
    Waste Transfer Solutions, 1854488 Ontario Limited,

Vincenzo
    Ussia Senior, Vincenzo Ussia Junior, Michael Ussia,

Lucia
    Ussia, 1116941 Ontario Limited, Verde Excavating Ltd.,

A1A Demolition Inc., and
    Public Disposal and Recycling Inc.

Defendants by
    Counterclaim (Respondents)

Michael Kestenberg, for the appellants

Adam Marchioni and Mauro Marchioni, for the respondents

Heard: January 7, 2019

On appeal from the order of Justice John R. McCarthy of
    the Superior Court of Justice, dated April 6, 2018.

REASONS FOR DECISION

[1]

The parties were involved in a waste disposal and waste transportation
    business from 2011 to early 2014, when the relationship broke down. By that
    point, the respondent Mr. Vincenzo Ussia, whose company 2278385 Ontario Limited
    carried on business as Kirby Waste Transfer Solutions (Kirby Waste), alleged
    that Mr. Alex Sivitillis company Regional Waste North Inc. (Regional
    Waste) owed them in excess of $350,000. When Mr. Ussia threatened to sue, Mr.
    Sivitilli responded by alleging a beneficial interest in companies owned by
    members of the Ussia family, including Kirby Waste.

[2]

On January 14, 2014, Mr. Ussia wrote to Mr. Sivitilli, denying that
    Mr. Sivitilli had any such beneficial interest in the Ussia companies.

[3]

On March 20, 2014, Kirby Waste and 1853491 Ontario Inc. issued their
    claim for damages on various bases and for a declaration that the appellants Regional
    Waste and Mr. Sivitilli had no beneficial interest in the respondent companies.
    Those appellants defended, including by alleging they had such an interest. They
    did not, at that time, include any counterclaim.

[4]

On March 3, 2016, the appellants Regional Waste and Mr. Sivitilli,
    together with two other parties, issued a counterclaim joining additional
    parties to the counterclaim and claiming for payment of landscaping services
    allegedly provided and for a declaration that the plaintiffs by counterclaim
    held a beneficial interest in various Ussia companies.

[5]

The defendants to the counterclaim (the respondents in this court) moved
    for summary judgment on the counterclaim on the basis that the claims advanced
    were time barred.

[6]

The motion judge found that the counterclaim was a separate claim from
    the respondents claim in the action and that the respondents to the
    counterclaim were seeking complete summary judgment on the counterclaim. Moreover,
    even if the motion could be defined as a partial summary judgment motion, there
    was a discrete issue in this case: whether the counterclaim was defeated by the
    passage of the limitation period. It was therefore an appropriate case for
    partial summary judgment.

[7]

The motion judge then held that the landscaping services dated from 2012
    and 2013 and, as a result, the limitation period for these claims had expired
    long before the counterclaim was issued. As for the beneficial interest claims,
    the motion judge found that the limitation period began to run on January 14,
    2014 following the respondents unequivocal denial of Mr. Sivitilli or his
    companies having any interest in the Ussia companies. The motion judge,
    however, went on to find that the parties had reached an informal agreement to
    refer the dispute to a chartered accountant. This agreement, in the motion
    judges view, suspended the running of the limitation period pursuant to s. 11
    of the
Limitations Act 2002
, S.O.
    2002, c. 24
.

[8]

The motion judge then determined that the agreement to attempt
    resolution was terminated by February 3, 2014 at the latest when Mr. Ussia made
    it clear that he withdrew from the agreement. As a result, the tolling of the
    limitation period ended on that date. Because the counterclaim was issued on March
    3, 2016  beyond the two-year limitation period as extended by the period of
    tolling  the motion judge dismissed the counterclaim as being statute barred.

[9]

The appellants do not appeal the dismissal of their counterclaim for
    payment of the landscaping services. On appeal, they argue that the motion
    judge erred with respect to his decision on the motion for summary judgment of
    the claims for beneficial interest in the various Ussia companies. They contend
    that the motion judge erred by failing to consider and apply all of the
    principles from this courts decision in
Butera v. Chown, Cairns LLP
, 2017 ONCA 783
, 137 O.R. (3d) 561, and
    in finding that the counterclaim involved an issue that was separate and
    discrete from those raised in the main action. The appellants also argue that
    the motion judge erred in finding that the counterclaim was statute barred. They
    argue that the tolling period continued until March 20, 2014, when the
    respondents signalled that discussions were clearly at an end by issuing their
    claim.

[10]

The
    central issue in this appeal is a narrow one, the duration of the tolling
    period. The parties agree that the appellants claims contained in the
    counterclaim were discovered on January 14, 2014 and that the counterclaim
    advancing those claims was issued March 20, 2016. They also agree that the
    limitation periods running was tolled on January 14 when an agreement to have
    a third party, Mr. Genua, assist in resolving the claim as contemplated by s.
    11 of the
Limitations Act
was reached. The only issue is whether the
    motion judge erred in finding that the tolling agreement ended on February 3,
    2014 at the latest.

[11]

In
    that regard, the appellants submit that, in reaching the conclusion that the
    agreement to have Mr. Genua involved in resolving the dispute ended on February
    3 at the latest, the motion judge did not consider all of the correspondence and
    e-mails between the parties.

[12]

We
    disagree. In his reasons, the motion judge focused on two e-mails that, in his
    assessment, made it clear that the resolution process had terminated by
    February 3 at the latest. He quoted from the February 3, 2014 e-mail sent by the
    respondents solicitor to the appellants solicitor, stating as follows:

I have recently received information from Joe Genua, confirming
    that your client never held an interest in Kirby. Based on that, can we please
    meet and work out the accounting as between the two separate parties?

[13]

The
    motion judge also referred to a February 10, 2014 e-mail from the respondents
    solicitor to the appellants solicitor that served to confirm that, as far as
    the respondents were concerned, the discussions had ended. That e-mail stated:

Ari your client does not own 50% of Kirby and please stop
    making these self serving statements. The issue is one that the parties
    obviously disagree upon. Perhaps we can agree on the wording of a joint
    application and move on.

[14]

The
    motion judges assessment of the exchanges between the parties, including his
    finding that he was unable to find that any emails or actions by [Sivitilli]
    throughout February or March of 2014, served to reinvigorate the section 11
    resolution window. Indeed by February the 22nd, 2014, [Sivitilli] was
    threatening to lodge a complaint to the Institute of Chartered Accountants
    about Genua are entitled to deference and we find no basis to interfere.

[15]

On
    appeal, the appellants referred the court to several e-mails which they submit
    show that the discussions were not at an end until the claim was issued on March
    20, 2014. We disagree. These e-mails do no more than suggest that the
    appellants were not prepared to accept that the resolution attempts were at an
    end. This, however, is irrelevant. Subsection 11(1) of the
Limitations Act
provides that when an agreement to have an independent third party resolve the
    claim is entered into it tolls the running of the limitation period, but only
    until:

(a)

the date the claim is resolved;

(b)

the date the attempted resolution
    process is terminated; or

(c)

the date a party terminates or
    withdraws from the agreement.

The motion judges finding that the respondents
    terminated the agreement and that the termination was clearly and unequivocally
    communicated to the appellants by February 3 is well supported by the record.

[16]

The
    appellants then argue that, in any event, the motion judge erred in that he
    ought to have left the issue of when the tolling period ended to be determined
    at trial. This, they submit, is because the motion judge must have rejected
    Mr. Sivitillis affidavit evidence to find that the tolling only extended
    to February 3. Specifically, the application judge must have rejected Mr.
    Sivitillis assertion that correspondence with Mr. Genua and between the
    lawyers regarding attempts to resolve continued into early March and all
    discussions broke down on or around March 20, when the claim was issued. The
    assessment of Mr. Sivitillis credibility was better left to trial when there
    would be a complete record and there would be no risk of the trial judge making
    an assessment of Mr. Sivitillis credibility that conflicted with the motion
    judges assessment.

[17]

We
    disagree. In reaching his conclusion that the tolling period ended on February
    3, the motion judge relied on the record of exchanges between the parties. He
    did not make a finding as to Mr. Sivitillis credibility, nor was any such
    finding necessary. The fact that Mr. Sivitilli may have believed that
    discussions were not at an end cannot operate so as to keep the tolling
    agreement in place in the face of the respondents clear decision to terminate the
    agreement, which they communicated unequivocally to the appellants.

[18]

Given
    that the motion judges finding on the limitation issue completely resolved the
    counterclaim, we also reject the appellants submission that this was not an
    appropriate case for summary judgment, partial or otherwise.

[19]

We
    acknowledge that striking the counterclaim does not resolve the main action and
    also acknowledge that many of the issues the appellants sought to raise in the
    counterclaim will nonetheless have to be litigated as part of the appellants defence
    of that action. Striking the counterclaim does, however, finally resolve issues
    raised in the counterclaim that are not raised in the defence and will thereby
    result in a saving of legal costs and trial time.

[20]

The
    decision should not be taken to prejudice in any way the ability of the
    appellants who are defendants to the main action to raise defences in the main
    action nor does it limit the remedies the trial judge may order in that
    proceeding.

[21]

For
    these reasons, the appeal is dismissed. Costs to the respondents are fixed in
    the amount of $12,500 inclusive of disbursements and applicable taxes.

Paul
    Rouleau J.A.

K. van Rensburg J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Almalki v. Canada (Attorney General), 2019 ONCA 26

DATE: 20190117

DOCKET: C64421

Doherty, Miller and Paciocco JJ.A.

BETWEEN

Abdullah Almalki, Khuzimah Kalifah, Abdulrahman
    Almalki, by his Litigation Guardian Khuzimah Kalifah, Sajeda Almalki, by her Litigation
    Guardian Khuzimah Kalifah, Muaz Almalki, by his Litigation Guardian Khuzimah
    Kalifah, Ruqaya Almalki, by her Litigation Guardian Khuzimah Kalifah, Zukariyya
    Almalki, by his Litigation Guardian Khuzimah Kalifah, Nadim Almalki and Fatima
    Almalki

Plaintiffs (Appellants)

and

The Attorney General of Canada, John Doe and Jane
    Doe

Defendants

Peter I. Waldmann, for the appellants

J. Thomas Curry and Tiffany M. O'Hearn Davies, for the
    respondent, Stockwoods LLP

Heard: December 10, 2018

On appeal from the orders of Justice Victoria R.
    Chiappetta of the Superior Court of Justice, dated June 5, 2017; June 23, 2017,
    with reasons reported at 2017 ONSC 3857; and, September 14, 2017.

Doherty J.A.:

I

OVERVIEW

[1]

This appeal arises out of a contingency fee agreement between the
    appellants and the law firm Stockwoods LLP (Stockwoods). More specifically,
    it concerns Stockwoodss entitlement under the terms of the agreement to a
    percentage of the settlement that was paid to the appellants for their legal
    costs.

[2]

The motion judge held that Stockwoods was entitled to payment of that
    amount. The appellants claim that she erred in so holding. I would dismiss the appeal.

II

BACKGROUND

[3]

In March 2006, the appellants sued the Government of Canada for millions
    of dollars. The claim arose out of Abdullah Almalkis detention and torture in
    Syria, and the alleged complicity of the Canadian Government in that detention
    and torture. The other plaintiffs in the action were Mr. Almalkis wife,
    children, and parents.

[4]

In late 2008, Mr. Almalki approached Stockwoods about the possibility of
    acting for the appellants in their action against the Government of Canada.
    After about six weeks of negotiation, Stockwoods and the appellants entered into
    a contingency fee agreement, and Stockwoods assumed carriage of the action in
    early 2009. Mr. Almalki had retained his original lawyers on a contingency fee
    basis as well.

[5]

At the same time that the appellants retained Stockwoods, Stockwoods
    took on two other clients who were advancing very similar claims against the
    Government of Canada. Those clients entered into virtually identical
    contingency fee agreements with Stockwoods.

[6]

The three actions settled in early 2017. The settlement provided that
    the appellants were to receive a specified amount as damages and a separate
    specified amount for their legal costs. The settlement also included certain
    non-monetary terms.
[1]

[7]

On March 21, 2017, Stockwoods, on behalf of the appellants, brought a
    motion for an order approving the settlement as it applied to the infant
    plaintiffs and approving the payments of legal fees under the terms of the
    contingency fee agreement. The approval of the settlement was not opposed. However,
    in the notice of motion, Stockwoods indicated that, on the day before the
    motion was to be heard, Mr. Almalki had advised Stockwoods that the appellants
    intended to contest Stockwoodss right under the contingency fee agreement to
    claim a portion of the amount paid to the appellants by the Government of
    Canada for their legal costs.

[8]

The
Solicitors Act
, R.S.O. 1990, c. S-15, (the Act) permits
    contingency fee agreements to include all or a portion of legal costs obtained
    as part of a settlement if two conditions are met. First, the solicitor and
    client must jointly apply to a judge for approval of the payment. Second, the
    judge must be satisfied that there are exceptional circumstances justifying the
    payment. Mr. Almalki contended that he had not agreed that exceptional
    circumstances existed and that he should be allowed to oppose the payment of
    the portion of the legal fees claimed by Stockwoods. Stockwoods agreed that
    this issue should be dealt with separately from the approval of the settlement.

[9]

The pre-trial conference judge approved the terms of the settlement. At
    the request of counsel for the appellants, he adjourned the issue concerning
    the contingency fee agreement to another judge.

[10]

Stockwoods
    brought forward a supplementary notice of motion seeking enforcement of the
    contingency fee agreement. That motion came before a different judge (the
    motion judge). Over the objection of counsel for the appellants, the motion
    judge ordered that the matter proceed by way of motion and that Stockwoods was
    not required to commence a new proceeding by way of application.

[11]

On
    June 23, 2017, the motion judge held that the relevant provisions in the
    contingency fee agreement were valid and binding on the appellants. Under those
    provisions, and in particular para. 16, the appellants were required to join
    Stockwoods in its application for court approval to include in the fee payable
    to Stockwoods part of the amount paid to the appellants as costs. The motion
    judge held that the appellants were required by the agreement to support
    Stockwoodss application, and that they could not lead evidence or make
    submissions opposing Stockwoodss request for court approval of the payment:
Almalki
    v. The Attorney General of Canada
, 2017 ONSC 3857.

[12]

On
    September 14, 2017, the motion judge held that Stockwoods had established that exceptional
    circumstances existed. Accordingly, Stockwoods was entitled to a portion of
    the amount paid to the appellants as legal fees as part of the contingency fee
    agreement. She approved the payment of the portion of the costs as set out in
    para. 16 of the contingency fee agreement. She also awarded Stockwoods its costs
    on the motions in the amount of $60,000.

III

THE TERMS OF THE CONTINGENCY FEE AGREEMENT

[13]

Paragraph
    4 of the contingency fee agreement provided that Stockwoods would receive a
    percentage of any settlement or judgment obtained by the appellants. The
    percentage depended on the timing and amount of the judgment or settlement.
    Paragraph 5 gave examples of the relevant calculations.

[14]

In
    para. 19 of the agreement, the appellants undertook to consent to court
    approval of the contingency fee agreement. Paragraph 8, however, expressly
    preserved the appellants right to apply to a court for a determination of
    whether the fees ultimately charged under the agreement were fair and
    reasonable. The clients had six months from the receipt of Stockwoodss bill
    to apply for that assessment.

[15]

In
    paragraph 11, the appellants acknowledged that they had been informed by
    Stockwoods that they should obtain independent legal advice before signing the
    contingency agreement. The appellants further acknowledged that they had an
    opportunity to seek independent legal advice before signing the agreement.

[16]

Paragraph
    16, and, to a lesser extent, paragraph 15 of the contingency fee agreement are
    at the centre of this litigation. Paragraph 16 provides for the possibility of
    Stockwoods applying to the court for approval to include in the fee payable to
    Stockwoods a percentage of any amount paid to the appellants by the Government
    of Canada for legal fees. That amount would be in addition to the percentage of
    any settlement or judgment owed to Stockwoods under para. 4 of the agreement.

[17]

Paragraph
    15 reads in part:

Unless otherwise ordered by a Court, the Clients are entitled
    in the first instance to receive any legal costs awarded by the Court, on a
    partial indemnity scale or substantial indemnity scale, if the Clients are the
    party entitled to legal costs.

[18]

Paragraph
    16 of the agreement states:

However, the Clients and Stockwoods LLP acknowledge and agree
    that, given the exceptional circumstances that may arise in this case and
    subject to the Courts approval, their mutual intent is that if the Clients
    receive any settlement, judgment or other recovery amount that includes an
    award of legal costs (including any such award for fees or disbursements), then
    any such amounts received by the Clients as legal costs be included in the net
    amounts to which the Fee calculation in para. 4 of this agreement is applied.
    Accordingly, if requested by Stockwoods LLP, the Clients agree to join in an
    Application under s. 28(8) [
sic
] of the
Solicitors Act
R.S.O.
    1990, c. S-15 for approval by the Court of the payment to Stockwoods LLP of an
    appropriate percentage portion of any legal costs amounts received, by way of
    settlement, judgment, or otherwise.

[19]

I
    will return to the language of para. 16 in more detail below.

IV

RELEVANT PROVISIONS OF THE
SOLICITORS ACT

[20]

Subject
    to exceptions which are irrelevant to this case, s. 28.1 of the Act allows
    solicitors and clients to enter into contingency fee agreements. The content of
    those agreements is circumscribed by the Act and regulations made under the
    Act. Contingency fee agreements are also subject to assessment under the fair
    and reasonable standard set down in ss. 23 and 24 of the Act: see
Cookish
    v. Paul Lee Associates Professional Corporation
, 2013 ONCA 278, 39 C.P.C.
    (7th) 227, at paras. 42-43;
Raphael Partners v. Lam
(2002)
, 61 O.R. (3d) 417 (C.A.);
Henricks-Hunter
    v. 814888 Ontario Inc.
, 2012 ONCA 496, 28 C.P.C. (7th) 227.

[21]

Section
    28.1(8) is the key provision of the Act for present purposes. It provides:

A contingency fee agreement shall not include in the
    fee payable to the solicitor, in addition to the fee payable under the
    agreement, any amount arising as a result of an award of costs or costs
    obtained as part of a settlement, unless,

(a) the solicitor and
    client jointly apply to a judge of the Superior Court of Justice for approval
    to include the costs or a proportion of the costs in the contingency fee
    agreement because of exceptional circumstances; and

(b) the judge is
    satisfied that exceptional circumstances apply and approves the inclusion of
    the costs or a proportion of them.
[2]

[22]

Section
    28.1(8) does two things. The first part of the section prohibits a term in a
    contingency fee agreement that provides for payment to the lawyer of all or
    part of an amount paid to the client for legal fees, in addition to any other
    amount owed under the contingency fee agreement. In other words, a lawyer
    cannot take a percentage of the amount paid to the clients for damages and a
    percentage of the amount paid for legal fees.

[23]

The
    prohibition in the first part of s. 28.1(8) is, however, qualified by the exception
    set out in the rest of the section. That exception applies if the two criteria
    set down in subsections (a) and (b) are met. Subsection (a) requires that the
    solicitor and client bring a joint application before the court seeking
    approval of the term providing for payment of all or a portion of the costs paid
    to the client. Subsection (b) requires that the court be satisfied that
    exceptional circumstances exist justifying the inclusion of the provision
    requiring payment of all or part of the costs awarded to the client to his
    lawyer as part of the contingency fee agreement. The payment contemplated by s.
    28.1(8) is referred to in some of the cases as a premium. A contingency fee
    agreement that requires approval under s. 28.1(8) is not enforceable unless
    approved by the court: s. 28.1(9).

V

THE ISSUES

[24]

The
    appellants raise four issues on appeal:

·

was Stockwoods permitted to proceed by way of motion in the
    action in seeking approval of the contingency fee agreement, or was it required
    to commence a new proceeding by way of application?

·

what is the correct interpretation of para. 16 and is it
    enforceable against the appellants?

·

were the appellants wrongly denied the opportunity to make
    submissions on the existence of exceptional circumstances?

·

did the court err in finding exceptional circumstances?

[25]

In
    their factum, the appellants also seek leave to appeal the costs order made by
    the motion judge.

A.

COULD STOCKWOODS PROCEED BY WAY OF MOTION?

[26]

The
    appellants submit that s. 28.1(8) of the Act
precluded
    Stockwoods from proceeding by way of motion within the existing action. Section
    28.1(8)
requires the solicitor and client to jointly apply for an
    order approving a contingency fee agreement that includes payment of costs paid
    to the client. According to the appellants, s. 28.1(8) required that Stockwoods
    initiate a new proceeding by way of application, rather than bring a motion in
    the existing action.

[27]

I
    do not accept this submission. I do not read the word apply in s. 28.1(8) as
    referencing the need to bring a formal application as described in the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194. I read the word in a more
    generic way, as simply indicating that the parties must jointly put the matter
    before the court seeking the approval contemplated under the section: see
56
    King Inc. v. Aviva Canada Inc.
, 2017 ONCA 408, at para. 4.

[28]

In
    this case, the motion under s. 28.1(8) was brought with a motion for approval
    of the settlement as it related to the infant plaintiffs. The request to
    approve the settlement was properly brought by way of motion under r. 7.08. A
    motion for approval of a contingency fee agreement applicable to infant
    plaintiffs may also be brought as part of a motion for approval of the
    settlement:
Contingency Fee Agreements
, O. Reg. 195/04, s. 5(1)(b).

[29]

The
    enforceability of the contingency fee agreement as against all of the
    appellants is, in my view, properly viewed as part of the motion for the approval
    of the settlement and the contingency fee agreement as it relates to the infant
    plaintiffs. The outcome of the arguments raised by Mr. Almalki challenging the
    contingency fee agreement would, if successful, impact on the infant plaintiffs
    as well as Mr. Almalki.

[30]

I
    do not suggest that the matter could not have been properly brought forward by
    way of an application: see
Solicitors Act
, ss. 23, 28.1(11). In my
    view, however, an application was not the only mode of putting the matter
    before the court. The issues arising out of para. 16 of the contingency fee
    agreement were sufficiently connected to the motion brought for approval of the
    settlement and contingency fee agreement as applied to the infant plaintiffs to
    be, in reality, part of the same motion.

[31]

I
    also agree with the motion judge that the appellants have shown no prejudice
    flowing from proceeding by way of motion rather than by application. The
    prejudice claim advanced by the appellants in this court rests, not in the
    nature of the procedural vehicle used to bring the matter forward, but rather
    in the motion judges conclusion that the appellants, by virtue of agreeing to
    para. 16 of the contingency fee agreement, were required to support Stockwoodss
    motion under s. 28.1(8). There is no reason to think that the motion judges
    analysis or conclusion would have been different had she addressed the issue
    wearing her application judges hat rather than her motion judges hat.

B.

what does paragraph 16 mean and is it enforceable?

[32]

The
    motion judge interpreted para. 16 of the contingency fee agreement as requiring
    the appellants to support Stockwoodss application for a payment of a portion
    of the legal fees paid to the appellants as part of the settlement. The motion
    judge held that the appellants could not oppose the application or offer
    evidence to challenge the existence of the requisite exceptional
    circumstances.

[33]

The
    appellants attack this holding on two fronts. First, they submit that, on a
    proper interpretation, para. 16 does not preclude the appellants from opposing
    the motion under s. 28.1(8). Second, they argue that if the motion judge
    properly interpreted para. 16, it contravenes s. 28.1(8) of the Act and cannot
    be enforced.

[34]

The
    arguments advanced on behalf of the appellants focus on the meaning and
    enforceability of para. 16 of the contingency fee agreement, and its interplay
    with s. 28.1(8) of the Act. Despite some of the assertions made in Mr.
    Almalkis affidavits about Stockwoodss dockets and their conduct of his case,
    there is no claim, apart from the challenge to para. 16 of the agreement, to
    the terms of the contingency fee agreement or the fee claimed under para. 4 of
    the agreement. The appellants have not sought to assess the fees under the
    fair and reasonable standard in ss. 23 and 24 of the Act.

(i)

The Interpretation of Paragraph 16

[35]

As
    often happens, the parties disagree over the standard of review applicable to
    the submission that the motion judge erred in her interpretation of para. 16 of
    the contingency fee agreement. I will assume, in keeping with the appellants
    submission, that correctness is the appropriate standard. For the reasons that
    follow, I view the motion judges interpretation as the only reasonable
    interpretation of para. 16 available, and therefore the correct interpretation.

[36]

This
    contingency fee agreement was the product of lengthy negotiation between Mr.
    Almalki and Stockwoods. Several drafts of the agreement were exchanged and
    modified. Stockwoods recommended to Mr. Almalki that he obtain independent
    legal advice and he did so. According to Mr. Almalki, he did not seek advice
    about the meaning of para. 16.

[37]

The
    Government of Canada made various offers to settle. Stockwoods explained the
    fee ramifications of these offers to Mr. Almalki, including the payment of a
    portion of the amount attributable to his costs to Stockwoods according to
    para. 16. Mr. Almalki had no questions about para. 16.

[38]

According
    to Mr. Almalkis affidavit, he first raised para. 16 with Stockwoods shortly
    before the motion to approve the settlement because a plaintiff in one of the
    other two related actions questioned whether Stockwoodss contingency fee could
    include a proportion of the costs paid as part of the settlement. Mr. Almalki
    followed up on the question raised by the other plaintiff and eventually
    decided to object to para. 16. The question posed by the other plaintiff would,
    of course, have made no sense to Mr. Almalki unless he understood that the
    agreement he had signed contemplated that Stockwoods would be paid a proportion
    of any legal costs paid to him by the Government of Canada.
[3]

[39]

In
    her June 23, 2017 ruling, the motion judge acknowledged that contingency fee
    agreements were subject to closer scrutiny than purely commercial contracts.
    She went on, after a review of the relevant evidence, to hold, at para. 21:

In this case however, there is no evidence of fraud, duress,
    mistake of fact or unconscionability. There is no evidence of Mr. Almalkis
    failure to understand the fee agreement or specifically the effect of the
    language of paragraph 16. There is no evidence that the plaintiffs were misled
    by Stockwoods.

[40]

The
    record fully supports these findings and I would defer to them.

[41]

The
    language of paras. 15 and 16 is free of any ambiguity or uncertainty. Paragraph
    15 acknowledges that the appellants are initially entitled to receive any
    amount awarded or paid to them as costs. Paragraph 16 qualifies para. 15 by
    providing that Stockwoods and the appellants mutually intend that, should exceptional
    circumstances arise, Stockwoodss fee should be calculated to include a portion
    of the amount paid by the Attorney General to the appellants for legal costs.
    The appellants undertake to join Stockwoods in an application for court
    approval of that payment.

[42]

The
    appellants submit that para. 16 contemplates a joint application to the court,
    but leaves the appellants free to take the position that there are no exceptional
    circumstances justifying approval of the payment called for by para. 16. In
    the same vein, the appellants submit that the phrase exceptional circumstances
    that may arise in this case in para. 16 indicates that those circumstances did
    not exist as of the making of the agreement, and leaves open the question of
    whether there would be exceptional circumstances as of the time of the
    application called for in para. 16. The appellants contend that para. 16
    contemplates that the client would be free to assess the circumstances at the
    time of Stockwoodss application and determine whether to support Stockwoodss
    claim that exceptional circumstances existed justifying the payment.

[43]

I
    cannot accept either submission. Paragraph 16 reads in part:

If requested by Stockwoods LLP, the clients agree to join in an
    application under s. 28(8) [
sic
] of the
Solicitors Act
,
    R.S.O. 1990, C. s. 15, for approval by the court of the payment to Stockwoods
    LLP.
[4]

[44]

The
    words plainly declare that the clients will, if asked by Stockwoods, join in Stockwoodss
    request for approval. To agree to join in an application is to agree to
    support that application. One cannot join in an application and at the same
    time oppose that application.

[45]

The
    appellants reading of para. 16 is untenable in light of s. 28.1(8)(a) of the
    Act. That subsection requires that, as a precondition to the court considering
    whether exceptional circumstances exist, the solicitor and client must jointly apply
    for approval. The client in effect has a veto over the making of the
    application. Unless the client has committed to supporting the application, the
    lawyer will have no opportunity to convince the court that the required exceptional
    circumstances exist. If the appellants interpretation of para. 16 of the
    contingency fee agreement is correct, the parties agreed that the appellants
    would, on the one hand, join in the application, but on the other hand,
    effectively maintain a veto over the courts consideration of whether
    exceptional circumstances justified an order under s. 28.1(8). I cannot
    accept this interpretation of the agreement.

[46]

Nor,
    in my view, does the phrase exceptional circumstances that may arise in this
    case assist the appellants. The phrase simply recognizes that as of the date of
    the agreement no determination had been, or indeed could have been, made with
    respect to the existence of exceptional circumstances. That determination is
    for the court at the time the application for approval of the payment is
    brought.

(ii)

Is paragraph 16 unenforceable?

[47]

The
    appellants next submit that if the motion judge properly interpreted para. 16 of
    the contingency fee agreement, the agreement is unenforceable as contrary to s.
    28.1(8) of the Act. The appellants submit that the Act, and in particular s.
    28.1(8), is consumer protection legislation designed to protect clients who are
    often at a very real disadvantage when negotiating fee arrangements with their
    lawyers: see
Zeppieri & Associates v. Gupta
, 2016 ONSC 6491, at
    para. 22.

[48]

The
    appellants further submit that payment of a portion of the clients costs as
    part of the lawyers contingency fee is very much the exception under the Act,
    and is limited to situations in which there are exceptional circumstances.
    The appellants argue that to properly protect themselves, clients must be able
    to challenge a lawyers claim that exceptional circumstances justify the
    payment of the premium. A contingency fee agreement which requires the client to
    commit to supporting the lawyers application at a point in time when the
    client cannot make an informed assessment of the circumstances effectively
    allows the lawyer to contract out of one of the two protections provided to the
    client by s. 28.1(8): see
Jean Estate v. Wires Jolley LLP
, 2009 ONCA
    339, 96 O.R. (3d) 171, at para. 82.

[49]

I
    accept the appellants characterization of the Act as consumer protection
    legislation. However, the Act is also intended to facilitate access to justice
    by providing for contingency fee agreements. These agreements allow clients who
    could not afford to retain counsel through traditional retainers to secure
    legal representation. Contingency fee agreements have proven particularly
    valuable in complex, expensive litigation in which the outcome is very much in
    doubt.

[50]

To
    facilitate access to justice, the Act contemplates fees that may include a
    payment by way of a premium of an amount from any costs paid to the client. The
    Act imposes no limitation on the parties agreeing to this payment. Section
    28.1(8) does, however, require that the parties jointly apply for payment and
    that the court make its own determination of whether the circumstances of the
    case justify the payment.

[51]

Nor
    is the client placed in an unfair position by a provision in a contingency fee
    agreement which requires the client to eventually support the lawyers
    application for payment of a premium. Presumably, a client who agrees to give
    up the effective veto over the payment contemplated by s. 28.1(8) does so upon
    a consideration of the other terms of the contingency fee agreement, and in
    particular the percentage of the damages the client will be required to pay to
    the lawyer under the agreement.

[52]

Mr.
    Almalki was also in a position to assess the likelihood of exceptional
    circumstances developing in the course of this litigation. Anyone familiar
    with the nature of this lawsuit  and Mr. Almalki certainly was  would have
    had no difficulty anticipating that this litigation would be anything but
    routine and straightforward.

[53]

The
    interpretation favoured by the motion judge also promotes the effective
    operation of the client and solicitor relationship in cases where the retainer
    involves a contingency fee agreement. The motion judge made this point, at
    para. 19:

Securing the clients agreement to jointly apply to the court
    pursuant to s. 28.1(8) of the Act at the commencement of the solicitor and
    client relationship is not limited by the Act. There is good reason for this.
    The purpose of a contingency fee agreement in part is for the client and the
    lawyer to fully understand and agree to all terms that will determine the
    amount of money received by each party upon the completion of the solicitor and
    client relationship. The agreement provides both the lawyer and the client with
    equal expectations of legal fees that the client cannot otherwise pay for
    throughout the course of the litigation. It is prudent therefore for the
    parties to negotiate, agree and set out their intention concerning exceptional
    circumstances at the beginning of the relationship. This prevents conflict at
    the end of the relationship as a result of second thoughts or a reconsideration
    of fees and highlights the potentially impactful consequences of judicial
    approval in this regard on the distribution of the amounts recovered.

[54]

The
    appellants are not left unprotected by the motion judges interpretation of s.
    28.1(8). The Act protects the interests of the client in at least two ways.
    First, the judge hearing the s. 28.1(8) application must be convinced that exceptional
    circumstances exist. In making that assessment, the court will bear in mind
    its obligation to protect the clients interests. Second, the client can seek
    an assessment of the fees generated under the contingency fee agreement,
    including any payment of a premium, pursuant to ss. 23 and 24 of the Act. Those
    fees must be fair and reasonable.

[55]

I
    am satisfied that the terms of para. 16 of the contingency fee agreement are
    consistent with s. 28.1(8) of the Act. Paragraph 16 recognizes that the client
    and the lawyer must bring a joint application as required by the section. It
    also recognizes that, despite the joint application, the court must still
    determine whether exceptional circumstances exist. The appellants decision
    to agree to make the joint application, if requested by Stockwoods, reflects
    the requirements of the Act and does not, in my view, constitute a contracting
    out of those requirements.

C.

were the appellants denied the opportunity to make submissions on the
    question of exceptional circumstances?

[56]

The
    appellants present this submission as a procedural due process issue. It is, in
    my view, a reformulation of the argument that by agreeing to bring a joint
    application with Stockwoods for court approval of the payment, the appellants
    were not agreeing to support the application. I have addressed that argument in
    the context of the submissions respecting the proper interpretation of para. 16
    of the agreement, which required the appellants to support Stockwoodss
    application.

[57]

My
    reading of para. 16 disposes of any procedural fairness argument. Procedural
    fairness does not demand that the appellants be given the opportunity to do
    something they promised they would not do.

D.

did the motion judge err in finding exceptional circumstances?

[58]

The
    motion judges reasons dated September 14, 2017 set out in detail the many
    reasons why she was satisfied that were exceptional circumstances justifying
    the payment to Stockwoods under para. 16 of the contingency fee agreement. I do
    not propose to repeat those reasons.

[59]

It
    is sufficient for my purposes to indicate that the factors identified by the
    motion judge were properly considered by her. Those factors included the
    factual and legal complexity of the litigation, the substantial financial risk
    assumed by Stockwoods during the several years in which it represented the
    appellants, the significant importance of the litigation  not only to the
    parties, but to the public  and the immense resources expended by Stockwoods
    in achieving what was a very good result for the appellants. In my view, these
    factors, all of which were supported by the record before the motion judge,
    justified the motion judges finding of exceptional circumstances.

VI

SHOULD LEAVE TO APPEAL THE MOTION JUDGES COSTS ORDER BE
    GRANTED?

[60]

The
    appellants did not make oral submissions on this issue. Stockwoods was
    successful in the proceedings before the motion judge and was clearly entitled
    to its costs on a partial indemnity basis.

[61]

The
    appellants submit that this court should grant leave to consider whether the
    record before the motion judge properly established that costs should include
    time expended by Stockwoodss lawyers in respect of the motion. It does not
    appear that this was argued before the motion judge. In any event, I agree with
    counsel for Stockwoods that there is no arguable case against the entitlement
    of costs in relation to the time spent by the Stockwoods lawyers on the motion.
    Indeed, using lawyers familiar with the file may well have reduced the costs.

[62]

I
    would not grant leave to appeal the costs order.

VII

[63]

I
    would dismiss the appeal. Stockwoods is entitled to its costs of the appeal on
    a partial indemnity basis. Having reviewed the costs outline submitted by the
    parties, I would order costs in the amount of $32,000, inclusive of relevant
    taxes and disbursements.

Released: DD JAN 17 2019

Doherty J.A.

I agree. B.W. Miller
    J.A.

I agree. David M.
    Paciocco J.A.

[1]

The motion record filed in the Superior Court of Justice for
    approval of the settlement was ordered sealed by McEwen J. on March 21, 2017.
    That order was continued by the order of Hoy A.C.J.O. dated June 20, 2018.

[2]
Section 28.1(8) is to be repealed on a date to be proclaimed:
Plan for Care
    and Opportunity Act (Budget Measures), 2018
, S.O. 2018, c. 8, Schedule 31,
    s. 3.

[3]
The plaintiffs in the other two related actions have not challenged the
    contingency fee agreements.

[4]

The reference to s. 28(8) is clearly intended to be a
    reference to s. 28.1(8).