COURT OF APPEAL FOR ONTARIO

CITATION:

Oz Optics
    Limited v. Timbercon, Inc., 2012 ONCA 735

DATE: 20121030

DOCKET: C51799

Simmons, Armstrong and LaForme JJ.A.

BETWEEN

Oz Optics Limited

Plaintiff (Appellant)

and

Timbercon, Inc.

Defendant (Respondent)

Stephen Victor, Q.C. and David Cutler, for the appellant

Jonathan Stainsby, Mark E. Davis and Andrew McIntyre,
    for the respondent

Heard: April 29, 2011

On appeal from the judgment of Justice Julianne A.
    Parfett of the Superior Court of Justice, dated February 10, 2010, with reasons
    reported at 2010 ONSC 310, 73 B.L.R. (4
th
) 120.

COSTS ENDORSEMENT

INTRODUCTION

[1]

The court allowed this appeal in respect of a claim for negligent
    misrepresentation and ordered a new trial limited to damages.  We awarded the
    appellant its costs of the appeal on a partial indemnity scale fixed in the
    amount of $40,000, including disbursements and applicable taxes.

[2]

Since the majority of the trial covered various issues of liability in
    respect of the FiberStar Project, we allowed the appellant its costs of the
    trial.  However, we ordered that the trial costs should be adjusted to account
    for the fact that the appellant, Oz, did not succeed in respect of the issue
    related to the manufacture and sale of manual attenuators.

[3]

If the parties were unable to agree on the costs of the trial, we
    invited the parties to make written submissions.  They could not agree.  We
    have received and reviewed the written submissions and this is our endorsement
    on the costs of the trial.

THE APPELLANTS SUBMISSIONS

[4]

Oz submits that its costs of the trial on a substantial indemnity scale
    are $616,903.08 and, on a partial indemnity scale, are $411,334.94.  Oz applies
    a 10 per cent discount to its costs to take into account its lack of success on
    the issue of the manual attenuators.  It therefore claims $555,212.77 on a
    substantial indemnity scale or $370,201.45 on a partial indemnity scale.

[5]

We note that Timbercons original claim for costs of the trial was
    $774,229, and Timbercon received a costs award of $454,700 on a partial
    indemnity scale for the trial.

[6]

Oz submits that it is entitled to substantial indemnity costs because of
    Timbercons conduct giving rise to the cause of action and its conduct in the
    discovery stage of the litigation.

[7]

In particular, Oz argues that Timbercon acted in a reprehensible manner
    in assuring Oz that it would be the sole supplier of the automatic attenuators
    and then, without the knowledge of Oz, inviting another supplier, DiCon, to bid
    on the project and ultimately rigging the bids in favour of DiCon.  Oz further
    submits that in the discovery stage of the litigation, Timbercon failed to
    disclose key relevant documents, which ultimately exposed its prior
    reprehensible conduct.

THE RESPONDENTS SUBMISSIONS

[8]

The respondent makes the following submissions:

(i)      Although the court has held that Oz is entitled to its
    costs of the trial, the assessment of the costs should be deferred until the
    damages are quantified in a new trial.

(ii)      If the costs are to be assessed, they should be
    assessed on a partial indemnity scale.

(iii)     The quantum claimed by Oz is excessive and should be
    reduced due to a number of factors including the amount of the damages claimed,
    the trial delay attributed to the conduct of Oz and the divided success.

(iv)     Timbercon should be awarded its costs of the trial
    related to the manual attenuators and its success in defending the allegation
    of breach of confidence and misappropriation of intellectual property as well
    as its success in certain motions during the course of the trial.

ANALYSIS

(i)

Should the assessment of the trial costs be deferred until the damages
    are quantified after a new trial?

[9]

Timbercon submits that the assessment of the costs should be deferred
    and makes four points in support of its submission.

[10]

First,
    it submits that the amount claimed compared to the amount recovered is an
    important factor for the court to consider pursuant to rule 57.01(1)(a) of the
Rules
    of Civil Procedure
.  The amount recovered is not yet known.

[11]

Second,
    it submits that the period for which Oz may claim reliance damages for negligent
    misrepresentation is limited to a short timeframe: August 4, 2003 to October 4,
    2003 and therefore damages are likely to be minimal.

[12]

Third,
    if the amount recovered is less than the $50,000 cap provided under the
    simplified procedure rules, the cap could operate to deny Oz its costs.

[13]

Fourth,
    there could be costs consequences under rule 49.

[14]

In
    respect of the first point, we agree that the amount claimed compared to the
    amount recovered is a factor that the court may consider under rule 57.01 and
    that it will not be possible to make the comparison until the damages
    assessment is done.  However, in all the circumstances of this case and in
    particular the conduct of Timbercon, discussed below, we think it is appropriate
    to proceed to make a costs award now.

[15]

We
    are not persuaded by points 2, 3 and 4.  Given the exceptional circumstances of
    this case, and, in particular, the conduct of Timbercon before the commencement
    of the action and in respect of the discovery stage of the litigation, a low
    damages award would not be a significant factor in determining the scale or the
    quantum of costs.  Even if the damages are so low that rules 49 or 76 come into
    play, we would exercise the courts discretion to deny the application of those
    rules.

(ii)

On
    what scale should the costs be assessed?

[16]

This
    is a case for costs on a substantial indemnity scale.  There is a finding by
    the trial judge, not challenged on appeal, that Timbercon rigged both of the
    bids presented to Lockheed Martin in order to ensure that DiCon was the
    successful bidder.  In respect of the failure to produce relevant documents
    from DiCon, including the key e-mail between Timbercon and DiCon inviting DiCon
    to make a bid, Timbercon takes the position that they did not have this
    document and other documents in their possession, and therefore could not
    produce them.  While that may be so, there is no explanation as to why it is
    so.  If there was a credible explanation, we are sure we would have heard it.
    In any event, substantial indemnity costs are warranted when one of the parties
    is guilty of reprehensible conduct either prior to the litigation or during the
    litigation itself: see
Hunt v. TD Securities Inc.
(2003), 66 O.R. (3d)
    481 (C.A.) at para. 123.  In our view, the conduct of Timbercon in rigging the
    bids prior to the commencement of the litigation is sufficient to justify such
    an award.

(iii)

The quantum

[17]

The
    assessment of costs is not an exact science.  The overriding principle is that
    a costs award must be fair and reasonable.  As indicated, costs in this case
    need to be adjusted to take into account Ozs lack of success in respect of the
    manual attenuators.  Also, we agree with counsel for Timbercon that an
    adjustment should be made because of the lack of success in respect of the
    claims for breach of confidentiality and misappropriation of intellectual
    property.  Those issues were not before us on appeal, however, they are
    relevant to the trial costs.

[18]

As
    already noted, Oz submits that the adjustment in respect of the manual
    attenuators should be 10 per cent.  Timbercon submits this adjustment should be
    approximately 25 per cent to 30 per cent.  Timbercon also submits that the
    adjustment in respect of the issue of breach of confidence and misappropriation
    of intellectual property should be 25 per cent to 35 per cent.  We are of the view
    that a fair and reasonable adjustment is 20 per cent for each of those issues,
i.e.
a 40 per cent adjustment overall.  Using a rounded figure of $617,000 for
    Ozs substantial indemnity costs, we would deduct 40 per cent or $247,000,
    which produces a global rounded figure of $370,000. Finally, we do not consider
    it appropriate to make an adjustment or deduction on account of certain motions
    that Timbercon submits it won at trial and in respect of alleged delay created
    by Oz relating to the claim for breach of confidentiality and misappropriation
    of intellectual property.  The adjustment in respect of the latter has already
    been made.

(iv)

Should Timbercon be awarded its costs related to the manual attenuators,
    its success in defending the allegation of breach of confidence and
    misappropriation of intellectual property and its success on certain motions
    during the course of the trial?

[19]

In
    view of our above reasons, it is apparent that we do not agree that costs
    should be awarded in favour of Timbercon.  Timbercon, in effect, is asking for
    a distributive costs order, which this court has said is restricted to the
    rarest of cases: see
Eastern Power Ltd. v. Ontario Electricity Financial
    Corp.
, 2012 ONCA 366 at para. 18.

CONCLUSION

[20]

In
    the result, we fix Ozs trial costs on a substantial indemnity scale in the
    amount of $370,000 inclusive of disbursement and applicable taxes.

Janet Simmons
    J.A.

Robert P. Armstrong J.A.

H.S. LaForme
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Patton-Casse v. Casse, 2012 ONCA 709

DATE: 20121025

DOCKET: C55108-C55110

OConnor A.C.J.O., Armstrong and Juriansz JJ.A.

BETWEEN

Kathleen Patton-Casse

Applicant (Appellant)

and

Mark Casse

Respondent (Respondent in appeal)

Sarah M. Boulby, for the applicant (appellant)

Gary S. Joseph and Kristy A. Maurina, for the respondent

Heard: October 9, 2012

On appeal from the order of Justice McDermot of the
    Superior Court of Justice, dated October 20, 2011.

By the Court:

[1]

This case involves the appeal of an arbitration award settling matters
    of child and spousal support.  The appeal decision was further appealed to this
    court.  This is an unusual case in that the arbitration agreement between the
    parties left the door open for continuing litigation by agreeing that either
    party could appeal the award on a question of law, a question of fact or a
    question of mixed law and fact.  The appeal judge held that there were errors
    of mixed fact and law in the arbitrators reasons.  He proceeded to substitute
    his own conclusions for several of the arbitrators.

[2]

After nine years of marriage and the birth of three children, the
    parties separated and then divorced.  They resolved financial and
    custody/access issues by way of a consent order dated October 15, 2001 issued
    by James J. (the 2001 order).  The 2001 order provided for Casse to pay fixed
    spousal support for four years and child support for five years.

[3]

In 2003, the former wife (Patton) brought a motion for financial
    disclosure before Perkins J.  Her motion was denied.  This order (the 2003
    order) becomes significant in the context of later events.

[4]

In November 2005, Patton brought a motion to vary the terms of the 2001
    order.  She sought retroactive child support and ongoing child and spousal
    support.  She argued that there were two material changes in circumstances:
    her horse training business had failed and her eldest son was diagnosed with
    Aspergers Syndrome, which resulted in increased child care responsibilities.

[5]

The matter proceeded by way of arbitration before the Honourable Dennis
    Lane, Q.C.  The arbitrator heard five days of evidence and then awarded Patton
    retroactive and prospective child support in amounts greater than those
    provided in the 2001 order.  He also awarded retroactive spousal support from
    the date of the commencement of the motion and prospective spousal support
    until December 31, 2014 and subject to further extension if appropriate.

[6]

The arbitration agreement provided that the parties may appeal the award
    of an arbitrator to a Superior Court judge on questions of law, mixed fact and
    law and fact.  Casse appealed.

[7]

McDermott J. (the appeal judge) allowed the appeal in part.  He set
    aside or varied several aspects of the arbitrators award.

[8]

Both parties sought and obtained leave to appeal parts of the appeal
    judges order.  By this endorsement, we dismiss both appeals.

STANDARD OF REVIEW

[9]

The appeal judge correctly identified that the appeal was one of mixed
    fact and law and that the rights of appeal in the arbitration agreement were
    unlimited.  That is, while the
Arbitration Act
, 1991, S.O. 1991, c.
    17, significantly limits the appeals of arbitration awards, it does permit the
    parties to contract out of this limitation by specifically agreeing to more
    wide-ranging appeal rights.  This is what happened here.  In this case, the
    Agreement to Arbitrate dated June 25, 2009 stated that either party may
    appeal the award on a question of law, a question of fact or a question of
    mixed law and fact.

[10]

The appeal
    judge then referred to the standard of review articulated in
Housen v.
    Nikolaisen
, [2002] 2 S.C.R. 235 at para.37 for questions of mixed fact and
    law, where the question is subject to a standard of palpable and overriding
    error unless it is clear that the trial judge made some extricable error in
    principle with respect to the characterization of the standard or its
    application, in which case the error may amount to an error of law.  He also
    adverted to the deference owed to the fact-finder emphasized in
Hickey v.
    Hickey
, [1999] 2 S.C.R. 518 at paras. 10 to 12 inclusive.

[11]

Finality
    is particularly important in family law cases and the benefits of a final
    resolution  imperfect as it may be - to the parties and their children cannot
    be overstated.

[12]

In a case
    such as this, however, in which the parties must be presumed to have made a
    fully informed decision to agree to leave the door open to appeal the
    arbitrators award, the appeal judge was not mistaken in his articulation of
    the applicable standard of review.

[13]

In so far
    as the appeal judge found errors in the arbitrators application of the law to
    the facts, we agree that these errors entitled the appeal judge to intervene.
    Having done so, the appeal judges exercise of discretion is entitled to
    deference and we see no reason to further interfere.

retroactive child support

[14]

The
    arbitrator awarded Patton retroactive child support in the amount of $55,473
    for the period from 2002 to 2007.  The appeal judge set this award aside.  We
    agree with the appeal judge that the arbitrator did not properly apply the
    analysis required by the Supreme Court of Canada in
D.B.S. v. S.R.G.
,
    2006 SCC 37, in making the award.  In particular, the arbitrators reasons make
    it unclear how the four factors set out by the majority in
D.B.S.
affected
    his decision. These are (1) the reason for the recipient parents delay in
    seeking child support; (2) the conduct of the payer parent (blameworthy
    conduct); (3) the past and present circumstances of the child including the
    childs needs at the time the support should have been paid; and (4) whether
    the retroactive award might entail hardship to the payor.

[15]

In the
    appeal judges view, the arbitrator may have attached weight to Casses failure
    to disclose his income in 2003 despite a court order supporting him in this.

[16]

We agree
    with the appeal judge that it would have been incorrect for the arbitrator to
    have in any way considered Casses failure to disclose in reliance on a court
    order as blameworthy.  In his order, Perkins J. directed that:

This court orders that the order of Justice James dated October
    15, 2001 is fixed and invariable for five (5) years and that the income of the
    respondent [Casse] is irrelevant to his obligations No Order for disclosure of
    tax returns during that period.

[17]

We recognize
    that this order may not have been effective by virtue of s. 25(8) of the
Child
    Support Guidelines
.  However, we do not find it necessary to determine
    that issue.  Patton did not appeal the order.  In these circumstances, we agree
    with the appeal judge who said under the circumstances, I cannot find that Mr.
    Casse was guilty of blameworthy conduct in failing to disclose his income when
    the court ordered that he did not have to do so.

[18]

While it
    is not necessary in every case in which a court makes an order for retroactive
    child support pursuant to a
DBS
analysis that some element of
    wrongdoing or blameworthiness be shown on the part of the payor, we see no
    basis to interfere with the appeal judges decision to set aside the
    retroactive child support award in the circumstances of this case.

spousal support

[19]

The
    arbitrator ordered that spousal support should be restored from November 1,
    2005  the date on which the support ordered in 2001 expired, until December
    31, 2014, at which point it could be reviewed, as follows: lump sum for the
    period ending December 31, 2007 fixed at $151,000 representing 12 months at
    $5,000 and 13 months at $7,000 and periodic support payable from January 1,
    2008 forward fixed at $9,000/month.

[20]

The appeal
    judge upheld the arbitrators decision to award spousal support after the
    expiration of the 2001 order.  Casse does not challenge this finding.

[21]

As to the
    amount of retroactive spousal support awarded, the appeal judge concluded that
    the arbitrator had misunderstood the tax implications to the parties of
    awarding a retroactive lump sum spousal support payment.  In particular, the
    arbitrator stated in his reasons that the tax laws had changed with effect from
    January 2008 so that spousal support payments were now tax deductible to the
    payor and taxable in the hands of the payee.  This statement of the law is
    incorrect.  There was no such change in the taxation of spousal support. The
    parties agree.  Accordingly, since neither of the parties asked that the matter
    be returned to the arbitrator, and it was not apparent from the arbitrators
    reasons how his misunderstanding of the applicable tax laws figured into his
    calculation of the amount of support owing, it was open to the appeal judge to
    approach the issue afresh.

[22]

The appeal
    judge reasoned that since the retroactive lump sum payment ordered was not
    deductible for Casse, he would in effect pay more now than he would have had
    the amounts been paid on a periodic basis such that he could benefit from the
    tax deduction.  The difficulty the appeal judge faced, however, is that due to
    Pattons lower marginal tax rate, the value of Casses lost deduction exceeded
    that of Pattons tax saving.  In this way, no adjustment to the lump sum
    retroactive award could place both parties in the position they would have been
    in had the payment been deductible and taxable.

[23]

In these
    circumstances, the appeal judge decided to award an amount of $177,000.  That
    amount was approximately midway between the positions of the parties.  In doing
    so, he considered all of the surrounding circumstances, including Pattons
    needs and Casses ability to pay.  On this appeal, both parties take issue with
    the appeal judges approach.

[24]

In our
    view, it was within the appeal judges discretion to adopt the approach he did.
    We see no basis to interfere.

[25]

As to the
    prospective spousal support, the appeal judge reduced the amounts awarded by
    the arbitrator and reduced the duration of the award such that no spousal
    support would be payable after June 30, 2011.

[26]

In our
    view, it was open to the appeal judge to intervene.  As he pointed out, in
    spite of evidence before him that Casses post-separation income was
    attributable to effectively new employment, the arbitrator failed to consider,
    as he should have, the question of what part of Casses post-2005 period was
    disconnected from Pattons efforts during the marriage.  The appeal judge put
    it this way: His failure to do so is a reviewable error, as post-separation
    increases in income have to at least be analyzed in order to determine whether
    they are related to the marriage:  see the annotation by James G. MacLeod to
Rozen
    v. Rozen
, 2003 Carswell B.C. 1564 (C.A.) where in the author states:

Automatically sharing post-separation increases in income as
    akin to treating a job as if it were a family asset, shareable in specie.
    Rather than doing so as a matter of course, courts should investigate whether
    there is sufficient relationship between the increased income and the payees
    efforts during marriage to justify allowing him or her to share in the
    increase.

[27]

Given this
    conclusion, we are satisfied it was open to the appeal judge to consider anew
    the issue of the amount of prospective spousal support and the duration of that
    support.  We see no error in his reasoning with respect to the conclusions that
    he reached.

the $21,600 overpayment

[28]

The
    arbitrator concluded that while Casse had inadvertently continued to pay
    $1,000/month for daycare for two years longer than required, he was not
    entitled to the reimbursement of $21,600.  This conclusion was based on the
    parties agreement in the Joint Statement of Issues for Trial in which they
    restricted claims with respect to s. 7 expenses to those incurred after May 1,
    2009.

[29]

The appeal
    judge, on the other hand, interpreted the Joint Statement of Issues for Trial
    as permitting Casses claim for overpayment under James J.s order. The appeal
    judge held that Casse was entitled to credit for the overpayment in the amount
    of $21,600 assuming proof of payment.

[30]

We do not
    see any reason to interfere with the appeal judges conclusion on this point
    either.

costs

[31]

Having
    made significant changes to the arbitrators award, the appeal judge reduced
    the arbitrators award of costs of the arbitration from $292,229.45 ($194,056
    in costs and $108,173 for forensic accounting fees) to $179,377.20.

[32]

Guided by
    Rules 18 and 24 of the
Family Law Rules
, O. Reg. 114/99 and
    considering that Casse claimed costs of the appeal in the amount of $25,000 and
    that he had some success on the appeal, he found that Pattons costs of the
    appeal should be set off against her costs of the arbitration of $179,377.20
    for a total of $157,202.20.

[33]

Significantly,
    Rule 49 offers played an important role in the arbitrators award of costs for
    the arbitration.  Those offers were no longer a factor after the appeal judges
    order.

[34]

We are of
    the view that the appeal judge properly exercised his discretion in making the
    costs award for the arbitration.

costs Of the appeal

[35]

The
    parties agreed that if one side or the other was totally successful, the appeal
    costs should be fixed in the amount of $20,000.

[36]

Both appeals are dismissed.  The grounds raised in Pattons
    appeal were far more substantial than those in Casses appeal.  We order the
    costs of the appeals, including the leave to appeal motions, to be fixed in the
    amount of $15,000 in favour of Casse, inclusive of disbursements and HST.

Released:  OCT 25 2012

DOC

D. OConnor A.C.J.O.

Robert P. Armstrong J.A.

R.G. Juriansz J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Payne v. Windsor
    (City), 2012 ONCA 714

DATE: 20121024

DOCKET: C54435 and C54438

Goudge, Gillese and Armstrong JJ.A.

BETWEEN

Hilary Payne and Lawrence Leigh

Applicants

and

The Corporation of the City of Windsor,
Canadian Transit Company
, Edgar Francis, Dave Brister,
    Drew Dilkens, Ron Jones, Caroline Postma, Alan Halberstadt, Fulvio Valentinis,
    Ken Lewenza Jr., Biagio Marra, Jo-Anne Gignac and Percy Hatfield

Respondents (
Appellant
)

AND BETWEEN

Hilary Payne and Lawrence Leigh

Applicants (Appellants)

and

The Corporation of the City of Windsor,
Canadian Transit Company
, Edgar Francis, Dave Brister,
    Drew Dilkens, Ron Jones, Caroline Postma, Alan Halberstadt, Fulvio Valentinis,
    Ken Lewenza Jr., Biagio Marra, Jo-Anne Gignac and Percy Hatfield

Respondents

Ms. Paula Lombardi, for the appellant Canadian Transit
    Company

Raymond Colautti, for the appellants Hilary Payne and
    Lawrence Leigh

Myron Shulgan, for the respondents Caroline Postma and
    Biagio Marra

William Sasso, for the respondents Edgar Francis, Dave
    Brister, Ron Jones, Fulvio Valentinis, Ken Lewenza Jr., Jo-Anne Gignac and
    Percy Hatfiled

Christopher J. Williams, Jody E. Johnson and Courtney Raphael,
    for the respondent The Corporation of the City of Windsor

Heard in writing

On appeal from the judgment of Justice R.C. Gates of the
    Superior Court of Justice, dated September 12, 2012.

COSTS ENDORSEMENT

[1]

We have had the opportunity to review the costs submissions of the
    parties in this matter. In our view, this is neither a case for no costs
    payable to the respondents, nor a case for the respondents to recover their
    costs on a substantial indemnity basis. Nothing in the material before us
    warrants either conclusion.

[2]

Rather, the costs should be fixed in favour of the respondents on a
    partial indemnity basis. Those costs must be fair and reasonable in all
    circumstances.

[3]

We therefore order costs payable by the appellants as follows:

(1)

To the respondent Corporation of the City of Windsor in the amount of
    $30,000 in total.

(2)

To the respondents Postma and Marra in the amount of $17,000 in total.

(3)

To the respondents Francis, Brister, Jones, Valentinis, Lewenza Jr.,
    Gignac and Hatfield in the amount of $17,000 in total.

S.T. Goudge J.A.

E.E. Gillese
    J.A.

Robert P. Armstrong J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Pikangikum
    First Nation v. Nault, 2012 ONCA 705

DATE: 20121024

DOCKET: C53227

Weiler and Sharpe JJ.A. and Mackinnon J. (
ad
    hoc
)

BETWEEN

Pikangikum First Nation

Plaintiff (Appellant/

Respondent by way of cross-appeal)

and

Robert D. Nault

Defendant (Respondent/

Appellant by way of cross-appeal)

and

The Attorney General of
    Canada

Defendant (Respondent/

Appellant by way of cross-appeal)

Joseph Magnet and Travis Moffatt, for the
    appellant/respondent by way of cross-appeal

John Tyhurst and Abigail Martinez, for the
    respondents/appellants by way of cross-appeal

Heard:  September 5-6, 2012

On appeal from the judgment of
    Justice John dePencier Wright of the Superior Court of Justice, dated December
    23, 2010, with reasons reported at 2010 ONSC 5122 (CanLII).

Sharpe
    J.A.:

[1]

This appeal arises out of a dispute between the Pikangikum First Nation
    (PFN) and Robert Nault, the former Minister of the Department Indian Affairs
    and Northern Development (the department). The principal issue is whether
    Nault committed the tort of misfeasance in public office by withholding
    millions of dollars of much-needed infrastructure funding in 2001-2002. PFN
    asserts that Nault knowingly abused his powers as Minister by insisting that
    there would be no funding unless PFN withdrew an application for judicial
    review challenging the departments decision to appoint a third-party manager
    to assume control of PFNs finances.

[2]

Following a 23-day trial, and a careful review of the evidence, the
    trial judge dismissed PFNs claim. His conclusion may be summed up in these few
    words, at paras. 250-251 and 260-261:

[I]t cannot be said that the inaction of Mr. Nault was
    motivated by a vindictive desire to harm the Band
per se
.

It cannot be said that the inaction of Mr. Nault was motivated
    by considerations extraneous to the legitimate issues between the parties.

Mr. Naults request
    for the setting aside of the litigation [was] not unreasonable. Unfortunately,
    the litigation had taken on a life of its own. It had come to symbolize the
    power struggle being engaged in by both parties.

Mr. Naults
    reluctance to embark on these extensive infrastructure projects when the
    necessary co-operative attitude did not exist was not unreasonable. Certainly
    it was not tortious. [Headings omitted.]

[3]

The trial judge went on to assess the damages he would have awarded if
    PFNs claim had succeeded. His assessment included over $48 million to reflect
    the opportunity cost of not converting the reserves power supply from diesel
    to an electrical grid. The trial judge also assessed $30,000 in punitive
    damages.

[4]

On appeal, PFN submits that the trial judge made several errors in his
    analysis of the claim for misfeasance in public office. It also submits that
    the trial judge erred in his approach to punitive damages. Nault and the
    Attorney General of Canada (collectively, Canada) submit that the trial
    judges decision was based on his careful assessment of the facts and therefore
    entitled to deference and that his conclusions are sound in law. Canada
    cross-appeals the trial judges assessment of damages.

FACTS

Pikangikum First Nation

[5]

PFN is a community of about 2000 people located on a remote reserve
    hundreds of kilometres northwest of Thunder Bay. There is no direct road access
    to the reserve and its residents depend on bulk deliveries of supplies to last
    for months at a time. The reserve is powered by unreliable and inadequate
    diesel generators. Housing is scarce and lacks indoor plumbing. The fresh water
    bay of Lake Pikangikum is prone to sewage spills from the surrounding public
    buildings. Unemployment on the reserve is high. Tragically, so is the suicide
    rate.

The Indian and Inuit Affairs Program

[6]

In 2000-2001, Parliament allocated $4.14 billion for the Indian and
    Inuit Affairs Program, the objectives of which were to enhance the capacity of
    First Nations governments to provide services and to build infrastructure on
    reserves at levels comparable to those enjoyed by other Canadians.

[7]

The plans for PFN as part of this initiative called for a phased series
    of capital projects, including:

·

connecting
    Pikangikum to the electrical distribution grid from Red Lake;

·

constructing
    a new water treatment plant and sewage lagoon;

·

adding
    onto the existing school building; and

·

extending
    water and sewage service to public buildings and, eventually, to every home on
    the reserve.

Robert Naults appointment

[8]

Naults appointment as Minister in 1999 was cheered by members of PFN.
    The reserve was located in Naults riding and, as a backbencher, he visited PFN
    regularly and lobbied forcefully on its behalf. As Minister, he pledged to
    establish a unit within the department dedicated to the interests of PFN and to
    personally supervise progress on the school project to ensure that it did not
    get bogged down in bureaucracy.

PFN project setbacks

[9]

By the beginning of 2000, the electrical grid project was about 35%
    completed. The new water treatment plant and sewage lagoon were up and running
    and pipes and manhole covers had been delivered in anticipation of the next
    phase of construction.

[10]

Unfortunately,
    over the course of several months, PFN suffered four catastrophic  and
    avoidable  setbacks.

[11]

First, in February 2000, the Band advised the contractor for
    the electrical grid that it had run out of money. The trial judge found as a
    fact that the distribution grid was very important to the department:
    electrical power is far less expensive than diesel, and the conversion was
    expected to save the government some $3.6 million in annual energy costs. Even
    more important to PFN, the grid was expected to provide the safe and reliable
    power needed to connect all buildings on the reserve to the new water and
    sewage systems. The department also envisaged that connecting Pikangikum to the
    power grid would be a crucial first step in connecting other remote northern
    reserves.

[12]

Second,
    in March 2000, the oil tank at the school overflowed, apparently as a result of
    human error by the schools janitorial staff. The school was forced to close
    and did not reopen until the following January following a costly clean-up.

[13]

Third,
    in June 2000, a power failure at the new water treatment plant caused a sewage
    backup that contaminated Pikangikums drinking water. Again, this appeared to
    have been caused by human error.

[14]

Finally,
    in October 2000, the basement of the new water treatment plant flooded. Fuel
    oil spilled into the reservoir and PFNs water supply was deemed unsafe. A
    state of emergency was declared.

The departments intervention policy

[15]

As
    a recipient of federal funds, PFN is subject to a Comprehensive Funding
    Agreement or Arrangement (CFA). At the relevant time, default under the CFA
    was triggered by:

·

Failure
    to meet its terms and conditions;

·

A
    denial of or adverse opinion from auditors;

·

A
    cumulative deficit of 8% or more of total revenues; or

·

Compromise
    to the health, safety or welfare of community members.

[16]

In
    the event of a default, the departments intervention policy is implemented.
    The policy provides for three increasingly direct levels of intervention:

1.

Remedial
    management plan  the Band develops a plan, approved by the Crown, to address
    the default. This level is appropriate when the Band is willing to deal with
    the issues and has the capacity to do so.

2.

Co-management
     the Band and the Crown jointly agree on the appointment of an individual,
    partnership, corporation or Band council to assist the Band in meeting its
    obligations under the CFA. This level is appropriate when the Band is willing
    but lacks the capacity to deal with the issues that caused the default.

3.

Third-party
    management  the Crown appoints a third-party manager over the Bands affairs.
    This level is necessary where the Band is assessed as being at high risk and/or
    is unwilling to address the default or the difficulties that gave rise to the
    default.

November 2000: notice of intention to impose third-party
    management

[17]

Beginning
    in 1996, PFN had been under co-management to bring its debt under control. By
    2000 PFN had stabilized its finances and the co-manager had been discharged. As
    the trial judge observed, at para. 21, PFNs progress between 1996 and 2000 was
    [a]n admirable display of what can be achieved with co-operation,
    determination and expert assistance.

[18]

However,
    on November 17, 2000, officials in the department decided that the dire
    circumstances outlined above warranted immediate intervention, and they wrote
    to Chief Peter Quill to advise that a third-party manager would be appointed
    for PFN. In its letter, the department stated that it was imposing third-party
    management because of concerns over PFNs ability to manage the existing
    community infrastructure facilities as well as the major capital projects
    planned for the future.

[19]

The
    trial judge described the letter announcing this decision, at para. 58, as
    extraordinary both politically and procedurally. Politically, it was
    extraordinary because it was sent ten days before a federal election without
    the input or approval of Nault, who was known to oppose third-party management
    on principle. The trial judge observed, at para. 47, that the staff responsible
    for the letter were either amazingly disloyal to their Minister or were
    shockingly oblivious to political realities.

[20]

Procedurally,
    the letter was extraordinary because, as the trial judge stated at para. 61,
    it seemed to announce a
fait accompli.
 This was contrary to departmental
    policy requiring that the notice of intention to intervene be followed by a
    meeting between the parties.

[21]

Immediately
    upon receipt of the letter, Quill asked for a written explanation for why
    third-party management was being imposed without prior notice or consultation
    with the Band and requested a meeting. In a telephone call a few days later,
    Nault assured Quill that he had no intention of imposing third-party
    management.

PFNs application for judicial review

[22]

Nault
    met with Quill and other PFN leaders in December 2000 shortly after his
    re-election, and used the opportunity to affirm his preference for
    co-management rather than third-party management. At the end of the meeting,
    PFNs lawyer served Nault personally with notice of an application for judicial
    review of the departments November 17 decision to impose third-party
    management, a decision Nault had already disavowed.

[23]

The trial judge described Naults response to being served with
    the application for judicial review, at para. 71:

This upset Mr. Nault. He considered that he had been
    championing the cause of the Band against his own department and now he had
    been betrayed by those whom he had attempted to help. This litigation was the
    first time in Ontario that the department's application of the intervention
    policy had been challenged in court and it was being defended vigorously. He
    was very concerned that the $40 million committed to the various community
    projects would be lost to the Band. He made it clear that if litigation was
    going to be an option then the Band should not expect anything other than an
    equally litigious response.

Negotiations for co-management

[24]

Despite
    the litigation, there was some progress towards a cooperative solution. Nault
    took the prospect of third-party management off the table, and Quill agreed
    that co-management would be acceptable. However, at a general meeting of the
    Band in February 2001, Quill and his deputy were both ousted for their
    inappropriate action of agreeing to co-management, and new leadership was
    elected with the mandate of taking a harder line with the Minister.

[25]

Not
    surprisingly, the situation rapidly deteriorated. The existing CFA was set to
    expire shortly and a new one would have to be signed to ensure the continued
    flow of federal funding. The department was not prepared to sign a CFA without
    a co-manager to guarantee the proper use of government money, but the Band
    refused to agree to co-management.

[26]

On
    May 1, 2001, a department official wrote to PFN to reiterate the offer of
    co-management, pointing out that without a CFA the Minister had no authority to
    provide funding and that the Minister would not sign a CFA without a co-manager
    in place. The letter further stated:
Should this
    offer not be acceptable to the council the department is prepared to
    immediately commence the delivery of programs and services directly.

[27]

PFN
    responded by launching a second application for judicial review challenging the
    decision implicit in the May 1 letter to impose third-party management if a co-management
    agreement was not reached. On May 10, 2001, the department wrote again to the
    Band to inform them that a third-party manager would be appointed and would
    remain in place until the First Nation and the department are able to reach
    agreement on the terms regarding the appointment of a co-manager.

[28]

On
    May 17, 2001, PFN notified the department that the third-party manager would
    not be granted access to the reserve and that it could not guarantee his safety
    if he was to appear. The next day, the department signed an agreement with an
    outside firm to act as third-party manager for PFN. By this time the dispute
    had drawn national media attention. The PFN called the third-party manager an
    Indian Agent, evoking the history of colonialism. The Chief of the Assembly
    of First Nations, Matthew Coon Come, warned that Pikangikum could become
    another Oka.

[29]

In
    July 2001, Nault met with Band leaders and proposed mediation. One of the
    conditions laid down on the recommendation of the Department of Justice was that
    PFN put the applications for judicial review in abeyance. PFN did not respond
    to the formal offer to mediate.

[30]

Nault
    continued to propose co-management rather than third-party management. He set
    out certain conditions in a letter to PFN dated September 10, 2001:

We are prepared to discuss a co-management agreement upon the
    following conditions:

1) an audit for
    the 2000-2001 fiscal year is submitted prior to initiating discussion,

2) all legal
    actions in reference to funding arrangements are suspended,

3) A joint press
    release is drafted on co-management
.

[31]

PFN
    was not prepared to accept conditions two and three and, at trial, submitted
    that those conditions particularly the condition requiring the suspension of
    the applications for judicial review  were illegal and abusive.

Funding approval stalled

[32]

Just
    as matters were coming to a head on third-party versus co-management, bids for
    the water and sewage project were received. The project manager recommended
    that the low bid be accepted immediately so that work could begin before
    winter. Around the same time, the department was informed that PFNs diesel
    generators needed immediate overhaul to avoid the risk of brown-outs.

[33]

The
    money needed to get both these initiatives underway was within the range that
    could be approved without ministerial approval. However, as the trial judge
    found, at paras. 147-148, officials believed that Nault had assumed
    decision-making authority over matters relating to PFN and so no funds were
    released.

[34]

There
    was evidence from John Donnelly, the departments Ontario Regional Director
    General, that Patti Skillen, one of Naults most trusted advisers, told him
    that Nault would not approve any projects for PFN until the applications for
    judicial review had been withdrawn. Skillen had testified at the trial in
    December 2009.  She was asked whether she agreed with Donnellys conclusion in
    an email that Nault wanted no new projects for PFN until the court action was
    complete.  She described this as overreaching.  Her purported statement to
    Donnelly was not put to her cross-examination and she died later in December.
    Nault testified that he had not made such a directive. At para. 150, the trial
    judge rejected PFNs submission that Skillen should be accepted as an agent
    whose testimony binds the Minister but he accepted the fact that she said
    this is a fact which, taken with other facts, may lead to an inference. He
    also accepted that in the eyes of the bureaucracy, her word was the word of
    the Minister.

[35]

On
    September 28, 2001, the Senior Project Manager for PFNs Capital Management
    Group wrote to Nault to impress upon him the urgency of signing a contract with
    the successful bidder for the water and sewer project. He explained that the
    project was important to the health of the community and that the tender would
    be invalid if it was not signed immediately, pushing the project back well
    into 2002 if there is a will to ever continue. Nault claims not to have seen
    this letter. The trial judge found, at para. 164, that despite his denial,
    Nault had seen and initialled the letter.

[36]

On
    October 3, 2001, Donnelly met with the Deputy Minister and recommended that he
    approach Nault to seek approval of the water and sewer and generator projects.
    The Deputy Minister later told Donnelly that he had discussed the matter with
    Nault. No decision was taken at that time.

[37]

On
    October 12, 2001, PFNs new Chief, Louis Quill, wrote to Donnelly affirming PFNs
    absolute opposition to third-party management and its refusal to suspend or
    withdraw its case in Federal Court, but indicating that PFN would be prepared
    to receive funding through an intermediary (i.e. a co-manager) pending the
    outcome of the judicial review applications.

[38]

The
    Senior Project Manager for PFNs Capital Management Group sent a second letter
    to Nault on November 16, 2001, reiterating the importance of the water and
    sewer project and warning of the public health consequences if it did not
    proceed.

[39]

Nault
    eventually approved funding for the generator project in late February 2002.
    Funding for the water and sewer project remained stalled.

March-April 2002: third-party management renewed

[40]

The
    third-party management contract expired on March 31, 2002. In mid-March 2002,
    Quill requested a meeting with Nault to discuss co-management. Nault responded
    by letter advising that the preliminary audit for the 2000-2001 fiscal year
    received a denial of opinion due to deficiencies in internal control over the
    accounting records. If confirmed, the denial of opinion would trigger
    intervention under the policy. Nault stated that the departments regional
    officials would be pleased to meet with the Band to discuss its management
    options, and requested financial statements for the first quarter of 2001-2002
    so the parties could consider those options using the most up-to-date
    information. An e-mail from Skillen to department officials prior to the
    meeting with PFN clarified that no one had authority to made deals with PFN
    without Naults direction.

[41]

The
    meeting took place on April 5, 2002 and at that meeting, PFN was informed that
    the department had signed a third-party management contract to run from April
    1, 2002 to March 31, 2003.

November 2002: the Federal Court allows the application for
    judicial review

[42]

PFNs
    application for judicial review was heard in June 2002 and in November 2002,
    OKeefe J. allowed the application:
Pikangikum First Nation v. Canada
    (Minister of Indian & Northern Affairs)
, 2002 FCT 1246, (2002), 224
    F.T.R. 215.
[1]

[43]

The
    application judge held that it was patently unreasonable for the department not
    to follow the intervention policy, which, in his view, mandated that PFN be
    given notice of the difficulty or default before intervening.

[44]

The
    application judge held that the generality of the November 17, 2000 letter
    referencing problems at the water treatment plant and the school was
    insufficient to meet the duty of procedural fairness. He also held that Naults
    announcement that he supported co-management, not third-party management, at
    the December 2000 meeting did not provide sufficient notice of the difficulties
    or defaults that would warrant intervention. Ultimately, the application judge
    declared the Ministers decision to require co-management to be invalid because
    of the breach of the duty of procedural fairness.

[45]

However,
    the application judge refused PFNs request for a declaration that:

·

PFN
    was not in default of its obligations under the CFA;

·

There
    were no legal or equitable grounds to withhold funding;

·

The
    actions of the department were contrary to its own policies; and

·

PFN
    was entitled to enter into a CFA (i.e. without any departmental intervention),
    as in previous years.

[46]

The
    application judge explained, at para. 106: I am not prepared to grant this
    relief as much more information would have to be before the Court to make a
    decision with respect to the requested relief. In addition, the funding for the
    period in question is more likely already disbursed. He also refused PFNs
    request for an interlocutory injunction requiring the department to provide
    current year funding pending the outcome of the litigation, as the current
    year funding has likely been provided by other means (i.e. third-party
    management).

PFNs action for misfeasance of public office commenced

[47]

Shortly
    after the Federal Court decision was released, PFN commenced this action. PFN
    claimed that Nault acted unlawfully and misused his power by: imposing
    third-party management; attempting to deny PFN access to the courts; insisting
    on favourable media statements; and cancelling or delaying vital health and
    safety projects to advance illegal or wrongful objectives.

[48]

The
    trial began in Kenora in December 2009 and concluded in June 2010. The trial
    judges decision was released at the end of 2010, ten years to the month that
    the dispute arose.

The current state of affairs

[49]

At
    paras. 177-180, the trial judge summed up the state of PFNs infrastructure as
    of the date of the trial:

To this day the power grid has not
    been completed. Power that could have been supplied at a cost of several
    hundreds of thousands of dollars continues to be supplied to this Band at a
    cost of millions of dollars. This does not take into consideration the
    continued cost of providing electricity by generator to the other Bands who
    would also have been served by the power grid.

To this day the effluent from the
    water treatment plant is still being directed to the lake.

To this day sewage facilities
    continue to be largely dependent upon holding tanks and pump trucks.

To this day potable water must be
    largely hauled to the consumer from the water treatment plant.

THE TRIAL JUDGES REASONS

[50]

The
    trial judge found that PFN had failed to establish the elements of the tort of
    misfeasance of public office. His conclusions may be summarized as follows:

·

PFN
    failed to demonstrate that Nault was under any legal obligation to approve the
    tenders for the water and sewer projects. PFN admitted that the projects were
    not mandatory, an admission supported by the fact that the projects remain
    stalled to this day (paras. 194-196).

·

The
    imposition of third-party management after May 10, 2001, was not wrongful. That
    action was not impugned in the Federal Court decision and that court was not
    prepared to declare that intervention was not necessary. Some level of
    intervention by a co-manager or a third-party manager was reasonable under the
    intervention policy in the circumstances (paras. 209, 245-246).

·

The
    Bands rejection of both forms of managerial intervention was unrealistic.
    Under the circumstances the department did not feel it could simply turn over
    large sums of money to the Band without supervision. In the absence of an
    agreement between the parties, there was no legal mechanism whereby the
    department could funnel financing to the Band except through an intermediary
    (para. 248).

·

It
    cannot be said that Naults inactions were motivated by a vindictive desire to
    harm the Band
per se
, nor can it be said that his inactions were
    motivated by considerations extraneous to the legitimate issues between the
    parties. While one may feel that his reaction was not proportionate to the
    situation, the negotiating environment must be remembered (paras. 250-254).

·

Nault
    did not cancel any project. At most, he deferred them pending complete
    resolution of the existing dispute. This was unfortunate for PFN but
    understandable (para. 257).

·

Naults
    request for the setting aside of the litigation was not unreasonable. The
    litigation had taken on a life of its own and had come to symbolize the power
    struggle between the parties. His reluctance to embark on the infrastructure
    projects when the necessary cooperative attitude did not exist was not
    unreasonable. Certainly it was not tortious (paras. 260-261).

·

Naults
    condition that the parties issue a joint press release was not improper. There
    was no mention of a
favourable
press release. It was simply to be one
    explaining co-management. This was reasonable given the very public nature of
    the dispute (paras. 140-141 and 268; emphasis in original).

·

Contrary
    to PFNs claim, Nault did not bargain by offering a lower level of
    intervention in exchange for an end to the Federal Court litigation and for
    positive media coverage. Rightly or wrongly and against the advice of his
    department, Nault was content to try out co-management and only resiled from
    that position when he was forced to do so by the changed position of the Band
    (paras. 269-270).

[51]

The
    parties agreed on the quantum of special damages related to the involvement of
    the third-party manager. The trial judge assessed additional special damages in
    the amount of $272,000 for water pipes that were purchased but never used, and
    $545,351 for interest on a loan the Band took out when federal funds were
    withheld. He assessed $48 million in lost savings from the failure to convert
    the power supply from diesel to an electrical grid and $594,300 in damages for the
    loss of benefit of the water and sewer and school projects. Finally, the trial
    judge assessed punitive damages of $30,000.

ISSUES

[52]

PFN
    raises four issues on appeal:

1.

Did
    the trial judge make a palpable and overriding error by making no findings as
    to the claim of misfeasance arising from the events of March-April 2002?

2.

Did
    the trial judge err by holding that Naults stalling of the infrastructure
    projects was a failure to act, and one not done for an improper purpose?

3.

Did
    the trial judge judge err by holding that Skillens direction that no projects
    could proceed until PFN dropped its litigation was not a vicarious admission of
    Nault?

4.

Did
    the trial judge err in his assessment of damages?

ANALYSIS

[53]

As
    I see it, the first three issues raised by PFN all relate to its overarching
    submission that the trial judge erred in dismissing its claim for misfeasance
    in public office. Accordingly I will discuss the elements of the tort generally
    before turning to these specific grounds of appeal.

The tort of misfeasance in public office

[54]

In
Odhavji
Estate v. Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 263,
    at para. 23, Iacobucci J., writing for a unanimous Supreme Court explained that
    the tort of misfeasance in public office has two elements:

(1)

The defendant must
    have engaged in deliberate and unlawful conduct in his or her capacity as a
    public officer; and

(2)

The defendant must
    have known that the conduct was unlawful and that it was likely to harm the
    plaintiff.

[55]

At
    para. 24, Iacobucci J. set out the distinction between acts and omissions for
    purposes of the tort: [A] failure to act can amount to misfeasance in a public
    office, but only in those circumstances in which the public officer is under a
    legal obligation to act.

[56]

He
    went on to explain, at para. 25, that in the context of this particular tort,
    misconduct means: (i) an intentional illegal act (or, where there is a duty
    to act, an intentional omission); and (ii) an intent to harm an individual or
    class of individuals.

[57]

He
    summed up the legal principle this way, at para. 28:

The
    requirement that the defendant must have been aware that his or her conduct was
    unlawful reflects the well-established principle that misfeasance in a public
    office requires an element of bad faith or dishonesty.  In a
    democracy, public officers must retain the authority to make decisions that,
    where appropriate, are adverse to the interests of certain citizens.
Knowledge of harm is thus an insufficient basis on
    which to conclude that the defendant has acted in bad faith or
    dishonestly.  A public officer may in good faith make a decision that she
    or he knows to be adverse to interests of certain members of the public.
    In order for the conduct to fall within the scope of the tort, the officer must
    deliberately engage in conduct that he or she knows to be inconsistent with the
    obligations of the office.

[58]

In
    the case at bar, the trial judges central factual finding was that it was
    reasonable for Nault to insist that PFN suspend its litigation as a
    precondition to co-management and the release of millions of dollars in federal
    infrastructure funds.

[59]

Simply
    put, the trial judge found that on account of PFNs managerial and audit
    problems, some legal mechanism was required to monitor public money given to
    PFN. Under the governing legislation and departmental policies, that legal
    mechanism would inevitably involve an intermediary, either a co-manager or a
    third-party manager. Nault consistently favoured co-management and resisted the
    stronger level of intervention reflected by third-party management. Nault
    believed that the litigation stood in the way of reaching a mutually acceptable
    resolution of the management issue and the trial judge found that Naults
    belief was properly motivated and reasonable in the circumstances.

1. Did the trial judge make a palpable and overriding
    error by making no findings as to the claim of misfeasance arising from the
    events of March-April 2002?

The positions of the parties

[60]

On
    appeal, PFN spent considerable time arguing that the trial judge failed to deal
    with its claim of misfeasance arising from the events of March-April 2002, and
    that this failure represents a palpable and overriding error attracting the
    intervention of this court.

[61]

For
    its part, Canada argues that the events of March-April 2002 were not pleaded as
    constituting a separate and distinct tort. Citing
Lax Kwalaams Indian Bank
    v. Canada (Attorney General)
, 2001 SCC 56, [2011] 3 S.C.R. 535, it argues
    that a trial judge does not err when he or she fails to make findings on
    matters not pleaded. Canada also argues that, in any event, the trial judges
    findings are sufficient to embrace the events of March-April 2002 and are a
    complete answer to PFNs argument that in March-April 2002, Nault committed the
    tort of misfeasance in public office.

Discussion

(a)  The
    events of March-April 2002

[62]

I
    agree with Canadas submission that PFN did not plead that the events of
    March-April 2002 constituted a separate and distinct tort. The allegations
    contained in the amended statement of claim do not focus on those dates or events
    but plead a more general claim that, if anything, appears to be more focused in
    the earlier intervention. Canada sought particulars of the misfeasance claim
    and in response PFN specified actions taken in May 2001.

[63]

In
    my view, a fair reading of this record indicates that PFN put forward a general
    claim based primarily on the events of 2000-2001. To the extent that the events
    of March-April 2002 were litigated, they were of a piece with PFNs broader
    claim of misfeasance. Indeed, the decision to renew the third-party management
    contract in the spring of 2002 was simply an extension of the initial
    imposition of third-party management in May 2001.

[64]

I
    therefore reject the submission that the trial judge erred by failing to deal
    separately or distinctly with the events of March-April 2002. In my view, his
    findings may properly be read as dealing with the entire history of the dispute
    concerning the appropriate level of government intervention in PFNs financial
    affairs, including the events of March-April 2002.

(b) The
    trial judges findings on misfeasance in public office

[65]

As
    the trial judge observed, at para. 236, when determining whether PFN has made
    out a case of misfeasance in public office, it is important to keep in mind the
    factual context and background to the dispute between these parties.

[66]

Nault
    came to his role with no animus towards PFN. The reserve was in his riding and
    he had championed PFNs cause and worked hard to help it deal with the problems
    it faced. As Minister, Nault consistently opposed third-party management. After
    the department announced its decision to impose third-party management in
    November 2000 without his instruction or approval, he tried to work out a
    solution for a less drastic form of intervention.

[67]

As
    I have explained, the idea that PFN should suspend its litigation while the
    parties attempted mediation first emerged on the advice of the Department of
    Justice. While Nault continued to insist upon that as a condition of coming to
    some accommodation with PFN, there was ample evidence to support the trial
    judges finding that there were other compelling reasons to justify federal
    intervention in PFNs financial affairs.

[68]

By
    the period March-April 2002, the focus of PFNs attack on this appeal, the
    litigation was but one item on a very long list of problems that justified some
    form of federal intervention in PFNs affairs. In my view, there was a solid
    basis in the evidence for the trial judge to conclude, at para. 209, that
    intervention by co-manager or third-party manager was reasonable under the
    intervention policy in the circumstances. Those circumstances included:

·

PFNs
    most ambitious and important capital project, the extension of the electric
    power grid, had stalled and there were reasonable grounds to believe that that
    had occurred because of PFNs actions.

·

Extension
    of the grid was needed to complete projects vital to the health and safety of
    the community, namely the upgrade of water and sewer services and the
    completion and operation of the new water treatment plant.

·

The
    fuel spill at the school and the contamination of the water supply appeared to
    have been caused by carelessness or mismanagement of PFN employees.

·

PFN
    experienced political turmoil and instability that interfered with arriving at
    a cooperative solution.

·

PFN
    was refusing to cooperate with the third-party manager or allow him access to
    the community, severely impeding progress on projects vital to the communitys
    health and safety.

·

PFNs
    2000-2001 audit contained a denial of opinion, which was itself grounds for
    intervention under the policy.

[69]

Naults
    reaction to PFNs application for judicial review and its refusal to put the
    court proceedings in abeyance in order to work out a cooperative solution must
    be considered against that background. As the trial judge put it, at para. 239,
    the litigation created uncertainty as it called into question the legitimacy
    of the departments efforts to appoint a manager who would provide services to
    the Band.

[70]

PFN
    did have legal grounds to seek judicial review of the decision to impose
    third-party management, and it succeeded in making out its case that it had
    been denied procedural fairness. But, as the trial judge correctly observed at
    para. 210, a breach of natural justice, without more, does not give rise to a
    claim in damages. It is also important to note that, as I explained earlier,
    PFN failed to secure the substantive declaratory relief it had requested to the
    effect that it was not in default and that there were no grounds to withhold
    the funding or to impose some form of intervention.

(c) Failure
    to proceed with projects vital to health and safety

[71]

In
    oral argument, PFN placed considerable emphasis on the delay in getting Naults
    approval for funds to repair the Bands generator, as well as on his failure to
    approve funds for the water and sewer project. PFN submits that since these
    projects were vital to the health and safety of the community, departmental
    policies required that they proceed. It follows, PFN argues, that Nault was
    under a legal duty to approve these projects, and that his failure to do so
    constituted misfeasance.

[72]

There
    is no doubt that there was a significant delay in getting Nault to approve the
    funds required for the generator repair, though as I noted above, that approval
    was eventually given in early 2002  before the applications for judicial
    review were concluded. But again, one must evaluate Naults actions in light of
    the situation he faced at the time. PFN was refusing to cooperate with the
    third-party manager and stated in advance of his appointment that he would be
    refused entry to the reserve. After the managers appointment, the Chief stated
    that he would not be welcome on the reserve and that his safety could not be
    guaranteed
. As Minister, Nault had to balance his duty to
    ensure that the needs of the community were met with his duty to see to the
    sound administration of public funds, as well as to protect the safety of his
    employees.

[73]

I
    certainly do not suggest that PFN was totally to blame for the disagreement and
    the sorry state of affairs that flowed from the failure of these parties to
    agree on an appropriate mechanism to bring these much needed projects to
    completion. Nor do I suggest that Nault and his officials are free from
    criticism for all the decisions and actions they took. And one can only be
    distressed by the parties failure to put their differences aside so that they
    could focus on the pressing needs of the vulnerable residents of Pikangikum.

[74]

However,
    an action for misfeasance in public office does not invite minute scrutiny of
    every discretionary decision taken by a public official. A claim for
    misfeasance in public office will only be made out where a public official has
    deliberately abused his powers to harm another party. In my view, the trial
    judges conclusion that the claim was not made out was amply supported by the
    evidence and his findings rest on a solid legal foundation.

[75]

Rightly
    or wrongly, Nault regarded the applications for judicial review as a stumbling
    block to achieving co-management. It is not as if Nault was insisting that PFN
    suspend an unrelated lawsuit in exchange for co-management; he was insisting
    that it suspend a lawsuit that directly impugned the departments legal
    authority to insist on co-management in the first place.

[76]

PFN
    submits that Naults actions fell within principle established in
Roncarelli
    v. Duplessis
, [1959] S.C.R. 121, where a public official abused his office
    by using a statutory power for an improper and extraneous purpose. I disagree.
    In that case, Premier Duplessis tried to punish Roncarelli by denying him a
    liquor permit because of Roncarellis religious beliefs and the actions he took
    to support his co-religionists. In the present case, Naults actions regarding
    PFNs litigation were not motivated by an extraneous or improper purpose but
    were linked to his statutory duty as a Minister of the Crown responsible for
    the dispersal of large amounts of public funds.

[77]

The
    tort of misfeasance in public office is difficult to establish. The plaintiff
    must prove more than mere negligence, mismanagement or poor judgment. To
    succeed, the plaintiff must demonstrate that the defendant knowingly acted
    illegally and in bad faith chose a course of action specifically to injure the
    plaintiff.

[78]

In
    this case the trial judge concluded, following a lengthy trial featuring
viva
    voce
evidence from all the key players, including Nault, that PFN failed
    to satisfy this burden. In his view, Naults conduct was understandable  even
    reasonable  in its motivations, though it was regrettable in its consequences.
    The trial judges factual findings are supported by the record and I see no
    basis for this court to interfere with them.

2. Did the trial judge err by holding that Naults
    stalling of the infrastructure projects was a failure to act, and one not
    done for an improper purpose?

The
    positions of the parties

[79]

PFN
    submits that the trial judge mischaracterized Naults conduct as omissions
    rather than positive and deliberate acts intended to harm PFN. In particular,
    it submits that Nault took control of the departments regular approval process
    and ordered a halt to projects that would otherwise have gone forward. In the
    alternative, PFN submits that if the trial judge correctly characterized
    Naults conduct as omissions, his failure to approve the infrastructure
    projects was a breach of his legal duties in light of the governments Indian
    and Inuit Affairs Program, the goals of which were to improve living conditions
    on reserves and to promote self-sufficiency in Aboriginal governance.

[80]

Canada
    submits that the trial judges factual findings on this issue were supported by
    the evidence and disclose no palpable and overriding error.

Discussion

[81]

I
    am inclined to agree with the trial judge that Naults decisions to withhold
    funding for the infrastructure projects should be regarded as omissions rather
    than acts.

[82]

As
    I explained above, the federal budget for 2000-2001 allocated billions of
    dollars for infrastructure spending on reserves. The departments stated policy
    envisaged that First Nations would self-administer those funds to build
    capacity and foster a sense of ownership and responsibility. But the
    distribution of funds to First Nations was not intended to be unqualified. It
    was subject to the CFA requirement and to the application of the intervention
    policy. As the trial judge found, at para. 195, the evidence indicated that
    Nault was under no legal obligation to approve funding for these projects.
    Certainly he was not obliged to approve funding unconditionally and without
    regard to the requirements of the CFA process.

[83]

But
    in the end, it is my view that nothing really turns on the act-omission
    distinction in this case. Even if the trial judge erred in characterizing
    Naults refusal to approve the projects as omissions, in order to meet the test
    for misfeasance in public office PFN still must establish that Nault acted for
    an illegal or improper purpose. As I have explained, it is my view that the
    trial judges findings that Nault was not so motivated are unassailable on this
    appeal.

Issue 3: Did the trial judge err by holding that Skillens
    evidence of a direction that no projects could proceed unless PFN dropped its
    litigation was not a vicarious admission of Nault?

[84]

The
    trial judge ruled, at para. 150:

Mr. Donnelly says that on several occasions Ms. Skillen told
    him that the Minister had said that no projects would proceed until the
    litigation pending before the Federal Court Trial Division had been withdrawn.
    This is not direct evidence the Minister actually said this.  I do not
    accept that Ms. Skillen, as close as she was to the Minister, and
    notwithstanding that the bureaucracy accepted that her word was the word of the
    Minister, should be accepted as an agent whose testimony binds the
    Minister. However, again, the fact that she said this is a fact which, taken
    with other facts, may lead to an inference.

[85]

PFN
    submits that the trial judge erred by failing to treat  Skillens evidence as a
    vicarious admission. I do not agree.

[86]

Skillen
    was a member of Naults political staff. She was not a public servant. She provided
    what Nault described as an administrative interface between the Minister, the
    bureaucracy and the First Nations. Skillen simply did not occupy a position of
    authority or agency sufficient to make her statements or actions binding on the
    Minister and the Crown. The trial judge quite properly considered her evidence
    as to what Nault had said as a fact from which inferences could be drawn and he
    did not err by rejecting the proposition that it constituted a binding
    admission.

Issue 4: Did the trial judge err in his approach to
    quantifying intangible benefits and awarding punitive damages?

[87]

As
    I would dismiss the appeal on liability, it is unnecessary for me to deal with
    the appeal or the cross-appeal as to damages.

CONCLUSION

[88]

For
    these reasons, I would dismiss the appeal and the cross-appeal. Canada is
    entitled to its costs of the appeal on a partial indemnity basis in the amount
    claimed, namely $41,913.78 for fees and $974.54 for disbursements.

Released: October 24, 2012 KMW

Robert
    Sharpe J.A.

I
    agree K.M. Weiler J.A.

I
    agree J. Mackinnon J. (ad hoc)

[1]
The application for judicial review of the November 17, 2000 decision was
    apparently dismissed for delay. The application for judicial review of the May
    1, 2001 decision encompassed the earlier impugned decision.


COURT OF APPEAL FOR ONTARIO

CITATION:

Pipitone v. Pipitone, 2012
    ONCA 712

DATE: 20121030

DOCKET: M41444 (C42670)

Doherty, MacPherson and Cronk JJ.A.

BETWEEN

Antonino Pipitone

Applicant (Respondent in Appeal)

and

Antonietta Pipitone

Respondent (Appellant in Appeal)

Heard:  September 5, 2012

COSTS ENDORSEMENT

[1]

We order costs to the respondent fixed in the amount of $1,000,
    inclusive of disbursements and all applicable taxes.

Doherty J.A.

J.C. MacPherson J.A.

E.A. Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Riad
v. Aziz, 2012
    ONCA 675

DATE: 20121005

DOCKET: C55733

Laskin, Blair and Epstein JJ.A.

BETWEEN

Nagy
Riad

Appellant

and

Marlien
Aziz

Respondent

Nagy
Riad
, acting in person

David A. Weisman, for the respondent

Heard: October 3, 2012

On appeal from the order of Justice David
Salmers
of the Superior Court of Justice, dated February
    7, 2012.

APPEAL BOOK ENDORSEMENT

[1]

We have not been persuaded that there is any
    basis to interfere with the order of
Salmers
J. dated
    February 7, 2012.  In reaching this
    conclusion, we have not found it necessary to rely on any of the respondents
    material.

[2]

Accordingly, the appeal is dismissed with costs
    fixed in the amount of $2,500, inclusive of disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Berhe, 2012
    ONCA 716

DATE: 20121026

DOCKET: C54719 M41393

Rosenberg, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yohannes Berhe

Appellant

Heather Pringle, for the appellant

Greg Skerkowski, for the respondent

Heard: August 14 and 17, 2012

On appeal from the endorsement of Justice Michael Code of
    the Superior Court of Justice dated November 18, 2011, with reasons reported at
    2011 ONSC 6815 (CanLII).

R.A.
    Blair J.A.:

Overview

[1]

This appeal involves the test for admissibility of non-expert
    recognition evidence deriving from the examination of a photograph or
    videotape, and the application of that test.

[2]

Mr. Behre was convicted on several counts alleging indecent exposure of
    his genital parts in public and to a person under the age of 16 for a sexual
    purpose. He was also convicted on two counts of breach of probation. The key
    evidence supporting his conviction was the non-expert, opinion evidence of a
    Toronto Transit Commission officer who testified that he was able to identify
    Mr. Behre from a video taken at the time of the alleged offences because he was
    familiar with Mr. Behre from previous dealings with him.

[3]

Young J., at first instance, did not conduct a
voir dire
to
    determine the admissibility of this evidence, and during the sentencing hearing
    it became apparent that the TTC officers previous dealings with Mr. Behre
    consisted of one brief encounter two years prior when the officer had served
    Mr. Behre with a summons. It should be noted that defence counsel neither
    objected to the admissibility of the officers testimony nor requested a
voir
    dire
to test it. On appeal the Summary Conviction Appeal Judge, Code J.,
    concluded that a
voir dire
should have been conducted, but held that the
    recognition evidence would inevitably have been admitted on application of the
    proper criteria for the admissibility of such evidence. He applied the curative
    proviso found in s. 686(1)(b)(iii) of the
Criminal Code
and dismissed
    the appeal.

[4]

Although I am not persuaded that Code J. applied the wrong test for
    admissibility, I would allow the appeal and order a new trial because I am not
    convinced that, if a
voir dire
had been conducted, the evidence would
    have been inevitably admitted. It may or may not have been.

Facts

[5]

Except for the identity of Mr. Behre as the culprit, there is little
    dispute about the facts surrounding the incident.

[6]

A mother, father, and two young daughters, aged 9 and 3, were travelling
    at the Bathurst Street subway station in Toronto. A man rode immediately behind
    them up the escalator to the station. The mother became uneasy because the man
    seemed to be trying to get close to their 9-year-old daughter. While the family
    waited for a streetcar at the transfer point, he continued to stand close,
    apparently reading a newspaper held in front of him. A streetcar came by with
    enough room for one person but not for a family with two young children (the
    youngest was still in a stroller). The man did not take it.

[7]

Suspicious, the mother kept an eye on the man. She thought he was
    touching himself because of the way the newspaper was moving. This suspicion
    was confirmed when a gust of wind blew the newspaper upward, revealing the
    mans erect penis exposed through his zipper.

[8]

The mother ran to the father, who was standing a short distance away,
    and told him what happened. The father chased the man and caught him, but was
    unable to detain him and the man escaped.

[9]

A TTC surveillance video camera recorded the man and the family as they left
    the top of the escalator. Still photographs of a man matching the parents
    description and standing close to them on the escalator were created. The
    parents identified the person in the still photos as the perpetrator and the
    photos were circulated across the TTC security network.

[10]

The
    father was shown a photo line-up array that included Mr. Behres photograph,
    but was unable to identify him in the array. The mother was not shown a photo
    line-up. Both parents identified Mr. Behre as he sat handcuffed in the
    prisoners dock at trial.

[11]

A
    TTC officer with some experience in indecent act cases  Officer Welk  did
    identify Mr. Behre from the circulated photograph, however. Officer Welk
    testified that when he was shown the three still photographs taken from the
    surveillance video, he immediately recognized Mr. Behre with whom he had had
    previous dealings and investigations. He removed a photograph of Mr. Behre
    from his desk, explaining to the other officer that the desk photo was from a
    prior Toronto Police Field Investigation Report in 2007 and stating that he was
    able to recognize him from the document that he had secured from the file. Officer
    Welk also testified that he had previously met Mr. Behre in person.

[12]

No
voir dire
was conducted with respect to this identification evidence, as
    noted above, and the Crown did not lead any evidence before the trial judge as
    to the timing or particulars of that encounter. This may well have been because
    Crown counsel did not want to run the risk of eliciting evidence that would
    prejudice Mr. Behre by bringing out details of his previous encounters with TTC
    officers (including Officer Welk) in relation to similar offences. It became
    apparent after the conviction and during the sentencing proceedings, however,
    that Officer Welks face-to-face contact with Mr. Behre consisted of only one
    incident when he served Mr. Behre with a summons two years prior to the
    incident in question.

Analysis

The Test

[13]

It
    has long been accepted that non-expert, lay opinion to the effect that the
    witness recognizes the image of a person seen in a photograph or on videotape,
    based on a prior connection with that person, may be admissible in certain
    circumstances. This appeal is about the contours of the test for admissibility of
    that type of evidence.

[14]

In
R. v. Brown
, 215 C.C.C. (3d) 330 (C.A.), at para. 39, Rosenberg J.A.
    stated succinctly that this type of non-expert opinion evidence is admissible
    provided that the witness has a prior acquaintance with the accused and is thus
    in a better position than the trier of fact to identify the perpetrator. Rosenberg
    J.A. relied on the decision of the Supreme Court of Canada in
R. v. Leaney
,
    [1989] 2 S.C.R. 393, at p. 413, for that proposition, which I would
    characterize as the prior acquaintance/better position test. I would
    re-affirm that test.

[15]

Leaney
was an appeal from the Alberta Court of Appeal, which had upheld convictions in
    robbery-related offences based, in part, on the evidence of five police
    officers as to the identity of the two thieves depicted in a videotape of the
    break-in. The majority of the Supreme Court,
per
McLachin J., held that
    the evidence of four of the officers should not have been admitted because they
    had
no acquaintance
with the accused and were in
no better position
than the trial judge to say whether the persons shown in the video were the
    accused (at p. 413) (emphasis added). The identification evidence of the fifth
    officer was admissible, however, because he had known Leaney since childhood
    and had spent time with him shortly before the incidents. This evidence was
    found to be admissible even though a
voir dire
had not been held, as it
    should have been, because McLachlin J. was satisfied that the evidence was
    clearly admissible in any event (at p. 413). This was the solution adopted by
    the Summary Conviction Appeal Judge in the case at bar.

[16]

In
    the Alberta Court of Appeal, Harradence J.A. had dissented in
R. v. Leaney
, 1987 ABCA 206, 81 A.R. 247
. He
    advocated a more stringent test for recognition evidence of this sort, one calling
    for the witness to have sufficient, prior familiarity with the accuseds unique
    features to enable the witness to describe the accuseds idiosyncrasies as
    portrayed on the videotape. Harradence J.A. described the test in this fashion,
    at para. 39:

Notwithstanding this general principle of exclusion, there may
    be occasions when [non-expert] opinion evidence will be relevant and
    admissible. Where a witness is so familiar with the accused that he can
    identify idiosyncrasies of physical appearance or movement, not apparent to the
    trier of fact in the courtroom, that witness should be able to give his
    opinion. Two criteria must be satisfied. First the witness must be sufficiently
    familiar with the accused so as to be aware of the unique features which form
    the basis of the opinion. Second, the witness must be able to state with
    particularity what the idiosyncrasies are and show where and how they are
    revealed on the videotape. In this way the witness is contributing knowledge
    not otherwise available to the trier of fact. Consideration of these issues
    should take place within the context of a voir dire so the accused can
    challenge the evidence before it is admitted.

[17]

In
    a careful and thorough argument as
amicus curiae
, Ms. Pringle, urges us
    to adopt the Harradence criteria. She submits that they are (a) more consistent
    with the underlying first principles of opinion and identification evidence,
    (b) consistent with long-standing appellate jurisprudence requiring the ability
    to articulate the bases of opinion about identity, and (c) not rejected by
    either this Court in
Brown
or the Supreme Court of Canada in
Leaney
.

[18]

I
    would not accede to this request.

[19]

First,
    although the Harradence criteria were not expressly rejected in
Leaney
or
Brown
, more importantly, they were not adopted either. As far as I am
    aware, no appellate court, including the Alberta Court of Appeal, has adopted or
    followed the Harradence dissent (requiring sufficient prior familiarity with
    the accuseds unique features to enable the witness to identify the accuseds idiosyncrasies
    as portrayed in the videotape) in the 25 years since
Leaney
was decided
    in that Court.

[20]

Secondly,
    I am satisfied that the test as set out by the Supreme Court in
Leaney
and articulated by this Court in
Brown,
has the advantage of flexibility
    while at the same time providing sufficient criteria  familiarity with the
    person identified and being in a better position than the court to make the
    identification  to enable the court to perform its gate-keeping function for
    purposes of determining threshold admissibility. At the
voir dire
, the
    judge may or may not conclude that the potential witness is sufficiently
    familiar with the person whose identity is in question to be in a better
    position than the trier of fact to assist in making the identification. What
    weight is to be given to the evidence ultimately is a different consideration.

[21]

I
    do not see this as being inconsistent with the underlying principles of opinion
    and identification evidence, namely that opinion evidence is generally
    inadmissible because it is a fundamental principle of our system of justice
    that it is up to the trier of fact to draw inferences from the evidence and to
    form his or her opinions on the issues in the case:
R. v. K.(A.)
(1999), 45 O.R. (3d) 641 (C.A.), at para. 71. Nor do I see it as inconsistent
    with the view that there must be some basis for the opinion before it can be
    given any weight: see
R. v. Cuming
, 158 C.C.C. (3d) 433 (C.A.), at
    para. 21. Both of these benchmarks are well established. The prior acquaintance
    branch of the
Leaney/Brown
test enables the trial judge, on a
voir
    dire
, to sort out whether the potential witness is sufficiently familiar
    with the person sought to be identified to have some basis for the opinion
    or, an articulated basis, as some have said
[1]
 and the better position branch ensures that the evidence will only be
    admitted if it is helpful to the trier of fact because the potential witness
    has some advantage that can shed light on the evidence in question.

[22]

In
    my view, however, it is going beyond what is necessary for threshold
    admissibility to add another layer to the test requiring the recognition
    evidence witness to show that he or she can point to some unique identifiable
    feature or idiosyncrasy of the person to be identified. Such concerns are
    better resolved in determining the ultimate reliability of the evidence. There
    are many ordinary people who do not have any particular identifiable features
    or idiosyncrasies differentiating them from the normal crowd; people familiar with
    them may well be able to identify their photograph, however. In that respect, I
    think the following comment by Holmes J. in
R. v. Panghali
, 2010 BCSC
    1710, [2010] B.C.J. No. 2729, at para. 42, is apt:

Common experience teaches that people have vastly different
    abilities to identify and articulate the particular features of the people in
    their lives that they know, recognize, and distinguish on a regular basis. Where
    a witness has but little acquaintanceship with the accused, his or her
    recognition evidence may be of little value unless the witness can explain its
    basis in some considerable detail. But at the other end of the spectrum, the
    bare conclusory recognition evidence of a person long and closely familiar with
    the accused may have substantial value, even where the witness does not
    articulate the particular features or idiosyncrasies that underlie the
    recognition.

[23]

Arguably,
    then, the testimony of Officer Welk may have met the appropriate test for the
    admissibility of this type of recognition evidence  what I have referred to as
    the prior acquaintance/better position test.

Use of the Proviso

[24]

That
    said, I am not satisfied, as was the Summary Conviction Appeal Judge, that, had
    a
voir dire
been held, the recognition evidence of Officer Welk would have
    been inevitably admitted. While I agree, respectfully, that the trial judge
    erred in failing to hold a
voir dire
, I would not apply the s.
    686(1)(b)(iii) proviso to dismiss the appeal in the circumstances.

[25]

It
    is true that Officer Welk had the added advantage over the trial judge of
    having had prior contact with Mr. Behre when he was clean-shaven and not
    wearing eyeglasses  features of the perpetrator described by the parents. At
    the time of trial, Mr. Behre was bearded and wearing glasses.

[26]

If
    the trial judge had conducted a
voir dire
, however, he would have
    discovered that Officer Welk had met Mr. Behre in the course of his previous
    dealings and investigations concerning him only once  when he had served
    Mr. Behre with a summons about two years before this incident. The details of
    that one meeting could be important in helping the judge determine whether
    Officer Welk was sufficiently familiar with Mr. Behre to have some basis for
    his opinion that the person in the still photo was Mr. Behre, and whether Mr.
    Behre was better placed than the trial judge to make the identification.

[27]

Finally
     even though there was no objection to the admissibility of Officer Welks
    testimony at trial  the fact that no
voir dire
was held placed
    limitations on the extent to which Officer Welks identification evidence could
    be tested. As noted above, the Crown did not lead any evidence before the trial
    judge as to the timing or particulars of Officer Welks encounter with Mr.
    Behre, probably for the good reason that Crown counsel did not want to run the
    risk of a mistrial. Similarly, defence counsel would not be anxious to probe
    too deeply into Officer Welks meeting with Mr. Behre, or, indeed, his
    previous dealings and investigations because the evidence elicited might be
    prejudicial to Mr. Behres case. On a
voir dire
these matters could be
    probed without those concerns and Mr. Behre would at least have the sense that
    he had a fair chance to test the waters.

Disposition

[28]

I
    would therefore allow the appeal and direct that a new trial be held.

Released:
October 26, 2012 MR

R.A.
    Blair J.A.

I
    agree M. Rosenberg J.A.

I
    agree Tulloch J.A.

[1]
See e.g.
R. v. Brown
, 1999 CarswellOnt 4699 (Gen. Div.), per
    Trafford J.