COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Wong, 2012
    ONCA 330

DATE: 20120517

DOCKET: C52735

Laskin, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Wong

Appellant

Anthony Wong, acting in person

Paul Bernstein, as duty counsel

J. Sandy Tse, for the respondent

Heard and released orally: May 14, 2012

On appeal from the conviction entered on March 9, 2010
    and the sentence imposed on August 26, 2010 by Justice Douglas K. Gray of the Superior
    Court of Justice, sitting with a jury.

ENDORSEMENT

[1]

The appellant, with the assistance of duty counsel, argues three grounds
    of appeal.

[2]

First, the appellant submits that the trial judge erred in instructing
    the jury that Wongs evidence about what Morgan said to him could not be relied
    on by Wong to show an innocent association.  Even if we were to agree with this
    submission  and we do not need to finally resolve this point  the error was
    of no consequence.  Wong himself testified and denied that he knew anything
    about the gun or the robbery until after he had been arrested.  His sister too,
    testified that Morgan had called her and told her that the gun was his and not
    Wongs.  The jury obviously rejected both Wongs evidence and his sisters
    evidence, and found that neither raised a reasonable doubt.  In the light of
    the jurys rejection of this evidence, what Wong claimed Morgan told him could
    not have assisted Wongs defence.

[3]

Second, the appellant submits that on the s. 95 charge, the trial judge
    erred by failing to instruct the jury that to convict they had to be satisfied
    beyond a reasonable doubt Wong knew the gun was loaded.  The Crown concedes
    that the trial judges instructions on s. 95 omitted the knowledge element of
    the offence.  However, the Crown contends that the omission, on the facts of
    this case, caused no substantial wrong.  We agree.

[4]

This was intended to be a violent, armed robbery.  The parties agreed
    that the gun was a loaded, prohibited firearm.  In the circumstances, once the
    jury convicted the appellant of possession of the firearm, inevitably they must
    have been satisfied Wong knew that the firearm was loaded.

[5]

Third, the appellant submits that the trial judge erred by failing to
    stay the s. 94 conviction on the
Kienapple
principle.  In support of
    this submission, he relies on the decision of this court in
R. v. Chang
,
    [2009] O.J. No. 2938.  In view of the qualification in para. 5 of
Chang
,
    we do not think it applies here.

[6]

Moreover, in this case, the trial judge carefully analyzed whether
Kienapple
applied and concluded that it did not.  We have not been persuaded of any basis
    to set aside the trial judges conclusion.

[7]

Accordingly, the appeal is dismissed.

John Laskin J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Rabbani v. Niagara
    (Regional Municipality), 2012 ONCA 280

DATE: 20120501

DOCKET: C54376

Blair, Lang and Hoy JJ.A.

BETWEEN

Alexandra Rabbani and Waheed Rabbani

Claimants (Appellants)

and

The Regional Municipality of Niagara

Respondent (Respondent)

Sean L. Gosnell, for the appellants

Paul M. DeMelo, for the respondent

Heard and released orally: April 24, 2012

On appeal from the order of Justice T. Maddalena of the Superior Court of Justice, dated August 29, 2011.

ENDORSEMENT

[1]

The appellants farm property bordering on the Q.E.W. in the Grimsby
    area was expropriated for a service road extension in 2005.  After protracted
    negotiations, the parties resolved appropriate compensation for the property
    and related matters at $1.3 million.  The minutes of settlement between the
    parties provided for assessment of the amount payable to the appellants as
    reimbursement for their reasonable legal, appraisal and other costs actually
    incurred by the owner for the purposes of determining the compensation payable
    pursuant to section 32 of the
Expropriations Act
, R.S.O. 1990, c. E26.

[2]

Assessment Officer Thomas conducted an assessment of the expropriation
    costs over an 11-day period.  In a 1200-page decision in which he reviewed and
    incorporated a great deal of the evidence and jurisprudence, he allowed the
    costs in the amount of $367,514 and issued a Certificate of Assessment in that
    amount.  It should be noted that this involved a considerable reduction from
    the amount initially claimed by the Rabbanis.  The assessment officer then
    issued a Second Certificate fixing the costs of the assessment proceeding in
    the amount of $190,000, again representing a significant reduction in the
    amount claimed.

[3]

The order provided that interest on the Second Certificate would be paid
    from March 3, 2009, the day of the OMB order giving effect to the settlement,
    rather than from April 5, 2011, the day of the second certificate.  The
    Rabbanis concede that interest should only have been awarded from the latter
    date.

[4]

The Region appealed both Certificates to the Superior Court of Justice.
    Maddalena J. further reduced the amounts of both Certificates by approximately
    17% for the first Certificate and 5% for the Second.  She did so, on the basis
    that in her view, the amounts as assessed were not reasonable, the criterion
    set out in s. 32 of the
Expropriations Act
.

[5]

In our view, the Superior Court Justice erred in the manner in which she
    approached the appeal proceeding before her.  In effect she conducted a
    rehearing and substituted her own view of what was reasonable for that of the
    assessment officer.  This she was not entitled to do.

[6]

The standard of review on an appeal from an assessment officers
    decision is well established.  The order below is discretionary.  The hearing
    is an appeal, not an opportunity for the reviewing court to rehear the
    assessment and come to its own conclusion as to what is reasonable, absent an
    error in law, misapprehension of the evidence, palpable and overriding error on
    a factual matter, or an assessment amount that is so unreasonable as to
    constitute an error in principle.  The assessment officers decision was
    entitled to considerable deference absent such error.  See
Samuel Eng &
    Associates v. Ho
(2009), ONCA 150 (CanLII).

[7]

There is nothing in the reasons of the Superior Court Justice here to
    indicate that she applied her mind to the appropriate standard of review or
    undertook any analysis of the assessment officers reasons to determine whether
    he committed any of the errors mentioned above.  That in itself is enough for
    the appeal to be allowed.  Accordingly, we do not need to resolve the debate
    about whether the Superior Court Justice made factual errors in coming to her
    conclusion.

[8]

The Region does not argue that the assessment officer made any error in
    principle and we can find none on the record.  Nor can we say, given the
    assessment officers lengthy analysis of the evidence and appropriate
    jurisprudence, that the amounts he allowed for either Certificate were
    unreasonable.

[9]

The appeal is therefore allowed, the order of the Superior Court Justice
    set aside, and the amounts ordered by the assessment officer reinstated, except
    for the issue of interest payable on the Second Certificate amount.  That Certificate
    is amended to provide that interest shall be payable from April 5, 2011.

[10]

Mr.
    Gosnell seeks costs on a substantial indemnity basis.  Mr. DeMelo acknowledges
    that if he had been successful, he would have sought costs on the same scale,
    although he might have expected the court to award them on a partial indemnity
    basis.  In our view, the appellants are entitled to reasonable costs on a
    substantial indemnity basis in order to give effect to the objectives in the
Expropriations
    Act
.

[11]

Accordingly,
    we fix costs of the proceeding below at $15,000 all inclusive and the costs of
    this appeal at $15,000, all inclusive, payable by the respondent to the
    appellants.

R.A.
    Blair J.A.

S.E.
    Lang J.A.

Alexandra
    Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Raghavan v. Bell
    Canada, 2012 ONCA 370

DATE: 20120531

DOCKET: C54869

Goudge, Simmons and Rouleau JJ.A.

BETWEEN

Vasundara Raghavan and Gopalachari Raghavan

Plaintiffs (Appellants)

and

Bell Canada, BCE Inc., BCE Corporate services
    Inc. and Morneau Sobeco

Defendants (Respondents)

Gopalachari Raghavan, appearing in person and on behalf
    of Vasundara Raghavan

Mark Hines, for the respondents Bell Canada, BCE Inc.,
    and the improperly named and now wound up BCE Corporate services Inc.

Jennifer Heath, for the respondent Morneau Sobeco
    (improperly named herein)

Heard: May 29, 2012

On appeal from the judgment of Justice Fletcher Dawson of
    the Superior Court of Justice, dated December 16, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The appellants fundamental position is that they are entitled, as a
    matter of law, to a pension option not contained in the respondent Bell Canada
    pension plan. We agree with the motion judge that the respondents were under no
    statutory or common law obligation to offer such an option, particularly in
    light of s. 22(5) of the
Pension Benefits Standards Act
. Neither a trial
    nor any pleading amendment can alter this legal reality. We would therefore
    dismiss the appeal.

[2]

Costs to each respondent of $3000 inclusive of disbursements and
    applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION:
Roque v. Pilot
    Insurance Company, 2012 ONCA 311

DATE: 20120514

DOCKET: C52997

Juriansz, LaForme and Epstein JJ.A.

BETWEEN

Fernando Roque

Plaintiff (Appellant)

and

Pilot Insurance Company

Defendant (Respondent)

William G. Scott, for the appellant

Stephen Brogden, for the respondent

Heard: April 16, 2012

On appeal from the judgment of Justice Joseph R.
    Henderson of the Superior Court of Justice, dated October 28, 2010.

Juriansz
    J.A.:

[1]

This appeal requires the court to decide when the limitation period begins
    to run for commencing an action against an insureds own insurer under the
    inadequately insured motorist endorsement of an automobile insurance policy.

[2]

On December 5, 1996, the appellant was injured by a motorist. He
    commenced an action against the motorist, claiming $1,000,000 in general damages
    and $750,000 in special damages. The appellant is insured by the respondent.
    His insurance policy includes OPCF 44, the Family Protection Endorsement. OPCF
    44 provides an insured person with coverage against harm caused by an
    inadequately insured motorist. Section 17 of OPCF 44 reads as follows:

Every action or proceeding against the
insurer for recovery under this change form shall be commenced within 12 months
    of the date that the eligible claimant or his or her representative knew or
    ought to have known that the quantum of claims with respect to an insured
    person exceeded the minimum limits for motor vehicle liability insurance in the
jurisdiction in which the accident occurred, but this requirement is not a bar
    to an action which is commenced within 2 years of the date of the accident.

[3]

The appellant submits that s. 17 of OPCF 44 should be interpreted to
    mean that the limitation period begins to run when the
plaintiffs
    damages have been quantified by settlement or judgment. Only then can it be
    said that
the plaintiff knows for certain that the available insurance
    under the defendants policy is less than that available under his own
    coverage.

[4]

This interpretation was adopted by Gordon J. in
Hampton v. Traders
    General Insurance Company
(1996), 27 O.R. (3d) 285 (Gen. Div.). Gordon J.
    explains why it is difficult to apply the limitation period from the date the
    plaintiff knew or ought to have known that the quantum of the claim exceeded
    the minimum limits in the jurisdiction, at p. 288:

The application, in my view, would be difficult indeed. The
    progression of a personal injury action produces not unusually a series of
    crests and troughs on quantum and liability as evidence becomes known and
    medical reports unfold. It may be quite elusive, vague and blurred as to what
    point on this sine curve a reasonably competent civil litigator objectively or
    subjectively fixes as probably that where minimum limits are attracted. Nor can
    the complications introduced by subsequent highs and lows be disregarded.

[5]

On this reasoning, Gordon J. found, at p. 288, that [t]he
    discoverability application in all but catastrophic cases of clear liability
    must, in my view, be the date of the judicial determination of award as against
    the primary tortfeasor.

[6]

While applying discoverability in this way has some advantages, it is
    inconsistent with the text of the provision. If the limitation period begins
    when the plaintiff knows the quantum of the claim with certainty, the phrase or
    ought to have known in the provision is left without meaning.

[7]

In his factum, the appellant advances a different argument. That
    argument is the limitation period does not begin to run until the plaintiff
    knows that the quantum of the claim is greater than the tortfeasors insurance
    coverage. This interpretation would avoid creating a multiplicity of
    proceedings, as it would reduce the need for injured parties to sue their own
    insurers.

[8]

I do not accept either of the plaintiffs submissions. The words of the
    provision are clear. The motion judge was correct to find that that proper
    approach was expressed by Master Dash in
McCook v. Subramaniam
(2008),
    172 A.C.W.S. (3d) 344 (S.C.)

at

para. 5
:

The plaintiffs case runs from when he has a body of evidence
    accumulated that would give him a reasonable chance of persuading a judge
    that his claims would exceed $200,000.

[9]

In this case, the appellant does not take issue with the motion judges
    finding that more than two years had passed since he knew or ought to have
    known that the quantum of his claims exceeded $200,000, the minimum coverage
    allowed in Ontario. The motion judge noted that the appellant had medical
    reports, a DAC assessment report and an economic loss report going back to June
    1998. Unfortunately, the plaintiffs solicitors did not learn until April or
    May of 2002 that the defendant had only $200,000 of coverage. The appellant
    commenced an action against the respondent on March 28, 2002.

[10]

The
    inevitable conclusion is that the plaintiffs action against the respondent was
    not brought in time and was properly dismissed.

[11]

In
    my view, the appellant overstates the concern that applying the limitation
    period in s. 17 of OPCF 44 according to its ordinary grammatical meaning will
    lead to a multiplicity of proceedings. Section 258.4 of the
Insurance Act
,
    R.S.O. 1990, c. I.8 obligates an insurer who receives a notice under s.
    258.3(1)(b) to promptly inform the plaintiff whether there is a motor vehicle
    liability policy issued by the insurer to the defendant and, if so, the
    liability limits under the policy, as well as whether the insurer will respond
    under the policy to the claim. Section 258.4 is intended to avoid the situation
    that arose in this case, where the defendants insurer did not comply with s.
    258.4. Where a defendants insurer fails to comply with its obligations under s.
    258.4, it would be prudent for plaintiffs counsel to commence an action
    against their own insurer and discontinue it later if necessary.

[12]

I
    would therefore dismiss the appeal with costs to the respondent fixed in the
    amount of $7500 all inclusive, as agreed by counsel.

R.G. Juriansz J.A.

I agree H.S. LaForme
    J.A.

I agree G.J. Epstein
    J.A.

Released: May 14, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:

Rousseau v. Scotia
    Bank, 2012 ONCA 279

DATE: 20120501

DOCKET: C54264

Feldman, Simmons and Cronk JJ.A.

BETWEEN

Richard Rousseau

Plaintiff/Appellant

and

Scotia Bank

Defendant/Respondent

Andrew L. Rudder, for the appellant

Douglas
    O. Smith and David H. Elman, for the respondent, Bank of Nova Scotia (wrongly
    named Scotia Bank)

Heard and released orally: April 12, 2012

On appeal from the judgment of Justice James A. Ramsay of
    the Superior Court of Justice, dated August 2, 2011.

ENDORSEMENT

[1]

We see no basis for appellate interference with the summary judgment
    granted by the motion judge.

[2]

The motion judge found as a fact that it was not credible that the
    appellant would have purchased disability insurance even if he had been offered
    such insurance by the respondent.  This critical finding was open to the motion
    judge on the record before him.

[3]

In particular, the evidence before the motion judge established that the
    appellant declined to apply for health crisis protection insurance coverage
    when the opportunity to do so was offered to him by the respondent.  In
    addition: (1) the appellant acknowledged that he did not have disability
    insurance at any point prior to obtaining the loan in question from the
    respondent; (2) there was no evidence that the appellant intended to obtain
    disability insurance; (3) the appellant did not recall asking the respondents
    representative about any insurance; and (4) importantly, the respondent did not
    offer mortgage disability insurance to its customers at the relevant time.

[4]

In these circumstances, there was a firm evidentiary foundation for the
    motion judges conclusion that the appellant would not have purchased
    disability insurance through the respondent even if it had been available to
    him.  This finding is fatal to the appellants claim.  Accordingly, it is
    unnecessary to address the appellants remaining grounds of attack on the
    motion judges ruling.

[5]

We add that we recognize that the appellant claims that he believed he
    had disability insurance with Canada Life as a result of his dealings with the
    respondent.  Even if the appellant genuinely held this belief, this record is
    devoid of any evidence of a reasonable basis for this belief.  The fact that
    the appellant inquired, after the date of his 2005 injury in a motor vehicle
    accident, as to the nature of his insurance coverage through the respondent
    does not support his assertion that he believed that he had purchased
    disability insurance from the respondent.  On the contrary, the appellants
    evidence concerning this call suggests he did not know what coverage he had
    purchased at the time of obtaining the mortgage loan.

[6]

In all the circumstances, the appeal is dismissed.  The respondent is
    entitled to its costs of the appeal, in the amount of $5,000, inclusive of
    disbursements and HST.

K. Feldman
    J.A.

Janet
    Simmons J.A.

E.A. Cronk
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Royal
    Bank of Canada v. 1227942 Ontario Limited, 2012 ONCA 332

DATE:  20120518

DOCKET: C54896

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

BETWEEN

Royal Bank of Canada

Respondent

and

1227942 Ontario Limited, 1227944 Ontario Limited,
    Victor Vetro also known as Vittorrio Joseph Vetro and
Linda
    Montanari

Moving Parties (Appellants)

Alan S. Price, for the moving parties (appellants)

Milton A. Davis, for the respondent

Heard and released orally:  May 14, 2012

On appeal from the order of Justice Baltman of the Superior
    Court of Justice, dated November 10, 2010.

ENDORSEMENT

[1]

The appellant, Montanari, appeals para. 3 of the order of Baltman J.
    (the motion judge) dated November 25, 2010, which reads as follows:

THIS COURT ORDERS that the fees and disbursements of the
    Equitable Receiver and the Receiver and its counsel, as set out in the Reports
    and the Fee Affidavits, are hereby approved and that Linda Montanari and Victor
    Vetro shall pay to the Equitable Receiver the sum of $89,019.25 in consequence
    thereof and the sum of $2,500.00 for the costs of this motion.

[2]

The basis for the appeal relates to the April 18, 2007 order of Justice
    Quigley.  That order provided that if Montanari paid RBC the amount of the
    outstanding judgment together with interest by April 27, 2007, any further
    equitable receivership costs would be to the account of Victor Vetro.

[3]

Montanari satisfied the judgment on April 27.  The order under appeal
    included costs incurred after April 27.

[4]

It appears that Justice Quigleys order was not brought to the motion
    judges attention.  The respondent, RBC, agrees that para. 3 of the motion
    judges order is in error and that it should be set aside and returned to the
    motion judge to be dealt with in accordance with Justice Quigleys order.

[5]

Accordingly, leave to appeal is granted and the appeal is allowed.
    Paragraph 3 of the November 25, 2010 order is set aside.  The matter of the
    fees and disbursements addressed in para. 3 should be referred back to the
    motion judge for reassessment.

[6]

During oral argument, counsel informed the court that the equitable receiver
    will be completing the sale of 2425 Dalton Drive in the near future.  We direct
    that the proceeds of the sale not be dispersed for the payment of the equitable
    receivers and its counsels fees and disbursements until all issues of
    entitlement are determined by the motion judge.

[7]

Costs to the appellant fixed in the amount of $10,000, inclusive of
    disbursements and applicable taxes.

D. OConnor A.C.J.O.

K. Feldman J.A.

E. Ducharme J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Runnalls
    (Re), 2012 ONCA 295

DATE: 20120508

DOCKET: C54159

Weiler, Watt and Epstein JJ.A.

IN THE MATTER OF:  Nelson Runnalls

Nelson Shaun Runnalls, acting in person

Michael Davies, as
amicus curiae

Grace Choi, for the Minister of Attorney General

Janice E. Blackburn, for North Bay Regional Health
    Centre

Heard: May 2, 2012

On appeal against the disposition of the Ontario Review
    Board dated, July 25, 2011.

ENDORSEMENT

[1]

The appellant appeals from a decision of the Ontario Review Board, dated
    June 30, 2011. The Boards disposition maintained the appellants detention,
    with the Person in Charge empowered to grant privileges including that the
    appellant he lived in supervised accommodation within the community.

[2]

The following grounds of appeal are raised: 1) misapprehension of the
    evidence; 2) whether the Board erred in not specifically considering a
    conditional discharge when it rejected an absolute discharge, and; 3) whether
    the Board erred in not ordering an independent psychiatric assessment.

[3]

The background facts are contained in the decision of this court at 2011
    ONCA 364 and need not be repeated here.

1.       Misapprehension
    of the Evidence

[4]

In its 2011 Disposition, the Board found that:

Mr. Runnalls continues to pose a significant threat to the
    safety of the public and that if left to his own devices, he would likely
    disengage from appropriate mental health supports, discontinue taking his
    medication and, as he said, resume consumption of alcohol and perhaps even
    other intoxicants, thereby precipitating rapid deterioration in his mental
    state that would put himself and others at acute risk of harm.

[5]

Amicus
submits that this finding is based in part on a
    misapprehension of the evidence, namely, that the appellant said he
would
resume consumption of alcohol and perhaps even other intoxicants.
Amicus
submits that the record discloses that what the appellant actually said was
    that, if granted an absolute discharge, he would have the
right
to
    consume alcohol. The submission is that this misapprehension of the evidence
    entitles him to a new hearing.

[6]

We agree that the Board misstated the appellants literal words. However,
    his words are accurately quoted earlier in the Boards reasons. Read as a
    whole, therefore, the reasons support the legitimacy of the Boards concern
    that the appellant, if left unsupervised, would resume consumption of alcohol
    and abuse of other substances. If there were a misapprehension on the part of
    the Board, it did not affect its conclusion.

2.       Whether the Board Failed to Specifically Consider
    a Conditional Discharge and whether the Disposition of Detention was
    Unreasonable

[7]

Amicus
submits that, although the appellant did not
    specifically seek a conditional discharge as an alternative to an absolute discharge,
    the Board erred because it failed to specifically consider a conditional
    discharge. In support of this position our attention was directed, in
    particular, to two authorities of this court.

[8]

In 2008, in respect of this same appellant, this court held that, having
    regard to the appellants evidence that he would comply with any order of the
    Board, the Board had a duty to expressly inquire into and consider the
    availability of a conditional discharge as part of its duty to impose the least
    onerous and least restrictive disposition:
R. v. Runnalls
,

[2008]
    O.J. No. 463.

[9]

In
R. v. Breitwieser
,

2009 ONCA 784, this court also
    held that, where there was an air of reality to a conditional discharge being
    an appropriate disposition, it was an error for the Review Board to fail to
    consider whether the person detained would have consented to a condition
    requiring him to continue his medication regime and whether or not there was an
    appropriate route to accomplish an involuntary return to hospital in the event
    of decompensation.

[10]

Amicus
submits that there was an air of reality to the possibility of a conditional
    discharge and that, based on these authorities, the Board erred.

[11]

The
    respondents position is that the Board considered and rejected a conditional
    discharge. In the Boards specific comment on the appellants efforts to
    navigate around restrictions, it was implicit that it was rejecting the
    suitability of a conditional discharge. This comment would have been irrelevant
    to an absolute discharge, but highly relevant to the need for compliance with
    conditions. The Board also expressly mentioned the question of conditional
    discharge in its summary of the hospitals recommendations.  Furthermore, on
    the evidence, the respondent submits a conditional discharge was not a
    realistic option.

[12]

In
    our opinion, the Board had before it both documentary and
viva voce
evidence as to the necessity that Mr. Runnalls reside in supervised
    accommodation approved by the Person in Charge of the Hospital. This
    requirement, that the appellant reside in approved, supervised community
    housing meant that a conditional discharge was not an appropriate disposition.
    The appropriate disposition in such instances is a continued detention order
    with discretion given to the hospital administrator to permit the appellant to
    reside outside of the hospital:
Brockville Psychiatric Hospital v. McGillis
,
    [1996] O.J. No. 3430 (Ont. C.A.).
[1]

[13]

While
    it would certainly have been better if the Board had specifically set out in
    its reasons that a conditional discharge was not appropriate because of the
    need for the appellant to reside in supervised approved accommodation in the
    context of the issues upon which the Board was asked to focus, the Boards
    reasons satisfy the functional test of enabling us to understand why a
    conditional discharge was not granted. Further, the Boards decision was not
    unreasonable.

3.       Whether
    the Board erred in not ordering an independent assessment

[14]

The
    Board may order an independent assessment under s. 672.121 of the
Criminal Code
if it has reasonable grounds to believe that it is necessary to make a
    disposition. The Board considered the appellants application for an assessment
    and concluded that an independent assessment was not necessary in the
    circumstances.

[15]

In
    our opinion, this conclusion was reasonable. The Board had before it evidence
    from the appellants treating psychiatrist that the appellant failed to
    appreciate that any independent assessment would be carried out having regard
    to the information existing with respect to the appellant. It would not take
    place in a vacuum as the appellant wanted. Furthermore, an independent
    assessment may well be counterproductive in that any minor discrepancies would
    be seized upon by him and used to resist treatment. This was not a case of
    treatment impasse referred to in
Mazzei v. British Columbia
(Director
    of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 206 C.C.C. (3d)
    161.

[16]

The
    Board had the benefit of up to date psychiatric information concerning the
    appellant and did not err in refusing to order an independent assessment.

[17]

Accordingly,
    we would dismiss the appeal.

K.M.
    Weiler J.A.

David
    Watt J.A.

G.J.
    Epstein J.A.

[1]
We were advised that in fact, the appellant is currently living in supervised
    approved accommodation, Maplewood House.  The current apartment maintained by
    the appellant and in which his girlfriend resides is neither approved nor
    supervised accommodation.


COURT OF APPEAL FOR ONTARIO

CITATION:
Sharma v. Timminco
    Limited, 2012 ONCA 322

DATE: 20120516

DOCKET: C53624, C53642 and C53644

Goudge, Armstrong and Lang JJ.A.

BETWEEN

Ravinder Kumar Sharma

Plaintiff (Respondent)

and

Timminco Limited, Photon Consulting LLC, Rogol
    Energy Consulting LLC, Michael Rogol, Dr. Heinz Schimmelbusch, Robert Dietrich,
    René Boisvert, Arthur R. Spector, Jack L. Messman, John C. Fox, Michael D.
    Winfield, Mickey M. Yaksich and John P. Walsh

Defendants (Appellants)

Proceedings under the
Class
    Proceedings Act, 1992

Alan L.W. DSilva, Daniel S. Murdoch and Lesley Mercer,
    for the appellants Timminco Limited, Dr. Heinz Schimmelbusch, Robert Dietrich,
    René Boisvert, Arthur R. Spector, Jack L. Messman, John C. Fox, Michael D.
    Winfield and Mickey M. Yaksich

Paul Le Vay and Brendan Van Niejenhuis, for the
    appellant Photon Consulting LLC

Derek J. Bell, for the appellant John P. Walsh

Michael C. Spencer, Won J. Kim and Victoria Paris, for
    the respondent

Heard: November 2, 2011

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated March 31, 2011, with reasons reported at 2011
    ONSC 2040.

COSTS ENDORSEMENT

[1]

We have received written submissions from the three appellants
    and the respondents in this matter concerning the disposition of costs in this
    court and on the motion below.  We have reviewed them all and considered the
    various issues raised by them.

[2]

The result of the appeal is that the appellants succeed on the
    limitation issue, having failed below.  This was the only issue on appeal.  The
    issue concerning the substitution of a representative plaintiff raised below
    was not before this court.  In our view, the costs disposition below reflects
    the judgment of an experienced class action judge that costs before him ought
    to await the result of the action.  Having reversed only a part, albeit a major
    part of his order, we see no reason to depart from the philosophy he adopted
    concerning costs.  We would therefore not alter the costs disposition below.
    Costs of the motion ought to remain in the cause.

[3]

As to the costs of the appeal, we consider the appellants
    success as being an important consideration.  The costs order of the appeal
    should reflect this in some measure.

[4]

We also consider of relevance the fact that the appeal raised a
    novel issue of law.  This invites some modification of the costs order that
    might otherwise be made.

[5]

Finally we consider of relevance the fact that this is a class
    action where access to justice is an important policy underpinning.  Costs
    orders in our view, should take account of that, to some extent.

[6]

However, we see merit in the approach adopted by the motion judge
    to the costs before him.  Success in the ultimate proceedings should in this
    circumstance serve as the ultimate determining factor for the payment of costs.

[7]

In the result, we order that the Timminco appellants and the Photon
    Consulting appellants each be awarded $20,000 costs in the cause, inclusive of
    disbursements and applicable taxes.  We further order that the Walsh appellant
    receive costs in the amount of $10,000 in the cause, inclusive of disbursements
    and applicable taxes.

S.T. Goudge J.A.

Robert P. Armstrong J.A.

S.E. Lang J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Steinberg v. Ellis
    Entertainment Corp., 2012 ONCA 362

DATE: 20120531

DOCKET: C54767

MacPherson, Gillese and MacFarland JJ.A.

BETWEEN

Michael Steinberg

Plaintiff (Respondent)

and

Ellis Entertainment Corp. and
Stephen Ellis

Defendants (Appellant)

AND BETWEEN

Stephen Ellis

Plaintiff by Counterclaim (Appellant)

and

Michael Steinberg

Defendant by Counterclaim (Respondent)

Paul D. Guy and Faren H. Bogach, for the appellant
    Stephen Ellis

Kevin D. Sherkin and Robert A. Gold, for the respondent

Heard: May 10, 2012

On appeal from the order of Justice Glenn A. Hainey of
    the Superior Court of Justice dated November 24, 2011.

Gillese
    J.A.:

[1]

This appeal raises a significant
    pleadings issue.  A corporation and an individual jointly defended an action.
    The corporation also counterclaimed.  It became insolvent and its assets were
    acquired by its first-ranking secured creditor.  The creditor assigned the
    counterclaim to the individual.  The individual obtained an order to continue
    the counterclaim.  The corporations defence was then struck out.  Is the
    individual permitted to amend his pleadings to make them consistent with the
    counterclaim?  In the circumstances of this case, it is my view that he
    cannot.

THE FACTS IN BRIEF

[2]

Michael Steinberg (Steinberg) was the former Chief Operating Officer
    and General Counsel of Ellis Entertainment Corp. (the Corporation).  He began
    a wrongful dismissal lawsuit against the Corporation and Stephen Ellis
    (Ellis) personally.  At the time, Ellis controlled the Corporation.  He was
    its President and Chief Executive Officer, as well as a director and officer.

[3]

In the action, Steinberg sought damages of $250,000 for wrongful
    dismissal, back wages, vacation pay, and oppression.  He sought relief against
    Ellis personally for vacation pay and back wages, pursuant to the provisions of
    the
Employment Standards Act, 2000
, S.O. 2000, c. 41.

[4]

The Corporation and Ellis defended the claim in a joint pleading,
    consisting of a statement of defence (the joint statement of defence) and a
    counterclaim (the Counterclaim).  In the joint statement of defence, the
    Corporation and Ellis alleged that Steinberg voluntarily resigned from his
    employment with the Corporation or, alternatively, that Steinberg had engaged
    in serious misconduct that justified termination of his employment for cause.
    Paragraph 20 of the joint statement of defence set out Steinbergs alleged
    misconduct, the essence of which is that he secretly attempted to compete
    against the Corporation while employed by it.  In the joint statement of
    defence, the Corporation and Ellis also alleged that Steinberg had received all
    vacation pay and compensation to which he was entitled.

[5]

The Counterclaim was brought only by the Corporation.  In it, the
    Corporation sought damages of approximately $1 million for the wrongdoing
    alleged in the joint statement of defence.  The Counterclaim itself contained
    no additional allegations against Steinberg.  Ellis personally did not claim
    anything by means of counterclaim.

[6]

The Corporation became insolvent.

[7]

On January 13, 2011, all of the Corporations assets, including the
    Counterclaim, were acquired by the first-ranking secured creditor, Knightscove
    Media Corp. (Knightscove).

[8]

On March 18, 2011, Knightscove assigned the Counterclaim to Ellis.

[9]

On March 31, 2011, based on the Corporations failure to attend
    discovery, Steinberg successfully moved to strike out the Corporations
    statement of defence.  The Counterclaim was not struck out.  Ellis, through his
    counsel, participated in the motion.

[10]

In
    accordance with rule 19.02 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194 (the Rules), as a consequence of the Corporations defence
    being struck out and it being noted in default, the Corporation was deemed to
    admit the truth of the allegations of fact contained in the statement of
    claim.

[11]

On
    May 20, 2011, Ellis obtained an order that allowed him to continue the
    Counterclaim in his name (the order to continue).

[12]

Steinberg
    did not challenge the assignment of the Counterclaim to Ellis nor did he appeal
    the order to continue.

[13]

Ellis
    moved for leave to amend his statement of defence and counterclaim to make it
    consistent with the order to continue.  The amendments would permit him to make
    the same allegations of fact as those that had been advanced in the joint statement
    of defence and which had been struck out as against the Corporation.

[14]

Steinberg
    resisted the motion.

The First Order

[15]

By
    order dated September 15, 2011, Master Sproat granted the motion and allowed
    the amendments to be made (the first order).

[16]

In
    brief reasons, the Master explained as follows.  The Corporations defence was
    struck as a result of its failure to attend discovery.  The merits of its
    defence and proof of the underlying facts were not adjudicated.  Ellis has a
    continued right to defend.  Elliss continued denial of the claim is unaffected
    by the striking of the Corporations defence or deemed admissions of the facts
    upon the noting in default.

[17]

As
    there was no order striking the Counterclaim, it was properly before the court.
    Ellis has obtained an order to continue and no issue has been taken with that
    order.  The Rules are clear that amendments shall be granted unless there is
    prejudice that cannot be compensated for by costs and Steinberg had not
    advanced prejudice.  Therefore, Ellis should be permitted to make the
    amendments.

[18]

Steinberg
    appealed.

The Order Under Appeal

[19]

By
    order dated November 24, 2011 (the order under appeal), Hainey J. allowed Steinbergs
    appeal and dismissed Elliss motion to amend.  He reasoned as follows.

[20]

Because
    the Corporations statement of defence was struck out, it is deemed to have
    admitted the allegations in the statement of claim, including that Steinbergs
    employment was wrongfully terminated.  The Counterclaim contained no allegations
    specific to it but, rather, adopted paragraph 20 of the joint statement of
    defence which recites a number of allegations of misconduct by Steinberg during
    his employment with the Corporation.  The serious allegations are inconsistent
    with, and contrary to, the Corporations deemed admissions.

[21]

Against
    this background, it would be an abuse of process to allow Ellis to continue to
    assert the serious allegations in the Counterclaim.

[22]

The
    court should review a proposed pleading to determine whether it is legally
    tenable and should refuse an amendment as legally untenable if it is clearly
    impossible of success.

[23]

Given
    the deemed admissions by the Corporation, the allegations in the Counterclaim
    are not legally tenable and are impossible of success.  Hence, it was an error
    for the Master to have permitted Ellis to amend his pleadings.

THE ISSUES

[24]

On
    appeal to this court, Ellis asks that the order under appeal be set aside and
    the first order be restored.  He submits that Hainey J. erred by:

1.

failing to take into
    account that he (Ellis) acquired the Counterclaim before the deemed admissions
    were made by the Corporation; and

2.

allowing a
    collateral attack to be made against the order to continue.

ACQUISITION OF
    THE COUNTERCLAIM BEFORE THE DEEMED ADMISSIONS

[25]

For
    the purposes of this submission, Ellis asks that three dates be kept in mind:

-

January
    13, 2011:       Knightscove acquired the Counterclaim

-

March
    18, 2011:         Knightsbridge assigned the Counterclaim to Ellis

-

March
    31, 2011:         The Corporations statement of defence is struck                                     out.

[26]

On
    this issue, Ellis argues as follows.  The Corporation lost all of its rights
    and interests in the Counterclaim on January 13, 2011, when Knightscove
    acquired the Corporations assets.  Ellis acquired the right to pursue the
    Counterclaim on March 18, 2011, when it was assigned to him.  By the time the
    Corporations statement of defence was ordered struck out on March 31, 2011, and
    the deemed admissions were made by the Corporation, the Corporation no longer
    had the right to advance the Counterclaim: he had that right.  Accordingly, Ellis
    contends, the deemed admissions of the Corporation had no impact on the legal viability
    of the Counterclaim and Hainey J. erred in failing to recognize the
    significance of the timing of the relevant events.

[27]

I
    do not accept this submission.  In my view, although Hainey J. did not
    expressly advert to the timing of events, there is no error in his reasoning.

[28]

The
    effect of the assignment was to give Ellis the right to pursue the Counterclaim
    on behalf of the Corporation.  He stood in the Corporations shoes for the
    purpose of pursuing the Counterclaim.  He could not have a better claim than
    the Corporation.  Therefore, as I will explain, when the Corporations
    statement of defence was struck out, there was an effect on Elliss ability to
    continue the Counterclaim.

[29]

The
    Counterclaim seeks relief for allegations set out in the joint statement of
    defence and is supported by no other allegations.  As a consequence of the
    Corporations defence being struck out and it being noted in default, the
    Corporation was deemed to admit the truth of the allegations of fact contained
    in the statement of claim: see rule 19.02 of the Rules.  Accordingly, the
    Corporation was deemed to admit that it had wrongfully terminated Steinbergs
    employment.  It could no longer assert that Steinberg had wrongfully attempted
    to compete against it during his employment with the Corporation because those
    allegations are inconsistent with, and contrary to, the Corporations deemed
    admission that it had wrongfully terminated Steinbergs employment.

[30]

Thus,
    given the deemed admissions by the Corporation, it was not possible for the
    Corporation to factually establish the allegations of wrongdoing that
    underpinned its claims in the Counterclaim.  As it couldnt factually establish
    the allegations, it would be impossible for the Corporation to legally make out
    the claims in the Counterclaim.  In short, the claims in the Counterclaim are
    clearly impossible of success on the part of the Corporation.  As Hainey J.
    observed, the court should refuse an amendment if it is not tenable at law: see
Old Willoughby Realty Ltd. v. Mathews Southwest Developments Ltd.
, 2009
    CanLII 55352 (Ont. S.C.), at para. 19; and
Essa v. Panontin,
2010 ONSC
    691.

[31]

As
    I have already noted, Ellis stands in the shoes of the Corporation and cannot
    have a better claim than it does.  Because the Corporation could not factually
    or legally establish the claims in the Counterclaim, it would be an abuse of
    process to allow Ellis to amend his pleadings so that he could assert the claims
    in the Counterclaim.

THE COLLATERAL ATTACK ARGUMENT

[32]

A
    collateral attack is an attack made against a court order or judgment in
    proceedings other than ones whose specific object is the reversal, variation or
    nullification of the order or judgment: see
R. v. Wilson
, [1983] 2 S.C.R.
    594, at p. 599.

[33]

Ellis
    submits that the order under appeal is a collateral attack on the order to continue.
    This submission runs as follows.

[34]

Through
    the assignment, Ellis acquired the Counterclaim.  The order to continue gave
    Ellis the right to continue the Counterclaim against Steinberg in his own
    name.  The order under appeal effectively invalidates the order to continue because
    it prevents Ellis from continuing the Counterclaim.  Had Steinberg wished to
    prevent the Counterclaim from being continued, Steinberg had to appeal the
    order to continue. He did not.  The order to continue was not in issue before
    Hainey J.  Therefore, it was not open to Hainey J. to make the order under
    appeal because it amounted to a collateral attack on the order to continue.

[35]

Again,
    I reject this submission.

[36]

As
    I have already explained, the effect of the striking out of the Corporations
    statement of defence and the deemed admissions means it would be impossible for
    the Corporation to succeed in establishing the claims in the Counterclaim.  In those
    circumstances, the amendments that Ellis sought to make were not tenable at
    law.  It was for that reason that Hainey J. concluded that it would be an abuse
    of process to permit the amendments to be made.  Accordingly, the order under
    appeal does not amount to a collateral attack on the order to continue.

DISPOSITION

[37]

Accordingly,
    I would dismiss the appeal with costs to the respondent fixed, on consent, at
    $2,500, inclusive of disbursements and all applicable taxes.

Released: May 31, 2012 (J.M.)

E.E. Gillese
    J.A.

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

I agree. J. MacFarland J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: United States v. Fafalios, 2012 ONCA 365

DATE: 20120531

DOCKET: C52980

Doherty, Goudge and Epstein JJ.A.

BETWEEN

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

Appellant

and

Marc Fafalios and George Fafalios

Respondents

Moiz Rahman and Monika K. Rahman, for the appellant

Richard H. Shekter, for the respondent George Fafalios

Heard: October 25, 2011

On appeal from the order of Justice Nancy Backhouse of
    the Superior Court of Justice dated November 26, 2010.

Epstein J.A.:

A.      INTRODUCTION

[1]

This case raises the issue of the options available to the Crown when
    confronted with an adverse interlocutory ruling in a criminal or quasi-criminal
    prosecution.

[2]

On September 19, 2007, the respondents, George and Marc Fafalios, were
    arrested and charged in Canada with fraud over $5000 in connection with an
    alleged scheme to defraud several large American corporations.

[3]

In connection with the arrests, Canadian police executed search warrants
    and seized evidence from the respondents. The police subsequently sent some of
    the seized evidence to American authorities.

[4]

On May 2, 2008, the fraud charges in Canada were withdrawn. On May 27, 2009,
    the U.S. sought the respondents extradition. As a result, Canadian authorities
    arrested them on January 5, 2010.

[5]

At the commencement of the extradition hearing, the respondents brought
    an application for disclosure of information relating to the conduct of the
    Canadian authorities in sending evidence to the U.S. authorities. The
    application was based on the respondents allegation that this sharing of
    information breached their
Charter

rights. In defence, the
    Crown argued that there was no air of reality to the
Charter
breach
    argument.

[6]

On April 1, 2010, the extradition judge granted the request for
    disclosure, holding that the respondents had established more than an air of
    reality to the
Charter
issues raised.

[7]

After the Crown partially complied with the April disclosure order, the
    respondents brought another application for production seeking full compliance
    with the first order and further disclosure. On November 23, 2010, the
    extradition judge made a second disclosure order that not only mandated full compliance
    with the April order but also granted the relief sought in the second
    application  relief that included obtaining evidence from a number of lawyers
    associated with the gathering and transmission of evidence to U.S. authorities.

[8]

On November 26, 2010, the Crown advised the extradition judge that it
    was not prepared to supply any more disclosure and invited the court to stay
    the proceedings or grant a discharge. The extradition judge chose to discharge
    the respondents.

[9]

In this Crown appeal from the discharge order, both parties have
    addressed the correctness of the two disclosure orders. However, the argument
    upon which the respondents primarily rely is that the Crowns conduct in
    refusing to comply with the orders, terminating the proceeding and then appealing
    the validity of the orders on the basis of arguments not raised before the
    extradition judge, constitutes an abuse of process. The respondents further
    contend that this appeal, if heard on the merits, would amount to a
    continuation of that abuse.

[10]

For the reasons that follow, I agree. I am therefore of the view that
    this court should exercise its inherent jurisdiction to protect its process and
    dismiss the appeal without considering the merits of the impugned orders.

B.      FACTUAL BACKGROUND

(1)

Preceding the commencement of the extradition proceedings  evidence is
    gathered and sent to the U.S.

[11]

In early 2007, Canadian and American police conducted a joint
    investigation seeking to identify the perpetrators of a scheme to defraud
    American companies. It was alleged that the offenders created email accounts in
    the names of actual executives at supplier companies. These false identities
    and accounts were used to redirect, for the benefit of the perpetrators,
    payments meant for the suppliers.

[12]

On May 31, 2007, the United States government sent a request to the
    Central Authority in Canada under the Mutual Legal Assistance Treaty between
    Canada and the United States
[1]
requesting assistance in obtaining telephone and internet records to help identify
    those involved in the fraudulent conduct. On July 4, 2007, Rivard J. granted an
    Order to Gather Evidence pursuant to the
Mutual Assistance in Criminal
    Matters Act
, R.S.C. 1985 c. 30 (4
th
Supp.) (MLACMA).

[13]

The perpetrators were identified as the respondents.

[14]

On September 19, 2007, the respondents were arrested and charged in
    Canada with fraud over $5000, possession of property obtained by crime and
    theft of telecommunications services. In conjunction with the arrests, Canadian
    police executed search warrants and seized evidence from the respondents.
    Detective Carmine Palermo of the Toronto Police Service Fraud Squad headed the
    investigation.

[15]

The seized evidence included a laptop and a hard drive that contained
    evidence of an electronic trail connecting the respondents to the email addresses
    used for the purposes of the fraud.  Canadian police also gathered internet
    records from Rogers Cable, which connected specific Canadian locations to IP
    addresses used to log on to the same email accounts. These internet records
    were gathered pursuant to the July 4 evidence-gathering order.

[16]

On September 28, 2007, the U.S. authorities sent a supplementary treaty
    request to the Canadian authorities seeking additional information to assist in
    the investigation. In response, the International Assistance Group of the
    Department of Justice authorized the police to share copies of some of the
    requested material with the U.S. authorities.

[17]

In November and December 2007, Palermo shared forensic copies of the
    laptop and hard-drive with U.S. authorities pursuant to an informal
    information-sharing agreement. He also mistakenly shared the telephone and
    internet records gathered pursuant to the July 4 order, and sent them without a
    proper Order to Send under the MLACMA. These records were returned by U.S.
    authorities on February 11, 2008, and properly re-sent pursuant to a Sending Order
    issued on March 27, 2008.

[18]

On May 2, 2008, the Canadian charges were withdrawn. In exchange for
    having the charges withdrawn, the respondents consented to their computers and
    other electronic equipment being sent to the United States.

[19]

In response to a request by the U.S. for extradition of the respondents,
    the Minister of Justice issued an Authority to Proceed on June 1, 2009,
    pursuant to s. 15 of the
Extradition Act
, S.C. 1999, c. 18,
    authorizing the Attorney General of Canada to seek an order for the committal
    of the respondents for the equivalent Canadian offences of attempted fraud and
    personation.

[20]

The Record of the Case for Prosecution submitted by the United States
    Department of Justice includes evidence gathered in Canada in support of the
    extradition request.

(2)

The Extradition Proceedings

[21]

From the outset of the extradition proceedings, the respondents alleged
    that their
Charter

rights had been breached by the manner in
    which the Canadian authorities sent the Canadian-gathered information to the
    U.S. authorities. In contemplation of a
Charter

application to
    exclude this evidence from the extradition proceedings, the respondents brought
    an application on March 17, 2010, for disclosure of all materials relevant to
    the gathering and transmitting of evidence to the U.S.

[22]

On March 17, 2010, the first application for disclosure was argued
    before the extradition judge. The respondents asked for extensive disclosure
    including an order that they be entitled to cross-examine Palermo before the
    extradition judge. Appended to the respondents factum was a detailed list of 41
    categories of items requested along with an outline of the evidence the
    respondents wished to obtain from Palermo. Rather than address the individual
    items on the list, the Crown defended the application solely on the basis that
    there was no air of reality to the allegations of a
Charter
breach. The
    Crown did not raise any issue of privilege or any other specific objection.

[23]

When the parties returned before the extradition judge on April 1, 2010,
    the extradition judge granted all of the relief requested, holding that the respondents
    had established more than an air of reality to the
Charter
issues
    raised. The Crowns response to being advised of the ruling was to broach additional
    arguments in defence of the application, arguments pertaining to privilege and
    third party records. The extradition judge expressed concern that those points should
    have been raised when the matter was argued in March but agreed to hear them at
    the next attendance.

[24]

In the meantime, the Crown provided some of the disclosure that was
    subject to the April 1 order under cover of a letter dated June 14. Significantly,
    in that letter the Crown advised that it was waiving litigation privilege in
    respect to the disclosure provided:

A significant portion of the attached disclosure includes
    material that is protected by litigation privilege. However, in the unusual
    circumstances of the case, and in order to move this matter forward as
    expeditiously as possible, both the Attorney General of Canada and the Attorney
    General of Ontario are prepared to waive the privilege in respect of the
    attached material..... The only outstanding piece of disclosure that remains to
    be disclosed is Detective Palermos notes.

[25]

This position was confirmed by Crown counsel in open court on June 21,
    when he advised the extradition judge:

In keeping with the spirit of Your Honours order and to move
    this forward, the Attorney General of Canada and the Attorney General of
    Ontario, included documents that are otherwise protected by litigation
    privilege and have included what you had read in the package. So, the package
    that has been provided is the fulsome package..... [Subject to Palermos notes
    and some photocopying errors] we have now provided all documents responsive to
    that order.

[26]

At the next attendance before the extradition judge on August 17, counsel
    for the respondents expressed dissatisfaction with the Crowns compliance with the
    disclosure order. Crown counsel responded by arguing that, while litigation
    privilege had been waived, solicitor-client privilege had not. The thrust of
    his argument was that the Crown had, in fact, produced information in
    accordance with the spirit of the April 1 order. He added however that if the
    court intended everything on the list to be produced thats a different matter.

[27]

The extradition judge instructed the Crown to produce everything on the
    initial list that had not yet been produced. The Crown undertook to do so.

[28]

By letter dated September 13, 2010, the Crown made further disclosure,
    including communications between Palermo and the Crown Law Office-Criminal. Crown
    counsel described these communications as privileged but advised that they were
    being produced, again citing the unique and particular circumstances of this
    case.

[29]

At the next court appearance, on September 30, 2010, Crown counsel took
    the position that the April 1 order had been fully complied with.  Counsel for
    the respondents disagreed but advised that he would deal with the deficiencies in
    the course of a second disclosure application.

[30]

The respondents brought their second disclosure application on November
    19. They submitted that nine of the 41 categories of items that were ordered
    produced in the first order remained outstanding and sought reinforcement of the
    Crowns obligations under that order. The respondents also requested affidavit
    evidence from six lawyers from the Toronto Police Service, the Ontario Ministry
    of the Attorney General, and the Department of Justice who had been involved in
    the extradition process, and the opportunity to cross-examine the lawyers on
    their affidavits. Once again, the Crown resisted the application only on a
    general basis  arguing that the respondents
Charter
application was
    without merit and that the disclosure requests were nothing more than fishing
    expeditions.

[31]

The issue of privilege was addressed in the Crowns factum only to this
    extent:

The [respondents] raise the question of whether privilege has
    been waived. With respect, that is not the issue. The relevant inquiry is
    whether the [respondents] abuse of process allegation has any basis whatsoever
    that could possibly support such a request. It does not.

In other words, the Crown
    mentioned privilege only to dismiss it as irrelevant.

[32]

On November 23, 2010, the extradition judge granted the relief sought in
    the second disclosure application.

[33]

What followed was a brief appearance on November 26, 2010, during which Crown
    counsel simply advised the extradition judge that he was not prepared to provide
    any additional disclosure. Crown counsel then invited the extradition judge to order
    that the respondents be discharged or to enter a stay of the proceedings. He provided
    no notice of his intention to take this step. He provided no explanation for refusing
    to provide further disclosure and requesting that the proceedings be
    terminated.

[34]

The extradition judge discharged the respondents. She also indicated
    that she was prepared to make an order staying the proceedings as an abuse of
    process.

[35]

It is not disputed that at the conclusion of the hearing on November 26,
    2010, the Crown had in hand two notices of appeal  one in the event that a
    stay was imposed and the other available if the court granted a discharge. The
    latter notice of appeal, dated November 26, 2010, was served and filed with
    this court that day.

C.      The
    issues

[36]

As I have indicated, the Crowns steadfast and only position throughout
    the dispute over the respondents requests for disclosure was lack of relevance
    - that the respondents application for exclusion of evidence, based on a
    breach of their
Charter
rights arising out of the way in which
    Canadian police shared information with U.S. authorities, was doomed to fail.

[37]

According to the Crown, the extradition judges error stemmed from an
    incorrect approach to the
Charter
analysis in two respects. First, she
    incorrectly placed an onus on the Crown to prove that the evidence in issue was
    dealt with by Canadian authorities in a
Charter
-compliant fashion
    rather than requiring the respondents to demonstrate a
Charter
breach.
    Second, the legal assertion underlying the
Charter
claim, that prior
    judicial authorization was necessary to share information, was incorrect.

[38]

Before this court the Crown argues that the orders were wrong in law for
    the same reason as the one consistently advanced before the extradition judge
    the information and documentation requested was not relevant to the extradition
    proceeding as there is no air of reality to the
Charter
argument.
    Crown counsel also raises two additional arguments against disclosure not advanced
    below  that compliance with the orders would violate privilege and harm
    international relations.

[39]

For reasons that I will explain, the focus of this appeal is not the
    correctness of the interlocutory orders but rather whether the conduct of the
    Crown in response to the orders amounts to an abuse of process.  In my view, it
    does.

(1)

The Applicable
    Legal Principles

[40]

The foundation of the respondents abuse of process argument is that
    parties to an extradition proceeding have a right of appeal only from a final
    order that brings the matter to an end.  Orders made during the proceeding,
    like interlocutory orders in criminal matters generally, are not the subject of
    an immediate right of appeal.  Those orders can be challenged on appeal only
    after the proceedings are complete and a final order is made.

[41]

The policy reasons underlying the bar against interlocutory appeals
    include the promotion of efficiency and protecting the system and those
    involved in it from the disadvantages associated with fragmentation:
R. v.
    Johnson
(1991), 3 O.R. (3d) 49 (C.A.). In my view, these concerns are
    especially relevant in the extradition process, which is, by design, an
    expedited process that is less complex and extensive than a criminal trial:
United
    States of America v. Dynar
, [1997] 2 S.C.R. 462, at paras. 122, 131.

[42]

While the prosecution has no immediate right of appeal when faced with
    an interlocutory ruling to which it takes serious objection, the Crown is not
    without a remedy. It has two options. It can continue with the proceeding and,
    depending on the result and the effect of the ruling on that result, launch an
    appeal in which the adverse ruling is challenged. Or it can do what the Crown
    did here; it can bring the proceedings to a halt and launch an appeal
    challenging the correctness of the interlocutory order.

[43]

However, this second option is strictly limited to cases where the Crown
    can clearly demonstrate that it had no reasonable alternative. If the record
    does not support such a finding, allowing the Crown to argue its appeal from
    the interlocutory order would amount to an abuse of process.

[44]

A review of the authorities reveals that two types of circumstances have
    been recognized as putting the Crown in the position where there is no
    reasonable alternative other than to pursue what may be called a functional appeal
    of an interlocutory order. These two circumstances broadly can be identified as
    where the record demonstrates: a) that the effect of the interlocutory ruling
    is to exclude evidence sufficiently important to the prosecution that the Crown
    is unable to continue; or b) that compliance with the interlocutory order
    raises a reasonable prospect of harm to an interest the court deems worthy of
    protection.

[45]

It follows that, except where the Crown can demonstrate that it really
    had no other reasonable option, it will generally be considered an abuse for
    the Crown to appeal from an order that it agreed to, much less one that it
    invited the court to make.

(a)

When the Trial Judge has Excluded Evidence upon which the Prosecution
    Depends

[46]

The most common situation in which the prosecution is allowed
    effectively to bring an appeal from an interlocutory order occurs where a judge
    has made a ruling during the proceedings that, for all practical purposes,
    decides the case against the Crown.  An example is where the judge makes an
    interlocutory order the effect of which is to exclude evidence critical to the
    prosecution such as in
R. v. Banas and Haverkamp
(1982), 36 O.R. (2d)
    164 (C.A.), where the trial judge excluded intercepted private communications
    upon which the Crowns case depended. The Crown declined to call any further
    evidence and agreed that a directed verdict of acquittal was appropriate.
    Martin J.A. held, at p. 169, that the Crown could appeal, as continuing with
    the trial in the light of the order would have been fruitless.  See also
R.
    v. Whittle
(1992), 59 O.A.C. 218 (C.A.),
R. v. Wilcox
, 2001 NSCA
    45, 192 N.S.R. (2d) 159,
R. v. Bailey
(1983), 4 C.C.C. (3d) 21 (Ont. C.A),
R. v. Brown
, [1987] O.J. No. 65 (C.A.).

[47]

R. v. Power
, [1994] 1 S.C.R. 601, was
a case of this type.
There, the accused
    was charged with impaired driving causing death and two counts of impaired
    driving causing bodily harm. The Crown elected not to continue with the
    prosecution following the trial judges ruling excluding breathalyzer evidence.
    The court held that there was no abuse of process as [t]here is not one iota
    of evidence that the Crown prosecutors conduct was prompted by bad faith or an
    improper motive...nor did the prosecution intend to frustrate the
    administration of justice or even to circumvent the rules of criminal law
    regarding interlocutory appeals (at p. 616). This holding was informed by the
    fact that the excluded evidence was, in fact, crucial to the Crowns case (at p.
    631).

[48]

In such a situation, the prosecution will not be obliged to waste time
    and resources completing a proceeding where the result is inevitable.  Instead,
    the more prudent course of action is for the Crown to explain to the court how
    the ruling has had the effect of determining the matter and invite the court to
    enter a final order so that the prosecution can challenge the exclusion of
    evidence on appeal.

(b)

When Compliance Would Potentially Cause Harm

[49]

The common thread in this second category of cases is evidence demonstrating
    that compliance with an interlocutory order raises a reasonable prospect of
    harm to a legally recognized interest worthy of protection. Such interests
    include disclosure of the identity of a confidential informant or violation of
    privilege.

[50]

This category may also involve situations in which the Crown can
    demonstrate that compliance with the interlocutory order would cause
    irreparable harm to the administration of justice such as situations where the
    prosecution can make the case that compliance with the interlocutory order
    would require an inordinate expenditure of prosecutorial and judicial resources.

[51]

In
R. v. Chiarantano
, [1989] O.J. No. 2950 (Dist. Ct.), the
    trial judge ordered the Crown to disclose the identity of a police informant.
    The Crown refused to do so and the trial judge entered a stay. This court
    considered the merits of the disclosure order and allowed the appeal, ordering
    a new trial: [1990] O.J. No. 2603 (C.A.). A further appeal to the Supreme Court
    was dismissed: [1991] 1 S.C.R. 906.

[52]

In
R. v. Creswell
, 2000 BCCA 583, 146 C.C.C. (3d) 286, the
    British Columbia Court of Appeal considered an appeal on its merits from the
    Crowns refusal to comply with a disclosure order. In that case, the trial
    judge ordered the production of legal opinions relied on by the police in the
    course of an undercover operation. The Crown raised privilege, but the trial
    judge held that it had been waived. The Crown refused to disclose the legal
    opinions and invited a stay. The Court of Appeal agreed to review the
    legitimacy of the order, at paras. 11-12:

Once the trial judge made her ruling that the legal opinions
    had to be disclosed, the Crown had a choice. It could either release the
    opinions or discontinue its case against the respondent... In my view, the
    actions of the Crown do not demonstrate contempt for the court but a practical
    resolution of the problem which arose. If the issue of privilege was to be
    tested in this Court there was no other way for the Crown to proceed.

[53]

The court in
Creswell
identified
Chiarantano
as a case
    where necessity dictated the Crowns course of action, and as such, did not
    amount to an abuse of process.

[54]

R. v. Cassidy
(2004), 69 O.R. (3d) 585 (C.A.), was a case in
    which the Crown failed to demonstrate harm to a protected interest. The trial
    judge ordered the Crown to provide two software programs used to extract child
    pornography from computers and the hard drives they were found on, and, if
    required, pay the costs of training someone to operate the program. The Crown
    refused to comply and consented to a stay. On appeal, the Crown submitted that
    its position as argued at trial was wrong, but on other grounds maintained that
    the disclosure order went too far. This court drew an analogy between the
Banas
and the
Power
type of cases and the circumstances in
Cassidy
.
    The court concluded that
Cassidy

was a case in which the Crown
    proceeded directly to appeal when it had a reasonable alternative; namely, an
    order pertaining to the computer equipment and search program that the Crown,
    on appeal, ultimately agreed would have been appropriate. As a result, this
    court held that Mr. Cassidy was exposed to a potentially unnecessary appeal,
    and it would be an unfair and abusive exercise of prosecutorial discretion to
    allow the Crown to force [him] to a new trial (at paras. 22-23).

(c)     Conclusion regarding when the Crown can
    effectively appeal an Interlocutory Order

[55]

When the Crown requests a premature termination of a proceeding after an
    adverse interlocutory ruling, it must establish the existence of circumstances
    where a direct appeal of the ruling is absolutely necessary  where there is no
    reasonable alternative.  The onus on the Crown is formidable due to the
    exceptional nature of a procedure that essentially circumvents the rule against
    a direct appeal from an interlocutory order.

[56]

Before applying these principles to this case, I will comment briefly on
    the Crowns argument that the principle I have just set out is not inviolate
    and that this court should review the merits of the two orders that it submits
    are wrong in law.

[57]

In trying to make this argument, the Crown relies on the decisions in
Creswell
,
Cassidy
,
United States of America v. Tang
(2002), 66 W.C.B.
    (2d) 30 (Ont. S.C.), revd
United States of America v. Chan
(2003), 59
    W.C.B. (2d) 568 (Ont. C.A.), and
R. v. Fitch
, 2006

SKCA 80,
    [2006] 10 W.W.R. 1.

[58]

In my view, these cases do not assist the Crown.

[59]

As discussed above, in
Creswell
, the Crown clearly had no
    reasonable alternative as the disclosure of potentially privileged information
    was at stake. In
Cassidy
,
this court did comment on the merits
    of the disclosure order below but, relying on abuse of process, upheld the
    stay.

[60]

Tang
is a different case than the one at bar.  There, the
    extradition judge ordered the U.S. to produce further information elaborating
    on the record submitted in the extradition hearing. The U.S. refused and the
    extradition judge granted a stay. The Court of Appeal allowed the appeal
    holding that if the extradition judge was of the opinion that there was
    insufficient evidence to satisfy the test for committal, the proper remedy was
    a discharge, rather than a disclosure order.  The merits of the appeal were
    considered only because the extradition judge had no basis to make the order in
    the first place. Here, the jurisdiction to make a disclosure order is
    unquestioned. It is the correctness of the order that is attacked.

[61]

This takes me to the decision of the Saskatchewan Court of Appeal in
Fitch
,
    where, in aid of the accuseds
Charter
application, the trial judge
    ordered the disclosure of a police officers history of stopping and searching
    vehicles. The Crown refused to comply but indicated that it was prepared to
    continue with the trial. It also invited the court to stay the charges if the
    trial judge concluded that the information in issue was necessary for a fair
    trial. The accused then applied for and was granted a stay of proceedings. The
    Crown appealed the stay by arguing the disclosure order was in error. The Court
    of Appeal fully considered the merits of the underlying order and, concluding
    that it was in error, allowed the appeal and set aside the stay.

[62]

To the extent that
Fitch
appears to permit a review of
    interlocutory orders in circumstances such as this, I am respectfully of the
    view that its reasoning is inconsistent with the preponderance of authority,
    including from the Supreme Court.

[63]

It follows, therefore, that the legal merits the Crown raised in its
    factum have no relevance unless the case can be made that the proposed appeal
    falls within that narrow band of cases in which what are in effect appeals from
    interlocutory orders are properly taken by the prosecution.

[64]

It is this issue to which I now turn.

D.      PRINCIPLES
    APPLIED TO THIS CASE

[65]

Crown counsel attempted to tease out an argument that it must be able to
    advance in order to persuade this court to review the merits of the impugned
    interlocutory orders  that compliance with the orders would have put it in an
    impossible position. The Crown now takes the position that compliance would have
    harmed two important interests: the protection of privileged communications and
    the protection of international relations.

[66]

On this record I am of the view that the no reasonable alternative
    argument is not available to the Crown.

[67]

First, as previously noted, neither breach of privilege nor concern
    about harm to international relations was relied upon by the Crown in its
    attempts to resist the respondents requests for the two disclosure orders.

[68]

Notwithstanding that the extradition judge allowed the Crown to raise
    the issue even after the first order was made, the record demonstrates that the
    Crowns position concerning privilege was neither clear nor pressed on a
    consistent basis.

[69]

The Crown specifically waived litigation privilege over the disclosure it
    provided on June 14, 2010.  Then, in court on June 21, 2010, the Crown did not
    mention privilege.  It took the position that it had fully complied with the
    first disclosure order, with the exception of Palermos notes and a few
    photocopying errors.

[70]

The Crown raised solicitor-client privilege for the first time on August
    17, 2010, when it advised the court that it had waived litigation privilege
    over certain documents, but had not waived solicitor-client privilege generally.
    On September 13, 2010, the Crown provided further disclosure, including
    correspondence between Palermo and legal counsel, indicating that it was
    prepared to produce the documents in the unique and particular circumstances
    of this case.  Again, there was no further mention of privilege.  As noted
    above, the Crowns factum on the second disclosure motion mentioned privilege
    only to the extent of dismissing it as a relevant issue.

[71]

The concern that compliance would harm international relations is made
    for the first time before this court.

[72]

Not surprisingly, given the fact that the two issues the Crown now
    raises in support of its argument that it had no reasonable alternative but to fold
    its tent and appeal were not argued in the court below, the Crown faces
    another insurmountable problem  there is nothing in the record to support
    either concern.

[73]

I have reviewed in detail the privilege issue.  The claim about possible
    harm to international relations is a bald assertion that the Crown now makes. Nothing
    more.

[74]

Finally, it is of significance, in my view, that the Crown made no
    attempt before the extradition judge to explain either decision  to provide no
    further disclosure and to invite the termination of the proceedings.

[75]

Crown counsel also submits that compliance with the disclosure orders
    would let the genie out of the bottle in the sense that the information would
    be irretrievably disclosed. Put another way, any appeal would have been
    rendered moot. I find no merit in this argument. If the Crown made the
    disclosure as ordered, the
Charter
application was successful and the
    respondents were discharged for reasons relating to the Crowns inability to
    rely on the excluded evidence, the Crown would have every right to appeal and
    argue that the disclosure orders were improper. Furthermore, this argument
    could be said to apply to virtually all disclosure orders. If accepted, it
    would essentially create a right of appeal from an interlocutory order where
    the rules do not allow one.

[76]

All of this together with the fact that Crown counsel came before the
    extradition judge on the last day of the proceedings with two notices of appeal
    in hand  one drafted if a stay had been ordered and one drafted in the event
    of a discharge  seems somewhat highhanded and disrespectful.  In my view, it
    attracts a finding that the Crowns refusal to continue with the extradition
    proceeding was for the sole purpose of obtaining an interlocutory appeal on an
    adverse ruling as described in
Power
, at p. 619, and therefore constitutes
    an unfair and abusive exercise of the prosecutorial discretion.

E.      CONCLUSION

[77]

A fair summary of the Crowns conduct is as follows. It refused to
    comply with the interlocutory disclosure orders and, without notice or explanation,
    the Crown folded its tent and invited the extradition judge to terminate the
    proceeding either through a stay or discharge. The Crown made no effort before
    the extradition judge to bring this situation within the exceptions; namely that
    compliance would cause harm to an interest deserving of court protection. The
    Crowns efforts now to justify its actions are not persuasive.

[78]

Given the narrow issues raised in the extradition context, the Crown may
    have had good reason to be concerned about the nature, extent and even the
    legality of the first disclosure order, concerns that may well have been
    exacerbated by the second order, particularly given that it required testimony
    by Crown lawyers.  However, these concerns did not justify the route it chose
    to take.  It had alternatives.  Since the Crown only objected to the
    correctness of the disclosure orders, it was required to comply with them. If
    the respondents were later discharged for reasons relating to the orders, the
    Crown could have challenged their correctness on appeal. If, however, the Crown
    had objected to the orders on the basis of privilege or harm to international
    relations, and had supported this objection with evidence, it could have
    refused to comply and appealed to this court. It did neither. Instead, without
    explanation, the Crown invited the extradition judge to end the proceedings.

[79]

This constitutes an unfair exercise of prosecutorial discretion and
    amounts to an abuse of process  an abuse that this court should not
    countenance by examining the merits of the impugned order.

[80]

The unsatisfactory nature of this disposition is palpable.     The
    charges are serious.   The

Crown

withdrew

fraud

charges

in

Canada

to

facilitate the extradition of the respondents to the
    United States.  However, the responsibility for the fact that there will now be
    no determination of the extradition request on its merits lies with the Crown.
    It chose to bring the proceedings to an end without explanation.  It then found
    itself in this court with a record that was devoid of evidence to justify the
    extraordinary procedure it chose to follow.

f.       disposition

[81]

It is on this basis that I would dismiss the appeal.

Released:

DD                                         Gloria
    Epstein J.A.

MAY 31 2012                          I
    agree Doherty J.A.

I
    agree S.T. Goudge J.A.

[1]

Treaty between the Government of Canada and the Government of the United
    States of America on Mutual Legal Assistance in Criminal Matters
, 18 March
    1985, Can. T.S. 1990 No. 19 (entered into force 24 January 1990).


COURT OF APPEAL FOR ONTARIO

CITATION:
United
    States v. Zawierucha, 2012 ONCA 352

DATE: 20120525

DOCKET: C54115

Goudge, Gillese and Ducharme JJ.A.

BETWEEN

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

Respondent

and

Miroslaw Zawierucha

Appellant

Vanessa Christie, for the appellant

Moiz Rahman, for the respondent

Heard: May 22, 2012

On appeal from the committal order of Justice MacDonnell
    of the Superior Court of Justice dated September 30, 2010.

APPEAL BOOK ENDORSEMENT

[1]

At the extradition hearing, the appellant was not represented by
    counsel. He sought an adjournment to permit him time in which to bring evidence
    to support his request that the court order counsel on his behalf. The
    extradition judge refused to grant the adjournment. The appellant argues in
    this court that the manner in which the extradition judge dealt with his
    adjournment request was not in accordance with the principles of fundamental
    justice.

[2]

We do not accept this submission.

[3]

The extradition judge was not bound either to grant the adjournment or
    appoint counsel for the appellant.  He was required to balance the necessary
    factors in coming to his decision and that was done. He considered the history
    of the proceeding, including previous adjournments. He also considered the fact
    that the case was not legally complex  the allegations against the appellant
    were straightforward and did not raise complex legal issues. Further, and
    significantly, the case for committal was overwhelming: there was no issue as
    to the threshold reliability of the evidence.

[4]

Further, we do not view the extradition judge as having discouraged the
    appellant from presenting arguments or evidence.

[5]

Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
United
    States v. Zawierucha, 2012 ONCA 353

DATE: 20120525

DOCKET: C54117

Goudge, Gillese and Ducharme JJ.A.

IN THE MATTER OF an application for judicial review pursuant
    to s. 57 of the
Extradition Act
, S.C. 1999, c. 18

BETWEEN

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

Respondent

and

Miroslaw Zawierucha

Applicant

Vanessa Christie, for the applicant

Moiz Rahman, for the respondent

Heard: May 22, 2012

On application for judicial review of the order of
    surrender of the Minister of Justice and Attorney General of Canada dated December
    14, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The applicant submits that the Minister exceeded his jurisdiction and
    denied him natural justice by ordering his surrender without the benefit of his
    having made written submissions to the Minister.

[2]

We do not accept this submission.

[3]

The applicant was made aware of his right to make submissions to the
    Minister during the extradition hearing. There is nothing in the record to
    suggest that he was unaware of his right to make submissions.  Further, there
    is no evidence that the applicant attempted to make a late submission to the
    Minister.  Nor is there any evidence that the applicant asked the Minister to
    reconsider his decision in light of the fact that he did not make submissions.

[4]

In the circumstances, we see no basis on which to hold that the
    applicant was denied natural justice by the Minister.

[5]

The application is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION:
Walcott v. York
    Condominium Corporation No. 41, 2012 ONCA 343

DATE:  20120523

DOCKET: C54830

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

BETWEEN

Anderson T. Walcott

Appellant

and

YCC 41 Corporation  Markham Glen Condominium,
    Julito Longkines, Victor Walker, Mrs. A. McCulloch and Gerry Hyman

Respondents

Anderson T. Walcott, appearing in person

Richard Worsfold, appearing for the respondents

Heard:  May 18, 2012

On appeal from the order of Justice Hainey of the Superior
    Court of Justice, dated December 23, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The appellant is not an owner as defined in the Condominium Act. Thus,
    he did not have standing to bring the application.

[2]

The appeal is dismissed.

[3]

The appellant shall pay the respondents costs fixed in the amount of
    $3,000, inclusive of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION:
Walters v. Lucas, 2012
    ONCA 369

DATE: 20120531

DOCKET: C54711

Winkler C.J.O., Armstrong and Watt JJ.A.

BETWEEN

Kevin Scott Walters

Plaintiff (Respondent)

and

Brisette Lucas aka Brisette
    Gantt

Defendant (Appellant)

Gil Zvulony, for the respondent

Brisette Gantt, acting in person

Heard:  May 24, 2012

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice, dated November 3, 2011 with reasons reported at
    2011 ONSC 6540, [2011] O.J. No. 4902, and the cost order made on December 12,
    2011 with reasons reported at 2011 ONSC 7393, [2011] O.J. No. 5837.

APPEAL BOOK ENDORSEMENT

[1]

There is no jurisdiction in this court to hear the instant appeal in
    that the amount in issue is less than $50,000.  Accordingly, we transfer this
    appeal to the Divisional Court.

[2]

In addition to the above, we were provided with a copy of an order of
    the Supreme Court of the State of New York entered on February 8, 2012, that
    the default judgment against the appellant was vacated and the complaint
    against the appellant was dismissed for lack of jurisdiction.  We were also
    advised that there are continuing proceedings in this matter.  This information
    will have to be clearly set out for the Divisional Court as the present
    materials are deficient in this respect.