COURT OF APPEAL FOR ONTARIO

CITATION:
Georgian Properties Corporation v. Robins Appleby LLP, 2022
    ONCA 245

DATE: 20220328

DOCKET: C69443

Simmons, Pardu and Brown JJ.A.

BETWEEN

Georgian Properties Corporation

Plaintiff (Appellant)

and

Robins Appleby LLP, Leor
    Margulies and Anthony Romanelli

Defendants (Respondents)

Milton Davis and Ronald Davis, for the
    appellant

Peter Wardle and Evan Rankin, for the
    respondents

Heard: February 9, 2022 by
    video conference

On appeal from the judgment of Justice Grant
    R. Dow of the Superior Court of Justice, dated May 6, 2021, with reasons
    reported at 2021 ONSC 1591.

REASONS FOR DECISION

[1]

The appellant, Georgian
    Properties Corporation, appeals from a summary judgment dismissing its negligence
    action against the respondent lawyers
as statute barred under s. 4 of the
Limitations
    Act, 2002
, S.O. 2002, c.
    24, Sched. B (the Act).

[2]

The negligence claim
    arose from the respondent lawyers work in preparing disclosure documents, two
    mortgages and a promissory note for the developer of a condominium project that
    was registered in 2010. Once the condominium was turned over to the unit
    holders, the condominium corporation refused to pay the two mortgages and the
    promissory note. Litigation ensued. The condominium corporation attacked the
    adequacy of the disclosure documents in a factum delivered in June 2017. On
    July 7, 2017, a judge declined to strike the factum. In May 2018, the same
    judge held that the disclosure documents were insufficient, that the two
    mortgages and the promissory note were oppressive and that the promissory note also
    violated the
Condominium Act, 1998
, S.O. 1998, c. 19 (the
Condominium Act
).
    She accordingly reduced the principal amount of the two mortgages and held the promissory
    note was void.

[3]

Georgian Properties
    commenced its negligence action against the respondent lawyers in November
    2019. On a summary judgment to address the limitation issue, the motion judge concluded
    that the appellant knew or ought to have known no later than July 7, 2017, when
    a judge declined to strike the condominium corporations factum, that it had a
    claim against the respondent lawyers for which a proceeding was an appropriate
    remedy.

[4]

For the reasons that
    follow, we allow the appeal.

Background

[5]

Georgian Properties
is the successor
[1]
to a developer that, in 2010,
    completed development of a Scarborough residential condominium.

[6]

The condominium was
    registered as Toronto Standard Condominium Corporation No. 2051 (TSCC 2051)
    on February 1, 2010. On April 12, 2010, the original developer-controlled TSCC
    2051 board of directors was turned over to an elected unit holders board of
    directors (the Board turnover).

[7]

The respondent lawyers
    acted for the developer in relation to the development of the condominium
    project and the sale of individual units.

[8]

As part of their retainer,
    the respondents drafted various documents relating to the condominium project, including:
    disclosure documents for distribution to potential unit purchasers; agreements
    of purchase and sale for unit purchasers; and the following two vendor-take-back
    mortgages and a promissory note from TSCC 2051 to the developer that were
    entered into prior to the Board turnover:

·

a multi-year mortgage in the amount of $2,122,000
    plus 10% annual interest for the cost of HVAC system components sold by the
    developer to TSCC 2051 to be installed in individual residential units but form
    part of the common elements (the HVAC mortgage);

·

a multi-year mortgage in the amount of
    $1,026,375 plus 10% annual interest relating to surplus parking spaces and
    storage units sold by the developer to TSCC 2051 (the parking unit mortgage);
    and

·

a promissory note for $90,034.26 plus 12% annual
    interest to cover the cost of land transfer tax paid by TSCC 2051 when the developer
    transferred the condominium to TSCC 2051 (the promissory note) (the foregoing
    will be collectively referred to as the "debt instruments).

[9]

Following the Board
    turnover, TSCC 2051 refused to make payments to the developer or its successors
    on account of the debt instruments.

[10]

On September 20, 2011,
    TSCC 2051 sued the developer and its principals and successors (hereafter, collectively
    the developer). TSCC 2051 advanced several claims, including negligence,
    breach of contract and breach of warranty relating to construction deficiencies.
    In addition, TSCC 2051 requested declarations that the HVAC mortgage, the
    parking unit mortgage and the promissory note were null and void, alleging overpricing,
    oppression
[2]
and failure to comply with the
Condominium Act
. In a statement of defence and
    counterclaim, the developer counterclaimed for enforcement of the debt
    instruments. Among other things, in relation to the enforceability of the debt
    instruments, the developer asserted it had made proper disclosure as required
    under the
Condominium Act
.

[11]

Prior to the
    developers 2016 bankruptcy, an agreement was reached under which:

·

the claim for construction deficiencies was
    settled;

·

the debt instruments were assigned to Georgian
    Properties;

·

Georgian Properties was entitled to pursue the
    counterclaim for enforcement of the debt instruments and would be bound by the
    decision in the action concerning their validity and enforcement; and

·

the claims and counterclaim concerning the debt
    instruments would be dealt with by summary judgment motion.

[12]

Prior to the scheduled
    summary judgment motion, TSCC 2051 sought leave to amend its statement of claim
    to add, among other things, claims that the condominium disclosure documents were
    inadequate. On May 3, 2016, a master permitted the amendments. On December 15,
    2016, a Superior Court judge overturned the masters decision regarding the
    disclosure documents and disallowed those amendments.

[13]

The parties subsequently
    exchanged factums addressing the validity and enforceability of the debt
    instruments for the summary judgment motion. In its factum seeking judgment for
    payment of the debt instruments, Georgian Properties claimed the debt
    instruments had been properly disclosed under the
Condominium
    Act
. In a responding
    factum, TSCC 2051 attacked the adequacy of the disclosure documents.

[14]

On July 5, 2017,
    Georgian Properties moved to strike TSCC 2051s factum. On July 7, 2017,
    Akbarali J. declined to strike the TSCC 2051 factum paragraphs alleging
    inadequate disclosure. She ruled that as Georgian Properties was relying on the
    adequacy of its disclosure documents, it would be unfair to preclude TSCC
    [2051] from joining in those issues.

[15]

In November 2017, Georgian
    Properties rejected an offer to settle from TSCC 2051 for $3,500,000.

[16]

The summary judgment
    motion was argued before Akbarali J. on April 3-4, 2018.

[17]

While the decision on
    the summary judgment motion was under reserve, Georgian Properties offered to
    settle the action for $6,000,000.

[18]

Subsequently, on May 31,
    2018,
Akbarali J. found the developers
    disclosure with respect to the debt instruments insufficient. She held that the
    HVAC mortgage was oppressive based on the reasonable expectations of the
    purchasers concerning what was included in their purchase. She reduced the principal
    amount from $2,122,000 to $652,050.

[19]

Based on expert opinion
    concerning the value of unsold parking spaces and storage units, Akbarali J. also
    found the parking mortgage oppressive and reduced the principal from $1,026,375
    to $73,000.

[20]

Finally, Akbarali J.
found the
$90,034.26
promissory note oppressive and contrary to s. 56(3) of the
Condominium Act
and set it aside in its entirety.

[21]

In the result,
Akbarali J.
found TSCC 2051 owed Georgian Properties approximately
    $1,625,000 for principal and accrued interest in relation to the debt
    instruments out of roughly $7,000,000 that had been claimed. This court upheld
    her decision on January 24, 2019.

[22]

On November 19, 2019, the
    appellant issued its statement of claim alleging the respondent lawyers were
    negligent in preparing disclosure documents for the condominium project and in
    providing advice concerning the debt instruments.

Relevant Provisions of the Act

[23]

Section 4 of the Act
    sets out the basic limitation period of two years from the date a claim was
    discovered:

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

[24]

Claim is defined in
    s. 1 to mean, a claim to remedy an injury, loss or damage that occurred as a
    result of an act or omission.

[25]

Sections 5(1) and (2)
    set out the basic principles governing discovery of a claim:

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

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

i.

that the injury, loss or damage had occurred,

ii.

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

iii.

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

iv.

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

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

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

The Motion Judges Decision on the Limitation
    Issue

[26]

The parties agreed that
    the limitation issue could be disposed of by way of summary judgment motion.

[27]

The motion judge rejected
    Georgian Properties argument that it did not suffer a loss until Akbarali J.s May
    2018 decision. He found that Georgian Properties was suffering a loss as of April
    2010 when TSCC 2051 refused to make payments under the debt instruments. He
    further held that Georgian Properties knew or ought to have known it had a
    claim against the respondent lawyers for which a proceeding was the appropriate
    remedy no later than July 7, 2017, when Akbarali J. refused to strike portions
    of TSCC 2051s factum alleging inadequate disclosure.

The Appellants Position on Appeal

[28]

On appeal, Georgian
    Properties submits the motion judge erred in holding it was suffering a loss
    when TSCC 2051 refused to make payments on the debt instruments. It contends
    that mere default on a fully secured mortgage or debt instrument does not give
    rise to injury, loss or damage under s. 5(1)(a)(i) of the Act. It reiterates
    its position in the court below that it suffered no injury, loss or damage
    until Akbarali J.s May 2018 decision. Moreover, it asserts it would have no
    cause of action until that finding. Nor would a proceeding be an appropriate
    means to seek a remedy under s. 5(1)(a)(iv) of the Act until that finding was
    made.

The Respondents Position on Appeal

[29]

The respondent lawyers argue
    that injury, loss or damage within the meaning of s. 5(1)(a)(i) of the Act occurred
    when the debt instruments were first given or, in the alternative, when TSCC
    2051 refused to make payments under the debt instruments. They point to
Central Trust v. Rafuse
, [1986] 2 S.C.R. 147, involving a mortgage that was
    found to be void
ab initio
. However, the court noted, at p. 219, that
    the usual date for damage to occur in a solicitors negligence case is at the
    time of the solicitors breach of duty. See also
Hamilton
    (City) v. Metcalfe & Mansfield Capital Corporation
, 2012 ONCA 156, at para. 49, where this
    court observed that the determination in
Central
    Trust
as to when damage
    occurred was premised on the mortgagee receiving something less valuable than
    what it had transacted for as a result of the solicitors negligence.

[30]

In this case, Akbarali J.
    found the debt instruments oppressive. The respondent lawyers submit the debt
    instruments were thus worth less than their true value from the outset and that
    is when Georgian Properties suffered injury, loss or damage. Accordingly, the
    real question is when Georgian Properties discovered, or ought reasonably to
    have discovered, that injury, loss or damage had occurred.

[31]

Relying on
Grant Thornton LLP v. New Brunswick
, 2021 SCC 31, at para. 42, the respondent
    lawyers submit that Georgian Properties negligence claim against them was
    discoverable when it had knowledge, actual or constructive, of the material
    facts upon which a plausible inference of liability on [the respondent
    lawyers] part [could] be drawn.

[32]

The respondent lawyers
    submit the motion judge found as a fact that the loss or damage was
    discoverable on July 7, 2017 when Akbarali J. declined to strike TSCC 2051s
    factum alleging insufficient disclosure. Moreover, they assert that finding, as
    set out below, is subject to deference on appeal:

Clearly, as of the Endorsement of Justice
    Akbarali on July 7, 2017, [Georgian Properties] was specifically made aware a
    reason for the dispute was the prospect that the disclosure to unit holders was
    inadequate and the Promissory Note was void. Equally clear, the loss it was
    facing could be the result of an act or omission of the individuals or law firm
    that drafted the documents [Georgian Properties] was relying on. That is, if
    TSCC 2051s defence and allegations were correct, [Georgian Properties] had a
    claim against [the respondent lawyers] for any shortfall in its recovery.

[33]

Further, once Georgian
    Properties claim was discoverable, it was not entitled to wait and see the
    result of the summary judgment motion concerning the enforcement and validity
    of the debt instruments. A proceeding was appropriate under s. 5(1)(a)(iv) of
    the Act once Georgian Properties knew the material facts upon which a plausible
    inference of liability could be drawn.

Discussion

[34]

We accept Georgian
    Properties position that the motion judge erred in law in holding it had
    suffered a loss when TSCC 2051 failed to make payments under the debt
    instruments.

[35]

The injury, loss or
    damage at issue under s. 5(1)(a)(i) of the Act must be caused by or contributed
    to by an act or omission of the defendant in the action: s. 5(1)(b) and
    (c) of the Act.

[36]

In an action for
    solicitor negligence, the question whether injury, loss, or damage has occurred
    within the meaning of s. 5(1)(a)(i) will not generally turn on compliance by
    third parties with their obligations under documents or instruments prepared by
    the solicitor. The fact that the mortgages in this case were fully secured
    illustrates the point. Had the mortgages in this case been valid and fully
    enforceable, Georgian Properties could have recovered the full amount owing to
    it by enforcing its security. No loss would have occurred even though the
    mortgages had remained unpaid for many years.
[3]

[37]

In a solicitor
    negligence case such as this, the question of whether injury, loss or damage
    has occurred must turn on matters such as the validity and enforceability of the
    documents and instruments that were prepared.

[38]

However, even assuming the
    respondent lawyers position that injury, loss or damage occurred when the debt
    instruments were given is correct, we are satisfied that the motion judges erroneous
    finding that Georgian Properties was suffering a loss when TSCC 2051 failed to
    pay skewed his analysis of when Georgian Properties ought to have discovered
    its injury, loss or damage.

[39]

It is well-established
    that the question when a party has, or ought to have, discovered a claim under
    s. 5 of the Act requires a fact-based analysis dependent on the circumstances
    of each case:
Kaynes v. BP p.l.c.
, 2021 ONCA 36, at para. 56;
Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors
, 2012 ONCA 851, 113 O.R. (3d) 401, at
    paras. 71-2;
Lipson v. Cassels Brock &
    Blackwell LLP
, 2013 ONCA
    165, 114 O.R. (3d) 481, at paras. 76-77, 84.

[40]

Here, a predominant feature of the motion
    judges discoverability analysis was his finding that Georgian Properties had
    suffered a loss by virtue of TSCCs non-payment of the debt instruments.
    Examined through that lens, given that the loss had crystalized and was obvious,
    the motion judge moved easily to a conclusion that Georgian Properties ought to
    have discovered its claim, at the latest, when Akbarali J. refused to strike
    TSCC 2051s factum attacking the sufficiency of the disclosure documents, which
    had been prepared by the respondent lawyers.

[41]

However, once it is recognized the motion
    judges finding that Georgian Properties suffered a loss when TSCC 2051 failed
    to pay the debt instrument is incorrect, the discoverability analysis must become
    more nuanced. Even assuming the respondent lawyers are correct that loss
    occurred when the debt instruments were given because they were ultimately
    found to be oppressive, the loss had not crystalized as of July 7, 2017 when
    Akbarali J. declined to strike TSCC 2051s factum. Considered in that context,
    the issue of Georgian Properties reasonable expectation of success on its
    counterclaim to enforce the debt instruments takes on greater significance. Even
    if the respondent lawyers breached the standard of care in relation to disclosure,
    no injury, loss, or damage would be caused by their conduct if the debt
    instruments remained valid and enforceable.

[42]

The principals of Georgian Properties gave
    unchallenged evidence that they expected to be successful on their counterclaim
    to enforce the debt instruments. No issue of implied waiver of privilege was
    raised and there is no indication in the record that anyone advised them
    otherwise. Their stance in rejecting an offer to settle for $3,500,000 and
    offering to settle for $6,000,000 supports the credibility of their claim.

[43]

Further, the circumstances of this case are
    unusual. TSCC 2051 did not raise the issue of inadequate disclosure in its
    original 2011 statement of claim. When it attempted to amend its pleadings to
    add that claim in 2016, its request was denied. Nonetheless, it was permitted
    to raise the issue in a 2017 factum. However, inadequate disclosure was only
    one facet of TSCCs arguments in the factum and Georgian Properties advanced
    arguments in response.

[44]

Given the overall circumstances of this case, we
    are not persuaded the record demonstrates Georgian Properties, or a reasonable
    person with its abilities and in its circumstances, had all the material facts
    necessary to draw a plausible inference of liability with respect to any
    potential negligence claim against the respondent lawyers prior to November 19,
    2017.

[45]

In general, the mere fact that allegations are
    made in a proceeding that could trigger a claim for solicitor negligence if
    successful should not automatically signify that the requirements of s. 5(1) of
    the Act are met and that the party with the potential claim must immediately
    commence action against the solicitor(s). Further investigation and assessment may
    be required. To hold otherwise could lead to costly and unnecessary litigation.

[46]

Here, the allegations were made in a factum delivered
    many years after the proceeding had been commenced, had previously been
    foreclosed on appeal and were only one facet of the arguments advanced. To conclude
    that Georgian Properties ought to have drawn a plausible inference that it had
    suffered a loss and recognized that a proceeding was an appropriate remedy
    between July 7, 2017 and November 18, 2017 would, in our view, be unreasonable.
    In our view, the motion judges conclusion that
the appellant knew or ought to have known no later
    than July 7, 2017 that it had a claim against the respondent lawyers for which
    a proceeding was an appropriate remedy was tainted by his incorrect conclusion
    that loss occurred when TSCC 2051 stopped paying the debt instruments. There is
    no suggestion on this record that there was any tactical reason for not
    starting the action earlier, or that proceeding in this manner inappropriately
    fragmented the resolution of the issues, by litigating in installments.

Disposition

[47]

Based on the foregoing reasons, the appeal is
    allowed, the motion judges order dismissing the action is set aside and
    summary judgment is granted to Georgian Properties dismissing the respondent
    lawyers limitation defence.

[48]

Costs of the appeal are to Georgian Properties
    on a partial indemnity scale fixed in the amount of $50,000 inclusive of
    disbursements and HST.

Janet Simmons J.A.

G. Pardu J.A.

David Brown J.A.

[1]
The developer and a successor company declared bankruptcy in 2016.
    Georgian Properties is an assignee of the debt instruments forming the subject
    matter of the negligence claim against the respondent lawyers. It is also a
    bankruptcy creditor of the developer and its successor.

[2]
The oppression claim was added by an October 31, 2011 amendment.

[3]

We would observe that the prescription periods for an action
    by a mortgagee against a mortgagor generally are governed by the
Real Property Limitations Act
, R.S.O.
    1990, c. L.15, not the
Limitations Act,
    2002
.


COURT OF APPEAL FOR ONTARIO

CITATION: Tokarz v. Selwyn (Township), 2022
    ONCA 246

DATE: 20220325

DOCKET: C68519

Pepall,
    Thorburn and Coroza JJ.A.

BETWEEN

Edward
    Tokarz and Jacqueline Tokarz

Plaintiffs (Respondents)

and

Cleave Energy Inc. and

The Corporation of the Township of Selwyn

Defendants (
Appellant
)

Lesley
    Albert and Michael Connolly, for the appellant The Corporation of the Township
    of Selwyn

David A. Morin and Peter Reinitzer, for
    the respondents Edward and Jacqueline Tokarz

Heard: February 4, 2022 by
    video conference

On appeal from the order of Justice Hugh
    K. OConnell of the Superior Court of Justice, dated February 17, 2021, with
    reasons reported at 2020 ONSC 4115.

Thorburn J.A.:

I.

OVERVIEW

[1]

The appellant, The Corporation of the Township
    of Selwyn (the Township) issued a building permit that allowed Cleave Energy
Inc. (Cleave)
to install a metal roof and
    solar panels on the respondents, Edward and Jacqueline Tokarzs, barn.

[2]

The Township admitted that its actions fell
    below the requisite standard of care because: (a) it did not require an
    engineer to review the solar panel installation before closing the building
    permit as required under the provisions of the Ontario
Building Code
,
    O.Reg. 350/06 (the Building Code) and (b) failed to note that the method of
    connecting the solar panel rails to the roof did not match the design. The
    trial judge held that the Township was liable for 45% of the respondents total
    damages of $
918,084.30
. This
    amounted to $413,137.93.

[3]

The Township challenges both the apportionment
    of damages as between the Township and Cleave, and the damage award.

[4]

The Township claims it was held to an unreasonably
    high standard of care as though it were an insurer of the barn. The Township
    claims its only duty was to inspect the respondents barn to
prevent risks to the occupants health and safety
and
    that, because the defects in the barn installation posed little or no risk to
    health and safety, the Township should only have been held responsible for 15%
    of the losses. The Township claims
this
apportionment is consistent with the apportionment of liability
    against municipalities in other similar cases.

[5]

The Township also challenges the total quantum
    of damages awarded to the respondents. It claims that the trial judge provided
    no reasons to support the quantum of damages and simply accepted the damage
    award put forward by the respondents expert, Mr. Koerth. The Township claims
    the evidence the trial judge relied on was not evidence proffered by Mr. Koerth,
    but the evidence of another of the respondents experts, Mr. Pitre. Unlike the
    Townships estimate, Mr. Pitres estimate was unsubstantiated and unsupported
    by other evidence.

[6]

For the reasons that follow, I would dismiss the
    appeal with respect to the apportionment of liability to the Township, but
    allow the appeal with respect to the quantum of damages. I would remit the case
    to the Superior Court for an assessment of quantum of damages.

II.

BACKGROUND

[7]

The respondents, Edward and Jacqueline Tokarz,
    commenced an action in negligence against their contractor, Cleave, and the
    Township.

[8]

They claimed that Cleave provided defective
    workmanship on their commercial-size barn roof and solar panel system.

The Barn Design and Installation

[9]

The respondents barn design called for a large
    solar array to be mounted on the metal roof of a wooden barn structure. The panels
    for the solar array were to be placed at an angle that would best capture the
    photovoltaic energy of the sun.
The barn was to be
    built to support approximately 1155 solar panels along with the required
    racking, inverters, panels, disconnects and wiring.

[10]

The solar system was meant to be part of the
    Ontario governments Feed In Tariff program
, regulated
    by the Independent Electricity System Operator (IESO), formerly the Ontario
    Power Authority.
The respondents planned to generate
    income from the power they produced from their solar system.

[11]

Cleave installed the solar system on the
    respondents farm in July 2011. The installation passed final building
    inspection by the Townships municipal inspector on July 28, 2011, and the
    permit to construct was granted on that date.

Deficiencies in the Barn Construction

[12]

The parties agree that, in the words of the trial
    judge, Cleave botched the solar panel installation in the following ways: (i)
    the solar panel rail-to-roof connections installed by Cleave did not match the
    design Cleave filed with the municipal permit application; and (ii) the improper
    installation of the rail-to-roof connections resulted in many problems,
    including excess holes in the roof, damage to the wood structure underlying the
    roof, bolts hanging exposed in the air on the underside of the wood panels,
    brackets perforating the steel roof, and leakage due to inadequate sealing of
    the perforations.

Selwyns Position at Trial in Respect of the
    Negligence Claim

[13]

Cleave entered into a
Pierringer
Agreement with the respondents such that the respondents claim against Cleave was
    settled before the trial began. The claim against the Township therefore proceeded
    but
Cleave did
    not participate in the trial.

[14]

At trial, the Township admitted that the actions
    of its building department personnel were negligent. The Township did not have an
    engineer review the solar panel installation prior to closing the building
    permit, as it was required to do by
s. 5.6.2.1 of
    Division B, Part 5, of
the
Building Code
.
Consequently, the Township failed to note on
    final inspection that the method of connecting the solar panel rails to the
    roof did not match the design. It also failed to note obvious deficiencies in
    the work done by Cleave.

[15]

The Township did not call its engineer to
    testify at trial. Instead it provided a $428,834.45 total repair estimate prepared
    by its expert Mr. Peter Ewald, who was a solar panel system installer. He provided
    expert costing opinion evidence based on the respondents engineers scope of
    repair.

III.

THE TRIAL JUDGES REASONS

[16]

As noted by the trial judge, the Township
    admitted its negligence:

The Township of Selwyn had a duty to inspect
    the barn and the solar array. Yet the installation proceeded without
    appropriate municipal oversight. There were, as the plaintiff argues, obvious
    deficiencies in the work of Cleave Contracting, that the Township failed to
    have inspected as required by an engineer. Those deficiencies were not
    addressed, and the consequent issues with the roof of the barn and the solar
    array were not rectified.

As indicated the Township does not suggest
    that it acted as it should have pursuant to the
Building Code
and
    concedes its negligence subject to apportionment of liability...

[17]

The trial judge therefore focused on the
    apportionment of liability and the quantum of damages.

[18]

He concluded that, in respect of the
    apportionment of liability:

[A]s the party tasked with building the solar
    array and the componentry of that array that [Cleave] should bear 55% of the
    liability for damages. I made this determination on the basis that
but for
    their originating construction flaws, the damage would not have occurred
.
    But that is not the end of the inquiry.

The Township was negligent. That is admitted.
A
    proper inspection would have staunched the issue of the poor construction
.
    The Township abrogated its role under the
Ontario Building Code
. It
    failed to do the most significant factor it was called upon to do, have this
    inspected by an engineer. The Township did not do so.
The Township even
    closed the permit, knowing that the inspection was not done by an engineer
.

As a consequence,
Cleave was never faced
    with Orders to Comply or to render the installation safe
. Cleave would have
    been under the clear impression that it was proceeding appropriately and with
    Township approval.

I have considered the caselaw as provided by
    the parties.
Apportionment of liability I found should be visited 45%
    against [the Township
]. I made this determination largely based on the
    argument of the plaintiffs in their Closing Statement at paragraphs 180-195
    with the caveat that I disagreed with the plaintiffs that Cleave should be
    fixed with liability in the amount of 10%.

To have done so would have excused Cleave from
    its contributory share of liability as the contractor. But that does not negate
    the larger apportionment of liability upon [the Township] based on its
    violation of the
Building Code
provisions.

A municipality must abide the building code
    provisions. The reason is the very essence of the
Code
requirements
    placed upon the municipality.
My attribution of 45% liability recognizes, I
    hope, the nature of the negligence of the municipality in this case in the
    context of the facts of this case
. The municipalitys conduct, or better
    put,
its omission and failure to staunch the negligence of Cleave, mandates
    attribution of liability in conjunction with my assessment of the case law in
    this amount
. [Emphasis added]

[19]

In his assessment of the quantum of damages, the
    trial judge accepted the evidence of the respondents expert and held that,

I have carefully considered the parties
    submissions and the evidence. I state unequivocally that the plaintiffs expert
    Mr. Koerth defines what a Rule 53 expert is. His evidence was challenged in
    depth by the defendant. He provided objective and fair evidence. His knowledge
    of the case was thorough. Mr. Koerth was not in the arena as a combatant, as
    sometimes happens when expert opinions are challenged.

Inevitably I had to ask myself what is
    required to put the plaintiffs in the position that they would have been in but
    for the negligence of others.

I agree with the plaintiffs that the
damages
    as estimated by [their expert] Mr. Koerth are appropriate
,  on the
    assumption that the work to remediate can be done in the Fall. The Fall work
    allows for less loss of income given that the saturation of the solar energy
    that can convert to electricity is less in the Fall months.

His damage estimates accord with the best
    route to take the Tokarzs whole again and put them in a position which they
    should have been in
: having a large pole barn and a
    very large solar array to generate income for many years to come without the
    very significant compromises due to construction defects and Municipal
    negligence in not discharging its role under the
Ontario Building Code
.

In this respect I do not agree with the
    position of the Township that the Township's breach of the applicable standard
    of care does not extend to the cost of roof replacement. The Township was aware
    that the roof not only provided the usual reasons for a roof, namely shelter in
    a dry and safe environment, but was also a support system for the solar panel
    racking and the not insignificant weight of those panels. This was a very large
    solar array with the potential to generate substantial income for the plaintiffs.

Simply put, Mr. Koerths evidence and his
    numbers

accord with what I find are required repairs to put the Tokarz
    in the position that they would have been in but for the negligence as admitted
    and proven. The Court has not simply ignored the evidence of the defendants but
    has juxtaposed it with that of the evidence of the Tokarz expert
. Mr. Koerth in coming to the conclusion that it has. Anything less,
    I find would fix upon the plaintiffs costs that they simply should not bear
    now or in future with respect to this issue. [Emphasis added]

[20]

The trial judge held that the total damages were
    $918,084.30 and ordered the Township to pay 45%, or $413,137.93.

IV.

THE ISSUES RAISED BY THE APPELLANT

[21]

The issues raised by the appellant Township are:

i.

Did the trial judge apply an incorrect scope of
    duty and standard of care to the Township for failure to comply with the
    inspection provision in the
Building Code

which caused him to
    err in his apportionment analysis?

ii.

Did the trial judge err in his apportionment of
    liability? and

iii.

Did he err in assessing the quantum of damages?

V.

ANALYSIS

The First Issue: Scope of Duty and The
    Standard of Care

[22]

The trial judge found that the Township breached
    its duty of care by failing to inspect the work done, signed off on the work,
    and abrogated its role under the
Building Code
. The Township submits
    that its duty is narrow when inspecting a building: it has a duty to ensure
    that there are no deviations from the
Building Code
that could affect public
    health and safety.

[23]

The
Township
relies on
Ingles v. Tutkaluk Construction
    Ltd.
, 2000 SCC 12, [2000] 1 S.C.R. 298, at para.
    23, wherein Bastarache J. for the court discussed the purpose of the
Building
    Code
:

The legislative scheme is designed to ensure
    that uniform standards of construction safety are imposed and enforced by the
    municipalities.
The purpose of the building inspection scheme is clear from
    these provisions: to protect the health and safety of the public by enforcing
    safety standards for all construction projects
. The province has made the
    policy decision that the municipalities appoint inspectors who will inspect
    construction projects and enforce the provisions of the Act. Therefore,
    municipalities owe a duty of care to all who it is reasonable to conclude might
    be injured by the negligent exercise of their inspection powers. [Emphasis
    added]

[24]

In
White v. The Corporation of the Town of
    Bracebridge
, 2020 ONSC 3060, 4 M.P.L.R. (6th) 271, at para. 48, DiTomaso
    J. explained that,

The
Ontario Building Code

provides
    minimum standards for construction so that owners of houses will be safe from
    poor construction
. The standard of care is, at a minimum, the
Ontario
    Building Code
s requirements.

At trial, Mr. Koerth testified that the minimum standards in Part IX
    of the
OBC
could not be ignored without risking the safety of the
    buildings occupants. [Emphasis added]

[25]

Contrary to the Townships assertion, the trial
    judge did not suggest that the mere existence of defects was sufficient to hold
    the Township liable. Rather, the Township was held liable for failing to
    perform the inspection it was required to conduct under the
Building Code
,
    resulting in the failure to identify and order the deficiencies to be remedied.

[26]

In any event, the trial judge was clearly alive
    to the purpose of the
Building Code
, and held that, Water and panels
    that are not installed properly are anathema to safety in this paradigm. He found
    as a fact that, This barn is not a safe haven with these defects. In
    addition, the respondents expert, Mr. Koerth, testified that he had concerns
    about the risk of fire.

[27]

For these reasons, I do not agree that the trial
    judge misapprehended the  scope of the appellants duty of care.

The Second Issue: Apportionment of
    Liability

[28]

The Township claims that the trial judge offered
    no authority to support his apportionment of liability.

[29]

The Township therefore claims that the trial
    judges decision to apportion 45%
of
the damages to the Township constitutes a palpable and overriding
    error given the minimal likelihood of harm to health or safety that arose from
    its negligence. The Township further claims that 45% is outside the range of
    liability usually imposed on municipalities.

[30]

Sections 1 and 3 of the
Negligence Act
, R.S.O. 1990, c. N.1, provide
    that:

1
Where damages
    have been caused or contributed to by the fault or neglect of two or more
    persons, the court shall determine the degree in which each of such persons is
    at fault or negligent, and, where two or more persons are found at fault or
    negligent, they are jointly and severally liable to the person suffering loss
    or damage for such fault or negligence, but as between themselves, in the
    absence of any contract express or implied, each is liable to make contribution
    and indemnify each other in the degree in which they are respectively found to
    be at fault or negligent.

3.
the court
    shall apportion the damages in proportion to the degree of fault or negligence
    found against the parties respectively.

[31]

Apportionment of liability is an inquiry into
    which party failed most markedly to live up to their expected standard of care:
Parent v. Janandee Management Inc.
, 2017 ONCA 922, at para. 15. The
    court in
Ingles
at para. 57 held that,

The apportionment of liability is primarily
    a matter within the province of the trial judge
.
    Appellate courts should not interfere with the trial judges apportionment
    unless there is demonstrable error in the trial judges appreciation of the
    facts or applicable legal principles. [Emphasis added]

[32]

Likewise, this
court in
Banihashem-Bakhtiari v. Axes Investments Inc.
(2004), 69 O.R. (3d) 671 (C.A.), leave to appeal refused, [2004]
    S.C.C.A. No. 145, at para. 8, held that,
A
    re-apportionment of liability sought on appeal will only be granted in strong
    and exceptional cases.

[33]

In
Ingles,
the court

held that
    when

conducting a building inspection pursuant to the
Building
    Code
, the city was not required to discover every latent defect in
    construction; it is, however, required to conduct a reasonable inspection in
    light of all of the circumstances and it will be liable for those defects
    that it could reasonably be expected to have detected and to have ordered
    remedied:
Ingles
at paras. 20 and 40.

[34]

In this case, the trial judge held that a
    proper inspection would have staunched the issue of the poor construction; in
    other words, had the Township performed an inspection to the standard required
    of it, it would have detected the construction defects that gave rise to the
    respondents damages.
Instead,

the Township
failed to properly inspect the
    property and Cleave was never faced with Orders to Comply or to render the
    installation safe.

[35]

A township falls well below the required
    standard of care when it fails to properly review an application for a
    building permit, thereby completely failing to discharge its duty to enforce
    the
Building Code
for the health and safety of the public:
Breen
    v. The Corporation of the Township of Lake of Bays
, 2021, 153 O.R. (3d)
    514, at paras. 92-93 and 115. The failure to properly review building plans in
    circumstances like these is a marked departure from the standard of care:
Mortimer
    v. Cameron
(1994), 9 M.P.L.R. (2d) 185 (Ont. Gen. Div.); revd in part
    (1994) 17 O.R. (3d) 1 (C.A.); leave to appeal refused, [1994] S.C.C.A. No. 150.

[36]

In such cases, trial judges are afforded wide
    discretion in apportioning damages.

[37]

In this case, the trial judge held the Township
    responsible for 45% of the damages to the barn.

[38]

Moreover, the Townships claim that it is not
    clear it would have issued an order to comply against Cleave even if it had
    discovered the defects in the installation, is belied by the testimony of the
    Townships Chief Building Official that I would have involved the contractor
    and perhaps the owner as well.

[39]

Whether the order was sent to the owner or the
    contractor, it is clear that Cleave, as the contractor, would have been made
    aware of the existence of the need to comply, had such an order been given, to ensure
    the building was safe.

[40]

In this case, the Township failed to
properly review the application for a building permit and discharge
    its duty to enforce the
Building Code
for the health and safety of
    the public
by conducting a reasonable inspection as
    required by the
Building Code
. The Township allowed the permit to be issued without performing an
    inspection that would, on the findings of the trial judge, have staunched the
    poor construction which led to the respondents damages.

[41]

The trial judge considered the case law provided
    to him. Contrary to the
Township
s submission, in some circumstances, liability has been imposed on
    municipalities of between 50 and 100
%: See
Wood v. Hungerford (Township)
(2004)
,
3 M.P.L.R. (4th) 38 (Ont. S.C.),
    revd on other grounds (2006) 24 M.P.L.R. (4th) 45 (Ont. C.A.)
;
Riverside Developments Bobcaygeon Ltd.
    v. Bobcaygeon (Village)
(2004)
,
45 M.P.L.R. (3d) 107 (Ont. S.C.),
    affd (2005) 30 M.P.L.R. (4th) 29 (Ont. C.A.);

Chapeskie v. Lake of Bays
(1999), 3
    M.P.L.R. (3d) 233 (Ont. S.C.) and
Breen
.

[42]

The trial judges apportionment of liability was
    not based on a palpable and overriding error of fact or incorrect
    interpretation of the law. Nor was there a flawed assessment of the Townships
    conduct. As such, and keeping in mind the substantial deference owed to trial
    judges in the apportionment of liability absent an error of law or
    misapprehension of fact, I find no palpable and overriding error and would
    reject this ground of appeal.

The Third Issue: Quantification of Damages

[43]

A damages award is meant to be compensatory, to
    put the plaintiffs in the same position they would have been in but for the
    negligence of the other party:
Athey v. Leonati
, [1996] 3 SCR 458, at
    para. 32.

[44]

A trial judges quantification of damages
    attracts significant deference
:
de Montigny v.
    Brossard (Succession)
, 2010 SCC 51, [2010] 3 S.C.R. 64, at para. 27.

[45]

The trial judge is presumed to have considered
    the evidence in its entirety, absent proof that an omission in his reasons was
    due to his misapprehension or neglect of the evidence:
Housen v.
    Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R. 235, at para. 72.

[46]

An omission is a material error if it gives
    rise to the reasoned belief that the trial judge must have forgotten, ignored
    or misconceived the evidence in a way that affected his conclusion:
Van de
    Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para.
15;
Modern Cleaning Concept Inc. v. Comité
    paritaire de lentretien dédifices publics de la région de Québec
, 2019 SCC 28
, [2019] 2 SCR 406, at para. 70.

[47]

The Township argues that in this case, no
    deference is owed to the trial judges assessment of the quantum of damages. For
    the reasons that follow, I agree.

(i)

The trial judge mistakenly concluded that the damage
    estimate was Mr. Koerths

[48]

At trial, the Township admitted that the
    remediation of the steel roof and removing and installing the solar system was
    warranted. The respondents relied on one expert, Mr. Ron Koerth, to testify on
    what repairs were required. They relied on another expert, Mr. Jean-Marc Pitre,
    to provide costing opinion evidence.

[49]

Mr. Koerth is an engineer who was qualified by
    the trial judge as an expert in the area of building analysis. Structure
    failure analysis. Costing analysis, and all matters related to the construction
    of buildings and the compliance with the Ontario
Building Code
. Mr.
    Pitre was an installer of solar panels in Sudbury.

[50]

The trial judge found Mr. Koerth to be an
    exemplary witness. This is evidenced by the trial judges reference to Mr.
    Koerths evidence as follows:

... I had to ask myself what is required to
    put the plaintiffs in the position that they would have been in but for the
    negligence of others.
The answer was what Mr. Koerth said it should be
.

...

Simply put
Mr. Koerth's evidence and his
    numbers accord with what I find are required repairs to put the Tokarz in the
    position that they would have been in but for the negligence as admitted and
    proven
.

The Court has not simply ignored the evidence
    of the defendants but has juxtaposed it with that of the evidence of the Tokarz
    expert[,] Mr. Koerth in coming to the conclusion that it has. Anything else, I
    find would fix upon the plaintiffs costs that they simply should not bear now
    or in future with respect to this issue.

[51]

However, the trial judge seems to have mistakenly
    believed that the estimate of damages he adopted  found at page 60 of the
    plaintiffs [respondents] submissions at paragraph 245  was Mr. Koerths
    estimate. Those damages were actually the sum of several different estimates,
    including: an estimate for performing structural repairs to the barn prepared
    by a company called Bel-Con, and an estimate for replacing the solar array and
    performing structural repairs to the barn prepared by Mr. Pitre. Mr. Koerth did
    not make any of the estimates found at paragraph 245 of the plaintiffs
    submissions, and in fact, Mr. Pitres estimate included $254,000 for a truss
    repair that Mr. Koerth had estimated should cost much less.

[52]

Mr. Koerth did, however, testify that Mr.
    Pitres total estimate of $674,000 before tax was a lot more reasonable than
    Mr. Ewalds estimate of $375,000 before tax.
[1]

(ii)

Flaws in Mr. Pitres Estimate

[53]

There are also concerns with Mr. Pitres estimate.

[54]

First, Mr. Pitres estimate was not itemized. He
    simply provided one global figure for removal of all 1,155 solar panels;
    disposal or rails and hardware then re-installation of exist[ing] panels on new
    Enviro Energy supplied racking. The quote was a budgetary estimate for
    discussion purposes only.

[55]

Second, Mr
. Pitre was
    unable to provide an explanation of the breakdown of his estimate. He said he
    created a
pro forma
database, entered the information, and used a formula to arrive at his
    estimate. However, he was unable to provide the information he put into the
    database or the formula upon which the calculation was based, and he never went
    to inspect the barn itself.

[56]

Third, there was no specific allocation for
    truss repairs. We only know that Mr. Pitre allocated $254,000 for the trusses
    and structural repairs because $254,000 was the difference between estimates he
    made in 2013 and 2017 for the same scope of work, and on cross-examination, he
    testified that the difference came down to the cost of the truss repair.

[57]

Fourth, it is not clear how or why Mr. Pitres
    estimate so greatly exceeded that of Mr. Ewald and even that of
Mr. Koerth, whose testimony the trial judge preferred.
Mr. Pitre justified his $254,000 estimate for the trusses on the
    basis that the integrity of the roof on the inside is one of the highest costs
    of that difference and where that $250,000 is. He explained that the
    difference between the estimates was meant to cover the labour and material
    cost of doing the structural repairs to the roof. By contrast,
Mr. Koerth estimated the cost of the truss repair to be $25,000 plus
    $7,000 in engineering costs and taxes; and Mr. Ewald estimated the cost of the
    repair to be about $12,705 plus engineering fees and taxes.

[58]

Fifth, Mr
. Pitre incorrectly
    believed that all materials used for the solar panel system had to be sourced
    from Ontario, which would raise their cost. In fact, only 50% of the materials
    had to be sourced from Ontario.

(iii)

Flaws in the Trial Judges Assessment of Damages

[59]

Moreover, the trial judges assessment of the damage
    award was flawed as
:

i.

The trial judge failed to break down the cost of
    the remedial work in support of the estimate that he accepted (by simply
    adopting Pitres lump sum estimate);

ii.

He failed to weigh and assess the evidence of Mr.
    Pitres expert opinion for the respondents and Mr. Ewalds for the Township,
    and instead, simply adopted the damages claim provided by Mr. Pitre (mistakenly
    referred to as that of Mr. Koerth) with little discussion of its many shortcomings;
    and

iii.

The trial judge seems to have committed a
    palpable and overriding error by accounting for the cost of replacing the roof
    trusses twice: once when he accepted the Bel-Con damages assessment for the barn
    (which included a $10,000 remediation for the trusses in its $136,470.10
    total), and once when he accepted Mr. Pitres estimate for the solar panels,
    which also included a cost of $254,000 for the trusses.

(iv)

Analysis of the Quantum of Damages

[60]

I have concerns about the trial judges adoption
    of a damages award that did not include a detailed breakdown; contained what
    seems to have been an inflated figure for truss repair; and was not adjusted in
    any way for the experts errors on the correct proportions for domestic
    content.

[61]

The trial judge could not have meant to include
    the cost of the truss repair twice. The fact that he did so affected his
    conclusion on the total quantum of damages; it increased the quantum by up to
    $254,000.

[62]

I am also troubled by Mr. Pitres inability to
    explain the formula which formed the basis of his costing estimate. He claimed
    that the reason he was unable to explain the formula for arriving at his
    estimate was that it was based on a formula he devised that would take up to 45
    hours to reproduce.

[63]

The trial judge failed to give Mr. Pitres
    opinion the lesser weight it deserved given that it rested on unproven material
    facts:
Marchand v. The Public General Hospital Society of Chatham
(2000),
    51 O.R. (3d) 97 (C.A.).

[64]

The respondents also candidly concede that there
    was extremely limited discussion of the quantum of damages on the part of the
    trial judge.

[65]

The trial judges very limited discussion and
    assessment of the quantum of damages, and his failure to address the concerns
    about Mr. Pitres evidence as set out above, lead me to conclude that the
    presumption that the trial judge considered the evidence respecting the quantum
    of damages in its entirety is rebutted.

[66]

The solution, however, cannot be to replace the
    respondents assessment of damages with that of the Townships expert, Mr.
    Ewald.

[67]

The Townships expert, Mr. Ewald, did provide a
    line by line breakdown of the cost of material, labour and expenses as well as
    contingencies for remediation including the truss remediation.

[68]

However, Mr. Ewalds estimate is also
    problematic as, for example,

i.

Unlike Mr. Pitre, Mr. Ewald was not prepared to
    carry out the repairs for the amount of his estimate because he is not a
    contractor; this fact caused Mr. Koerth, whose testimony was accepted by
    the trial judge and is not in question, to refer to his estimate as less
    reasonable than Mr. Pitres;

ii.

Although the trial judge seems to have
    double-counted the estimates for truss repair (using both the $254,000 from the
    Pitre estimate and $10,000 from the Bel-Con amount used by Mr. Ewald), it is
    not clear what the amount for truss repair should be and why;

iii.

Mr. Ewald also erred in assessing the amount of Ontario
    product required. He assumed that a certain percentage of product would be
    sourced from Ontario, but he believed obtaining the materials from Ontario would
    be difficult, if not impossible. He said he would seek an IESO waiver of the
    domestic content requirement. Mr. Ewald was not qualified to testify on whether
    the Independent Electricity System Operator (IESO) would approve the waiver.
    He said it was fair to say that his estimate was conditional on obtaining the
    IESO waiver. It is not clear exactly how that would affect his estimate, and
    the trial judge made no findings to assist this court in understanding this
    evidence.

[69]

Based on the above, there are serious concerns with
    both the Townships and the respondents assessment of damages and this court
    is not in possession of all information to enable it to quantify the damages.

[70]

For these reasons, further analysis and further
    evidence is required to assess the quantification of damages and address these
    concerns:
TMS Lighting Ltd. v. KJS Transport Inc.
, 2014 ONCA 1, at
    paras. 83, 85. The evidence is not before this court such that this court can
    substitute its award for that of the trial judge.

VI.

CONCLUSION

[71]

For the above reasons, I would allow the appeal
    in part, set aside the award of damages and remit the action to another judge
    of the Superior Court for an assessment of damages.

[72]

The parties agreed that the successful party on
    appeal be awarded $30,000 in costs. Given the respondents success on the first
    two issues and the divided success on the third, I would award the respondents
    $20,000 in costs.

Released: March 25, 2022 S.E.P.

J.A.
    Thorburn J.A.

I
    agree. S.E. Pepall J.A.

I
    agree. Coroza J.A.

[1]

Mr.
    Koerth referred to Mr. Brunskills estimate. Peter Brunskill is an engineer
    who did not testify, but who instructed Ewald. Brunskill provided options for
    repairs and Ewald costed the options.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gomes, 2022 ONCA 247

DATE: 20220328

DOCKET: C67996

Lauwers, Pardu and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jorge Gomes

Appellant

Carter Martell, for the appellant

Kristen Pollock, for the respondent

Heard: March 9, 2022 by video
    conference

On appeal from the conviction entered on
    August 15, 2019 by Justice Sean F. Dunphy of the Superior Court of Justice,
    sitting without a jury, with reasons reported at 2019 ONSC 4808, and the sentence
    imposed on February 14, 2020, with reasons reported at 2020 ONSC 1013.

REASONS FOR DECISION

[1]

The appellant was convicted of two counts of
    operating a motor vehicle while impaired by alcohol causing bodily harm
    contrary to s. 255(2) of the
Criminal Code
,
R.S.C. 1985, c.
    C-46. He appeals against his conviction.

[2]

The appellant was sentenced to a custodial
    sentence of 3 years, followed by a 3-year driving prohibition. The appellant
    seeks leave to appeal this sentence.

[3]

For the reasons that follow, the appeal is
    dismissed.

Background Facts

[4]

The convictions against the appellant arose out
    of a motor vehicle accident involving a pick-up truck and two pedestrians at
    around 2:00 a.m. on June 3, 2017.

[5]

Three men had just exited a bar on a commercial
    stretch of Eglinton Avenue West in Toronto. They began crossing the street on
    their way to one of their homes nearby. They paused in the westbound lane, near
    the median, to allow a
tow truck to pass them in the
    eastbound lane. Seconds later, they were hit by a pick-up truck driven by the
    appellant speeding in the westbound lane. The violent collision caused serious
    injuries to two of the three men, Mr. Marchese and Mr. De Vellis. The third
    man, Mr. Hedman, was not hit and suffered no injury.

[6]

At trial, there was an agreed statement of
    facts. The appellant admitted the time, date and place of the accident, and that
    he was driving the vehicle involved in the accident. He admitted that he had a
    blood alcohol concentration at the time of the accident of between 150 mg and
    185 mg of alcohol in 100 ml of blood. The appellant also admitted that the
    injuries sustained by the two pedestrians constituted bodily harm for the
    purposes of s. 255(2) of the
Criminal Code
.

[7]

The trial judge heard evidence from a number of
    witnesses, including the three pedestrians; Mr. Martins, the driver of a tow
    truck who passed the pedestrians just prior to the collision; Officer
    Persichetti, a police officer who attended the scene of the accident; Detective
    Constable Chin, a police officer with expertise in the investigation and reconstruction
    of motor vehicle collisions; and an expert toxicology witness who testified on
    the effects of alcohol impairment on drivers of motor vehicles. The appellant
    did not testify.

[8]

Detective Constable Chin testified about data
    drawn from the pick-up trucks sensing diagnostic module (SDM), which
    recorded pre- and post-crash data. DC Chin testified that the SDM did not
    record continuously but began recording in response to certain events. The
    moment the system began recording was referred to as Algorithm Enabled
    (AE), and the system captured data for the five seconds preceding. He
    testified that AE could have been triggered by rapid deceleration or by a
    collision.

[9]

The trial judge found that the appellant was
    impaired, based on the admission that the appellant had a blood alcohol
    concentration of between 150 mg and 185 mg of alcohol per 100 ml of blood at
    the time of the collision and expert evidence as to the degree of impairment
    this would cause. The trial judge also noted that it was agreed that the harm
    suffered by Mr. De Vellis and Mr. Marchese amounted to bodily harm, and that
    the overwhelming evidence indicated that the bodily harm arose as a direct
    consequence of the collision, in which the appellants truck struck the two
    men.

[10]

The trial judge concluded that the Crown had
    established that the appellants impaired driving caused bodily harm, based on
    the following findings of fact:

·

The three pedestrians ought to have been visible
    in the roadway to the driver of a pick-up truck and in conditions of good
    lighting for four to five seconds before the collision;

·

At the time the three pedestrians reached the
    area of the median, the appellants vehicle was far enough away from the
    pedestrians so as not to be perceived as a danger by the tow truck driver, Mr.
    Martins, and to provide ample opportunity for the appellant to react to the
    presence of the pedestrians in a way that would have avoided the accident
    entirely;

·

The appellant was driving at a high rate of
    speed (over 50 percent above the posted speed limit of 50 km per hour) and was
    accelerating as he approached the scene until the last instant, depriving
    himself of some of the reaction time that might otherwise have been available
    to avoid the collision;

·

The appellant was travelling towards the
    pedestrians at a time when his faculties needed to process and deal with
    emerging risks and hazards were impaired by the presence of significant
    quantities of alcohol in his system; and

·

There was no evidence that the appellant noticed
    the imminent collision more than an instant before it occurred, because there
    was no indication of more than minor braking prior to the hard braking and no
    indication that the appellant reacted to the presence of the pedestrians by
    using some of the room that was available in the curb lane to attempt to steer
    his vehicle away from harm prior to the collision.

[11]

Based on these findings, the trial judge found
    that the Crown had met the standard of proof required to convict the appellant
    for operating a motor vehicle while impaired by alcohol causing bodily harm
    contrary to s. 255(2) of the
Criminal Code
.

ANALYSIS

[12]

The appellant raises the following grounds of
    appeal against the conviction:

(1)

The trial
    judge made findings of fact unsupported by the evidence; and

(2)

The trial
    judge reached an unreasonable verdict.

[13]

The appellant also seeks leave to appeal against
    the sentence imposed. The appellant argues that the trial judge failed to appropriately
    consider mitigating factors such as his remorse, and gave inadequate weight to
    collateral immigration consequences, in determining the sentence. The appellant
    also submits that the trial judge erred in relying on the Superior Court of
    Justice decision in
R. v. Bulland
, 2019 ONSC 4220 (
Bulland ONSC
),
    revd 2020 ONCA 318 (
Bulland ONCA
), to determine an appropriate
    sentence.

[14]

Each ground of appeal is addressed in turn.

The trial judges findings were available on the evidence

[15]

With respect to the first ground of appeal, the
    appellant argues that the trial judge made four findings of fact unsupported by
    the evidence in determining legal causation.

[16]

The trial judge held that in order to find the
    appellant guilty of impaired driving causing bodily harm, he must find not only
    that the appellant was impaired but also that the bodily harm suffered by the
    pedestrians was caused as a result of the appellants impaired operation of the
    pick-up truck. He stated, at para. 88, If the accident was not avoidable or if
    there is reasonable doubt as to whether it was avoidable, then the necessary
    causal relationship will not have been demonstrated by the Crown to the
    required standard of proof.

[17]

First, the appellant argues that the trial
    judges finding that it was safe for the pedestrians to cross the road, based
    on the evidence of the eyewitnesses, was contradicted by physical evidence,
    namely the fact of the collision and the SDM data from the appellants vehicle.
    Second, the appellant submits that the trial judge erred in finding that a
    sober driver would have swerved to avoid the pedestrians because there was no
    evidence that this manoeuvre would have avoided the collision or would have
    been possible. Third, the appellant submits that the trial judges finding that
    the pedestrians were on the roadway and visible for at least four to five seconds
    was based on two premises unsupported by the evidence, namely the speed of an
    unhurried pedestrian and the width of the westbound lanes. Fourth, the
    appellant submits that the trial judge erred in finding that the appellant only
    responded to the pedestrians at the last second before impact, which
    misapprehended the AE evidence.

[18]

We reject these submissions.

[19]

First, the trial judge accepted portions of the
    evidence of the pedestrians as to their position on the road prior to the
    collision and the fact that they did not believe they were in danger from
    westbound traffic when the tow truck passed them. The trial judge also relied on
    the testimony of Mr. Martins, the tow truck driver, as to the proximity of the
    appellant when he passed the pedestrians. The trial judge stated, at para. 63:

All allowances being made for the frailty of
    memory when it comes to re-constructing events in minute detail, Mr. Martins
    evidence does provide some reliable information. He
did

have
    his attention drawn to the three men crossing the road as he came alongside
    them. There was nothing that he saw  whether it be their direction and speed
    relative to his own or the state of any on-coming traffic heading towards them
     that caused him to become alarmed to the point where a more detailed picture
    became imprinted upon his memory. I infer that Mr. Gomes vehicle at this
    point was far enough away from this scene as not to appear to pose any danger
    to anyone.

[20]

The trial judge relied more heavily on Mr.
    Martins testimony to find that the pedestrians were hit after the tow truck
    passed them, because Mr. Martins was not directly involved in the incident and
    had a specific memory of the actions he took in consequence of hearing the
    collision after he passed the pedestrians. It was open to the trial judge to
    accept the eyewitnesses testimony that the road was safe to cross, and Mr.
    Martins evidence that the collision occurred shortly after he passed the
    pedestrians. These findings were not contradicted by the fact of the collision or
    the SDM data, given that the SDM data indicated that the appellant was speeding
    prior to the collision, and the SDM data only provided information about the
    appellants driving, not about when the pedestrians became visible in the road.

[21]

Second, the trial judge relied on scene
    photographs to support his finding that there was sufficient room for the
    appellant to have swerved to the right to avoid the pedestrians. This finding
    was open to him on the record. Third, the trial judge relied on Mr. Marcheses
    evidence as to the pedestrians pace, and a five km per hour walking speed as
    a rough rule of thumb consistent with the pace, as well as DC Chins lane
    measurements, to calculate the length of time the pedestrians were in the road.
    It was open to the trial judge to rely on Mr. Marcheses and DC Chins
    evidence, and although the five km per hour pace was not in evidence, the trial
    judge used this as a rough guide rather than a precise measurement.

[22]

Finally, the appellant submits that the trial
    judges finding that at the one second pre-crash data point the brake was
    engaged reflects a misapprehension of the AE evidence. However, the trial judge
    used this term to refer to data collected prior to the AE, and his reasons
    reflect an understanding that the AE was not necessarily the moment of collision.

[23]

Ultimately, the trial judge correctly stated the
    test for legal causation and the factual findings he made in order to conclude
    that legal causation was established in this case are entitled to deference and
    were available to him on the evidence.

[24]

We dismiss this ground of appeal.

The trial judges verdict was reasonable

[25]

Assessing the reasonableness of the verdict
    involves asking whether the verdict is one that a properly instructed trier of fact,
    acting judicially, could reasonably have rendered:
R. v. Biniaris
,
2000
    SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37.

In our view,
    the appellant has not established that the verdict was unreasonable.

[26]

The trial judge was
satisfied that the collision was avoidable and that the Crown
    established beyond a reasonable doubt that the collision arose as a result of
    the impaired operation of the motor vehicle by the appellant.

[27]

The appellant argues that the Crowns evidence was
    incapable of proving that the accident was the result of the appellants
    impairment from alcohol, and that a sober driver could have avoided the
    accident. According to the appellant, the trial judges findings were not supported
    by the evidence before him. For example, the trial judge found that speed
    played a key role in the collision, but there was no evidence that if he were
    driving at the posted speed limit, the collision could have been avoided.

[28]

The appellant also argues that it was unclear
    whether his alcohol impairment played any role in the speed he was travelling. The
    appellant contrasts this case to
R. v. Hall
, [2004] O.J. No. 4746 (Ont.
    S.C.), revd in part 2007 ONCA 8, 83 O.R. (3d) 641, leave to appeal refused,
    [2007] S.C.C.A. No. 298, where the trial judge held that a drivers decision to
    speed and accelerate through streets with significant car and pedestrian
    traffic indicated that the driver was not in possession of all his faculties
    (at para. 73). In contrast, this case involved a long stretch of road without
    traffic in the middle of the night. According to the appellant, in such
    conditions, it is entirely possible that a sober person would also be speeding.
    The appellant also submits that the Crown failed to prove that the appellants
    reaction, once he observed the pedestrians, indicated impairment, because it
    was equally consistent with momentary inattention. The appellant argues that
    the trial judges conclusion that the appellants impairment caused the
    collision was not supported by the evidence.

[29]

We disagree.

[30]

The expert evidence on the effects of impairment
    accepted by the trial judge made clear that the appellants ability to multi-task
    and to assess the danger posed by the pedestrians on the street, his vigilance,
    his judgment of speed and distance and his reaction time would all be adversely
    affected by his impairment. This evidence was consistent with the testimony of Mr.
    Martins that the pedestrians would have been visible to on-coming traffic, the
    testimony of the eyewitnesses that the appellants vehicle was sufficiently far
    away when the tow truck passed the pedestrians that it was not perceived to be a
    danger, and the SDM data, which indicated that the appellant was driving well
    above the speed limit and accelerating until seconds before he braked and
    collided with the pedestrians.

[31]

It was open to the trial judge to conclude that
    the pedestrians were visible for four to five seconds prior to the collision
    and that the appellant failed to see and react to them due to his impairment.

[32]

We see no basis to conclude that the trial
    judges verdict was unreasonable.

The trial judge did not err in the sentence imposed

[33]

The appellant argues that the trial judge gave
    insufficient weight to the fact that he was a first-time offender, to his
    remorse, and to the serious immigration consequences of his sentence. The
    appellant also takes issue with the trial judges reliance on
Bulland ONSC
.

[34]

A trial judges determination of a fit sentence
    is entitled to a high degree of deference.

[35]

The trial judge explicitly listed one mitigating
    factor in his decision, the fact that the appellant worked cooperatively to
    narrow the issues at trial. The trial judge also noted the appellants lack of
    prior criminal record.
However, the trial judge concluded that the mitigating factors in
    this case were outweighed by the fact that the primary sentencing principles
    were denunciation and deterrence in this case.
He stated,
    at para. 25:

Mr. Gomes presents  as do many offenders
    convicted of alcohol-related offences  as a very solid citizen. He is a
    support for his parents, an integral part of a close-knit family. He has worked
    his whole life and is by all accounts a contributing, valuable member of our
    community. He has no criminal record. The leniency that these aspects of his
    individual make-up might otherwise command is overshadowed by the paramountcy
    that must be given to the objectives of general deterrence and denunciation in
    this case, by the gravity of the offence and his degree of moral
    blameworthiness in it.

[36]

The appellant also submits that the trial judge
    erred in giving no specific consideration to the fact that the appellant had
    demonstrated remorse by making concessions at trial and refraining from any
    attempt to reinstate his drivers licence prior to sentencing. However, to the
    extent that making concessions at trial reflected remorse, the trial judge
    considered this factor.

[37]

The trial judge also considered the immigration
    consequences for the appellant. He acknowledged that, because each of the
    offences for which the appellant was convicted carry a maximum sentence of up
    to ten years in prison, the appellant could be subject to deportation, and a
    custodial sentence of longer than six months would render the appellant unable
    to appeal a decision that he be removed from the country. The trial judge
    concluded, at para. 13, In the present case, it is quite clear that a sentence
    under six months would be manifestly unfit in the circumstances here present
    and I cannot be swayed by sympathy for an offender facing dramatic if
    collateral immigration consequences to reverse engineer a sentence that is
    otherwise unfit to avoid the prospect of removal by immigration authorities
    should they determine to exercise their statutory discretion to do so. The
    trial judges consideration of the collateral immigration consequences was
    consistent with the Supreme Courts direction in
R. v. Pham
,
2013 SCC 15, [2013] 1 S.C.R. 739,

at paras. 14-15.

[38]

The appellant also takes
    issue with the trial judges reference to the decision in
Bulland ONSC
,
in
    determining the appropriate sentence. In
Bulland ONSC
, the trial judge
    imposed a sentence of 39 months for a similar offence. However, in
Bulland
    ONCA
,
this court overturned the sentencing decision in
Bulland
    ONSC
and reduced the appellants sentence. This courts decision in
Bulland
    ONCA

was not available to the trial judge in this case at the time
    of sentencing.

[39]

The trial judge in
Bulland ONSC
imposed
    a sentence well in excess of the sentence the Crown requested and failed to put
    the defence on notice that a higher sentence was being contemplated. The trial
    judge also failed to indicate in his reasons why he departed so significantly
    from the Crown position. These procedural errors led this court to reduce the
    sentence to two years, followed by three years probation, to reflect the Crown
    position.

[40]

The appellant submits that had the trial judge
    had the benefit of this courts decision in
Bulland ONCA
, he likely
    would have started from a range of two years less a day. However, there were no
    such procedural errors in this case, and no indication that the trial judge
    relied on
Bulland ONSC
to establish a sentencing range. Rather, in
    rejecting the range put forward by the defence, the trial judge observed that,
    among the cases advanced by the defence,
Bulland ONSC
was the most
    comparable. Further, this court in
Bulland ONCA
did not cap the range
    of appropriate sentences. Rather, this court commented that a penitentiary
    sentence in excess of two years would be appropriate but imposed a sentence of
    two years based on the circumstances of the case.

[41]

We would grant leave to appeal the sentence, but
    dismiss the appeal.

DISPOSITION

[42]

For these reasons, we dismiss the conviction
    appeal, grant leave to appeal the sentence but dismiss the sentence appeal.

P.
    Lauwers J.A.

G.
    Pardu J.A.

L.
Sossin J.A.


WARNING

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

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

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

(a)     any of the following
    offences;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. P.F., 2022 ONCA 248

DATE: 20220323

DOCKET: C68749

Pepall, Tulloch and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

P.F.

Appellant

Kenneth W. Golish, for the appellant

Jeffrey Wyngaarden, for the respondent

Heard: March 22, 2022 by video
    conference

On appeal from the conviction entered on
    October 1, 2020 by Justice George W. King of the Superior Court of Justice,
    sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of historical sexual
    offences involving his daughter. The offences were alleged to have occurred
    from infancy until she left home at age 17.

[2]

The complainant testified to numerous incidents
    of abuse including vaginal intercourse and oral sex. In addition, she said that
    the appellant would lie on her bed and rub himself against her; shaved her legs
    close to her bikini line; moved his hand along her leg, thigh, and vaginal area
    while they were in the car; tackled her in the living room and ground his
    genital area into hers while laying on top of her; and entered the shower,
    assaulting her there. The complainant testified that the sexual activity
    occurred approximately twice per week on average, until she was 17. She could
    not estimate how many times it happened.

[3]

The appellant testified in his own defence and categorically
    denied the allegations. He suggested that the complainant falsely accused him
    because he and his late wife had not accepted her gay lifestyle.

[4]

The appellant raises several arguments on
    appeal, the substance of which all  concern  the trial judges credibility
    findings.

[5]

There is no merit to the argument that the trial
    judge applied different levels of scrutiny to the evidence. The trial judge was
    entitled to accept the evidence of the complainant and to reject the evidence
    of the appellant. His findings are entitled to deference.

[6]

The trial judge did not conclude that the
    complainant was credible simply because her testimony was consistent and
    detailed. He fully explained his credibility findings in comprehensive reasons.
    The matters the appellant raises as inconsistencies  whether the appellant had
    a crossbow, a black belt in karate, or had taken the complainant for an
    abortion  were peripheral to the allegations at the core of the case.

[7]

The trial judge made no error in applying
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742.
His reasons were neither illogical nor irrational. He properly instructed
    himself on the principles of that case and applied them carefully. The trial
    judge did not simply prefer the complainants evidence; he accepted her
    evidence and rejected the evidence of the appellant. This was his call to make
    and there is no basis to interfere with it on appeal.

[8]

There were no significant misapprehensions of
    the evidence. The positioning of the Christmas tree and the description of the
    condition of the carpet in the living room were insignificant details relating
    to one alleged assault, not material misapprehensions. The evidence of the
    complainants aunt, L.C., that the complainant told her of the abuse decades
    earlier was relevant only to rebutting the allegation that the complainant had
    recently fabricated her complaint, and any mistake as to the date was
    insignificant.

[9]

There was no misapprehension concerning the
    appellants tattoo. The trial judge accepted that the complainant became aware
    of the unique tattoo on the appellants inner thigh when he required her to
    perform sexual acts including oral sex. It was open to the trial judge to
    conclude that the complainant was able to describe the tattoo in detail because
    she was exposed to the appellants intimate areas for extended periods of time,
    consistent with her evidence of repeated abuse.

[10]

Finally, the verdict was not unreasonable. The
    appellant simply repeats arguments already made and attacks the trial judges
    credibility findings, which as we have said, are entitled to deference. They
    can be supported on any reasonable view of the evidence.

[11]

The appeal is dismissed.

S.E.
    Pepall J.A.

M.
    Tulloch J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Crosslinx Transit Solutions General
    Partnership v. Ontario (Economic Development, Employment and Infrastructure),
    2022 ONCA 250

DATE: 20220324

DOCKET: C69486

Rouleau, van Rensburg and Roberts
    JJ.A.

BETWEEN

Crosslinx Transit Solutions
    General Partnership and
Crosslinx Transit Solutions Constructors

Applicants
(Respondents)

and

Ontario
    Infrastructure and Lands Corporation,

as
    representative of the Minister of Economic Development, Employment and

Infrastructure,
    as representative of Her Majesty the Queen in Right of Ontario

and Metrolinx

Respondents
(Appellants)

Sharon Vogel, Peter Wardle, Jesse
    Gardner and Cheryl Labiris, for the appellants

Matthew Sammon, Andrea Wheeler and
    Jacqueline Chan, for the respondents

Heard: January 6, 2022 by
    video conference

On appeal
    from the judgment of Justice Markus Koehnen of the Superior Court of Justice
    dated May 17, 2021, with reasons reported at 2021 ONSC 3567.

COSTS ENDORSEMENT

[1]

On March 7, 2022, we allowed the appeal, set
    aside the judgment and costs order of the application judge, and remitted the
    application for a rehearing, with costs to the appellants in the agreed upon
    all-inclusive amount of $60,000.

[2]

The parties were unable to agree on the disposition of
    the application costs. We have received and reviewed their respective written
    submissions.

[3]

We agree with the respondents that the fairest
    disposition is to leave the issue of the application costs to the trier of fact
    on the rehearing of the application, including but not limited to a rehearing
    before a judge of the Superior Court and/or in an arbitral process.

[4]

Order to go accordingly.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.

L.B.
    Roberts J.A.