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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. S.S., 2021 ONCA 479

DATE: 20210630

DOCKET: C69323

Miller, Paciocco and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.S.

Appellant

Adam Weisberg and Samiyyah Ganga, for the appellant

Rebecca Law, for the respondent

Heard: June 16, 2021 by video conference

On appeal from the order of Justice Antonio Skarica
    of the Superior Court of Justice, dated April 15, 2021 with reasons at 2021
    ONSC 2995, allowing an application for certiorari with mandamus and prohibition
    in aid, from the order of Justice Gethin B. Edward of the Ontario Court of
    Justice dated February 12, 2021.

Nordheimer J.A.:

[1]

S.S. appeals from the order of the review judge,
    who allowed an application for certiorari from the order of the application
    judge, who found that the appellant was entitled to a preliminary inquiry
    pursuant to s. 535 of the
Criminal Code
, R.S.C. 1985, c. C-46. At the
    conclusion of the hearing, we dismissed the appeal with reasons to follow. I
    now provide those reasons.

Background

[2]

The appellant is charged with one count of sexual
    assault on a person under the age of 16 contrary to s. 271 of the
Criminal

Code
and one count of sexual interference contrary to s. 151. The
    offences are alleged to have occurred between January 1, 2009 and December 31,
    2010.

[3]

At the time that the offences were alleged to
    have occurred, the maximum penalty for both offences was 10 years. On July 17,
    2015, the maximum penalty for the offence of sexual assault on a person under
    the age of 16 was increased to 14 years, if the Crown proceeds by way of
    indictment, which it had in this case. The maximum penalty for the offence of
    sexual interference was also increased to 14 years.

[4]

On December 11, 2020, the appellant elected to
    be tried by a judge and jury in the Superior Court. He requested a preliminary
    inquiry. The Crown sought a ruling that the appellant was not entitled to a
    preliminary inquiry because, at the time the offences were alleged to have
    occurred, the maximum penalty for the offences was 10 years.

[5]

The issue arises because, on September 19, 2019,
    s. 535 of the
Criminal Code
was amended to restrict the right to a preliminary
    inquiry to persons charged with an indictable offence that is punishable by imprisonment
    for 14 years or more. Section 535 now reads:

If an accused who is charged with an
    indictable offence that is punishable by 14 years or more of imprisonment is
    before a justice and a request has been made for a preliminary inquiry under
    subsection 536(4) or 536.1(3), the justice shall, in accordance with this Part,
    inquire into the charge and any other indictable offence, in respect of the
    same transaction, founded on the facts that are disclosed by the evidence taken
    in accordance with this Part.

The decisions
    below

Ontario Court of Justice

[6]

The respondents application was heard before a
    judge of the Ontario Court of Justice. The application judge noted that, in the
    circumstances of this case, the appellants maximum jeopardy was 10 years
    because s. 11(i) of the
Canadian Charter of Rights and Freedoms

provides
    that any person charged with an offence has the right if the punishment for
    the offence has been varied between the time of commission and the time of sentencing,
    to the benefit of the lesser punishment.

[7]

The application judge then said that, in his
    view, the
Criminal

Code
must, wherever possible,
    provide certainty. He said:

In summary, a court, and more importantly, the
    accused should be able to rely on the plain wording of the [s]tatute as opposed
    to then engaging in some exercise to determine its applicability to the unique
    circumstances of the accused, or the potential ramifications of the
Charter
.
    [Italics added.]

[8]

The application judge concluded that as the offences
    currently provide for a penalty of 14 years, the appellant was entitled to a
    preliminary inquiry.

Superior Court of Justice

[9]

The respondent sought a review of the
    application judges decision. That review was heard by a judge of the Superior
    Court of Justice. The review judge allowed the application for review. After
    reviewing the amendments to the
Criminal Code
,

and various
    decisions that have since addressed the issue of entitlement to a preliminary
    inquiry, the review judge concluded that the appellant was not entitled to a
    preliminary inquiry because the maximum penalty he faced was 10 years.

[10]

The review judge also addressed another issue
    raised by the appellant. On the review, the appellant said that he had waived
    his right under s. 11(i) of the
Charter
and was, consequently, facing
    a penalty of 14 years.

[11]

The review judge questioned whether an accused
    person could waive their right under s. 11(i). He noted that he had not been
    provided with any authority that would authorize that procedure. The review
    judge reviewed and relied on s. 43 of the
Interpretation Act
, R.S.C.
    1985, c. I-21 which provides, in s. 43(d), that the repeal of an enactment does
    not affect any offence committed against or contravention of the provisions of
    the enactment so repealed, or any punishment, penalty or forfeiture incurred
    under the enactment so repealed. The review judge also relied on the decision
    in
R. v. Stengel
, 2021 ONSC 1413, which had dealt with the same issue.
    The judge in that case had concluded, relying in part on s. 43, that the
    accused person was not entitled to a preliminary inquiry.

[12]

In the end result, the review judge concluded
    that the appellant could not use his purported waiver of s. 11(i) as a
    mechanism to obtain a preliminary inquiry. The review judge said: I would not
    give effect to this questionable procedure that has, as I have determined, no
    precedent.

Analysis

[13]

It is not necessary to once again review the history
    of the legislative changes that have been made to s. 535 respecting the right
    to a preliminary inquiry. They have been reviewed in a number of decisions,
    including recently in
R. v. Windebank
, 2021 ONCA 157, 154 O.R. (3d)
    573, leave to appeal requested, [2021] S.C.C.A. No. 122.

[14]

It is sufficient to say that limiting the right
    to preliminary inquiries was intended to free up court time and resources in
    provincial courts, while, at the same time, reducing the burden on some
    witnesses and victims by preventing them from having to testify twice in cases where
    there was, until then, an entitlement to a preliminary inquiry: see
Windebank
,
    at para. 19.

[15]

The route that Parliament took to limit
    preliminary inquiries focussed on restricting them to the most serious
    offences. It chose to do so by limiting preliminary inquiries to persons who
    are charged with an offence that is punishable by 14 years or more of
    imprisonment. Parliament expressly coupled the entitlement to a preliminary
    inquiry to the maximum sentence for the offence charged.

[16]

The appellant is not facing a punishment of 14
    years or more in this case. In reaching that conclusion, I need not decide
    whether an accused person can waive their rights under s. 11(i) of the
Charter
.
    Even if they can, s. 43(d) of the
Interpretation

Act
would preclude a court from imposing a sentence of more than 10 years. This
    result is reinforced by s. 43(e), which provides that a legislative change does
    not affect any legal proceeding in respect of any punishment, penalty or
    forfeiture referred to in paragraph (d).

[17]

My conclusion in this regard is also consistent
    with the conclusion reached in
Tran v. Canada (Public Safety and Emergency
    Preparedness)
,
2017 SCC 50, [2017] 2 S.C.R. 289. In that case, the
    issue was the immigration consequences of a person convicted of an offence where
    the maximum penalty was, at the time of the commission of the offence, seven
    years. However, before conviction, the penalty was raised to 14 years with the
    result that a conviction for the offence would fall within the definition of
    serious criminality for immigration purposes. The immigration authorities began
    proceedings to remove the accused from Canada on the basis that he had been
    convicted of an offence involving serious criminality within the meaning of s.
    36(1)(a) of the
Immigration and Refugee Protection Act
, S.C. 2001, c.
    27 (
IRPA
). The accused sought judicial review of the decision to
    refer his case for an admissibility hearing under the
IRPA
. In the end
    result, the Supreme Court of Canada found that the immigration authorities
    could not rely on the serious criminality provision in part because the maximum
    sentence for the accuseds offence at the time he committed it was seven years.
    In reaching that conclusion, C
ô
t
é
J. said, at para. 35:

Turning to the interpretation of punishable
    by a maximum term, in my view, a contextual reading of s. 36(1)(a) [of
    the
IRPA
] supports only one conclusion: the phrase punishable by a maximum
    term of imprisonment of at least 10 years
refers to the maximum sentence
    that the accused person could have received at the time of the commission of
    the offence
. [Emphasis added].

[18]

The appellant attempts to counter this interpretation
    by submitting that it looks at the circumstances of the offender rather than at
    the offence itself and thus offends the point made in
Windebank
, at para. 36:
In my view, the flaw, both in the respondents argument and in the
    decisions below, is that they confuse the seriousness of the offence with the
    seriousness of the offender, that is, their individual circumstances.

[19]

I do not agree. The situation here and the one
    in
Windebank
are not
    comparable. Here we are dealing with the maximum punishment that was stipulated
    for the offence at the time that the offence is said to have been committed. Thus,
    the issue in this case does not involve the personal characteristics of the
    appellant, in the sense that those personal characteristics might drive the appropriate
    sentence, such as the possible application of the dangerous offender provisions.
    Rather, it involves the penalty that can be imposed on the appellant, and
    anyone else in the same situation, arising from the timing of the offence, as
    the key for determining the seriousness of the offence for the purpose of s.
    535. The personal characteristics of the appellant are not engaged in this
    analysis. The only connection to the appellant in his personal capacity is that
    it is the timing of his alleged actions leading to the offence that are of
    importance.

[20]

Further on this point, in
Tran
, the court supported its
    conclusion that the timing of the offence determined the maximum sentence for
    the purpose of s. 36(1)(a) of the
IRPA
, in part, based on the presumption against retrospectivity, which applies
    independent of s. 11(i) of the
Charter
: at para

43. In words that are apt to the situation here,
C
ô
t
é
J. said, at para. 43: The purpose of this
    presumption is to protect acquired rights and to prevent a change in the law
    from look[ing] to the past and attach[ing] new prejudicial consequences to a
    completed transaction (Driedger (1983), at p. 186).

Conclusion

[21]

It is for these
    reasons that the appeal was dismissed.

Released:
June
    30, 2021 B.M.

I.V.B. Nordheimer J.A.

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

I agree. David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Di Franco v. Bueckert, 2021 ONCA
    476

DATE: 20210629

DOCKET: C68341

Tulloch, Roberts and Thorburn JJ.A.

BETWEEN

Michele Di Franco

Plaintiff

(Respondent)

and

Michael Bueckert

Defendant

(Appellant)

Daniel S. Tucker-Simmons and Yavar Hameed, for the appellant

Jean-François Lalonde, for the respondent

Heard and delivered orally: June 18, 2021 by video
    conference

On appeal from the order of
    Justice Sally A. Gomery of the Superior Court of Justice dated March 30, 2020,
    with reasons reported at 2020 ONSC 1954.

REASONS FOR DECISION

[1]

We see no error in the
    motion judges dismissal of the appellants Anti‑SLAAP motion. Even
    though she did not have the benefit of the Supreme Courts decision in
1704604
    Ontario Ltd. v. Pointes Protection Association
,
2020 SCC 22, the
    motion judges application of the relevant factors and the limited weighing of
    the evidence that she was required to carry out under s. 137.1 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, are not inconsistent with the
    Supreme Courts articulated framework in
Pointes
.

[2]

We also see no error in the
    motion judges consideration of the evidence on the record before her. As the motion
    judge indicated, she was not to engage in a deep dive into the record and make definitive
    findings of fact and credibility on this early-stage motion, which should be
    left to a summary judgment motion or trial. She was satisfied that the
    respondent had met his onus under s. 137.1(4); her decision is supported by the
    record. She did everything she was required to do on this threshold motion.

[3]

There is no basis for appellate
    intervention. As a result, the appeal is dismissed.

[4]

As agreed, the respondent is
    entitled to his costs of the appeal of $15,915.00, all inclusive. With respect
    to the appellants abandoned motion, we order that there be no costs, since we
    view the results as being mixed.

M. Tulloch J.A.

L.B.
    Roberts J.A.

J.A. Thorburn 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. B.W.S., 2021 ONCA 471

DATE: 20210629

DOCKET: C68501

Rouleau, van Rensburg and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.W.S.

Appellant

B.W.S., acting in person

Matthew Gourlay, appearing as duty
    counsel with respect to the appeal against conviction

Michael Fawcett, for the respondent

Heard: January 12 and 13, 2021 by video
    conference

On appeal from the convictions entered
    on March 12, 2020 and the sentence imposed on June 23, 2020 by Justice Calum U.
    C. MacLeod of the Superior Court of Justice.

B.W. Miller J.A.:

Overview

[1]

The complainant and the appellant were in an
    unstable and tempestuous intimate relationship. During an argument on May 13, 2019,
    the complainant refused the appellants demand for sexual intercourse, and the
    appellant responded with violence towards her and threats of greater violence
    against both her and her young daughter. The police became involved. The next
    day the two reconciled and the complainant told police she did not want to
    press charges. The reconciliation did not last, and there were further incidents
    of violence and threats on the part of the appellant.

[2]

Ultimately, the appellant was convicted of
    multiple offences including assault, sexual assault, and uttering threats. He
    received a custodial sentence of 26 months, less a credit of 13.9 months,
    leaving a total sentence of 12 months and three days incarceration. The
    appellant appeals against conviction and sentence. For the reasons that follow,
    I would dismiss the appeals.

Background

(1)

The First Incident

[3]

The appellant had been recently released from
    jail and was living itinerantly, sometimes at the complainants residence.

[4]

On May 12, 2019, following an argument, the
    appellant left to spend the night somewhere else.

[5]

Early the next morning, the appellant texted the
    complainant to ask if he could come back to patch things up. She agreed. The
    appellant arrived at about 6:40 a.m. He had something to eat and then showered.
    What happened afterwards is contested.

[6]

On the complainants evidence, the appellant
    came upstairs to the bedroom and told the complainant they were going to have
    sex. She said no. The appellant told her she was alone and there was nothing
    she could do about it, pinned her to the bed, began groping her, and attempted to
    reach under her clothes. She was able to push him away and they exchanged
    heated words. The complainant told him to leave and that she would report him
    to the police. The appellant pushed her against a door, reminded her that he
    knew where her daughter went to daycare, and threatened to kill them both if
    she went to the police. He left.

[7]

The complainant phoned her brother and told him
    that she had been sexually assaulted and threatened. Her brother called the
    police. The police arrived and the complainant provided a statement. After the complainant
    and the appellant reconciled the next day, the complainant contacted the police
    and told them she no longer wished to press charges. She did not, however,
    recant her allegations.

[8]

The appellant agreed with the complainants
    testimony that he and the complainant argued on May 13, but claimed that he
    then left without incident to meet his probation officer. He testified that the
    assaults and threats described by the complainant never happened and were
    concocted by her to help get rid of him. He argued that she had recanted when
    she told police she did not want to press charges.

[9]

There were two further incidents after the
    post-May 13 reconciliation that led to further criminal charges.

(2)

The Second Incident

[10]

On June 9, 2019, some friends of the complainant
    were at her home counselling her to end the relationship. The appellant was
    downstairs, listening to what was going on. The appellant was angered by what
    he overheard, armed himself with a hammer, and went to push his way into the
    bedroom. A friend of the complainant had been standing outside the bedroom, so
    that the complainant and the others could speak privately, and blocked the
    appellant. During what the trial judge described as a fist fight, the
    appellant punched the friend multiple times in the face and head before he was
    subdued.

(3)

The Third Incident

[11]

Two days later, the complainant was at the mall
    with friends. While there, she received threatening text messages from the
    appellant. She contacted the police.

[12]

The police asked the appellant to turn himself
    in. The appellant responded that he would never be apprehended, destroyed his
    cell phone, stole a vehicle, and fled. He was subsequently apprehended.

Issues on Appeal

[13]

The appellant raises a single issue on his appeal
    from conviction: that the trial judge erred in his analysis under
R. v. W.(D.)
, [1991] 1 S.C.R. 742,
by failing to find
    that there was an inconsistency between the complainants evidence and the
    evidence of her brother, and not finding that this inconsistency was sufficient
    to raise a reasonable doubt that the appellant had assaulted, threatened, and
    sexually assaulted the complainant on May 13, 2019.

[14]

The appellant also appeals the sentence imposed,
    on the basis that it was excessive and that he ought to have received credit
    for harsh conditions imposed due to COVID-19.

Analysis

(1)

Appeal Against Conviction

(a)

Overview

[15]

The appellant argues that the trial judge failed
    to resolve an inconsistency between the complainants evidence and the evidence
    of her brother as to the timing of events on May 13. Specifically, the
    appellant argues that the chronology of events provided by the complainant is
    inconsistent with the objective evidence of the timing of three phone calls between
    the complainant and her brother. He claims the discrepancy was not
    satisfactorily resolved by the trial judge and it ought to have raised a
    reasonable doubt.

[16]

It was undisputed at trial that the appellant
    arrived at the complainants residence at 6:40 a.m. No one testified as to
    precisely when he left. The complainant testified that the sexual assault began
    about two hours after he arrived, which would have been approximately 8:40 a.m.
    The appellant started acting disrespectfully and she told him to leave. The
    complainant testified that the appellant said no and that they were going to
    have sex. The sexual assault began, followed by the appellant pushing the
    complainant against the bathroom door and hitting her. She yelled at him to get
    him to go downstairs. Once they were downstairs, she told him she wanted to
    call the police. He told her if she did, to remember that he knew where her
    daughters daycare was and that he would hurt her. The complainant testified
    that they both went downstairs and eventually the appellant left, although
    she testified repeatedly that she could not say when that was.

[17]

The complainant testified that after the
    appellant left, she was frantic about what to do. He had said he would harm her
    daughter if she went to the police. She decided to phone her brother. She said
    it was a quick two-minute call that ended with her brother telling her he would
    phone 911, which he did.

[18]

Records showed that the complainant first called
    her brother at 9:53 a.m. Her brother testified this was a five-minute call in
    which the complainant said she had an argument with the appellant, that she was
    done with him, and that she was looking at kicking him out and removing him
    from the home. There was no discussion in this call about the complainant
    having been sexually assaulted.

[19]

Records showed the complainant called her
    brother again at 11:40 a.m. The brother testified that he was busy with his
    children and did not notice the call.

[20]

About an hour later  at 12:55 p.m.  the
    brother returned her call. He testified that, although she was not sobbing, she
    was hyperventilating and obviously upset. She told him that the appellant had
    sexually assaulted her and threatened her and her daughter. Her brother
    testified that he became upset, ended the call, and immediately called 911.

[21]

The complainant, when asked on cross-examination
    about the first call to her brother, had no memory of it. She did not deny
    making it but did not remember doing so and could not testify as to what was said.
    She only testified about the 12:55 p.m. call, in which she first disclosed the
    sexual assault and threats.

(b)

The Trial Judge Did Not Err

[22]

The question on appeal is whether there is an
    inconsistency between the evidence of the brother and the complainant, and
    whether this ought to have given rise to a reasonable doubt. For the reasons
    that follow, I do not agree that there is either a conflict in the evidence or
    a reversible error.

[23]

The trial judge accepted the complainants
    evidence as truthful and credible and concluded that the sexual assault and
    threats occurred as the complainant described. He rejected the argument that
    she had recanted: she never said the events had not occurred when she told
    police she did not want to press charges. Although there were some
    inconsistencies brought out in her cross-examination, they were explained by
    the complainant. The trial judge accepted her evidence about the assault. He
    rejected the argument that the timing of the phone calls between the
    complainant and her brother and whether she was upset cast doubt on her
    account. His treatment of this issue is the focus of the conviction appeal.

[24]

The complainant did not venture any definitive
    timing of events, other than to state that she thought the arguments leading to
    the sexual assault, assault, and threats began about two hours after the
    appellant arrived. This would be approximately 8:40 a.m.

[25]

If that was the case, then it would have made
    sense that, by the time the complainant made the first call at 9:53 a.m., the
    assaults had already taken place and the appellant had likely left. And yet the
    brothers evidence and the timing of his call to 911 suggest the complainant
    did not disclose the sexual assault and threats until the 12:55 p.m. call.

[26]

The appellant argues that this delay in
    reporting ought to have raised a reasonable doubt that he committed the acts
    alleged. How could the complainant be calm in a conversation with her brother
    at 9:53 a.m.  in the immediate aftermath of a sexual assault  and not
    disclose it, or the threats to harm her daughter, but then be hyperventilating
    at 12:55 p.m.?

[27]

The trial judge noted the argument but was
    undisturbed by it. He did not make a finding of when the appellant left, or
    whether the sexual assault took place before or after the 9:53 a.m. call. The
    appellant, for his part, did not give evidence about when he left and was
    unable to elicit evidence from his parole officer that he must have left by
    9:00 a.m. in order to make it to an appointment they had for the early
    afternoon.

[28]

On the trial judges understanding of events, it
    was entirely consistent with the evidence either that the appellant assaulted
    and threatened the complainant and left before the complainant made the first
    call, or that the incident had taken place after the first call. But, as
    explained below, even if he had accepted that the appellant had left by 9:00
    a.m.  which he found he did not have to decide - it would not have been inconsistent
    with the complainants evidence or raised a reasonable doubt.

[29]

The complainant did not testify that she
    disclosed the incident to her brother as soon as it happened  which would have
    meant that she disclosed it on the first call - only that she disclosed it
    after it happened. She was consistent on cross-examination that she did not
    remember the first call with her brother, did not know at what time the
    appellant left, and would not estimate how much time had passed between the
    incident complained of and when the appellant left. His departure was not
    immediate.

[30]

The trial judge was not prepared to draw an
    inference that someone in the circumstances of the complainant who had
    experienced a sexual assault would necessarily disclose it immediately to her
    brother, or that she would present on the phone as more upset at 9:53 a.m. than
    at 12:55 p.m., assuming the incident had taken place prior to 9:53 a.m. He did
    not find that the timing of the two phone calls, the content of those calls, or
    her demeanour on those calls was inconsistent with her evidence as to the
    sexual assault, assault, and threats. None of this evidence raised a reasonable
    doubt in his mind.

[31]

I see no reason to interfere. Contrary to the
    appellants argument, there was no material inconsistency between the evidence
    of the complainant and her brother that the trial judge had to resolve: they
    agreed that there was a phone call in which she disclosed a sexual assault. It
    was open to the trial judge to conclude that the sequence of events or the
    manner in which the complainant evidenced distress do not damage her evidence
    or raise any doubt in my mind, and to reject the argument that the complainant
    would necessarily have disclosed the sexual assault immediately to her brother.
    The factual findings the trial judge made, and the inferences he drew from them
    were all open to him, and he made no reversible error in his
W.(D.)
analysis.

(2)

Appeal Against Sentence

[32]

In
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11, a majority of the
    Supreme Court concluded that except where a sentencing judge makes an error of
    law or an error in principle that has an impact on the sentence, an appellate
    court may not vary the sentence unless it is demonstrably unfit.
The appellant has not identified any basis upon which it would be
    appropriate to interfere with the sentence imposed. The sentence is not
    demonstrably unfit and the trial judge made no legal error or error in
    principle.

[33]

The trial judge did not err in emphasizing denunciation and
    specific deterrence. As the trial judge explained, the appellant has a history
    of sexual offences and committed the offences that are the subject of this
    appeal while on probation. The trial judge was unimpressed with the appellants
    argument attempting to minimize the sexual assault as a simple touching. As the
    trial judge noted, it was sexual touching accompanied by a threat of forced
    intercourse, in circumstances where the complainant was fully aware of the
    appellants history of forcing intercourse on others.

[34]

I reject the appellants argument that he was thereby unfairly
    penalized for having been honest with the complainant by disclosing his history
    of sexual assault. Being honest with an intimate partner about his discreditable
    past was the least he could have been expected to do. He is not entitled to a
    lesser sentence because the experience would have been less terrifying for her
    if she had never known what he had done to other women.

[35]

With respect to the argument that the appellant
    ought to receive enhanced credit due to harsh conditions resulting from
    institutional efforts to combat COVID-19, the appellant has not argued any
    particular impact that COVID-19 measures have had on him. I would dismiss this
    ground of appeal.

Disposition

[36]

I would dismiss the appeals against conviction
    and sentence.

Released: June 29, 2021 P. R.

B.W.
    Miller J.A.

I
    agree. Paul Rouleau J.A.

I
    agree. K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Carillion Canada Holdings Inc.
    (Re), 2021 ONCA 468

DATE: 20210628

DOCKET: M52316

Gillese, Tulloch and Roberts
    JJ.A.

In
    the Matter of the
Companies Creditors Arrangement Act
,
R.S.C. 1985,
c. C-36, as amended

And
    In the Matter of a Plan of Compromise or Arrangement of Carillion Canada
    Holdings Inc., Carillion Canada Inc., Carillion Canada Finance Corp., Carillion
    Construction Inc., Carillion Pacific Construction Inc., Carillion Services
    Inc., Carillion Services (FSCC) Inc., Bearhills Fire Inc., Outland Camps Inc.,
    Outsand Resources Inc., Rokstad Power GP Inc., 0891115 B.C. Ltd., Golden Ears
    Painting & Sandblasting Ltd., Plowe Power Systems Ltd. and Carillion
    General Partner (B.C.) Limited

Applicants

And In the Matter of
    Section 101 of the
Courts Of Justice Act

and the Receivership of 491313 B.C. Ltd., Carillion
    Investments (Canada) Inc., 2447586 Ontario Inc., Twd Roads Management Inc.,
    Vanbots Capital Corporation and Carillion Canada (WOHC) Inc.

Debtors

Paul H. Le Vay
    and Carlo Di Carlo, for the moving party the Monitor

John Salmas and Dennis
    Wiebe, for the responding party HSBC Bank plc

Heard: in
    writing

Motion for leave to appeal from the
    order of Justice Glenn A. Hainey of the Superior Court of Justice, dated March
    2, 2021
.

REASONS
    FOR DECISION

OVERVIEW

[1]

This leave motion arises in the context of a
    CCAA proceeding. The Applicants in the proceeding include Carillion
    Construction Inc. (Carillion Construction) and Carillion Canada Inc. They are
    part of a global construction conglomerate (Carillion Group). HSBC Bank plc
    (HSBC UK), the responding party on this motion, provided banking services to
    the Carillion Group.

[2]

Shortly before the start of these insolvency
    proceedings, Carillion Construction, a general contractor for a number of major
    construction projects, received $28,844,390.53 from the owners of four
    different Ontario-based construction projects. The payments were on account of
    improvements to those projects. There were unpaid suppliers and subcontractors
    at each project. Pursuant to the cash sweep and pooling arrangements that the
    Carillion Group had with HSBC UK, these funds were swept from Carillion
    Constructions Canadian bank account and ended up in an account at HSBC UK in
    England.

[3]

Ernst & Young Inc., the court-appointed
    monitor of the Applicants (the Monitor) brought a motion for a declaration
    that, pursuant to s. 8 of the
Construction Lien Act
, R.S.O. 1990, c.
    C.30, $21,699,020.71 in the HSBC UK account was subject to a statutory trust.

[4]

By order dated March 2, 2021 (the Order), the
    CCAA judge dismissed the motion. He found that the Monitor had failed to
    establish the certainty of subject-matter requirement for a trust, saying:
    [T]he payments that are said to be the subject of the [
Construction Lien
    Act
] trust are not identifiable because they have been irreconcilably
    commingled and converted by seven different companies in two countries.
    Tracing in equity cannot be used to enforce a [
Construction Lien Act
]
    trust in an insolvency proceeding where identification of specific trust
    property is impossible. He further explained that tracing the trust funds in
    common law did not apply because the payments were deposited into and
    transferred among mixed accounts, and put to various uses.

[5]

The Monitor moves for leave to appeal the Order.
    It submits that, among other things, the CCAA judge erred in: conflating
    ascertainability of subject matter of a trust with the ability to trace;
    holding that equitable tracing is not available in the insolvency context; and,
    holding that common law tracing is not permitted into mixed accounts. The
    Monitor also seeks leave to adduce fresh evidence of the Monitors 33rd Report,
    including a letter appended to the Report from the Surety Association of Canada
    (the Letter).

[6]

For the reasons that follow, we would not admit
    the fresh evidence and we would refuse leave.

THE FRESH EVIDENCE IS NOT ADMITTED

[7]

The responding party asks this court to dismiss
    the Monitors request to adduce fresh evidence. It submits that the only substantive
    component of the proposed fresh evidence is the Letter, which is the authors
    subjective opinion of the impact of the motion judges decision on the
    construction and surety industries; it is devoid of factual information,
    statistics, or data to support the authors views. Moreover, the Letter is not
    appended to an affidavit sworn by its author and so is inadmissible hearsay.

[8]

We accept the responding partys submission and,
    accordingly, do not admit the fresh evidence.

THE TEST FOR LEAVE IS NOT MET

[9]

Leave to appeal is granted sparingly in CCAA proceedings,
    and only where there are serious and arguable grounds that are of real and
    significant interest to the parties. In deciding whether to grant leave, the
    court will consider whether: (1) the proposed appeal is
prima facie

meritorious or frivolous; (2) the point on the proposed appeal is of
    significance to the practice; (3) the point on the proposed appeal is of
    significance to the action; and, (4) the proposed appeal will unduly hinder the
    progress of the action: see, for e.g.,

Crystallex
    International Corporation
(
Re
)
,
    2021 ONCA 87, at para. 10.

[10]

In our view, this is not one of those rare cases
    in which leave to appeal should be granted. We are not satisfied that the
    proposed appeal is
prima facie
meritorious or that the case is of significance to the practice.

[11]

The CCAA judge is the supervising judge in this
    proceeding. He is deeply familiar with the Applicants varied, multi-industry
    corporate and banking structures, construction projects, and the general body
    of unsecured creditors. His findings of fact are entitled to considerable
    deference.

[12]

The CCAA judge found that the money claimed to
    be the subject matter of the
Construction Lien Act

trust is not identifiable because it
    had been irreconcilably commingled and converted by seven different companies
    in two countries. Tracing at common law and in equity fails where
    identification of trust property is not possible:
B.M.P.
    Global Distribution Inc. v. Bank of Nova Scotia
,
    2009 SCC 15, [2009] 1 S.C.R. 504, at para. 85;
Citadel
    General Assurance Co. v. Lloyds Bank Canada
,
    [1997] 3 S.C.R. 805 at paras. 57-8. Further, the CCAA judge did not hold that,
    as a general rule, equitable tracing is not available in the insolvency
    context, as the Monitor urges. He held that tracing in equity cannot be used to
    enforce a
Construction Lien Act

trust in an insolvency proceeding
    where identification of specific trust property is impossible. As the CCAA
    judge found, that is the situation in this case.

[13]

Nor did the CCAA judge confuse the
    ascertainability of the subject matter of a trust with the ability to trace.
    His finding that the trust property was not identifiable due to commingling and
    conversion disposed of the tracing argument.

[14]

We do not view the CCAA judges decision as of significance to the
    practice for two reasons. First, the decision is fact specific: the nature and
    operation of the Carillion Groups unique banking structure were critical
    factors. Second, the decision does not create uncertainty because it is
    consistent with established jurisprudence.

[15]

As neither of the first two considerations of
    the leave test are satisfied, we refuse leave.

DISPOSITION

[16]

The motion for leave to appeal is dismissed,
    with costs to the responding party fixed at $15,000, all inclusive.

E.E. Gillese
    J.A.

M. Tulloch J.A.

L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Deswal v. ADT LLC (ADT Security
    Services), 2021 ONCA 475

DATE: 20210628

DOCKET: C65881

Doherty, Benotto and Brown JJ.A.

BETWEEN

Rinku
    Deswal and Tajinder Oberoi

Plaintiffs (Appellants)

and

ADT LLC c/o/b as ADT Security Services, and

ADT Security Services Canada

Defendants
    (Respondents)

Mark A. Klaiman, for the appellants

Chad M. Leddy, for the respondents

Heard: June 25, 2021 by video conference

On
    appeal from the judgment of Justice Lucy K. McSweeney of the Superior Court of
    Justice, dated August 27, 2018.

REASONS FOR DECISION

OVERVIEW

[1]

In 2013, the appellants, Rinku Deswal and her husband, Tajinder Oberoi,
    purchased a house already equipped with a security alarm system provided by the
    respondents, ADT LLC and ADT Security Services Canada (ADT). They entered
    into a six-page Residential Alarm Services Agreement with ADT to activate and
    upgrade the system. In March 2015 their house was robbed. The appellants filed
    a proof of loss with their insurer for $139,330.73, consisting of claims for
    loss of contents and repairs to the house. As well, they commenced this action
    against ADT seeking damages of $500,000, plus $100,000 for aggravated,
    exemplary, or punitive damages. In their action, the appellants claim the
    security system did not operate when thieves broke into their house. ADT moved
    for summary judgment dismissing the action, which the motion judge granted.

[2]

In her reasons, the motion judge noted that the appellants advanced
    three arguments in opposition to the respondents motion for summary judgment:

1.

the respondents failure to inform the appellants about a cellular
    backup option amounted to negligence;

2.

the respondents sales agent was under a duty to draw the appellants
    attention to limitation of liability and entire agreement clauses in the
    Agreement, which he failed to do; and

3.

the limitation of liability clause, which stated that ADT is not an
    insurer and limited any liability to 10% of the annual service charge of $335
    or $250, whichever was greater, was unenforceable as it was unconscionable and
    contrary to public policy.

The motion judge rejected each of the appellants
    submissions and granted summary judgment dismissing their action.

[3]

The appellants appeal. At the hearing, we dismissed the appeal, with
    reasons to follow. These are those reasons.

ISSUES ON APPEAL

[4]

The appellants submit that the motion judge erred in: (i) holding that
    the respondents had no duty to advise the appellants of the alarm systems
    vulnerabilities and how they could be mitigated; and (ii) concluding that the
    limitation of liability clause was enforceable.

DUTY TO ADVISE

[5]

In their first submission, the appellants argue that the motion judge
    erred in her analysis of the alleged acts of commission and omission by the
    respondents sales agent when he met the appellants at their home.
    Specifically, they contend the agent committed negligence by: failing to tell
    them about a cell-backed communication option for their alarm system; assuring
    them that their house would be monitored 24/7, with no possibility of
    interruption, when, in fact, an interruption happened at the time of the
    robbery; and failing to explain how a security system could be circumvented.
    The appellants contend that these were material details that the respondents
    were under a duty to disclose to them and the trial judge erred by failing to
    find such a duty.

[6]

The motion judge did not accept this submission because the appellants
    did not adduce legal authority to support their contention that the respondents
    had a duty to advise them about other offered services. As well, she found that
    the appellants position was not consistent with the general obligations between
    parties that are found in a written contract entered into between them. The
    Agreement contained an entire agreement clause that stated, in part: This
    agreement constitutes the entire agreement between the customer and ADT. In
    executing this agreement, customer is not relying on any advice or
    advertisement of ADT.

[7]

In
Fraser Jewellers (1982) Ltd. v. Dominion
    Electric Protection Co.
(1997), 34 O.R. (3d) 1 (C.A.),  this court
    emphasized that, in a commercial setting, in the absence of fraud or other
    improper conduct that induced a plaintiff to enter the alarm services contract,
    the plaintiff bore the onus to review the contract and satisfy itself of its
    advantages and disadvantages before signing it. As this court stated at para.
    32, [t]here is no justification for shifting the plaintiffs responsibility to
    act with elementary prudence onto the defendant.

[8]

Although the Agreement in this case arose in a consumer setting, not a
    commercial one, the appellants are sophisticated individuals: Ms. Deswal is a
    practicing litigation lawyer who runs her own practice; Mr. Oberoi has a Masters
    Degree in Finance and his aviation consulting work involves the drafting of
    business and leasing contracts. Significantly, Ms. Deswal acknowledged that she
    signed the Agreement without reading it.

[9]

Had the appellants taken the time to read the Agreement, they would have
    understood from the first page that a cellular back-up service was available.
    As well, the following clauses pointed out that the operation of the system
    could be interrupted:

(i)

The entire agreement clause just above the signature line stated:
    Customer acknowledges that he/she is aware that no alarm system can guarantee
    prevention of loss, that human error on the part of ADT or the municipal
    authorities is always possible, and that signals may not be received if the
    transmission mode is cut, interfered with, or otherwise damaged;

(ii)

On page 5, the Agreement stated, in capital letters: Customer
    understands that ADT will not receive alarm signals when the telephone line or
    other transmission mode is not operating or has been cut, interfered with or is
    otherwise damaged  That clause continued: Customer understands that ADT
    recommends that customer also use an additional back-up method of communication
    to connect customers alarm system to ADTs alarm monitoring center regardless
    of the type of telephone service customer uses.

[10]

The
    motion judge held that, in the circumstances, it was the appellants
    responsibility to read the agreement and ask about its terms. That was a
    conclusion open to the motion judge on the record before her.

THE LIMITATION OF LIABILITY CLAUSE

[11]

The
    Agreement contained a limitation of liability clause that read, in part, as
    follows:

Limit of liability - It is understood that ADT is not an
    insurer, that insurance, if any, shall be obtained by the customer and that the
    amounts payable to ADT hereunder are based upon the value of the services and
    the scope of liability as herein set forth and are unrelated to the value of
    the customers property or property of others located in customers premises. Customer
    agrees to look exclusively to customer's insurer to recover for injury or damage
    in the event of any loss or injury and releases and waives all right of
    recovery against ADT arising by way of subrogation ... if ADT should be found
    liable for loss, damage or injury due to a failure of service or equipment in
    any respect, its liability shall be limited to a sum equal to 10% of the annual
    service charge or $250 whichever is greater, as the agreed upon damages and not
    as a penalty, as the exclusive remedy

[12]

We
    are not persuaded that the motion judge erred in her application of the three-part
    analysis set out in
Tercon Contractors Ltd. v. British
    Columbia (Transportation and Highways))
, 2010 SCC 4, [2010] 1
    S.C.R. 69, to determine the enforceability of the limitation clause for the
    following reasons:

(i)

The Agreements limitation of liability clause applied in the
    circumstances;

(ii)

When the motion judges oral reasons are read as a whole, it is clear
    that she held the clause was not unconscionable. That finding was open to her
    on the evidence: the contractual limitations on liability were clearly set out
    in several provisions of the Agreement; they were not hidden or concealed in
    ways that would make it unfair to treat them as part of the contract;
    immediately above the signature line the contract contained language that the
    customer had read the entire agreement, including the limitation of liability
    clause; there was no pre-existing relationship between the appellants and ADT
    in which the appellants looked to the company for advice; the appellants are
    sophisticated and educated individuals; there was no evidence of duress or
    limits placed on the appellants time to review the Agreement at the time of its
    execution; and Ms. Deswal chose not to read the Agreement presented to her,
    notwithstanding the provision, in bold capital letters just above her signature
    line, acknowledging that she had read both sides of this agreement and
    understands all terms and conditions of both this and the reverse side of this
    agreement, in particular, paragraph 1, Limited Warranty, and paragraph 7, Limit
    of Liability; and

(iii)

The motion judge held that public policy favoured upholding the contract
    on its terms, relying on decisions of this court in
Fraser
    Jewellers
and
Suhaag Jewellers Ltd. v. Alarm
    Factory Inc. (AFC Advance Integration)
, 2016 ONCA 33, at para. 4,
    leave to appeal to S.C.C. refused, 36887 (June 23, 2016) the latter a post-
Tercon
decision. The motion judge adopted the public
    policy rationale supporting the limitation of liability clauses in alarm system
    service contracts set out by this court in
Fraser Jewellers
,
at paras. 38 and 39,
    specifically that the service provider is not an insurer and its monitoring fee
    bears no relationship to the area of risk and the extent of exposure ordinarily
    taken into account in the determination of insurance policy premiums. We see no
    error in her so doing.

[13]

Finally,
    in both written and oral submissions, the appellants argued that the
    circumstances of their case are analogous to those of the plaintiffs in the
    decision of this court in
Singh v. Trump
, 2016
    ONCA 747, 408 D.L.R. (4th) 235, leave to appeal refused, [2016] S.C.C.A. No.
    548. We see no such analogy.

DISPOSITION

[14]

For
    the reasons set out above, the appeal is dismissed.

[15]

In accordance with the parties agreement on
    costs, the appellants shall pay the respondents their costs of the appeal fixed
    in the amount of $6,000, inclusive of disbursements and applicable taxes.

Doherty
    J.A.

M.L.
    Benotto J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Thrive Capital Management Ltd. v.
    Noble 1324 Queen Inc., 2021 ONCA 474

DATE: 20210628

DOCKET: M52469 & M52474 (C69156)

Zarnett
    J.A. (Motions Judge)

DOCKET:
    M52469

BETWEEN

Thrive
    Capital Management Ltd., Thrive Uplands Ltd., 2699010 Ontario Inc. and 2699011
    Ontario Inc.

Plaintiffs (Respondents/Moving Parties)

and

Noble
    1324 Queen Inc.,
Michael Hyman, Giuseppe Anastasio
, David Bowen, Noble
    Developments Corporation,
Hampshire and Associates Incorporated
, Lisa
    Susan Anastasio, Rajeree Etwaroo and Con-Strada Construction Group Inc.

Defendants (
Appellants/Responding Parties
)

DOCKET:
    M52474

AND BETWEEN

Thrive
    Capital Management Ltd., Thrive Uplands Ltd., 2699010 Ontario Inc. and 2699011
    Ontario Inc.

Plaintiffs (Respondents/Responding Parties)

and

Noble
    1324 Queen Inc.,
Michael Hyman, Giuseppe Anastasio
, David Bowen, Noble
    Developments Corporation,
Hampshire and Associates Incorporated
, Lisa
    Susan Anastasio, Rajeree Etwaroo and Con-Strada Construction Group Inc.

Defendants (
Appellants/Moving Parties
)

Brian Radnoff and Joshua Suttner, for
    the respondents, moving parties in M52469 and responding parties in M52474

Justin Necpal and Justin Nasseri, for
    the appellants, responding parties in M52469 and moving parties in M52474

Heard: June 1, 2021 by videoconference

ENDORSEMENT

Introduction

[1]

As a penalty for their disobedience of a
Mareva
injunction, the appellants were ordered to pay the respondents the amount of
    their claim  approximately $9 million. The appellants were also ordered to pay
    around $195,000 in costs to the respondents, and to attend a judgment debtor
    examination (the examination order). The appellants do not contest that they
    were properly found in contempt but will argue on appeal that the penalty was wholly
    disproportionate and the product of an unfair process.

[2]

The respondents move for security for costs of
    the appeal and the proceeding. The appellants resist that request and bring
    their own motion that the examination order be determined to have been
    automatically stayed, or, if there is no automatic stay, that a stay be granted.

[3]

For the reasons that follow, I grant in part the
    motion for security for costs. The appellants contempt of an order designed to
    preserve their assets for the protection of the respondents constitutes a good reason
    for ordering security, as it is both compelling and related to the reason
    security is granted  to provide a measure of protection for costs. I dismiss
    the motion relating to the examination order. I find that the examination order
    is not automatically stayed and, since the appellants are already under court
    imposed obligations to disclose their assets and can be examined on that
    disclosure, compliance with the examination order while the appeal is pending would
    not give rise to irreparable harm; it would not be in the interests of justice
    to grant a stay.

Background

[4]

On April 20, 2020, the respondents commenced an
    action against the appellants, amongst others, seeking substantial damages.
    Various causes of action were asserted, including fraudulent misrepresentation,
    breach of fiduciary duty, and breach of contract.

[5]

The action arose out of the advance, by the
    respondents, of approximately $9 million for the purchase of certain
    properties. The respondents allege that their investment was not used for the
    purpose for which it was advanced, and that the appellants misappropriated large
    sums of it.

[6]

On April 23, 2020, Koehnen J. (the motion judge)
    granted a
Mareva
injunction and related orders against the appellants,
    restraining them (subject to limited exceptions) from selling, transferring, or
    dissipating any of their assets, requiring them to provide an accounting and
    disclosure of information, and directing them to complete the acquisition of
    one of the properties that the respondents funds had been advanced to
    purchase.

[7]

On May 19, 2020, the motion judge declared that
    the appellants had materially breached his April 23 orders and gave them a
    further opportunity to comply. On June 1, 2020, the motion judge suspended the
    exceptions to the
Mareva
injunction due to the appellants continuing
    non-compliance.

[8]

On June 19, 2020, the motion judge conducted a
    contempt hearing. He found the appellants in contempt for having breached the
Mareva
injunction and related orders. In his reasons dated August 21, 2020, the motion
    judge described the breaches as including failure to provide an accounting and
    other disclosure, failure to close the purchase of property, failure to provide
    contact information for individuals or entities who received funds from certain
    bank accounts or from the appellants and, in the case of the appellant Hyman
    and Noble Developments Corporation (a company Hyman controlled), transferring
    funds when prohibited from doing so.

[9]

On November 5, 2020, the motion judge held a
    sentencing hearing. On January 21, 2021, he released reasons finding that the
    appellants had not purged their contempt and remained in breach of his orders. He
    gave judgment (the judgment) with a number of provisions.

[10]

One provision was that, as the sanction for the
    contempt, the appellants were to pay the respondents the amount of their
    investment, less amounts recovered, in the sum of $8,794,606.09.

[11]

A further provision was the examination order
    that directed the appellants to attend for a judgment debtor examination, even
    if they appealed the judgment.

[12]

The judgment also included provisions containing
    awards of costs to the respondents as follows: $36,011.97 for the contempt
    hearing; $48,816.31 for the sentencing hearing; and 109,142.80 for the action.

[13]

The appellants have appealed the judgment
    contending that the motion judge erred in imposing, as a sanction for their contempt,
    a judgment for the amount of the respondents claim, in an action they never
    had a chance to defend. In their appeal factum, the appellants confirm that
    they are not appealing the contempt finding against them. They acknowledge
    that they did not sufficiently comply with court orders and they know there
    are consequences for that. It might be a large fine. It might be jail time. But
    it is not final judgment for $9M...

[14]

The appellants have refused to attend the
    judgment debtor examination.

The Motion for Security for Costs

[15]

Rule 61.06(1) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194 provides:

In an appeal where it appears that,

(a) there is good reason to believe that
    the appeal is frivolous and vexatious and that the appellant has insufficient
    assets in Ontario to pay the costs of the appeal;

(b) an order for security for costs could
    be made against the appellant under rule 56.01; or

(c) for other good reason, security for
    costs should be ordered,

a judge of the appellate court, on motion by
    the respondent, may make such order for security for costs of the proceeding
    and of the appeal as is just.

[16]

The respondents seek security for costs as
    follows: $25,000 for the appeal and $193,971.08 for the proceeding. The latter
    sum is the total  of the three costs awards included in the judgment.

[17]

The ordering of security for costs is
    discretionary; a two-step reasoning process is involved. The first question is
    whether the requirements of r. 61.06(1)(a), (b), or (c) are met. If so, the
    second question is whether it would be just to order security, considering the
    circumstances and the interests of justice
: Yaiguaje v. Chevron Corporation
,
    2017 ONCA 827,
138 O.R. (3d) 1
, at
    paras. 18-19.

[18]

The respondents rely on r. 61.06(1)(c) which
    provides that security may be ordered for other good reason. This phrase must
    be understood in the context of the rest of r. 61.06(1). Subrule (a)
    contemplates security being ordered where the appeal appears to be frivolous
    and the appellant has insufficient assets in Ontario to pay the costs of the
    appeal. Subrule (b) contemplates security where an order could be made against
    the appellant under r. 56.01, the rule that governs when security may be
    ordered against a plaintiff at the trial level. Resort to subrule (c) is made
    where the other subrules do not apply. Invoking it should not be routine:

Combined Air
    Mechanical Services Inc. v. Flesch
,
2010 ONCA 633
, 268
    O.A.C. 172, at para.
8
.

[19]

The list of what might qualify as an other good
    reason is not closed. But the reason must be (i) compelling, and (ii) related
    to the purpose of ordering security, which is to provide a respondent with a
    measure of protection for costs:
Combined Air
, at para. 8;
Heidari
    v. Naghshbandi
, 2020 ONCA 757, 153 O.R. (3d) 756, at para. 6.

[20]

I am satisfied that, in this case, the other
    good reason requirement in r. 61.06(1)(c) has been met.

[21]

The
Mareva
injunction and related
    orders granted by the motion judge required the appellants, among other things,
    to make disclosure and to preserve assets. Orders of this nature are designed
    to ensure that a plaintiffs recovery will not be defeated by the defendant
    dissipating its assets before judgment. The propriety of those orders is not at
    issue in the appellants appeal; they concede that they breached those orders
    and do not contest the findings of the motion judge that held them in contempt.

[22]

The violation of these orders constitutes a
    reason to grant security that is compelling, given the serious nature of the orders
    and their violation, and  directly relates to the purpose for which security
    for costs may be ordered.

[23]

An other good reason to order security has
    been found in cases where misconduct is such as to present an unacceptable risk
    that any costs order made on the appeal will not be obeyed. For example, in
York
    University v. Markicevic
, 2017 ONCA 651, at para. 58, Epstein J.A. considered
    that, a finding that the appellant has committed fraudin conjunction with a
    finding that the appellant has taken steps to put his assets out of the reach
    of his creditors, provide other good reason to justify an order for security
    for costs under r. 61.06(1)(c).

[24]

Here, the appellants have been found in contempt
    of orders that were designed to ensure they would honour their obligations if
    found liable. This also presents an unacceptable risk about whether they would
    comply with a costs award if unsuccessful on their appeal.

[25]

Having concluded that the respondents have met
    the requirements of r. 61.06(1)(c):

I must go on to determine whether an order for
    security for costs would be just. Such a determination requires balancing the [appellants]
    right to access to justice against the [respondents] right to protection from
    having to defend unmeritorious positions in circumstances in which it is
    unlikely to recover its costs:
Markevic
, at para. 22.

[26]

The appellants argue that a requirement to post
    security in the amount sought by the respondents would create a barrier to the
    pursuit of their appeal and deny them access to justice. The onus of showing
    that a party should not be ordered to post security due to its impecuniosity is
    on the party making that allegation
: Zeitoun v. Economical Insurance Group
(2008), 91 O.R. (3d) 131 (Div. Ct.), at paras. 45-46, aff'd
2009 ONCA 415
, 96 O.R. (3d) 639
.

[27]

The appellants do not expressly allege impecuniosity.
    In affidavits that they were required to file under the motion judges April
    23, 2020 order, the appellants depose to having negligible assets. However, the
    motion judge, in making his contempt finding, pointed to significant
    discrepancies between what was disclosed in those affidavits and other evidence
    or indications that their assets were far more substantial: 2020 ONSC 4921, at
    paras. 21-30. The appellants filed no evidence on this motion, and have to date
    resisted being examined as to the full extent of their assets under the
    examination order.

[28]

Moreover, the appellants make certain submissions
    that are inconsistent with impecuniosity. They suggest that it is speculative
    to assume they would not honour a reasonable costs award on the appeal and point
    out that they have paid some costs orders in the past.

[29]

Given the above, I am not satisfied that a
    reasonable order for security for costs would result in the appellants being
    unable to pursue their appeal.

[30]

As to the quantum of security, the amount of
    $25,000 for costs of the appeal was not seriously contested. In addition, the
    respondents argue that the security should also include costs of the proceeding,
    particularly two elements of those costs. They submit that the costs of the
    contempt hearing should be posted as security since that award is highly
    unlikely to be disturbed regardless of the result of the appeal, as the
    appellants are not contesting the contempt finding. They make a similar
    argument about the costs of the sentencing hearing. They argue that, given that
    the appellants are not challenging the contempt finding, some sanction would
    have been warranted. Therefore, even if the sanction is varied on appeal, the
    costs order would likely stand. The appellants do not concede these points.

[31]

In the end, a security for costs order,
    including its quantum, is discretionary and must be just. It bears repeating that
    its purpose is to provide a measure of protection, not perfect protection, for
    costs. The need for protection is strongest with respect to costs of the
    appeal, as the respondents should not have to continue incurring expenses to
    respond to the appeal without the prospect of some recovery if costs are
    awarded in their favour. The need for protection exists, but is more attenuated,
    with respect to the costs of the proceeding. The appeal is not causing those costs
    to be incurred  they already have been. On the respondents hypothesis that
    the costs orders for the contempt and sentencing hearings will not be disturbed
    on appeal, the appeal is merely delaying their collection.

[32]

Balancing all factors, I direct that the
    appellants post security for costs of the appeal in the sum of $25,000, and of the
    proceeding in the total sum of $45,000, within 30 days of the release of these
    reasons.

The Motion for a Stay

[33]

As noted above, the judgment provided that the
    appellants attend a judgment debtor examination even if they appealed the judgment.
    The precise wording of the examination order provisions of the judgment are as
    follows:

5.
THIS COURT ORDERS
that,
    notwithstanding any appeals of this order which may be pending, the plaintiffs
    may immediately take steps to enforce the Judgment by conducting judgment
    debtor examinations and pursuing tracing remedies.

6.
THIS COURT FURTHER ORDERS
that the
    Developer Defendants shall attend a judgment debtor examination on a date to be
    determined by the plaintiffs. The Developer Defendants shall each produce all
    documents listed in their Notices of Examination at least 14 days prior to
    their respective examinations and the Developer Defendants shall answer all
    questions arising on any examinations to enforce the Judgment, shall not refuse
    to answer any questions and these examinations may be conducted before Justice
    Koehnen.

[34]

The motion judge gave the following explanation
    for making the examination order:

In addition, I direct that the plaintiffs may
    begin enforcing that judgment by conducting judgment debtor examinations and
    pursuing tracing remedies even if the Defendants appeal this judgment. This is
    appropriate because the net effect of a judgment debtor examination or a
    tracing remedy arising out of it would be the same as having the Defendants comply
    with the Mareva injunction. Among the relief ordered under the Mareva
    injunction was a requirement that Messrs. Hyman and Anastasio provide
    affidavits of assets. I have commented on the complete inadequacy of those
    affidavits in earlier reasons. If the Defendants succeed on an appeal of this
    judgment, the appeal would allow them to defend, as a result of which the
    plaintiffs would continue to have whatever rights they have now, including the
    right to pursue further remedies under the court orders already issued which
    would include the right to cross-examine the Defendants on their statements of
    assets, the accounting and whatever disclosure they have produced.

[35]

The parties subsequently attended before the
    motion judge who refused to give effect to the appellants submission that he had
    no jurisdiction to order examinations with an appeal pending.

[36]

Examinations were scheduled for May 19 and 20,
    but the appellants refused to attend, taking the position that the motion judge
    did not have jurisdiction to order them to attend a judgment debtor examination
    when the judgment was under appeal. They then brought this motion.

[37]

The appellants primary position is that the
    appeal automatically stayed any provision of the judgment for the payment of
    money until the appeal is determined: r. 63.01(1). A judgment debtor
    examination is a step under or for the enforcement of the money provisions of
    the judgment, and the effect of the stay is that no such step may be taken
    until the appeal is determined: r. 63.03(3). The provision that the judgment
    debtor examination may take place notwithstanding any appeals is ineffective,
    as only a judge of this court can lift the automatic stay: r. 63.01(5). If a
    stay is required, they ask that I grant one under r. 63.02(1).

[38]

The respondents argue that the examination order
    was made as part of the sanction for the appellants contempt; it is not in and
    of itself an order for the payment of money and is not automatically stayed. It
    should not be equated with an ordinary judgment debtor examination, which the
    holder of a money judgment that is not stayed can compel under r. 60.18. While
    the motion judge called the examination a judgment debtor examination, he could
    as easily have directed the appellants to be cross examined on the affidavits
    they were required to file under the
Mareva
injunction. The
    respondents also argue that since the appellants moved before this court only
    after they failed to comply with the examination order, they should not be
    given an audience. They submit that a stay of the examination order is not
    warranted; and if it is automatically stayed, the stay should be lifted.

[39]

I agree with the appellants that the fact that
    the motion judge stated that the examination order applied even if there were
    an appeal does not make it so, as only a judge of this court can remove an
    automatic stay. But in my view, the examination order is not automatically stayed
    under r. 63.01(1). It is not an order for the payment of money, nor is the
    examination a prohibited step under r. 63.03, given the existence of a court order
    requiring that examination. While, under r. 63.03, the effect of a stay of a
    provision for the payment of money is that no step under that provision or for
    its enforcement can be taken, the examination sought by the respondents is not being
    pursued under the provision for the payment of money, but under the examination
    order, a separate provision of the judgment which is not automatically stayed.

[40]

Nor, in the unusual circumstances of this case,
    would I grant a stay of the examination order. The overarching consideration in
    whether to grant a stay pending appeal is whether doing so is in the interests
    of justice. Three factors are considered: (1) whether, on a preliminary
    assessment, the appeal raises a serious question, recognizing that this is a
    low threshold; (2) whether the applicant would suffer irreparable harm if the
    application were refused; and, (3) the balance of convenience, namely which of
    the parties would suffer greater harm from the granting or refusal of the
    remedy pending a decision on the merits. The factors are not watertight; the strength
    of one may compensate for the weakness of another:
Zafar v. Saiyid
,
2017 ONCA 919, at paras.
17-19
.

[41]

The appellants identify no prejudice, let alone
    irreparable harm, that they would suffer if they had to be examined. They are
    not in an analogous position to a defendant appealing a money judgment who, if
    they win their appeal, will never have to make disclosure or be subjected to
    intrusive probing of their financial affairs and who can therefore credibly
    claim that they would suffer irreparable prejudice if they had to undergo the
    examination before the appeal is heard. The appellants were required under the
Mareva
injunction to file affidavits disclosing their assets and are subject to cross-examination
    on those affidavits. They are not entitled, under existing court orders that
    are not being appealed, to keep their financial affairs secret from the
    respondents.

[42]

It is not in the interests of justice to grant
    the stay requested. In light of that conclusion, it is unnecessary to address
    the respondents other arguments.

Conclusion

[43]

The motion for security for costs is granted to
    the extent described in para. 32 above. The motion for a stay is dismissed.

[44]

The respondents are entitled to the costs of
    these motions in the total sum of $6,000, inclusive of disbursements and
    applicable taxes.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Weinstein v. Toronto Standard
    Condominium Corporation No. 1466, 2021 ONCA 470

DATE: 20210628

DOCKET: M52496 (C69195)

Doherty, Feldman and Benotto
    JJ.A.

BETWEEN

Stuart
    Weinstein

Respondent (Appellant)

and

Toronto Standard Condominium
    Corporation No. 1466

Moving Party (Respondent)

Timothy M. Duggan, for the moving party
    (respondent)

Stuart Weinstein, acting in person

Heard: June 24, 2021 by video conference

On
    appeal from the decision of Justice B. Davies of the Superior Court of Justice,
    dated May 13, 2021.

REASONS FOR DECISION

[1]

This is a motion to quash the appeal for want of
    jurisdiction. We agree with the respondent that s. 49 of the
Arbitration
    Act, 1991
applies. Mr. Weinstein needs leave to appeal the decision of
    Davies J.

[2]

In oral submissions, Mr. Weinstein maintained
    his position that he had a right of appeal. However, he submitted that if the
    court determined leave was required, he was prepared to argue for leave to
    appeal today based on the material before the court on this motion. Counsel for
    the respondent was also prepared to proceed on that basis.

[3]

Consequently, the court determined that it would
    quash the appeal, but allow Mr. Weinstein to proceed with a motion for leave to
    appeal based on the materials filed on this motion. The court heard submissions
    from both parties.

[4]

It is not the practice of this court to give
    reasons on motions for leave to appeal and we see no reason to depart from that
    practice here. Mr. Weinstein has not established that the criteria for granting
    leave to appeal are met in this case. The appeal is quashed. Leave to appeal is
    refused. No costs.

Doherty
    J.A.

K.
    Feldman J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Moncur v. Plante, 2021 ONCA 462

DATE: 20210625

DOCKET: C68511

Fairburn A.C.J.O., Harvison
    Young and Jamal JJ.A.

BETWEEN

David Daniel Moncur

Applicant (Respondent)

and

Stéphanie Ginette Plante

Respondent (Appellant)

Michael H. Tweyman, for the appellant

Mimi Marrello, for the respondent

Heard: June 11, 2021 by video
    conference

On appeal from the orders of Justice Robert
    Pelletier of the Superior Court of Justice, dated February 20, 2020 and May 15,
    2020.

Jamal
    J.A.:

[1]

This appeal involves the courts power to make
    findings of contempt of court to sanction the breach of a parenting order in a high-conflict
    family law dispute.

[2]

The appellant mother appeals from (1) the order of
    the motion judge made on February 20, 2020, finding her in contempt of court
    for four breaches of the final parenting order of Kershman J. made on consent on
    November 20, 2018 (parenting order); and (2) the order of the motion judge made
    on May 15, 2020, ordering the appellant to comply strictly with the parenting
    order and to pay the respondent father $2,500 as sanctions for contempt and $10,000
    in costs.

Background

[3]

The parties married in 2007, had a child
    together in 2010, and separated in 2015. Parenting issues were resolved through
    the parenting order in 2018, when both parties were represented by counsel. The
    parenting order, which runs to 43 paragraphs over 12 pages, governs in meticulous
    detail the parties joint decision‑making responsibility and parenting
    time, including parenting decisions, their parenting schedule, communication
    between them, residence, travel, and documents and registrations. It also provides
    for resolving parenting disputes by negotiation, then mediation, and, finally,
    binding arbitration.

[4]

On November 12, 2019, the respondent appeared
    before the motion judge seeking an order that the appellant be found in
    contempt of court for breaching the parenting order 10 times between December
    2018 and July 2019. The respondent was represented by counsel and the appellant
    was self-represented. The respondent alleged that the appellant overheld the
    child twice, attended the childs activities and school several times during the
    respondents parenting time, unilaterally changed the date of the childs First
    Communion without appropriately advising the respondent, and failed to provide him
    with a copy of the childs Social Insurance Number card.

[5]

On November 25, 2019, the motion judge held the matter
    in abeyance until the parties completed an arbitration being scheduled for
    December 2019 (they had attended two mediation sessions, without success). Noting
    his strong sense of dismay at the acrimony that permeates the parents
    relationship at this point, he stated that deciding the contempt motion now
    would only serve to harden positions and add further to the atmosphere of
    mistrust and conflict. He also ruled that the childs best interests, which he
    said must remain central in these proceedings, would be best served by
    allowing the parties to negotiate collaborative parenting solutions. He asked them
    to advise him of the result of the arbitration and stated that he would then release
    his ruling on the contempt motion and would seek submissions on sanctions if
    necessary.

[6]

However, the matter did not proceed to
    arbitration and the parties appeared before the motion judge again on February
    3, 2020. Counsel for the respondent explained that the arbitration was at an
    impasse and that the court was causing more conflict by not releasing the
    contempt ruling, and asked for the ruling to be released without delay. The appellant
    expressed concern that the contempt motion was being weaponized against her
    and used to avoid the arbitration. The motion judge advised that he would
    release his ruling soon.

[7]

On February 20, 2020, the motion judge found the
    appellant in contempt for four of the 10 alleged breaches of the parenting
    order. He ruled that the appellant had violated the parenting order by
    unilaterally modifying the childs schedule with each parent twice,
    unilaterally changing the childs First Communion date without effective notice
    to or consultation with the respondent, and failing to provide the respondent with
    a copy of the childs Social Insurance Number card as required under the
    parenting order. The motion judge ruled that in each case the appellant had
    deliberately and defiantly disregarded the quite specific and detailed
    parenting order without just cause.

[8]

On May 15, 2020, the motion judge ordered the
    appellant to pay the respondent $2,500 as a sanction for the contempt and
    $10,000 in costs. He ruled that a monetary sanction was appropriate given the extent
    of the contempt and to impress upon the [appellant] her obligation to abide
    specifically by the [parenting] order, particularly in the context of this case
    where there is a complete lack of cooperation and flexibility between the [parties].
    He also ordered the appellant to comply strictly with the parenting order.

Issues

[9]

The appellant claims that the motion judge erred
    by (1) ruling that the appellant deliberately breached the parenting order and (2)
failing to consider discretionary factors before making
    findings of contempt of court.

Discussion

[10]

The following general principles govern the use
    of the courts power to find a party in civil contempt of court for breaching a
    court order:

1.

For a party to be found in contempt of court for
    breaching a court order, three elements must be proved beyond a reasonable
    doubt: (1) the order alleged to have been breached must state
clearly and
unequivocally what should
and should not
be done; (2) the party alleged to
    have breached the order must
have had actual
    knowledge of it
; and (3) the party allegedly in breach must have
    intentionally done the act that the order prohibits or intentionally failed to
    do the act that the order compels:
Carey v. Laiken
, 2015 SCC 17,
    [2015] 2 S.C.R. 79, at paras. 32-35;
Greenberg v. Nowack
, 2016 ONCA 949,
    135 O.R. (3d) 525, at paras. 25-26.

2.

Exercising the contempt power is discretionary.
    Courts discourage the routine use of this power to obtain compliance with court
    orders. The power should be exercised cautiously and with great restraint as an
    enforcement tool of last rather than first resort. A judge may exercise
    discretion to decline to impose a contempt finding where it would work an injustice.
    As an alternative to making a contempt finding too readily, a judge should
    consider other options, such as issuing a declaration that the party breached
    the order or encouraging professional assistance:
Carey
, at paras.
    36-37;
Chong v. Donnelly
, 2019 ONCA 799, 33 R.F.L. (8th) 19, at paras.
9-12;
Valoris pour enfants et adultes de Prescott-Russell
    c. K.R.
, 2021 ONCA 366, at para.
41; and
Ruffolo
    v. David
, 2019 ONCA 385, 25 R.F.L. (8th) 144, at paras. 18-19.

3.

When the issue raised on the contempt motion
    concerns access to children, the paramount consideration is the best interests
    of the children:
Ruffolo
, at para. 19
;
Chong
,
    at para. 11; and
Valoris
, at para. 41.

Issue #1: Did the motion judge err in concluding that the appellant
    deliberately breached the parenting order?

[11]

The appellant asserts that the motion judge erred
    in concluding that the appellant deliberately breached the parenting order in
    four respects.

[12]

First, although the appellant admits she
    breached the parenting order by overholding the child in the week of June 28,
    2019, when the child was to be with the respondent, she says she was justified in
    doing so because the respondent had not told her which camp the child would attend
    the next week. I do not agree. I see no error in the motion judges conclusions
    that the respondent was not required to comply with the [appellants]
    pre-conditions for the exchange to take place and that the overholding was
    unnecessary, unjustified and in deliberate defiance of the [parenting] order.

[13]

Second, although the appellant admits that she overheld
    the child on July 27, 2019 by registering him in a camp during the respondents
    parenting time, she says she told the respondent about this when she booked the
    camp but received no response from him. However, the respondent did object, through
    his counsel. Again, I see no error in the motion judges conclusion that the
    appellants conduct was in strict violation and deliberate defiance of the
    [parenting] order.

[14]

Third, the appellant says she unilaterally changed
    the date of the childs First Communion only to avoid traffic congestion from a
    large event in the city that weekend and says she emailed the respondent beforehand
    but used an old email address. Again, I do not agree that the motion judge
    erred. The motion judge was entitled to find that the parenting order required the
    appellant to notify the respondent of this change using Our Family Wizard, a
    co-parenting app, not email, and that this was more than an inadvertent lapse,
    and therefore a deliberate violation of the order.

[15]

Finally, although the appellant admits that she
    did not provide the respondent the childs Social Insurance Number card, even
    though the parenting order requires her to share all of the childs government
    issued identification documents with the respondent, she says the Social
    Insurance Number card is not government identification and in any event the
    respondent already knew the number. Once again, I disagree with her submission that
    the motion judge erred. I see no basis to interfere with the motion judges
    conclusion that the parenting order requires the timely exchange of governmental
    information held by the mother and that [t]hat obligation was clearly not
    met by the appellant failing to provide the respondent with the childs Social
    Insurance Number card. The motion judge was entitled to find in the
    circumstances that the appellants conduct demonstrate[d] a level of control
    by the [appellant] which the [parenting] order set out to specifically prevent.

[16]

I thus see no basis to interfere with the motion
    judges ruling that the appellant intentionally breached the parenting order in
    four respects.

Issue #2: Did the motion judge fail to consider discretionary
    factors before making findings of contempt of court?

[17]

The appellant asserts that the motion judge
    failed to consider relevant discretionary factors before making findings of contempt
    of court, namely, the best interests of the child and whether a contempt
    finding was a remedy of last resort.

[18]

I see no basis for the suggestion that the motion
    judge failed to consider the best interests of the child. The motion judge
    expressed concern for the childs best interests throughout the proceedings:

·

In holding the matter in abeyance to allow the
    parties to proceed to arbitration, the motion judge highlighted that the
    childs best interests must remain central in these proceedings and would be
    best served by allowing the parents to arrive at collaborative solutions to
    the challenges they face.

·

In ruling on the contempt motion, the motion judge
    emphasized that the larger issue was the well-being of a 9-year-old boy who
    has had to endure the very toxic and hostile relationship between his parents,
    which over time would have a devastating effect on [him].

·

The motion judge repeatedly stressed his concern
    for the childs best interests during the hearings, which, despite the parental
    acrimony, he presided over with laudable patience, sensitivity, and decorum.

[19]

I do, however, agree with the appellants argument
    that the motion judge did not appear to consider whether a declaration of contempt
    was a remedy of last resort or whether there were alternative enforcement options,
    such as a declaration that the appellant had breached the order or encouraging
    professional assistance. Without considering any alternative options, he
    appears to have proceeded directly from conclusions that the appellant
    intentionally breached the parenting order to declarations of contempt. Although
    the motion judge had earlier properly held the contempt ruling in abeyance to
    allow the parties to arbitrate their parenting conflicts, and offered to help the
    parties resolve their issues, his reasons do not suggest that he considered
    other enforcement options in lieu of ultimately making his declarations of contempt.
    The motion judge had to consider not only when he should issue his decision on the
    contempt motion, but also whether he should exercise his discretion to resort
    to a less severe enforcement option than declaring the appellant in contempt of
    court. In fairness to the motion judge, such other options do not appear to
    have been raised by the appellant, who was self‑represented, or by the respondent.
    Even so, I conclude that it was an error of law not to have considered such
    options:
Chong
, at para. 12.

[20]

It is especially important for courts to
    consider such options in high-conflict family disputes such as this one:
Chong
,
    at para. 12;
Valoris
, at para. 41. Otherwise, there is a danger that
    contempt proceedings may exacerbate the parental conflict to the detriment of
    the children. In appropriate cases, a staged approach, in which a declaration
    of breach precedes the opprobrium of a formal contempt order, can give the
    parties pause to reflect on their conduct and work on cooperative solutions in
    the best interests of their children. When, however, the court considers that a
    contempt order is truly a last resort and would not work an injustice, it may still
    decide in its discretion to make a formal order of contempt.

Conclusion

[21]

I would allow the appeal. I would set aside the findings
    of contempt of court and the sanctions imposed and replace them with
    declarations that the appellant intentionally breached the parenting order in the
    four respects found by the motion judge.

[22]

In all the circumstances, I would make no order
    as to costs, here or in the court below.

Released: June 25, 2021 J.M.F.

M.
    Jamal J.A.

I agree.
    Fairburn A.C.J.O.

I
    agree. Harvison Young J.A.