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), (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    any information that could identify the complainant or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273,
    279.01, 279.02, 279.03, 346 or 347,

(ii)  an offence under section 144 (rape), 145 (attempt to
    commit rape), 149 (indecent assault on female), 156 (indecent assault on male)
    or 245 (common assault) or subsection 246(1) (assault with intent) of the
Criminal Code
,
    chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately
    before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse
    with a female under 14) or (2) (sexual intercourse with a female between 14 and
    16) or section 151 (seduction of a female between 16 and 18), 153 (sexual
    intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross
    indecency), 166 (parent or guardian procuring defilement) or 167 (householder
    permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it
    read immediately before January 1, 1988; or

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

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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).

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

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

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. W.E.B., 2012
    ONCA 776

DATE: 20121114

DOCKET: C53146

OConnor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.E.B.

Appellant

Michael A. Crystal and Ashish Duvadie, for the appellant

Holly Loubert, for the respondent

Heard: November 7, 2012

On appeal from the conviction entered on August 25, 2010 and
    the sentence imposed on April 29, 2011 by Justice Robert F. Scott of the
    Superior Court of Justice, sitting without a jury.

By the Court:

(1)

Introduction

[1]

The appellant was convicted of three counts of sexual assault,
    two counts of sexual touching and one count of invitation to sexual touching
    and was sentenced to three years imprisonment
,
    together with a weapons prohibition and D.N.A. orders.  He appeals against his
    convictions on the sole ground of ineffective assistance of trial counsel.
[1]
He contends that his trial counsel was incompetent in the
    conduct of his defence in several respects, rendering her assistance
    ineffective and thereby causing a miscarriage of justice.

[2]

We conclude that the appellants ineffective
    assistance claim fails.  As a result, his conviction appeal must be dismissed.

[3]

To succeed on his ineffective assistance
    claim, the appellant must discharge his onus to establish: (1) the facts that
    underpin his claim; (2) the representation provided by his trial counsel was
    incompetent; and (3) his counsels incompetent representation resulted in a miscarriage
    of justice:
R. v. Joanisse
(1995),
    102 C.C.C. (3d) 35 (C.A.); leave to appeal to S.C.C. refused, [1996] S.C.C.A.
    No. 347;
R. v. T. (L.C.)
2012 ONCA
    116.  Incompetence is determined by a reasonableness standard and must be
    assessed without the wisdom of hindsight.  A strong presumption that counsels
    conduct fell within the range of reasonable professional assistance applies:
Joanisse
;
T. (L.C.)
.

[4]

It is unnecessary to address the entire litany of the appellants
    complaints against his trial counsel.  We are not satisfied that he has made
    out the requisite factual basis for his main complaints against her or that he
    was prejudiced by her conduct.  The following examples will suffice to make
    this point.

(2)

The Appellants
    Decision Not to Testify

[5]

The appellants most serious allegation of incompetence against his
    trial counsel is that, despite his repeated  indeed his allegedly insistent
    instructions to her, she refused to allow him to testify on his own behalf at
    trial.

[6]

The decision whether an accused should testify at his or her criminal
    trial is, of course, that of the accused.  While counsel can and should advise
    his or her client on this issue, in the final analysis the decision is that of
    the client.

[7]

As is customary on appeals based on ineffective assistance of counsel
    claims, fresh evidence was filed on appeal, on consent, by both the appellant
    and the Crown consisting in part of affidavit evidence from both the appellant
    and his trial counsel, on which they were cross-examined.

[8]

In her affidavit and related cross-examination, trial counsel swore that
    she discussed the issue whether the appellant should testify at trial with him on
    many occasions, that she told him a final decision on the issue should not be
    made until after the Crown had closed its case, and that, when the Crown did
    close its case, she advised the appellant against testifying.  She said that
    she thought throughout that the appellant would be a very poor witness and that
    his testimony would be damaging to his defence.  Our review of the transcript
    of the appellants cross-examination on his affidavit suggests that the latter
    assessment was well-founded.

[9]

Further, and more importantly, despite his allegations to the contrary
    in his affidavit and on many occasions during his cross-examination, the
    appellant in fact admitted on cross-examination that his trial counsel had told
    him that a final decision whether he would testify should not be made until the
    completion of the Crowns case and that when she ultimately advised him not to
    testify, he said fine.  The appellant claims that although he agreed not to
    testify, he did not mean to do so and that his acceptance of counsels advice
    was involuntary.  In effect, the appellant says that he said one thing but
    meant another.  This falls far short of a demonstration that trial counsel was
    incompetent in her approach to or handling of this issue.  Thus, the appellant has
    failed to establish the requisite factual basis for this incompetence
    allegation.

[10]

We
    note that trial counsels failure to obtain the appellants written
    instructions regarding his decision not to testify was ill-advised and contrary
    to counsels best interests, as the issues raised on this appeal illustrate.
    That, however, is a question of professional prudence, not incompetence.

(3)

The Alleged Failure
    to Prepare the Appellant to Testify

[11]

The
    appellant further submits that his trial counsel failed to prepare him to
    testify.  In contrast, trial counsel testified that she discussed his evidence
    in the case with him extensively and gave him tips on what to do and not to do
    when testifying on the stand.

[12]

Importantly,
    during his cross-examination, the appellant did not claim that he would have
    testified but for his lack of preparation by trial counsel.  On the appellants
    evidence, he was ready to testify at trial if counsel had permitted him to do
    so.  Moreover, again on his own evidence, the appellant did not regard the
    advice of his counsel as necessary concerning his proposed trial testimony.  On
    his cross-examination on his affidavit, the appellant said that he did not ask
    his trial counsel about what he would say on the stand since he knew what [he]
    was going to say on the stand.

[13]

During
    oral argument before this court, the appellant relied on the claim that his
    counsel did not adequately prepare him to testify to support the assertion that
    she never actually intended to call him as a witness at trial and that, in
    those circumstances, the quality of her eventual advice that he should not
    testify was suspect.  We reject this submission.

[14]

The
    appellants counsel advised him not to testify.  On his own evidence, the
    appellant accepted this advice.  If, at that point, the appellant had wished to
    testify, or to discuss the issue further with his counsel, the record suggests
    that an adjournment could readily have been obtained to accommodate this.  The
    record indicates that after the appellant told his counsel that he was fine
    with her recommendation that he not testify, his counsel then sought and
    obtained an adjournment of the trial for the balance of the afternoon, until
    the next day, to prepare her final submissions and discuss them with the
    appellant.  There is no reason to suppose that counsel could not have secured a
    similar adjournment if there had been any suggestion that the appellant wished
    to testify.

[15]

It
    must be emphasized that the appellants defence was a simple denial of the
    allegations against him, coupled with the assertion that at least one of the
    complainants had a motive to lie to avoid debt collection action by the
    appellant.  Extensive preparation was not required to advance this defence.

[16]

We
    note, as well, that there is good reason to doubt that the appellant would have
    listened to any advice from his counsel concerning his trial testimony.  During
    his evidence in support of his appeal, the appellant made it abundantly clear
    that he had lost faith in his counsel after his preliminary inquiry and that he
    believed he could have gotten [himself] off if [he] had been [his] own
    lawyer.

[17]

In
    all these circumstances, we do not accept the appellants complaint that his
    trial counsel was incompetent because she allegedly failed to prepare him to
    testify at trial.

(4)

The Alleged Prior
    False Complaint

[18]

The
    appellant also argues that his trial counsel was incompetent because she failed
    to call the biological father of one of the complainants as a witness at trial
    to establish that the involved complainant had made a prior false complaint of
    sexual assault against the witness.  Once again, the appellant has failed to
    make out the necessary factual basis to ground this claim.

[19]

The
    record indicates that trial counsel made various attempts to locate the witness
    in question, including by contacting Crown counsel, to no avail.  The appellant
    admitted on cross-examination that he did not know where the witness was living
    in the months preceding or during the trial.  On the record before us, there is
    no evidence that the relevant complainant ever made a false allegation of
    sexual assault against her biological father; rather this allegation rests on
    the appellants unsubstantiated assertion that she made a prior complaint of
    sexual assault and that the complaint was false.

[20]

In
    particular, there is no evidence before this court, including as part of the
    appellants fresh evidence, indicating how the further pursuit of this issue by
    trial counsel would probably have assisted the defence.  For example, there is
    no evidence before us from the complainants biological father or her mother or
    from the police establishing the fact and nature of the alleged prior assault
    complaint.

[21]

Consequently,
    on this issue as well, the appellant has failed to meet the evidentiary
    threshold for a showing that the trial verdict was a miscarriage of justice by
    reason of trial counsels conduct.

(5)

Other Allegations of
    Incompetence

[22]

The
    appellants remaining complaints of incompetence suffer from similar flaws.  In
    some instances, they lack the necessary factual foundation.  In other
    instances, no evidence of prejudice arising from the allegedly incompetent
    conduct of counsel has been identified.

[23]

We
    note, in particular, that during the course of oral argument, counsel for the
    appellant emphasized trial counsels alleged overall lack of preparation for
    the conduct of the appellants defence.  He submitted that this want of
    preparation led to an inadequate cross-examination of one of the complainants
    and a failure to effectively impeach her credibility.

[24]

We
    reject this submission.  In our view, trial counsels cross-examination of the
    relevant complainant, while perhaps not stellar, cannot be said to fall outside
    the realm of reasonable professional assistance.

(6)

Disposition

[25]

For
    the reasons given, the conviction appeal is dismissed.

RELEASED:

NOV 14 2012                                   Dennis
    OConnor A.C.J.O.

DOC                                                J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.

[1]
The appellant abandoned his sentence appeal.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Wong, 2012
    ONCA 767

DATE: 20121109

DOCKET: C53130

OConnor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Sai Wong

Appellant

Edward F. Hung, for the appellant

Alex Hrybinsky, for the respondent

Heard and released orally: November 6, 2012

On appeal from the convictions entered on December 6, 2010
    and December 22, 2010 and the sentences imposed on January 10, 2011 by Justice Joseph
    F. Kenkel of the Ontario Court of Justice, sitting without a jury.

By the Court:

I.        Introduction

[1]

The appellant, Andrew Sai Wong, was convicted of ten guns and
    drugs-related offences as follows: (1) trafficking in a narcotic (ketamine);
    (2) possession of a narcotic (ketamine); (3) four counts of possession of a
    narcotic (cannibis marijuana, ketamine and cocaine) for the purpose of
    trafficking; (4) careless storage of a firearm; (5) possession of a firearm
    without a licence; (6) possession of a firearm knowing its possession is
    unauthorized; and (7) possession of a loaded firearm without authorization or
    registration certificate.  The appellant was also convicted, following a guilty
    plea, of failing to comply with his recognizance of bail by being in possession
    of a cellphone.  His convictions on one count of possession of ketamine for the
    purpose of trafficking and possession of a firearm without a licence were
    stayed on the basis of
R. v. Kienapple
, [1975] 1 S.C.R. 729.

[2]

The appellant was sentenced to a global sentence of three years
    imprisonment, concurrent, on the guns and drugs-related offences (apart from
    those stayed), plus 30 days imprisonment, concurrent, on the breach of
    recognizance charge, together with ancillary orders.

[3]

On appeal to this court, the appellants conviction appeal with respect
    to the possession of a loaded firearm charge (s. 95(1) of the
Criminal Code
)
    was allowed.  In all other respects, his conviction appeal was dismissed:
R.
    v. Wong
, 2012 ONCA 432.

[4]

In light of his acquittal on appeal on the s. 95(1) charge, the
    appellant argues on this sentence appeal that his global sentence of three
    years imprisonment is unfit and excessive and that it should be set aside and
    a conditional sentence imposed.  He submits that a conditional sentence is
    appropriate given his personal circumstances and prospects and because, absent
    the s. 95(1) conviction, he would have received a sentence of less than two
    years imprisonment on the guns and drugs-related charges of which he was
    convicted.  He also argues that the trial judge erred in imposing a custodial
    sentence of 30 days on the breach of recognizance charge given his lack of a
    criminal record, the lack of aggravating factors in the commission of this
    offence and the time served by him in pretrial custody.  He submits that the
    sentence imposed for this offence should be reduced to time served.

II.       Global
    Sentence of Three Years Imprisonment

Guns
    and Drugs Offences

[5]

At the time of the appellants sentencing, a conviction for possession
    of a loaded firearm contrary to s. 95(1) of the
Code
was subject to a
    three-year mandatory minimum term of imprisonment.  The reasons of the
    sentencing judge indicate the overall length of the global sentence that he
    imposed was determined by the mandatory minimum sentence for this firearms
    charge and that the sentences on all other guns and drugs counts were made
    concurrent to conform with the imposition of this minimum sentence.

[6]

The parties accept, and we agree, that as the s. 95(1) conviction was
    set aside on appeal, deference to the sentence judges decision does not apply
    and we must fashion a fit sentence in all the circumstances.

[7]

The appellant maintains that he is a suitable candidate for a
    conditional sentence and the sentence imposed should be varied accordingly.  He
    points out that he was 23 years of age at the time of the offence and was under
    house arrest while on bail pending trial for about one and one-half years.  He
    argues that his drug trafficking was of short duration (two to three days), he
    is not a danger to society and, but for his original conviction on the s. 95(1)
    weapons offence, a sentence of less than two years imprisonment would have
    been imposed.

[8]

Notwithstanding the appellants acquittal on appeal on the s. 95(1) offence,
    we are of the view that a global sentence of three years imprisonment on the
    remaining drugs and guns-related offences is fit and appropriate in the
    particular circumstances of this case.

[9]

The evidence at trial established that the appellant was engaged in the
    business of drug trafficking for commercial purposes.  He was in possession of
    a sawed-off .22 calibre shotgun and stored ammunition near the gun in his
    bedroom.  The trial judge found that the shotgun was being kept by the
    appellant as a tool of the drug trade, a finding borne out by the sawed-off
    condition of the gun, reflecting an intention to conceal it.

[10]

The
    appellants firearms offences are serious.  Moreover, when the appellants
    bedroom was searched, the police also discovered 35.8 grams of ketamine, four
    grams of cocaine, a mix of Canadian and United States currency totalling about
    $2,000 Canadian, and a set of scales.  This too is serious.

[11]

The
    courts have repeatedly emphasized that the toxic combination of drugs and guns
    poses a pernicious and persisting threat to public safety and the welfare of
    the community.  The social ills, including associated criminal conduct, fuelled
    by this combination is now well recognized.

[12]

These
    offences called out for an exemplary sentence to achieve the important
    sentencing goals of denunciation and deterrence.  Indeed, the firearms
    offences, standing alone, warranted a significant jail term.  See
R. v.
    Danvers
, [2005] O.J. No. 3532.

[13]

The
    combination of drugs and guns is particularly concerning.  This combination is
    a serious aggravating factor on sentencing.  The sentencing judges reasons
    note the real tragedy that the combination of drugs and firearms has caused in
    the Greater Toronto Area, including York Region.

[14]

We
    recognize that the appellant was a first offender, that he has strong support
    from his family and that he wishes to pursue his career and educational plans.
    That said, he was not a particularly youthful offender (24 years of age at the
    time of sentencing) and, on this record, the terms of his house arrest while on
    bail pending trial were not particularly strict.  Those terms permitted the
    appellant to attend work in the company of one of his parents or his brother.
    That is not strict house arrest.

[15]

In
    all these circumstances, we are of the view that the global sentence of three
    years imprisonment remains appropriate as of the date of sentencing, January
    10, 2011.

III.      Sentence
    of 30 Days Imprisonment

Breach
    of Recognizance

[16]

The
    sentencing judge, as we have said, also imposed a sentence of 30 days
    imprisonment, concurrent, for the appellants breach of his recognizance.  The
    term at issue, a prohibition against possession by the appellant of a cellphone,
    was designed to impede his involvement in the drug trade.  We see no error in
    principle in the sentence imposed for the breach of this term nor is the
    sentence demonstrably unfit.

IV.     Disposition

[17]

Accordingly,
    the sentence appeal is dismissed.

RELEASED:

NOV -9 2012                                    D.
    OConnor A.C.J.O.

DOC                                                J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Wright, 2012
    ONCA 828

DATE: 20121128

DOCKET: C53588

Simmons, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Omari Jabari Wright

Appellant

Vincenzo Rondinelli, for the appellant

Andreea Baiasu, for the respondent

Heard: November 15, 2012

On appeal from the convictions entered on January 1, 2011
    and the sentence imposed on April 20, 2011 by Justice F.N. Marrocco of the Superior
    Court of Justice, sitting without a jury.

By the Court

[1]

The appellant appeals his convictions for robbery with a firearm, using
    a firearm in the commission of an indictable offence and the careless storage
    of a firearm. He also seeks leave to appeal his sentence and, if leave is
    granted, appeals sentence.

[2]

For the reasons that follow, the conviction appeal is allowed in part.
    Leave to appeal sentence is granted but the sentence appeal is dismissed.

A.

Conviction Appeal

[3]

On the conviction appeal, the appellant argues first that the trial
    judges verdict is unreasonable. We reject this submission.

[4]

The trial judge concluded that the only reasonable inference on the
    whole of the evidence was that the appellant was one of the two persons who
    committed the robbery minutes before his apprehension. The trial judge also
    concluded that the appellant had given his registered handgun to his cousin for
    use in the robbery. These conclusions were amply supported by the time,
    location, and circumstances of the appellants arrest and the seizure of the
    handgun.

[5]

The second ground of appeal is that the trial judge provided
    insufficient reasons for accepting the evidence of Police Constable Mangiardi
    in the face of contradictory evidence. This allegedly contradictory evidence
    centered around the officers initial observation of the appellant and his cousin,
    the other person involved in the robbery, a few minutes after commission of the
    crime.

[6]

We would not give effect to this ground of appeal. In our view, there
    was no serious inconsistency in the police evidence that had to be addressed by
    the trial judge or which could undermine his factual findings. Further, as
    noted by the Crown, the defence at trial did not suggest any such inconsistency,
    either in cross-examination of any of the police officers or in closing
    submissions.

[7]

The final ground of appeal is that the trial judge erred in failing to
    draw an adverse inference from the Crowns failure to call as a witness Ms.
    Anderson, a woman who had a relationship with the appellant. We disagree.

[8]

Although Ms. Anderson had involvement in the events of the evening in
    question, the Crown had no special access to her or particular power to compel
    her attendance at trial. Given that she had some kind of relationship with the
    appellant, it is understandable that the Crown decided not to call her as a
    witness.

B. Sentence Appeal

[9]

With respect to the sentence appeal, the appellant argues that the trial
    judge erred in finding that the gun was loaded and ready to fire at the time
    the robbery was committed. As a result, the trial judge erred in referring to
    this as an aggravating factor on sentencing.

[10]

We
    disagree. At the time the appellant and his cousin were arrested, the gun was
    loaded and ready to fire. The arrest happened mere minutes after the commission
    of the offence as the two men were running from the scene. It was reasonable in
    all the circumstances for the trial judge to have inferred that the gun had
    been loaded at the time of the offence and remained so for the few minutes
    between the commission of the offence and their arrest.

[11]

The
    appellant then argues that although the trial judge correctly found the fact
    that the robbery involved a home invasion constituted an aggravating factor on
    sentencing, he erred in failing to appreciate that the circumstances of the
    home invasion in this case distinguished it from other, more serious home
    invasion cases. In this case, the home invasion did not involve serious injury,
    lengthy periods of detention of the occupants or excessive violence.

[12]

We
    would not give effect to this ground. The trial judge was well aware of the
    circumstances of the home invasion. He specifically noted that the home
    invasion did not involve kidnapping, serious injury, sexual assault or death.
    This said, he properly noted that home invasions, by their nature, are traumatic
    for the victims of the crime. The victim impact statement filed at this trial
    confirmed that this case is no exception.

[13]

Finally,
    the appellant argues that the trial judge failed to accord sufficient weight to
    the appellants strict pre-trial bail conditions, the absence of injuries arising
    from the robbery and the disparity in sentence with that of his cousin. The
    appellant maintains that his cousin had a more active role in the offence and
    only received a one-year sentence. The appellant concedes that this disparity
    is, at least in part, due to the fact that his cousin was a young offender at
    the time of the commission of the crime.

[14]

We
    see no basis to interfere with the sentence imposed. The trial judge addressed
    and considered all the mitigating factors, as well as the disparity with the
    sentence imposed on the young offender. The mandatory minimum sentence for
    committing a robbery with a firearm is four years. A significant and
    aggravating factor in this case is that it was a home invasion robbery, carried
    out with a loaded firearm ready to fire. In light of these aggravating
    circumstances, the sentence of six years imprisonment imposed by the trial
    judge was not outside the range of appropriate sentences for this offence and
    the trial judge committed no error in principle in the sentence he imposed.

[15]

The
    Crown concedes that the conviction for use of a firearm in the commission of an
    indictable offence was not available in this case because of the conviction for
    robbery. As a result, that conviction should be set aside. However, setting
    aside that conviction does not affect the sentence imposed on the use of a
    firearm count as that sentence ran concurrently with the sentence imposed on
    the robbery count.

C. Disposition

[16]

For
    these reasons, the conviction appeal is allowed in part. The conviction for use
    of a firearm in the commission of an indictable offence is set aside, but the
    balance of the conviction appeal is dismissed. Leave to appeal sentence is
    granted, but the sentence appeal is also dismissed.

J.M.
    Simmons J.A.

E.A Cronk J.A.

Paul Rouleau J.A.

Released: November 28, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Zraidi, 2012 ONCA
    848

DATE: 20121130

DOCKET: C54021

Goudge, Rouleau JJ.A.
    and Ray J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Mohamed Zraidi

Appellant

R. Craig Bottomley, for the appellant

Scott Latimer, for the respondent

Heard: November 26, 2012

On appeal from the conviction entered on April 19, 2010
    and the sentence imposed on July 20, 2011 by Justice Ramez Khawly of the Ontario
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant argues that for two reasons the photo lineup
    identification should have been given no weight.

[2]

We do not agree. The fact that several months before the lineup the
    complainant was shown a grainy video of the scene on the night of the incident
    did not necessitate the conclusion sought by the appellant. Nor did the fact
    that the photo lineup had only six photos that the trial judge felt were fairly
    similar to the appellant.  The trial judge was alive to both these
    considerations in determining the weight to be given to the photo lineup identification.
    He also carefully recited the other factors he viewed as of some relevance on
    the identification question and concluded that the case was made out beyond a
    reasonable doubt.

[3]

In our view there was nothing unreasonable in the weighing exercise the
    trial judge undertook. There is no basis therefore for us to interfere with it.
    The appeal is dismissed. The sentence appeal was not pursued.


COURT OF APPEAL FOR ONTARIO

CITATION:

Richards v. Media
    Experts M.H.S. Inc., 2012 ONCA 769

DATE: 20121113

DOCKET: C55742

Simmons, Armstrong and Watt JJ.A.

BETWEEN

Lauren Richards

Plaintiff (Appellant)

and

Media Experts M.H.S. Inc. and Mark Sherman

Defendants (Respondents)

Robert C. Taylor, for the appellant

Andrew C. Lewis, for the respondents

Heard: October 30, 2012

On appeal from the order of Justice Suzanne M. Stevenson of
    the Superior Court of Justice, dated June 15, 2012.

ENDORSEMENT

[1]

The appellant sued her employer, the corporate respondent, for damages
    for wrongful dismissal.  She also sued the executive chairman of the
    corporation (the personal respondent) for damages for the torts of
    intentional and negligent infliction of nervous shock.

[2]

On a rule 21 motion, the motion judge struck out the amended statement
    of claim against the personal respondent as disclosing no reasonable cause of
    action and as having no reasonable prospect of success.

[3]

The material facts in the statement of claim are set out in the motion
    judges reasons.

[4]

The appellant raises a number of issues in this appeal.  However, the
    main argument put before us is that the motion judge erred in her conclusion
    that to permit a claim to proceed against the personal respondent would allow
    the appellant to circumvent a limitation of liability clause in the contract of
    employment between the appellant and the corporate respondent.  The clause in
    question limited a claim for wrongful dismissal to 12 months compensation.

[5]

The personal respondent was not a party to the employment contract.
    However, the motion judge concluded that the personal respondent took the
    benefit of the clause in question on the basis articulated by the Supreme Court
    in
London Drugs Ltd. v. Kuehne & Nagel International Ltd.
, [1992]
    3 S.C.R. 299.

[6]

In
London Drugs
, Iacobucci J., writing for the majority, stated
    at para. 257:

... I am of the view that employees may obtain such a benefit
    if the following requirements are satisfied:

1.      The
    limitation of liability clause must, either expressly or
impliedly
,
    extend its benefit to the employees (or employee) seeking to rely on it;

2.      The
    employees (or employee) seeking a benefit of the limitation of liability clause
    must have been acting in the course of their employment and
must have been
    performing the very services provided for in the contract between their
    employer and the Plaintiff (customer) when the loss occurred
. (emphasis
    added)

[7]

In our view, both of the above requirements in
London Drugs
are
    met in this case.

[8]

In respect of the first requirement, the appellant negotiated her
    employment agreement with the personal respondent who became her boss.  We
    agree with the submission of counsel for the respondents that the relationship
    was such that the parties could not have contemplated that the appellant could
    make claims against the personal respondent arising from her dismissal that she
    could not make against the corporate respondent.  The limitation clause does
    not make sense otherwise.

[9]

In respect of the second requirement, the material facts pleaded in the
    statement of claim against the personal respondent indicate that he was acting
    on behalf of the corporate respondent when he terminated the appellants
    employment.  The allegation in the statement of claim that the personal
    respondent acted on a frolic of his own is a conclusory statement that does
    not accord with the material facts pleaded and does not convert the actions of
    the personal respondent (as inappropriate as they may have been) into an
    independent tort.

[10]

The
    appellant also argued that the limitation clause should not apply in this case
    because it did not expressly name employees and officers of the corporation and
    was therefore ambiguous and subject to the application of the principle of
contra
    proferentem
.  We do not accept this argument.  For the reasons we have
    explained above, we are satisfied that the parties intended the limitation
    clause to apply to the personal respondent.

[11]

In
    the result, the appeal is dismissed.

[12]

The
    personal respondent shall have his costs on a partial indemnity scale fixed in
    the amount of $15,000, inclusive of disbursements and applicable taxes.

Janet
    Simmons J.A.

Robert P. Armstrong J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Roscoe v. Roscoe, 2012 ONCA 817

DATE: 20121126

DOCKET: C55604

Simmons, Cronk and Rouleau JJ.A.

BETWEEN

Peter Karl Roscoe

Appellant

and

Kendra Roscoe

Respondent

Peter Karl Roscoe, acting in person

Jirina Bulger, for the respondent

Heard: November 13, 2012

On appeal from the order of Justice Timothy Minnema of
    the Superior Court of Justice, dated April 25, 2012.

ENDORSEMENT

[1]

The appellant appeals from a child support
    variation order awarding lump sum child support to the respondent in the amount
    of $32,053.51 as requested by the respondent and dismissing the appellant's
    request for a retroactive reduction of child support. The order also dismisses
    the appellant's requests for leave to bring further motions (he had previously
    been declared a vexatious litigant) and his various constitutional challenges.

[2]

We agree that the appellant's financial
    circumstances had changed somewhat from the date of the original support order
    in which the trial judge imputed to him rental income of $16,800 per year from
    his home. The appellants home was seized and sold by a mortgagee in October
    2010. Nonetheless, we are not persuaded that the motion judge erred in dismissing
    the appellants claim for a retroactive reduction of child support and in
    granting the respondents request to vary the periodic child support order to
    an order for lump sum child support.

[3]

The appellant has never paid child support
    voluntarily since the original order was made in 2003. Nor has he made proper
    financial disclosure. Further, he has engaged the respondent in protracted
    litigation. Apart from the seizure of his home, the appellant did not
    demonstrate any other change in his circumstances. In 2003, the trial judge
    took account of the equalization payment in imputing investment income. The fact that the appellant may not be working now does not rebut the trial
    judge's conclusion that he is capable of working.

[4]

The child is now just under 14 years of age. No
    child support has been paid since March 2011. Even assuming a somewhat reduced
    level of ongoing periodic support would have been warranted from October 2010
    forward, the lump sum support awarded is not outside the range of what was
    appropriate.

[5]

In the circumstances, a
    lump sum award was appropriate and we are not satisfied that any retroactive
    variation of child support was necessary.

[6]

The motion judge was correct in holding that the
    appellants requests for leave to bring many of the motions he sought to
    advance had previously been dealt with  as had some of the motions. That said,
    in our view, the motion judge erred in failing to consider the appellants
    motion for leave to request access. The appellant had been granted leave to
    bring a motion to seek the involvement of the Office of the Childrens Lawyer. His
    advice to the court that he had determined that the Office of the Childrens
    Lawyer would not become involved was not dispositive of his request to advance a
    claim for access.

[7]

The appellant shall be entitled to request leave
    to bring a motion for access. The appeal is otherwise dismissed.

[8]

Costs of the appeal are to the respondent on a
    partial indemnity scale fixed in the amount of $6,500 inclusive of
    disbursements and applicable taxes.

Janet
    Simmons J.A.

E.A. Cronk
    J.A.

Paul S.
    Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Simopoulos (Re), 2012 ONCA 772

DATE: 20121114

DOCKET: C55367

OConnor A.C.J.O., MacPherson and Cronk JJ.A.

IN THE MATTER OF MASON SIMOPOULOS

AN APPEAL UNDER PART XX.1 OF THE
CODE

Mason Simopoulos, in person

Jill R. Presser and Lucy Saunders,
amicus curiae

James Thomson, for the Centre for Addiction and Mental
    Health

Mabel Lai, for the Crown

Heard: November 7, 2012

On appeal against the disposition of the Ontario Review
    Board dated, March 12, 2012.

ENDORSEMENT

[1]

This is an appeal from a decision of the Ontario Review Board
    (the Board) dated March 12, 2012 ordering the detention of the appellant in
    the Secure Forensic Unit
at the Centre for Addiction
    and Mental Health (CAMH) with the possibility of transfer to the General
    Forensic Unit with community living privileges at the discretion of the person
    in charge (a hybrid disposition).  A minority of the Board would have ordered
    the appellant be detained in the General Forensic Unit.

[2]

We admitted fresh evidence on the
    appeal.  That evidence disclosed that on June 29, 2012, the appellant absented
    himself from CAMH and refused to return or inform CAMH where he was.  He
    surrendered to CAMH four months later on November 7, 2012, the day before the
    argument of this appeal.  It is common ground that during his absence from
    CAMH, the appellant did not attempt to contact the complainant in the predicate
    criminal offence nor was he arrested or charged with any further criminal
    offences.

[3]

The appellant, with the assistance of
amicus
    curiae
, argues that the Boards disposition was
    not supported by the evidence, and, hence, that it is unreasonable, and
    further, that the majority made three legal errors in reaching its conclusion
    to make a hybrid disposition.

[4]

We dismiss the appeal.  We do not find
    it necessary to decide whether we would allow the appeal based on the record as
    it was at the time of the Boards disposition.  In our view, the fresh evidence
    relating to the appellants elopement from CAMH is sufficient to sustain the Boards
    disposition.

[5]

As CAMH points out in the fresh
    evidence, there is now a legitimate concern that the appellant may constitute a
    flight risk.  Whether he does or not is a matter that warrants further
    assessment.  Moreover, it appears from the record that the appellant may have
    little insight into his underlying medical condition, or into the correlation
    between his substance abuse and the predicate offence.  Again, his present state,
    four months after he was last seen by the medical staff at CAMH, should be
    assessed.  These concerns, it seems to us, support the wisdom of the hybrid
    disposition currently in place.

[6]

We are informed by counsel for CAMH
    that there will be an immediate assessment of the appellants condition.
    Should that assessment reveal that the appellant should be placed in the
    General Forensic Unit, those in charge of the hospital have the authority to
    make that placement.  We are told that such a placement could be made in a
    matter of weeks.  In the meantime, the appellant will be held in the Assessment
    and Triage Unit (the ATU).

[7]

We are concerned, however, that no
    matter what assessment is made of the appellants present condition this matter
    be brought back before the Board as soon as possible.  We note that after the
    Boards order on March 12, 2012, the appellant continued to be held in the ATU
    a secure environment  with limited programing  until he eloped at the end of
    June.  He was understandably upset.

[8]

We realize that the appellant is due
    for an annual review before the Board in February 2013.  However, we think it
    is important that the Board take a fresh look at the appellants case in light
    of the present circumstances well before that annual review date, if at all
    possible.

Dennis OConnor A.C.J.O.

J.C. MacPherson J.A.

E.A. Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Symmons v. Symmons, 2012
    ONCA 747

DATE: 20121106

DOCKET: C55122 & C55545

Laskin, Rosenberg and Tulloch JJ.A.

BETWEEN

William Symmons

Applicant (Respondent)

and

Mary Lou Symmons

Respondent (Appellant)

Sarah Boulby, for the appellant

Aaron Franks and Michael Zalev, for the respondent

Heard: September 13, 2012

On appeal from the orders of Justice Peter Z. Magda of
    the Superior Court of Justice, dated January 31, 2012 and May 3, 2012.

By the
    Court:

A.

introduction

[1]

Mary Lou Symmons appeals an order requiring her to pay her husband,
    William Symmons, an equalization payment of $117,514.50 and costs of $25,500.

[2]

The parties cohabited for five and a half years, were married for ten
    years, then separated in 2009.  They settled all of their differences but one:
    the division of Mr. Symmons pension.  That issue was tried and the trial
    judge, relying on expert evidence, valued each partys interest in the pension
    and survivor benefits.  His valuation yielded the equalization payment that
    Mrs. Symmons now appeals.

[3]

Mrs. Symmons raises numerous issues on her appeal.  Her overriding
    contention, however, is that the trial judge erred by not granting her a share
    in the amount Mr. Symmons pension interest accumulated during the period the
    parties cohabited before marriage.  The specific issues Mrs. Symmons raises on
    appeal are as follows:

(1)

The trial judge erred by failing to correctly apply the principles of
    unjust enrichment.

(2)

The trial judge erred by failing to apply Bill 133, the legislative regime
    for valuing pensions introduced at the beginning of this year.

(3)

The trial judge erred by failing to order an unequal division of the
    parties net family property under s. 5(6)(h) of the
Family Law Act
.

(4)

The trial judge erred by failing to order that Mrs. Symmons be allowed
    to satisfy the equalization payment over time.

(5)

The trial judges conduct of the trial deprived Mrs. Symmons of a fair
    trial.

(6)

The trial judges costs award is
    unreasonable.

[4]

We called on Mr. Symmons to respond only to issues 1, 4 and 5.  For the
    brief reasons that follow, we dismiss Mrs. Symmons appeal.

B.

background

(1)

The Parties

[5]

Mr. and Mrs. Symmons began living together in the fall of 1993.  They
    married in February 1999, and separated in October 2009.  Both were previously
    married and each has adult children.  They have no children together.  Mrs.
    Symmons is 56 years old.  Mr. Symmons is 69 years old.

(2)

Employment

[6]

When the parties met, Mr. Symmons worked for Ontario Power Generation
    (OPG) as a project manager.  Mrs. Symmons was employed as a representative
    for a printing card company.  When the parties began living together, they
    resided in Mississauga.  Soon after, OPG relocated Mr. Symmons to Pickering.
    To accommodate his relocation, the parties moved to Ajax.  Mrs. Symmons claimed
    that the move made it more difficult for her to service her sales territory.
    She eventually abandoned her business as a greeting card representative and
    opened a flower store closer to home.  She sold the store after Mr. Symmons
    retired in 2002.

(3)

The OPG Pension

[7]

Mr. Symmons was entitled to a pension from OPG.  In June 1995, Mr.
    Symmons designated Mrs. Symmons the beneficiary of his OPG pension.  In 2002,
    Mr. Symmons accepted an early retirement package from OPG, which included his
    full pension.  As a result of his retirement his pension came into pay.  He
    could have accepted a lump sum cash settlement from his pension plan.  Instead,
    he elected a pension in pay with survivor benefits.

[8]

Mrs. Symmons remains the beneficiary of the pension survivor benefits.  When
    Mr. Symmons dies, she will receive for the rest of her life monthly payments
    equivalent to two-thirds of the monthly payments Mr. Symmons received while
    alive.

[9]

In March 2000, a year after they were married, the parties signed a
    cohabitation agreement.  It contains a written acknowledgement that both
    parties had waived the right to independent legal advice.  In the agreement,
    Mr. Symmons agreed that he has no claim to any business owned by his wife from
    this date forward.  Similarly, Mrs. Symmons agreed that she has no claim to
    any pension of Bills from this date forward.  At trial, Mr. Symmons did not
    attempt to enforce the cohabitation agreement.

(4)

Partial Settlement of the Litigation

[10]

Shortly
    after the parties separated, Mr. Symmons began proceedings under the
Family
    Law Act,
R.S.O. 1990, c. F.3.  In April 2011, the parties signed partial
    minutes of settlement.  Mr. Symmons agreed to pay Mrs. Symmons an equalization
    payment of $205,875.84, reflecting all of the parties assets other than Mr.
    Symmons pension.  In addition, Mr. Symmons agreed to pay spousal support of
    $1,400 per month.

[11]

In
    November 2011, the parties signed further minutes of settlement to deal with
    spousal support.  Mr. Symmons agreed to pay time-limited support starting at
    $1,400 per month, increasing to $1,500 in May 2012, gradually declining to
    $1,305 in May 2016, and ending altogether in May 2021. At that time, Mr.
    Symmons will be 78 years of age, and Mrs. Symmons will be nearly 65.

[12]

The
    issues over the division of the pension and the survivor benefits were set down
    for trial.

(5)

The Trial

[13]

The
    trial took two days.  Mr. Symmons was represented by counsel; Mrs. Symmons was
    self-represented.

[14]

The
    parties pension interests were valued by experts, using the methodology under
    the legislative regime that preceded Bill 133,
Family Statute Law Amendment
    Act
, 1st Sess, 39th Parl, 2009 (the legislative reform of family pensions
    that came into effect on January 1, 2012).  In his reasons, the trial judge
    accepted the following figures for the purpose of calculating the equalization
    payment:

·

The after tax capitalized value of Mrs. Symmons survivor
    benefits: $310,824

·

The after tax capitalized value of Mr. Symmons pension interests
    accrued during marriage: $75,795

·

The after tax capitalized value of Mr. Symmons pension interests
    accrued from the time the parties began cohabitating  to the date of
    separation: $202,900

[15]

Mrs.
    Symmons urged the trial judge, in apportioning the pension interest, to take
    into account its increase in value during the cohabitation period, on the basis
    of equitable principles.  Mr. Symmons argued that he should only be required to
    share the growth of his pension during the marriage, in accordance with s. 4 of
    the
Family Law Act
.

[16]

The
    trial judge ultimately accepted Mr. Symmons position.  On the basis of the
    numbers above, he found that Mrs. Symmons owed an equalization payment to Mr.
    Symmons in the amount of $117,514.50 ($310,824 - 75,795 = 235,029 ÷ 2).

[17]

If
    the value of the pension interests and survivor benefits had been shared over
    the entire relationship, including the five and a half years of pre-marriage
    cohabitation, then the equalizing sum would have been closer to $60,000.

C.

the  issues

(1)

Unjust Enrichment

[18]

The
    evidence at trial showed that the value of Mr. Symmons pension increased by
    $127,105 during the five and a half years the parties cohabited before
    marriage.  On appeal, Mrs. Symmons again seeks an order for an equal share of
    that accrual  approximately $63,500  on the basis of unjust enrichment.  Such
    an order would reduce the equalizing sum she owes to Mr. Symmons by more than
    half.

[19]

Mrs.
    Symmons puts forward her claim for unjust enrichment on two related grounds.
    First, she says that she and her husband were engaged in a joint family
    venture during the period of cohabitation, as primarily evidenced by their
    mutual effort and decision-making:
Kerr v. Baranow
, 2011 SCC 10,
    [2011] 1 S.C.R. 269, at paras. 87-99. Second, she says that Mr. Symmons was
    enriched by the parties move to Ajax because it allowed him to continue to
    accrue his pension during the period of cohabitation.  She also claims that she
    suffered a corresponding deprivation because the family move led to the loss of
    her business as a greeting card representative.

[20]

The
    trial judge rejected Mrs. Symmons unjust enrichment claim.  He said:

I agree with Mr. Alexander that unless the respondent can show
    that there is somehow an implied resulting thrust or some unjust enrichment
    finding, finding a constructive trust to remedy any unfairness, the law in the
Family
    Law Act
is clear; the division of property is for married spouses.

I have listened very carefully to the respondent and I can see
    no valid reason in law to somehow find an implied constructive trust to assist
    her.  I appreciate that during the cohabitation, both pre and post-marriage,
    that the parties were close and discussed many things.  There is no evidence
    before me that would suggest, on the balance of probabilities, that the
    applicant made a promise to divide his pension inclusive of the cohabitation
    period.  I accept that it was his intent to divide his pension in accordance
    with the law.  He does not appear to me to be ungenerous; he did after all
    designate the respondent as the beneficiary of his plan, which will provide her
    with 66.66 percent of his pension after he passes on.

There is no deprivation here on the facts at all as I find it

The cohabitation period prior to the marriage is therefore
    excluded.

[21]

The
    trial judges finding that there was no unjust enrichment is reasonable.  We are
    not persuaded that we should interfere with it.  Below, we will briefly address
    the two grounds Mrs. Symmons puts forward for her unjust enrichment claim, and explain
    why we find them unpersuasive.  Before doing so, it is worth noting that this
    court has recently held in the vast majority of cases, any unjust enrichment
    that arises as the result of a marriage will be fully addressed through the
    operation of the equalization provisions under the
Family Law Act
:
McNamee
    v. McNamee
, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 66.

[22]

In
    regards to Mrs. Symmons first ground, a joint family venture is characterized
    by a relationship in which the contributions of both parties have resulted in
    an accumulation of wealth.  It can be identified with reference to the mutual
    effort of the parties, their degree of economic integration, their actual
    intent during the relationship, and the prioritization of the family unit in
    decision-making:
Kerr v. Baranow
, at paras. 87-99. For the purposes of
    an unjust enrichment claim, the applicant party must demonstrate that one party
    has retained a disproportionate share of the economic fruits of their joint
    efforts:
Kerr v. Baranow
, at para. 60

[23]

It
    is arguable whether the relationship between Mr. and Mrs. Symmons during the
    cohabitation period can properly be characterized as a joint family venture.
    The acknowledgements in the cohabitation agreement, though not relied on at
    trial, are some evidence of the parties intentions with regards to their
    economic integration. As we have said, Mr. Symmons acknowledged that he had no
    prospective claim to his wifes business, and Mrs. Symmons acknowledged that
    she had no prospective claim to her husbands pension.  Further, their period
    of cohabitation before marriage was relatively short, and they had no children
    together.

[24]

Even
    if the relationship exhibited some characteristics of a joint family venture,
    there is insufficient evidence that Mr. Symmons retained a disproportionate
    share of the assets accrued as the result of their joint efforts  namely, the
    pension.  His pensionable service at the time of retirement was twenty-five
    years, only five and a half of which he spent cohabiting with Mrs. Symmons.
    However, as a result of the beneficiary designation, she received an interest in
    the pension worth over $300,000, before equalization.  Relative to Mr. Symmons
    interest in the pension, which according to his financial statements is around
    $600,000, Mr. Symmons share does not seem disproportionate.

[25]

On
    the second ground, although Mrs. Symmons contends that the move to Ajax caused
    a deprivation to her and her business, the evidence at trial suggests
    otherwise.  While Mrs. Symmons claim to unjust enrichment is based on the
    cohabitation period,  this court has held that a judge may consider the
    relative status of the parties at the end of a marriage in ascertaining the
    merits of an unjust enrichment claim relating to the pre-marital period:
Roseneck
    v. Gowling
(2002), 62 O.R. (3d) 789, at paras. 28-30.

[26]

Although
    Mrs. Symmons was required to change her employment during the period of
    cohabitation, the value of her business appears to have increased significantly
    by the end of the relationship.  On the date of marriage, Mrs. Symmons
    business had a nominal value of $8,872.93.  In her financial statement of July
    2011, she listed the estimated market value of her business interests on the
    valuation date as $126,347.

[27]

The
    relative overall increase in each partys net worth during marriage also
    undermines Mrs. Symmons claim for unjust enrichment.  According to the
    respondent, Mr. Symmons net worth increased by $328,742.90.  Mrs. Symmons net
    worth increased by $653,221.26, virtually double that of her husband.  Mrs.
    Symmons did not contest these figures on appeal.

[28]

A
    final piece of evidence that suggests Mrs. Symmons has not been unjustly
    deprived in relation to the pension is the spousal support Mr. Symmons will pay
    out of his already equalized pension interest until May of 2021.

[29]

For
    these reasons, we decline to give effect to Mrs. Symmons unjust enrichment
    claim.

(2)

Bill 133

[30]

Effective
    January 1, 2012, both the
Family Law Act
and the
Pension Benefits
    Act
, R.S.O. 1990, c. P.8, were amended by Bill 133 to introduce a new
    legislative regime for the valuation of pension interests.  Under the
    transition provisions of the
Family Law Act
, ss. 10.1(8) and (9), the
    new regime applies even in cases where the valuation date preceded the coming
    into force of the amending legislation.  Thus, this new legislative regime
    applied to the valuation of the parties interest in Mr. Symmons pension.

[31]

In
    his reasons, the trial judge said that the amendment was of no assistance to
    Mrs. Symmons.  During argument, he said that it did not apply because he was
    dealing with a matter that arose before the amendment.  Counsel for Mr. Symmons
    acknowledges that the trial judge erred in law by holding that Bill 133 did not
    apply.  Counsel for Mrs. Symmons asks that we order a new trial at which the
    parties pension interests would be valued under the new legislative regime.

[32]

We
    do not accept Mrs. Symmons position.  Under s. 134(6) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43, this court may order a new trial only
    where a substantial wrong or miscarriage of justice has occurred.  We have no
    evidence to show that valuing Mr. Symmons pension under the previous
    legislative regime produced a substantial wrong or a miscarriage of justice.
    Indeed, we do not know whether a valuation under the new regime would have made
    any material difference, and even if it did, whether it would have benefited
    Mrs. Symmons or Mr. Symmons.

[33]

The
    parties agreed that the trial would proceed on the basis of the valuations
    before the court.  Neither party put forward at trial valuation based on Bill
    133 methodology.  Neither party asked for an adjournment to obtain one.

[34]

In
    this court, Mrs. Symmons did not seek leave to introduce as fresh evidence a
    valuation based on Bill 133.  In oral argument, her counsel acknowledged that a
    Bill 133 valuation would not include the pre-marriage period of cohabitation.
    Thus, we see no merit in putting the parties to the expense of a new trial
    simply to obtain a new valuation of the parties pension interests.  We decline
    to order a new trial for this purpose.

(3)

An Equal Division Under Section 5(6)(h) of the
Family Law Act

[35]

As
    an alternative to her unjust enrichment claim, Mrs. Symmons seeks an unequal
    division of net family property under s. 5(6) of the
Family Law Act
.
    Under s. 5(6), a court may award more or less than half the difference between
    the net family properties if equalizing would be unconscionable.  Mrs. Symmons submits
    that the trial judge erred in failing to order an unequal division.  We do not
    accept this submission.

[36]

This
    court has stressed that the threshold of unconscionability under s. 5(6) is
    exceptionally high.  A party seeking an unequal division must show that an
    equal division of net family property would shock the conscience of the
    court:
Serra v. Serra
, 2009 ONCA 105, 93 O.R. (3d) 161, at para.
    47.  In this case, the equalization of net family property does not come close
    to meeting this standard.  Accordingly, this ground of appeal fails.

(4)

Payment Over Time

[37]

Ordinarily
    a party required to make an equalization payment must make the payment right
    away.  However, s. 9(1)(c) of the
Family Law Act
gives the court
    discretion to order payments in instalments for a period of up to ten years,
    if necessary to avoid hardship.

[38]

Mrs.
    Symmons submits that the trial judge ought to have allowed her to satisfy the
    equalization payment to Mr. Symmons over a period of seven years.  She points
    out that she cannot access her survivor benefits now, and may not be able to do
    so for years.  Thus, it would have been reasonable to allow her to pay in
    instalments.

[39]

There
    is some merit in Mrs. Symmons submission.  However, we are not satisfied that
    she has met the statutory standard of hardship to justify an order under s.
    9.  An important factor in deciding whether equalization should be paid in
    instalments is whether the payor spouse has funds available to pay a lump sum:
Serra
    v. Serra
(2007), 36 R.F.L. (6th) 66, varied on other grounds,
Serra v.
    Serra
,

2009 ONCA 105, at para. 158.  Mrs. Symmons has already
    paid $60,000 of the equalization payment.  She has assets in excess of $300,000
    to satisfy the remaining $57,000 payment.  We therefore decline to order
    instalment payments.

(5)

Conduct of Trial

[40]

As
    we have said, Mrs. Symmons represented herself at trial.  She contends that the
    trial judge deprived her of a fair trial by discouraging her from
    cross-examining her husband to elicit evidence to support her unjust enrichment
    claim, by excessively intervening in her presentation of her case, and by
    making comments that demonstrated he had prejudged the case.

[41]

We
    do not accept Mrs. Symmons contention.  We have reviewed the record.  We are
    satisfied that the trial judge fulfilled his duty to a self-represented
    litigant.  He explained his role in the trial process to Mrs. Symmons at the
    outset of the hearing, he assisted her from time to time, and he gave her a
    fair opportunity to present her case.  Moreover, we see no evidence that he
    prejudged the case.  This ground of appeal, therefore, fails.

(6)

Costs

[42]

Mr.
    Symmons was successful at trial.  He did better than several  of his offers to
    settle.  He asked for costs of approximately $86,000.  The trial judge awarded
    him $25,500.

[43]

Mrs.
    Symmons submits that in making this costs award, the trial judge did not take
    into account her means.  We disagree.  In awarding Mr. Symmons substantially
    less than he sought, the trial judge expressly stated that he was mindful of
    Mrs. Symmons circumstances.  We therefore see no basis to interfere with the
    trial judges costs award.  Leave to appeal costs is refused.

D.

conclusion

[44]

The
    appeal is dismissed.  The parties may make written submissions on the costs of
    the appeal within ten days of the release of these reasons.

Released: November 6, 2012

JL                                                                              John
    Laskin J.A.

M.
    Rosenberg J.A.

M.
    Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Terrace
    Manor Limited v. Sobeys Capital Incorporated, 2012
    ONCA 782

DATE: 20121116

DOCKET: C55599

Weiler, Juriansz and Hoy JJ.A.

BETWEEN

Terrace Manor
    Limited

Applicant (Appellant)

and

Sobeys Capital Incorporated

Respondent (Respondent in Appeal)

Stephen Longo, for the appellant

Jennifer McAleer and Sarah Jane Turney, for the
    respondent

Heard and released orally: November 7, 2012

On appeal from the judgment of Justice Patrick J. Flynn
    of the Superior Court of Justice, dated May 2, 2012, reported at 2012 ONSC 2657.

ENDORSEMENT

[1]

Terrance Manor Limited appeals the judgment of the application judge
    dismissing its application for a declaration that the terms of the lease
    between it and its tenant, the respondent Sobeys Capital Incorporated, required
    that the amount of the property taxes payable by the respondent be calculated
    on a proportionate share basis, that is, based on the leased square footage
    in relation to the entire premises.

[2]

The central issue on this appeal is whether the tenants share of property
    taxes under the lease should be calculated on a proportionate share basis or
    whether there was sufficient official information to determine what the
    tenants taxes would have been if they had been separately assessed by the
    Municipal Property Assessment Corporation (MPAC).

[3]

Prior to 1998, Ontario municipalities issued separate bills for business
    taxes to each tenant.  As a result of amendments to the
Assessment Act
,
    R.S.O. 1990, c. A.31, effective in 1998, municipalities levy real property
    taxes based on a global assessment of the property by the MPAC.  Tenants no
    longer receive separate assessments.

[4]

The lease at issue was entered into before the amendments were enacted.
    The appellant argues that the application judge erred in his interpretation of
    the lease, particularly in light of several court decisions rendered since the
    amendments to the
Assessment Act
.  These decisions interpreted various
    clauses in leases entered into prior to the amendments as requiring the tenants
    share of property taxes to be calculated as a proportionate share of the taxes
    assessed against the landlord.

[5]

We disagree.  In our view, the application judge was correct in his
    interpretation of this lease and we would accordingly dismiss the appeal.

[6]

As the application judge noted, what is at issue is the interpretation
    of the clause in this lease between the parties.

[7]

The lease provides that if a separate assessment for taxes in respect to
    the leased premises is not available, the landlord and the tenant shall use
    their reasonable diligent efforts to  obtain sufficient official information
    to determine what such separate assessments would have been if they had been
    made.  It further provides that the tenants share shall be determined by the
    landlord reasonably and equitably allocating a portion of the taxes levied,
    rated, charged or assessed against the Shopping Centre to the Leased Premises
    having regard to the generally accepted method of assessment and applicable
    elements utilized by the lawful assessment authority in arriving at the
    assessment of similar development if that method is known

[8]

The application judge found that MPACs assessment for the plaza was
    created from assessment data, on a unit by unit basis, as shown on the
    valuation records.  He concluded that the valuation records are official
    because they emanate from and are authorized by MPAC, which produces them to
    record the assessment data it collects under the
Assessment Act
.  Having
    held that the records were official, he found that the information they
    contained was sufficient to determine what the taxes to the tenant would have
    been if a separate assessment had been made.  He noted that the appellant had
    in fact used MPAC valuation records to apportion taxes to the tenant for the
    years 2004-2009.  Therefore, there was sufficient official information to
    determine what a separate assessment would have been.  There is no basis for
    disturbing these findings.

[9]

We agree with the application judge that the cases relied upon by the
    appellant are not of assistance.  The wording of the lease in question differs
    from that of the leases considered in those cases in significant respects.

[10]

The
    appeal is accordingly dismissed.  The respondent shall be entitled to its costs
    on a partial indemnity scale in the amount of $13,000, inclusive of
    disbursements and applicable taxes.

K.M. Weiler J.A.

R.G. Juriansz
    J.A.

Alexandra Hoy
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Willmot v. Quinte
    West (City), 2012 ONCA 771

DATE: 20121109

DOCKET: M41754 (C55547 & C55548)

Simmons, Armstrong and Watt JJ.A.

BETWEEN

Julie Willmot

Appellant/Responding Party

and

Committee of Adjustment for the Corporation of
    the City of Quinte West,
Corporation of the Lower Trent
    Region Conservation Authority
,
Corporation of the
    City of Quinte West, Marlene Crowe and Steven Crowe

Respondents to the Appeal/
Moving Parties

AND BETWEEN

Julie Willmot

Appellant/Responding Party

and

Robert Allan Benton, Lynn Marie McMahon, Danielle
    Valentik, Re/Max Quinte Limited, Ian. W. Brady, Jennie Marlene Crowe,
Corporation of the City of Quinte West, Corporation of the
    Lower Trent Region Conservation Authority, Marlene Crowe and Steven Crowe

Respondents to the Appeal/
Moving Parties

Danielle Marks, for the Corporation of the Lower Trent
    Region Conservation Authority, Marlene Crowe and Steven Crowe

Suzanne E. Hunt, for the Corporation of the City of
    Quinte West

Julie Willmot, responding party, acting in person

Richard A. Coutinho, for the Public Guardian and Trustee

Heard and released orally: October 31, 2012

On motion to quash the appeal from the orders of Justice Kenneth
    E. Pedlar of the Superior Court of Justice, dated May 2, 2012.

ENDORSEMENT

[1]

The responding party on the motion (the appellant on appeal), acknowledges
    that she does not seek to appeal the interlocutory orders of July 6, 2010,
    October 15, 2010, and November 21, 2011. To the extent that the notices of
    appeal on file may reflect ongoing appeals of those orders, such appeals are
    quashed.

[2]

As for the appeal of the May 2, 2012 order, the appeal was perfected
    prior to it being dismissed.  In these circumstances, we see no basis on which
    to dismiss it for delay. The moving parties did not bring a motion for
    dismissal. It is the practice of the court to allow perfection after the
    deadline for perfection has passed up to the point of dismissal for delay as
    indicated in the notice from the Court Registrar.

[3]

As for the moving parties alternative request to dismiss the appeal of
    the May 2, 2012 order for lack of merit, it is the general practice of the
    court to deal with such motions at the hearing of the appeal. See
Schmidt
    v. Toronto-Dominion Bank
(1995), 24 O.R. (3d) 1 (C.A.).

[4]

In any event, in this case it appears that the responding party may have
    had a motion to vary the order for appointment of a litigation guardian before
    the court on May 2, 2012, which the court may not have considered. In these
    circumstances, the issue of the merits of the appeal is more properly dealt
    with on the appeal.

[5]

The motion to quash the May 2, 2012 appeal is therefore dismissed.

[6]

Costs of the motion will be to the responding party on a partial
    indemnity basis fixed in the amount of $2,453.77 inclusive of applicable taxes
    and disbursements.

Janet
    Simmons J.A.

Robert P. Armstrong J.A.

David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Willmot v. Quinte
    West (City), 2012 ONCA 825

DATE: 20121126

DOCKET: C55547 and C55548

Laskin, Blair and Tulloch JJ.A.

BETWEEN

Julie Willmot

Applicant (Appellant)

and

Committee of Adjustment for the Corporation of
    the City of Quinte West, Corporation of the Lower Trent Region Conservation
    Authority Corporation of the City of Quinte West, Marlene Crowe and Steven
    Crowe

Respondents (Respondents in Appeal)

AND BETWEEN

Julie Willmot

Plaintiff (Appellant)

and

Robert
    Allan Benton, Lynn Marie McMahon, Danielle Valentik, Re/Max Quinte Limited, Ian
    W. Brady, Jennie Marlene Crowe, Corporation of the City of Quinte West,
    Corporation of the Lower Trent Region Conservation Authority, Marlene Crowe and
    Steven Crowe

Defendants (Respondents to the
    Appeal)

Julie Willmot, self represented

Richard Coutinho, for the Public Guardian and Trustee

Paula Boutis, for Iler Campbell LLP

David DeMille and Suzanne Hunt, for the Corporation of Quinte
    West and agent for Steven & Marlene Crowe

Danielle Marks, for Lower Trent Conservation Authority

Heard: November 23, 2012

On appeal from the judgment of Justice Kenneth E. Pedlar
    of the Superior Court of Justice, dated May 2, 2012.

APPEAL BOOK ENDORSEMENT

[1]

We see no basis for interfering with the finding of Pedlar J.  who had
    been case managing all of these proceedings and approving the settlement
    entered into by the Public Guardian and Trustee as litigation guardian of Ms.
    Willmot. There was ample basis on the record before him supporting his
    conclusions: see
DeMichino v.Musialkiewicz
, 2012
    ONCA 458.

[2]

As one of many motions filed by Ms. Willmot before the motion judge on
    April 11, 2012, there was a motion by her under rule 7.06(2) for an order to
    continue the proceeding without the litigation guardian. It is unclear from the
    transcript of the proceedings, however, whether Ms. Willmot truly intended to
    pursue that motion but, in any event, we are satisfied that there was no
    admissible medical evidence that would have supported such an order at that
    time. Similarly, the fresh evidence tendered by Ms. Willmot on this appeal,
    even if admitted, does not change our view that there is no basis for
    interfering with the order of Pedlar J.

[3]

Nor do we see any basis for interfering with his order respecting the
    fees of Iler Campbell. It was open to Pedlar J. on the record before him to
    approve them, as he did.

[4]

Accordingly, the appeal is dismissed. Costs to the respondents fixed in
    the amount for $5000 all inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION:
Younis v. State
    Farm Mutual Automobile Insurance Company,

2012 ONCA 836

DATE: 20121129

DOCKET: C55216

Simmons, Juriansz and Epstein JJ.A.

BETWEEN

Nebal Younis

Plaintiff (Respondent)

and

State Farm Mutual Automobile Insurance Company

Defendant (Appellant)

and

Insurance
    Bureau of Canada and Ontario Trial Lawyers Association

Interveners

Eric K. Grossman, for the appellant State Farm Mutual
    Automobile Ins. Co.

Roman Baber, for the respondent Nebal Younis

John Craig, for the intervener Insurance Bureau of
    Canada

M. Steven Rastin and Stanley Pasternak, for the
    intervener Ontario Trial Lawyers Association

Heard: July 16, 2012

On appeal from the order of Justice G.P. DiTomaso of the Superior
    Court of Justice, dated February 21, 2012.

Juriansz
    J.A.:

[1]

This appeal was heard with four other appeals, which were released
    concurrently with this decision. Like the other appeals, this appeal raised the
    question of when, in light of s. 281(2) of the
Insurance Act
, R.S.O.
    1990, c. I.8 (the Act), insured persons can commence court actions against
    their own insurers to claim benefits under the
Statutory Accident Benefits

Schedule
, O. Reg. 34/10 (SABS).

[2]

Section 281(2) provides:

281. (2) No person may bring a
    proceeding in any court, refer the issues in dispute to an arbitrator under
    section 282 or agree to submit an issue for arbitration in accordance with the
Arbitration
    Act, 1991
unless mediation was sought, mediation failed and, if the issues
    in dispute were referred for an evaluation under section 280.1, the report of
    the person who performed the evaluation has been given to the parties.

[3]

As can be seen, s. 281(2) prevents insured persons from commencing court
    actions or proceeding to arbitration unless they have first sought mediation and
    mediation has failed.

[4]

The Financial Services Commission of Ontario (FSCO) is the
    administrative agency responsible for administering Ontarios statutory scheme
    regulating auto insurance. FSCO has developed a significant backlog of
    mediations. The insured person in this case, like the insured persons in the
    other cases, commenced court proceedings before their cases were mediated by
    FSCO. In all the appeals, the insurers applied to stay or dismiss the court
    proceedings as being barred by s. 281(2). The motion judges in all cases
    dismissed the insurers motions. The insurers appealed to this court.

[5]

The four other appeals involve similar facts and circumstances and the
    court issued one set of reasons that applied to all of them. The court
    concluded that the legislative scheme for the resolution of disputes set out in
    ss. 280 to 283 of the Act, the SABS and FSCOs Dispute Resolution Practice Code
    requires that the mediation process
be
    completed within 60 days from the filing of an application for mediation with
    FSCO, unless the parties agree to an extension of time. Once the 60-day time
    limit has expired, the parties may commence a court action or proceed to
    arbitration.

Subsection
    281(2) postpones

the right of insured persons to commence
    civil actions against their insurer in order to allow the mediation process to
    be completed within the time prescribed, but leaves them free to commence
    actions once that period has expired.

[6]

On this reasoning, the insurers appeals in the other four cases were
    dismissed, as the respondents commenced their court proceedings after the 60-day
    time period for mediation had expired.

[7]

The facts of this case differ from the four other appeals. This
    difference in facts leads to a different result. I would allow the appeal.

[8]

In this case, the respondent was injured in a motor vehicle accident on
    June 28, 2010. He filed a claim with the appellant for statutory accident
    benefits. The appellant denied certain benefits and a dispute arose. On July
    14, 2011, the respondent made an application to FSCO for mediation. A few days
    later, on July 22, 2011, he commenced the civil action that is the subject of
    this appeal. The appellant, relying on s. 281(2) of the Act, brought a motion
    to stay the civil action pending the holding of an actual mediation of all the
    issues in dispute by FSCO.

[9]

The motion was heard on February 21, 2012, well after the 60 days
    prescribed for the completion of mediation. The motion judge followed the
    reasoning of Sloan J. in
Cornie v. Security National Insurance Co.
,
    2012 ONSC 905, 109 O.R. (3d) 780, and concluded, as did this court in the
Cornie
appeal, that s. 281(2) of the Act allows an insured person to bring a civil
    proceeding if mediation was sought and mediation has not been completed within
    60 days of the filing of an application for mediation. An application is
    filed when it is delivered to FSCO.

[10]

The
    motion judge found that the respondent had satisfied the requirement of s.
    281(2), as mediation did not take place within 60 days of the respondent
    filing his application with FSCO. The motion judge concluded that the balance
    of prejudice as between the plaintiff and State Farm favours the continuation
    of the action.

[11]

On
    this reasoning, the motion judge declined to stay the action.

[12]

I
    would allow the insurers appeal. The motion judge evidently approached the
    motion as one that called upon the court to exercise its inherent jurisdiction
    to stay an action. However, the insurers motion called upon the court to apply
    a statutory bar to the commencement of an action. The terms of s. 281(2) of the
    Act are clear. No person may bring a proceeding until mediation has failed. The
    respondent jumped the gun and brought this proceeding before that had occurred.

[13]

I
    appreciate that by the time the motion to stay came before the court the 60-day
    time period had expired. From the practical perspective adopted by the motion
    judge, there would seem to be no reason to require the respondent to start
    again. However
,
the respondent commenced his action in
    contravention of the statute and the statute must be applied. Insured persons
    cannot commence civil actions until mediation has failed. To conclude otherwise
    would allow all insured persons to immediately commence civil actions knowing
    that the insurers motions to stay are not likely to be heard until after the
    expiration of the 60 day time period. The statute does not permit this
    stratagem.

[14]

The
    appeal is allowed. As the commencement of the action was statute-barred, it is
    quashed.

[15]

The
    appellant did not seek costs. There will be no order as to costs.

R.G. Juriansz J.A.

I agree J.M. Simmons
    J.A.

I agree Gloria
    Epstein J.A.

Released:
November 29, 2012


COURT OF APPEAL FOR ONTARIO

CITATION:
Zurek v. Ferris, 2012
    ONCA 742

DATE: 20121105

DOCKET: C53999

Laskin, Blair and Epstein JJ.A.

BETWEEN

Deanna Zurek and Theodore Zurek-Dunne by his
    litigation guardian, Deanna Zurek

Plaintiffs (Appellants)

and

Jon Ferris and Enterprise Rent A Car Canada
    Limited

Defendants (Respondents)

Karl Arvai, for the appellants

James K. Brown and Greg Robson, for the respondents

Heard: October 3, 2012

On appeal from the judgment of Justice T. David Little of
    the Superior Court of Justice, sitting with a jury, dated June 8, 2011.

ENDORSEMENT

[1]

The appellant, Deanna Zurek, suffered soft tissue injuries to her neck
    and back, when her car was struck from behind by the respondents car.  The
    respondents admitted liability for Ms. Zureks injuries.  After a trial, a jury
    assessed her damages as follows:

·

General non-pecuniary damages: $40,000

·

Past loss of income: $40,000

·

Future loss of income: $0

·

Future care costs: $30,000

·

Loss of guidance, care and
    companionship
damages for Ms. Zureks son: $15,000

[2]

Ms. Zurek seeks to set aside the jurys verdict and asks this court to
    order a new trial.  The overriding issue on the appeal is whether the trial
    judges charge to the jury deprived Ms. Zurek of a fair trial  or, in the
    words of s. 134(6) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43,
    caused a substantial wrong or miscarriage of justice.

[3]

We acknowledge that the charge was, to use Mr. Arvais word,
    unorthodox.   Moreover, some of the trial judges comments were unnecessary
    and not germane to the issues the jury had to decide.

[4]

We are nonetheless satisfied that the charge as a whole was fair.  It
    presented to the jury in a balanced way and in ordinary language the issues the
    jurors had to resolve and the evidence bearing on those issues.

[5]

For example, the trial judge instructed the jury:

·

You try and be fair and use your common sense to compensate the
    plaintiff for the injuries she sustained, the hurt that she got as a result of
    the negligence because Ferris drove into the back of her car.

·

You dont have to find great big bumps and blood and cuts to
    have a real whiplash.

·

 [I]ts hard to determine whether its faking or whether its
    real or whether its embellished.  But Ill tell you something, she all of a
    sudden went for treatment after the accident  something happened.  Things
    changed, think about that.

·

Sit and pick a fair figure, using your common sense, that will
    properly compensate her for her lost future wages caused by [the] accident

·

 [S]hes entitled to be put right back in the position she was
    in before, as best we can, so she doesnt have to walk around with a neck brace
    and a cane, trying to wash dishes.  She doesnt have to do that, so were
    trying to put her back.

[6]

That few objections to the charge were raised at trial supports our
    conclusion that the charge as a whole was fair.

[7]

Ms. Zureks main, though not only, complaint with the jurys verdict was
    its decision not to compensate her for future income loss.  The evidence at
    trial, however, reasonably supported the jurys decision on this issue.

[8]

Before the accident, Ms. Zurek had  frequently switched jobs and had
    never earned more than a modest income.  By the time of the accident, her
    commitment to remaining involved in her business, Get-Around-Organics, was
    questionable.  Indeed, when the accident occurred, she was home-schooling her young
    son.  Then, about a year before the trial, she moved from London to the
    Bracebridge area where she spent the summer in a park and leased a cabin for
    the winter.

[9]

Ms. Zurek had the burden to establish on a balance of probabilities that
    the accident prevented her from earning an income similar to her pre-accident
    income.  It is apparent from the verdict that in the jurys opinion, she failed
    to do so.  We cannot say that this opinion was unreasonable.

[10]

Finally,
    we are not persuaded that the trial judge made any legal error in his charge.
    He told the jury, [t]he lawyers have gone through the questions with you, the
    lawyers have even put the law to you and I think theyre right, generally.

[11]

The
    trial judges charge was not perfect.  But in the words of this court in
Brochu
    v. Pond
(2002), 62 O.R. (3d) 722, at para. 68 it got the job done.

[12]

Accordingly,
    the appeal is dismissed, with costs in the amount of $15,000, inclusive of
    disbursements and applicable taxes.

John Laskin J.A.

R.A. Blair J.A.

G.J. Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

1250264 Ontario
    Inc. v. Pet Valu Canada Inc.,
2012 ONCA 901

DATE: 20121220

DOCKET: M41716 (C55889) and M41717 (C55949)

LaForme and Watt JJ.A. and Lederman J. (
ad
    hoc
)

BETWEEN

1250264 Ontario Inc.

Plaintiff (Respondent)

and

Pet Valu Canada Inc.

Defendant (Appellant)

Proceeding under the
Class
    Proceedings Act, 1992

Jean-Marc Leclerc, for the respondent

Lawrence Theall and Bevan Brooksbank, for the appellant
    franchisees

Geoff Shaw and Eric Mayzel, for appellant Pet Valu
    Canada Inc.

Heard and released orally: December 14, 2012

On appeal from the order Justice G.R. Strathy of the
    Superior Court of Justice, dated July 27, 2012, reported at 2012 ONSC 4317.

ENDORSEMENT

[1]

The plaintiff moves to have the appeals of Pet Valu and the non-party
    franchisees quashed on the basis that the order complained of is
    interlocutory.

[2]

The test to be applied for deciding this issue is well settled and is
    the one described in
Ball v. Donais
[1993] O.J. No. 972 at para. 3:

While that order did not finally dispose of the rights of the
    parties to the litigation, it did subject to appeal therefrom finally dispose
    of the issue raised by that defence and thereby deprive the defendant of a
    substantive right which could be determinative of the entire action.

[3]

The order being appealed includes the following (at para. 3 of the
    order):

This court orders that any person whose opt out coupon has been
    declared invalid pursuant to this order shall be given a further opportunity to
    opt out following the release of the courts decision on the plaintiffs
    summary judgment motion or other final disposition of the action on its merits
    on terms to be fixed at that time.

[4]

We are of the view that the subject order is final as against Pet Valu
    for at least two reasons.

[5]

First, for those class members whose opt outs have been invalidated,
    they obtain a further right to again opt out after a final disposition of the
    action on its merits.  This result eliminates the
res judicata
effect
    in that the order deprives Pet Valu of receiving a binding judgment against all
    putative class members.

[6]

Second, because of the suspension of the limitation period under s.
    28(1) of the
Class Proceedings Act
, 1992, S.O. 1992, c. 6, Pet Valu is
    deprived of a limitations defence as against class members who opt out after
    the final disposition.

[7]

For these reasons, the order in issue is final in respect of Pet Valu.

[8]

As for the non-party franchisees, for purposes of expediency and to
    avoid inconsistent decisions, their appeal should be heard together with Pet
    Valus.

[9]

Accordingly, the motions to quash are dismissed.  In addition, the two
    appeals are to be heard together.

Costs

[10]

Pet
    Valu is awarded its costs fixed at $3,000 and the non-party franchisees are
    awarded their costs fixed at $2,000.  Each award of costs is inclusive of
    disbursements and HST.

H.S. LaForme
    J.A.

David Watt J.A.

S. Lederman J. (
ad hoc
)