COURT OF APPEAL FOR ONTARIO

CITATION: Metropolitan Toronto Condominium Corporation No.
    723 v. Reino, 2018 ONCA 223

DATE: 20180307

DOCKET: C63859

Doherty, MacFarland and Paciocco JJ.A.

BETWEEN

Metropolitan Toronto Condominium Corporation No.
    723

Applicant (Appellant)

and

Dante Reino

Respondent (Respondent in Appeal)

DOCKET: C63860

AND BETWEEN

Dante Reino

Applicant (Respondent in Appeal)

and

Metropolitan Toronto Condominium Corporation No.
    723

Respondent (Appellant)

Derek J. Bell and Brendan Clancy, for the appellant

Mark H. Arnold, for the respondent

Heard and released orally: February 23, 2018

On appeal from the judgment of Justice Jane Ferguson of
    the Superior Court of Justice, dated April 26, 2017.

REASONS FOR DECISION

[1]

The issue raised on this appeal is whether a condominium corporation
    having issued a prior clean status certificate in relation to a unit will, in
    the event it subsequently discovers matters it believes should be disclosed, be
    estopped from noting such matters in a subsequent status certificate requested
    by the owners of the unit.

[2]

The facts are not much in dispute. The respondent Dante Reino purchased
    the condominium unit from his mother in 2013. He requested a status certificate
    at that time and was issued a clean certificate.

[3]

When Mr. Reino decided to sell his unit in 2016 he requested a status
    certificate from the condominium corporation which he intended to use to market
    his condominium. The certificate he received noted at s. 12 thereof:

The Corporation has no knowledge of any circumstances that may
    result in an increase in the common expenses for the unit except: (1) the unit
    is in breach of s. 18(6) of corporations declaration amended, which provides
    that no dwelling unit owner shall make any change or alteration to the layout
    or configuration of any dwelling unit without the prior written consent of the
    Board of Directors. In this regard the unit configuration has been altered so
    as to add a second bedroom and the kitchen has been relocated without the
    consent of the Board of Directors. The policy of the Board of Directors is
    generally not to approve any changes that tend to add to the occupant load
    factor within the building. This circumstance may result in the corporation
    taking steps to remove the alteration and restore the unit to its original
    layout and the costs of the corporations actions in this regard being added to
    the common expenses attributable to the unit.

[4]

The appellant acquired his unit in 2013 from his mother who had owned
    the unit from 2004. At the time of her purchase she had received a clean
    certificate from the Condominium Corporation as her son did in 2013. The
    respondents evidence, accepted by the application judge, was that neither he
    nor his mother had carried out any alteration to the unit as described in para.
    12. The configuration of their unit was unchanged during their occupancy. If
    the configuration was changed from the original layout it must have been
    carried out prior to their occupancy. Despite the fact that representatives of
    the condominium corporation had been in the unit numerous times over the course
    of the Reinos occupancy  no one ever mentioned that the layout had been
    altered.

[5]

Section 18 (b) of the amended declaration provides:

Subject to the provisions of Section 17 and Section
    19 hereof, no dwelling unit owner shall make any change or alteration to the
    layout or configuration of any dwelling unit without the prior written consent
    of the Board of Directors.

[6]

Relying on s. 76(6) of the Act which provides:

The status certificate binds the corporation, as of the date it
    is given or deemed to have been given with respect to the information that it
    contains or is deemed to contain as against a purchaser or mortgagee of a unit
    who relies on the certificate.

[7]

The application judge concluded that the Act was clear and unequivocal
    and that the condominium corporation

·

is bound to its clean and clear status certificates dated August
    20, 2004 and October 13, 2013. It cannot rely on the alleged breach in its
    November 7, 2016 status certificate.

·

and is estopped from its November 7, 2016 status certificate as
    it is currently written.

[8]

She then granted the respondent the relief sought in his Notice of
    Application including:

·

a declaration that neither sections 12.1 nor 23 of the status
    certificate issued November 7, 2016 binds the applicant nor Unit 16, level 17
    which is the unit owned by the applicant;

·

an order directing the respondent to remove Sections 12.1 of the
    November 17, 2016 status certificate;

·

an order to amend s. 23.1 of that certificate by removing the
    words:

However, the unit
    layout has been altered without the prior consent of the Board of Directors of
    the corporation contrary to the declaration of the corporation. Please see
    Paragraph 12 for details.

·

an order directing that the condominium corporation issue a clear
    status certificate pursuant to s. 76 of the
Condominium Act
in
    relation to the subject unit.

[9]

The
Condominium Act
is among other things consumer protection
    legislation. The purpose of a status certificate is obvious  it is to bring to
    the attention of a prospective purchaser or mortgagee matters which may be of
    concern to them when contemplating the purchase of a unit.

[10]

The
    certificate is by s. 76(6):

 binding on the corporation as of the date it is given  as
    against a purchaser or mortgagee of a unit who relies on the certificate.

[11]

We
    agree that the condominium corporation is bound vis-à-vis the respondent Mr.
    Reino by the clean certificate it provided to him when he acquired the unit
    from his mother in 2013. That said, it does not follow that the condominium
    corporation is thereafter estopped from issuing anything but a clean
    certificate in relation to a unit where it has previously provided a clean
    certificate.

[12]

If
    a condominium corporation becomes aware, after issuing a clean certificate, of
    a circumstance that is required to be disclosed by virtue of s. 76 or the
    regulations, it must when it next issues a certificate include such information
    on it.

[13]

This
    does not change the fact that it will still be bound by its earlier certificate
    vis-à-vis the purchaser at the time or his mortgagee.

[14]

Here,
    where the condominium corporation discovered that the unit layout had been
    switched between the time it issued its 2013 certificate and when it issued its
    2016 certificate  it was obliged to include that information in the
    certificate. To do otherwise would be misleading to a prospective purchaser.

[15]

The
    respondent has a remedy if the condominium corporation negligently issued the
    clean status certificate to him, to his detriment. He can sue the condominium
    corporation for any diminution in the value of his unit by reason of any
    improper disclosure that may have occurred  provided he does so before the
    limitation expires in November of this year. In this sense, he is entitled to
    rely on the Certificate issued to him in 2013 and the condominium corporation
    is bound by it. If there was, in fact, negligence on the part of the condominium
    corporation it would be determined in such action.

[16]

It
    makes no difference that the respondent rather than a prospective purchaser asked
    for the certificate. The purpose for which the respondent asked for the
    certificate was to market his unit for sale. A clean certificate in these
    circumstances would be misleading to a prospective purchaser.

[17]

The
    application judge erred in concluding that the condominium corporation was in
    effect estopped from issuing anything other than a clean certificate in the
    circumstances of this case.

[18]

Whether
    or not there are other proceedings as a result of this and the issue arises
    with respect to whether or not the condominium corporation was negligent, is a
    matter for another day and it is not decided by this court.

[19]

The
    appeal is allowed and the orders of the application judge dated April 26, 2017
    are set aside.

[20]

We
    see no reason why costs should not follow the result as it the usual order.

[21]

Costs
    of the appeal to the appellant fixed in the sum of $17,500 inclusive of
    disbursements and HST.

[22]

The
    application judge fixed the costs below in the sum of $14,125 inclusive of
    disbursements and HST. In view of the result in this court, those costs are
    also awarded to the appellant for a total award to the appellant in the sum of
    $31,625.

Doherty
    J.A.

J.
    MacFarland J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mitchell (Re), 2018 ONCA 267

DATE: 20180319

DOCKET: C64560

Feldman, Watt and Paciocco JJ.A.

IN THE MATTER OF: Stacey Mitchell

AN APPEAL UNDER PART XX.1
    OF THE
CODE

Jessica Zita, for the appellant Stacey Mitchell

Andrew Cappell, for the Attorney General of Ontario

Gavin MacKenzie and Jessica Szabo, for the person in
    charge of the Centre for Addiction and Mental Health

Heard and released orally: March 15, 2018

On appeal against the disposition of the Ontario Review
    Board dated, May 25, 2017.

REASONS FOR DECISION

[1]

The sole issue raised by the appellant is that the Board erred in its
    disposition of May 25, 2017, following an early request hearing by the Board,
    by removing the possibility of community living from the appellants
    conditions.

[2]

The Board acted on a joint position that the appellant be detained in
    the secure unit with the potential to go to the general forensic unit but not
    to the community. During the hearing the appellant changed her position on the
    community condition.

[3]

Doctor Patel testified that the community living condition be removed
    following the appellants incidents of AWOL and some violence towards hospital
    staff. He did not feel that the community living possibility was a realistic
    goal for the coming year for the appellant.

[4]

The appellant argues that the hope of possible release to the community
    should be part of her disposition conditions. However Dr. Patel had testified
    that it was the frustration of having an apparently unattainable condition that
    contributed to the appellants anger and violent acting out as a result.

[5]

In our view, it was entirely reasonable for the Board to accept the
    recommendation of Dr. Patel, given the appellants recent acting out, that
    community living was not a realistic goal for the year and to remove that
    condition from the disposition.

[6]

The appellants annual review is scheduled for March 21, 2018, where the
    issue of community living as a condition of the new disposition can be
    reassessed by the Board, if a disposition is made and the appellant is still considered
    a significant threat to the safety of the public.

[7]

For these reasons, the appeal is dismissed.

K. Feldman J.A.

David Watt J.A.

David M. Paciocco J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Nichols v. Closs Jr., 2018 ONCA 295

DATE: 20180323

DOCKET: C64544

MacFarland, Huscroft and Nordheimer JJ.A.

BETWEEN

Sonya Nichols

Applicant (Respondent)

and

Allan Closs Jr.

Respondent (Appellant)

Ralph Lee, for the appellant

David Heeley, for the respondent

Heard and released orally:  March 21, 2018

On appeal from the judgment of Justice John Johnston of
    the Superior Court of Justice, dated August 19, 2016 with reasons reported at
    2016 ONSC 5232.

REASONS FOR DECISION

[1]

Allan Closs Jr. appeals from the order by the application judge that
the deceased did not create a life interest in the
    family home in favour of the appellant.

[2]

The applicant/respondent is the Estate Trustee of Allan Closs Sr.  She
    is also a sister of the appellant, who is the only son of Allan Closs Sr.

[3]

In the deceaseds will, Mr. Closs Sr. expressed the wish that his son use
    the family home as his home for as long as he wishes.  However, the deceased
    also provided in his Will that the family home was to be transferred to his
    three children jointly.

[4]

The appellant has lived in the home since his fathers death.  However,
    he did not maintain the home and, as a consequence, it fell into disrepair.  There
    were arrears of taxes that, at one point, almost led to the home being the
    subject of a tax sale.

[5]

The application judge reviewed the history of the matter and concluded
    that the deceased did not intend to create a life interest in the home in
    favour of the appellant.  Given that the appellant is apparently unable to
    maintain the home, the application judge ordered that the home be sold, along
    with other related relief.

[6]

Absent a palpable and overriding error, there is no basis for this court
    to interfere with the application judges decision.  The facts clearly support
    his conclusion, as does the law as reviewed by the application judge.

Conclusion

[7]

The appeal is dismissed. Costs of the appeal are awarded to the
    respondent on a partial indemnity basis fixed in the amount of $10,000
    inclusive of disbursements and HST. The costs of the application below, if the
    parties are unable to agree, will have to be determined by the application
    judge. This court does not have jurisdiction to fix those costs.

J. MacFarland J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Novak v. St. Demetrius (Ukrainian Catholic)
    Development Corporation, 2018 ONCA 219

DATE: 20180305

DOCKET: M48583 (C64044)

Juriansz, Miller and Nordheimer JJ.A.

BETWEEN

Svitlana Novak

Plaintiff/Appellant (Moving Party)

and

St. Demetrius (Ukrainian Catholic) Development
    Corporation and Ukrainian Canadian Care Centre

Defendants/Respondents (Responding Parties)

Svitlana Novak, acting in person

Nicola Brankley, for the responding parties

Heard: March 1, 2018

REASONS FOR DECISION

[1]

The appellant brings this motion to review the decision of Epstein J.A.
    sitting as a single judge in motions court ordering her to post security of
    costs of the appeal in the amount of $20,000. At the conclusion of the hearing,
    we dismissed the motion with reasons to follow. These are our reasons.

[2]

The appellant confirms that she has not got the ability to pay any costs
    that may be awarded against her in the event that she loses the appeal.
    Further, she hints that she would refuse to pay costs in any event.

[3]

We agree with Epstein J.A.s assessment that the appeal has scant
    prospects of success and so there is good reason to believe the appeal is
    frivolous. To succeed, the appellant would have to show that the trial judge
    made a palpable and overriding error in concluding she commenced the action out
    of time, and also in dismissing her case on the merits.

[4]

On the limitations issue the appellant will have to dislodge the trial
    judges factual finding that she led no evidence whatsoever as to what
    happened between June 2009 and April 2012. The trial judge did not find any
    facts upon which to infer that she was under a continuing mistaken belief that
    a legal proceeding was not the appropriate means to remedy her loss or damage.
    The burden was on the appellant in this regard.

[5]

The dismissal of the appellants claim on the merits rested on findings
    of fact and credibility. The trial judge found the appellant had failed to
    establish that the respondent had promised her a full-time job. We are not
    persuaded that the existence of different versions of her part-time employment
    contract is sufficient to undermine the credibility findings of the trial
    judge.

[6]

Justice Epsteins reasons for finding the appeal vexatious are well
    supported by the appellants communications that Epstein J.A. quoted in her
    reasons.

[7]

Justice Epsteins order was made prior to the release of this courts
    decision in
Chevron Corp. v. Yaiguaje,
138 O.R. (3d) 1, 2017 ONCA 827, which was included in the appellants
    materials
. We do not read that decision as altering the established
    test for ordering security for costs. The established test requires a judge,
    after analysing the specific factors spelled out in the rules, to consider the
    overall justness of the order sought. In
Yaiguaje v. Chevron Corp
. the
    court found that the motion judge had erred in principle in her consideration
    of the justness of the order.

[8]

In this case, we are satisfied the Epstein
    J.A. did not err in considering the ordering of security for costs to be just.
    Unlike in
Yaiguaje v. Chevron Corp
, the appellant in this case
    has a direct economic interest in the appeal. The respondent is not a global
    enterprise but a not-for-profit senior citizens care centre operated by a
    church. Unrecoverable costs will reduce the respondents resources it can
    dedicate to the care of its clients. There is no indication the respondent
    sought security for costs as a litigation tactic to end the appeal. The appeal
    raises no overarching, important, or novel issue. There is no apparent
    overriding public interest in allowing the appeal to proceed without the
    posting of ordered security for costs.

[9]

It is for these reasons that the motion
    was dismissed. Costs are awarded to the respondent fixed in the amount of
    $3,500.00 all inclusive.

R.G. Juriansz
    J.A.

B.W. Miller
    J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: O'Brien-Glabb v. National Bank of Canada, 2018 ONCA
    242

DATE: 20180313

DOCKET: C64281

Feldman, Pardu and Benotto JJ.A.

BETWEEN

Natasha OBrien-Glabb and Tanya Rhonda Bonnie
    OBrien-Glabb

Plaintiffs (Respondents)

and

National Bank of Canada

Defendant (Appellant)

John Webster, for the appellant

Joseph Dallal, for the respondents

Heard: March 2,
    2018

On appeal from the order of
    Justice Linda M. Walters of the Superior Court of Justice, dated August 23,
    2017.

By
    the Court:

[1]

Natasha OBrien-Glabb (the respondent) worked
    for the National Bank of Canada (the Bank). In April 2010, she began
    experiencing severe allergic symptoms while at work, which she suspected might
    be from mould or dust at her workplace. Her doctor advised that the symptoms
    could be due to a condition in her workplace and could be caused by mould. The Bank
    ultimately confirmed the presence of mould and undertook remedial work.

[2]

The respondents symptoms worsened and she began
    having episodes when not at work. She stopped working at the Bank in August 2011
    and has never returned. Despite seeing a number of doctors, the respondent was
    not diagnosed with anything that connected her condition to mould exposure at
    the Bank. She continued to believe, however, that the two were connected.

[3]

In February 2013, the respondent sought out a
    specialist, Dr. Patel, who concluded that she had a genetic deficiency that
    impedes her bodys ability to detoxify many toxins. Dr. Patel told the
    respondent that her symptoms were caused by exposure to mycotoxins released
    from toxic mould in the Bank building leading to organ damage as a result of
    that exposure.

[4]

The respondent commenced an action against the
    Bank in July 2013. The Bank brought a motion for summary judgment alleging that
    the claim was statute-barred because the cause of action arose, and the
    limitation period began to run in April or June 2010 when the respondent began
    to experience allergic symptoms. The motion judge dismissed the motion for
    summary judgment on the basis that the limitation period did not commence until
    February 2013 when the respondent received the diagnosis from Dr. Patel.

[5]

The appellant submits that the motion judge misapprehended
    the facts, and misapplied the law with respect to s. 5(1)(a)(iv) of the
Limitations
    Act 2002
, S.O. 2002, c. 24, Sched. B.

Errors of Fact

[6]

The appellant submits that the respondent knew
    in 2010 that her allergic symptoms were caused by mould and the motion judge
    erred when she found that, before the respondent saw Dr. Patel, [n]o doctor
    she saw suggested that the mould she was exposed to at the bank was the cause
    of her difficulties (at para. 31). The appellant contends that on the
    respondents own evidence, she thought her symptoms were caused by mould and
    that she was being investigated accordingly.

[7]

We do not agree. There is evidence that she was
    being investigated for a variety of illnesses other than an allergy to mould.
    Her physician Dr. Kundi, on May 7, 2012 said that she was suffering from an as
    yet undiagnosed constellation of symptoms.

[8]

The appellant further alleges that the motion judge
    erred in finding the limitation period began to run in February 2013 on the
    basis that the respondent suffered two separate and distinct injuries arising
    from the mould in the bank (at para. 25).

[9]

We also do not accept this submission. It was open to
    the motion judge on the evidence to make this finding.
Until the
    respondent saw Dr. Patel, she did not know that she had a genetic disorder.
    According to Dr. Patel, this disorder exacerbated the effects of her exposure
    to the toxic mould, which included oxidative stress and damage to various cell
    membrane of organs and organelle. He also gives the opinion that these
    exacerbated effects cause adverse health effects similar to exposures to
    hazardous substance[s] that adversely affect[] various systems in the body,
    akin to exposure to toxic chemicals or toxic metals.

[10]

There was therefore evidence on which the motion
    judge could conclude that organ damage is a separate and distinct injury from allergic
    symptoms and that the respondent did not know of that injury until February
    2013.

Misapplication of s. 5(1)(a)(iv)

[11]

The
Limitations Act, 2002
provides:

5
(1) A claim is discovered on the
    earlier of,

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

(i) that the injury, loss
    or damage had occurred,

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

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

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

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

[12]

The appellant submits that the motion judge
    erred in concluding that it was not appropriate for the respondent to start
    her action in 2010. It alleges that the motion judge reversed the onus of proof
    by requiring the appellant to establish that an action would have been appropriate
    when the allergic symptoms first appeared in 2010 and also that she applied a
    subjective rather than objective standard to the determination of when a
    proceeding would be an appropriate means to seek to remedy the injury, loss or
    damage.

[13]

We agree with the appellant that it was the
    respondent who bore the onus of leading evidence to
establish on a balance
of probabilities that a proceeding was not appropriate in 2010 (see:
Miaskowski (Litigation guardian of) v. Persaud
, 2015 ONCA 758
    at para 27;
Fennell v. Deol
, 2016 ONCA 249 at para16; and
Galota
    v. Festival Hall Developments Ltd.
, 2016 ONCA 585 at para 15).
However, the motion judges reasons, read as a whole, make it clear
    that she was satisfied the respondent had met this burden. She considered, for
    example, at para 32 that it would have been foolhardy to commence litigation
    supported by [the respondents] own subjective belief and not any medical
    evidence. This type of litigation would be risky and could expose her to costs
    if not successful. In essence the motion judge concluded that a reasonable
    person in the circumstances of the respondent would not have known that a legal
    proceeding would have been an appropriate remedy for possible exposure to
    allergens before 2013.

[14]

We see no error in the decision of the motion
    judge. Accordingly, the appeal is dismissed with costs fixed in the agreed upon
    amount of $10,000.00 inclusive of disbursements and taxes.

K.
    Feldman J.A.

G. Pardu
    J.A.

M.L. Benotto J.A.

Released: March 13, 2018


COURT OF APPEAL FOR ONTARIO

CITATION: Oliveira v. Aviva Canada Inc., 2018 ONCA 321

DATE: 20180328

DOCKET: C64609

MacFarland, Huscroft and Nordheimer JJ.A.

BETWEEN

Nancy Oliveira

Applicant (Respondent)

and

Aviva Canada Inc. and Scottish & York
    Insurance Co. Limited

Respondents (Appellants)

Deborah Berlach, for the appellants

Stephen J. Moreau and Michael Mandarino, for the
    respondent

Heard and released orally: March 23, 2018

On appeal from the judgment of Justice Markus Koehnen of
    the Superior Court, dated October 17, 2017.

REASONS FOR DECISION

[1]

We agree substantially with the reasons of the application judge. There
    can be no dispute that the legal test for the interpretive exercise he set out
    at para. 12 of his reasons is the correct one. The language of the policy
    clearly covers claims for the invasion of privacy which includes intrusion upon
    seclusion. By its policy language the appellants agree to pay those sums that
    the insured becomes legally obligated to pay as damages because of personal
    injury to which this insurance applies. The policy defines who is insured
    under the policy as follows:

The unqualified word Insured includes the Named Insured and
    also include the following additional Insureds but only in respect of liability
    arising from the operations of the Named Insured:

(ix) all employees of the Insured while acting under the
    direction of the Named Insured.

[2]

The Statement of Claim pleads that the applicant was at all material
    times employed in her capacity as a nurse at the hospital when she repeatedly
    accessed J.L.s private hospital records despite the fact that she, the
    applicant, was not involved in J.L.s care. The appellant argues that such
    unlawful unauthorized conduct cannot arise from the operations of a hospital,
    nor be considered to be at the direction of the name insured.

[3]

We disagree. In our view this is precisely the sort of conduct the
    policy was intended to respond to. The applicant was employed by the hospital
    as a nurse and while on duty, in the course of the hospitals operations, to
    use the language of the policy (which would include the maintenance of
    patients health records), she accessed the records that she had apparently no
    business doing because she was not involved in J.L.s care. The applicant was
    employed by the hospital, (she was essentially an employee 24/7) but was only
    acting under the direction of the hospital when she was on duty as such.

[4]

In our view the common sense interpretation of the language can only
    have this meaning. To hold as the appellant argues that unauthorized access to
    medical records does not arise out of the hospitals operations, or under the
    direction of the hospital because it would never direct such conduct, would
    negate the coverage intended. It is plain that the policy, in covering invasion
    of privacy, is intended to cover the type of conduct that is alleged in the
    Statement of Claim.

[5]

This was an application to determine the appellants duty to defend only,
    which requires a broader interpretive approach than does the obligation to
    indemnify. See
Monenco Ltd. v. Commonwealth Insurance Co.
, 2001 SCC 49
    at para. 29.

[6]

The appeal is dismissed. Costs to the respondent fixed in the sum of
    $7,500 inclusive of disbursements and HST in accordance with the agreement of
    counsel.

J. MacFarland J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Perri v. Perri, 2018 ONCA 237

DATE: 20180309

DOCKET: C62765

Pepall, Lauwers and Pardu JJ.A.

BETWEEN

Margaret Perri

Applicant (Respondent)

and

Enzo Perri

Respondent (Appellant)

Andrew Kania, for the appellant

Karen Cunningham and Athena McBean, for the respondent

Heard: December 11, 2017

On appeal from the judgment of Justice Kofi N. Barnes of
    the Superior Court of Justice, dated September 16, 2016, with reasons for
    judgment reported at 2016 ONSC 5833.

COSTS ENDORSEMENT

[1]

The issue of costs remains.  The respondent wife
    claims full recovery costs of $38,642.47. The appellant husband claims partial
    costs of $16,264.29.

[2]

Each of the parties supports his or her claim
    for costs with an argument that he or she was more successful on the appeal.

[3]

The most substantial issue on the appeal was
    whether the application judge erred in awarding spousal support to the wife.
    The appellant argued that there was no economic detriment to the wife flowing
    from the roles the parties adopted during marriage, and that there was
    therefore no entitlement to spousal support. He was not successful on this
    argument. The amount in issue was over $100,000 after considering the tax consequences
    of a lump sum spousal support as opposed to periodic support. The respondent
    conceded at the hearing of the appeal that those tax consequences should result
    in an amendment of the order. The respondent was successful in resisting the
    appellants argument that the application judge erred by failing to conclude
    that the son of the parties continued to be a child of the marriage. Other
    changes to the application decision were not controversial. The respondent was
    largely successful on the contested issues on the appeal.

[4]

There were some additional costs incurred by the
    respondent when the appellant was late in perfecting his appeal, and in
    responding to the appellants motion to introduce fresh evidence which was
    dismissed.

[5]

Partial indemnity costs are appropriate in this
    case, and I would award the respondent costs fixed at $28,000.00, inclusive of
    fees, disbursements and applicable taxes.

S.E.
    Pepall J.A.

P.
    Lauwers J.A.

G. Pardu
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Pey v. Pey, 2018 ONCA 284

DATE: 20180322

DOCKET: C64585

Hoy A.C.J.O., Juriansz and Miller JJ.A.

BETWEEN

Ali Javaheri Pey

Applicant (Appellant)

and

Kristina Pey

Respondent (Respondent on Appeal)

and

Director, Family
    Responsibility Office

Respondent (Respondent on Appeal)

Ali Pey, appearing as self-represented

Carol Craig, for the respondent, Kristina Pey

Deann Nixon, for the respondent, Director, Family
    Responsibility Office

Heard:  March 16, 2018

On appeal from the order of Justice Heather J. Williams
    of the Superior Court of Justice, dated October 10, 2017.

REASONS FOR DECISION

[1]

After a four-day trial in January 2016, the trial judge imputed annual
    income of $110,000 to the appellant father for the purpose of calculating
    support and ordered the father to pay ongoing spousal support and child support
    for his two daughters.  He also ordered the father to pay an equalization
    payment to the mother. The father did not appeal the trial judges order.

[2]

Instead, the father brought a motion to change the trial judges order
    and the order of Justice Doyle addressing access, dated September 25, 2015, as
    varied by the trial judge on a pre-trial motion heard at the beginning of
    trial. In response, the respondent mother brought a motion under rule 1(8)(c)
    of the
Family Law Rules
to strike the fathers motion to change on the
    basis that the father had failed to obey court orders. The respondent, Director
    of the Family Responsibility Office (the FRO), brought a motion for a default
    hearing, to enforce the fathers spousal and child support obligations under
    the trial judges order.

[3]

The motion judge allowed the mothers motion and struck the fathers
    motion to change. She prohibited the father from bringing a further motion to
    change, without leave of the court, before all amounts owing under all court
    orders in the family law and the enforcement proceedings have been paid in
    full. The motion judge also granted the FROs motion and ordered the father to
    pay lump sum amounts within specified time periods, in default of which the FRO
    is entitled to bring a motion for committal, on notice to the father, for the
    imprisonment of the father for up to 180 days.

[4]

On appeal, the father asks that the motion judges orders striking his
    motion to change and granting the FRO its requested relief be set aside.

[5]

We are not persuaded that there is any basis for this court to interfere
    with the orders of the motion judge.

[6]

The motion judge based her decision to strike the fathers motion on his
    non-compliance with several court orders. As of the hearing date, the father
    owed more than $60,000 in child and spousal support, an equalization payment of
    more than $50,000, and significant court-ordered costs.  The motion judge also
    found that the father had the means to make the payments that had been ordered
    and that these court-ordered payments have simply not been a priority for
    him. She concluded that it would not be appropriate to provide the father
    with an opportunity to request relief from this Court when hes chosen to
    ignore the orders of this Court which gave relief to the mother.

[7]

The motion judge identified and applied the proper principles in
    deciding a motion to strike under rule 1(8) of the
Family Law Rules
.
    She committed no palpable and overriding factual error in the application of
    those principles. There is no basis to interfere with her exercise of
    discretion.

[8]

In seeking relief, the FRO relied on the presumptions in s. 41(9) of the
Family Responsibility and Support Arrears Enforcement Act
, 1996, S.O.
    1996, c. 31 that the payor has the ability to pay the ordered arrears and to
    make the ordered subsequent payments. The FRO argued that not only had the
    father failed to rebut the presumption, but the evidence is clear that the
    father has the ability to pay the arrears.

[9]

The motion judge agreed. In granting the order sought by the FRO, the
    motion judge wrote that the father has the ability to pay the child and
    spousal support he owes but to date, he [has] chosen not to do so.  That
    finding was amply supported by the record.

[10]

Accordingly,
    the appeal is dismissed. The mother shall be entitled to costs of the appeal in
    the amount of $ 9,545, inclusive of HST and disbursements.  The FRO shall be
    entitled to costs of the appeal in the amount of $1,645, also inclusive of HST
    and disbursements.

Alexandra Hoy
    A.C.J.O.

R.G. Juriansz J.A.

Bradley Miller 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. A.S., 2018 ONCA 249

DATE: 20180314

DOCKET: C62625

Rouleau, Hourigan and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.S.

Appellant

Mark J. Sandler and Amanda Ross, for the appellant

Jessica Smith Joy, for the respondent

Heard: March 8, 2018

On appeal from the conviction entered on December 4, 2015
    by Justice Robert Del Frate of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

Overview

[1]

The appellant was convicted on one count each of
    sexual interference, sexual exploitation, and sexual assault following a jury
    trial. The offences arose out of two incidents involving the appellants
    stepdaughter. The first was alleged to have occurred when the complainant was
    13 years old; the second approximately 18 months later. The complainant was 18
    years old at the time of trial.

[2]

In the first incident, the complainant alleged
    that, while laying on her bed, the appellant put his hand underneath her pajama
    bottom and touched, but did not penetrate, her vagina. Nothing more was said or
    done. The complainant testified that she could not tell if the appellant was
    awake when this touching happened. The appellant testified and denied that the
    incident occurred, but acknowledged that he had once fallen asleep on the
    complainants bed. The defence motion for a directed verdict in relation to
    this incident was unsuccessful.

[3]

In the second incident, the complainant alleged
    that the appellant touched her torso while he was in her bed, told her that he
    had a crush on her, explained sex to her and informed her of his sexual
    prowess. He offered to have sex with her, but told her that he would respect
    her if she said no. The complainant declined his offer and ran from her
    bedroom. The appellant testified that he was in the complainants bedroom on the
    night in question to confront her about hard core pornography that he found on
    her computer earlier that day, and touched her only to see if she was awake.

[4]

The sole issue on appeal is the judges charge
    to the jury. The appellant submits that the trial judge erred 1) in failing to
    instruct the jury that evidence concerning one incident could not be used to
    support a finding of guilt in the other incident; 2) in instructing the jury on
    the requirements of
R. v. W. (D.)
, [1991] 1 S.C.R. 742; and 3) in failing to address important
    inconsistencies in the complainants testimony.

[5]

In our view, the trial judge erred in failing to
    instruct the jury that evidence concerning one incident could not be used to
    support a finding of guilt on a charge relating to the other incident. The jury
    charge was both deficient and confusing in respect of this issue, and as a
    result the conviction cannot stand.

Analysis

The jury charge

[6]

The indictment included three counts and the two
    incidents were relevant to each count. The Crown did not make a similar fact
    application in respect of the two incidents. Thus, the Crown had to prove each
    incident separately.

[7]

The trial judge understood the importance of
    separating the incidents in his instructions and discussed the matter with the
    parties at length prior to completing his charge. However, his instructions
    dealt with the need to treat the counts separately rather than treat the
    incidents separately. The trial judge stated:

The indictment on which you are trying S.A.
    alleges that he committed three specific offences. Each allegation is a
    separate charge. You must make a separate decision and give a separate verdict
    for each charge. The verdicts may but do not have to be the same on each
    charge. You must make your decision on each charge only on the basis of the
    evidence that relates to that charge in the legal principles that I tell you
    apply to make your decisions on that charge. You must not use evidence that
    relates only to one charge in making your decision on any other charge.

[8]

Although it is correct to say that each count in
    the indictment had to be decided separately based on the evidence related to
    that count, each count in the indictment included the two incidents, and these
    were not to be treated as similar fact incidents. The jury should have been instructed
    that each incident had to be proven separately, and that evidence concerning
    one incident could not be used to support a finding relating to the other
    incident.

[9]

We cannot accept the Crowns submission that the
    looseness of the language  the use of the term charge rather than incident
     is of no effect. Given the circumstances of this case  unrelated incidents included
    in the same counts  the language of the instruction is confusing. In these
    circumstances charge must mean count, because the trial judge instructed
    the jury that three separate decisions were required, and there were only two
    incidents.

[10]

The Crown submits that, read as a whole, the
    trial judges instructions would have been understood by the jury. We do not
    agree. Although the trial judge related the incidents to the charges later in
    his instructions, in our view, the failure to clearly separate the incidents
    for purposes of the required analysis gave rise to the risk that the jury would
    engage in propensity reasoning  that it would conclude that the appellant was surely
    guilty of one offence because of the unlikelihood of his having also been
    charged with another. In the circumstances of this case, where each charge
    concerned two incidents and the Crown conceded that one incident could not be
    used as similar fact evidence in relation to the other, the jury had to be
    informed not to use the evidence concerning one incident to support a finding relating
    to the other incident.

[11]

The failure of the appellants trial counsel to
    object to the charge is a relevant consideration, but it is not determinative. It
    was incumbent on the trial judge to properly instruct the jury on the need to
    separate the two incidents, regardless of counsels failure to object:
R. v. Brown
, 2007 ONCA 71, 221 O.A.C.
    17, at para. 16.

[12]

In light of our conclusion on this ground, it is
    unnecessary to address the other grounds of appeal.

Conclusion

[13]

The appeal from conviction is allowed, and a new
    trial is ordered.

[14]

The Crown concedes that the complainant did not
    meet the definition of a young person under s. 153(2) of the
Criminal Code
and that the charge of
    sexual exploitation should not have been left with the jury. Accordingly, an
    acquittal is entered on this count.

Paul Rouleau
    J.A.

C.W.
    Hourigan J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Al-Masajidi, 2018 ONCA 305

DATE: 20180327

DOCKET: C64047

Sharpe, Pardu and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jachja Al-Masajidi

Appellant

Jamaldin Najma, for the appellant

Kathleen Farrell, for the respondent

Heard: March 21, 2018

On appeal from the sentence imposed on August 25, 2014 by
    Justice R.J. Ledressay of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was sentenced to eight months in
    custody upon his plea of guilty to uttering a death threat to an officer at the
    Maplehurst correctional facility. At the time of sentencing, neither counsel
    nor the court adverted to the fact that if sentenced to six months or more, due
    to his immigration status, the appellant would face deportation without any
    right of appeal pursuant to the
Immigration and Refugee Protection Act,
S.C. 2001, c. 27, s. 36(1)(a). He asks this court to admit fresh evidence
    related to his immigration status and to reduce the sentence to six months less
    a day.

[2]

The appellant, now 30 years old, is a landed
    immigrant. He came to Canada at the age of 11. His history is complex and
    difficult. His family originates from Crimea, then in the Ukraine, and moved to
    Kenya for employment purposes. The Kenyan government ejected all foreign
    nationals after the 1998 bombing of the American Embassy. At that point, the
    family was rejected both by Russia and by the Ukraine. The appellant arrived
    with his family in Canada as refugees in 1999.

[3]

Since arriving in Canada, the appellant has
    faced a number of very difficult problems. His mother suffered mental illness
    and the appellant was apprehended by the Childrens Aid Society. He lived in
    various group homes and suffered from mental health issues. The Childrens Aid
    Society took no steps to secure citizenship for the appellant whereas the
    appellants siblings were placed in foster homes and they did obtain
    citizenship.

[4]

The appellant suffers from various mental health
    illnesses, including ADHD, bi-polar disorder, depression and marijuana induced
    psychosis. He has a lengthy criminal record including several violent offenses
    and convictions for failing to abide by court orders.

[5]

He lacks any support if deported to either
    Russia or the Ukraine. His mental health issues would make deportation to a
    place where he lacks family and community support unusually difficult.

[6]

The appellant has served the sentence under
    appeal and is now being held in immigration detention.

[7]

The Crown has also filed fresh evidence. There
    is an outstanding removal order against the appellant because of the sentence
    under appeal and a subsequent conviction for a weapons offence. He has no
    appeal from the removal order because of his eight-month sentence.

[8]

However, as a convention refugee, the appellant
    cannot be deported unless the Minister issues a danger opinion against him.
    The Canadian Border Services Agency has initiated the danger opinion process
    which is currently on-going. If his eight month sentence is reduced to less
    than six months, he would have a right to appeal the removal order. The danger
    opinion process would be suspended pending the determination of the appeal from
    the removal order by the Immigration Appeal Division.

[9]

In
R. v. Pham,
2013 SCC 15, [2013] 1
    S.C.R. 739, the Supreme Court of Canada held that a sentencing judge may take
    into account collateral consequences flowing from the immigration regime in
    determining an appropriate sentence. When those consequences were not known at
    the time of sentencing, they may be considered on appeal.
Pham
holds
    that the principles of individualization and parity, as well as the sentencing
    objective of assisting in rehabilitating offenders, make the collateral
    consequences of a sentence relevant (para. 11). This court summarized the
    effect of
Pham
in
R. v. Nassari
, 2015 ONCA 316 at paras 26  28.

[10]

Writing for the Court, Wagner J. held that when
    two possible sentences are both appropriate as regards the gravity of the
    offence and the responsibility of the offender, the most suitable one may be
    the one that better contributes to the offenders rehabilitation (para. 11).
    Wagner J. added at para. 12 that the weight to be given to collateral
    consequences varies from case to case and should be determined having regard to
    the type and seriousness of the offence. He accepted the proposition that
    [b]urdens and hardships flowing from a conviction are relevant if they make
    the rehabilitative path harder to travel. However, the sentence must be fit
    having regard to the crime and the offender. Wagner J. cautioned, at para. 15:

The flexibility of our sentencing process should
    not be misused by imposing inappropriate and artificial sentences in order to
    avoid collateral consequences which may flow from a statutory scheme or from
    other legislation, thus circumventing Parliaments will.

[11]

Wagner J. explained, at para. 14, a sentencing judge should therefore
    first determine whether the sentence that avoids the collateral consequences is
    even a possibility:

[A] sentencing judge may exercise his or her
    discretion to take collateral immigration consequences into account, provided
    that the sentence that is ultimately imposed is proportionate to the gravity of
    the offence and the degree of responsibility of the offender.

[12]

In our view, the collateral immigration
    consequences present in this case are clearly relevant to the appropriate
    sentence in this case. Those consequences were not known when the appellant was
    sentenced and it follows that they may be considered on appeal.

[13]

The question becomes whether the proposed
    sentence of six months less one day is a fit sentence and proportionate to the
    gravity of the offence and the degree of responsibility of the offender.

[14]

The sentencing judge stated that the eight-month
    sentence he imposed was at the very bottom end of the range and the Crown
    submits that any lower sentence would be unfit.

[15]

We disagree with that submission. In our view,
    the case law falls well short of establishing a range with an eight-month
    minimum for this offence. It is apparent from the record before us that the
    appellants mental illness was a major factor in this offence and has a
    significant bearing upon the degree of the appellants responsibility. While
    his mental illness does not excuse his conduct in law, we see it as a factor
    that should be taken into account in mitigation of sentence. We are satisfied
    that the criteria laid down in
Pham
for reducing the sentence have
    been met. Taking all of the appellants circumstances into account, a sentence
    of six months less one day is a fit sentence, particularly when combined with
    the collateral immigration consequences

[16]

For these reasons, the motions to admit fresh
    evidence are granted, leave to appeal sentence is granted, the sentence appeal
    is allowed and the sentence is reduced to six months less one day in custody.

Robert
    J. Sharpe J.A.

G.
    Pardu J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ariri, 2018 ONCA 226

DATE: 20180308

DOCKET: C62475

Pardu, Benotto and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Godwyn Ariri

Appellant

Godwyn Ariri, self-represented

Hannah Freeman, for the respondent

Heard and released orally: March 5, 2018

On appeal from the conviction entered on July 6, 2016 by
    Justice K. Moore of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant pleaded guilty following a ruling dismissing his
Charter
application. The
Charter
ruling was based on findings of fact.
    There is no basis for this court to interfere with that ruling.

[2]

The trial judge dealt with the factual issues now raised by the
    appellant, including the issue of whether he was handcuffed to the front or the
    back.

[3]

The appellant suggests that he had ineffective assistance of counsel at
    his trial but has not followed the steps to pursue that claim despite ample
    opportunity to do so. There is no basis on this record to conclude that his
    guilty plea was not voluntary and informed.

[4]

The appeal is dismissed.

G. Pardu J.A.

M.L. Benotto J.A.

I.V.B. Nordheimer 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-D.N., 2018 ONCA 248

DATE: 20180313

DOCKET: C61928

Watt, Brown and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B-D.N.

Appellant

Soloman Friedman, for the appellant

Nancy Dennison, for the respondent

Heard and released orally: February 22, 2018

On appeal from the conviction entered on October 29, 2015
    and the sentence imposed on March 11, 2016 by Justice Charles T. Hackland of
    the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

After a trial before a judge of the Superior Court of Justice, sitting
    without a jury, the appellant was found guilty of counts of sexual assault,
    sexual assault with a weapon, assault with a weapon and unlawful confinement.

[2]

The trial judge, invoking the principles in
Kienapple v.
    The Queen
, [1995] 1 S.C.R. 725, stayed
    the convictions of sexual assault and assault with a weapon and entered
    convictions for sexual assault with a weapon and unlawful confinement.

[3]

The appellant appeals
    his convictions. He advances three grounds of appeal. He says that the trial
    judge erred:

i.

by misapprehending
    various aspects of the evidence introduced at trial;

ii.

by intervening in the
    proceedings to such an extent and in such a manner that it deprived the
    appellant of a trial that was and appeared fair; and

iii.

by applying a higher standard
    of scrutiny to the evidence of the appellant than he applied to that of the
    complainant.

[4]

In our view, this appeal
    fails.

[5]

To take first, the
    submission that the trial judge misapprehended the evidence.

[6]

As we understand this
    submission, at least as framed in his factum, the appellant says, that the
    trial judge misapprehend the evidence about:

i.

whether the marital
    relationship was over by the date of the offence;

ii.

whether the appellant
    sought the complainants consent to the conduct that constituted the offences
    of which he was convicted; and

iii.

the elements of the
    sexual encounter itself.

[7]

We are not persuaded
    that the trial judge misapprehended the evidence in concluding that the marital
    relationship was effectively over on the date of the offences.

[8]

The complainant had made
    it clear that she wanted a divorce a week before the date of the offences, although
    she acknowledged that reconciliation efforts had occurred earlier that same
    month. The appellants true complaint, as it seems to us, is not that the trial
    judge misapprehended this evidence, but rather that he preferred the evidence
    of the complainant to that of the appellant. The trial judge was entitled to do
    so and his decision in that respect is entitled to deference on review in this
    court.

[9]

Second, we are satisfied
    that the trial judge did not misapprehend the evidence in concluding that the
    appellant never sought the complainants agreement to have sex, at least in the
    sense of not having directly asked her that question.

[10]

The appellant never did
    directly ask the complainant whether she agreed to have sex with him, rather, he
    simply inferred her consent from her body language and conduct and from her
    failure to respond to his comment make peace, make love. The trial judge adverted
    to this evidence and submission and rejected it as he was entitled to do.

[11]

Third, the trial judge
    did not misapprehend the evidence that the appellant admitted that he never
    asked the complainant whether he could whip her with a leather belt.

[12]

The appellants evidence
    was that he whipped the complainant after she said spank me. We are unable to
    tease out of this record any material misapprehension of the evidence on this
    issue.  What emerged clearly, as the trial judge found, was that there was no
    evidence that the appellant asked the complainant if he could whip her with a
    leather belt on this occasion.  That he did so without her voluntary agreement
    to this aspect of the sexual activity was sufficient to vitiate consent.

[13]

We acknowledge that the
    trial judge intervened on several occasions during the course of this trial. The
    reasons varied. But at bottom, this is not an exercise about the number of
    interventions. Taken cumulatively, we are satisfied that no case can be made out
    that these interventions deprived the appellant of a fair trial, compromised
    his right to make full answer and defence, or prevented his counsel from
    presenting and advancing the defence case through cross-examination or the
    introduction of evidence. Taken cumulatively and viewed through the eyes of a
    reasonable observer, present throughout the trial, we are not satisfied that
    the link between the interventions and the factual findings of the trial judge,
    which the appellant seeks to make, can be made out.

[14]

As for the argument
    about uneven scrutiny, it is rooted, as are many of similar kind, in the
    following path of reasoning.

The trial judge believed the complainant, despite
    inconsistencies or frailties in her evidence. The trial judge did not believe the
    appellant, despite inconsistencies or frailties in his evidence. Therefore, the
    trial judge erred in applying an uneven standard of scrutiny to the evidence.
    As this court has said on many other occasions, this argument moves in a
    circle. It fails as matter of logic. The conclusion does not follow from the
    premises. And it fails here, not only as a matter of logic, but also on a
    review of the trial judges reasons considered as a whole.

[15]

The appeal from
    conviction is dismissed.

[16]

The appellant also sought
    leave to appeal sentence. He made no submissions on that issue. Leave to appeal
    sentence is refused.

David Watt J.A.
David Brown J.A.
Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bygott, 2018 ONCA 243

DATE: 20180312

DOCKET: C61693

Rouleau, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Bygott

Appellant

Breana Vandebeek, for the appellant

David Friesen, for the respondent

Heard and released orally: March 7, 2018

On appeal from the conviction entered on September 24,
    2014 and the sentence imposed on February 11, 2016 by Justice William R. Wolski
    of the Ontario Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant raises four grounds of appeal. The trial judge erred by:

1.

amending the information relating
    to two counts;

2.

relying on cross-count
    reasoning;

3.

refusing his adjournment
    request; and

4.

curtailing the
    cross-examination of a witness.

[2]

For the reasons that follow, we would dismiss the appeal.

[3]

The appellant was convicted on multiple fraud and uttering forged
    document counts. The complainants were defrauded of over half a million
    dollars. Fundamentally, this was a documents case. Each complainant was
    provided a guarantee that their capital investment was secure through a Bank of
    Montreal term investment certificate provided to them by the appellant. The
    trial judge found that these certificates were forged.

[4]

The appellant was self-represented at trial.

[5]

The first issue pertains to the amendment of the information. Counts five
    and eleven were amended part way through trial to include additional
    complainants who were also said to have lost funds.

[6]

As for count five, Jeff Zelikovitz was originally the named complainant.
    He testified about the losses he, his mother and son incurred as a result of
    the fraud. Disclosure of the mother and sons losses, and the use of the same
    fraudulent certificates in relation to these individuals, was made years ahead
    of trial. Weeks ahead of trial, the Crown provided the appellant with document
    briefs, including the documents proving the losses to the mother and son.

[7]

Because count five of the information only referred to Jeff Zelikovitz,
    upon completion of his evidence, the Crown advised that he would seek to amend that
    count to include specific reference to the mother and son. To alleviate any
    potential prejudice arising from this amendment, the Crown agreed to recall
    Jeff Zelikovitz. The appellant then conducted a further cross-examination of
    Mr. Zelikovitz.

[8]

In these circumstances, it was open to the trial judge to conclude that
    there was no prejudice arising from the amendment. We do not agree with the
    appellants submission that the appellant was confused by the amendment and did
    not know how to respond. Nor do we accept that the mother and son had to testify
    in order to prove their losses. Deprivation in this case was proven through the
    documents. Given the disclosure made well in advance of trial and notice having
    been given by the Crown promptly after Jeff Zelikovitzs testimony, we see no
    unfairness arising from this amendment.

[9]

As for count eleven, the appellant conceded at trial that he was not prejudiced
    by this amendment. In our view, that concession was entirely appropriate in the
    circumstances.

[10]

This
    ground of appeal fails.

[11]

The
    second ground of appeal arises from an alleged error by the trial judge in acceding
    to the Crowns request to apply evidence across all fraud counts. The appellant
    argues that he was prejudiced by this approach because, as a self-represented
    person, he did not understand the purport of this evidentiary approach and was
    not in a position to respond appropriately in conducting his defence. We do not
    agree.

[12]

The
    Crown advised the court at the outset of trial that he would be asking the
    court to rely on a cross-count approach. He provided the appellant and the
    court with the cases he would be relying upon to advance this argument. At the
    conclusion of trial, over two months later, the Crown advanced the argument and
    relied upon the authorities he had earlier provided.

[13]

Although
    satisfied that the Crown had proven each of the counts on the evidence
    relating only to that count, the trial judge was also satisfied that a
    cross-count approach could be taken. In light of the documentary nature of the
    evidence in this case  the complainants each receiving the same forged
    certificates  we see no error in the trial judges cross-count approach. In
    the circumstances, we see no prejudice to the appellant. He had ample time to
    prepare for the Crowns argument regarding the application of evidence across
    counts and he received adequate assistance from the trial judge and the Crown.
    In any event, the trial judges findings do not depend on this cross-count
    approach.

[14]

The
    third ground of appeal challenges the refusal to adjourn the trial. Two judges
    dismissed the appellants application for an adjournment. The decisions are
    factually based and sound. Based upon a number of factors, including a long
    history of adjournments, vacating of dates, and changes in counsel, it was open
    to the trial judge to conclude that the appellant was trying to avoid a trial.
    The trial judge also determined that the appellant is an intelligent man, well
    educated, and capable of representing himself. In the circumstances, it was
    open to the trial judge to dismiss the appellants request for an adjournment
    on the eve of trial. We would not interfere with this decision.

[15]

As
    for the final ground of appeal, limiting the cross-examination, this was a
    trial management decision that was well within the discretion of the trial
    judge. We would also dismiss this ground of appeal.

[16]

The
    appellant also seeks leave to appeal against sentence. This courts decision in
R. v. Tinker,
2017 ONCA 552 is dispositive of the issue raised and the
    appellant concedes that, in light of that decision, the appeal cannot succeed.

[17]

The
    conviction and sentence appeals are dismissed.

Paul
    Rouleau J.A.

Grant
    Huscroft J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2018 ONCA 205

DATE: 20180302

DOCKET: C56497

Feldman, Paciocco and Fairburn JJ.A.

BETWEEN

Her
    Majesty the Queen

Respondent

and

Norman Campbell

Appellant

Ariel Herscovitch, for the appellant

Andrew Cappell, for the respondent

Heard: February 7, 2018

On appeal from the conviction
    entered on June 19, 2012, by Justice Nancy L. Backhouse of the Superior Court
    of Justice, sitting without a jury.

Fairburn J.A.
:

OVERVIEW

[1]

During the execution of a search warrant at a boarding house, the police
    located a shotgun secreted in the ceiling of the basement apartment where the
    appellant lived. They found a plastic bag containing shotgun shells above the
    kitchen ceiling. A partial palm print was found on the plastic bag.

[2]

The Crown called expert evidence suggesting that the palm print on the
    bag came from the same source as the appellants known print. Not entirely
    satisfied with the first experts testimony, the Crown brought an application
    to recall a witness who had previously testified in the trial, but on another
    topic. This witness also had experience in friction ridge analysis and, in
    fact, had been the person who had provided the expert opinion evidence on this
    issue at the preliminary inquiry. Over the objections of the defence, the Crown
    was permitted to recall the witness. He was declared an expert and, like the
    first expert, provided the opinion that the print on the bag was from the same
    source as the appellants known print.

[3]

The appellant was convicted of ten counts relating to the possession of
    a prohibited firearm and ammunition. He maintains that the trial judge erred
    by:

a.

allowing the
    Crown to recall the witness; and

b.

misapprehending
    the expert opinion evidence, giving rise to an unreasonable verdict and
    miscarriage of justice.

[4]

For the reasons that follow, I would dismiss the appeal.

GENERAL FACTS

[5]

The case against the appellant arose from seizures made during the
    execution of a search warrant in July 2006. Robert Rigole was the forensic
    identification officer at the search scene. By the time of trial, Mr. Rigole
    had left the police service. Mr. Rigole testified about a number of items that
    were seized from the basement apartment where the appellant was said to live,
    including:

(a) an
    unloaded 20 ½ inch sawed-off shotgun in the ceiling tiles above the bedroom;

(b) a
    live 12 gauge shotgun shell (compatible with the shotgun found in the ceiling)
    inside a canvas bag behind a dresser, next to which was a bag with court
    documents bearing the appellants name; and

(c) a
    23 inch machete under the mattress of the bed.

[6]

Inside the basement washroom was a safe containing $1,900. In the
    ceiling tiles over the basement kitchen was a white plastic bag, containing a
    total of eleven shotgun shells. The palm print forming the subject of this
    appeal was found on this bag.

[7]

The basement apartment was a self-contained unit with a locked door
    leading down to it. There was a significant amount of evidence connecting the
    appellant to the basement apartment. In the context of an unrelated
    investigation in mid-July 2006, the appellant told the police that he had been
    living in the apartment for about a month. The rental agreement stipulated that
    he was the only one who could live there. The landlord testified that the
    dresser (behind which the bag containing a shotgun shell was found), was not
    present in the basement unit when the previous tenant moved out.

EXPERT EVIDENCE

[8]

Mr. Rigole did the original comparison work between the partial palm
    print found on the plastic bag and the appellants known print. He authored a
    friction ridge analysis report on December 7, 2007. He also testified as an
    expert in friction ridge analysis at the preliminary inquiry. He was of the
    opinion that the print on the bag and the appellants known palm print were
    from the same source.

[9]

For reasons unrelated to this appeal, a long time
    passed between the preliminary inquiry and trial.
During this time, Mr.
    Rigoles friction ridge analysis report went missing. As Mr. Rigole had left
    the Toronto Police Service years before the trial, a new officer with expertise
    in friction ridge analysis was assigned to conduct a fresh analysis and author
    a new report.

[10]

Although
    the new officers findings varied in some respects from Mr. Rigoles, she came
    to the same ultimate conclusion that the impression on the bag originated from
    the same source as the appellants known palm print. She also testified about
    what she believed to be distortions in the palm print on the bag caused by the
    fact that the substrate material was wrinkled and creased. She explained that
    the distortions also could have been created by the manner in which the bag had
    been held, including the amount of pressure applied to the surface of the bag.

[11]

The
    officer agreed under cross-examination that what she believed to be distortions
    caused by how the print was left on the plastic bag surface, could very well
    be interpreted by another analyst as an actual dissimilarity between the print
    on the bag and the appellants known print. In re-examination, though, she
    remained firm in her opinion that the prints came from the same source.

[12]

Not
    surprisingly, the Crown was not entirely satisfied with the officers
    testimony, evidence that could be described as confusing at best. Accordingly,
    he sought to recall Mr. Rigole, whose friction ridge analysis report from 2007
    had by then been located. Over the objection of the defence, Mr. Rigole was
    permitted to take the stand again so that he could give opinion evidence about
    the source of the palm print. His testimony was consistent with his original
    report and evidence at the preliminary inquiry. His friction ridge analysis
    evidence will be reviewed later in these reasons.

RECALLING THE WITNESS

[13]

In
    permitting the Crown to recall Mr. Rigole, the trial judge focussed on the fact
    that: (a) the Crown had not yet closed its case; (b) Mr. Rigoles report had
    been disclosed years earlier; and (c) the defence suffered no prejudice.

[14]

The
    appellant maintains that the trial judge erred in allowing the Crown to recall
    Mr. Rigole. He argues that the defence had put all his cards on the table
    when he cross-examined the first expert and, as a result, it was unfair to
    permit the Crown to call another witness to testify on the same topic. In
    essence, the appellant maintains that the Crown should not have been permitted
    to undo the damage done to its case by the first officer who gave expert
    friction ridge analysis evidence.

[15]

Before
    the Crown has closed its case, a trial judge has a broad discretion to permit
    the recall of a witness, a discretion that must be exercised judicially and in
    the interests of justice. This discretion narrows as the trial proceeds through
    its various stages:
R. v. G.(S.G.),
[1997] 2 S.C.R. 716, at paras.
    29-30.

[16]

Different
    factors may be taken into account when considering whether to permit a witness
    to be recalled. Of course, as with all witnesses, the evidence to be called
    must be material to a live issue. In exercising her discretion, the trial judge
    will also have regard to the need for an orderly trial and any prejudice that
    may flow to the accused as a result of recalling the witness. Before the Crown
    closes its case, prejudice can typically be addressed through an adjournment,
    cross-examination of the re-called witness and other Crown witnesses and/or a
    review by the trial judge of the record in order to determine whether certain
    portions should be struck:
R. v. P.(M.B.),
[1994] 1 S.C.R. 555, at
    para. 22.

[17]

The
    request to recall the witness in this case was made at the earliest stage
    possible, before the Crown had closed its case, when the trial judge enjoyed considerable
    latitude in exercisingher discretion:
P.(M.B.),
at para. 22. The
    trial judge exercised her discretion with regard to the relevant factors,
    including her assessment that the appellant would not be prejudiced by Mr.
    Rigoles additional testimony. I see no error in the trial judges assessment
    about the absence of prejudice.

[18]

Mr.
    Rigoles expert report and curriculum vitae was disclosed over four years
    before trial. Expert witness notice had been given at that time. The defence
    had already had an opportunity to cross-examine him on his expert evidence at
    the preliminary inquiry. There is no suggestion that his evidence varied from
    what he testified to previously. In addition, Mr. Rigole held the same ultimate
    opinion as the first expert who testified at trial. All of these factors point
    away from prejudice.

[19]

Moreover,
    prejudice should not be measured by the incriminating value of evidence, but by
    trial fairness. Just because evidence might operate unfortunately for an
    accused, does not mean that it operates unfairly. It is important not to
    conflate these ideas.

[20]

There
    was nothing about Mr. Rigoles expert evidence that compromised the appellants
    entitlement to a fair trial or undermined his right to make full answer and
    defence. The trial judge gave sound reasons for allowing the Crown to recall
    Mr. Rigole. She exercised her discretion judicially and with regard to the
    appropriate factors. We should defer to her exercise of discretion in this
    regard. This ground of appeal must fail.

MISAPPREHENSION OF EVIDENCE

[21]

After
    reviewing Mr. Rigoles evidence, the trial judge gave reasons for accepting his
    expert opinion. The appellant maintains that the trial judge erred in doing so.

[22]

In
    this court, the appellant takes no issue with the fact that Mr. Rigole is an
    expert in friction ridge analysis. His argument here comes down to what he
    describes as the circular logic embedded in Mr. Rigoles evidence,
    circularity that the appellant maintains required the trial judge to reject the
    opinion offered.

[23]

The
    appellant seizes on the fact that Mr. Rigole pointed to six areas of similarity
    between the known and found prints to form the opinion that they came from the
    same source. Yet, as the appellant emphasizes, Mr. Rigole also acknowledged
    that there were visual differences in each of the areas of similarity. The
    expert testified that the differences did not arise from dissimilarities
    between the prints, but from distortions in the print left on the bag. The
    appellant argues that it is circular for the expert to conclude that the
    differences must be distortions rather than dissimilarities only because, as
    the expert testified, the similarities show that the print must have come from
    the appellant.

[24]

Given
    the admitted differences between the prints, the appellant maintains that Mr.
    Rigoles expert opinion amounted to nothing more than a bald assertion that the
    prints emanated from the same source. In these circumstances, the appellant
    argues that the trial judge was duty bound to reject the expert opinion
    proffered and her failure to do so reveals a clear misapprehension of evidence
    giving rise to an unreasonable verdict and miscarriage of justice. I disagree.

[25]

A
    misapprehension of evidence can involve a failure to take into account an item
    of evidence that is relevant to a material issue, a mistake about the substance
    of evidence, or a failure to give proper effect to evidence:
R. v.
    Morrissey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at para. 83. Leaving
    aside errors of law, a misapprehension of evidence can give rise to a
    miscarriage of justice in the form of an unreasonable verdict under s.
    686(1)(a)(i) of the
Criminal Code
or a miscarriage of justice caught
    under s. 686(1)(a)(iii) of the
Criminal Code
:
Morrissey
, at
    para. 87. The appellant maintains that the trial judges acceptance of Mr.
    Rigoles opinion constitutes a misapprehension of evidence because, if she had
    given his evidence proper effect, she would have rejected it. He argues that
    the trial judges acceptance of Mr. Rigoles opinion demonstrates that she
    misunderstood his evidence.

[26]

This
    argument can only succeed if the trial judge was duty bound to reject Mr.
    Rigoles opinion. I do not agree that the trial judge was required to do so. A
    brief review of the experts evidence demonstrates why I find it was open to
    the trial judge to use Mr. Rigoles opinion exactly as she did  as another
    piece of circumstantial evidence connecting the appellant to the shotgun
    shells.

[27]

The
    impugned evidence spans over 130 pages of transcript. Mr. Rigole testified
    about his training and experience in friction ridge analysis. As his expertise
    on appeal is accepted, there is no need to review his credentials.

[28]

Although
    Mr. Rigole analysed the entire print, for purposes of demonstrating the match,
    he only mapped out six of the corresponding points on the photos of the found
    and known prints. The trial judge was provided with the photos to assist her in
    following the evidence. It is clear from a review of the transcript that as
    each point of similarity and difference was examined upon, the trial judge was
    able to follow the experts explanations by reference to the photos she had in
    front of her.

[29]

The
    nub of the complaint in this case comes down to what Mr. Rigole acknowledged
    were differences between the found and known prints. Mr. Rigole explained that
    these differences arose from what he believed were distortions in the found
    print, likely caused by the crinkly nature of the plastic bag. Under
    extensive cross-examination, Mr. Rigole testified that it is not unusual to
    find distortions in prints. Whether taken at the time of booking or found at a
    crime scene, some degree of distortion will be present. This can be explained
    by different things, including the surface on which the print is found, the
    amount of pressure used to create the print, or the skin sliding on the surface.
    Although he agreed that each of the areas of similarity between the known and
    found prints contained distortive qualities, he was confident that they were
    not distorted so much that he could not use them for purposes of comparison.

[30]

Mr.
    Rigole agreed under cross-examination that if he had detected a true dissimilarity
    between the prints, then he would not have formed the opinion that they were
    from the same source. He rejected the proposition that distorted parts of the found
    print represented actual dissimilarities. He explained that, as in all cases, he
    looked at the entire print from top to bottom. He located characteristics he was
    confident in and he compared them. In this case, cumulatively, there were
    enough points of similarity to allow him to render the opinion that the print
    on the bag matched the known print. Having regard to his experience and
    training, and the sheer number of similarities found, Mr. Rigole rendered the
    opinion that the visible differences were nothing more than the result of
    distortions caused by what he believed to be the substrate surface on which the
    print had been left. In other words, it was the totality of the points of
    similarity that allowed him to form the opinion that any apparent dissimilarities
    were the product of distortion.

[31]

The
    trial judge was clearly alive to the concerns expressed on appeal. She specifically
    noted that Mr. Rigole acknowledged that there were visible differences with
    respect to all of his points on the chart due to distortion. Having heard the
    experts evidence, and having had the advantage of following the evidence with
    the use of the photos provided, the trial judge gave reasons for accepting Mr.
    Rigoles opinion, including:

(a) his
    lengthy experience as a fingerprint examiner;

(b) his
    ability to explain the procedure he followed and its underlying theory;

(c) his
    explanation around the level of detail found in the print;

(d) the
    fact that the other expert also concluded that the known and found prints were
    from the same source;

(e) the
    fact that a vigorous cross-examination did not undermine his opinion; and

(f) the
    fact that he was objective and fair.

[32]

Mr.
    Rigole did not take a just trust me approach to his opinion evidence. He
    provided an explanation as to how he arrived at his opinion. He was extensively
    cross-examined. Read as a whole, his evidence does not demonstrate circular
    logic. The trial judge was not overwhelmed by the mystic infallibility of
    expert opinion evidence. It was open to her to accept his opinion and her decision
    to do so does not constitute a misapprehension of evidence.

[33]

This
    ground of appeal also fails.

CONCLUSION

[34]

I
    would dismiss the appeal.

Released: KF Mar 2 2018

Fairburn J.A.
I agree. K. Feldman J.A.
I agree. David M. Paciocco J.A.