COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sadikov, 2018 ONCA 609

DATE: 20180703

DOCKET: C61392

Lauwers, van Rensburg and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sadyk Sadikov

Appellant

Dirk Derstine and Karen Heath, for the appellant

Amber Pashuk and Amanda Hauk, for the respondent

Heard: June 25, 2018

On appeal from the convictions entered on June 5, 2015
    and the sentence imposed on July 6, 2015 by Justice Julie A. Thorburn of the
    Superior Court of Justice, sitting without a jury, with reasons for judgment
    reported at 2015 ONSC 3653 and reasons for sentence reported at 2015 ONSC 4447.

Nordheimer J.A.:

[1]

Mr. Sadikov was convicted on 18 counts relating to the seizure of drugs
    and a firearm. Ultimately, the appellant was sentenced on 11 counts with the
    other seven counts being conditionally stayed by the operation of the
Kienapple
principle.
[1]
The sentence imposed was three and one-half years on the firearm offences and
    four years consecutive on the drug offences reduced, on a global basis, to
    seven years. The appellant appeals both conviction and sentence.

[2]

The background facts can be briefly stated.  The police were engaged in
    an undercover operation known as Project Hidden Dragon. Between June 6, 2008
    and October 20, 2008 undercover officers observed drug trafficking and use at
    Club 338, located at 338 Adelaide Street West in Toronto. One undercover officer
    engaged in drug transactions with a man who called himself Alex. There was no
    dispute that the appellant is Alex.

[3]

October 20, 2008 was the takedown day.  In the early morning hours,
    the police arrested a number of people including the appellant.  At the same
    time, the police executed a search warrant on the second floor apartment at 306
    Adelaide Street West, an address that the police believed was linked to the
    appellant.  In the apartment, the police seized a large quantity of drugs and a
    firearm.
[2]

[4]

At his first trial, the appellant successfully challenged the search
    warrant.  The evidence of the drugs and the gun was excluded and the appellant
    was acquitted.  The Crown appealed.  This court reversed the quashing of the
    search warrant and ordered a new trial.
[3]

[5]

On this second trial, the appellant again challenged the search warrant.
    He asserted that his s. 8
Charter
rights had been breached and sought an
    order excluding all evidence obtained from the search warrant,
i.e.
the drugs and the firearm. The trial judge denied the appellants s. 8
    application.  The evidence was admitted at trial and the appellant was
    convicted.

[6]

The appellant appeals his conviction on three main grounds: (i) the
    trial judge erred in finding that there was no s. 8 breach; (ii) the trial
    judges release of amended reasons for judgment disclose an after-the-fact
    justification for the decision; and (iii) the verdict was unreasonable. The appellant
    also seeks leave to appeal his sentence on the ground that the sentence imposed
    was harsh and excessive.

Conviction appeal

[7]

In terms of the alleged s. 8 breach, the trial judge heard evidence from
    the affiant of the Information to Obtain (ITO) along with two sub-affiants.
    She also had other material relating to the search warrant including the notes
    of various officers.  After reviewing the ITO (with some amplification) and all
    of the evidence adduced on the motion, the trial judge held that there was
    sufficient reliable evidence that might reasonably be believed.  The trial judge
    concluded, at para. 95
[4]
:

I also believe there was sufficient reliable evidence that
    might reasonably be believed that the warrant could be issued to search the
    upper level apartment of 306 Adelaide Street West.

[8]

We do not see any error in the trial judges conclusion regarding the
    search warrant.  There was ample evidence connecting the appellant to drug
    trafficking and to the second floor apartment at 306 Adelaide.  Not only was
    the appellant seen entering and leaving that location on more than one occasion,
    there were the various other salient facts including: (i) the admitted evidence
    of the appellants girlfriend (and co-accused) that the appellant lived in the
    apartment up to the week prior to the execution of the search warrant; (ii) two
    pit bull dogs were seen in the window of the second floor apartment and the
    appellant was known to own two such dogs; and (iii) male clothing of a size and
    type that the appellant was known to wear was found in the apartment.  There
    was sufficient evidence, therefore, to connect the second floor apartment to
    the appellant and to believe that evidence relating to drug trafficking would
    be found in the apartment.

[9]

In terms of the second ground of appeal, there were two sets of reasons
    delivered by the trial judge.  The original reasons for judgment were sent to
    counsel by email on June 10, 2015.  An amended set of reasons for judgment,
    with a particular series of corrections, was released on June 16, 2015.  The
    corrections resulted from an email sent by Crown counsel to the trial judge
    (and copied to defence counsel) pointing out an error in the original reasons.
    The error was that the first set of reasons referred to the apartment as apartment
    302 at 306 Adelaide.  There was no such apartment.  The trial judge released
    amended reasons changing those references in the original reasons to the
    second floor apartment.

[10]

Unfortunately,
    these changes were made to the reasons before counsel for the appellant had an
    opportunity to make submissions on the subject.  That ought not to have
    happened.  However, I do not see any prejudice to the appellant arising from
    the amendments to the reasons.  In particular, and contrary to the appellants
    submissions, I do not view the changes as substantial.  The changes were
    clearly made to address an obvious error in the description of the apartment. They
    did not, in any way, alter the substantive reasoning or conclusion.  There is
    no foundation for the suggestion that these changes reflect an after-the-fact
    justification for the decision:
R. v. Teskey
, 2007 SCC 25, [2007] 2
    S.C.R. 267.

[11]

In
    terms of the third ground of appeal, there is also no foundation for the
    assertion that the result at trial was unreasonable. The trial judge concluded
    that a finding of guilt was the only reasonable conclusion available on the
    totality of the evidence.  The trial judges finding in that regard was not an
    unreasonable one.  The trial judge provided point by point reasons for why she
    concluded that the only reasonable inference to be drawn from the evidence, as
    a whole, was that the appellant had possession of the drugs and the gun found
    in the second floor apartment.  The appellants dissection of the reasons,
    showing that any given fact might allow for more than one inference, misses the
    point.  It is the totality of the evidence that must be considered.  Further, circumstantial
    evidence does not have to totally exclude other conceivable inferences:
R.
    v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 56.

Sentence appeal

[12]

On
    the sentence appeal, the appellant submits that the total sentence of seven
    years was unreasonable and excessive.  In particular, the appellant says that
    the trial judge erred in imposing sentences for the firearm offences
    consecutive to the drug sentences.

[13]

Generally,
    sentences for offences arising out of the same transaction or incident should
    be concurrent:
R. v. Gummer
(1983), 1 O.A.C. 141 (C.A.), [1983] O.J.
    No. 181, at para. 13.  In reaching that determination, the court must determine
    if the acts constituting the offence were part of a linked series of acts
    within a single endeavour:
R. v. Li
, 2009 BCCA 85 at para. 42.  If
    so, concurrent sentences are appropriate.  There is an exception to that normal
    rule, however, as this court explained in
Gummer
.  That exception
    applies where the offences constitute invasions of different legally protected
    interests.  The trial judge justified the consecutive sentences, in this case,
    on that basis.

[14]

This
    issue was addressed in
R. v. Delchev
, 2014 ONCA 448, 323 O.A.C. 19.
    That case involved a similar combination of drugs and guns.  The trial judge
    imposed a global sentence of 42 months.  The Crown appealed and submitted that
    the sentence ought to have been seven years.  In doing so, the Crown
    specifically submitted that the drug sentences ought to have been consecutive
    to the firearms sentences.  This court rejected that argument, finding, at
    para. 34, that there was no absolute rule that drugs and weapons convictions
    must attract consecutive sentences in all cases.

[15]

This
    point was also made in
R. v. Borecky
, 2013 BCCA 163, 298 C.C.C. (3d)
    180 where Hinkson J.A. said, at para. 25:

I do not agree that sentences must be consecutive in all cases
    where an offender is convicted of both drug and weapons charges and see no
    error on the part of the sentencing judge in declining to apply such an
    imperative, which is not supported by legislation or case law.

[16]

The
    decision to impose consecutive as opposed to concurrent sentences is a matter
    of discretion for the sentencing judge.  An appellate court ought not to
    interfere with that decision unless it reflects an error in principle.  As
    Sopinka J. said in
R. v. McDonnell
, [1997] 1 S.C.R. 948, at para. 46:

In my opinion, the decision to order concurrent or consecutive
    sentences should be treated with the same deference owed by appellate courts to
    sentencing judges concerning the length of sentences ordered. The rationale for
    deference with respect to the length of sentence, clearly stated in both
Shropshire
and
M. (C.A.),
applies equally to the decision to order concurrent or
    consecutive sentences. In both setting duration and the type of sentence, the
    sentencing judge exercises his or her discretion based on his or her first-hand
    knowledge of the case; it is not for an appellate court to intervene absent an
    error in principle, unless the sentencing judge ignored factors or imposed a
    sentence which, considered in its entirety, is demonstrably unfit.

[17]

I
    see no error in principle in the trial judges conclusion.  There are clearly
    different legally protected interests in play in this case.  On the one hand, society
    has an interest in ensuring that people do not possess illegal substances (much
    less traffic in them).  On the other hand, society also has a separate interest
    in ensuring that persons do not possess illegal firearms.  While the fact that
    the gun was found in the execution of a search focussed on drugs might well
    have justified a concurrent sentence for the drug and gun offences in this
    case, the imposition of consecutive sentences cannot be said to be an error in
    principle.  In the end result, the global sentence imposed is always subject to
    the totality principle.

[18]

In
    my view, the overall sentences that the trial judge fixed for the drug offences
    (4 years) and for the firearms offences (3 ½ years) were within the accepted
    range, although at the low end for the drug offences given the quantities involved.
    There is no reason to conclude that the total sentence of seven years, after
    the trial judge applied the totality principle, was other than a fit sentence.

Conclusion

[19]

The
    conviction appeal is dismissed.  Leave to appeal sentence is granted but the
    sentence appeal is also dismissed.

Released: P.L. July 3, 2018

I.V.B.
    Nordheimer J.A.

I
    agree. P. Lauwers J.A.

I
    agree. K. van Rensburg J.A.

[1]

R. v. Kienapple
, [1975] 1 S.C.R. 729

[2]

There were almost three kilograms of methamphetamine/MDMA
    found along with a kilogram of ketamine. In total, approximately 39,000
    individual doses of drugs were found with a value estimated at $675,000.

[3]

R. v. Sadikov
, 2014 ONCA 72, 314
    O.A.C. 357

[4]

R. v. Sadikov
, 2015 ONSC 3112


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Semple, 2018 ONCA 630

DATE: 20180710

DOCKET: C61791

Doherty, MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Andrew Semple

Appellant

K.Y. Tina Yuen and Cate Martell, for the appellant

Mabel Lai, for the respondent

Heard: July 5, 2018

On appeal from the conviction entered on December 4, 2015,
    by Justice Robert F. Scott of the Superior Court of Justice.

REASONS FOR DECISION

[1]

At the conclusion of the hearing, the court advised that the appeal was
    dismissed with reasons to follow. These are those reasons.

[2]

The appellant and his older cousin Aaron Knapman attended a party after
    a day of drinking. They left the party in Aarons van with Aaron driving and
    the appellant in the passenger seat. Both were intoxicated.

[3]

About 30 minutes later, the van spun off the highway and collided with
    an exit sign. The appellant was able to escape the van. He flagged down passing
    cars in an attempt to obtain help. To one of the drivers who pulled over, he
    yelled help me, help me Adams [
sic
] in the car in the passenger
    side. The driver attempted to help the appellant break a window to get into
    the van, but they were unsuccessful. The van caught fire and Aaron ultimately died
    in the flames.

[4]

The appellant made several false statements to bystanders and, later, to
    police. He denied any involvement in the accident and he asked several
    bystanders to drive him away from the scene. When the police approached him as
    he was sitting in a bystanders vehicle, the appellant said to the driver Im
    with you right? The driver had to clarify that that was not the case.

[5]

The appellant told another police officer on the scene that he had
    witnessed the accident from a cornfield beside the highway. Having observed
    that the appellant was injured and had no shoes on, the officer determined that
    the appellant had been in the vehicle at the time of the accident and arrested
    him. The appellant then maintained that he had seen the accident from the
    overpass, but when the officer asked him if his identification was still in the
    van, the appellant responded yes and then froze. It was at this point that the
    appellant admitted to being in the van, but maintained that he was not the
    driver.

[6]

A few hours after the accident, the appellant told a breathalyzer
    technician that he had only known Aaron for two months. Several hours after
    that, in a formal police interview, the appellant said that Aaron had been
    driving because he had not been drinking that night.

[7]

Aarons body was found in the wreckage in a seated position in the
    passenger seat. His cause of death was determined to be smoke inhalation.

[8]

The appellant was charged with impaired driving causing death and over
    80 causing death. The issue at trial was whether Aaron or the appellant was
    driving at the time of the accident. The Crowns theory was that sometime after
    leaving the party, Aaron and the appellant had changed places and at the time
    of the accident, the appellant was the driver.

[9]

At trial, an expert in accident reconstruction testified that, based on
    the position of Aarons body and his head being trapped in a fold in the roof
    line and door frame that had occurred on impact, Aaron was likely the passenger
    at the time of the accident. The expert could not, however, exclude the
    possibility that Aaron had either fallen or moved from the drivers seat to the
    passenger seat after the impact.

[10]

The
    appellant testified and offered a number of explanations for his false
    statements: that he did not want to face his family or Aarons family and he
    felt guilty that he could not save Aaron; that he was scared and in shock; that
    he did not know if Aaron was alive; and that he was only 18 years old. The
    defence relied principally on this first explanation for the appellants false
    statements.

[11]

After
    instructing himself on
R. v. W.(D)
, [1991] 1 S.C.R. 742, 63 C.C.C.
    (3d) 397 and acknowledging the appellants young age, intoxicated state and the
    physical and psychological trauma of the accident, the trial judge rejected the
    appellants denial that he was driving. The trial judge also rejected the appellants
    various explanations for the false and misleading statements he made to
    bystanders and the police following the accident.

[12]

The
    judge made clear that the evidence of the accident reconstructionist, on its
    own, was not sufficient to discharge the Crowns burden to prove its case
    beyond a reasonable doubt. Something more was required.

[13]

Later
    in his reasons, the trial judge noted that [s]ometimes an accused by a
    combination of his actions and his exculpatory statements also assist greatly
    the court in determining that the case has been proven by the Crown beyond a
    reasonable doubt. In the trial judges view, the appellants post-offence
    conduct supported an inference of guilt.

[14]

As
    a result, having rejected the appellants evidence and in reliance on the
    evidence that he did accept, the trial judge concluded that the only reasonable
    inference was that the appellant was the driver at the time of the accident. As
    a result, he was convinced beyond a reasonable doubt of the guilt of the
    accused.

[15]

The
    appellant raises three grounds of appeal.

[16]

First,
    he argues that the trial judge erred in inferring guilt from his disbelief of
    the appellant. In support of this submission, he points to comments made by the
    trial judge in his exchanges with counsel during the defence submissions at
    trial, which he says demonstrate the trial judges misunderstanding of the
    limited use he could make of his rejection of the appellants evidence.

[17]

In
    our view, these statements by the trial judge, when read in context, do not
    support the assertion that the trial judge inferred guilt from disbelief. In
    his reasons, the trial judge made clear that he understood that in order to
    convict, he not only had to reject the appellants testimony, but he had to
    find, on the evidence he did accept, that the Crown had proven beyond a
    reasonable doubt that the appellant was the driver. As a result, we reject this
    ground of appeal.

[18]

The
    second ground of appeal is that the trial judge erred in treating the appellants
    falsehoods as fabricated statements from which an inference of guilt could be
    drawn.

[19]

We
    disagree. The trial judge was alive to the requirement that there be
    independent evidence, apart from the evidence showing that the statements were
    false, that the appellant deliberately fabricated the statements.

[20]

The
    trial judge emphasized that the appellant continued to make false statements
    for many hours after the accident, including in his formal statement to police.
    It is clear from his reasons, read in the context of the record as a whole, that
    the trial judges finding of fabrication flowed from the evolution, timing and
    duration of the statements as well as the nature of the appellants deception. The
    record provides ample support for finding that the statements were not merely
    false, but fabricated for the purpose of escaping criminal liability. The
    appellants falsehoods evolved rapidly in lockstep with the shifting
    circumstances, they were inherently implausible, and their timing and duration
    evinced a deliberate effort to deceive.

[21]

As
    explained by this court in
R. v. McLellan
, 2018 ONCA 510, [2018] O.J.
    No. 2941, at paras. 47-49, the probative value of post-offence conduct must be
    determined by viewing the conduct as a whole and not in isolation. Viewed in
    this way, the appellants fabrications were capable of supporting the inference
    that the appellant was the driver of the vehicle at the time of the accident.
    The trial judge properly treated the fabrications as circumstantial evidence of
    guilt.

[22]

The
    final ground of appeal is that the verdict was unreasonable. In support of this
    submission, the appellant, in effect, repeats his submission that the post-offence
    conduct had little or no probative value. He also submits that the appellants
    guilt was not the only reasonable inference to be drawn from the evidence in this
    circumstantial case.

[23]

We
    disagree. The evidence of the accident reconstructionist combined with the
    appellants post-offence conduct, viewed in the context of the evidence as a
    whole, is such that a properly instructed trier of fact, acting judicially, could
    reasonably have concluded that the appellants guilt was the only rational
    inference that could be drawn. We see no basis to interfere.

[24]

In
    conclusion, therefore, the appeal is dismissed.

Doherty J.A.

J.C. MacPherson J.A.

Paul Rouleau 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. Wesley, 2018 ONCA 636

DATE: 20180712

DOCKET: C62571

Sharpe, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Wesley

Appellant

Robert Sinding, for the appellant

Mabel Lai, for the respondent

Heard: June 27, 2018

On appeal from the conviction entered on March 31, 2014
    and the sentence imposed on January 25, 2016 by Justice H.M. Pierce of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of sexual assault, designated as a dangerous
    offender and given an indeterminate sentence. He appeals both conviction and
    sentence.

A.

FACTS

[2]

The alleged offence took place at a remote First Nation community. Both
    the 18-year-old complainant and the 43-year-old appellant are Indigenous and
    both resided on the reserve. On the evening in question, the complainant had
    been seen drinking with the appellant in the bush. Three young women became
    concerned about the complainants safety and went looking for her. They looked
    into and entered a small shed in the bush, where they observed both the
    complainant and the appellant. The complainant was lying on the floor, soaking
    wet and cold to the touch, with her pants down and her legs spread in a sexual
    position. Her eyes were closed and she was unresponsive. The three women
    observed the appellant straightening up and doing up his pants. One of them
    thought she saw the appellants penis. The three women confronted the appellant
    and asked him what he had done to the complainant. According to two of the
    women, the appellant responded to the effect that the complainant wanted it
    and that it was consensual. The third woman recalled the appellant saying
    its not what you think it looks like.

[3]

The complainant was highly intoxicated and was helped to her home. She
    had no recollection of what had occurred the next morning. She complained of
    soreness in her pubic area and inner thighs, and had bruises on her hips and legs.

[4]

After a five day judge-alone trial at which the appellant did not
    testify and called no evidence, the appellant was convicted of sexual assault.

[5]

The Crown brought a dangerous offender application alleging that the
    appellants long-standing pattern of violent and aggressive behaviour aimed at
    dominance, and his lack of insight, remorse or motivation to change, justified
    a dangerous offender designation. The application was supported by the opinion
    of a forensic psychiatrist, Dr. Philip E. Klassen, that the appellant met the
    criteria for a dangerous offender designation. The trial judge considered the
    evidence and rejected the appellants submissions that he was not a dangerous
    offender and that an eight year sentence followed by a ten year long-term
    supervision order would be appropriate. The trial judge accepted the Crowns
    position, designated the appellant a dangerous offender, and imposed an
    indeterminate sentence.

B.

CONVICTION APPEAL

Unreasonable verdict

[6]

We do not agree with the appellants submission that the verdict of
    guilty of sexual assault was unreasonable or that the trial judge
    misapprehended evidence. There was evidence, accepted by the trial judge, that
    the complainant had consumed a significant quantity of fortified wine with the
    appellant. There was also ample evidence to support the trial judges finding
    that the Crown had established, beyond a reasonable doubt, that the appellant
    sexually assaulted the complainant. Three witnesses testified that the
    complainant was unconscious, naked from the waist down with her legs spread in
    the shed. She later complained of soreness in her pubic area. This evidence, when
    combined with the observations of the appellant in the shed pulling up his
    pants and stating that what occurred had been consensual, provided strong support
    for the trial judges finding that the appellant had sexual relations with the
    complainant while she was in an unconscious state and incapable of consenting.

[7]

The appellant points to certain inconsistencies in the evidence of the
    three young women. The trial judges reasons account for those inconsistencies.
    She provided an entirely adequate explanation of how she resolved any
    differences in their evidence and why those differences did not give rise in
    her mind to a reasonable doubt. The trial judges treatment of credibility
    attracts deference in this court and we see no possible basis for appellate
    intervention.

R. v. W.(D.)
error

The appellant
    complains that the trial judge failed to caution herself in accordance with
R.
    v W.(D.)
, [1991] 1 S.C.R. 742
in relation to his exculpatory statement that the encounter had been
    consensual. The trial judge did not explicitly refer to
W.(D.)
in her decision.
    However, her reasons demonstrate that she placed the burden of proof on the
    Crown throughout and correctly applied the reasonable doubt standard. We do not
    accept the submission that her failure to mention
W.(D.)
amounted to
    an error in the context of this case. We note that the appellant did not
    testify or call any other evidence in his defence. We also question whether any
    of the appellants utterances in the shed, as described by the Crowns
    witnesses, bear exculpatory meaning. Those utterances  the complainant had
    wanted it, the encounter had been consensual, and the scene in the shed was
    not what you think it looks like  do not detract from the Crowns theory
    that the appellant had sex with the complainant when she was too intoxicated to
    consent to sexual activity, as made clear by the uncontested evidence about her
    condition in the shed.

Prior consistent statement

[8]

Nor do we accept the argument that the trial judge erred by admitting
    the complainants video statement to the police to rebut the allegation of
    recent fabrication as to when she first reported soreness in her vagina. Although
    the trial judge recognized that the complainants gesture in the video was open
    to interpretation, the gesture was consistent with the complainant pointing to
    her vaginal area. It was appropriate for the trial judge to admit the videotape
    and to permit the complainant to explain her gesture. The trial judge was
    entitled to credit the complainants testimony that she had pointed to her
    vaginal area, and to then use the video to rebut the recent fabrication claim
    the defence was making: :
R. v. Stirling
, 2008 SCC 10, [2008] 1 S.C.R.
    272, at para. 5. We see no error in the admission or use of this evidence.

Adequacy of reasons

[9]

Finally, we do not agree that the trial judges reasons were inadequate.
    The trial judge fully and fairly reviewed the evidence and engaged with the
    most important submissions advanced by the parties. She clearly explained why
    she accepted the Crowns evidence and why she was persuaded beyond a reasonable
    doubt that the appellant had sexually assaulted the complainant.

[10]

For
    these reasons, we dismiss the appeal from conviction.

C.

SENTENCE APPEAL

[11]

The
    appellant argues that the trial judges consideration of the dangerous offender
    application and appropriate sentence fails to comport with
R. v. Boutilier
,
    2017 SCC 64, [2017] 2 S.C.R. 936, a decision released after the decision under
    appeal. The appellant contends that, contrary to
Boutilier,
the trial
    judge

made the dangerous offender designation without finding
    intractability and a high likelihood of recidivism. The appellant also
    argues that the trial judge misdirected herself on the availability of
    discretion to impose a sentence other than a period of indeterminate detention.

[12]

The
    appellant further submits that his designation as a dangerous offender is
    tainted by a misapprehension of the facts underlying his prior offences. Additionally,
    in the appellants view, both the psychiatrist and the trial judge improperly
    took into account prior incidents of alleged criminality for which the
    appellant had not been convicted.

[13]

Finally,
    the appellant complains that at the penalty stage, the trial judge failed to
    give proper consideration to alternative measures in the community that could
    be used to control his risk of re-offending. Related to this submission is the
    contention that the trial judge did not give adequate consideration to the
    appellants Indigenous roots and the principles espoused in
R. v. Gladue
,
    [1999] 1 S.C.R. 688 and
R. v. Ipeelee
, 2012 SCC 13, [2012] 1 S.C.R.
    433.

Intractability and High Likelihood of Recidivism

[14]

We
    agree with the appellant that
Boutilier
requires as a precondition to
    a dangerous offender designation findings of intractability and a high
    likelihood of harmful recidivism: At para. 27, Côté J., writing for the
    majority explained:

Before designating a dangerous offender, a
    sentencing judge must still be satisfied on the evidence that the offender
    poses a high likelihood of harmful recidivism and that his or her conduct is
    intractable. I understand intractable conduct as meaning behaviour that the
    offender is unable to surmount. Through these two criteria, Parliament requires
    sentencing judges to conduct a prospective assessment of dangerousness.

[15]

The
    appellant submits that the trial judge referred to a statement from
R. v.
    Szostak
, 2014 ONCA 15, 118 O.R. (3d) 40, at para. 61, that it is not
    necessary that the offenders conduct show a high level of intractability.
    However, we do not accept the submission that the trial judge failed to make
    findings bringing this case within the principle enunciated in
Boutilier
.
    While she did not use the precise labels of intractability" and high
    likelihood of harmful recidivism to characterize her findings, we are
    satisfied that in substance, her findings satisfy both tests.

[16]

The
    trial judge reviewed at length the psychiatric evidence related to the
    appellants risk of recidivism. We do not accept the submission that the trial
    judge only did so at the second stage in relation to sentence. She dealt with
    the psychiatric evidence at length in the early part of her decision and on a
    fair reading of the balance of her reasons, it is clear that she took this
    evidence into account at both the designation and penalty stages.
As pointed out at para. 58 of the Crowns factum, the trial judge made
    the following crucial findings related to intractability. At para. 119, she
    found
that the appellant has not been able to restrain himself in the
    past from using violence or the threat of violence to get what he wants, and
    that there was every indication that [the appellant] will be unable to
    restrain himself

from doing so in future. The trial judge reviewed the
    appellants lengthy history of non-compliance with community-based dispositions
    and court orders, which did not curb his offending. She observed, at para. 57,
    that in all but one case, he engaged in violent offences while on probation,
    recognizances, or peace bonds. She found, at para. 134, that the appellant is
    presently
at high risk of serious sexual or violent re-offending.
The trial judge carefully reviewed the appellants history in various
    institutions and involvement in a chemical dependency program, AA meetings,
    Bible study, traditional activities and one-on-one counselling in his
    community, and quoted with approval, at para. 75, the following passage from
    the pre-sentence report:

Despite these efforts, the subject has been unable to sustain
    meaningful change. He continues to re-offend, remains loyal and strongly connected
    to gang culture values, beliefs and associations and has a well-established
    pattern of justifying, minimizing or blaming others for any unacceptable
    behavior. He does not identify consequences as a direct result of his own
    actions and fails to recognize or acknowledge the extent and lasting impact of
    his behaviour on his victims, their families and all members of the community.

[17]

In
    our view, these findings demonstrate that, although she did not have the
    benefit of
Boutilier
when she imposed sentence, the trial judge made
    findings of fact with a solid basis in the evidence that bring this case
    squarely within the categories of intractability and a high likelihood of
    recidivism.

Discretion

[18]

The
    trial judge proceeded on the basis that she had to declare the appellant a
    dangerous offender if the statutory criteria were met but enjoyed some discretion
    at the penalty stage to avoid imposing an indeterminate sentence: paras. 7-9.
    In our view, this comports with
Boutilier
, at para. 20.

The current version of the scheme reverts to a two stage process but
    removes the discretionary language from the designation stage. If a sentencing
    judge is satisfied that the statutory criteria have been met, the designation
    must follow. There is, however, some discretion remaining at the sentencing
    stage. Under s. 753(4.1), a sentencing judge must impose an indeterminate
    sentence on a designated individual
unless
he or
    she is satisfied that there is a reasonable expectation that a lesser measure
    will adequately protect the public.

Prior criminal record

[19]

The
    appellant submits that the trial judge misapprehended the evidence about his
    prior offences. He argues that his offending since 1992 has not been marked by
    great violence and has declined. The trial judge considered and rejected this
    submission. She found that the appellants record demonstrated a pattern of
    aggressive behaviour aimed at dominance. This finding was available to her on
    the record, which discloses incidents of physical violence, threats of violence
    and sexual assault by the appellant. Many of these incidents occurred after
    1992. The trial judges treatment of this evidence is entitled to deference and
    discloses no reviewable error.

Prior incidents of unproven criminality

[20]

The
    appellants record of criminality also includes allegations that did not result
    in conviction. On appeal, his submissions focussed on a domestic violence
    incident where charges against him were ultimately withdrawn. The appellant argues
    that the opinion of Dr. Klassen should have been discounted because he
    considered that incident.

[21]

In
    our view, Dr. Klassen provided an acceptable explanation for how and why the
    incident of uncharged domestic violence factored into his assessment. The
    actuarial tools he used to assess the risk posed by the appellant demanded that
    such incidents be included and it was only for one of those tools that the
    incident made any difference to the appellants score. Moreover, Dr. Klassen
    explained that these types of incidents gave rise to a concern about
    aggression, typically while under the influence of alcohol. The appellant
    admitted to Dr. Klassen that he had given his ex-partner and mother of his
    child, a jab and a kick while they were both intoxicated by alcohol. Dr.
    Klassen was entitled to rely upon that conduct in assessing the risk of the
    appellant re-offending.

[22]

The
    only reliance by the trial judges on the allegations that did not result in
    conviction was to reject the contention that there had been a meaningful gap in
    the appellants criminality. As she explained, at para. 42, the significance
    of these events is not the fact of the charges, but rather that he was detained
    in custody  removed from the community  and had no opportunity to reoffend.
    We see no error in this approach.

Consideration of alternate measures and
Gladue
factors

[23]

We
    do not accept the submission that the trial judge failed to give adequate
    consideration to
Gladue
factors and possible alternate measures when
    she imposed an indeterminate sentence. In our view, the trial judges
    sentencing reasons display a thorough analysis of both factors. She explicitly
    recognized that
Gladue
factors were relevant at all stages of the
    dangerous offender application. She took into account the appellants life circumstances
    and recognized that he had suffered serious trauma and loss as an aboriginal
    man and that he had suffered great disadvantage, being raised  in a violent,
    chaotic home. She considered and rejected the options of returning the
    appellant to his community on the ground that it has the right to be protected
    from the risk of his violence. These were reasonable conclusions, entitled to
    deference before this court.

[24]

The
    trial judge also considered the defences proposed alternative to an indeterminate
    sentence: an eight year sentence followed by a ten year long-term supervision
    order. The trial judge was entitled to reject that proposal on the evidence
    before her. The appellant focusses on the following sentence at para. 141 of
    the trial judges reasons: [t]his may be a realistic proposal but it does not
    guarantee that a change of scene will alter Mr. Wesleys desire to dominate and
    his use of violence to do so. In our view, that single sentence must be viewed
    in the context of the trial judges decision as a whole. Properly read, her
    reasons make it clear that based on the appellants lengthy record of
    aggressive behaviour, Dr. Klassens assessment of the risk he poses and the
    demonstrated inability of the appellant to curb his violent conduct, the trial
    judge was persuaded that he cannot safely be returned to the community and the
    only realistic option was an indeterminate sentence.

D.

DISPOSITION

[25]

For
    these reasons, the appeal against conviction and sentence is dismissed.

Robert J. Sharpe
    J.A.

David Brown J.A.

David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Romanko v. Aviva Canada Inc., 2018 ONCA 663

DATE: 20180725

DOCKET: C63667

Hoy A.C.J.O., van Rensburg and Pardu JJ.A.

BETWEEN

Omelian Romanko and Neonila
    Romanko

Appellants
(Plaintiffs)

and

Aviva Canada Inc. and Aviva Insurance Company of
    Canada

Respondents
(Defendants)

Omelian Romanko and Neonila Romanko, acting in person

Alan L. Rachlin, for the respondents

Heard and released orally: July 19, 2018

On appeal from the judgment of Justice Darla A. Wilson of the
    Superior Court of Justice, dated April 18, 2017 with reasons dated April 19,
    2017, reported at 2017 ONSC 2393.

REASONS FOR DECISION

[1]

The appellants, Omelian and Neonila Romanko, appeal the judgment of the
    trial judge, dated April 18, 2017, dismissing their action against the
    respondents arising from a motor vehicle accident in 2003.

[2]

The appellants were both present today. Mrs. Romanko made submissions on
    her own behalf and on behalf of Mr. Romanko with the assistance of an
    interpreter of their choice. We have considered the written materials the
    appellants filed with the court as well as Mrs. Romankos oral submissions.

[3]

Essentially, the appellants argue that they are elderly and self-represented,
    Mr. Romanko has health issues, and the trial judge erred by not granting a further
    adjournment of their jury trial. They also argue that the trial judge provided
    insufficient reasons.

[4]

Whether or not to grant an adjournment is a matter of judicial discretion.
    The scope for appellate review is limited to whether the discretion is
    exercised judicially on proper principles, after considering all relevant
    factors:
Estrada v. Estrada
, 2016 ONCA 697, [2016] O.J. No. 5362, at
    para. 2.

[5]

The trial judge provided careful and thorough reasons why she declined
    the appellants request for a further adjournment and dismissed their action.

[6]

She detailed the long history of delay on the part of the appellants in
    moving the matter toward trial, their multiple changes of counsel, and their
    failure to abide by court orders. The May 25, 2015 trial date had been
    adjourned at the appellants request and their April 10, 2017 trial date had
    been marked peremptory. The appellants knew that the trial would proceed on
    April 10, 2017, with or without counsel. The trial judge noted that the
    plaintiffs were granted numerous indulgences by the court and were given every
    opportunity to ensure that their case was ready for trial. She wrote that [w]hile
    I appreciate Mr. Romanko had an incident of difficulty with speech in December
    2016 which has led to a series of medical tests, there is no evidence that he
    is unable to testify on his own behalf at trial or that there is any urgency to
    his medical condition. He is 78 years of age.

[7]

She concluded that it would be manifestly unfair to the defendants to
    further adjourn the trial and that the court must control its own procedure to
    ensure fairness to all litigants. If adjourned, a new trial date could not be
    secured for another two years.

[8]

The trial judge appreciated that dismissing the appellants action was a
    drastic remedy. When the appellants failed to produce any evidence on April 10,
    2017 that Mr. Romanko would be unable to testify at trial, or that his current
    situation was expected to improve to the point that he would be in a better
    position at some point in the near future, she indicated that the trial would
    proceed on April 12, 2017 and gave the appellants the opportunity to present
    further medical evidence about Mr. Romankos medical condition or inability to
    testify at trial at that time. When the appellants chose not to attend on April
    12, 2017, she ordered that the trial would proceed on April 18, 2017 to give
    them one last opportunity to re-evaluate their decision. The jury was summoned
    on April 18, 2017. Mrs. Romanko attended on April 18, 2017, but she had no
    medical documentation to file with the court concerning her husbands medical
    condition or her own.

[9]

The trial judge concluded that this case had reached the point where
    the court must say enough is enough.

[10]

There
    is no basis for this court to set aside her findings as to the sufficiency of
    the medical evidence on the requisite issues. The trial judge exercised her
    discretion reasonably, on proper principles. She took account of all relevant
    considerations. She balanced the interests of the appellants, the respondents
    and the interests of the administration of justice in the orderly proceeding of
    civil trials on their merits. There is no basis for this court to intervene
    with her decision to dismiss the action.

[11]

Accordingly,
    the appeal is dismissed. In the circumstances, no costs are ordered.


COURT OF APPEAL FOR ONTARIO

CITATION: Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA
    668

DATE: 20180725

DOCKET: C63305 and C63351

Doherty, Brown and Nordheimer JJ.A.

BETWEEN

David Schnarr

Plaintiff (Respondent)

and

Blue Mountain Resorts Limited

Defendant (Appellant)

AND BETWEEN

Elizabeth Woodhouse

Plaintiff (Appellant/

Respondent by cross-appeal)

and

Snow Valley Resorts (1987) Ltd. aka Snow Valley
    (Barrie), Snow Valley Barrie, Snow Valley Ski Resort, Snow Valley, 717350
    Ontario Ltd.

Defendants (Respondents/

Appellants by cross-appeal)

John A. Olah, for the appellant, Blue Mountain Resorts
    Limited

Edward Chadderton and Jeffrey Belesky, for the
    respondents/appellants by cross-appeal, Snow Valley Resorts (1987) Ltd. aka
    Snow Valley (Barrie), Snow Valley Barried, Snow Valley Ski Resort, Snow Valley,
    and 717350 Ontario Ltd. (collectively, Snow Valley)

Paul J. Pape, Shantona Chaudhury, and Evan Rankin, for
    the respondent, David Schnarr and for the appellant/respondent by cross-appeal,
    Elizabeth Woodhouse

Heard: February 7-8, 2018

On appeal from the orders of
    Justice Ria Tzimas of the Superior Court of Justice, dated January 6, 2017 with
    reasons reported at 2017 ONSC 114, and of Justice John McCarthy of the Superior
    Court of Justice, dated January 13, 2017 with reasons reported at 2017 ONSC 222.

ADDENDUM

[1]

On March 28, 2018, this court released its decision allowing both appeals
    and the cross-appeal, setting aside the two orders below, and remitting the
    matters back to the Superior Court of Justice to proceed in accordance with this
    courts reasons.

[2]

Subsequent to the release of our reasons, counsel advised in writing
    that certain issues had arisen with respect to taking out the formal orders.
    Specifically, three issues were of concern:

1.

Whether the no order as to costs provision could incorporate both the
    parties and the interveners or whether they had to be dealt with separately.

2.

Whether the courts conclusion regarding s. 93(2) of the
Consumer
    Protection Act, 2002
, S.O. 2002, c. 30, Sched. A should be reflected in
    the formal order.

3.

Whether the courts conclusion regarding the effect of the respective
    waivers should be reflected in the formal order and, if so, how that conclusion
    should be worded.

[3]

In terms of the first issue, we would agree with counsel that the no
    order as to costs can be reflected in the orders as relating to both the
    parties and to the interveners, but for a separate issue that we identify below.
    If all of the costs had been determined at the same time, a simple provision
    that there be no order for costs of the appeal either for or against any party
    including the interveners would suffice.

[4]

The second and third issues can be dealt with together.  The simple
    answer to those issues is that neither of these conclusions ought to be
    reflected in the formal order.  A formal order reflects the ultimate
    disposition of a proceeding.  It does not reflect the reasons for that
    disposition.  Absent a request for a formal declaration, conclusions regarding
    issues raised in a proceeding ought not to be reflected in the formal order.
    For example, if a court concludes that the defendant was negligent and awards
    damages as a consequence, the formal order does not say that the defendant was
    negligent.  It simply says that the defendant is ordered to pay to the
    plaintiff damages in a set amount.

[5]

In this case, therefore, the formal order ought not to reflect the
    interpretation that this court applied to s. 93(2) nor should it reflect the
    conclusion that we reached regarding the applicability of the respective
    waivers.  Those conclusions are reflected in our reasons and the parties can make
    submissions as to the consequences of those conclusions if, and when, necessary
    as the proceedings continue.  Indeed, we note that counsel appear to be in
    agreement that it is open to the plaintiffs to make other arguments as to why
    they might not be bound by the waivers.  All that the formal orders will record
    is that the appeals (and cross-appeal) were allowed and the matters remitted
    back to the Superior Court of Justice.

[6]

The other issue regarding costs, that we alluded to above, arises from
    the draft orders submitted by counsel.  On April 25, 2018, this court released
    its decision regarding costs as between the parties. Our March 28, 2018 reasons
    had dealt with costs as they related to the interveners.  Our decision on costs
    is a determination separate and apart from the determination of the merits of
    the appeals (and cross-appeal).  Counsel have drafted a single order
    incorporating both the date of the merits decision and the date of the costs
    decision.  That is improper.  Rather, what is required is for two formal orders
    to be taken out.  The first order should deal with the merits, and the costs as
    they relate to the interveners, and the second order should deal with the issue
    of costs as they relate to the parties, with each order bearing the respective
    date when those decisions were released.

[7]

With these directions, we assume that counsel will now be able to
    redraft the formal orders accordingly and have them taken out.  However, if
    further issues remain, counsel can arrange an appointment with Justice
    Nordheimer to settle the orders.

Doherty J.A.

David Brown J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: The Birkshire Group Inc. v. Wilkes, 2018 ONCA 631

DATE: 20180711

DOCKET: C57768

Epstein, van Rensburg and Fairburn JJ.A.

In the Matter of the
Construction Lien Act
,
R.S.O. 1990, c. C.30

BETWEEN

The Birkshire Group Inc.

Plaintiff (Respondent)

and

David Wilkes and Angela Wilkes

Defendants (Appellants)

AND BETWEEN

David Wilkes and Angela Wilkes

Plaintiffs (Appellants)

and

Maria Fiume and 2044785
    Ontario Inc. operating as Fiume Interiors

Defendants (Respondents)

Peter-Paul E. Du Vernet, for the appellants

Kevin Sherkin and Jeremy Sacks, for the respondents

Heard: June 28, 2018

On appeal from the
    judgment of Justice Mark L. Edwards of the Superior Court of Justice, dated
    February 12, 2015, with reasons reported at 2013 ONSC 5703.

REASONS FOR DECISION

[1]

This appeal arises out of litigation concerning a home renovation. The
    appellants retained the respondent The Birkshire Group Inc. (Birkshire) to
    perform work on their home. Renovations began in December 2006 and continued
    into the spring of 2007. As of April 2007 the appellants had paid the sum of
    $60,000. At that point, the relationship between the parties had deteriorated. Birkshire
    registered a construction lien against the residence and sued for the balance
    of what it claimed under the parties contract. The appellants denied that any
    further amount was owing, and they claimed there were deficiencies and damages
    caused by the work. They counterclaimed in the construction lien action and
    started an action against the other respondents, Maria Fiume (the wife of
    Michael Fiume, the principal of Birkshire) and her company.

[2]

The actions were tried together. The trial judge concluded that the
    contract price was $122,565. After crediting the appellants for the amount they
    already paid, and for some deficiencies and damages, he awarded Birkshire
    damages of $50,000, pre-judgment interest of $13,398.24 and costs of $83,500.
    He recognized a lien on the property for the total amount of $146,898.24 and
    dismissed the action against Ms. Fiume and her company.

[3]

The appellants raise three issues on appeal. It is sufficient for the
    determination of the appeal to deal only with the first issue, which concerns
    the trial judges failure to refer to the evidence of two witnesses called by
    the appellants in his reasons for judgment.

[4]

After the evidence was concluded, and on the day closing arguments were
    to take place, the appellants brought a motion to reopen the case so that two
    former employees of Birkshire could testify. The motion was supported by
    affidavits from the two proposed witnesses setting out their intended evidence.
    Among other things, one of the former employees, Chris Derewonko, claimed that
    he built bathroom vanities at the Wilkes residence. He did so based upon
    verbal instructions given to him by Ms. Fiume. Mr. Derewonko maintained in his
    affidavit that [a]fter the court action began, Mr. Fiume showed him a
    photograph of one of the vanities and asked him to make a drawing from the
    photograph. That drawing was attached as an exhibit to the Derewonko affidavit,
    filed in support of the appellants request to re-open the case.

[5]

The vanity drawing that Mr. Derewonko said he had prepared
after
the litigation began duplicated a drawing that had been previously entered as
    an exhibit at trial. Ms. Fiume had testified about the vanity drawings and
    suggested that they had been prepared and approved prior to the vanities being
    installed.

[6]

In his ruling permitting the Wilkes to re-open their case to, among
    other things, have Mr. Derewonko testify, the trial judge noted that the proposed
    evidence bore on material issues at trial, including the credibility of the
    respondents: The evidence of Chris Derewonko, if believed, raises credibility
    issues as they relate to the evidence adduced by [the respondents] regarding
    drawings that have been entered into evidence in this trial.

[7]

The parties disagree about the import of Mr. Derewonkos
viva voce
evidence at trial. The respondents maintain that his evidence is unclear and difficult
    to follow from the transcript. Although we agree that Mr. Derewonkos evidence
    is not a model of clarity, it is clear that he testified that he had been asked
    by Mr. Fiume a couple of years before he testified (being at least a few years
    after the litigation commenced), to prepare a drawing of a bathroom vanity he
    had built without a drawing. His evidence on that point is in direct conflict
    with Ms. Fiumes evidence that Ms. Wilkes had approved the construction of all
    of the vanities
after
she was shown the drawings.

[8]

The trial judge accepted the Fiumes evidence as entirely credible. He
    did so without making any reference to Mr. Derewonkos evidence in his reasons
    for judgment.

[9]

The respondents argue that there is no requirement for a trial judge to
    refer to every item of evidence considered or to detail the way each item of
    evidence was assessed (see
R. v. J.M.H.
, 2011 SCC 45, [2011] 3 S.C.R.
    197, at para. 32). They submit that there are very good reasons for the trial
    judge to have rejected the evidence of Birkshires two former employees, or to
    have considered it to be irrelevant to the issues at hand. In their view, even
    if credibility played a role, there is no reason to interfere with the trial
    judges factual findings since he effectively explained
why he preferred the respondents evidence over that of the
    appellants.

[10]

We
    disagree. Considering the record as a whole, including the fact that the trial
    judge reopened the case to hear the evidence of the two witnesses after determining
    that it could bear on the material issue of the respondents credibility, the
    trial judges failure to address this evidence in his reasons creates problems
    on appeal. Credibility played an important role in the trial, in which the
    central issue was the scope and terms of the home renovation contract. The
    trial judge rejected the evidence of the appellants on several points and he
    explained why he preferred the evidence of the respondents. If Mr. Derewonkos evidence
    had been accepted, it would have meant that a drawing that was introduced by
    the respondents at trial as being contemporaneous with Birkshires work, was
    created well after the litigation had commenced. Such evidence could have had a
    material effect on the credibility of the respondents, and indeed on the
    administration of justice.

[11]

Although
    we specifically refrain from commenting upon the credibility of the evidence
    led by the appellants when they re-opened their case, it was incumbent on the
    trial judge to at least advert to the evidence and resolve it. This is
    particularly true given that the trial judge had pre-determined the materiality
    of the evidence, acknowledging that it was sufficiently probative of
    credibility to justify the exercise of his discretion in favour of re-opening
    the case.

[12]

As
    this court noted in
Dovbush v. Mouzitchka
, 2016 ONCA 381, 131 O.R. (3d)
    474, at para. 29, [a] trial judge owes the losing party an explanation for
    rejecting the evidence of a key witness or witnesses  and, while the absence
    of such an explanation is not necessarily dispositive, it may go a long way
    toward putting the reasons beyond the reach of meaningful appellate review. Unfortunately,
    that is the result in the present case. In the absence of any mention of these
    witnesses, and having regard in particular to the potential importance of Mr.
    Derewonkos evidence to the question of the respondents credibility, it is
    impossible to know whether and why the trial judge accepted or rejected the evidence
    or if it impacted his credibility findings.

[13]

Another
    issue in the proceedings was whether Birkshires construction lien was perfected
    in time in accordance with the requirements of the
Construction Lien Act
,
    R.S.O. 1990, c. C.30. In particular, for the lien to be valid it was necessary
    for contract work exceeding $1,000 to have been performed (which would fix the
    contract completion date) after a certain date (which was identified by the
    trial judge as April 4 or 6, 2007). The parties disagreed about whether the
    work that was done during the relevant time was contract work, repair work, or
    work to correct a deficiency. The trial judge, in brief oral reasons, accepted
    that there was at least $1,000 worth of work to be done within the relevant
    time frame, and he referred specifically to the childrens vanity, installation
    of crystals on a chandelier and the hardwood flooring. Having considered the
    evidence, we are of the view that the trial judge would have had to have
    accepted the Fiumes evidence and rejected that of the appellants, with respect
    to the timing and nature of the work that was done on each of these items, and
    as such, the trial judges failure to address evidence relevant to the parties
    credibility precludes effective review of the lien issue as well.

[14]

The
    appeal is therefore allowed. The judgment is set aside and a new trial of the
    two actions is ordered. In the interim, Birkshires construction lien remains
    registered against the subject property and its validity will be determined at
    the new trial. Costs to the appellants in the sum of $8,500, inclusive of HST
    and disbursements. Costs of the first trial shall be determined by the judge
    hearing the new trial.

Gloria Epstein J.A.

K. van Rensburg J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Tompkins (Re), 2018 ONCA 654

DATE: 20180719

DOCKET: C64495

Strathy C.J.O., Watt and Epstein JJ.A.

IN THE MATTER OF: Douglas Tompkins

AN APPEAL UNDER PART XX.1 OF THE
CODE

Erin Dann, for the appellant

Andrew Cappell, for the Ministry of the Attorney General

Janice E. Blackburn, for the Person in Charge of Waypoint
    Centre for Mental Health Care

Heard: April 27, 2018

On appeal against the disposition of the Ontario Review
    Board dated September 19, 2017.

Epstein J.A.:

OVERVIEW

[1]

The appellant has a long history of serious psychiatric illness. He has
    been diagnosed with a constellation of psychiatric disorders including sexual
    sadism, pedophilia, anti-social personality disorder and mild mental
    retardation. The appellant also has a number of health issues. He suffers from
    Type II diabetes and a seizure disorder. His seizures appear to have increased
    in frequency in recent years.

[2]

He has resided in institutions since he was 7. He is now 62.

[3]

The index offence took place in 1976 on the grounds of the Huronia
    Regional Centre where the appellant and the victim both lived. The appellant,
    then 21, and the victim engaged in sexual intercourse, following which the
    appellant tied the victim to a chair, pulled her clothes off and pushed a stick
    into her vagina. He then kicked her and dropped a large rock on her head. The
    appellant tied a belt around the victims neck and stuffed a rag in her throat.
    The victim died of asphyxiation.

[4]

On a charge of murder, the appellant was found not guilty by reason of
    insanity  now referred to as Not Criminally Responsible (NCR). Since that
    finding, the appellant has been detained at the Waypoint Centre for Mental
    Health Care (Waypoint). With the exception of a 90-day period in 1994 when he
    was assessed, and of other trips to hospital for medical reasons, the appellant
    has not set foot off the Waypoint grounds in over 30 years. There is no dispute
    that other than for medical, legal or compassionate purposes, the appellant
    will never be able to enter the community, even escorted by staff, while
    detained at Waypoint.

[5]

At his most recent Board hearing in September 2017, the appellant
    conceded the issue of significant risk. He asked for a transfer from Waypoint
    to an all-male secure forensic unit at the Centre for Addiction and Mental
    Health (CAMH) or the Brockville Mental Health Centre (Brockville). He
    sought this transfer so he could take advantage of escorted privileges into the
    community, available at CAMH and Brockville but not at Waypoint.

[6]

A majority of the Board concluded that the necessary and appropriate
    disposition was an order continuing the appellants detention at Waypoint,
    citing the potential negative effect a move could have on the appellants
    quality of life. The alternate chair and a psychiatrist member of the Board
    dissented  the minority would have ordered that the appellant be transferred
    either to CAMH or to Brockville.

[7]

For the reasons that follow, I agree with the appellant that the majority
    erred in two ways: (i) the majority erred in law by failing to consider all
    relevant factors under s. 672.54 of the
Criminal
    Code
; and (ii)
    the majority further erred by failing to give sufficient weight in the
    circumstances to the appellants reasonable subjective preferences in favour of
    a transfer
. Together, these errors
    rendered the majoritys disposition unreasonable.
I would therefore
    allow the appeal, set aside the disposition under appeal and order a new
    hearing.

THE HEARING BEFORE THE BOARD

(1)

The Evidence

[8]

A detailed review of the hospital report reveals that the appellants
    clinical status has remained static for many years. In the past 32 years, he
    has not engaged in any assaultive behaviour. He has not demonstrated any seriously
    inappropriate or predatory sexual behaviour in several decades. For the past
    several decades, but for one minor altercation with another patient, there have
    been no incidents of serious physical, verbal or sexual aggression and no need
    for seclusion. However, because of his intellectual disabilities, inappropriate
    sexual activity preferences, and history of dyscontrolled behaviour, his
    treatment teams have consistently viewed detention in a highly supervised and
    structured setting as necessary to protect the public and as most beneficial to
    the appellant. The appellant does not contest this assessment.

[9]

It appears that notwithstanding his hard work in group sessions, the
    appellants intellectual disability prevents him from understanding,
    integrating or remembering much of the content of his rehabilitative programming
    for sexual offenders.

[10]

On
    the social side, the appellant has generally fared well at Waypoint. He is
    described as pleasant and cooperative. He interacts well with staff and fellow
    patients. The appellant has access to all programs and amenities within the secure
    perimeter at Waypoint and has enjoyed grounds privileges escorted by staff, all
    without incident. He takes advantage of all available educational, recreational
    and vocational services, and spends much of his day engaged in programming
    most frequently, in Waypoints workshop. He also enjoys playing cards twice a
    month with an elderly female volunteer.

[11]

The
    unchallenged evidence is that the appellant could most definitely be managed
    in a less secure environment than Waypoint. However, he does continue to
    struggle with appropriate boundaries in his relationships with female staff and
    volunteers and is disposed towards inappropriate sexual activity preferences.
    These management concerns must be accounted for in his disposition.

[12]

As
    early as 1992, the clinical team recommended that, if an all-male facility with
    less security and more supervision were available, the appellant should be
    considered for such a placement.

[13]

In
    preparation for the hearing under appeal, the clinical team initially
    recommended that the appellant be transferred to a less secure environment at
    Providence Care in Kingston. The team believed, incorrectly, that there was a
    specialized program available at Providence for sex offenders with intellectual
    disabilities  a facility where the appellant could possibly achieve and
    sustain a greater quality of life than at Waypoint. The team recommended a
    transfer with conditions permitting the appellant to exercise hospital grounds
    privileges accompanied by staff and community privileges, escorted by staff. After
    learning that such a program was not in fact available, the team changed its
    opinion and recommended that the appellant remain at Waypoint.

(2)

The Parties Positions at the Hearing

[14]

It
    is against this background that the appellant sought a transfer to an all-male
    unit available at either CAMH or Brockville. As previously indicated, the
    appellant sought such a transfer so he could, albeit in a limited manner, enjoy
    some engagement with the community. He hoped to access the community through occasional
    escorted trips to locations such as a shopping mall or a hockey arena.

[15]

The
    Attorney General for Ontario supported the appellants transfer request. Counsel
    for the Attorney General noted that there was no safety or management need for
    the appellant to remain at Waypoint and also no treatment advantage to his
    remaining there. The Attorney General also agreed that there was no actual
    evidence adduced at the hearing demonstrating that he would not respond well to
    a transfer. In the light of these factors, the Attorney General submitted that
    the appellants preferences should determine the issue of the transfer and that
    it should be ordered by the Board.

[16]

Noting
    that he could be managed in a less secure environment, the appellants clinical
    team nonetheless concluded that a transfer would result in significant
    restrictions on the appellant. In support of its recommendation that the
    appellant remain at Waypoint, the team cited the fact that Waypoint is a
    familiar environment, that vocational services are a source of both pride and
    funds for the appellant, that he is able to engage in recreational activities
    at Waypoint and that he enjoys playing cards with his regular volunteer
    visitor.

[17]

The
    appellants attending psychiatrist, Dr. Danyluk, agreed with the conclusion,
    set out in the hospital report, that the appellant could be managed in a less
    secure environment on an all-male unit. However, Dr. Danyluk was concerned that
    transferring the appellant to another institution would negatively affect his quality
    of life, given the relationships he has formed over the decades he has been at
    Waypoint and the additional restrictions he would be subject to at either Brockville
    or CAMH. Notwithstanding this conclusion, under cross-examination the doctor
    did acknowledge that moving to CAMH or Brockville could provide the appellant
    with faster and better access to medical care for his serious medical
    conditions.

[18]

Waypoint
    recommended the appellants continued detention at its facility, arguing that
    even though his risk to the community could be safely managed at a less secure
    facility, his quality of life at such an institution would be diminished. At
    Waypoint patients have relatively free access within the secure areas of the hospital.
    Since the majority of the units at CAMH or Brockville are co-ed, in order to
    ensure the safety of female patients and other vulnerable patients, the
    appellants ability to access recreational and vocational opportunities would
    be severely limited.

(3)

The Reasons

[19]

The
    majority of the Board accepted the unchallenged evidence that the appellants
    risk to public safety could be safely managed at CAMH or Brockville. However,
    it nonetheless refused to order the transfer. It concluded that the appellants
    lived reality in a less secure hospital would result in his having a diminished
    quality of life. The appellant would not be able to engage in the various
    activities that he enjoys at Waypoint, where he is able to move about the
    grounds with relative ease. The majority concluded that at the other hospitals
    the appellant would have access to fewer privileges or programming since it
    would be unlikely that he would be allowed off his unit without direct and
    close supervision. The majority was concerned that the appellant may not be
    able to appreciate the significant limits on his liberty that he would face in
    a less secure environment, or the impact those limits would have on his overall
    quality of life.

[20]

Relying
    on this courts decision in
Mental Health Centre Penetanguishene v. Magee
(2006), 208 C.C.C. (3d) 365 (Ont. C.A.), the majority concluded that, taking
    into account the appellants other needs under s. 672.54 of the
Code
,
    continued detention at Waypoint was the necessary and appropriate disposition.

[21]

A
    minority of the Board would have ordered the appellants transfer to a less
    secure environment. The minority recognized the potential negative impact of
    the appellants losing access to certain programs and opportunities at
    Waypoint, but noted that there was no evidence that he would be unable to enjoy
    his life in a new environment and engage with new hospital staff and patients
    as he had at Waypoint. Crucially, the minority emphasized that although the
    appellant may never be discharged to live in the community, his reintegration
    into society should not be overlooked as a goal and a transfer to a less secure
    hospital would broaden [his] access to society outside the confines of the
    restrictive boundaries at [Waypoint].

The Legal Framework and
    Standard of Review

[22]

Here,
    given the parties agree that the appellant remains a significant threat, the
    Board was required to impose a disposition that was necessary and
    appropriate. In determining the proper
disposition,
    the Board was required to consider the four factors set out in section 672.54
    of the
Code
:

i.

the safety of the public;

ii.

the mental condition of the accused;

iii.

the reintegration of the accused into society; and

iv.

the other needs of the accused.

[23]

The
    necessary and appropriate disposition is that which is the least onerous and
    least restrictive to the accused consistent with public safety:
Mazzei v.
    British Columbia (Director of Adult Forensic Psychiatric Services)
, [2006]
    1 S.C.R. 326
,
at para. 19. It is the entire package of
conditions that must be the least onerous and least
    restrictive:
Penetanguishene Mental Health Centre v. Ontario (Attorney
    General),
2004 SCC 20, [2004] 1 S.C.R. 498, (
Tulikorpi
), at para.
    71;
Re Conway,
2016 ONCA 918, at para. 38. In making this determination
    an NCR offender is to be treated with dignity and accorded the maximum liberty
    compatible with Part XX.1s goals of public protection and fairness to the NCR
    accused:
Winko v. Forensic Psychiatric Institute,
[1999] 2 S.C.R. 625,

at para. 43.

[24]

The
    Board is required to gather and review all available evidence pertaining to the
    four factors set out in s. 672.54:
Winko
,

at para. 55;
R. v.
    Aghdasi
, 2011 ONCA 57, at para. 19. Failure to consider all of the factors
    when determining the least onerous and least restrictive disposition is an
    error of law:
Magee
,

at paras. 59, 65.

[25]

Section
    672.78 of the
Criminal Code
provides that this court may set aside an
    order of a Review Board only where it is of the opinion that:

a.

it is unreasonable or cannot be supported by the evidence;

b.

it is based on a wrong decision on a question of law; or

c.

there was a
    miscarriage of justice.

[26]

The
    standard of review when applying the first branch of s. 672.78 is
    reasonableness, while the second branch is concerned with a question of law,
    and thus the standard is correctness:
Mazzei
, at para. 16.

[27]

As
    I explain below, I am of the view that the majority erred in two respects.
    First, the majority erred in law in failing to meaningfully consider all
    relevant factors under s. 672.54. Specifically, it failed to consider the relevance
    of a transfer to CAMH or Brockville in relation to the appellants
    reintegration into the community. Second, the majority also erred by failing to
    assign appropriate weight to the appellants reasonable perception of his own
    needs, as well as the objective benefits of a transfer, in considering his
    other needs as required under s. 672.54 of the
Code
. The disposition
    reached was accordingly unreasonable and must be overturned.

ANALYSIS

(1)

The Board failed to consider the appellants reintegration into society

[28]

As
    previously indicated, it was incumbent on the Board to specifically address all
    of the factors in s. 672.54 that could be relevant to granting or refusing the
    appellants transfer request.

[29]

The
    reasons do not indicate that the majority specifically or meaningfully considered
    the impact of the appellants requested transfer on his reintegration into
    society. It only addressed rehabilitation by reciting that it had considered
    all of the factors under s. 672.54, and then later setting them out in full. As
    this court concluded in
Magee,
a conclusory statement purporting to take
    into account all the criteria from s. 672.54 is not sufficient for the Board to
    discharge its responsibility under this section.

[30]

The
    only reasonable inference is that the majoritys failure to take reintegration
    into account was the result of the uncontested evidence that it is unlikely the
    appellant will
ever
be discharged into the community  he may require
    institutionalization for the remainder of his life. In my view, this failure is
    rooted in the majoritys unduly narrow interpretation of reintegration in the
    context of this legislative scheme.

[31]

Reintegration
    is a process, not a destination. It need not be regarded as an all or nothing
    proposition. Although the appellants potential opportunity to participate in
    the community on escorted passes may be regarded as minimal reintegration, it
    is, nonetheless, a relevant component of reintegration, in that it constitutes connection
    with society outside the boundaries of an institution. Such an opportunity should
    not be trivialized. Through escorted passes the appellant would be able to
    achieve a level of engagement with the community that he has been denied for 30
    years.

[32]

It
    follows that I agree with the minoritys view that, on this record, even though
    the appellant may never be discharged into the community, his reintegration
    into society nonetheless remained a relevant factor to be considered under s.
    672.54. If anything, the Boards failure to consider this factor is even more
    significant
because
supervised access into the community may be the
    most significant level of reintegration the appellant could ever realistically
    achieve. In my view, the Board erred in law in failing to specifically address this
    factor. Accordingly, its disposition should be set aside under s. 672.78(b).

(2)

The Board unreasonably ignored the preferences of the appellant and the
    benefits to the appellant of a transfer

[33]

I
    am also of the view that the Board erred in its consideration of the appellants
    other needs by failing to put appropriate emphasis on the appellants
    reasonable perception of his own needs as well as the objective benefits of a
    transfer on his wellbeing.

[34]

The
    majority correctly recognized that management and containment of the appellants
    risk is not the only relevant consideration to be addressed in drafting a
    disposition. The analysis of the necessary and appropriate disposition must
    include consideration of privileges or amenities that the individual will be
    able to access depending on where he is detained. The Board correctly cited
Magee
for the proposition that the fact that an NCR patient wishes to be
    transferred to a less secure facility, knowing that the consequences of a
    requested transfer may cause him difficulty, is not dispositive of whether the
    proposed transfer would meet the individuals other needs: see para. 88. While
    the least onerous and least restrictive disposition requirement usually
    translates into the most minimally secure environment able to contain the accuseds
    risk, this is not always the case:
Tulikorpi
, at para 34.

[35]

However,
    in my view the majoritys perception of the appellants quality of life
    unduly minimized and disregarded his subjective preferences and ignored the evidence
    of concrete benefits associated with the requested transfer. As the minority
    noted, the majoritys analysis [gave] little weight to the possibility that
    [the appellant] might ultimately obtain and enjoy escorted access to the
    greater community. Moreover, there is nothing in the reasons that indicates
    that the majority took into consideration the evidence that the transfer would
    lead to the appellants improved access to specialized health care given his
    seizures and advancing age.

[36]

These
    failures will not always constitute a reversible error, given the significant
    deference owed to the Board in its crafting of dispositions:
R. v. Owen,
2003
    SCC 33, [2003] 1 S.C.R. 779, at para. 69. However, in these circumstances, they
    do.

[37]

The
    appellant requested a transfer expressly for the legitimate goal of being able
    to participate in supervised trips into the community. The majority appears to
    have given no weight to this goal or to the additional benefits that a transfer
    would yield. This case was not like
Magee
or
R. v. Maclean
, 2012
    ONCA 909, where the potential benefits of a move to a less secure unit were
    speculative or based on a questionable motive of the NCR accused. Here, the
    transfer would unquestionably provide concrete benefits  benefits that the
    appellant had long desired. The requested transfer would give the appellant a
    chance to step off hospital grounds. It is difficult for anyone other than the
    appellant to measure the subjective value of taking such a step after spending
    many decades inside Waypoint, or the impact of so doing so on his quality of
    life.

[38]

This
    takes me to the complex issue of determining and assigning weight to the
    appellants needs. This case involved a trade-off between subjective
    preferences. It required the Board to determine whether the accused needed the
    privilege of community visits  that he has sought for years  more than he
    needed to continue to participate in programs potentially available only at
    Waypoint. There was no evidence that the requested transfer would impact his
    risk to the public, lead to his decompensation, or lead to a deterioration in
    his mental state. It was simply a matter of which option would better meet the
    appellants needs.

[39]

As
    the minority held, the majoritys findings concerning the appellants quality
    of life presuppose that the appellant will be unable to enjoy a new environment
    and engage with new and different hospital staff. There was no evidence that he
    could not do so. As the Attorney General acknowledged before the Board, there
    was no treatment advantage to the appellants continued detention at Waypoint.
    Further, there was no evidence adduced demonstrating that the appellant would
    not respond well

to a transfer, that he will not get along with new
    patients or in fact enjoy meeting new patients and staff, or that he will be
    unable to begin a relationship with a new volunteer visitor.

[40]

In
Tulikorpi
, at para. 58, the Supreme Court identified the twin goals of
    Part XX.1 as the protection of the public and the safeguarding of the NCR
    accuseds liberty interests. The Board must give consideration to the liberty
    interests of the NCR accused at every stage of the evaluation process:
Tulikorpi
,
    at paras. 53-56. These liberty interests are an important component of the
    other needs of the accused. In my view, the values of self-determination and
    autonomy are relevant aspects of an NCR accuseds liberty, and should be
    considered where relevant.

[41]

In
    the unique

circumstances of this case, where the appellants transfer
    request creates no safety or management risk, treatment trade-offs or risk of
    decompensation, and where there are benefits to such a transfer on the evidence
    that are material and objectively reasonable, the Board, in its balancing of
    the factors under s. 672.54, was required to give serious consideration to the
    appellants subjective wishes.

[42]

The
    Board did not do so in this case. The appellant reasonably came to the
    conclusion that his personal needs would be better met by a transfer to CAMH or
    Brockville rather than continuing with the current circumstances at Waypoint.

[43]

In
    the circumstances I am of the view that the Board erred in its assessment of
    the appellants other needs by failing to assign adequate weight to the
    appellants own perception of his needs and preferences, or the evidence of the
    objective benefits of a transfer. This failure rendered the decision
    unreasonable.

CONCLUSION

[44]

In
    my view, the appellant is entitled to a transfer to an all-male medium secure
    unit at either CAMH or Brockville.

DISPOSITION

[45]

I
    would allow the appeal, set aside the Boards order and, subject to the
    following paragraph, order that the appellant be transferred to either CAMH or
    Brockville.

[46]

I
    am of the view it would not be appropriate for this court to resolve and order the
    particulars of the transfer. The record contains no indication of whether CAMH
    or Brockville is in a position to accept the appellant at the present time, or
    the appropriate conditions to impose on the appellants residing at either
    location. I would accordingly refer the matter back to the Board on an
    expedited basis to determine the terms under which the appellant can be
    transferred to another suitable facility.

Released: DW JUL 19 2018

Gloria Epstein J.A.

I agree. G.R.
    Strathy C.J.O.

I agree. David Watt
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Toor v. Toor, 2018 ONCA 621

DATE: 20180710

DOCKET: C64866

Feldman, Hourigan and Brown JJ.A.

BETWEEN

Kamaljit Kaur Toor

Applicant (Respondent)

and

Balwinder Singh Toor,
Amrik
    Toor and Amarjit Toor

Respondents
    (Appellants)

AND BETWEEN

Amrik Toor and Amarjit
    Toor

Plaintiffs (Appellants)

and

Balwinder Toor and
    Kamaljit Toor

Defendants (Respondents)

James S.G. Macdonald, for the appellants

Bhupinder Nagra, for the respondent

Heard: July 6, 2018

On appeal from the order of Justice M.G. Emery of the Superior
    Court of Justice, dated December 22, 2017.

REASONS FOR DECISION

[1]

Kamaljit Kaur Toor and Balwinder Singh Toor were married in 2002.

[2]

On August 31, 2012 they purchased a matrimonial home in Brampton (the
    Property). Title was registered in their names as joint owners.

[3]

They separated in early 2015.

[4]

Following their separation, Kamaljit commenced family law proceedings.
    As well, Balwinders parents, Amrik Toor and Amarjit Toor (the Parents),
    commenced a civil suit against their son and daughter-in-law seeking payment of
    $132,000, which they alleged they had loaned Balwinder and Kamaljit. The
    Parents also sought a declaration that they are the beneficial owners of a
    joint interest in the Property because Balwinder and Kamaljit had used some of
    the loaned funds to purchase the Property. The Parents action was consolidated
    with the family law proceedings.

[5]

Balwinder did not defend against his Parents claim. Default judgment was
    granted against him.

[6]

Kamaljit moved for summary judgment dismissing the Parents action.

[7]

The motion judge granted partial summary judgment. He concluded that he
    could not resolve the Parents claim for repayment of the $132,000 as there was
    a genuine issue requiring a trial as to whether those advances constituted a
    loan or a repayment to Balwinder of the proceeds of sale of a property in his
    name in India.

[8]

However, the motion judge granted summary judgment dismissing the
    Parents claim for an interest in the Property. He gave two reasons for his
    decision. First, there was no tie that binds the advances and the purchase of
    the Property together to create a constructive trust. Second, he found there
    was no evidence that any of the $132,000 was a loan or advance with an
    expectation of repayment.

[9]

The Parents appeal the dismissal of their claim for an interest in the
    Property. They seek an order dismissing Kamaljits summary judgment motion,
    leaving for trial the issues about the nature and use of the $132,000,
    including their claim for an interest in the Property.

[10]

Notwithstanding
    the deference owed to the motion judges determination to grant summary
    judgment, we conclude that he made two reversible errors that require setting
    aside the grant of partial summary judgment:
Hryniak v. Mauldin
, 2014
    SCC 7, at para. 81.

[11]

First,
    the motion judges finding that there was no tie that binds the advances and
    the purchase of the Property together was based on a misapprehension of the
    evidence. The record discloses a link between some of the Parents advances and
    the purchase of the Property.

[12]

Between
    June 4, 2012 and August 13, 2012, the Parents wrote cheques totalling $47,000
    to Balwinder, which he deposited into one of his accounts. The account records
    show that those deposits, together with some others, accumulated so that by
    August 29, 2012 the account balance amounted to $101,347.37. On that day, there
    was a withdrawal from the account of $101,377.11. On her cross-examination, Kamaljit
    admitted that the withdrawal was used to purchase the Property. A genuine issue
    requiring a trial therefore exists as to whether that use of the funds originating
    from the Parents gives rise to any legal entitlement by them to an interest in
    the Property.

[13]

Second,
    on their face, the motion judges reasons are internally inconsistent on the
    issue of the legal characterization of the Parents advances.

[14]

On
    the one hand, the motion judge stated he could not resolve the issue of whether
    the $132,000 advanced by the Parents to Balwinder constituted a loan or a
    repayment of proceeds from the sale of the Indian property. The motion judge left
    that issue for trial.

[15]

Yet,
    on the other hand, in granting Kamaljit partial summary judgment the motion
    judge concluded that there was no evidence that any of the $132,000 was a loan
    or an advance with an expectation of repayment. Those two findings cannot be
    reconciled. By granting partial summary judgment, the motion judge created the
    real possibility of inconsistent results with respect to the legal consequences
    of the $132,000, ignoring the strong caution issued by this court about
    granting partial summary judgment where such a risk exists:
Butera v.
    Chown, Cairns LLP
, 2017 ONCA 783, at para. 26. A genuine issue requiring a
    trial exists as to the legal characterization of the $132,000.

[16]

Accordingly,
    we allow the appeal and set aside the order granting partial summary judgment.

[17]

We
    fix the costs of the appeal at $6,000, inclusive of disbursements and
    applicable taxes. The costs of the appeal shall be payable in the cause of the
    Parents civil proceeding.

[18]

The
    motion judge did not order any costs of the motion below. We leave the costs of
    the preparation for the summary judgment motion to the trial judge as part of
    the trial cost award.

[19]

We
    would strongly encourage the parties to request the appointment of a case
    management judge for both the family law and civil proceedings.

K. Feldman J.A.

C.W. Hourigan J.A.

David
    Brown J.A.