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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Rocker, 2019 ONCA 299

DATE: 20190415

DOCKET: C65675

Benotto, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Courtney Rocker

Appellant

Courtney Rocker, in person

Gerald Chan, Duty Counsel

Andrew Hotke, for the respondent

Heard and released orally: April 8, 2019

On appeal from the conviction entered on July 18, 2018
    and the sentence imposed on July 18, 2018 by Justice Peter Bawden of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

This is an appeal from conviction and sentence. The appellant raised
    concerns in his Notice of Appeal about the trial judges credibility findings. Although
    these submissions were not advanced in oral submissions today, we see no error
    in those findings. The trial judge was alive to the arguable frailties in the
    complaints evidence and specifically addressed those issues, reconciling all
    concerns, and landing on clear credibility findings. We see no error in his
    approach.

[2]

In oral submissions today, the appellant expressed regret for not having
    testified at trial. This concern was not raised in his Notice of Appeal. The
    appellant had counsel at trial and we see nothing in the record that would
    warrant appellate intervention.

[3]

In his very capable submissions relating to the sentence appeal, Mr.
    Chan as duty counsel advanced two arguments alleging errors in the reasons for
    sentence.

[4]

First, duty counsel argued that the trial judge erred by concluding that
    the appellant provided a substance held out to be cocaine to a 16-year-old
    complainant for the purpose of lessening her natural resistance to the abhorrent
    experience of a life of prostitution. In light of the acquittal entered on the
    human trafficking count, and the reasons given for the acquittal, including
    that the appellant was not seeking to exploit the teenagers for personal gain,
    duty counsel contends that it was not open to the trial judge to then conclude
    on sentencing that the appellants purpose was to lessen the complainants
    resistance to prostitution. Also in support of his position, duty counsel
    relies upon the trial Crowns submissions on sentence where she specifically
    said that she was not asking the trial judge to sentence on the basis that the
    appellant was providing cocaine for the purposes of encouraging the girls to
    provide sexual services.

[5]

We would not accede to this ground of appeal.

[6]

Even if the reasons for acquittal on the human trafficking count meant
    that the trial judge could not find that the appellant was providing cocaine to
    accelerate the complainants slide into prostitution, the other available
    factual findings that he made amount to strong aggravating factors including
    that:

i.

the appellant provided the substance to a 16-year-old girl;

ii.

he did so while knowing she was a user of cocaine and engaging in prostitution;

iii.

he knew that she was unconnected to a parental figure who might
    otherwise provide direction or assistance to her; and

iv.

he knowingly encouraged her to develop an extremely dangerous addiction.

In these circumstances, we would not interfere with
    the 12-month sentence less credit for time served on that count.

[7]

The second issue pertains to whether the trial judge erred by imposing
    consecutive sentences for the drug related counts. We see no error.

[8]

In addition to the count discussed previously, the appellant was also
    convicted of trafficking cocaine to another 16-year-old complainant, one who
    paid for that cocaine. She did not use the drug. Rather, she testified that is
    was her intention to sell the cocaine to others. It was, as found by the trial
    judge, a strictly commercial venture. Accordingly, and as found by the trial
    judge, the circumstances between the two trafficking counts were fundamentally
    different.

[9]

In these circumstances, we see no error in the imposition of consecutive
    sentences. Moreover, the total 19-month sentence for two trafficking counts,
    one sexual assault and one assault does not offend the principle of totality.

[10]

In
    these circumstances, the conviction appeal is dismissed. Leave to appeal
    sentence is granted and the sentence appeal is dismissed.

M.L. Benotto J.A.
David Brown J.A.
Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sharma, 2019 ONCA 274

DATE: 20190409

DOCKET: C65413

Pardu, Nordheimer and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Ajay Sharma

Respondent

Lisa Csele, for the appellant

Robert Lepore, for the respondent

Heard: February 28, 2019

On appeal from the sentence imposed on April 27, 2018 by
    Justice Kathryn L. Hawke of the Ontario Court of Justice.

Pardu J.A.:

A.

overview

[1]

The Crown appeals from a sentence imposed on a
    guilty plea to fraud. The respondent operated a tax return preparation business.
    He added false claims of business losses to 37 of his clients tax returns for
    the 2009-2012 taxation years, potentially resulting in a loss of federal tax
    revenue of $488,178.37. The revenue authorities are in the process of
    reassessing interest and potential penalties for the affected taxpayers, and
    the amount of the ultimate actual loss, if any, is not known. The respondent
    personally benefited from the scheme in the amount of $96,946.

B.

the decision of the sentencing judge

[2]

The sentencing judge imposed a conditional
    sentence of two years less a day. She added conditions intended to promote the
    respondents rehabilitation and reduce the risk that he re-offend. For the
    first eight months, he was under house arrest; for the next eight months he was
    subject to a curfew from 10:00 p.m. to 6:00 a.m.; the conditional sentence was
    followed by probation for three years. He was fined $96,946, with the provision
    that $70,000 had to be paid towards that fine during the term of the
    conditional sentence.

[3]

The respondent is now 67 years old. The
    sentencing judge acknowledged that the respondent has generalized anxiety
    disorder and problems with alcohol. Further, the respondent provided some
    evidence that he suffers from heart disease and high blood pressure. He has a
    criminal record including convictions for uttering forged documents in 1990 and
    1994, and frauds in 2000 and 2006 for which he was sentenced to one day of
    imprisonment, and for which the sentence was suspended, respectively. He also
    has several convictions for impaired driving.

[4]

The Crown asked for a two year sentence and a
    fine, in the amount that was ultimately ordered by the sentencing judge. The
    defence agreed to the fine and submitted that a conditional sentence of up to
    two years less a day would be adequate.

[5]

The sentencing judge observed that the
    respondent was working and that he could continue working if he received a
    conditional sentence. She took note of his health issues. She noted the
    aggravating factors. This included the planning and deliberation associated
    with the commission of the offence and the breach of trust, although the latter
    was somewhat attenuated by the possibility that some of the clients were
    actively involved in the filing of false returns. Other aggravating factors
    noted by the sentencing judge included the medium to larger scale of the fraud and
    the respondents criminal record.

[6]

She then turned to the mitigating factor, the
    early indication of a guilty plea. The sentencing judge noted that the plea came
    early and that pleas in fraud cases save the justice system resources.

[7]

The sentencing judge then turned to the crux of
    the issue:

the issue
    becomes whether, given the principles of general deterrence and denunciation,
    is a real jail sentence required in the circumstances or can these principles
    be satisfied through terms in a conditional sentence order. In thinking about
    that, certainly there are some symbolic things in terms of general deterrence
    that a real jail sentence involves but I think its also fair to consider some
    practical considerations. And I think that the public is reasonably astute to
    some of these practical considerations. There is an agreed upon fine in this
    case. Its a substantial fine. That fine has a general deterrence aspect in and
    of itself but one of the things that is important with a fine is that it be
    paid and real incarceration would result in him not working. The defendant is
    65. I think its a very open question if he could re-establish himself in the
    employment market after being away from it and in jail. And, also there would
    be competing expenses that would stack up over the time that hed be in jail,
    things like housing and such, the cost of that continues whether you are in
    jail or not. So, there is every reason, I think, to believe that going to jail
    would hamper his ability to pay the fine. And, as I mentioned before, I think
    it is an important element as part of this sentencing proposal. And, I think
    there is a way to have terms satisfy general deterrence and denunciation that
    would pull the entire sentence together as one package that satisfies the
    principles of sentence.

C.

parties positions

[8]

On appeal, the Crown submits that the sentence
    imposed was manifestly unfit, and that the sentencing judge erred by giving
    priority to enabling the respondent to continue working and pay the fine by
    imposing a conditional sentence. The Crown submits that the sentencing judge
    ignored the legal principles of denunciation and deterrence.

[9]

The Crown points to cases in which this court
    has declined to intervene with custodial sentences imposed in large fraud
    cases, where the appellant seeks a conditional sentence on appeal:
R.
    v. Mathur,
2017 ONCA 403;
R. v. Pastore
, 2017 ONCA 487;
R. v. Wilson
, 2016
    ONCA 888 .

[10]

The respondent takes the position that appellate
    intervention is not justified. He argues that the sentence imposed is within
    the range of sentences imposed for this type of offence, and even if it were
    not within the sentencing range, this would be insufficient to warrant appellate
    intervention. The respondent submits that the sentence is not manifestly unfit
    and that the sentencing judge considered all appropriate sentencing principles.

D.

analysis

[11]

I would briefly note that a conditional sentence
    is available here because this offence was committed before the effective date
    of amendments to the
Criminal Code
, R.S.C.
    1985, c. C-46, s. 742.1 which removed the availability of a conditional
    sentence for fraud over $5,000.

[12]

I accept that the two year sentence sought by
    the Crown would not have been an unfit sentence in this case, had it been
    imposed by the sentencing judge, however as indicated in
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 58,
    60:

[58] There will always be situations that call
    for a sentence outside a particular range: although ensuring parity in
    sentencing is in itself a desirable objective, the fact that each crime is
    committed in unique circumstances by an offender with a unique profile cannot
    be disregarded. The determination of a just and appropriate sentence is a
    highly individualized exercise that goes beyond a purely mathematical
    calculation. It involves a variety of factors that are difficult to define with
    precision. This is why it may happen that a sentence that, on its face, falls
    outside a particular range, and that may never have been imposed in the past
    for a similar crime, is not demonstrably unfit. Once again, everything depends
    on the gravity of the offence, the offenders degree of responsibility and the
    specific circumstances of each case. LeBel J. commented as follows on this
    subject:

A judge can
    order a sentence outside that range as long as it is in accordance with the
    principles and objectives of sentencing. Thus, a sentence falling outside the
    regular range of appropriate sentences is not necessarily unfit. Regard must be
    had to all the circumstances of the offence and the offender, and to the needs
    of the community in which the offence occurred. (
Nasogaluak
, at para. 44)

[60] In other words, sentencing ranges are primarily guidelines,
    and not hard and fast rules:
Nasogaluak
, at para. 44. As a result, a
    deviation from a sentencing range is not synonymous with an error of law or an
    error in principle. Sopinka J. stated this clearly in
McDonnell
,
    although he was referring in that case to categories of assault:

in my view it can never be an
    error in principle in itself to fail to place a particular offence within a
    judicially created category of assault for the purposes of sentencing. If the
    categories are defined narrowly, and deviations from the categorization are
    generally reversed, the discretion that should be left in the hands of the
    trial and sentencing judges is shifted considerably to the appellate courts.
    [para. 32]

[13]

Here, the sentencing judge imposed an integrated
    package of measures intended to promote the public interest, secure the respondents
    continued employment, facilitate the respondents payment of the fine and
    reduce the risk of re-offence. She expressly considered denunciation and
    deterrence; as is evidenced by the passage reproduced earlier in my reasons,
    she gave meaningful thought to whether a real jail sentence was required given
    the principles of deterrence and denunciation.

[14]

I would dismiss the appeal for three reasons.

[15]

First, the sentence imposed mirrors in many
    respects, the course the respondent would have followed had the two year
    sentence been imposed as requested by the Crown. The respondent would have been
    eligible for parole after serving one third of a two year sentence, i.e. at eight
    months:
Corrections and Conditional Release Act,
S.C. 1992, c. 20. s. 120(1). Incarcerated persons serving fixed
    sentences of two years or more who are not paroled after serving one third or
    more of the sentence are almost always released on statutory release after
    serving two thirds of their sentence, or after 16 months of a two year sentence:
CCRA
s. 127(3). After that time, the incarcerated
    person would be supervised on parole until the expiry of the two year sentence:
CCRA
, s. 127(7).

[16]

Here, the respondent was on house arrest for eight
    months, and subject to a restrictive curfew for the following eight months. The
    period of probation imposed on the respondent by the sentencing judge
    substantially increases the time during which he is under supervision, for three
    years after his two year less a day conditional sentence.

[17]

The respondent has now served the eight months
    of house arrest and several months towards the second period under curfew. Were
    we to accede to the Crowns request to now impose a two year sentence, he would
    have to re-serve eight months of the custodial sentence before being eligible
    for parole, which in a sense he has already served.

[18]

Even if this court were to give some credit for
    the terms of the conditional sentence already served, because of the
    differences between the federal and provincial prison regimes, the respondent
    would still substantially re-serve the sentence. For example, if this court
    were to impose a one year reformatory sentence, he would likely serve 8 months
    of that sentence, then be released without supervision. Remission in provincial
    institutions is earned for good behaviour while in custody, credited at 15 days
    per month served, as calculated under the federal
Prisons and
    Reformatories Act
, R.S.C., c. P-20, s. 6 (incorporated by
    reference to Ontario reformatories by ss. 28 and 28.1 of the
Ministry
    of Correctional Services Act
, R.S.O. 1990, c. M. 22):
R.
    v.

Plante
,

2018 ONCA 251, at para. 4. As per
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 25, in the majority of
    cases, those serving reformatory sentences are released on remission after
    serving two thirds of their sentence.

[19]

Second, I am not satisfied that the sentencing
    judge erred in principle. In
R. v. Klundert
,
    2011 ONCA 646, 107 O.R. (3d) 561, leave to appeal refused, [2011] S.C.C.A. No.
    512, an analogous case of tax evasion, this court allowed the sentence appeal
    and imposed a one year conditional sentence instead of the one year prison term
    originally imposed. As
Klundert
held, there is
    no absolute rule that a conditional sentence is not appropriate in tax evasion
    cases: at para. 21. In my view, under the operative version of s. 742.1, the
    same is true for this analogous conviction for fraud over $5000.

[20]

It was open to the sentencing judge here to
    conclude that the public interest and the objectives of sentencing would be
    better met by a package allowing the respondent to continue his employment, pay
    the fine and remain under supervision for an extended time on terms designed to
    reduce the risk of re-offence. This was not a violent offence. Given the nature
    of the fraud, where the ultimate actual loss is unknown, and given the age,
    circumstances and health of the respondent, I am not satisfied that
    incarceration in an institution was the only option. The sentencing judge
    expressly considered the need for denunciation and deterrence and imposed an
    integrated package of measures that satisfied these sentencing principles.

[21]

Deference applies to sentences which might be
    viewed as more lenient as well as those which are stiffer.

[22]

As explained by Laskin J.A. in
R. v.
    McKnight
(1999), 44 O.R. (3d) 263 at p. 273:

Moreover, this court
    has held that over-emphasizing a relevant factor or failing to give enough
    weight to a relevant factor may amount to an error in principle. This does not
    mean, however, that an appellate court is justified in interfering with a trial
    judge's exercise of discretion merely because it would have given different
    weight or emphasis to a factor relevant to the sentence. To suggest that a
    trial judge commits an error in principle because in an appellate court's
    opinion the trial judge gave too much weight to one relevant factor or not
    enough weight to another is to abandon deference altogether. The weighing of relevant
    factors, the balancing process is what the exercise of discretion is all about.
    To maintain deference to the trial judge's exercise of discretion, the weighing
    or balancing of relevant factors must be assessed against the reasonableness
    standard of review. Only if by emphasizing one factor or by not giving enough
    weight to another, the trial judge exercises his or her discretion unreasonably
    should an appellate court interfere with the sentence on the ground that the
    trial judge erred in principle.

[23]

In addition, the principle of restraint in
    sentencing still means that incarceration is the sanction of last resort:
R.
    v. Hamilton
(2004), 72 O.R. (3d) 1, at para. 96. In light of
    the position taken by Crown counsel at the sentencing, that an appropriate sentence
    was one of two years, it is difficult to characterize the sentence imposed by
    the trial judge as manifestly unfit, even though the prevailing caselaw might
    suggest it was exceptional.

[24]

Third, it would be unfair to re-incarcerate the
    respondent after he has substantially served the house arrest portion of the
    conditional sentence. In
R. v.

Hamilton
, Doherty J.A. for this court concluded that a sentencing judge
    erred in imposing a conditional sentence on cocaine couriers, where the usual
    sentence would have been in the two year range, and where conditional sentences
    were rarely available because of the serious nature of the offence and the
    damage done by those crimes to Canadian society. He concluded that actual
    incarceration for 20 months and two years less a day would have been
    appropriate for one of the offenders, and actual incarceration of two years
    less a day would have been appropriate for the other offender:
Hamilton
, at para. 164. This court declined however to re-incarcerate the
    offenders after they had served close to 17 months of the conditional sentence,
    as was explained at paras. 165-66,

[165] The ultimate question is, however, should
    these respondents be sent to jail now? They have served close to seventeen
    months of their conditional sentences. There is no suggestion that they have
    not complied with the terms of those sentences or that they have committed any
    further offences. This court has recognized both the need to give offenders
    credit for conditional sentences being served pending appeal and the added
    hardship occasioned by imposing sentences of imprisonment on appeal. The
    hardship is readily apparent in these cases. Had the respondents received the
    appropriate sentences at trial, they would have been released from custody on
    parole many months ago, and this sad episode in their lives would have been a
    bad memory by now.

[
166
]
    This was a significant appeal for the administration of justice. The decision
    of the trial judge raised important issues that required the attention of this
    court. Appeals take time. Lives go on. Things change. These human realities
    cannot be ignored when the Court of Appeal is called upon to impose sentences
    well after the event
. The administration of
    justice would not be served by incarcerating the respondents for a few months
    at this time. They have served significant, albeit, inadequate sentences. To
    impose now, what would have been a fit sentence at trial, would work an undue
    hardship on the respondents.
The administration of justice
    is best served by allowing the respondents to complete their conditional
    sentences. [Emphasis added.]

[25]

As in
Hamilton
, the administration of
    justice would not be served by re-incarcerating the respondent after he has
    served the house arrest portion of the conditional sentence. To require him to
    serve a custodial type sentence twice would work an undue hardship on the
    respondent, and the public interest is better served by allowing him to
    complete the conditional sentence and observe the terms of the three year
    probation term imposed.

[26]

Accordingly, I would dismiss the appeal.

Released: April 9, 2019

GP

G. Pardu J.A.

I agree I.V.B. Nordheimer J.A.

I agree A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stockton, 2019 ONCA 300

DATE: 20190416

DOCKET: C63307, C64405

Benotto, Brown and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sharon Stockton

Appellant

Sharon Stockton, in person

Lisa Csele, for the respondent

Heard: April 9, 2019

On appeal from the conviction entered by Justice Russell
    M. Raikes of the Superior Court of Justice on January 11, 2017, and from the
    sentence imposed on January 11, 2017, and from the conviction entered by Justice
    John A. Desotti of the Superior Court of Justice on June 27, 2017, and from the
    sentence imposed on September 12, 2017.

REASONS FOR DECISION

[1]

On June 27, 2017, the appellant was convicted of
    possession of methamphetamine and two counts of breach of recognizance. The
    appellant appeals from both her conviction and sentence.

[2]

The conviction appeal rests on the suggestion
    that the warrant obtained to search the appellants home was invalid. The
    execution of that warrant resulted in the seizure of a pipe in which
    methamphetamine was found. The appellant alleges that the police fraudulently
    changed the time on the face of the search warrant. She also claims that the
    information to obtain the warrant incorrectly referred to one of the
    confidential informants, as that person either did not exist or was not
    properly held out to be a confidential informant. The appellant says that she
    was improperly prevented from cross-examining the police officer who swore the
    information to obtain on these issues at trial.

[3]

We see no error in respect of this ground of
    appeal. There was no s. 8
Charter
application
    before the trial judge and, as such, he was not asked to rule upon the
    constitutional adequacy of the search warrant. Even accepting that the
    appellant attempted to ask questions about the content of the information to
    obtain at trial, in the absence of a s. 8
Charter
application or an application to cross-examine the affiant, there
    would have been no basis for proceeding with that questioning. Nor have we been
    provided with any information that would suggest impropriety on the part of the
    police or that would cause any other concern regarding the search warrant.

[4]

The appellant also appeals from her sentence of time
    served and a 12-month probation order. Her probation is complete. We would not
    intervene in that aspect of her sentence. On consent, we would vacate the $600
    victim fine surcharge imposed in light of the fact that the relevant statutory
    provision has been found unconstitutional:
R. v. Boudreault
, 2018 SCC 58.

[5]

The appellant was also convicted of possession
    of methamphetamine for the purposes of trafficking on January 11, 2017. She
    appeals from conviction.

[6]

First, the appellant argues that the police lied
    in their
viva voce
evidence about the existence
    of a confidential informant. She argues that, had she been permitted to
    cross-examine the officers in relation to the information to obtain the search
    warrant in the other matter, she may have been able to undermine their
    credibility in relation to the possession for the purposes of trafficking
    count. For the reasons set out above, we do not agree.

[7]

Second, the appellant argues that the trial judge
    erred in finding that her arrest and search incident to arrest were lawful. The
    trial judge produced an extensive ruling, carefully setting out the grounds for
    her arrest. We see no error in his approach. The search incident to arrest lawfully
    flowed from the lawful arrest.

[8]

Finally, the appellant challenges the trial
    judges s. 11(b) ruling, claiming that her right to be tried within a
    reasonable time was infringed. We do not agree. Again, the trial judge produced
    carefully considered reasons. Much of the delay arose from the appellants
    repeated changes of counsel. Having regard to that period of delay, we see no
    error in the conclusion that the total delay (excluding defence delay) was only
    four days above the 30-month ceiling set in
R. v. Jordan,
2016 SCC 27, [2016] 1 S.C.R. 631. This was also a transitional case
    and we agree with the trial judge that the application of the previous s. 11(b)
    analysis would not have resulted in a finding of unreasonable delay.

[9]

Although the Notice of Appeal also suggests that
    the appellant appeals from the DNA order that was imposed as part of her
    sentence, this matter was not advanced in oral submissions. In any event, we
    see no basis upon which to intervene.

[10]

We would dismiss both conviction appeals. We
    would grant leave to appeal sentence in both matters, but dismiss the sentence
    appeals except to set aside the $600 victim fine surcharge relating to the
    appeal in C64405.

M.L. Benotto J.A.
David Brown J.A.
Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Radio 1540 Ltd. v. Muhammad, 2019 ONCA 279

DATE: 20190408

DOCKET: C65214

Simmons, Juriansz and Miller JJ.A.

BETWEEN

Radio 1540 Ltd.

Plaintiff (Respondent)

and

Dil Muhammad and Vivo Canadian Inc.

Defendants (Appellants)

Cindy Cohen, for the appellants

Patrick Summers, for the respondent

Heard: April 5, 2019

On appeal from the judgment of Justice Andrew Sanfilippo
    of the Superior Court of Justice, dated February 28, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The appellants seeks to overturn the decision below by advancing
    arguments that were rejected by the trial judge and by challenging his findings
    of credibility.

[2]

On our review of the record, we see no basis on which to interfere with
    the trial judges findings. It is not our role to retry the case. The appeal is
    dismissed.

[3]

Costs of the appeal are to the respondent on a partial indemnity scale
    fixed in the amount of $15,000, inclusive of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION: Rivers v.
    Waterloo Regional Police Services Board, 2019 ONCA 267

DATE: 20190405

DOCKET: C65760

Simmons, Juriansz and
    Miller JJ.A.

BETWEEN

Angelina Rivers, Sharon Zehr and Barry
    Zehr

Plaintiffs (Appellants)

and

Waterloo Regional Police
    Services Board and Waterloo Regional Police
    Association

Defendants (Respondents)

R. Douglas Elliott and H. Scott Fairley, for the
    appellants

Elena Mamay and Eric Sheung Chi Cheng, for the
    appellants

James H. Bennett, for the respondent Waterloo Regional
    Police Services Board

Caroline (Nini) Jones, for the respondent Waterloo
    Regional Police Association

Jodi Martin and Glynnis Hawe, for the respondent Waterloo
    Regional Police Association

Heard: April 2, 2019

On appeal from the order of Justice Deena Baltman of the Superior Court
    of Justice, dated July 13, 2018

REASONS
    FOR DECISION

[1]

The appellants appeal from the motion judges order granting the
    respondents motions to dismiss their action for want of jurisdiction and also
    dismissing their motion for certification as a class action.

[2]

The appellants are current and former uniform members of the Waterloo
    Regional Police Service. They commenced a proposed class action against the
    Waterloo Regional Police Services Board and the Waterloo Regional Police
    Association asserting multiple claims relating to systemic gender-based
    workplace discrimination and harassment, including breach of s. 15
Charter
rights and, as against the Association, breach of the duty of fair
    representation.

[3]

The motion judge found that the police officers' and former police
    officers' employment is and was governed by collective agreements that not only
    prohibit discrimination but also contain comprehensive grievance procedures and
    ultimately provide for binding arbitration under Part VIII of the
Police
    Services Act
, RSO 1990, c. P.15 (PSA). Further, under the collective
    agreements, the Association has a duty of fair representation, enforceable under
    Part VIII. Police officers may also advance a claim of workplace discrimination
    or sexual harassment before the Human Rights Tribunal of Ontario (HRTO).

[4]

At paras. 25 through 42 of her reasons, the motion judge reviewed the
    governing jurisprudence and concluded that the legislative scheme and case law
    requires that the appellants claims be adjudicated before a labour arbitrator
    or at the HRTO and that the Superior Court lacks jurisdiction over their
    claims.

[5]

We agree with the motion judge that binding jurisprudence from this
    court applying
Weber v. Ontario Hydro
,
    [1995] 2 S.C.R. 929
(S.C.C.),
in the policing context dictates that the Superior Court lacks
    jurisdiction to entertain the proposed class action. See, for example,
Renaud
    v. LaSalle (Town) Police Assn
., [2006]
    O.J. No. 2842 (C.A.)
and
Cumming v. Peterborough Police
    Association
, 2013 ONCA 670
.
See also

K.A. v. Ottawa (City)
(2006), 80 O.R. (3d) 161.

[6]

In that regard, we observe that, contrary to the appellants
    submissions, the collective agreement permits group complaints or grievances.
    Moreover, arbitrators under Part VIII of the PSA have broad remedial powers
    sufficient, in our view, to remedy the wrongs alleged.

[7]

The appellants argue that the discriminatory environment in which they
    find themselves leaves them without an adequate remedy on a practical basis and
    that this requires that they be granted access to the courts. One fatal flaw in
    this argument is that the appellants have not attempted to avail themselves of
    the mandatory grievance/arbitration process or led evidence to demonstrate that
    it is practically unavailable.

[8]

The appellants appeal from the dismissal of their action is therefore
    dismissed. In the result, it is unnecessary that we address the appeal of the
    dismissal of the certification motion.

[9]

If the parties are unable to agree on costs within 21 days from the
    release of these reasons, the respondents may deliver brief written costs
    submissions within 10 days thereafter and the appellants and the Law Foundation
    may respond within a further 10 days.

Janet Simmons J.A.

R.G. Juriansz J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rokhsefat v. 8758603 Canada Corp., 2019 ONCA 273

DATE: 20190409

DOCKET: C65632

van Rensburg, Hourigan and Huscroft JJ.A.

BETWEEN

Seyed Razi Rokhsefat and
    Nasibe Kazemzadeh-Khorasgha

Applicants (Respondents)

and

8758603
    Canada Corp.

(formerly known as Ascend Mortgage
    Investment Corp.)

Respondent (Appellant)

Zoltan M. Kaslik, for the
    appellant

Benjamin Salsberg, for the
    respondents

Heard: March 28, 2019

On appeal from the judgment of Justice Joseph Di Luca of
    the Superior Court of Justice, dated July 19, 2018, with reasons reported at
    2018 ONSC 3615 and 2018 ONSC 4457.

REASONS FOR DECISION

[1]

The respondents granted a second mortgage on their home in Richmond
    Hill, to secure a loan of $120,000 from the appellant. The mortgage was for a
    term ending August 1, 2017, and until then interest only was payable monthly at
    the rate of 10.99% per annum.

[2]

On the day before the mortgage matured, July 31, 2017, the respondents
    received a discharge statement, dated July 25, 2017, by email. Included in the
    amount required to be paid ($128,604.30) were late payment fees and a fee for
    two demand letters. The statement provided that legal enforcement would commence
    after 15 calendar days, but it did not state when the 15 days would begin to
    run.

[3]

Two days later, the respondents received a registered letter from the
    appellants counsel, dated August 2, 2017, which indicated that the mortgage
    was in default by reason of the failure to pay the amount due on the redemption
    date of August 1, 2017. The letter enclosed a Notice of Sale under Mortgage.
    The letter and notice specified a discharge amount of $153,285.10, inclusive of
    additional late payment fees, charges for professional and lender
    administration fees, and various interest amounts. Although the Notice of Sale
    referred to a payment due date of September 8, 2017, the letter demanded
    payment by August 2, 2017, failing which enforcement proceedings would be commenced
    without further notice.

[4]

The respondents challenged the amounts claimed by the appellant and the
    premature Notice of Sale. Ultimately they brought an application in the
    Superior Court seeking, among other things, an order under s. 12 of the
Mortgages
    Act
, R.S.O. 1990, c. M.40, for a discharge of the mortgage upon payment
    into court of an amount to be determined by the court and a declaration that
    the Notice of Sale was of no force and effect.

[5]

The application judge considered the affidavit evidence and determined that
    the amount owing on the mortgage as of June 27, 2018 was $144,886.05 (including
    legal costs already awarded against the respondents), with a
per diem
interest amount of $42.85 for each day thereafter. He concluded that the
    default relied on by the appellant was the August default in payment of
    principal (and not other delays in payment of monthly interest that were
    alleged in the appellants materials). He allowed certain expenses claimed by
    the appellant (including fees for late payments and a discharge fee) and
    disallowed others (including an illegal interest penalty, three months
    interest, and professional and administrative fees that were not supported by
    any explanation). He ordered that if the amount due and owing was not paid
    within 30 days, an interlocutory injunction that had been imposed in September
    2017 prohibiting enforcement of the mortgage would be lifted, and the mortgagee
    would be free to enforce the mortgage as it deemed appropriate.

[6]

The mortgagee appeals. The mortgagee seeks an order setting aside the
    order of the application judge, so that a new proceeding can be commenced
    before an assessment officer under s. 43 of the
Mortgages Act
. The
    mortgagee also contends that the application judge ought to have directed the
    trial of an issue, as there were material facts in dispute. In the alternative,
    the mortgagee challenges the application judges disallowance of certain
    specific charges.

[7]

The appellants principal argument is that the application judge ought
    not to have determined the application. It argues that the proper procedure for
    determining the issues was to have the disputed amounts assessed by an
    assessment officer under s. 43 of the
Mortgages Act

after
    tender to the mortgagee or payment into court of the amount demanded, or at
    least of the principal amount owing. The appellant contends that the
    respondents had no
bona fide

intention to redeem, as they had
    no available funds, and that their application was intended simply to delay the
    mortgagees remedies.

[8]

The appellant relies on the procedure recognized in the case of
Royal
    Trust Corp. of Canada v. E.R. Kwinch Investments Ltd.
(1984), 44 O.R. (2d)
    593 (S.C., Master) for the assessment of the mortgagees costs and other
    expenses incidental to the exercise of a power of sale, where a mortgagor seeks
    to redeem and discharge a mortgage, and for the assessment of legal costs other
    than those incidental to the power of sale under the
Solicitors Act
, R.S.O. 1990, c. S.15
. See also
The
    Manufacturers Life Insurance Company v. 1008522 Ontario Limited
, [2006]
    O.J. No. 787, at para. 18 (S.C.). The appellant contends that the s. 43
    procedure before an assessment officer was the only recourse available to the
    respondents, and that therefore the application judge lacked jurisdiction to
    determine the issues in dispute. It holds, further, that proceeding under s.
    12(3) would have required the prior tender to the mortgagee or payment into
    court of the full amount owing and claimed together with an amount for future
    legal costs and interest, or at a minimum the principal amount.

[9]

We do not accept this argument. The respondents brought their
    application in order to challenge the conduct of the appellant, and to
    determine the proper discharge amount. Because the Notice of Sale followed only
    two days after the discharge statement and yet demanded payment of an
    additional sum of nearly $25,000, there was a real question about the legality
    of a number of the charges. Indeed, the application judge, at paras. 13 and 32
    of his June 12 reasons, characterized the August 2, 2017 letter and notice as
    remarkable and the approach of the appellant to the anticipated default of
    the mortgage principal as aggressive, perhaps abusive. He noted that the
    mortgagees counsel obviously had inflated the mortgage account and gave the
    impression that unless the inflated amount was paid in one day legal remedies
    would be exercised. Counsel also gave the impression that sale proceedings had
    already begun.

[10]

A
    mortgagee must be able to ascertain, assert, and finally defend its right to
    the legal fees in connection with the mortgage debt. The standard charge terms
    of mortgage agreements are not a carte blanche for a mortgagee to incur and
    charge fees:
Chong & Dadd v. Kaur
, 2013 ONSC 6252, at paras. 40 and
    43. In the particular circumstances of this case, the respondents court
    application was a justifiable response to the appellants unreasonable conduct,
    in refusing to explain the additional charges and its issuance of a premature
    Notice of Sale.

[11]

We need not determine in this appeal whether any or all of the
    various issues that were raised in this application could have been addressed
    in an assessment under s. 43. It is sufficient to say that the application
    judge had jurisdiction in this case to address all of the issues that were
    before him: see e.g.
C.M.T. Financial Corporation v. David McGee
, 2015
    ONSC 3595, 57 R.P.R. (5th) 259, at paras. 67-68.

[12]

The application judge might well have concluded that the
    appropriate procedure was to require the respondents to pay money into court,
    and then to direct an assessment of the additional amounts at issue.
Indeed, at the time the application was first before the court, an
    order could have been made requiring at least the principal that was admitted
    to be owing, or some other amount, to be paid into court as a term of the
    adjournment and interlocutory injunction. The parties are not in agreement as
    to their respective positions, and what exactly happened at this time, when the
    mortgagor was represented by other counsel, who was later removed because of a
    conflict of interest.

[13]

What
    ultimately occurred in this case was that by the time the matter came on for a
    hearing before the application judge, the parties had provided affidavit
    evidence, and the application judge was in a position to decide all of the
    issues before him. Even if some of what he determined in relation to the
    dispute about the amount that was owing for a discharge of the mortgage could
    have been addressed before an assessment officer, the matter has been
    determined. The matter was before a justice of the Superior Court who had
    jurisdiction to deal with it.

[14]

We
    also see no merit in the appellants argument that the application judge ought
    to have directed a trial of the issue because there were disputed facts. The
    application judge noted, at para. 6 of his June 12 reasons, that the material
    filed on the application was not subject to cross-examination and that the
    evidence of each side was diametrically opposed on key issues, but that [n]onetheless,
    the parties maintain that this application can and should be decided on the
    record that is before me. In the circumstances, it was appropriate for the
    application judge to proceed and to make findings on the evidence that was
    available.

[15]

Finally,
    we reject the appellants argument that the application judge erred in his
    treatment of the various contested amounts that were claimed by the appellant.
    Specifically, in disallowing the mortgagees claim for a three-month interest
    penalty, the application judge indicated that he was not satisfied that there was
    any prepayment penalty payable under this mortgage, either on default or the
    failure to pay on the maturity date. Contrary to the appellants submission, s.
    17 of the
Mortgages Act
does not provide to the mortgagee any
    unconditional right to claim such a payment based on maturity alone. See
58
    Cardill Inc. v. Rathcliffe Holdings Ltd.
, 2018 ONCA 672, 62 C.B.R. (6th)
    173, at para. 9;
Ialongo v. Serm Investments Ltd.
(2007)
, 54 R.P.R. (4th) 310 (Ont. S.C.),
    at paras. 30-1; and
2468390 Ontario Inc. v. 5F Investment Group Inc.
, 2017
    ONSC 4641, 140 O.R. (3d) 233, at para. 24. With respect to the other items in
    dispute, the application judge allowed for certain amounts claimed by the
    appellant, including late payment charges, where there was substantiation for
    such claims and where they did not offend the
Mortgages Act
or the
Interest
    Act
, R.S.C. 1985, c. I-15.

[16]

Accordingly,
    the appeal is dismissed. Costs of the appeal are payable by the appellant to
    the respondents in the amount agreed between the parties, $17,500 inclusive of
    disbursements and HST.

K.
    van Rensburg J.A.

C.W.
    Hourigan J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Royal Bank of Canada v. Everest Group Inc., 2019
    ONCA 287

DATE: 20190409

DOCKET: C65894, C65893

Lauwers, Pardu and Nordheimer JJ.A.

BETWEEN

Royal Bank of Canada

Plaintiff (Respondent)

and

Everest Group Inc.,
    Yousaf Jamell Khan, Zarmina S. Khan and Shahid Saleem Khawaja

Defendants (Appellants)

AND BETWEEN

Royal Bank of Canada

Plaintiff (Respondent)

and

Versatile Holdings Inc.,
    Sardar Samiuddin Khan, Nida Shahid and Shaid Saleem Khawaja

Defendants (Appellants)

Daniel Hamson, for the appellants

Rachel Moses, for the respondent

Heard and released orally:  April 8, 2019

On appeal from the judgments of Justice Paul Perell of
    the Superior Court of Justice, dated August 23, 2018 with reasons reported at 2018
    ONSC 4973 and at 2018 ONSC 4971

REASONS FOR DECISION

[1]

The defendants appeal from the summary judgments granted by the motion
    judge.

[2]

The corporate appellants entered into franchise agreements to operate two
    restaurants. The respondent provided financing for these ventures. The
    individual appellants guaranteed the financing provided by the respondent.

[3]

Difficulties arose in the operation of the restaurants with the result
    that the corporate appellants sought to rescind their franchise agreements.
    They alleged that the franchisor had failed to provide proper disclosure
    documents.  The corporate appellants demanded that the franchisor pay them the
    monies that they had lost in connection with purchasing and operating the
    franchises. In response to the rescission, the franchisor took over the
    operation of the restaurants.

[4]

The corporate appellants advised the respondent of these events. In
    response, the respondent demanded repayment of the amounts outstanding under
    the financing arrangements. The respondent alleged a number of events of
    default including that the corporate appellants had ceased to carry on business.
    The corporate appellants did not repay the amounts due.

[5]

The respondent commenced an action to recover the amounts due.  The
    summary judgment motions followed. The motion judge granted summary judgment on
    the basis that there were events of default under the financing arrangements
    and that, consequently, the monies advanced had to be repaid.

[6]

The appellants submit that the motion judge erred in concluding that the
    corporate appellants had ceased to carry on business.  They contend that the
    business of the corporate appellants had merely changed from operating the
    restaurants to the business of recovering their investments in the franchises.
    The motion judge rejected this contention as do we. We agree with the motion
    judge that the appellants position does not accord with business reality or
    with common sense. It was reasonable for the motion judge to conclude that the
    respondents ceased to carry on business when they returned the restaurant
    operations to the franchisor. It was also open to the motion judge to conclude
    that this conduct amounted to a material adverse change in the appellants
    operations.

[7]

Further, we see no merit in the submission that the respondent failed to
    exercise its discretion properly in demanding repayment of the loans.

[8]

Finally, we see no error in the motion judges refusal to grant the
    adjournment of the summary judgment motion. That decision falls entirely within
    the discretion of the motion judge.

[9]

In the end result, it is our view that the motion judge was correct in
    his conclusions.

Conclusion

[10]

The
    appeals are dismissed with costs to the respondent fixed in the amount of $17,000.00
    payable by the Everest defendants and $16,000.00 payable by the Versatile
    defendants, both inclusive of disbursements and HST.

P.
    Lauwers J.A.
G. Pardu J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Saint Luke Lutheran Church v. McGregor, 2019 ONCA
    261

DATE: 20190403

DOCKET: C65615

Lauwers, Benotto and Brown JJ.A.

BETWEEN

Saint Luke Lutheran Church

Plaintiff

and

Don McGregor
and
    Investia Financial Services Inc., o/a Money Concepts

Defendants (
Appellant
)

and

Pierre Cronier, Denis Poirier, Margaret
    Tannahill-Wade, Bryan J. King, David Bickel, Kim Herweyer, Ron Herweyer, Murray
    Johnson, Gail Detlefsen, Barton Thomas Burron, John Doe #1  50 and Jane Doe #1
    - 50

Third Parties (Respondents)

Philip Ghosh, for the
    appellant

Joseph Griffiths, for the
    respondents

Heard: March 27, 2019

On appeal from the
    judgment of Justice Kevin Phillips of the Superior Court of Justice, dated March
    29, 2018.

REASONS FOR DECISION

[1]

Saint Luke Lutheran Church is an unincorporated association of
    individuals. Under its constitution, members of the congregation are appointed
    as officers and given specific responsibilities. The officers changed from time
    to time over the relevant period of Mr. Burrons fraud. It is noteworthy that
    neither the motion judge nor the parties adverted to the unincorporated status
    of Saint Luke Lutheran Church as a party to litigation, or in relation to its
    members.

[2]

At para.10 of his typed endorsement, the motion judge said:

The bottom line is that it was and
    remains the Courts intention that the third party claim involving all persons
    other than Barton Thomas Burron be dismissed (I am satisfied that a basis exist
    for him to arguably have a distinct fiduciary duty and a related independent
    standard of care).

[3]

The motion judges observation in the bracketed sentence applies to
    every person named as an officer during the time that Mr. Burron carried out
    his fraud. There are several complex issues including: the status of the
    plaintiff to bring an action; how the law applies as it relates to
    unincorporated associations of individuals, and to the provisions of the
Negligence
    Act
and the
Rules of Civil Procedure
. The correlation is a matter of considerable complexity and requires a
    full evidentiary record, one that has not been developed. This is a matter that
    should go
to trial.

[4]

The appeal is allowed, and the appellants motion to substitute new
    names for the Doe third parties is allowed. The respondents will pay costs to
    the appellant in the amount of $8000, all-inclusive.

P. Lauwers J.A.

M.L. Benotto J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Song v. MacPhee, 2019 ONCA 331

DATE: 20190424

DOCKET: C65920

Tulloch, Hourigan and Fairburn JJ.A.

BETWEEN

Kyo Jeen Song and Jung
    Min Ryu

Applicants

(Appellants)

and

Michael MacPhee and Leah Walker

Respondents

(Respondents on Appeal)

Brian Diamond, for the appellant

Paul Gemmink, for the respondent

Heard and released orally: April 23, 2019

On appeal from the
    order of Justice Pollak of the Superior Court of Justice, dated August 30, 2018.

REASONS FOR DECISION

[1]

The appellants seek to overturn the decision of the application judge
    dismissing their claim for adverse possession of a strip of land between two
    residences in the city of Toronto.

[2]

The application judge found that the appellants did not meet their onus
    to establish a claim for adverse possession.

[3]

According to the appellants, the application judge correctly articulated
    the test for adverse possession but erred in her factual findings and failed to
    properly consider all the evidence. We do not give effect to that submission.

[4]

The application judge acknowledged that at one end of the disputed strip
    of land there is a gate that was locked by the appellants predecessor in title,
    Ms. Trone. However, the application judge found that Ms. Trone recognized that
    the land in issue was owned by the respondents predecessors in title. In
    addition, the application judge found that the appellants failed to establish that
    Ms. Trone intended to exclude the respondents predecessors in title.

[5]

These were findings open to the application judge on the record. Specifically
    they were supported by the evidence of Mr. Crocker, who owned the respondents
    property, from approximately 1990 to 2008. His evidence was that he did not
    object to the gate being locked in order to provide some measure of security to
    Ms. Trone. Further, he testified that Ms. Trone granted access to the area when
    necessary to carry out a repair.

[6]

Based on the record on the application we see no basis to interfere with
    the decision of the application judge. The appeal is dismissed. Costs are to
    the respondents payable by the appellants in the amount of $5,000, inclusive of
    disbursements and HST.

M.
    Tulloch J.A.

C.W.
    Hourigan J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Vetro v. Sakran, 2019 ONCA 315

DATE: 20190418

DOCKET: C65347

Doherty, Paciocco and Zarnett JJ.A.

BETWEEN

Dominic Vetro

Plaintiff (Appellant)

and

Karmel Sakran, Earl
    Taylor, Karmel Sakran Law Office and Green Germann Sakran

Defendants (Respondents)

Dominic Vetro, self-represented

Geetha Philipupillai and Daniel Iny, for the respondents

Heard: April 17, 2019

On appeal from the orders of Justice Woollcombe of the
    Superior Court of Justice, dated April 9, 2018 and June 22, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The appellant, who is self-represented, has not appeared. Attempts by
    counsel for the respondents and the court to contact him today at the phone number
    he provided have proved futile.

[2]

The appeal was listed on or about February 25 and the parties were
    advised by the court. It is now 12:25 p.m.  Counsel for the respondents ask
    that the appeal be dismissed or abandoned in light of the appellants unexplained
    non-attendance.

[3]

So ordered. The appeal is dismissed as abandoned. Costs to the
    respondents in the amount of $5,000, all in.


COURT OF APPEAL FOR ONTARIO

CITATION: Wescom Solutions Inc. v. Minetto, 2019 ONCA 251

DATE: 20190401

DOCKET: C64415

van Rensburg, Hourigan and Huscroft JJ.A.

BETWEEN

Wescom Solutions Inc.

Plaintiff

(Respondent)

and

Nadia
    Minetto aka Nadia Arsenault,

Eric Yip
    aka Sam Yip aka Samuel Yip aka Samson Man Chun Yip,

GF
    International, Gabriel Kit Chun Fung,

Plus One Solutions
, John Doe #1
    and John Doe #2

Defendants

(
Appellants
)

John Russo and Dina Milivojevic, for the appellants

Jeffrey Brown and Melissa Wright, for the respondent

Heard: March 25, 2019

On appeal from the
    judgment of Justice Michael G. Emery of the Superior Court of Justice, dated
    September 14, 2017.

REASONS FOR DECISION

[1]

This appeal seeks to overturn the judgment of the trial judge, holding
    that the appellant, Gabriel Kit Chun Fung, knew or was wilfully blind to the
    fraudulent means by which Nadia Minetto obtained iPhones and iPads (the Apple
    Products) that he purchased from her between early 2012 and July 2014.

[2]

The total value of the Apple Products was $6.2 million. Mr. Fung
    purchased them from Ms. Minetto with cash, generally meeting in parking lots. Ms.
    Minetto was the accounting manager of the respondent, Wescom Solutions Inc. (Wescom).
    In January 2011, she began purchasing the Apple Products through the fraudulent
    use of Wescoms corporate credit card. She then sold the Apple Products for her
    own personal gain.

[3]

The parties agreed on the issues to be determined at trial and that
    agreement was reflected in a court order directing the trial of the following
    issues:

(1)

Whether the defendant Gabriel Kit Chun Fung knew or was willfully blind
    to the fact that he was purchasing stolen goods or goods fraudulently obtained
    by Nadia Minetto; and

(2)

If Mr. Fung in fact knew or was willfully blind to the fact that he was
    purchasing stolen goods or goods fraudulently obtained by Ms. Minetto, did this
    apply to all the transactions or just transactions after a certain date.

[4]

In his reasons, the trial judge considered the nature and development of
    the sales relationship between Mr. Fung and Ms. Minetto. He divided the sales
    scheme into three phases:

1.

From
    November 2011 to early 2012, when they would meet to exchange Apple Products
    for cash in the parking lot of Yorkdale Mall (Stage 1);

2.

From early
    2012 to mid-April, 2013, when they would meet in the parking lot of the Ikea
    store at Highway 7 and Highway 404 to exchange Apple Products for cash (Stage
    2); and

3.

From
    mid-April 2013 to July 2014, when Ms. Minetto would direct Apple Inc. to ship
    products directly to the address of a virtual office that Mr. Fung had rented
    at 15 Allstate Parkway (Stage 3).

[5]

The trial judge found Mr. Fung was not wilfully blind during Stage 1,
    was wilfully blind during Stage 2, and had actual knowledge during Stage 3 that
    the Apple Products were stolen goods or fraudulently obtained by Ms. Minetto. He
    awarded damages to Wescom in the amount of $5,094,7674.72 plus interest for the
    Apple Products purchased by Mr. Fung during Stages 2 and 3.

[6]

On appeal, Mr. Fung and corporations controlled by him submit that the
    trial judge erred by: (i) applying an objective standard to his wilful
    blindness analysis rather than a subjective standard; and (ii) making credibility
    findings against Mr. Fung, while at the same time noting that his evidence was
    unshaken and consistent, and in the face of evidence that Ms. Minetto was
    concealing her illegal activities from Mr. Fung.

[7]

We do not give effect to either of these submissions.

[8]

We agree with the appellants submission that the trial judge engaged in
    an objective analysis. Indeed, as part of his wilful blindness analysis, the
    trial judge stated that wilful blindness is made up of two components:

a. In circumstances that arouse the suspicions
    of a reasonable and honest person that are strong or sufficient enough to raise
    a duty to inquire; and

b. Whether someone in that persons position
    chooses to remain deliberately ignorant to the knowledge that inquiry would
    reveal.

[9]

The respondent submits that the objective analysis was appropriate
    because this was a knowing receipt case. It is true that knowing receipt can be
    proven not only by establishing actual knowledge or wilful blindness, but also
    by establishing constructive knowledge using objective criteria.
    Specifically, knowing receipt can be proven by showing that the defendant: (i)
    had knowledge of circumstances that would indicate the facts to an honest and
    reasonable person; or (ii) had knowledge of circumstances that would put an
    honest and reasonable person on inquiry:
Paton Estate v. Ontario Lottery
    and Gaming Corp.
, 2016 ONCA 458, 131 O.R. (3d) 273, at para. 62; see also
Gold
    v. Rosenberg
, [1997] 3 S.C.R. 767, at paras. 53, 74. However, in this case
    the agreed issues for the trial judge were whether Mr. Fung had actual
    knowledge or was willfully blind to the fact that he was purchasing stolen
    goods or goods fraudulently obtained by Ms. Minetto. The trial judge was not
    asked to consider whether Mr. Fung as a reasonable person would have been alerted
    to a potential breach of trust.

[10]

The trial judge erred in law in his articulation of the concept of
    wilful blindness.  As stated by this court in
R. v. Malfara
(2006),
211 O.A.C. 200
(C.A.), at para. 2,
Where wilful blindness is in issue, the
    question is not whether the accused should have been suspicious, but whether
    the accused was in fact suspicious. In short, a finding of wilful blindness,
which
    is the same standard in criminal and civil proceedings,
involves a subjective focus on the workings of a defendants
    mind.

[11]

Notwithstanding this mischaracterization, we are not satisfied that the
    trial judge erred when he concluded that Mr. Fung was wilfully blind. It is clear
    from his reasons that he made findings of fact that established that
    subjectively Mr. Fung was wilfully blind:

[128] I also reach this
    conclusion because Mr. Fung admitted not once, but twice that the iPhones and
    iPads he was purchasing from Ms. Minetto were not upgrades. This is contrary to
    his evidence that he took comfort in purchasing cell phones through his store
    that were mostly upgraded products that had been legitimately obtained. As the
    availability of Apple products in this volume that were not upgrades, Mr. Fung
    had to know they were probably products that had been stolen or obtained
    through fraud.

[130]
I further find as a fact
    that Mr. Fung made a conscious choice not to seek verification or further
    information about the source of the Apple products he was purchasing from Ms.
    Minetto. He chose to remain deliberately ignorant as to the source of those
    products. I make this finding of fact because of Mr. Fungs evidence that he
    may have asked Ms. Minetto a second time if the products he was purchasing from
    her were legitimate.

[12]

These findings establish that Mr. Fung knew that the Apple Products were
    probably stolen or obtained by fraud, but that he made a deliberate choice not
    to investigate. This conduct meets the definition of wilful blindness
    articulated in
R. v. Sansregret
, [1985] 1 S.C.R. 570, at p. 584, which
    arises when
a person who has
    become aware of the need for some inquiry declines to make the inquiry because
    he does not wish to know the truth. See also
R. v. Briscoe
, 2010 SCC 13,
    [2010] 1 S.C.R. 411, at paras 21-24.
Therefore, despite the trial judges error in defining
    wilful blindness, we do not give effect to this ground of appeal.

[13]

With respect to the second ground of appeal, we are not persuaded that
    the trial judge erred in his credibility analysis. He made adverse credibility
    findings against Mr. Fung during Stages 2 and 3. These findings were well
    rooted in the evidence, including the fact that Mr. Fung asked Ms. Minetto a
    second time in Stage 2 whether the Apple Products were legitimate while they
    were trading in a much higher volume, and the fact that Mr. Fung saw invoices
    in Stage 3 that showed, among other things, that the Apple Products were being
    purchased by Wescom at full retail price.

[14]

The appeal is dismissed. The appellants shall pay Wescom its costs of
    the appeal, fixed in the agreed-upon all-inclusive sum of $22,500.

K. van Rensburg J.A.

C.W. Hourigan J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: White v. St.
    Joseph's Hospital (Hamilton), 2019 ONCA 312

DATE: 20190425

DOCKET: C64741

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Paul White, Connor White, Carson White, Marleigh
    White, Mary Ann McConaghy, The Estate of Gerald Francis White Sr., by his
    executor Gerald Francis White, Jr., Gerald Francis White, Jr.

Plaintiffs (Appellants)

and

St. Josephs Hospital (Hamilton), 951743
    Ontario Limited, carrying on business as St. Josephs Health System, St.
    Josephs Health System, formerly, St. Josephs Healthcare System, St. Josephs
    Healthcare Foundation
,
Carol Schweinbenz
, Ved Tandan and Rohit Gupta

Defendants (
Respondents)

Paul Harte and Giuseppe Michelucci, for the appellants

Jessica DiFederico and Simon Clements, for the
    respondents

Heard: November 5, 2018

On appeal from the judgment of Justice Kim
    Carpenter-Gunn, dated November 29, 2017.

Lauwers J.A.:

[1]

The appellant, Paul White, suffered a pinhole bowel leak after a
    routine bowel surgery. The leak was a rare but well recognized risk and a
    potentially life-threatening complication. Mr. White does not argue that the
    leak came about as a result of anyones negligence.

[2]

Mr. Whites claim for damages is based on the delay in treatment because
    the leak was not detected for some time. Mr. White developed sepsis and entered
    septic shock, which required remedial surgery, a course of antibiotics, and a
    stay in the Intensive Care Unit. He later developed an unrelated bowel
    perforation that necessitated a longer hospital stay.

[3]

The trial judge dismissed the action against the hospital, Nurse Carol
    Schweinbenz, and Drs. Ved Tandan and Rohit Gupta. Mr. White appeals the
    decision only in respect of the hospital and Nurse Schweinbenz.

[4]

Mr. White largely seeks to re-litigate the trial judges factual
    findings on the basis that she made palpable and overriding errors in her
    assessment of the evidence along with some related legal errors. He asserts
    that, contrary to the evidence, the trial judge failed to make three findings:

·

Nurse Schweinbenz was negligent in her treatment of Mr. White
    during the overnight period of May 4-5, 2016, thus delaying treatment of the
    leak;

·

the hospital negligently failed to ensure that the antibiotic
    Piperacillin-Tazobactam, also known as Pip-Taz, was properly administered to Mr.
    White, which was a medication error;

·

the medication error combined with Nurse Schweinbenzs negligence
    exacerbated Mr. Whites injury and therefore caused or contributed to it.

[5]

In my view, the trial judge made no palpable and overriding errors of
    fact, or legal errors. The medical evidence supports the trial judges decision.
    I would dismiss the appeal.

A.

Did Nurse Schweinbenzs negligence delay treatment of the leak?

[6]

Nurse Schweinbenz noted that Mr. White had mottled limbs at about 6:15 a.m.
    on May 5 when she decided to give him a bath, suggesting that he was then in
    septic shock. She called for a doctor. He was resuscitated and transferred to
    the Intensive Care Unit at 8:10 a.m.

[7]

Mr. White called Valerie Neely as an expert on the nursing standard of
    care. Her evidence was that the care provided by Nurse Schweinbenz was
    appropriate up to 1:00 a.m. on May 5. Katherine Trip, the nursing expert called
    by the hospital and Nurse Schweinbenz, gave evidence that Nurse Schweinbenz met
    the standard of care throughout. The trial judge preferred the evidence of
    Nurse Trip, whom she found to be better qualified by education, training and
    experience than Nurse Neely.

[8]

Mr. White points to several abnormal changes in his condition
    overnight from the beginning of Nurse Schweinbenzs shift at 7:00 p.m. on May 4
    and into the morning of May 5. The first was a drop in his blood pressure at 10:30
    p.m. The second related to his insufficient urine output. The third related to
    his continuing pain despite medication.

[9]

Mr. White submits that the standard of care required Nurse Schweinbenz to
    report the abnormal changes to the resident on call. Had she reported the
    changes, Nurse Schweinbenz testified that she "would have had to [tell the
    resident Dr. Singh] what Mr. White had done, what his vitals were, how many
    days post-op, who he was a patient of." Mr. White asserts that had the abnormal
    changes been reported, the expert evidence was that a reasonable doctor would
    have come to see him and emergency treatment would have started hours earlier.

[10]

The
    trial judge noted that Nurse Schweinbenz had reported Mr. Whites accelerated
    heart rate to Dr. Singh at 10:00 p.m. who told her to keep a close eye on him.

[11]

The
    trial judge found that Nurse Schweinbenz met the standard of care. She
    addressed each of the changes Mr. White described as abnormal. First, in terms
    of the drop in blood pressure at 10:30 p.m., Nurse Schweinbenz testified that
    she had given morphine to Mr. White one hour earlier, which she thought
    accounted for the drop in his blood pressure, and when she took the next round
    of vital signs around 4:30 a.m. his blood pressure had rebounded. The trial
    judge accepted this evidence. She also drew the inference that Dr. Singh would
    not have attended to assess Mr. White if he had been told his blood pressure at
    11:30 p.m., given that Dr. Singh did not attend when the same vitals were
    eventually reported to him by Nurse Schweinbenz at 2:00 a.m. on May 5. Moreover,
    the trial judge accepted Nurse Schweinbenzs evidence that she spoke to Mr.
    White shortly before 2:00 a.m. and he was lucid and coherent and they had a
    dialogue. The trial judge found that Nurse Schweinbenz was not required to
    insist that Dr. Singh attend and examine Mr. White, and she added that there
    was no evidence before the court as to what would have been done or how the
    outcome for Mr. White would have been different had Dr. Singh attended at that
    time.

[12]

Second,
    the evidence was that Mr. Whites urine output was at the minimum expected
    amount. The evidence also indicated that the dark colour of the urine could
    have been the result of dehydration or from blood resulting from the recent
    surgery or catheter insertion.

[13]

Third,
    there was no expert evidence to support the position that in not reporting Mr.
    Whites continued pain Nurse Schweinbenz was in breach of the standard of care.
    The trial judge found that his vital signs remained relatively stable
    overnight.

[14]

In
    my view, the trial judges findings were available to her on the evidence and
    do not constitute palpable and overriding errors. I would uphold the trial
    judges findings that Mr. White did not prove negligence on the part of Nurse
    Schweinbenz. Did the hospital negligently fail to properly administer
    antibiotics to Mr. White?

[15]

The
    evidence was equivocal regarding the administration of the first dose of Pip-Taz.
    The first order for Pip-Taz was given by Dr. Ward around the time Mr. White was
    resuscitated after 6:15 a.m. on May 5. The order called for a single dose of
    Pip-Taz. The factual issue was whether the first dose of Pip-Taz was actually given
    to Mr. White. The order has a checkmark next to it on the order form. According
    to the trial judge, this signified either that the order had been transcribed
    into the medication administration record, or that the dose had been actually
    administered.

[16]

Nurse
    Neely was asked about Dr. Wards medication order and the meaning of the checkmark
    on the order form. She testified that the checkmark meant that the order had
    been transcribed into the medication administration record. However, because
    the order does not actually appear in the medication administration record, the
    trial judge did not accept Nurse Neelys interpretation. She concluded instead
    that the checkmark meant that the Pip-Taz had been administered to Mr. White.

[17]

Mr.
    White points to a note by Dr. Christian in the chart about a medication error,
    and submits that this refers to the missed dose of Pip-Taz. However, the trial
    judge found that the more logical and contextual reading of Dr. Christians
    note is that the error was that Mr. White mistakenly got an additional dose of
    phenylephrine. The trial judge did not make a palpable and overriding error in
    this finding, which was available to her on the evidence.

[18]

Dr.
    Ward later made an order that Pip-Taz be given every six hours on May 5,
    post-operation. This was superseded by an order made by Dr. Christian at 1:50 p.m.,
    after Mr. Whites return from surgery. The trial judge interpreted Dr.
    Christians order for Pip-Taz as requiring it to be given eight hours later at 10:00
    p.m. that evening. According to the trial judge, the medication record shows
    that he was given the next dose of Pip-Taz at 12:00 a.m. Mr. Whites counsel
    conceded at trial that a two hour delay would be
de minimis
.

[19]

The
    parties disagree about whether the order required the antibiotics to be
    administered 8 hours after the order was made, or 8 hours after the first dose
    was administered (around 8:00 a.m.). The appellants took the position that Mr.
    White ought to have received the antibiotics every 8 hours, being 8:00 a.m., 4:00
    p.m., and 12:00 a.m. They argued that the trial judge erred in concluding,
    without any expert evidence, that the order meant that the second dose ought to
    have been given to Mr. White 8 hours after the order was made: 10:00 p.m.

[20]

The
    respondents argued that the trial judge correctly interpreted the order to mean
    that the dose ought to be administered every 8 hours after the order was made.
    They note that the trial judge contrasted the order with other orders which
    stated that actions ought to occur now. The respondents also took the
    position that if this order was in error (presumably because drugs ought to be
    administered every 6-8 hours after the first dose which ostensibly occurred
    around 8:00 a.m.), then this would fall on the prescribing physician, not the
    nurse or hospital who were merely carrying out the order.

[21]

According
    to the infectious disease expert called by the doctors, Dr. Tina Mele, when the
    blood culture results became available around 11:00 a.m. on May 8, it became
    clear that Pip-Taz was not the most effective medication for Mr. White. Dr. Mele
    testified that Mr. White had therefore not been appropriately treated by an
    antibiotic until May 8, when he was switched to Meropenem. Mr. White does not
    allege that Pip-Taz was negligently prescribed. Dr. Mele took the view that, at
    best, the Pip-Taz might have partially treated the infection since the strain
    of bacteria was partially sensitive to that drug.

[22]

In
    my view, the trial judges finding that the first dose of Pip-Taz was
    administered to Mr. White after his resuscitation at about 6:15 a.m. on May 5
    was available to her on the evidence and does not constitute a palpable and
    overriding error.

[23]

The
    trial judge interpreted Dr. Christians order as requiring that the second dose
    of Pip-Taz be administered around 10:00 p.m., 8 hours after the order was
    written. The trial judge interpreted the order in this way because nothing on
    the form suggested that the order of Pip-Taz needed to be administered
    immediately; she contrasted this with other parts of his order which expressly
    stated that they were to be carried out now. This interpretation was
    available to her on the evidence and does not constitute a palpable and
    overriding error.

B.

Did the alleged negligence exacerbate Mr. Whites injury and therefore
    cause or contribute to it?

[24]

Regardless
    of the findings on the standard of care, the trial judges findings on
    causation preclude a finding of negligence on the part of either Nurse
    Schweinbenz or the hospital.

[25]

In
    an action for delayed medical diagnosis and treatment, a plaintiff must
    establish that the delay caused or contributed to the unfavourable outcome:
Sacks v. Ross
, 2017 ONCA 773, 417 D.L.R. (4th) 387, leave to appeal to SCC
    refused, 2018 CarswellOnt 10678-10679, at para. 117;
Beldycki Estate v.
    Jaipargas
, 2012 ONCA 537, 295 O.A.C. 100, at para. 44.
The
    phrase caused or contributed originates in the
Negligence Act
,
R.S.O. 1990, c. N.1, at s. 1,
and is the normative test applied by this court, as set out in
Sacks v. Ross
,
    at para. 117, and embodied in the but for test prescribed by the Supreme
    Court in
Clements v. Clements
, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 8.
In other words, but for the alleged delay would the plaintiff have suffered
    the unfavourable outcome? (Nothing in
Sacks v Ross
revived the material
    contribution to injury test.) The trial judge found that Mr. White failed to
    prove that the delay in treatment caused or contributed to his injuries. She
    noted:
Dr
.
Fong
    was not able to articulate what injury he says was avoidable. The trial judge stated:
    "Dr. Fong agreed that most of Mr. White's outcome was unavoidable. The
    court finds this evidence is devastating to the plaintiffs' case."

[26]

Counsel
    for the appellants argues that these words show the trial judge misapplied the legal
    test for causation, and effectively required him to establish that the
    respondents negligence was the most significant cause of the harm.

[27]

I
    would not give effect to this argument. The trial judge was not setting out the
    legal test, but was simply making a finding about the evidence.

[28]

Dr.
    Mele, testified that, analyzed in retrospect, by 4:10 p.m. on May 4 Mr. White
    was showing early stages of acute respiratory distress syndrome associated with
    sepsis. That condition results in an inflammatory cascade leading inevitably to
    remedial surgery for source control, and the administration of antibiotics. Dr.
    Mele testified that once the cascade set in, Mr. White needed corrective
    surgery (source control), antibiotics, and admission to the Intensive Care Unit
    for life support measures. Even if he had been taken to the operating room at 4:10
    p.m. on May 4 and the antibiotic had been switched from Pip-Taz to Meropenem
    thereafter, Mr. Whites outcome would not have been different.

[29]

Dr.
    Meles evidence was largely substantiated by the testimony of the infectious
    disease expert called by the appellants, Dr. Fong. He testified that unless
    appropriate antibiotics had been started by 5:00 p.m. on May 4 and source
    control over the leak had been achieved by 6:00 p.m. (through surgery,
    presumably), most of Mr. Whites outcome could not have been avoided.

[30]

The
    evidence of both Dr. Mele and Dr. Fong was that the sepsis cascade was underway
    before Nurse Schweinbenz came on shift on May 4, at 7:00 p.m. Dr. Mele further
    stated that Mr. Whites outcome could not have been avoided. To the extent that
    Dr. Fongs evidence contradicted this statement when he stated that most, but
    not all of the outcome was unavoidable, the trial judge was clear that she
    preferred Dr. Meles evidence and that she found Dr. Fong to be evasive and not
    of assistance to the court.

[31]

Dr.
    Meles expert testimony is that the septic shock made initial admission to the
    ICU for life saving measures inevitable. In my view, this is supported in her
    testimony at pp. 49-51 of the May 25 transcript. First, she was asked whether
    sepsis that has caused organ injury or failure can be treated without the ICU.
    Dr. Mele said it could not. She was then asked at what point admission to the
    ICU was inevitable. She replied: so after reading the medical chart, in my
    opinion, we know for a definite fact that he had evidence of multiple organ
    failure and septic shock at 7:15 a.m. in the morning of May 5th.

[32]

Dr.
    Mele noted that the inflammatory cascade does not occur instantaneously but
    develops over time. Thus, she concluded that no intervention after 4:10 p.m. on
    May 4 would have made any difference in the outcome, and by the outcome she
    meant admission to the ICU.

[33]

In
    the end, she testified that the bulk of the 70 day ICU stay was caused by the
    unrelated bowel perforation.

[34]

Accordingly,
    the trial judge found that Mr. White had failed to establish that, but for the
    alleged delay in treatment, his injuries would not have occurred. In
    particular, the trial judge found that "there is no evidence before this court
    articulating what specific injury Mr. White suffered that could have been
    avoided". She added:

The court finds there is no evidence to suggest that Mr.
    White's outcome would have been different if the surgery had been done six
    hours after 23:30 on May 4, or six hours after 02:00 or six hours after 04:30
    on May 5, as compared to the actual surgery time which was 11:45. That is, a
    surgery done six hours after at 05:30, 08:00 or 10:30 would not have had a
    different outcome.

[35]

The
    trial judge stated:

Based on Dr. Mele's complete
    review of the medical records, her opinion was the reason Mr. White remained in
    the ICU for 70 days was actually related to the bowel perforation he suffered
    following the second surgery. That is, it was not related to the anastomotic
    leak that was found on May 5. The court agrees that the protracted stay in ICU
    was caused by unrelated events. The court finds that prior to the second
    surgery, Mr. White's stay in the ICU would likely have been uneventful. This
    evidence was not challenged.

[36]

With
    respect to the alleged failure to properly administer antibiotics, the trial
    judge noted that the respondents experts testified that a missed or delayed
    dose of Pip-Taz had no effect on the Mr. Whites outcome. Specifically, she
    looked at Dr. Salits testimony; he testified that any errors in antibiotic
    management on May 5 would have no contributory effect because Mr. White was
    already in septic shock at 6:00 a.m. on May 5.

[37]

The
    trial judge also pointed to Dr. Meles testimony that even if Mr. White had
    been taken to the operating room and been switched to the proper antibiotic
    coverage by 4:10 p.m. on May 4, there would be no difference in outcome.
    Indeed, when asked specifically whether the delay of the administration of
    Pip-Taz resulted in Mr. Whites complications, Dr. Mele said:

I cant imagine how one missed
    dose of pip-tazo would have been the direct result of
any of his ensuing
    complications
. Sepsis is such a complex inflammatory cascade that it was
    already well underway in progress at that time. (Emphasis added)

The trial judge went on to reject Dr. Fongs argument
    that the delay in administering the antibiotics caused ICU myopathy or ICU
    neuropathy in favour of Dr. Meles evidence in which she testified she had
    never seen any support in medical literature suggesting that ICU myopathy or
    neuropathy are related to the timing of antibiotics.

[38]

In
    my view, the trial judges findings were available to her on the evidence and
    do not constitute palpable and overriding errors.

[39]

Moreover,
    these findings show that the trial judge was not confused about the proper test
    for causation. She was not requiring Mr. White to establish that the respondents
    negligence was the most significant cause of harm. On the contrary, the
    findings of the trial judge were that the plaintiff had failed to establish any
    harm, because Mr. Whites outcome would have been no different whether or not
    the alleged negligence occurred.

[40]

Appellants
    counsel argued forcefully that he merely had to establish a causal connection
    between the alleged breach of the standard of care and Mr. Whites injury;
    there was no need to establish a connection between the injury and a particular
    loss, since damages had been agreed by the parties. However, the trial judge
    did not require proof of particular pecuniary loss. As mentioned above, the
    trial judges findings were that Mr. Whites
injuries
, not his pecuniary
    loss, were unavoidable; Mr. White was already in septic shock and his injuries
    were inevitable
before
the alleged negligence occurred.

[41]

Appellants
    counsel is correct that there was evidence that delay in treatment can have
    adverse consequences on a patients outcome. What is missing here is an actual
    link between the delay in diagnosis and treatment, and Mr. Whites injuries.
    The trial judge rejected Dr. Fongs evidence that the delay in treatment caused
    some harm to Mr. White. She preferred the respondents expert evidence on this
    point. These findings were open to her on the evidence and do not disclose a
    palpable and overriding error.

[42]

In
    oral argument, the appellants stressed that their agreement with the respondents
    as to damages meant that they only had to prove some harm in order to
    establish causation. I do not think the parties made such an agreement. During
    the proceedings below, on November 27, 2017, Mr. Clements for the hospital
    said, The plaintiff makes the statement that the plaintiffs burden was only
    to prove that the negligent conduct likely caused some harm... My submission is
    thats not the law That standard is too low. Mr. Harte did not object, as one
    would expect had there been an agreement that the appellants only had to prove
    some harm in order to establish causation. The agreement was solely with
    respect to the quantum of damages. I agree with appellants counsel that there
    was no need to link Mr. Whites injury with any particular pecuniary loss. But,
    as explained above, the appellants did not established that the alleged
    negligence caused or exacerbated Mr. Whites injuries.

C.

Disposition

[43]

For these reasons I would dismiss the appeal.

[44]

As
    agreed by the parties, the respondents are entitled to costs of $20,000 all-inclusive.

Released: P.L. April 25, 2019

P. Lauwers J.A.

I agree. C.W. Hourigan
    J.A.

I agree. G. Pardu
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Wolseley Canada Inc. v. Neal Traffic Services
    Limited (National Traffic Services), 2019 ONCA 276

DATE: 20190409

DOCKET: C65202

Simmons, Juriansz and Miller JJ.A.

BETWEEN

Wolseley Canada Inc.

Plaintiff (Respondent)

and

Neal Traffic Services Limited o/a
    National Traffic Services, Johannes Lokker and Marilyn Louise
    Lokker

Defendants (Appellants)

Neil M. Abramson and Robert Barbiero, for the appellants

Barry Yellin and Kayla Carr, for the respondent

Heard: April 4, 2019

On appeal from the
    orders of Justice R. John Harper of the Superior Court of Justice, dated June
    26, 2017 and March 6, 2018.

REASONS FOR DECISION

[1]

The respondent brought an action claiming monies it had advanced to the appellants
    had not been properly disbursed, and that the appellants failed to have a
    proper accounting system to account for funds flowing in and flowing out.

[2]

On April 21, 2017, Carpenter-Gunn J. made an interim order requiring the
    appellants to: 1) account for monies they had received from the respondent to
    pay third party freight carriers, by delivering a comprehensive spread sheet
    within 15 days and corroborating documents within 3 days of any request; 2)
    disclose all related documents to an accounting firm to be appointed by the
    respondent following receipt of a confidentiality/non-disclosure agreement; and
    3) pay any unpaid accounts within 15 days.

[3]

The respondent brought a successful motion to have the appellants found
    in contempt of paragraphs 1 and 2 of the order.

[4]

In oral argument, the appellants did not contest the motion judges June
    26, 2017 finding that they were in contempt of paragraphs 1 and 2 of the April
    21, 2017 order. Rather, they confined their submissions to asserting that the
    sentence imposed on March 6, 2018 was based on an erroneous finding they had
    not purged their contempt and, in any event, was disproportionate and therefore
    unfit.

[5]

We accept the appellants submission that the motion judge erred in dismissing
    their fresh evidence motion returned on the day set for the contempt sentencing.
    The motion judge refused to admit the affidavits the appellants tendered, taking
    the view they were splitting their case by seeking to introduce further
    evidence concerning their motion to vary the April 21, 2017 order and the
    respondents sanctions motion.

[6]

One of the grounds relied on in the appellants notice of motion to
    admit fresh evidence was that they had purged their contempt. Whether the
    appellants had purged their contempt was relevant to, and was likely to impact,
    the issue of sentence. That question continued to be relevant until sentence
    was imposed. The fresh evidence addressed that relevant issue by addressing what
    had occurred since the previous attendance before the motion judge in November 2017.
    The appellants deposed that they had fully complied with the April 21, 2017 order
    by the time of the sentencing hearing in March, 2018. They deposed that as of
    early December 2017 (when they supplied corrected bank statements for 2017),
    they had supplied all requested documents to PriceWaterhouseCoopers (PWC),
    the accountants appointed by the respondent under the April 21, 2017 order, and
    had not received any further requests for documents.

[7]

These asserted facts would have been before the motion judge had he not
    erred by striking portions of the appellants affidavits that addressed these
    facts and by dismissing the fresh evidence motion.

[8]

In concluding the appellants had not purged their contempt the motion
    judge relied on the appellants failure to account for all money in and out,
    ostensibly supported by the affidavit of the respondents accounting expert,
    Ms. Patel of PWC. The motion judge indicated that paragraph 31 of Ms. Patels
    January 3, 2018 affidavit demonstrated that PWC was not given all information
    as ordered.

[9]

In our view, Ms. Patels affidavit did not contradict the claim in the
    appellants fresh evidence that they had done what was necessary to comply with
    paragraphs 1 and 2 of the April 21, 2017 order. At its highest, paragraph 31 of
    Ms. Patels affidavit indicated that she did not know whether PWC had been
    given all the necessary information to comply with the April 21, 2017 order. As
    we read paragraph 31, Ms. Patel deposed she had not been able to fully
    reconcile all monies received by the appellants from the respondent with all
    third-party freight carrier accounts the appellants were required to pay with
    those funds. However, the inability to fully reconcile all monies received from
    the respondent and all payments made by the appellants to third party freight
    carriers does not in itself demonstrate that the appellants had not produced
    all the documents as required. The obligation to account in paragraphs 1 and 2
    of the April 21, 2017 order, understood in the context of the action, is an
    obligation to produce documents. The inability to reconcile all the monies
    received and paid out may simply highlight an issue to be resolved at trial.

[10]

Concerning
    the fitness of the sentence imposed, the appeal record discloses that the
    appellants made extensive efforts to comply the with April 21, 2017 order,
    commencing in early May 2017 after PWC provided the confidentiality/non-disclosure
    agreement required under the April 21, 2017 order. Having regard to these efforts,
    the extensive disclosure that was ordered, and the extent of the disclosure
    that was made, we conclude that the term of the sentencing order requiring that
    the appellants pleadings be struck is disproportionate. The fact that the appellants
    former counsel conceded that the appellants pleading could be struck if the
    appellants failed to purge their contempt by July 15, 2017, while an important
    consideration, does not alter that conclusion. It remained for the motion judge
    to impose a fit sentence taking account of all the evidence that should have
    been before the court at the time of the sentencing hearing in March 2018.

[11]

Further,
    we see no proper basis for imposing as a term of the sentencing order a requirement
    that the appellants pay PWCs costs. The April 21, 2017 order required the
    respondent to pay those costs. The issue of who is ultimately responsible for
    PWCs fees is a matter for the fixing of costs after trial.

[12]

In
    the result, the appeal is allowed in part by setting aside the declaration that
    the appellants have not purged their contempt; by setting aside all orders
    relating to striking the appellants pleadings; and by setting aside the order
    requiring the appellants to pay PWCs costs.

[13]

The
    appellants may make brief written costs submissions within 10 days of the
    release of these reasons; the respondents may do the same within 10 days
    following receipt of the appellants submissions.

Janet Simmons J.A.

R.G. Juriansz J.A.

B.W. Miller J.A.