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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Trinchi, 2019 ONCA 356

DATE: 20190502

DOCKET: C63038

Juriansz, Pepall and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Luigi Trinchi

Appellant

Matthew R. Gourlay, for the appellant

Jennifer Epstein, for the respondent

Heard: March 7, 2019

On appeal from the finding of guilt made on June 17, 2016
    and the conviction entered on November 10, 2016 by Justice John S. Fregeau of
    the Superior Court of Justice.

Juriansz J.A.:

A.

Introduction

[1]

The appellant succinctly summarizes the question before the court as
    follows: two people in a long-distance romantic relationship engage in an
    intimate webcam video chat. Both people are naked. Both know they are on video.
    One party, unbeknownst to the other, takes a still photo of his partner from
    the live video stream. Does he thereby commit the
Criminal Code
,
    R.S.C. 1985, c. C-46 offence of voyeurism?

[2]

The appellant and the complainant were in an intimate relationship between
    March 2010 and September 2011. The appellant lived in Toronto and the complainant
    lived in Thunder Bay. As they could see each other in person only occasionally,
    they often engaged in Skype video conversations via computer (video chats).
    Sometimes the complainant willingly appeared nude before the computer in
    sexually provocative poses. On some of these occasions, the appellant took
    screenshots of the naked complainant and saved them on his computer. The complainant
    testified that she understood that her image was being captured as video and
    streamed over the Internet to the appellant, but that she did not know he was
    taking screenshots and preserving nude images of her as still photos.

[3]

After the complainant ended the relationship, emails with nude photos of
    her were emailed to many people. These nude photos were the screenshots the
    appellant took during their video chats. The appellant was charged with six
    offences arising from the distribution of the nude photos of the complainant.
    He was also charged with voyeurism for taking the screenshots in the first
    place. At trial, the appellant did not testify, but led evidence that another
    girlfriend had the motive, opportunity and propensity to distribute the nude
    photos of the complainant. Because this evidence raised a reasonable doubt for the
    trial judge, he acquitted the appellant of the six charges relating to the
    distribution of the nude photos. However, the trial judge had no doubt that the
    appellant had taken the photos and convicted him of voyeurism.

[4]

On appeal, the appellant advances two grounds. First, he submits that
    the complainant, having willingly posed nude in the video chat, knowing she was
    doing so before a camera, could not be said to have a reasonable expectation of
    privacy in the circumstances. Second, he submits that he cannot be found to
    have acted surreptitiously. Despite it being well-known that screenshots can
    readily capture any image on a computer monitor, the complainant never
    indicated she did not want screenshots taken and the appellant never said he
    would not take any. He submits the voyeurism offence requires proof of the
    accuseds state of mind: specifically that he intended to act surreptitiously. He
    argues that the trial judge erred in law by finding he acted surreptitiously
    after considering the situation from the complainants perspective, instead of focusing
    on his state of mind.

B.

Section 162(1) of the
Criminal Code

[5]

The offence of voyeurism is found in s. 162(1) of the
Criminal Code
.
    It provides:

162 (1) Every one commits an offence who, surreptitiously,
    observes  including by mechanical or electronic means  or makes a visual
    recording of a person who is in circumstances that give rise to a reasonable
    expectation of privacy, if

(a) the person is in a place in which
    a person can reasonably be expected to be nude, to expose his or her genital
    organs or anal region or her breasts, or to be engaged in explicit sexual
    activity;

(b) the person is nude, is exposing
    his or her genital organs or anal region or her breasts, or is engaged in
    explicit sexual activity, and the observation or recording is done for the
    purpose of observing or recording a person in such a state or engaged in such
    an activity; or

(c) the observation or recording is
    done for a sexual purpose.

[6]

Parliament enacted s. 162(1) of the
Criminal Code

in
    2005. As stated by Wagner C.J. in the Supreme Courts recent decision in
R.
    v. Jarvis
, 2019 SCC 10, at para. 48, Parliaments object in creating the
    voyeurism offence was to protect individuals privacy and sexual integrity,
    particularly from new threats posed by the abuse of evolving technologies. Conceptualizing
    voyeurism as both a sexual and a privacy-based offence was favoured by the
    majority of respondents to the government consultation paper circulated in 2002:
    Canada, Department of Justice,
Voyeurism as a Criminal Offence: A
    Consultation Paper
. The provision eventually enacted was intended to deal
    with both related harms:
Jarvis
, at para. 51.

[7]

Section 162(1) addresses three different situations. These are set out in
    paragraphs (a), (b) and (c). The application of all three paragraphs is subject
    to the two limitations in the opening words of the section. First, the person who
    is observing or making the recording must act surreptitiously. Second, the
    person observed or recorded (who I will call the subject) must be in
    circumstances that give rise to a reasonable expectation of privacy.

[8]

Paragraph (a) addresses the situation in which the subject is in a place
    in which a person can reasonably be expected to be nude, exposing intimate body
    parts, or engaged in explicit sexual activity. It is worth noting that paragraph
    (a) does not require the person to be actually nude, exposing intimate parts of
    his or her body, or engaged in sexual activity. It is enough if they are in a
    place where they may reasonably be expected to be in such a state, such as a changing
    room, toilet, shower stall, or bedroom. Paragraph (a) criminalizes making
    peepholes or the installation of cameras to observe people in such places. A
    person who installed a hidden camera in a fitting room of a department store
    would likely be caught by this provision if the only recording he captured was
    of a fully clothed customer trying on different hats. Paragraph (a) does not
    require the accused to act for a sexual purpose. It would apply to an accused
    who hoped to profit by posting recordings on the Internet.

[9]

Paragraph (b) applies when the subject is nude, exposing sexualized
    parts of his or her body, or engaged in explicit sexual activity. The nature of
    the location does not matter, but the accused must have the purpose of
    observing or recording the subject in such a state or engaged in such an
    activity. As in paragraph (a), it is not necessary for the Crown to prove the
    accused acted for a sexual purpose. Paragraph (b), like paragraph (a), would
    apply to an accused whose purpose was commercial.

[10]

Paragraph
    (c) applies to an accused acting for a sexual purpose. Paragraph (c) applies
    whether the subject is clothed or unclothed  no matter what she or he is
    doing.

[11]

It
    is worth repeating that the opening words of the section specifies limitations that
    apply to all three paragraphs. The accused must have acted surreptitiously
    and the subject must have had a reasonable expectation of privacy in the
    circumstances.

[12]

The
    appellant was charged under s. 162(1)(b). Section 162(1)(b) requires proof of
    the following elements:

[1]

The accused observed or
    recorded the subject;

[2]

The accuseds observation or
    recording was done surreptitiously;

[3]

The subject was in
    circumstances that gave rise to a reasonable expectation of privacy;

[4]

The subject was nude or
    exposing sexual parts of her body or engaged in sexual activity; and

[5]

The observation or recording
    of the subject was done for the purpose of recording them in such a state.

[13]

Elements
    1, 4 and 5 are not in issue in this appeal. The appellant does not dispute he
    took screenshots of the complainant, the complainant was naked and exposing
    sexual parts of her body when he did so, and he took the screenshots for the
    purpose of recording the complainant in such a state. In this appeal, the
    issues are whether the complainant had a reasonable expectation of privacy in
    the circumstances and whether the appellant acted surreptitiously.

C.

Reasonable expectation of privacy IN THE CIRCUMSTANCES

(1)

The law

[14]

The
    hearing of this appeal was deferred until the Supreme Court rendered its
    decision in
Jarvis
.
Jarvis
concerned the interpretation of
    the phrase reasonable expectation of privacy in s. 162(1). The phrase, as the
    Supreme Court pointed out, must be interpreted in light of Parliaments object
    in enacting the voyeurism offence. Parliaments object was to protect
    individuals privacy and sexual integrity from new threats posed by the abuse
    of evolving technologies. The basic question is whether in the circumstances the
    person observed or recorded would reasonably expect not to be the subject of
    the type of observation or recording that in fact occurred. The Supreme Court
    said that basic question should be answered by taking into account all the
    circumstances in which the observation or recording took place.

[15]

In
Jarvis
, a high school teacher used a concealed camera to make video
    recordings of female students in classrooms, hallways, the cafeteria, and other
    locations around the school. The teacher argued the female students in these
    locations would certainly have known they could be observed by others and so
    did not have a reasonable expectation of privacy. The Supreme Court decided
    otherwise. The Supreme Court engaged in a contextual assessment of the totality
    of the circumstances and specifically discussed nine circumstances relevant in
    the case. The Supreme Court emphasized that what circumstances are relevant
    will depend on each individual case. Though the circumstances of this case are
    quite different from those in
Jarvis
, it is still instructive to
    enumerate the specific circumstances the Supreme Court considered in
Jarvis
,
    at para. 29:

(1) the location the person was in when she was observed or
    recorded;

(2) the nature of the impugned conduct (whether it consisted of
    observation or recording);

(3) awareness of or consent to potential observation or recording;

(4) the manner in which the observation or recording was done;

(5) the subject matter or content of the observation or
    recording;

(6) any rules, regulations or policies that governed the
    observation or recording in question;

(7) the relationship between the person who was observed or
    recorded and the person who did the observing or recording;

(8) the purpose for which the observation or recording was done;
    and

(9) the personal attributes of the person who was observed or
    recorded.

[16]

After
    discussing these matters, the Supreme Court concluded the persons recorded by Mr.
    Jarvis were in circumstances that gave rise to a reasonable expectation of
    privacy for the purposes of s. 162(1). While the subjects could be casually
    observed, or even stared at, in the common areas of the school, the school was
    still not an entirely public place. The subjects reasonably had the expectation
    they would not be the focus of the permanent visual recordings Mr. Jarvis made.
    They may have expected to be captured incidentally by the schools security
    cameras, but they did not expect to be recorded by a hidden camera focused at
    close range on their faces and breasts. Individuals, the Supreme Court
    observed, are understood to have heightened privacy expectations with respect
    to intimate or sexualized parts of the body: para. 82. Further, the videos
    were recorded in breach not only of the relationship of trust between the
    teacher and the students, but also in breach of formal school board policy.

(2)

Application to this case

[17]

The
    appellant stresses the circumstances of this case are different. Here, he was
    involved in an intimate relationship with the complainant. She willingly and
    knowingly appeared on camera in their video chats for the express purpose of
    displaying herself to him naked and in sexual poses. The appellant acknowledges
    that engaging in sexual activity in ones own bedroom is a circumstance that
    attracts a high expectation of privacy. However, he argues the complainant
    admitted him within her circle of privacy by voluntarily exposing herself, knowing
    she was doing so through a camera, a device the very purpose of which is to capture
    images. He submitted that Parliament created the offence to apply to the
    electronic peeping tom, not to an intimate partner.

[18]

The
    argument is unpersuasive. Wagner C.J. in
Jarvis
indicated the
    voyeurism offence can indeed apply to a consensual sexual partner admitted within
    ones zone of privacy. He explained at para. 38:

a person who chooses to disrobe and engage in sexual activity with
    another personnecessarily expects to be observed by that other person while
    she is nude and engaging in that activity. Her privacy would nonetheless be
    violated if that other person, without her knowledge, video recorded the two of
    them engaging in the activity.

[19]

This
    example, it seems to me, provides a short and direct path to the conclusion
    that the complainant had a reasonable expectation the appellant would not take
    screenshots of their consensual sexual activity. It should not make a
    difference that their consensual activity took place in virtual space rather
    than in a physical room. She necessarily expected to be observed by the
    appellant in the live-streamed video, but did not expect he would make a
    permanent recording of her naked.

[20]

A
    detailed analysis of all the circumstances leads to the same conclusion.

[21]

I
    begin with the complainants subjective expectation as accepted by the trial
    judge. The complainant disrobed in the privacy of her bedroom to engage in
    sexual activity while video-chatting with an intimate partner. She thought the video
    chats were live and in the moment conversations over the Internet. Her
    subjective expectation was that the appellant would see a fleeting image of her
    on his computer screen in real time. She did not know and did not expect that
    the appellant would make any permanent recording of her naked body. At trial, expert
    evidence confirmed that video chats on Skype are not routinely captured or
    preserved anywhere.

[22]

The
    trial judge accepted the complainants testimony that she had no idea that the
    appellant was taking screenshots of the live-streamed video. The trial judge also
    accepted the complainants testimony that during their 18-month relationship,
    the appellant never once told her that he was capturing permanent still images of
    her naked body and saving them on his computer. Had she known, she testified
    that she would have been furious and stopped it immediately.

[23]

The
    next question is whether the complainants subjective expectation was reasonable
    in the circumstances.

[24]

The
    appellant pointed out a screenshot may be easily taken by depressing a single
    key. He argued the complainant must be taken to have understood this and to
    have undertaken the risk that her partner in the sexualized video chat might
    take a screenshot of her. The analysis is not that simple. The Supreme Court at
    para. 68 of
Jarvis
said the question whether a person can reasonably
    expect not to be the subject of a particular type of observation or recording
    cannot be determined simply on the basis of whether there was a risk that the
    person would be observed or recorded. Rather, the question should be answered
    in light of the norms of conduct in our society.

[25]

Two
    norms are especially pertinent in this case.

[26]

The
    first is that individuals privacy expectations for some body parts are
    reasonably higher than for others. The exposure of intimate body parts in the
    privacy of a bedroom attracts a high expectation of privacy. Here, the
    complainant was naked in her own bedroom and allowed only the appellant to
    observe her during the video chat.

[27]

Second,
    there is a distinction between mere observation and recording a permanent image.
    This distinction is critical in this case. In
Jarvis
, the Supreme
    Court stated the broad principle that the intrusion into our privacy that
    occurs when a person hears our words or observes us in passing is fundamentally
    different than the intrusion that occurs when the same person simultaneously
    makes a permanent recording of us and our activities. The Supreme Court
    pointed out that a visual recording captures detail in a permanent form that
    can be accessed, edited, manipulated and studied by the person who created the
    recording and that can be shared with others: para. 62.

[28]

Wagner
    C.J. also pointed out a recorded image can be shared with people whom the
    subject of the recording would not have willingly allowed to observe her in the
    circumstances in which the recording was made: para. 74. This case illustrates
    the harm that can result from making a permanent recording. The screenshots
    taken by the appellant were later distributed to many of the complainants
    professional and personal contacts.

[29]

Wagner
    C.J. explained that if there were no distinction between observation and
    recording, s. 162(1) would not apply to the non-consensual recording of a
    sexual partner engaged in sexual activity and the subsequent distribution of
    the recording. That is because s. 162(4) makes it an offence to distribute a
    recording one knows was obtained
by
    the commission of an offence under s. 162(1).
Wagner C.J.
said this was the very
type of
    conduct that initially spurred the legislative reform leading to the enactment
    of s. 162(1), citing
Voyeurism as a Criminal Offence: A Consultation Paper
,
    at p. 6.

[30]

I
    am satisfied the complainant was entitled to reasonably expect the appellant
    would not record their sexual activities in virtual space without her
    consent. The conclusion the complainant had a reasonable expectation of privacy
    in the circumstances of this case is consistent with Parliaments object in
    enacting the voyeurism offence to protect individuals' privacy and sexual
    integrity, particularly from new threats posed by the abuse of evolving
    technologies.
[1]

D.

SURREPTITIOUSLY and the mental element OF THE OFFENCE OF
    VOYEURISM

[31]

Section
    162(1) requires that the person who observes or makes a visual recording do so
    surreptitiously.
Jarvis

is the only voyeurism case decided by
    the Supreme Court, and the meaning of surreptitiously was not at issue as it
    was conceded. Mr. Jarvis had used a miniature camera hidden in his pen.

[32]

The
    appellant submits the trial judge in this case erred in law in dealing with the
    mental element of voyeurism by not giving proper effect to the word surreptitiously.

(1)

The appellants position on surreptitiously

[33]

The
    appellant submits the trial judge, in deciding the appellant acted
    surreptitiously, erred by focusing on the complainants perspective and the
    fact that she did not consent to the screenshots. He submits that a subjects
    lack of consent to being recorded is not an element of the offence and is
    insufficient to prove the accused acted surreptitiously.

[34]

The
    appellant cites the comment of Rowe J., writing for the concurring minority in
Jarvis

at para. 139, that the reasonable expectation of privacy element and the
    surreptitiously element should be kept distinct. Rowe J. said surreptitiousness
    relates to the actions of the observer, while the reasonable expectation of
    privacy pertains to the individual being observed or recorded. Rowe J. gave
    the example of a person approaching a woman and pointing a camera at her body
    at close range. This action would invade the womans reasonable expectation of privacy
    but would not satisfy the surreptitiousness element in s. 162(1). He added
    another example of the opposite. A person in the public area of a shopping mall
    who was recorded by concealed security cameras could not be said to have a
    reasonable expectation of privacy with respect to the recording, even though it
    had been captured surreptitiously.

[35]

The
    appellant says that Rowe J.s comments provide a useful lens through which to
    consider the meaning of surreptitiously. It is not enough, as the trial judge
    found, that the complainant did not at the time consent to the recording and in
    fact did not have any knowledge the recording was being made. The perspective
    of the accused is central. In order to establish the offence, the Crown must
    prove the accused had the state of mind of intending to act surreptitiously.

(2)

The Crowns position on surreptitiously

[36]

The
    Crown submits that the meaning of surreptitiously advocated by the appellant
    would fail to achieve the object of the legislation. The Crown takes the
    position that the mental element of the crime of voyeurism is knowledge. That
    is, the prosecution can establish an accused acted surreptitiously by proving
    the subject was unaware she was being recorded, and the accused knew or was
    wilfully blind to the fact the subject was unaware. The Crown says any
    recording made without a subjects knowledge interferes with her sexual
    integrity, whether or not the accused intended to conceal the recording.

[37]

The
    Crown emphasizes that new risks of abuse have been created by current and
    emerging technology. Technology has changed how recordings are made. Individuals
    no longer know and have no way of knowing when another is employing technology
    to record them. Miniature cameras that may be concealed or disguised are
    readily available. People are habituated to the presence of computers and smart
    phones, and may not be aware these are being used to record them. A persons loss
    of sexual integrity flows directly from the fact she was recorded without her
    knowledge, irrespective of whether the accused took some active steps to hide what
    he was doing. Recording a person without her knowledge deprives her of the
    opportunity to choose whether to allow a permanent recording to be made. Individuals
    need to know whether they are being observed or recorded to keep control of
    their sexual selves and protect their sexual integrity.

[38]

The
    Crown says only its approach will give effect to Parliaments intent in
    enacting the voyeurism offence to protect individuals privacy and sexual
    integrity. The Crown says requiring the prosecution to prove the accused
    intended to act surreptitiously would unduly narrow the provisions
    application.

[39]

The
    Crown offers the example of an accused, who with his smart phone apparent on
    his bedside table, records consensual sexual activity with his partner without his
    partners knowledge. In such a case, the Crown says the accused should not be
    absolved of voyeurism even though he could argue he did nothing to conceal the
    smart phone.

[40]

In
    order to ensure that such situations are within the ambit of the voyeurism
    offence, the Crown submits that the mental component of surreptitiousness must
    be knowledge: did the subject know she was being observed and recorded, and
    importantly, did the observer know or was he wilfully blind to the fact that
    the subject was unaware she was being recorded?

(3)

The meaning of surreptitiously

[41]

There
    is little judicial consideration of the meaning of surreptitiously. This is not
    surprising because whether the accused has acted surreptitiously is typically
    not an issue in voyeurism cases. In the typical voyeurism case, the accused is a
    third party who has used a hidden camera. The use of a hidden camera will
    generally establish surreptitiousness. In this case the complainant knew the
    accused was viewing her through a webcam.

[42]

The
    words surreptitious or surreptitiously appear in other provisions of the
Criminal
    Code
.
Section 191(1) makes it an offence to possess, sell or
    purchase equipment the design of which renders it primarily useful for the
surreptitious
interception of private communications. Section 364(1) makes it an offence to
    fraudulently obtain food, beverage or accommodation. Section 364(2) creates a
    presumption of fraud when the accused
surreptitiously
removes or
    attempts to remove his baggage from the establishment, or has
surreptitiously
left the premises.

[43]

These
    provisions give no reason to believe surreptitiousness has a special technical
    meaning in the
Criminal Code
. Surreptitiously in s. 162(1) must be
    given its ordinary meaning.

[44]

The
    definition of surreptitious from the
Canadian Oxford Dictionary
, 2d ed.,
was quoted by the court in
R.
    v. Lebenfish
, 2014 ONCJ 130, 10 C.R. (7th) 374, at para. 25: obtained,
    done, etc. in secret or by stealth or by illicit means; clandestine. The trial
    judge in this case quoted the definition of surreptitious conduct from
Blacks
    Law Dictionary
, 9th ed.
:
    unauthorized and clandestine; stealthily and usually fraudulently done.

These
    are useful definitions, but they use other words, such as stealthily and
    clandestinely, which themselves may invite definition. In oral argument, the appellants
    counsel accepted the definition of surreptitiously in the online
Oxford English
    Dictionary
, at
http://en.oxforddictionaries.com
,
    which uses
simpler words: [i]n a
    way that attempts to avoid notice or attention; secretively.

[45]

The
    question whether the word surreptitiously as used in s. 162(1) included
    intent as part of its meaning came before this court in
R. v. M.E.N
,
    2014 ONCA 69, leave to appeal refused, [2015] S.C.C.A. No. 278. The facts of
    the case are not apparent as the appeal was dismissed in brief reasons. The
    court stated, at para. 4, [a]ssuming, without deciding, that the word surreptitiously
    does include intent as part of its meaning, in our view the trial judge found
    that the appellant intended that the complainant not be aware that she was
    being photographed.

[46]

I
    am satisfied that the ordinary meaning of the word surreptitiously does include
    intent as part of its meaning. A person who observes or records with the
    intention that the subject not be aware that he is doing so, is attempting to
    avoid notice or attention. Moreover, I consider
M.E.N
.s articulation
    of the mental element to be apt. The
mental state required by the word surreptitiously in s. 162(1) is the
intent
    the subject not be aware that she is being observed or recorded. In a
    prosecution under s. 162(1)(b), the Crown may prove the accused acted
    surreptitiously by proving that he observed or recorded the subject with the
    intention she be unaware he was doing so.

[47]

In
    a case in which the accused testifies, the determination of his mental state
    may depend chiefly on whether he is believed or not. Where the accused is not
    believed or does not testify, his state of mind may be based on evidence of
    secretiveness or stealth, or may be inferred from the relevant circumstantial
    evidence. Evidence that the complainant did not consent and was not aware the
    accused was recording her will be relevant circumstantial evidence. This, together
    with evidence that supports the finding the accused knew, or was wilfully
    blind, the complainant was unaware he was recording her, may well provide a
    compelling basis for the inference the accused intended the complainant remain
    unaware of his action. Also, as with inferring intent for any crime, the law
    presumes that a person intends the ordinary consequences of his voluntary
    acts.

[48]

Understanding
    the word surreptitiously in this way would not prevent a successful
    prosecution in the Crowns example of the smartphone on the accuseds bedside
    table recording consensual sexual activity. In the example, the accused would
    have had to initiate the smart phones video recording mode and position the device
    so its camera focused on the sexual activity. Where the complainant testifies
    that she did not consent to being recorded and was unaware the recording was
    being made, and without evidence to explain the positioning and active state of
    the phone, the fact-finder would have an adequate basis to infer that the
    accused intended the complainant be unaware he was recording her.

[49]

In

Lebenfish
, the trial judge found that the accuseds picture-taking
    was not objectively surreptitious. He found it unnecessary to consider
    whether the accused had acted subjectively surreptitiously. Such an analysis
    leads to unnecessary complication. The word "surreptitiously refers not
    to what the accused does, but to the state of mind with which he does it. The required
    criminal intent for the surreptitiously element in s. 162(1) has been proven
    where the Crown establishes that the accused intended the complainant be
    unaware he was observing or recording her.

(4)

Application to this case

[50]

The
    appellant submits that the trial judge erred in two ways. First, he says the
    trial judge assessed the surreptitiousness issue from the perspective of the
    complainant, rather than focusing on the appellants state of mind. Second, he
    says there was no evidence to support the trial judges finding the appellant
    acted contrary to the parties tacit agreement that the video chats would not
    be preserved in any manner.

[51]

The
    trial judges reasons must be read as a whole. After finding that the
    complainant was in circumstances that gave rise to a reasonable expectation of
    privacy, the trial judge turned to the question whether the appellant had acted
    surreptitiously. He began by noting the conduct of the appellant in this case
    was strikingly different to that in
Lebenfish
.
I take the
    observation to be that while Mr. Lebenfishs picture-taking was apparent to
    others at the beach, the appellant took the screenshots in a way that was not apparent
    to the complainant.

[52]

The
    trial judge set out the circumstances in which the screenshots were taken. The
    appellant and complainant were engaging in intimate Skype video sessions
    during which [the complainant] was nude. He noted the complainants
    perspective. She had only agreed to her nude images being transmitted live
    to the [appellants] computer. The appellant had captured still nude
    photographs of the complainant from the video chats without her consent or
    knowledge.

[53]

The
    trial judge observed the appellants conduct exceeded the parameters of what
    had been agreed to by two intimate partners. The two intimate partners had
    agreed to connect through the Internet for video chats. The complainant had
    agreed to her nude images being live-streamed to the appellants computer.
    These were the parameters of what the parties had agreed to. The taking of the
    screenshots exceeded those parameters.

[54]

As
    the appellant points out, there was no explicit evidence of any agreement
    between the complainant and appellant that no screenshots would be taken.
    However, I do not accept that the trial judges remark that the appellant had
    acted contrary to the parties tacit agreement is unsupportable. The tacit
    agreement to which he referred is that which exists between all intimate
    partners to consensual sexual activity  namely, that neither one will exceed
    the parameters of what has been agreed to without obtaining consent. There is
    nothing contentious about this. In in-person consensual sexual relations, exceeding
    the parameters of what has been agreed to would likely breach the criminal law.

[55]

Moreover,
    the trial judge did not err by unduly focusing on the complainants state of
    mind. The trial judge did address the appellants state of mind. He repeatedly
    stated the appellant had acted secretly and that his actions were
    clandestine. The appellants state of mind could be inferred from the circumstantial
    evidence. The complainant did not know the screenshots were being taken. The
    appellant never told the complainant he was taking screenshots; the subject of
    taking screenshots never came up during the parties 400-odd video chats. The
    complainant could see the appellant during their video chats, and he had taken
    the screenshots in a way that the complainant had not noticed. After taking the
    screenshots the appellant never mentioned them. Her lack of awareness could
    also be reasonably expected under the totality of these circumstances. These
    facts supported the trial judges inference that the appellant had intended
    that the complainant not know he was taking screenshots of her.

[56]

There
    is one further matter left to address. On appeal, the appellant points to a
    text-based Skype message he submits should have alerted the complainant to the
    fact that he was "taping" her every night. On appeal, for the first
    time, he says this is relevant circumstantial evidence as to whether he
    intended the complainant not know he was taking the screenshots. He argues that
    the trial judge's reasons are deficient because they contain no mention of this
    text message.

[57]

I
    would not give effect to this argument. Only a snippet of the entire conversation
    was introduced, and without any context. Defence trial counsel used the
    snippet, unsuccessfully, in cross-examining the complainant. The trial judge,
    as he was entitled to, accepted the complainants clear and strenuous claim
    that the appellant had never told her he was taking screenshots during their video
    chats. Defence trial counsel did not mention the snippet in closing argument
    despite having ample opportunity to do so in response to questions by the
    court.

[58]

It
    is elementary that a trial judge does not have to discuss every piece of
    evidence in his or her reasons. The trial judge did not err by not dealing with
    an inconsequential item of evidence not mentioned by defence trial counsel in
    his closing address.

[59]

On
    a final note, I acknowledge in this case that the analyses of the reasonability
    of the complainants expectation of privacy and the appellants
    surreptitiousness draw on some of the same circumstances. Wagner C.J. in para. 33
    of
Jarvis
recognized this might be so. He noted that surreptitiousness
    could be one of the considerations taken into account in assessing whether the expectation
    of privacy was reasonable, though it should not be allowed to overwhelm that
    assessment. As Rowe J. stated in para. 139: The two concepts are related in
    the sense that one informs the other; but the concepts are distinguishable and
    remain distinct. While the two elements inform each other in this case, they
    may not in other circumstances.

E.

conclusion

[60]

For these reasons I would
    dismiss the appeal.

Released
:
RGJ
    MAY 2 2019

R.G. Juriansz J.A.

I agree. S.E. Pepall J.A.

I agree. P. Lauwers J.A.

[1]
At a late stage of the preparation of these reasons, the Supreme Court released
    its decision in
R. v. Mills
, 2019 SCC 22.
Mills
deals with the
    expectation of privacy in electronic text communications in the context of
    internet luring under s. 172.1 of the
Criminal Code
. The circumstances
    of
Mills
drastically differ from this case. None of the four sets of
    reasons in
Mills
referred to the
Jarvis
decision. In my view
Mills
has no relevance to this case.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Zirkind, 2019 ONCA 401

DATE: 20190516

DOCKET: C63942

Hourigan, Paciocco, and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Zirkind

Appellant

Edward Prutschi, for the appellant

Jennifer Conroy and Kerry Benzakein, for the respondent

Heard: May 7, 2019

On appeal from the convictions entered on January 16,
    2017 by Justice Todd Ducharme of the Superior Court of Justice and from the
    sentence imposed on June 29, 2017.

REASONS FOR
    DECISION

[1]

The appellant was convicted of one count of trafficking in property
    obtained by crime (contrary to s. 355.2 of the
Criminal Code
) and one
    count of possession of property obtained by crime (contrary to s. 354(1) of the
Criminal Code
) following a judge alone trial after police discovered
    $1,136,555.00 in cash in his car. The primary issue at trial was whether the
    Crown had proven beyond a reasonable doubt that the appellant knew of the
    criminal origins of the funds. The appellant testified on his own behalf. He
    was convicted and sentenced to 4 years imprisonment. He appeals from both his convictions
    and sentence on the grounds that the trial judge erred by:

1.       Failing to properly apply the principle from
R v. W.(D.)
,
    [1991] 1 S.C.R. 742;

2.       Failing
    to provide sufficient reasons for conviction; and

3.       Imposing a sentence that was grossly disproportionate to the
    offence in these circumstances.

[2]

For the following reasons, we would dismiss the appeal from conviction,
    grant leave to appeal the sentence but dismiss the appeal from sentence.

The Facts

[3]

An extensive Agreed Statement of Facts formed a large part of the
    evidence at trial.

[4]

On February 23, 2014, the appellant flew from Montreal to Toronto on a
    one-way ticket and rented a car. For several days prior, the appellant had been
    communicating through phone calls and text messages with a man named Justin
    Soon to arrange a meeting in Toronto. Justin Soon was under surveillance and his
    calls and text messages were being intercepted by police in furtherance of a
    drug investigation.

[5]

The meeting between Mr. Soon and the appellant ultimately took place in a
    parking lot at the Yorkdale Mall on the afternoon of February 23, 2014. The police
    had Mr. Soon under surveillance at that time. The police saw Mr. Soon get out
    of his car with a black and red duffle bag and get into the appellants rental
    car. Mr. Soon got out of the car a few minutes later and walked back to his car
    without the bag.

[6]

Later that night, an OPP officer stopped the appellants car, which was
    travelling eastbound on Highway 401, shortly before 10:30 p.m. The OPP officer
    testified that he stopped the appellant for speeding, in what he described as a
    routine traffic stop. As a result of the officers observations of and
    interaction with the appellant, the appellant was arrested for possession of property
    obtained by crime and the vehicle was searched. The money was found in a number
    of bags in the car. The bags, the money, and several surfaces in the car
    (including the glove compartment, drivers control surfaces, back seat and
    trunk) tested positive for the presence of cocaine.

[7]

The Agreed Statement of Facts stipulates that $250,170 found in the red
    and black duffle bag obtained from Mr. Soon was derived from cocaine
    trafficking.

[8]

The appellant testified at trial. The appellant is an orthodox Lubavitch
    Jew. He admitted that he was transporting money and that he had done this a few
    times previously. He denied knowing that the money was property obtained by crime.
    Rather, he testified that he believed the money was Shoah Gelt, that is,
    money belonging to Jewish people living in Europe or Asia who believed there
    would be another Holocaust and who wished to move their money to a place of
    safety so that it would not be confiscated as it was during the first Holocaust.

[9]

The appellant testified that he had agreed to transport the money at the
    request of a man named Avrum Reish. The appellant agreed and was honoured to
    do so, describing the task as a great mitzvah or commandment from God.

[10]

The
    appellant testified that he had travelled from Toronto to Montreal to transport
    money on three or four prior occasions. He testified that he never flew back to
    Montreal with the money because he was afraid that the money would be
    discovered or lost. The people he met in Toronto who gave him the money had no
    obvious signs of being Jewish, but the people to whom he gave the money in
    Montreal appeared to be orthodox Jews.

[11]

In
    cross-examination, the appellant agreed that Avrum was a stranger and had
    approached him unsolicited. He admitted that he made no inquiries about Avrum
    or asked for details about where the money would end up. He never asked any
    questions about how the money came into Canada and stated that he did not have
    a telephone number for Avrum. He did not remember if he had tried to reach
    Avrum after his arrest but testified had not heard from him since his arrest.

The Decision Below

[12]

The
    trial judge began by summarizing the events leading up to the appellants
    arrest. He referred to the Agreed Statement of Facts, noting that $1,136,555
    was found in the appellants car, and that a portion of that money (i.e. the
    money found in the black and red duffle bag, totalling $250,170) was admitted
    to be property obtained by crime. He identified the primary issue in the case
    as being whether the Crown had proven beyond a reasonable doubt that the
    appellant was knowingly in possession of property obtained by crime. A
    secondary issue was whether the Crown had established beyond reasonable doubt
    that all of the money found in the car (i.e. other than that in the red and
    black duffle bag) was property obtained by crime.

[13]

The
    trial judge then proceeded to review and consider the appellants testimony.
    The trial judge began by rejecting the suggestion that Avrum was, in fact,
    moving money on behalf of Jews living in Europe or Asia because (1) the money
    from Mr. Soon was admitted to be the proceeds of cocaine trafficking; and (2)
    it was incredible that, had that been the case, the appellant would not have
    been contacted following his arrest by Avrum or the Jews to whom the money
    belonged to find out what had happened to the money.

[14]

The
    trial judge then focussed directly on the question of whether the appellant
    believed that the money he was moving was actually Shoah Gelt rather than the
    proceeds of crime. The trial judge referred to
W.(D.),
and provided
    six reasons for rejecting the appellants testimony, including the appellants
    failure to make any inquiries about Avrum and the fact that it was simply
    unbelievable that people who did not know the appellant would give him such
    large amounts of cash. The trial judge also stated that he disbelieved the
    appellants claim that he had no way of contacting Avrum and found that the
    appellants inability to remember any of the details about the people he met in
    Toronto or Montreal was feigned. The trial judge found that none of these
    issues in the appellants evidence were explained by his religious beliefs.

[15]

The
    trial judge then concluded that the appellants testimony did not leave him
    with any reasonable doubt that he knew what was going on, for the same reasons the
    trial judge had provided for rejecting the appellants evidence. Finally, the
    trial judge stated that turning to the rest of the evidence, particularly the
    admissions in this case, I am satisfied beyond a reasonable doubt as to the
    guilt of [the appellant].

The Conviction Appeal

(1)

Did the trial judge err in his application of
W.(D.)
?

[16]

We
    find no merit in the appellants submission that the trial judge failed to
    properly apply
W.(D.)
. The trial judge expressly referred to
W.(D.)
before he turned to consider the appellants evidence. His analysis is
    structured according to, and follows, each of the three components of the
W.(D,)
test.

[17]

The
    trial judge explained clearly why he rejected the appellants evidence that he
    believed he was transporting Shoah Gelt, and provided six cogent reasons for
    doing so. He then found that the appellants evidence, even though not
    believed, did not raise reasonable doubt for those same six cogent reasons.

[18]

We
    do not agree with the appellants submission that in arriving at these
    conclusions the trial judge erred in his application of the principles in
W.(D.)
because he failed to properly engage with appellants religious beliefs,
    and how those religious beliefs would impact his knowledge as to the criminal
    origins of the funds. The trial judge reviewed the appellants testimony as to
    his religious beliefs in some detail. In rejecting the appellants testimony
    and in finding that he was not left with reasonable doubt as a consequence of
    this testimony  the trial judge explained that none of the issues in the
    appellants evidence were explained by his religious beliefs. We do not see any
W.(D).
error in this regard.

[19]

The
    trial judge then went on to consider the third
W.(D.)
requirement. He stated:

Thus, as [the appellants]
    testimony does not leave me with a reasonable doubt, turning to the rest of the
    evidence, particularly the admissions in this case, I am satisfied beyond a
    reasonable doubt as to the guilt of [the appellant].

[20]

We
    do not agree with the appellants submission that the trial judge erred in
    respect of his analysis at this third limb of
W.(D).
He demonstrated
    an appreciation that it would be improper to convict based on the rejection of
    the appellants evidence, and acknowledged that for a conviction there must be
    sufficient proof in the evidence he does accept to establish the accuseds
    guilt beyond a reasonable doubt. In our view, the appellants argument is
    essentially that the reasons in this respect are insufficient (an argument we
    address below).

(2)

Were the trial judges reasons insufficient?

[21]

We
    do not agree with the appellants submission that the trial judges reasons
    were insufficient in the circumstances of this case, though they were brief as
    they relate to the last
W.(D.)
consideration.

[22]

The
    brevity of the trial judges reasons raise two concerns. Of particular concern
    is the trial judges failure to indicate what evidence grounded his finding
    that the third limb of
W.(D.)
had been satisfied and that the Crown
    had established beyond a reasonable doubt that the appellant knew he was
    transporting property obtained by crime.

[23]

The
    first and broader question is whether the reasons are sufficient to explain to
    the appellant why he was convicted and to permit effective appellate review:
R
    v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 24-25, 55;
R
    v. R.E.M.,
2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 15-17. Where the
    trial judges reasons  read in conjunction with the evidence and submission at
    trial  make clear how the trial judge arrived at his or her decision, the
    reasons will be sufficient:
R.E.M.,
at para. 16.

[24]

The
    context of this trial was that the Crowns case, in the absence of or upon rejecting
    the appellants evidence, was strong and largely contained in the Agreed
    Statement of Facts. This was acknowledged by defence counsel at trial (not
    counsel on this appeal):

Defence Counsel
:
In relation to the third branch of
W.D.
its  its a little bit more difficult an argument
[]

What if it was a different trial and he never testified? You
    have all the same evidence but not his testimony. Instead I called a
    sociological expert in Hasidic Jewry who testified about the way the Hasids are
    raised and how

The Court:
It would be a lot easier to convict him []

Defence Counsel:
Right. No, you would only be left with
    the evidence you have in front of you

The Court:
I mean  the argument cant be that hes a
    Lubavitch Jew and therefore hes not going to commit a crime.

Defence Counsel:
No its not.

The Court:
At least thats not an argument that flies
    with me. So, it seems to me if you get  if you  if the Crown gets me to the
    third branch of
W.D.
, where I have rejected he believes this is Shoah
    money then

Defence Counsel:
Like I said, Your Honour

The Court:
I think you have a problem.

Defence Counsel
:
its
    not a powerful submission.
[Emphasis added.]

[25]

This
    short trial focused on the appellants knowledge. Defence counsel in the above
    passage recognizes that the totality of the evidence amounted to a strong
    circumstantial case that the appellant did know that he was transporting property
    obtained by crime. There was overwhelming circumstantial evidence in this
    regard. This includes the cocaine residue found in the car, on the bags, and on
    the money, the evidence from the OPP officer about how nervous the appellant
    was during the traffic stop, and the secretive means by which the appellant
    transported the money. While proof of a particular state of mind (here,
    knowledge of the criminal origins of the funds) will almost always be based on
    circumstantial evidence, the only reasonable inference on the strength of the
    evidence at trial was that the appellant knew that he was transporting proceeds
    of crime. The trial judges reasons  read in light of the evidence and
    submissions at trial  are adequate both to explain the result and to permit
    effective appellate review.

[26]

The
    second concern raised by the brevity of the trial judges reasons at the third
    stage of
W.(D).
is whether the trial judge based his findings of guilt
    on inferences invited by the trial Crown counsel (not counsel on this appeal)
    that are legally controversial. The Agreed Statement of Facts stipulated that
    the appellant had travelled between Canada and the United States, on trips of
    short duration, 36 times between January 2011 and February 2014. Of those 36
    trips, 13 trips featured a same day departure and return. The Agreement
    Statement of Facts further stipulated that the appellants average yearly
    income (as reported on his tax returns for 2008 to 2012) was $34,912. However,
    between 2009 and February 2014, the appellant had made over $2 million in
    payments to his various credit cards. In her closing submissions, the trial
    Crown suggested that the appellants travel patterns were consistent with him
    acting as an illegal courier and that his credit card payments suggested he had
    an undeclared source of income. She suggested that this evidence supported the
    inference that the appellant was knowingly transporting property obtained by
    crime. The reasoning she invited depends on the inference that the appellant had
    engaged in illegal activity on other occasions and used criminal proceeds to
    make his credit card payments, and that this past criminal conduct shows that
    he knew he was transporting criminal proceeds when arrested. The Crown needed
    to bring an application to use this presumptively inadmissible reasoning, but
    had not done so. Had the trial judge applied this reasoning he would have
    erred.

[27]

However,
    upon a review of the transcripts of proceedings, it is clear that the trial
    judge was alive to the potential dangers associated with this evidence. The
    trial judge not only expressed scepticism as to the import of this evidence
    during the trial Crowns closing submissions, but also said to defence counsel
    I dont need [] to hear about that when defence counsel started reply
    submissions on the appellants travel history, and told defence counsel not to
    worry about trial Crowns submissions on the credit card transactions.

[28]

In
    light of the submissions at trial, and the back and forth between counsel and
    the trial judge, we are satisfied that the trial judge did not base his finding
    of guilt on legally controversial inferences.

The Sentence Appeal

[29]

We
    also disagree that the 4 year custodial sentence imposed was manifestly unfit.
    We see no error of fact or error in principle that would justify appellate
    intervention in this case.

[30]

The
    appellant argues the trial judge erred in rejecting the appellant was a mere
    courier which, had this submission be accepted below, would have been a
    mitigating factor. We disagree. The trial judges finding that the appellant
    was not a mere courier was amply supported by the record.

[31]

Contrary
    to the appellants submission on appeal, the record also strongly supports the
    trial judges finding that the appellant was motivated by profit and was aware
    that he was transporting money obtained from drug tracking.

[32]

The
    trial judge identified and applied the principles set out in
R v. Rosenfeld
,
    2009 ONCA 307, 94 O.R. (2d) 641. He noted that the primary sentencing
    objectives were deterrence and denunciation. He considered the relevant
    similarities and differences between
Rosenfeld
and the case at bar. Again,
    we see no error in principle that could justify intervention with the sentence
    imposed.

Disposition

[33]

The
    appeal from conviction is dismissed. Leave to appeal sentence is allowed but
    the appeal from sentence is dismissed.

C
.W. Hourigan J.A.

David M. Paciocco
    J.A.

A Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rallis v. Myers, 2019 ONCA 437

DATE: 20190527

DOCKET: C66659

Doherty, Nordheimer and Harvison Young JJ.A.

BETWEEN

William Rallis on his own behalf and that of the
    Estate of Fay Arlene Fuerst, B.A., LLB and Fay Fuerst B.A. LLB 1955-2013

Plaintiffs (Appellants)

and

Judge Fred Myers
,
Judge Corbett
,
Judge Epstein
,
Judge Glustein
, Borden Ladner
    Gervais LLP, John Morris Lawyer, Henry Ngan Lawyer, Lenczner Slaght Royce Smith
    Griffin LLP, Paul Eric Veel Lawyer, Sam Johansen Lawyer,
Judge Kohenen
,
Master
    Graham
,
Judge Firestone
, Judges Administration Staff, Judge
    Glusteins Assistant Staff, Ms. Roxanne Johnson, Court Registrar Staff, Mr.
    Bosco, Joe Di Peatro, Chris de Gregorio, Court Registrar Staff, Court Police
    Staff,
Judge Nakatsuru
, Toronto Police Services, Richard Parker QC
    Lawyer, The Law Society of Ontario and anyone else that may come up

Defendants/
Moving Parties
(Respondents)

William Rallis, in person

Daniel Mayer, for the moving parties and Her Majesty the
    Queen in right of Ontario

Heard: in writing

On appeal from the
    judgment of Justice Mark Edwards of the Superior Court of Justice, dated
    February 8, 2019.

REASONS FOR DECISION

[1]

The motion judge dismissed the appellants' action, against the named
    judicial officials and the named court staff defendants, under r. 2.1.01 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 as being frivolous,
    vexatious or otherwise an abuse of the process of the court. The appellants have
    filed an appeal from the motion judges decision. The moving parties now seek an
    order under r. 2.1.01 dismissing the appeal.

[2]

We have reviewed the written submissions filed by the moving parties and
    those filed by Mr. Rallis.

[3]

In our view, this appeal should be summarily dismissed as it is, on its
    face, frivolous, this is to say, it is completely devoid of merit. While the
    statement of claim does not easily allow for the nature of the claim to be
    determined, it appears to largely be a complaint about alleged efforts by
    various persons to obstruct Mr. Rallis from proceeding with an entirely
    separate and earlier claim that he commenced.

[4]

The motion judge correctly concluded that there is no cause of action
    against the judges who are named in the statement of claim because they enjoy
    judicial immunity. There is similarly no claim against the various court staff
    who are named because of the provisions of the
Proceedings Against the
    Crown Act
, R.S.O. 1990, c. P.27, s. 5(6).

[5]

We would also observe that the statement of claim in this case bears many
    of the hallmarks of vexatious litigation that are set out in
Gao v. Ontario
    (Workplace Safety and Insurance Board),
2014 ONSC 6497, 61 C.P.C. (7th)
    153. In addition, with the exception of the damages claim, none of the relief
    sought in the statement of claim is appropriately sought through an action. It
    is all procedural in nature.

[6]

For these reasons, this appeal is dismissed.

Doherty
    J.A.
I.V.B. Nordheimer J.A.
Harvison Young J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Reaction Distributing Inc. v. Algonquin Highlands
    (Township), 2019 ONCA 433

DATE: 20190523

DOCKET: C66375

Doherty, Nordheimer and Harvison Young JJ.A.

BETWEEN

Reaction Distributing
    Inc.

Plaintiff (Respondent)

and

The Corporation of the
    Township of Algonquin Highlands

Defendant (Appellant)

John Ewart, for the appellant

John Montgomery, for the respondent

Heard:  May 22, 2019

On appeal from the judgments of Justice Bryan Shaughnessy
    of the Superior Court of Justice, dated December 7, 2018 with reasons reported
    at 2018 ONSC 7324

REASONS FOR DECISION

[1]

The defendant appeals from the trial judgment that awarded the
    respondent damages in the amount of $71,063.60. At the conclusion of the
    hearing, we dismissed the appeal with reasons to follow. We now provide those
    reasons.

[2]

The respondent submitted a tender for work to be done for the appellant.
    The respondent submitted its tender in a three ring binder contained in a box. The
    box did not have the respondents name or address on the outside of the box. It
    was one of the contractual requirements of the tender process that all tenders
    had to be submitted in a sealed envelope that had marked, on the outside, the
    companys name and return address.

[3]

The appellant disqualified the respondents tender as a consequence of
    this omission and awarded the contract for the work to the only other company
    that submitted a tender. The respondent sued the appellant for breach of
    contract. The trial judge found that the respondents tender was in substantial
    compliance with the tender requirements. The trial judge found that the respondents
    failure to include its name and return address was a mere irregularity. He thus
    found that the appellants disqualification of the respondents tender constituted
    a breach of contract. The trial judge found that the respondent had submitted
    the lowest bid for the work and would have been awarded the contract for the
    work if the appellant had evaluated the respondents tender. Consequently, the
    trial judge awarded the respondent its lost profit from its failure to be
    awarded the contract for the work.

[4]

While the terms of the tender process permitted the appellant to waive
    any non-compliance, the appellant says that that term did not require it to
    waive any non-compliance. It says that the respondent clearly did not comply
    with the requirement to have its name and return address on the outside of the
    tender and therefore it was entitled to disqualify the respondents tender.

[5]

The appellant raised three issues: (i) that the trial erred in finding a
    breach of contract in this situation; (ii) erred in finding that the appellant
    had not acted in good faith; and (iii) erred in finding that the respondent
    would have been awarded the contract for the work, if the appellant had
    considered its tender. At the hearing, the appellant chose not to pursue the
    third issue.

[6]

We do not accept either of the other grounds advanced by the appellant.
    On the first issue, the law is that substantial compliance is the test to be
    applied in considering tender requirements:
Double N Earthmovers Ltd. v.
    Edmonton (City),
2007 SCC 3, [2007] 1 S.C.R. 116. Consequently, and
    subject to the second issue, it was open to the trial judge to find that the
    respondent substantially complied with the tender requirements and thus the
    appellants failure to consider the respondents bid constituted a breach of
    contract.

[7]

On the second issue, the trial judge found that the appellant had not
    treated the respondent fairly and equally in reaching its conclusion to
    disqualify the respondents tender. The trial judges finding, in this regard,
    is a factual one that is not to be interfered with absent palpable and
    overriding error, of which there is none here. We would note, on this point,
    that the appellant did not place any evidence before the trial judge as to the
    reasons why the appellant was not prepared to waive the non-compliance.

Conclusion

[8]

The appeal is dismissed with costs to the respondent fixed in the agreed
    amount of $6,500 inclusive of disbursements and HST.

Doherty
    J.A.
I.V.B. Nordheimer J.A.
Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ruffolo v. David, 2019 ONCA 385

DATE: 20190509

DOCKET: C65636

Doherty, Rouleau and Brown JJ.A.

BETWEEN

Franco Ruffolo

Applicant (Respondent)

and

Michelle Anne David

Respondent (Appellant)

Valois P. Ambrosino and A. Voss, for the appellant

Ravinder Sawhney, for the respondent

Heard: May 1, 2019

On appeal from the order of Justice Peter A. Douglas of
    the Superior Court of Justice, dated April 8, 2016.

REASONS FOR
    DECISION

[1]

The appellant appeals from the motion judges decision finding her in
    contempt of three access provisions. These access provisions were among a
    lengthy list of custody and access terms agreed to in minutes of settlement reached
    by the parties in January 2011. The minutes of settlement were incorporated
    into a court order in September 2015 and the respondent subsequently brought
    contempt proceedings against the appellant.

[2]

The motion is only one of many, in what has proven to be a very bitter
    and ongoing dispute. The parties were both representing themselves on the
    motion, which, together with the ongoing conflict between the parties, made the
    judges task in addressing this motion somewhat more difficult.

[3]

The respondent sought contempt findings with respect to 37 alleged
    breaches of 10 different access provisions of the order.

[4]

The motion judge dismissed almost all of the allegations. He did,
    however, make three findings of contempt, as follows:

1.

The appellant
    failed to provide the childrens summer activity schedule by May 1, from 2012
    to 2015;

2.

The appellant
    did not allow the respondent to have access to the children during the Easter
    weekend in 2015; and

3.

The appellant denied the respondent access to his son, Michael, on his birthday
    in October 2015.

Procedure to be followed

[5]

The finding of contempt was made on April 8, 2016. For reasons that are
    not apparent from the record, the court has not yet held the sanction hearing.
    Although the appeal from a finding of contempt is governed by the timelines set
    out in the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 (see
Kopaniak
    v. MacLellan
(2002)
, 212 D.L.R.
    (4th) 309 (Ont. C.A.), leave to appeal refused, [2002] S.C.C.A. No. 263), the
    appeal is usually not heard until the sanction has been imposed. The appeal of
    the sanction, if one was imposed and is under appeal, is then joined with the
    contempt appeal. As explained by Sharpe J.A. in
Sabourin and Sun Group of
    Companies v. Laiken
, 2011 ONCA 757, 286 O.A.C. 273, at para. 9, a contempt
    proceeding has only come to a final conclusion once the sanction has been
    imposed. Until the motion judge has disposed of the motion, including the
    sanction, the appeal court will not know how serious the motion judge
    considered the contempt to be or how the judge intended to bring about
    compliance or punish the contemnor. In the words of Sharpe J.A., [t]hese are
    elements integral to the nature and character of the contempt proceeding and
    essential to an appellate courts full appreciation of the disposition under
    appeal: at para. 9.

[6]

Despite the fact that the hearing in relation to sanction has not yet
    proceeded in this matter, the parties urge this court to hear the appeal. Since
    the finding of contempt is now over three years old and there is no indication
    that the sanction hearing will proceed soon, we conclude that it is appropriate
    for this court to exercise its discretion and hear the appeal in this instance.

[7]

Our decision to proceed with the appeal notwithstanding the sanction has
    not been imposed should not be taken as an indication that this is the
    appropriate or usual procedure.

[8]

In our view, civil contempt proceedings should generally not be heard
    until the sanction has been determined. Motion judges may, for good reason,
    decide to delay the sanction phase after a finding of contempt. In such a case,
    or for some other valid reason, a party found in contempt may consider that the
    interest of justice requires that the appeal of the contempt finding be heard
    even though the sanction has not yet been determined. In such a case, the
    appropriate procedure would be to bring a motion in this court seeking such
    relief.

[9]

We now turn to the merits of the appeal.

Merits of the appeal

[10]

The
    reasons of the motion judge are extremely short and his findings appear to be
    based, at least in part, on statements made by the appellant in the course of
    submissions, and not on any sworn testimony. The motion judge did not address
    important background in his decision, namely the appellants explanation that
    the respondent had not regularly exercised his access rights for years. This is
    significant, as there would not have been strict compliance with the terms of
    the order for much of the period between 2011 and 2015.

[11]

In
    our view, the record before the motion judge did not support his findings of
    contempt.

[12]

With
    respect to the first finding, the order required the appellant to provide the
    respondent with the childrens summer activity schedule by May 1 of each year.
    The respondent, who was entitled to two vacation weeks with his children each summer,
    was to advise the appellant by May 8 if he intended to take the children for a
    third week. He also had to identify the weeks he proposed to take the children.
    The motion judge found that the appellant was in contempt of the provision, as
    she failed to provide the schedule.

[13]

In
    her submissions, the appellant had explained that she did not schedule any
    summer activities until after May 8 to avoid any conflict with weeks that the
    respondent might choose. She therefore understood that, since no activities had
    been scheduled, there was no activity schedule to provide. The language of the provision
    in the order relating to the summer activity schedule is, in our view,
    ambiguous, and allows for the appellants interpretation.

[14]

Further,
    there is no suggestion in the materials that the respondent complied with his
    obligation to notify the appellant of his choice of weeks by May 8 each year,
    nor that he was unable to secure any particular week because the appellant had
    scheduled activities prior to May 8.

[15]

With
    respect to the second contempt finding, concerning Easter access, the motion
    judge stated that there was no evidence that the appellant complied with her
    obligations to make the children available on that weekend. This appears to be
    based on the fact that she did not confirm by email that she would in fact make
    the children available.

[16]

There
    is, however, no evidence that the appellant prevented the respondent from
    picking up the children at school in order to exercise his access rights on the
    day before the weekend, as provided for in the order, nor that she otherwise blocked
    access. At best, the appellant did not provide a timely response to the
    respondents emails and she may not have agreed to a different arrangement. The
    appellant maintains that the children were available for pickup by the
    respondent, that the respondent never attempted to collect the children in the
    manner provided by the order, and that he was not otherwise prevented from
    doing so.

[17]

The
    third finding was that the appellant breached her obligation to make Michael
    available to the respondent for two hours on his birthday. When the respondent
    attended at Michaels school on his birthday, Michael refused to go with him.
    The appellant had told Michael, before he went to school, that he was to go on
    an access visit with the respondent. She had added that, ultimately, it would
    be his decision. There is no suggestion that the appellant counseled Michael
    not to attend, nor was the appellant present at school when the respondent
    presented himself there to pick up Michael. She was not aware of her sons refusal
    to leave with the respondent and was therefore not in a position to facilitate
    access. In our view, in the circumstances, the fact that Michael did not spend
    two hours with the respondent on his birthday does not amount to an intentional
    failure to comply with a court order.

[18]

We
    add two brief comments. First, as explained in
Carey v. Laiken
, 2015
    SCC 17, [2015] 2 S.C.R. 79, at para. 36, contempt orders should not be so readily
    granted by motion judges:

The contempt power is
    discretionary and courts have consistently discouraged its routine use to
    obtain compliance with court orders. If contempt is found too easily, a
    courts outrage might be treated as just so much bluster that might ultimately
    cheapen the role and authority of the very judicial power it seeks to protect.
    As this Court has affirmed, contempt of court cannot be reduced to a mere
    means of enforcing judgments. Rather, it should be used cautiously and with
    great restraint. It is an enforcement power of last rather than first resort.
    [Citations omitted.]

[19]

Second,
    where the main issues to be decided concern access to children, the best
    interests of the children should be the paramount consideration. In this case, with
    the courts assistance, the parties have, since the contempt hearing, taken
    steps to involve professionals to speak and work with the children to address their
    relationship with the respondent. Such steps are to be encouraged.

[20]

For
    these reasons, the appeal is allowed and the findings of contempt are set
    aside. The appellant is awarded costs fixed in the amount of $7,500, inclusive
    of disbursements and applicable taxes.

Doherty J.A.

Paul Rouleau J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Salman v. Patey, 2019 ONCA 365

DATE: 20190506

DOCKET: M50053 (M49985)

Feldman, Miller and Fairburn JJ.A.

BETWEEN

Rawia Salman

Plaintiff/Appellant

and

Shawn Patey and Patey Law Firm

Defendants/Responding Parties

Rawia Salman, self-represented

Susan Sack, for the responding parties

Heard and released orally: May 2, 2019

REASONS FOR DECISION

[1]

The appellant seeks review by the panel of the order of Huscroft J.A.,
    dated January 9, 2019, denying an extension of time to appeal from the order of
    Riley J. granting summary judgment.

[2]

The motion judge applied the correct test on a motion for an extension
    of time to appeal. He considered all of the factors including the delay, the
    reason for delay, the potential merit of the appeal and the justice of the
    case. He found that there was no apparent merit to the appeal on the issue of
    the limitation period and noted that the applicant had offered no basis to
    impugn Riley J.s decision. He also considered the age of the case and
    concluded that the justice of the case did not require an extension of time in
    this case.

[3]

We see no error in the motion judges decision and no basis to reverse
    it. Costs are awarded to the respondent in the amount of $2,000, inclusive of
    disbursements and HST.

K.
    Feldman J.A.

B.W.
    Miller J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA
    369

DATE: 20190507

DOCKET: C65964

Doherty, Paciocco and Zarnett JJ.A.

BETWEEN

Service Mold + Aerospace Inc.
,
SMI
    Ventilation Products Inc.
and Service Mold Associates

Plaintiffs (
Respondents
)

and

Nada Khalaf and
Toronto Dominion Bank

Defendants (
Appellant
)

Geoff R. Hall and Nicholas E. Fitz, for the appellant

Myron W. Shulgan and Nicole Marcus, for the respondents

Heard: April 18, 2019

On appeal from the judgment of Justice Pamela L. Hebner
    of the Superior Court of Justice, dated September 12, 2018, with reasons
    reported at 2018 ONSC 5345 and 2017 ONSC 6197.

Paciocco J.A.:

OVERVIEW

[1]

The respondent corporations, Service Mold + Aerospace Inc., and SMI Ventilation
    Products Inc., were defrauded by their bookkeeper, Ms. Nada Khalaf. She
    committed the fraud in two distinct ways. She used forged cheques [the cheque
    fraud] and made additional unauthorized payroll payments into her bank account
    [the payroll fraud]. The respondent corporations sued the appellant, the
    Toronto-Dominion Bank, claiming the appellant bank was strictly liable and
    liable in negligence for the cheque fraud, and liable in negligence for the
    payroll fraud.

[2]

The appellant bank defended both claims based on: (1) a Business Banking
    Agreement [the BBA] containing a verification clause and a limited liability
    clause that it claimed the respondent corporations had signed [the BBA
    defence], and (2) the
Limitations Act, 2002
, S.O. 2002, c. 24, Sched.
    B [the limitations defence]. These were the sole defences to the strict
    liability claim relating to the cheque fraud; it denied negligence on the
    payroll fraud claim.

[3]

The respondent corporations brought a successful motion for partial
    summary judgment based on its strict liability claim relating to the cheque
    fraud. The motion judge found that there was no genuine issue to be tried on
    the appellant banks BBA defence or its limitation defence to the cheque fraud.

[4]

The appellant bank appeals, claiming: (1) the motion judge erred in
    proceeding with a motion for partial summary judgment in the circumstances of
    the case, (2) misapplied the test for discoverability relating to the limitations
    defence, and (3) erred in finding that there was no evidence to support the BBA
    defence.

[5]

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

THE MATERIAL FACTS

[6]

The respondent corporations are related manufacturing companies operated
    by Mr. Martin Schuurman. Between 2009 and 2012, they were defrauded, along with
    a third company not involved in these proceedings, by Ms. Khalaf for close to
    $1 million.

[7]

In 2012, Ms. Khalaf was terminated for unrelated reasons. In 2015, the respondent
    corporations received information that Ms. Khalaf had been fired from her subsequent
    employer for forging cheques. This led the respondent corporations to conduct
    an examination that uncovered both the cheque fraud and the payroll fraud that
    she had committed against them.

[8]

The respondent corporations sued Ms. Khalaf. They also sued the appellant
    bank. With respect to the cheque fraud, the respondent corporations claimed
    that the appellant bank was strictly liable under the
Bills of Exchange Act
,
    R.S.C. 1985, c. B-4, s. 48, and liable for negligently failing to review the
    cheques. The payroll fraud claim was based exclusively in negligence. The respondent
    corporations claimed, among other particulars, that the appellant bank breached
    its duty of care in negligently transferring the purported payroll funds into Ms.
    Khalafs account.

[9]

The appellant bank sought to defend both claims based on the BBA defence
    and the limitations defence. With respect to the negligence claims, it also denied
    it breached a duty of care.

[10]

On
    November 2, 2016, the respondent corporations moved for partial summary judgment
    on their strict liability claim relating to the cheque fraud. The appellant bank
    agreed that the provisions of the
Bills of Exchange Act
applied and
    that that unless its BBA defence or its limitations defence succeeded in
    relation to the cheque fraud claim, it would be strictly liable for the cheque
    fraud in the amount the respondent corporations were claiming.

[11]

The
    partial summary judgment motion was heard on April 25, 2017. On October 20,
    2017, the motion judge ruled that there was no genuine issue to be tried
    relating to the appellant banks BBA defence to the cheque fraud claim, because
    there was no evidence that the respondent corporations had signed a BBA
    containing an account verification or limited liability clause. She also held
    that she could not determine the crucial discoverability issue relating to the
    limitations defence to the cheque fraud claim without
viva voce
evidence,
    and so she ordered a mini-trial on the issue of discoverability.

[12]

That
    mini-trial was held on February 20 and 21, 2018. On September 12, 2018, she
    granted partial summary judgment to the respondent corporations in the amount
    of $342,333.68 CAD and $246,094.74 USD. She found that the limitation period
    did not begin to run until early 2015 and had not passed when the statement of
    claim was issued.

ANALYSIS

A.

The Motion Judge Should not have granted Partial Summary Judgment

[13]

The
    standard of review in an appeal from a summary judgment ruling, including
    partial summary judgment rulings, was described concisely in
Baywood Homes
    Partnership v. Haditaghi
, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 30:

In
Hryniak
[
v. Mauldin
,
    2014 SCC 7, [2014] 1 S.C.R. 87], at para. 81, Karakatsanis J. ruled that the
    exercise of powers under the new summary judgment rule attracts appellate
    deference. The question as to whether there is a genuine issue for trial is a
    question of mixed fact and law; in the absence of an extricable error in
    principle, or palpable and overriding error, this determination should not be
    disturbed on appeal.

[14]

The
    principles that guide whether partial summary judgment is appropriate are,
    however, more complex than those that apply to summary judgment motions generally.
    In
Hryniak
, at para. 60, Karakatsanis J. recognized that partial
    summary judgment may run the risk of duplicative proceedings or inconsistent
    findings of fact at trial. There is also the risk that partial summary
    judgment can frustrate the
Hryniak
objective of using summary judgment
    to achieve proportionate, timely and affordable justice. If used imprudently,
    partial summary judgment can cause delay, increase expense, and increase the
    danger of inconsistent findings at trial made on a more complete record:
Butera
    v. Chown, Cairns LLP
, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 29-33. These
    risks, which require careful consideration by motion judges, were known before
Hryniak
and
Butera
, as illustrated by this courts decision in
Corchis
    v. KPMG Peat Marwick Thorne
, [2002] O.T.C. 475 (C.A.), at para. 3. For
    this reason, while partial summary judgment has its place, it should be
    considered to be a rare procedure that is reserved for an issue or issues that
    may be readily bifurcated from those in the main action and that may be dealt
    with expeditiously and in a cost effective manner:
Butera
, at para.
    34.

[15]

In
    my view, the motion judge erred in ordering partial summary judgment in the
    circumstances of this case. In so doing, the motion judge committed an
    extricable error in principle, as well as palpable and overriding error.

[16]

In
    her initial decision of October 20, 2017, the motion judge asked whether it was
    appropriate to grant partial summary judgment, but referenced only the
    standards for summary judgment, without overtly addressing partial summary
    judgment considerations.

[17]

In
    her September 12, 2018 decision, the motion judge explained why, in her view,
    partial summary judgment was appropriate. After citing the relevant principles
    from
Butera
, including the cautions about partial summary judgment, she
    found the cheque fraud and payroll fraud claims to be distinct, representing
    different causes of action. She noted that she did not hear evidence during the
    motion of the payroll fraud, and said that there was no indication that any
    additional evidence on the cheque fraud would be available at trial. She concluded
    that partial summary judgment could eliminate a single claim enabling the
    subsequent trial to be shorter and more focused, and that this could encourage
    settlement. She then said with respect to the risk of inconsistent findings:

In my view, the commencement of
    the limitation period in respect of the payroll fraud claim may or may not be a
    different date than the commencement of the limitation period in the cheque
    fraud claim. As I said, I heard extensive evidence on the cheque fraud. I did
    not hear similar evidence on the payroll fraud. Although there may be some
    overlap in the evidence, there were possibly different office procedures
    respecting the payroll fraud and possibly different considerations as to when
    the plaintiffs ought to have been aware of the loss.

[18]

In
    my view, the motion judge erred in principle when evaluating the risk of
    overlap in the evidence. She proceeded to partial summary judgment because she
    had not heard evidence about the payroll fraud during the summary judgment
    motion, there was no indication that any additional evidence on the cheque
    fraud would be available at trial, there may or may not be a different date
    for commencement of the relevant limitation periods, and there would only
    possibly [be] different office procedures and possibly different
    considerations as to when the plaintiffs ought to have been aware of the loss.
    Her orientation was wrong. In effect, she looked to see whether overlap had
    been demonstrated. To the contrary, she should not have proceeded to partial
    summary judgment unless she was satisfied affirmatively that the issues before
    her could readily be bifurcated without causing overlap that could lead to
    inefficient duplication or a material risk of inconsistent findings or
    outcomes.

[19]

She
    also made palpable errors in her reasoning. The fact that she heard no evidence
    of the payroll fraud during the partial summary judgment motion is, without
    more, uninstructive on whether she would be apt to hear evidence that would be
    relevant to the limitation period tor the cheque fraud claim during the payroll
    fraud trial.

[20]

More
    importantly, she gave insufficient weight to the risk of overlap in the
    evidence relating to the respective limitations defences. For example, the limitations
    defences to each claim engaged the office procedures in place, and required
    expert evidence that could be furnished by the same expert. Deciding the issue
    in respect of one claim while leaving it open on the other creates the very
    risk of inconsistency that is to be avoided.

[21]

Finally,
    and most critically, the motion judge appears to have failed to recognize that
    the BBA defence was pleaded in response to both claims, not just the cheque
    fraud. As the BBA defence was left open on the payroll claim, the risk of a
    different result went without consideration by the motion judge.

[22]

Together,
    these palpable errors are overriding given their impact.

[23]

This
    case is also illustrative of the delay that partial summary judgment entails. Through
    no fault of anyone, the summary judgment motion has delayed the trial by close
    to two years, leaving aside the seven months it has taken to hear the appeal.
    The motion judge spent over 12 months deliberating in order to write two
    decisions, a significant expenditure of judicial resources. The delay was
    predictable and, in my view, not given adequate consideration, particularly
    when the motion judge came to appreciate after the April 25, 2017 hearing that
    the summary judgment motion would require the scheduling, conduct and
    determination of a mini-trial before the trial itself would move forward.

B.

The Motion Judge misapplied the Test for Discoverablity

[24]

Although
    the foregoing is sufficient to determine the appeal, it is important to say
    something about the motion judges treatment of the test for discoverability.

[25]

The
    two year limitation period that applies in this case begins to run when the
    claim is discovered within the meaning of the
Limitations Act
. A claim
    is discovered when the plaintiff has the knowledge described in s. 5(1)(a), or
    when a reasonable person as described in s. 5(1)(b) ought to have had that
    knowledge. The material section in this case is s. 5(1)(b). It says:

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

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

[26]

Section
    5(1)(b) establishes a modified objective test. It seeks to make an objective
    determination by inquiring what a reasonable person ought to have known, but it
    imbues the hypothetical reasonable person with the subjective abilities and  circumstances
    of the person with the claim.

[27]

Here,
    the motion judge held that a reasonable person with the abilities and in the
    circumstances of Mr. Schuurman first ought to have known of the loss suffered
    by the plaintiffs when  alerted to the allegations of fraud brought against
    Ms. Khalaf by a subsequent employer. That was early 2015, meaning that the
    limitation period had not passed when the statement of claim was issued.

[28]

In
    appealing this finding, the appellant bank focused primarily on its claim that
    the motion judge erred in principle by using Mr. Schuurmans abilities and
    circumstances, instead of those of the corporations. It argues that since the
    claim belongs to the corporate plaintiffs, the s. 5(1)(b) test should have
    focused on their abilities and circumstances, not Mr. Schuurmans.

[29]

I
    need not resolve this issue because, in my view, the motion judge clearly erred
    in applying the modified objective test by conducting a purely subjective
    inquiry. Rather than imbuing the hypothetical reasonable person with the
    abilities and circumstances of Mr. Schuurman, she imparted on that person the
    attitudes and practices of Mr. Schuurman, thereby defeating the objective
    reasonableness inquiry.

[30]

She
    said:

The reasonable person standard is
    to be applied taking into account the abilities and the circumstances of the
    person with the claim. It seems to me that when the reasonable person
    standard in the context of s. 5(1)(b) is applied in this case, the
    circumstances of Mr. Schuurman include the organization of his business at the
    time of the fraud. The organization of the business, and particularly the
    bookkeeping part of that business, lacked a segregation of duties. Without a segregation
    of duties as described by Ms. Grogan, the plaintiffs were vulnerable to
    bookkeeper fraud. To put the analysis another way, the abilities and
    circumstances of Mr. Schuurman included his overly trusting, perhaps gullible
    nature and his resultant vulnerability.

[31]

First,
    an issue in the case was whether the respondent corporations failed to know
    what they ought to have known, because the bookkeeping part of their business
    was not monitored as it reasonably should have been. The motion judge begged
    that question by assuming that a reasonable person would have the same bookkeeping
    practices as the respondent corporations had. Simply put, in identifying the
    circumstances of the person that the reasonable person will share with the plaintiff,
    it is an error in principle to infer that the reasonable person would conduct
    itself in the same way that the plaintiff did. To do so is to eviscerate the
    objective component of the test. That is what the motion judge did here.

[32]

Second,
    s. 5(1)(b) is about knowing what one ought to know. In context, the reasonable
    person component of s. 5(1)(b) serves to ensure that the plaintiff acted with reasonable
    levels of prudence and attention in attending to the risk of injury, loss or
    damage. Because the objective component of the test is modified, the degree of
    prudence and attention that can reasonably be expected will vary among persons
    with claims, according to their abilities and circumstances - things such as
    level of intelligence, education, experience, resources, health, power
    imbalances, dependence, and situational pressures or distractions that might
    bear on the ability to appreciate what is happening. It is imperative to
    remember, however, notwithstanding that the term abilities may be wide when
    viewed in isolation, s. 5(1)(b) requires that once material characteristics are
    attributed to the reasonable person, that hypothetical person will remain
    reasonable. If the hypothetical person is imbued with unreasonable imprudence
    or inattention the objective component of the test is defeated, and only one
    result can obtain.

[33]

In
    my view, that is the effect of positing a reasonable person who has an overly
    trusting, perhaps gullible nature. Where a person has the ability to be less
    trusting and less gullible, being overly trusting and gullible are not
    abilities or circumstances. They are attitudes or tendencies that, when
    manifest, could properly be considered to be indicia of unreasonableness.

[34]

In
    my view, the motion judge erred in applying the modified objective test in s.
    5(1)(b).

C.

I Need not decide WHETHER the BBA finding was made in error

[35]

The
    determinations I have already made are sufficient to dispose of the appeal and
    provide sufficient guidance going forward. Since the question of whether the
    companies signed a BBA containing a verification clause and/or limited
    liability clause may be litigated again on what could be a different record, I
    choose not to consider this ground of appeal.

CONCLUSIONS

[36]

I
    would allow the appeal and set aside the partial summary judgment. As agreed
    between the parties, I would set aside the costs order of the motion judge. I
    would also order costs to the appellant bank in the summary judgment motion of
    $50,000 inclusive of applicable taxes and disbursements, and $25,000 costs on
    this appeal.

Released: DD May 7, 2019

David
    M. Paciocco J.A.
I agree. Doherty J.A.
I agree. B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sidhu v. Aviva Canada Inc., 2019
    ONCA 444

DATE: 20190527

DOCKET: C66084

Tulloch, Benotto and Huscroft JJ.A.

BETWEEN

Dharam Sidhu

Applicant (Appellant)

and

Aviva Canada Inc. and Financial Services Commission
    of Ontario

Respondents (Respondents)

Kevin Doan, for the appellant

Robert H. Rogers, for the respondent, Aviva Canada Inc.

Kari Chan, for the respondent, Financial Services
    Commission of Ontario

Heard: May 24, 2019

On appeal from the judgment of the Divisional Court
    (Marrocco A.C.J.S.C., Harvison-Young and Mew JJ.), dated June 28, 2018.

APPEAL BOOK ENDORSEMENT

[1]

We see no error in the decision of the Divisional Court. In our view,
    they applied the appropriate standard of Review to the Director Delegates
    decision. The cases of
Igbokwe v. HB Group Insurance Management Ltd
.,
    2001 CanLII 3804 (ONCA) and
Walker v. Allstate Insurance Co
., 2002
    CanLII, 44970 (ONCA), are dispositive of the issues on this appeal.

[2]

Accordingly, the appeal is dismissed.

[3]

Costs to the respondent in the amount of $5,000 all inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION: Stanley v. Patrice, 2019 ONCA 373

DATE: 20190506

DOCKET: C66342

Doherty, Rouleau and Brown JJ.A.

BETWEEN

Robert John Stanley

Applicant
(Respondent in Appeal)

and

Adele Francine Marie Patrice

Respondent (Appellant)

Adele Patrice, in person

Ellie M. Cohen and David W. Cahill, for the respondent

Heard: May 3, 2019

On appeal from the summary judgment of Justice Marvin
    Kurz of the Superior Court of Justice, dated November 29, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals the dismissal of her request for broad relief and
    the granting of child support to the respondent. She argues that the
    application judge was without jurisdiction and erred in his assessment of the
    parties requests.

[2]

We dismiss the appeal. The appellant appeared and sought relief from the
    application judge that went well beyond the terms of the separation agreement.
    The respondent sought a new order relating to child support on the basis that
    the separation agreement was spent. In our view, in these circumstances, we see
    no merit in her claim that the court to which they both sought relief is
    without jurisdiction. To the degree that there was any failure to comply with
    the rules, we would apply rule 1(8.1) of the Family law Rules.

[3]

As for the suggestion that the application judge committed any error in
    his findings on the merits, the appellant did have the reasons of the judge on
    these aspects of the application transcribed. As a result, we are not in a position
    to find that he erred in his assessment of the merits.

[4]

For these reasons, the appeal is dismissed.

[5]

Costs to the respondents fixed at $7,500 inclusive of disbursements and
    relevant taxes.