COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ramta, 2017 ONCA 580

DATE: 20170707

DOCKET: C61165

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sunny Ramta

Appellant

Karen Heath and Dirk Derstine, for the appellant

Gavin MacDonald, for the respondent

Heard: June 12, 2017

On appeal from the conviction entered on February 11,
    2013 and the sentence imposed on May 28, 2015 by Justice Irving André of the Superior
    Court of Justice, sitting without a jury, with reasons for sentence reported at
    2015 ONSC 2716.

REASONS FOR DECISION

[1]

The appellant challenges his conviction for attempted robbery on two
    grounds. Firstly, he submits that the trial judge did not adequately take into
    account the frailty of the evidence of the two main Crown witnesses: Sagher, an
    accomplice to the robbery; and Dominici-Perez, a drug trafficker and the
    intended victim. Secondly, he submits that the trial judge subjected the
    appellants evidence to more rigorous scrutiny than that accorded to Crown
    witnesses.

[2]

The victim of the attempted robbery and the appellant shared an interest
    in marijuana and video games. They knew each other from attending school
    together. According to the appellant, the victim was the appellants primary
    supplier of marijuana. The victim denied any involvement in selling drugs.

[3]

The appellant claimed that, on the date of the attempted robbery, he had
    arranged to purchase marijuana from the victim. The appellant arrived at the
    victims home in a car with three others. Sagher was the driver of the vehicle.
    Two of the others went into the house.

[4]

The victim testified that these two others, strangers to him, attempted
    to rob him. The victim was at home with a friend. They both barricaded
    themselves in the victims bedroom, and escaped through a window. The friends
    evidence together with damage to the bedroom door and the window screen
    supported the victims version of the robbers efforts to break into the
    bedroom and the flight out the window. The victim called 911. The victim then
    gave chase to the robbers and came upon the car with Sagher and the appellant
    in it. He recognized the appellant, but did not identify him to police. At the
    same time as the victim was giving a statement to police, the appellant was
    sending him threatening text messages. There were some 15 text messages between
    them in a 51 minute span immediately after the robbery

[5]

The theory of the Crown was that the appellant planned the robbery and
    directed the others to the victims address. The appellant and the victim had
    exchanged text messages earlier in the day.

[6]

Sagher was arrested immediately following the attempted robbery; he
    crashed his car while trying to flee. He pleaded guilty and was awaiting a
    sentencing decision when he testified against the appellant. He initially
    testified that the plan was to buy marijuana and that he did not know who
    planned the visit to the victims home. He said he stayed in the car alone
    while the other three went into the victims home to buy marijuana.

[7]

The Crown successfully applied to cross-examine him on his earlier
    statements to the contrary.

[8]

He had given a statement to police on the night of the robbery telling
    them the appellant planned the robbery. On his guilty plea, he had also stated
    that the appellant planned the robbery and signed a statement to that effect.
    At trial and following cross-examination by the Crown, he acknowledged that
    these were both truthful statements but added that only the other two went into
    the house and that the appellant stayed in the car.

[9]

In cross-examination by defence counsel, he said he did not realize that
    the appellant had planned a robbery until the victim approached his car,
    chasing the other two. He said nothing was said in the car about any plan to
    commit the robbery.

[10]

In re-examination by the Crown, Sagher again agreed that the appellant
    knew the victim and had planned the robbery and reconfirmed the truthfulness of
    his prior statements.

[11]

The trial judges reasons demonstrate that he was well aware of the
    victims initial failure to identify the appellant to the police and the
    inconsistencies in Saghers evidence. The trial judge accepted the victims
    explanation that he was overwhelmed after the incident and concerned about the
    threatening messages. The trial judge also concluded that Sagher tried his best
    to avoid implicating the appellant in the robbery. He accepted Saghers
    evidence that the appellant had orchestrated the plan to rob the victim and
    provided directions to the victims home but remained in the car so that the
    victim would not recognize him.

[12]

This court noted in
R. v. Snyder
, 2011 ONCA 445, 278 O.A.C.
    233, at para. 24 that there is no need for trial judges to recite a
    self-instruction, similar to a jury instruction, about the need for caution
    when assessing the evidence of
Vetrovec
 witnesses. Assuming special
    scrutiny of the victims evidence was warranted, the trial judge pointed to
    several aspects of the evidence that supported his version of the events and
    also explained why he accepted the victims explanation for the victims
    initial failure to identify the appellant to the police.

[13]

As for Saghers evidence, his position as an accomplice to the crime was
    front and centre at the trial. Moreover, the trial judge heard and decided two
    applications by the Crown to cross-examine him. The inconsistencies in his
    evidence were obvious. Some aspects of the Crowns evidence supported elements
    of his testimony (for example, the evidence of the victim, supported by the
    evidence of his friend, that the victim did not know either of the two men who
    entered the victims residence). Further, sentencing submissions had been made
    when he testified. Finally, viewed in the context of the whole of the evidence,
    the trial judges findings that Sagher attempted to avoid implicating the
    appellant but was telling the truth when he adopted his original statement
    accord with common sense.

[14]

By the end of the trial, the substantial issue was whether the appellant
    was a party to the robbery. In oral argument the appellant did not focus on the
    position taken in his factum that the trial judge erred in his treatment of
    Dominici-Perezs evidence. Given the physical evidence, there was no doubt
    there had been a robbery. Dominici-Perez had no personal knowledge of advance
    steps taken by the appellant to arrange the robbery. We are not persuaded that
    the trial judge erred in his treatment of this evidence.

[15]

The record, including the trial judges reasons, does not support the
    second argument that the trial judge applied more rigorous scrutiny to the
    appellants evidence.

[16]

Read fairly in the context of the whole of his reasons, the rhetorical
    questions posed by the trial judge did not reverse the onus of proof. The trial
    judge was merely explaining why common sense dictated certain findings. There
    is nothing here justifying a departure from the deference owed to the trial
    judges findings of credibility. His conclusions accord with common sense and
    the objective circumstances surrounding the event.

[17]

The appellant also appeals from his 20-month sentence for attempted
    robbery. He submits that the trial judge erred by refusing, after deciding that
    a 20-month sentence was appropriate, to give him any credit for four years and eight
    months of house arrest while awaiting trial and sentence.

[18]

The trial judge refused to allow any credit for this time for two
    reasons. Firstly, he indicated at para. 31 of his reasons for sentence that the
    appellant, through his counsel, has repeatedly adjourned the date of his
    sentencing along with his co-accused. He has therefore not shown any urgency in
    having a sentencing hearing as soon as possible. Secondly, he relied on a
    failure on the appellants part to take any steps to vary the conditions of his
    release.

[19]

The fresh evidence that we admit on this appeal shows that the
    appellants trial counsel was suspended from practice for about a year after trial
    but before sentencing. This caused some delay; trial counsel failed to appear
    on five occasions. It would be unfair to visit the consequences of counsels
    suspension upon the appellant. As the Crown indicates, the actions of a
    co-accused also contributed to the need to adjourn the sentencing proceedings.
    The fresh evidence also indicates that the appellant did in fact apply to vary
    his bail terms to allow him to attend school.

[20]

Had the trial judge considered these circumstances, we are satisfied
    they would have had an impact on his decision as to the credit to be accorded
    for pre-sentence house arrest.

[21]

Apart from the issue of credit for the conditions attached to the terms
    of the appellants interim release, the 20-month sentence imposed was fit. We
    do, however, have the benefit of fresh evidence about the appellants
    extraordinary rehabilitative steps since the sentence was imposed. He has
    completed a two-year college program in heating, refrigeration and air conditioning.
    He was on the deans honour list and has tutored other students. He secured
    full-time employment in this field between his first and second years of study.
    He will shortly graduate with a college diploma in construction and engineering
    and will be a licensed gas technician. He hopes to pursue a five-year
    apprenticeship leading to a refrigeration licence and ultimately run his own
    business.

[22]

The appellant was 21 years old at the time of the offence but is now 26
    years old. His rehabilitative steps taken on his own initiative are evidence of
    growing maturity.

[23]

For the reasons expressed by Sharpe J.A. in
R. v. Ghadban
, 2015
    ONCA 760, 342 O.A.C. 177, we are satisfied that this court should recognize the
    extraordinary steps the appellant has taken towards his own rehabilitation. To
    return the appellant to jail now would disrupt that progress. The public
    interest is better served by allowing the appellant to continue his efforts to
    become a productive member of the community rather than by emphasizing
    denunciation and general deterrence. Accordingly, rather than determining the
    appropriate credit for the four years and eight months of house arrest, we
    would vary the sentence imposed to one of time served.

John Laskin J.A.

Janet Simmons J.A.

G. Pardu J.A.


>

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wu, 2017 ONCA 620

DATE: 20170726

DOCKET: C59577& C61217

Strathy C.J.O., Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/

Appellant by way of cross-appeal

and

Shu Qiang Wu

Appellant/

Respondent by way of cross-appeal

Eva Taché-Green for the appellant/respondent by way of
    cross-appeal

Stephane Marinier, for the respondent/appellant by way
    of cross-appeal

Heard: June 21, 2017

On appeal from the conviction entered on July 22, 2014
    and the sentence imposed on October 14, 2014 by Justice Julie A. Thorburn of
    the Superior Court of Justice, sitting without a jury, with reasons reported at
    2014 ONSC 4418 and 2014 ONSC 6000.

REASONS FOR DECISION

[1]

The
    appellant appeals his convictions on three counts of possession of a controlled
    substance for the purpose of trafficking. He asserts that: (a) the verdicts
    were unreasonable; (b) the verdicts were inconsistent with his acquittal on
    counts of producing a controlled substance; and (c) the verdicts were
    inconsistent with the trial judges conclusion that he had no standing on a s. 8
    of the
Canadian Charter of Rights and Freedoms
application.

[2]

The
    Crown seeks leave to appeal the sentence of 8 years imprisonment. It submits
    that the sentence was unfit and asks this court to substitute a 12-year
    sentence. The Crown further submits that the trial judge erred in failing to
    delay Mr. Wus parole eligibility.

A.

Background

[3]

On
    October 19, 2007, police entered a two-storey house in a residential neighbourhood
    in Scarborough, Ontario.

[4]

The
    house contained a clandestine factory for the production of methamphetamine. It
    was capable of producing approximately 12,000 pills an hour. Some 150 kilograms
    of drugs, with a street value of $12 million, were found in the residence. The
    operation was described by a police expert as one of the six largest
    clandestine labs uncovered by Canadian authorities.

[5]

To
    produce this quantity of drugs required large amounts of raw materials,
    production machinery and storage facilities. These were contained in almost
    every room on the ground floor and basement of the house. A powdery dust  a
    by-product of the production and pill-making operation  was evident throughout
    the house.

[6]

A
    table in the dining room was set for a meal for two. There were two bowls of
    rice on opposite sides of the table and a plate of food in between.

[7]

The
    appellant was the only person in the house at the time police entered. Another
    individual, Wan Shun Ling, had been arrested a few minutes earlier, after he
    left the house and went to his car, located in the driveway. Mr. Ling was tried
    separately, along with three others. Three of the four were convicted of
    production and possession for the purposes of trafficking MDMA, methamphetamine
    and ketamine:
R. v. Ling
, 2012 ONSC 654, affd 2014 ONCA 808.

[8]

The
    Crown asserted that the appellant was a participant in the operation, had
    knowledge of the drugs and was jointly in control of them. He was convicted of
    possession for the purpose of trafficking and acquitted on the production
    charges.

B.

The Conviction Appeal

(1)

Unreasonable verdict

[9]

The
    evidence against the appellant was circumstantial. He acknowledges that the
    test is whether the trier of fact, acting judicially, could reasonably be
    satisfied that the accuseds guilt was the only reasonable conclusion available
    on the totality of the evidence:
R. v. Villaroman
, 2016 SCC 33, [2016]
    1 S.C.R. 1000, at paras. 55-56.

[10]

The trial judge
    properly identified the elements of the offence, noting that the Crown was
    required to establish that the appellant knew of the presence of the drugs and
    had control over them. She found that anyone in the house for any period of
    time would have known that a serious drug operation was taking place, by virtue
    of the fact that: (a) there were 150 kilograms of methamphetamine, MDMA and
    ketamine in plain view in many different rooms on the ground floor and
    basement; (b) there was equipment related to drug production in plain view; (c)
    there had been no attempt to hide or obstruct the drugs from view; (d) there
    was a powdery residue throughout the house; and (e) there were strong odours of
    licorice and urine  characteristic of drug production  throughout the house.

[11]

The trial judge noted
    that the appellants purse was found in the living room, and in order to pass
    from there to the basement, he would have had to pass by the family room, which
    was full of large trays of drugs and drug paraphernalia, in plain view. She
    found, as a fact, that the appellant
had knowledge
of the massive drug manufacturing operation being carried out in the residence
    where he was found.

[12]

The trial judge found
    that the appellant also had
control
over the drugs
    located in the home on the basis that: (a) he was there for at least half an
    hour; (b) he was there with Mr. Ling, who was found to have been part of the
    drug operation; (c) after Mr. Ling left the house and went to the car, the
    appellant remained alone in the home for about five minutes; (d) important
    documents belonging to the appellant were found in the house; and (e) there was
    evidence in the appellants possession that he had bought US $340,000
in cash
, using over CDN $380,000
in
    cash
, very near the time that those operating the drug factory had
    acquired chemical supplies some months earlier.

[13]

In finding that the
    appellant had the ability to exercise some measure of control over or right to
    control the drugs, the trial judge stated, [i]t is highly unlikely that
    someone who had nothing to do with this large scale drug operation would be
    invited into the home to see what was so openly being carried on, particularly
    at or around the time that some of those drugs were being moved and [i]t is
    even less likely that that person would be left alone in the home with the
    drugs, thereby putting the drug operation at risk.

[14]

In
Villaroman
,
    at para. 56, the Supreme Court of Canada quoted with approval from the decision
    of the Alberta Court of Appeal in
R. v. Dipnarine
, 2014 ABCA 328, 584
    A.R. 138, at para. 22, stating that,

[c]ircumstantial evidence does not have to totally exclude
    other conceivable inferences and that a verdict is not unreasonable simply
    because the alternatives do not raise a doubt in the jurys mind. Most
    importantly, [i]t is still fundamentally for the trier [of] fact to decide if
    any proposed alternative way of looking at the case is reasonable enough to
    raise a doubt.

[15]

It is also important
    to note that where evidence is circumstantial, the standard of proof beyond a
    reasonable doubt applies only to the final evaluation of innocence or guilt by
    the trier of fact. It does not apply piecemeal to individual items of evidence.
    Here, having regard to the manner in which the case was put to us by the
    appellant, the words of this Court in
R. v. Uhrig
, 2012 ONCA 470, at
    para. 13 are particularly apt:

When arguments are advanced, as here, that individual items of
    circumstantial evidence are explicable on bases other than guilt, it is
    essential to keep in mind that it is, after all, the cumulative effect of all
    the evidence that must satisfy the standard of proof required of the Crown.
    Individual items of evidence are links in the chain of ultimate proof:
R.
    v. Morin
, [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are
    not to be examined separately and in isolation, then cast aside if the ultimate
    inference sought from their accumulation does not follow from each individual
    item alone. It may be and very often is the case that items of evidence adduced
    by the Crown, examined separately, have not a very strong probative value. But
    all the evidence has to be considered, each item in relation to the others and
    to the evidence as a whole, and it is all of them taken together that may
    constitute a proper basis for a conviction:
Cote v. The King
(1941),
    77 C.C.C. 75 (S.C.C.), at p. 76.

[16]

Further, when
    considering the reasonableness of the verdicts, and the inferences drawn by the
    trial judge, this court is entitled to consider that the appellant did not
    testify and did not adduce evidence to support any other reasonable inference
    consistent with his innocence. See
R. v. Dell
(2005), 194 C.C.C. (3d)
    321 (Ont. C.A.).

[17]

In this court, the
    appellant re-states the submission made before the trial judge, namely that the
    evidence supported an equally reasonable inference that he was in the premises
    for an innocent purpose, thereby raising reasonable doubt. He points to the
    absence of evidence that he was in any location in the house other than the
    living room, where his purse was found, and the bottom of the stairs to the
    basement, where he was found when police entered. He advances the theory that
    he may have simply been a visitor, possibly to have a meal with Mr. Ling, and
    never saw evidence of drugs, or noticed or appreciated the significance of the odours
    of the drug production, or the powdery dust.

[18]

Bearing in mind the
    principles expressed above, we do not accept this submission. In our view, the
    evidence, taken together and viewed in its totality and not in isolation,
    provided a basis on which the trial judge could properly infer knowledge and
    control of the drugs sufficient to establish the appellants possession of the
    drugs for the purpose of trafficking. As the Supreme Court said in
Villaroman
,
    it was for the trial judge to determine whether the alternative inferences
    proposed by the appellant were reasonable enough to raise a doubt. We see no
    error in her conclusion that they were not.

[19]

We reject the
    appellants submission that the trial judge improperly relied on the evidence
    of the Crowns expert, whose report was introduced on consent and subject to
    cross-examination, that the nature of clandestine drug operations made it
    unlikely that the appellant would have been in the residence for an innocuous
    purpose.

[20]

Those inferences were
    open to her. In view of the length of time that the appellant was in the house,
    and the reasonable inference that only a trusted person would have been allowed
    to enter an active and very substantial drug laboratory operating throughout
    the house, it is our view that the evidence supported the inference drawn by
    the trial judge and was inconsistent with any other rational conclusion. A
    similar inference was drawn in
R. v. Fredericks
, 1999 CanLII 949 (Ont.
    C.A.).

[21]

As well, the appellants
    purchase of a large sum of U.S. dollars, in cash and using cash, is obviously
    consistent with his participation in the operation of a cash business like drug
    trafficking. There was evidence that the drug factory had been operating for
    some time and the timing of the cash purchase was consistent with purchase of
    chemicals by those involved in the operation of the factory.

(2)

Inconsistent verdicts

[22]

Nor do we accept the
    appellants submission that the finding of guilt in relation to possession for
    the purpose of trafficking is inconsistent with the appellants acquittal on
    the production counts. The elements of the offences are different and the trial
    judge found that there was no evidence that the appellant was involved in the
    manufacturing process, or in offering to produce the drugs. The verdicts are
    capable of being reconciled on this basis.

(3)

Inconsistent with s. 8 decision

[23]

Finally, we do not
    agree that the trial judges ruling that the appellant lacked standing to bring
    the s. 8 application in relation to the search of the house was inconsistent
    with her conclusion that he had constructive possession of the drugs.

[24]

A reasonable
    expectation of privacy in the residence requires evidence of a factual
    foundation different from that required to support constructive possession.
    There was little evidence of any connection between the appellant and the
    residence, other than the fact that he was found there and had some personal
    effects there. Not surprisingly, the trial judge found that he had no
    reasonable expectation of privacy in the home, for the purposes of the s. 8
    analysis. On the other hand, the trial judge identified a number of features of
    the evidence that established both knowledge of the presence of drugs and the
    exercise of control of the drugs, sufficient to establish constructive
    possession.

[25]

For these reasons, the
    conviction appeal is dismissed.

C.

The Cross-Appeal: Sentence

[26]

The Crown seeks leave to appeal the sentence of 8 years, which it
    characterizes as manifestly unfit. It submits the trial judge also erred in
    failing to delay Mr. Wus parole eligibility until he had served half his
    sentence.

[27]

Absent an error in principle, the failure to consider a relevant factor
    or an overemphasis of appropriate factors, an appellate court should not vary a
    sentence unless the sentence is demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[28]

The Crown submits that the sentence is manifestly unfit because it
    fails to reflect the gravity of the possession of a massive quantity (150 kilograms)
    of methamphetamine, MDMA and ketamine for the purpose of trafficking. It also
    argues that the sentence gave insufficient weight to the gravity of the offence,
    having regard to the quantity and type of the drug. It emphasizes the harmful
    nature of methamphetamine and suggests that the sentence should be in line with
    sentences imposed for cocaine, which it submits are in the range of 7 to 12
    years, even for a few kilograms. It points to the street value of the drugs,
    which it puts in the range of $12 million, if sold in pill form.

[29]

As it did at trial, the Crown submits that a sentence of 12 years
    would have been appropriate.

[30]

We would not give effect to the Crowns submissions. It is not
    suggested that the trial judge failed to consider a relevant factor. Indeed,
    she considered all relevant factors, including the gravity of the offence and
    the large quantity of dangerous drugs. She also identified the range of
    sentence for this offence as being 6 to 12 years, consistent with the Crowns
    position. She identified and considered cases in which sentences in that range
    had been imposed.

[31]

The trial judge applied the principle of parity  that judges are
    required to impose similar penalties for similar offences or offences of a
    similar nature involving similar offenders. Here, the trial judge considered
    the sentences imposed on three other offenders who were arrested in the same
    operation on the same date.

[32]

Those accused were sentenced for both production of the drugs and
    for possession for the purpose of trafficking. Two received sentences of 8
    years on the possession for the purpose of trafficking charges, concurrent with
    14 years for production; the third, Mr. Ling, received a sentence of 10 years
    on the possession for the purpose of trafficking counts, concurrent with a
    sentence of 16 years for production.

[33]

The Crown highlights the fact that, unlike the other accused, the
    appellant was on parole at the time, after receiving a two-year sentence for possession
    of marijuana for the purpose of trafficking. While this is true, the evidence
    established that the other individuals were more involved in the operation than
    the appellant. We would not interfere with the sentence imposed.

[34]

Nor would we interfere with the trial judges decision not to
    increase the period of parole ineligibility. The Crown conceded that such an
    order is rare and the trial judge properly characterized it as exceptional. The
    Crown simply failed to discharge its burden of proof on the issue.

[35]

While we grant leave to appeal sentence, we dismiss the sentence
    appeal.

George R. Strathy C.J.O.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Rainy River (Town) v. Olsen, 2017 ONCA 605

DATE: 20170720

DOCKET: C63224

Sharpe, Lauwers and Roberts JJ.A.

BETWEEN

The Corporation of the Town of Rainy River and
    Deborah Ewald

Applicants (Appellants)

and

Paul Olsen

Respondent (Respondent)

Allan D. McKitrick, for the appellant

No one appearing for the respondent

Heard: July 17, 2017

On appeal from the order of Justice Helen M. Pierce of
    the Superior Court of Justice, dated December 20, 2016, with reasons reported
    at 2016 ONSC 8009.

REASONS FOR DECISION

[1]

The Town of Rainy River
    and its mayor, Deborah Ewald, brought an application

to stop the
    respondent, Paul Olsen, from continuing to harass and defame the mayor, members
    of Town council, and staff. The application was brought under r. 14.05(3)(h) of
    the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194,
on the
    basis that it was unlikely that there will be any material facts in dispute.
    There were no facts in dispute since Mr. Olsen declined to participate and the
    only evidence before the application judge was provided by representatives of
    the Town. However, the application judge refused to grant any of the relief
    sought.

[2]

On this appeal,
    counsels focus was on whether the application judge erred in refusing to issue
    a
declaration that Mr. Olsens conduct
    breached the Towns Violence Free in the Workplace Policy and the Harassment
    Policy under the
Occupational Health and Safety Act
, R.S.O. 1990, c. O.1, on the basis that the Town has
    a duty to protect its workers under the terms of the Act.

[3]

The application judge
    found, at para. 35, that neither the
Occupational Health and Safety
    Act
nor
the Towns policy under it had any application to Mr.
    Olsen, since the harassment occurred outside the workplace and Mr. Olsen is not
    a worker or co-worker as defined by the Act. We see no error in this
    determination.

[4]

Counsel then focused on
    the application judges refusal to issue a permanent injunction restraining Mr.
    Olsen from making
in any manner
    whatsoever directly or indirectly, any statements or comments about Deborah
    Ewald or any other town councillor, employee or agent that are defamatory
    and/or made with malice or ill-will. Counsel expressed particular concern
    about personally harmful effects of the dissemination of emails that are
    malicious vexatious, harassing, defamatory and/or abusive.

[5]

The application judge
    pointed out, at para. 60, that a permanent injunction would have been
    appropriate if there had been a verdict of defamation or a final judgment in
    defamation, but there has been none here. She noted that the court will award a
permanent injunction after there has been a finding
    of defamation, as noted in
Astley v. Verdun
, 2011 ONSC 3651, 106 O.R. (3d) 792, where Chapnik J.
    wrote, at para. 21:

Permanent injunctions have consistently been ordered after
    findings of defamation where either: (1) there is a likelihood that the
    defendant will continue to publish defamatory statements despite the finding
    that he is liable to the plaintiff for defamation; or (2) there is a real possibility
    that the plaintiff will not receive any compensation, given that enforcement
    against the defendant of any damage award may not be possible. [Citations
    omitted.]

[6]

Such injunctions are not at large,
    as the appellants sought in this case, but are invariably linked to a finding
    that defamation has occurred:

see
Barrick Gold Corp. v. Lopehandia
(2004), 71 O.R. (3d) 416 (C.A.), at para. 78;
Astley
, at para. 35;
Ottawa-Carleton District
    School Board v. Scharf
, [2007] O.J. No.
    3030 (S.C.), at para. 30, aff'd 2008 ONCA 154, leave to appeal refd, [2008]
    S.C.C.A. No. 285.

[7]

As this court noted in
St.
    Lewis v. Rancort
, 2015 ONCA 513,
    337 O.A.C. 15, leave to appeal refd, [2015] S.C.C.A. No. 407, at para. 16:
A broad ongoing injunction is an extraordinary remedy
    which should be used sparingly.  Our society protects freedom of speech as
    essential to democratic life. Restraints on it are carefully limited. One such
    restraint is the common law of defamation. However, the appellants did not seek
    a declaration that Mr. Olsen had defamed the mayor or anyone else, and the
    application judge did not make such a finding. We see no error in her refusal
    to issue a permanent injunction regarding defamatory speech.

[8]

We do not condone any of Mr.
    Olsens abusive misconduct and are sympathetic to the concerns expressed by the
    mayor and others, including their fears that his misconduct could be
    escalating. Mr. Olsen should draw no comfort from our words. Nothing prevents
    the mayor or others from suing Mr. Olsen for defamation on the basis of his
    most recent email transmissions or should he repeat his conduct, subject to
    applicable notice and limitation periods. A definitive finding could well lead
    to a permanent injunction and expose him to penalties for contempt of court if
    he persists, such as imprisonment. Mr. Olsen would be well advised to desist.

[9]

The appellants also
    have available other remedies to restrain Mr. Olsens behavior such as issuing
    a trespass notice under the
Trespass to Property Act
, R.S.O. 1990, c. T.21
,
or pursuing a peace bond under the
Criminal
    Code
.

[10]

Finally, the appellants
    also sought

a permanent order restraining Mr. Olsen from
    maintaining or purporting to maintain, without permission or authority from the
    Town, any Town property, including any municipal streets, sidewalks and road
    allowances. The evidence justifies this relief and the application judge erred
    in not addressing it directly. We allow this aspect of the appeal. Order
    accordingly.

[11]

The appeal is allowed in part with
    costs payable by Mr. Olsen to the appellants in the amount of $2,500.00,
    inclusive of disbursements and taxes, if payment is demanded by the appellants.

Robert
    J. Sharpe J.A.

P.
    Lauwers J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Riddell v. Apple Canada Inc., 2017 ONCA 590

DATE: 20170710

DOCKET: C63349

MacPherson, Cronk and Benotto JJ.A.

BETWEEN

Matthew Riddell

Appellant (Plaintiff)

and

Apple Canada Inc.

Respondent (Defendant)

Matthew Riddell, in person

Monique J. Jilesen and Laurel D. Hogg, for the
    respondent

Heard: July 5, 2017

On appeal from the order of the Divisional Court (Justices
    Harriet E. Sachs, Ian V.P. Nordheimer and Laurence Pattillo), dated September
    26, 2016, with reasons reported at 2016 ONSC 6014.

REASONS FOR DECISION

[1]

The primary issue on this appeal concerns the important question whether
    Deputy Judges of the Small Claims Court have jurisdiction to order the
    pre-trial inspection of property in a proper case.  If such jurisdiction
    exists, the second issue on appeal is whether that jurisdiction was properly
    exercised in the circumstances of this case.

[2]

The Divisional Court, for clear and cogent reasons, answered both of
    these questions in the affirmative.  We agree with the Divisional Courts
    conclusions and its reasoning on these issues.

[3]

Specifically, the
Rules of the Small Claims Court
, O. Reg.
    258/98 (the Rules), especially r. 17.03, do not adequately cover the matter of
    the pre-trial inspection of property.  As a result, where trial fairness and
    the interests of justice, including the expeditious and least expensive
    determination of a case on the merits, so require, Deputy Court Judges of the
    Small Claims Court have jurisdiction under r. 1.03(2) of the Rules to order the
    pre-trial inspection of property by reference to r. 32.01 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194.

[4]

We make two additional comments on this issue.  First, in our opinion, this
    conclusion does not conflict with this courts decision in
Van de Vrande v.
    Butkowsky
, 2010 ONCA 230, 260 O.A.C. 323.

[5]

In
Van de Vrande
, this court held that motions for summary
    judgment based on principles emanating from r. 20 of the
Rules of Civil
    Procedure
are not available under the Rules.  This holding was based on
    the courts conclusion, having regard to r. 12.02 of the Rules (which permits a
    party to bring a motion to strike a document, including a claim, before trial)
    and other factors, that the failure to provide for summary judgment motions
    under the Rules was not a gap in those Rules but, rather, a deliberate
    omission.

[6]

In particular,
Van de Vrande
holds that r. 12.02 of the Rules
    specifically addresses the ability to bring a motion in the nature of those
    contemplated by rr. 20, 21 and 76 of the
Rules of Civil Procedure
.
    Indeed, this court upheld the motion judges dismissal of the claim in
Van
    de Vrande
given her jurisdiction pursuant to r. 12.02.  It therefore could
    not be said that the Rules fail to adequately cover motions for summary
    judgment, so as to trigger the application of r. 1.03(2).

[7]

That is not this case.  Here, the Rules provide, under r. 17.03, for the
    inspection of property by a trial judge of the Small Claims Court, in certain
    circumstances.  They do not adequately address the pre-trial inspection of
    property at the instance of a litigant.  Unlike
Van de Vrande
, we see
    no marker in the Rules of a deliberate legislative decision to omit such a
    procedure.  Rather, as the Divisional Court explained, the failure to provide
    for such pre-trial inspection rights may be viewed as a deficiency in the scope
    and operation of r. 17.03.  In an exceptional case, therefore, resort may be
    had to r. 1.03(2) to cure this deficiency.  See Divisional Court reasons, at
    paras. 17-18.

[8]

Second, and relatedly, we do not accept the appellants submission that the
    recognition of the authority of Deputy Court Judges of the Small Claims Court
    to order the pre-trial inspection of property in exceptional circumstances will
    undermine the mandate of the Small Claims Court to hear and determine in a
    summary way those cases that come before it.  To the contrary, in our view, it
    will assist Deputy Judges of the Small Claims Court to fulfil this important
    function in accordance with s. 25 of the
Courts of Justice Act
, R.S.O.
    1990, c. 43.  In this regard, we agree with, and endorse, the comments of
    Deputy Judge S.M. McGill of the Small Claims Court in
National Service Dog
    Training Centre Inc. v. Hall
, [2013] O.J. No. 3216, at paras. 30-31:

The only Small Claims Court Rule expressly dealing with the
    inspection of personal property is part of the final phase of the process
    trial.  Rule 17.03 authorizes a trial judge to inspect any real or personal
    property in the presence of the parties.  The lack of pre-trial inspections of
    property represents a gap in the Small Claims Court rules that has disparate
    impact on the parties.  The party in possession of the property experiences no
    side effects whatsoever while the non-possessory party has its ability to
    prepare for trial severely restricted.  An unlevel playing field is the result
    which is not just, fair or agreeable to good conscience.

Ordering a pre-trial inspection of the
    property is not hostile to the objectives of the court, it is central to
    principles of natural justice. This is an issue of fundamental fairness which
    the court must be allowed to address in the context of controlling its own
    proceedings and to support the most just, agreeable and in good conscience
    determination
.  A question about the condition of the property cannot be
    determined on the merits if only one side is allowed to collect relevant
    evidence.  A party will not perceive the justice system as fair if it is denied
    the basic opportunity afforded to the other party.
The
    playing field must be level or the administration of justice will fall into
    disrepute
.  [Emphasis added.]

[9]

We are also satisfied that the test for the invocation of the power to
    order the pre-trial inspection of property, set out above, was met here.  In
    this products liability case, the appellant seeks damages for what he alleges
    were personal injuries caused by the negligent manufacture of an iPhone by the
    respondent.  He claims that the iPhone overheated and caused severe burns to
    his right arm.  He declared his intention to lead expert evidence at trial
    regarding the iPhone and the overheating event in order to establish his case.
    Yet he refused, absent a court order, to permit an independent third party
    expert to inspect the iPhone prior to trial, at no cost to him, to assist the
    trial judge in determining the central matter in dispute between the parties.

[10]

In these circumstances, Deputy Judge Stabiles impugned pre-trial
    inspection order was entirely justified.  Trial fairness, the interests of
    justice and the proper exercise of the trial judges functions under r. 17.03
    of the Rules all compelled this result.

[11]

The appeal is dismissed.  Given the novel and public interest dimensions
    of the issues raised on appeal, this is not an appropriate case for an award of
    costs.

J.C. MacPherson J.A.

E.A. Cronk J.A.

M.L. Benotto J.A.