COURT OF APPEAL FOR ONTARIO

CITATION: George v. Anishinabek
    (Police Service), 2014 ONCA 581

DATE:  20140815

DOCKET: C57883

Doherty, Cronk and Rouleau JJ.A.

BETWEEN

Derek George

Respondent

and

Police Governing Authority  Anishinabek Police
    Service

Appellant

and

Chief John Syrette
    Anishinabek Police Service

Appellant

David G. Cowling and Alex Sinclair, for the appellants

Leo A. Kinahan, for the respondent

Heard: April 23, 2014

On appeal from the order of the Divisional Court (Justices
    Anne M. Molloy, Ian V. B. Nordheimer and Barbara A. Conway), dated March 6,
    2013, with reasons reported at 2013 ONSC 1417.

Doherty J.A.:

I

Overview

[1]

The appellants appeal to this court pursuant to leave granted on October
    30, 2013.

[2]

The respondent, Derek George, a constable employed by the appellant,
    Anishinabek Police Service (APS), brought an application for judicial review
    in the Divisional Court.  He sought an order quashing a decision of the Police
    Governing Authority (PGA) extending the time for service upon Mr. George of a
    notice of a discipline hearing into allegations of discreditable conduct made
    against Mr. George by his chief of police.

[3]

Mr. George was successful in the Divisional Court.  That court held that
    the failure to give him notice of the application to extend time for the
    service of the notice breached the applicable standards of procedural
    fairness.  The court quashed the order granting the extension and directed a
    new hearing before different members of the PGA.  The court also ordered that
    Mr. George be paid his salary for the period during which he had been suspended
    without pay.

[4]

On appeal, the appellants contend that the Divisional Court had no
    jurisdiction to hear the application for judicial review.  They argue, relying
    on
Weber v. Ontario Hydro
, [1995] 2 S.C.R. 929, and its progeny, that
    the dispute over Mr. Georges entitlement to notice of the application to
    extend time for service of notice of the discipline proceedings is a dispute relating
    to discipline, a matter squarely within the ambit of the collective agreement
    between APS and Mr. Georges union.  The appellants contend that only an arbitrator
    appointed under the terms of the collective agreement has jurisdiction to decide
    whether Mr. George was entitled to notice.

[5]

The appellants acknowledge that the Divisional Court cannot be faulted
    for assuming jurisdiction as the appellants did not raise the jurisdictional
    argument in the Divisional Court.  That argument was made for the first time on
    the application for leave to appeal to this court.

[6]

The appellants also submit, assuming the Divisional Court had
    jurisdiction, that it erred both in finding procedural unfairness and awarding
    what the appellants characterize as damages for the alleged breach.

[7]

Counsel for Mr. George submits that this court should not hear the
    jurisdictional argument because it was not raised in the Divisional Court.  He
    further submits that the jurisdictional argument fails as the order granting
    the extension of time to serve Mr. George with the notice of the discipline
    hearing was not arbitrable under the terms of the collective agreement and was,
    therefore, properly subject to judicial review.  On the merits, counsel argues that
    the Divisional Court was correct in holding that the respondent was denied
    procedural fairness when he was not given notice and that the remedial powers
    on the judicial review application extended to an order requiring the APS to
    pay Mr. George his salary for the time period during which he was improperly suspended
    without pay.

[8]

Although an appellate court is understandably reluctant to consider an
    issue not raised in the court below, I would address the merits of the appellants
    jurisdictional argument.  I would do so for three reasons.  First, it is
    potentially determinative of the appeal.  Second, apart from the collective
    bargaining agreement itself, the terms of which are not in dispute, the
    jurisdictional argument can be fully considered without adding anything to the
    record that was before the Divisional Court.  This court is not being asked to
    address a new issue on a record that does not speak to that issue.  Nor is this
    court being asked to augment the existing record with untested contentious
    evidence relating to the new issue.  Third, addressing the merits of the
    jurisdictional issue for the first time in this court does not prejudice Mr.
    George in any manner that cannot be properly addressed by an appropriate cost
    order.

[9]

As to the merits of the jurisdictional argument, I would hold that the
    Divisional Court had no jurisdiction to consider the issue raised on Mr.
    Georges judicial review application.  Under the authority of
Weber
,
    an arbitrator appointed under the collective agreement had exclusive
    jurisdiction to determine whether Mr. George was entitled, as a matter of
    procedural fairness, to notice of the application for the extension of time to
    bring discipline proceedings against him.  I would allow the appeal on that
    ground alone and would not address the other issues.

II

The employer-employee relationship

[10]

The
    resolution of the jurisdictional argument requires an understanding of the employer-employee
    relationship between Mr. George and the APS, particularly as it concerns
    discipline-related matters.  That relationship is forged by the combination of
    a collective agreement, the APS
Code of Conduct and Professionalism
(the
Code
) and applicable provincial and federal legislation.

[11]

The
    APS is an independent Aboriginal police service created in 1992 by a tripartite
    agreement among the federal and provincial governments and several First
    Nations in Ontario.  The APS mandate includes the provision of effective, efficient
    and culturally-sensitive police services within APS territories.  The tripartite
    agreement provides for the creation of the PGA.  Each of the First Nations
    signatories to the agreement is represented on the PGA.  The PGA is responsible
    for administering the APS and is given various responsibilities under Article 5
    of the tripartite agreement, including the responsibility to:

maintain an APS Code of Conduct to deal with discipline matters
    for officers and civilian staff

[12]

Mr.
    George has been employed as a constable by APS since 1995. Constables employed
    by APS are not police officers within the definition in the
Police Services
    Act
, R.S.O. 1990, c. P.15, s. 2(1), although they are appointed as First
    Nations Constables with authority to perform specified duties:  s. 54(1).
    Constables employed by the APS have the powers of a police officer when
    performing those specific duties:
s. 54(3).
    The disciplinary procedures set out in Part V of the
Police
    Services Act
, and applicable to police
    officers, do not apply to
constables employed by the APS.

[13]

The
    PGA is a party to a collective agreement with the Public Service Alliance of
    Canada (the union).  Article 2 of that agreement makes the union the
    exclusive bargaining agent with respect to all matters involving employees of
    the APS, subject to the exceptions identified in Article 2.  Mr. George as a
    constable is an employee for the purpose of the collective agreement and is
    part of the bargaining unit.

[14]

Article
    4 of the collective agreement, the management rights provision, recognizes
    that it is the exclusive function of the PGA [t]o maintain order, discipline
    and efficiency.  Article 4.02 reads:

The Police Governing Authority maintains the right to
    discipline its employees for just cause, following the principles of progressive
    discipline.  A claim by an employee that he/she has been disciplined without
    just cause may be the subject of a grievance in accordance with the grievance
    procedure outlined in this Agreement.

[15]

The
    grievance procedure referred to in Article 4.02 is detailed in Article 54 of
    the collective agreement.  Article 54.01 defines grievance:

For the purpose of this Agreement, a grievance or complaint is
    defined as a difference arising either between an employee and the Police
    Governing Authority or between the parties hereto relating to the
    interpretation, application, administration or alleged violation of this Agreement

[16]

Article
    54 goes on to describe a two-step procedure applicable to individual
    grievances.  The first step involves the employees immediate supervisor and
    the second involves the police chief.  Article 54.15 provides that if the
    police chief renders a decision that is unsatisfactory to the employee, the
    employee may refer the matter to arbitration.

[17]

The
    collective agreement is governed by the provisions of the
Canada Labour
    Code
, R.S.C. 1985, c. L.2.  Section 57(1) requires that parties to a
    collective agreement resolve disputes concerning the application,
    interpretation, administration or alleged contravention of the agreement by
    arbitration.  Section 58(1) contains a privative clause declaring that every
    order or decision of the arbitrator is final and shall not be questioned or
    reviewed in any court.

[18]

The
    PGA policy governing the disciplining of employees, including constables, is
    found in the
Code
.  The
Code
defines misconduct for the
    purposes of discipline and establishes three procedures for addressing discipline-related
    complaints.  Of the three, a formal discipline hearing before a person
    designated by the chief of police is reserved for more serious allegations.

[19]

An
    employee who is found to have engaged in misconduct is subject to various
    penalties under the
Code
,
including dismissal, demotion and suspension.  The discipline decision made at
    the formal discipline hearing is subject to automatic review by the discipline
    committee of the PGA.  If the employee is dissatisfied with the decision of the
    discipline committee, he or she may request a further appeal before the PGA as
    a whole.  The PGA may or may not entertain that further appeal.

[20]

Under
    the
Code
, the employee who is the subject of the discipline proceedings
    is entitled to notice of the formal hearing.  That notice must be served within
    six months of when the police or the PGA became aware of the relevant facts.
    The PGA can extend the six-month period for an unspecified further time if
    satisfied that it was reasonable under the circumstances to delay serving the
    notice.  An extension can be granted even after the expiry of the six-month
    time period.

[21]

The
    terms of the
Code
referable to discipline procedures and the
    provisions of the collective agreement referable to disciplinary decisions must
    be read together and as a whole:  see
McDonald v. Anishinabek Police
    Service
(2006), 83 O.R. (3d) 132 (Div. Ct.), at para. 36;
Anishinabek
    Police Service v. Public Service Alliance of Canada
, 2012 ONSC 4583, [2012]
    O.J. No. 3824 (Div. Ct.), at paras. 31-33 (
McCue
).  Disciplinary
    proceedings can potentially proceed through the following steps:

·

an allegation of misconduct is made against the employee and a
    notice of hearing is served (the
Code
);

·

a formal discipline hearing is held before a person appointed by
    the chief (the
Code
);

·

a disposition by that hearing officer is made (the
Code
);

·

the discipline committee of the PGA reviews the disposition made
    by the hearing officer (the
Code
);

·

the PGA may consider an appeal from the discipline committee (the
Code
);

·

the employee grieves the discipline decision to his or her
    immediate supervisor (article 54.06 of the collective agreement);

·

the employee further grieves to the police chief (article 54.07
    of the collective agreement); and

·

the employee goes to arbitration (article 54.15 of the collective
    agreement).

III

The proceedings against Mr.
    George

[22]

In July 2011, while Mr. George was on duty, he was allegedly involved in
    a physical altercation with his son.  His son suffered significant injuries.  Police
    Chief Syrette initiated an investigation into the events.  On July 28, 2011, he
    suspended Mr. George with pay and notified him of the ongoing criminal
    investigation into the altercation with his son.  The notice also stated:

The criminal allegations against you are serious in nature.
    The investigation into these allegations clearly supports the commencement of
    proceedings under the
Anishinabek Police Service Code of Conduct and
    Professionalism
.

[23]

The
    criminal investigation was completed in October 2011 and Mr. George was advised
    that criminal charges would not be laid against him.  As of November 4, 2011,
    Mr. George, who remained on paid suspension, was allowed to perform
    administrative duties.

[24]

On
    September 20, 2012, more than a year after the investigation into Mr. Georges
    altercation with his son had commenced, Chief Syrette applied for and obtained
    permission from the PGA to serve Mr. George with a notice of a formal
    discipline hearing.  Mr. George did not receive notice of the Chiefs application
    and did not have an opportunity to convince the PGA that it should not exercise
    its powers to allow service of the notice more than six months after the Chief
    had commenced his investigation.

[25]

On
    September 21, 2012, Mr. George was served with a notice of hearing setting out
    the particulars of three allegations of misconduct under the
Code
.  He
    was also served with a notice of suspension without pay effective that day.
    The discipline hearing did not take place.  Mr. George commenced a judicial
    review application challenging, among other things, the failure to give him
    notice of the application to extend the six-month limitation period.

IV

The application of
Weber

[26]

Workplace-related
    disputes involving an employer and employee may give rise to claims and
    potential proceedings under a collective agreement, labour relations statutes, human
    rights legislation, the common law and the
Charter
.  Those sources may
    provide access to various forums in which the same factual claims may be
    asserted.  Questions as to the appropriate forum inevitably arise.  In
Weber
,
    at paras. 50-51, 67, and again, in
Regina Police Assn. Inc. v. Regina
    (City) Board of Police Commissioners
, 2000 SCC 14, [2000] 1 S.C.R. 360, at
    paras. 22-25, the Supreme Court of Canada came down firmly in favour of the
    exclusive jurisdiction model.  Under that model, if controlling legislation
    gives jurisdiction over disputes that arise under a collective agreement to
    arbitrators appointed under that agreement or to a specific statutorily-created
    body, that entity has exclusive jurisdiction to determine all disputes arising
    from the collective agreement.
[1]

[27]

In
Weber
, s. 45(1) of the
Labour Relations Act
, R.S.O. 1990, c.
    L.2, gave arbitrators appointed under the collective agreement the authority to
    decide all questions arising from the interpretation, application,
    administration or alleged violation of the agreement.  Applying the exclusive
    jurisdiction model, McLachlin J. held that the language of s. 45(1) of the
Labour
    Relations Act
effectively removed disputes arising from the collective
    agreement from the jurisdiction of the courts.  Section 45(1) of the
Labour
    Relations Act
is for present purposes indistinguishable from s. 57(1) of
    the
Canada Labour Code
, the
    statute that applies to this collective agreement
.

[28]

A
    determination of whether a dispute arises out of a collective agreement for the
    purposes of the
Weber
analysis requires, first, a consideration of the
    nature of the dispute and, second, an examination of the ambit of the
    collective agreement.  This two-step inquiry is described in
Regina Police
    Assn.
, at para. 25:

In considering the nature of the dispute the goal is to determine
    its essential character.  This determination must proceed on the basis of the
    facts surrounding the dispute between the parties, and not on the basis of how
    the legal issues may be framed:  see
Weber
,
supra
, at para.
    43.
Simply, the decision-maker must determine whether, having examined the
    factual context of the dispute, its essential character concerns a subject
    matter that is covered by the collective agreement.  Upon determining the
    essential character of the dispute, the decision-maker must examine the
    provisions of the collective agreement to determine whether it contemplates
    such factual situations.
It is clear that the collective agreement need
    not provide for the subject matter of the dispute explicitly.  If the essential
    character of the dispute arises either explicitly, or implicitly, from the
    interpretation, application, administration or violation of the collective
    agreement, the dispute is within the sole jurisdiction of the arbitrator to
    decide   [Emphasis added.]

[29]

The
    genesis of the dispute between Mr. George and the appellants lies in the alleged
    misconduct of Mr. George while on duty in July 2011 and the Chiefs investigation
    of that conduct with a view to commencing discipline proceedings.
    Specifically, Mr. George takes issue with the fairness of the way in which the Chief
    applied for and obtained permission from the PGA to serve him with a notice of
    the discipline hearing beyond the six-month limitation period referred to in
    the
Code
.  Viewed in its factual context, the essential character of
    the dispute between Mr. George and the appellants can only be described as
    disciplinary in nature:  see
Regina Police Assn.
, at paras. 28-29.

[30]

The
    second component of the
Weber
analysis, the requirement that the
    dispute concern a subject matter covered by the collective agreement, is the
    ground upon which counsel for Mr. George takes his stand on the jurisdictional
    issue.  He submits that even if the dispute relates to discipline, the dispute
    concerns the proper procedure to be followed by the Chief and the PGA when
    implementing the discipline procedure described in the
Code
.  He argues
    that the discipline procedure described in the
Code
is different from,
    and preliminary to, any discipline procedure covered by the collective
    agreement.  Counsel distinguishes between disciplinary decisions and processes
    taken under the
Code
and those taken pursuant to the management rights
    clause in the collective agreement.  According to this argument, only the latter
    fall within the ambit of the collective agreement under the
Weber
analysis.

[31]

I
    cannot accept counsels bifurcated concept of discipline-related disputes.
    Under the collective agreement, the union representing Mr. George has agreed
    that the PGA, as part of its management power, has the authority to discipline
    Mr. George for work-related conduct.  The PGA in turn has agreed that any
    disputes over discipline shall be subject to the grievance provisions in the
    collective agreement.

[32]

The
    union is not a party to the
Code
.  The PGA, as obliged by the terms of
    the tripartite agreement, has established the
Code
reflecting the
    policies and procedures it will follow in the exercise of its discipline
    powers.  However, the authority to discipline Mr. George for work-related
    misconduct lies in the collective agreement.  The terms of the
Code
are the means by which the PGA has chosen to exercise its rights under the collective
    agreement to maintain order, discipline and efficiency.  Steps taken by the PGA
    pursuant to the discipline-related policies and procedures in the
Code
are no less an exercise of management powers under the collective agreement
    than is the ultimate determination to discharge or otherwise discipline an
    employee at the end of the process.

[33]

Counsel
    for Mr. Georges attempt to distinguish between discipline-related proceedings
    under the
Code
and discipline-related proceedings under the collective
    agreement would significantly undermine the policy animating the choice of the
    exclusive jurisdiction model in
Weber
.  As McLachlin J. said, at para.
    46, in rejecting a concurrent jurisdiction model:

The final difficulty with the concurrent actions model is that
    it undercuts the purpose of the regime of exclusive arbitration which lies at
    the heart of all Canadian labour statutes.  It is important that disputes be
    resolved quickly and economically, with a minimum of disruption to the parties
    and the economy.  To permit concurrent court actions whenever it can be said that
    the cause of action stands independent of the collective agreement undermines
    this goal

[34]

In
    my view, allowing Mr. George to challenge, by way of judicial review, what are
    essentially interim rulings made in the course of his discipline proceedings, would
    have the same negative consequences as would the adoption of the concurrent
    jurisdiction model.  Judicial review of decisions made during the
Code
stage of the discipline process would potentially delay and fracture the
    hearing and resolution of discipline-related matters.  Placing all
    discipline-related matters within the exclusive jurisdiction of the arbitration
    process in the collective agreement would allow a single entity to oversee all
    complaints made by the employer or employee at the various stages of the discipline
    process.  The arbitrator, in exercising that authority, would be in a position
    to resolve disputes quickly and economically with a minimum of disruption to
    the parties and the economy.

[35]

Counsel
    for Mr. George referred to
McDonald
and
McCue
,
two
    decisions of the Divisional Court involving the APS and discipline-related
    disputes with constables employed by the APS.  He submits that these cases
    support his contention that there is a distinction between discipline-related
    matters under the
Code
, which are subject to judicial review, and discipline-related
    matters taken under the auspices of the collective agreement, which are subject
    to the grievance procedure in the collective agreement.

[36]

I
    agree that both cases are helpful in describing the employer-employee
    relationship between a constable and the APS.  I also agree that both cases
    recognize that the discipline-related process involves both procedures
    described in the
Code
and the grievance procedure provided for in the
    collective agreement.  However, neither case addresses the jurisdictional
    argument made by the appellants here.  There is no mention of
Weber
or the exclusive jurisdiction model analysis found
    in
Weber
in either
    case
.

[37]

In
McDonald
, a
    constable employed by the APS was dismissed for misconduct.  He commenced a
    judicial review application alleging procedural unfairness.  At the same time,
    he brought an application before the Canada Industrial Relations Board
    (Board) under the
Canada Labour Code
.  He proceeded before the Board first.

[38]

The Board dismissed the
    employees application holding that as there was no collective agreement in
    place when the employee was dismissed, the Board had no jurisdiction to hear
    the complaint:
McDonald
,
    at paras. 14-19.  Although the Boards decision was initially appealed, that
    appeal was abandoned.

[39]

The employee then
    proceeded with the judicial review application in the Divisional Court.  No one
    argued, understandably in light of the outcome before the Board, that
Weber
applied to oust the Divisional Courts jurisdiction
    on the judicial review application.  In the Divisional Court, the argument
    focused on whether the decision made by the employer under the auspices of the
Code
was the kind of decision that was challengeable by
    way of judicial review:
McDonald
, at paras. 38, 49, 55, 68-80.  That issue is very
    different from, and has no relevance to, the jurisdictional argument raised by
    the appellants in this case.

[40]

McCue
involved
    judicial review applications brought by the employer from arbitration awards
    made under the authority of the grievance provisions in the collective
    agreement.  The employer had taken discipline proceedings under the
Code
against an employee.  The adjudicator appointed
    under the
Code
imposed
    certain penalties.  The employee grieved those penalties under the terms of the
    collective agreement.  The employer argued before the arbitration boards that they
    had no jurisdiction to hear the grievances and were bound by the decisions
    reached by the adjudicator appointed under the
Code
.  The arbitration boards rejected this submission
    and the employer sought judicial review of those decisions.  The Divisional
    Court rejected the employers contention that the arbitration boards were bound
    by the findings or determinations made by the adjudicator appointed under the
Code
.

[41]

The exclusive
    jurisdiction analysis in
Weber
had no
relevance in
McCue
.  That case involved applications for judicial
    review from the decisions of two arbitration boards.
Weber
is not concerned with judicial review of
    arbitrators decisions, but rather with the selection of the appropriate forum
    in which to conduct the initial proceeding.

[42]

One passage from
McCue
does, however, offer some support for the
    appellants position on this appeal.  The court said, at para. 45:

APS adopted a code of
    conduct as it was required to do by the tripartite agreement.  APS also entered
    into a collective agreement with the Union that provides the right to arbitrate
    discipline and dismissal decisions. These separate provisions have to
    co-exist.  APS cannot avoid its contractual obligations under the collective
    agreement by reliance on the tripartite agreement.  The Union is not a party to
    the tripartite agreement, and unilateral action by the APS in entering into
    that agreement cannot oust the right of the Union to pursue a grievance under
    the collective agreement.

[43]

I
    think the above passage correctly describes the relationship between the
Code
and the collective agreement.  Once it is acknowledged that nothing in the
Code
can detract from the unions right to pursue a discipline-related grievance
    under the collective agreement, it follows applying the exclusive jurisdiction
    analysis in
Weber
that the forum identified in the collective
    agreement has exclusive jurisdiction to hear discipline-related complaints.

V

Conclusion

[44]

I
    would allow the appeal, set aside the order of the Divisional Court and quash
    the application for judicial review as brought without jurisdiction.  Mr.
    George must seek his remedies through the grievance process in the collective
    agreement.

[45]

Counsel
    for the appellants conceded that if the appellants were successful on the jurisdictional
    issue, the costs order made in the Divisional Court should stand in light of
    the appellants failure to raise the jurisdictional argument in that court.  I
    agree with that concession.  Counsel did submit that the appellants should have
    their costs in this court.  Again, I agree with that submission.  However, in
    my view, in all the circumstances, those costs should be modest.  I would award
    costs in the amount of $5,000, inclusive of disbursements and relevant taxes.
    Those costs can be set off against the costs awarded to Mr. George in the
    Divisional Court, assuming, of course, that the appellants have not paid those
    costs to Mr. George.

RELEASED: DD  AUG 15 2014

Doherty J.A.

I agree E.A. Cronk
    J.A.

I agree Paul Rouleau
    J.A.

[1]

Weber
recognizes an exception to the arbitrators exclusive
    jurisdiction where the remedy sought cannot be ordered by an arbitrator.  In
    those cases, the court has discretion to hear the dispute and grant the remedy:
     see
Weber
, at paras. 57, 67.  The applicability of the remedy
    exception generated the difference between the majority and minority in
Weber
concerning jurisdiction over the
Charter
claim
.  The remedy exception is not
    engaged here.


COURT OF APPEAL FOR ONTARIO

CITATION: Henderson v.
    Henderson, 2014 ONCA 571

DATE: 20140801

DOCKET: M43773/M43864

Juriansz J.A. (In Chambers)

BETWEEN

Scott Henderson

Applicant (Appellant in Appeal)

and

Suzanne Ruth Henderson

Respondent (Respondent in Appeal)

Simon Zucker and Nancy Tourgis, for the applicant

William Fanjoy, for the respondent

Heard and released orally: July 31, 2014

On motion to extent time to perfect the appeal and on
    motion to quash the applicants motion.

ENDORSEMENT

[1]

In this family law proceeding, the husband applies for an extension of
    time to perfect his appeal and the wife applies for security for costs and a
    variety of conditions to be imposed on the husband. At the outset, counsel for
    the wife stated his position that the order under appeal is interlocutory in
    nature. I indicated to counsel that I did not have jurisdiction to decide that
    question but that the view I took of that question could be a factor in
    determining the husbands motion to extend time to perfect his appeal. If time
    were not extended, the appeal would be dismissed and the wifes motion would
    become moot. On that basis we proceeded to deal with the motion to extend time
    first.

[2]

I need not review the long and fractious history of this proceeding. It
    is sufficient to say that the husband filed a motion in the Superior Court for
    various directions with a view to varying the final support orders in place.
    The wife filed a motion to quash the husbands motion. Both motions were placed
    on the long motions list. A number of appearances followed and the matter came
    before Justice Barnes, who made the order under appeal. He made an order that
    stipulated a number of conditions that the husband had to satisfy before he
    could proceed with his long motion. These conditions included the payment of
    arrears and outstanding costs orders.

[3]

Generally, it is clear that the stipulation of terms on which parties
    may proceed to a final determination of a proceeding is interlocutory. In fact
    the formal order of Justice Barnes indicates on its face that it is Temporary.
    The cause of difficulty in this case is that Justice Barnes imposed a wrap-up
    term in his order that if the husband failed to comply with a number of the
    terms specified earlier in his order by February 12, 2014, his long motion
    would be permanently stayed with prejudice.

[4]

The main authority I was provided with,
Laurentian Plaza Corp. v.
    Martin
(1992), 7 O.R. (3d) 111 (C.A.), deals generally with whether orders
    made on condition are interlocutory or final. Morden J.A. said:

It can, of course, be fairly said that the effect of the order
    will be final if the conditions are not met. This is what makes the question a
    difficult one.

One aspect of the difficulty is that orders made on condition
    vary greatly. For example, they may range from orders imposing: undertakings on
    defendants; strict time periods for the completion of the pre-trial steps; the
    obligation to pay the plaintiff's costs thrown away; to the giving of security
    in varying amounts with respect to the plaintiff's claim. As a matter of policy
    it may seem that some of these orders, which, analytically, are interlocutory,
    might be appropriately treated as final -- but, if this were to be done, where
    would the line be drawn and how could the definition of what is final be
    expressed so that it could be applied with some degree of predictability or
    confidence?

Neither can the nature of the order reasonably turn on the
    particular circumstances of the defendant. The question of categorization which
    determines access to appellate review must be decided on the basis of the legal
    nature of the order and not on a case by case basis depending on the
    application of the order to the facts of a particular case. As I have
    indicated, jurisdictional rules should be as clear as possible and their
    application should not be beset with factual disputes which themselves may be
    protracted and difficult to resolve.

Further, the consideration that the order may have the effect
    of terminating the proceeding does not mean that it is a final one. See
Chesapeake
    & Ohio Railway Co. v. Ball
, 1953 CanLII 126 (ON CA), [1953] O.R. 877
    (C.A.) and
Ontario Medical Association v. Miller
1976 CanLII 679 (ON
    CA), (1976), 14 O.R. (2d) 468, 2 C.P.C. 125 (C.A.).

[5]

Counsel for the husband submits this reasoning does not apply in this
    case because February 12, 2014 has come and gone without the husband satisfying
    the conditions. At the time the notice of appeal was filed, which was after
    February 12, 2014, the order of Justice Barnes had, in effect, determined his
    long motion finally.

[6]

I provided counsel with a more recent decision of this court,
Inforica
    Inc. v. CGI Information Systems and Management Consultants Inc.
, 2009 ONCA
    642. The case is not on point because it deals with the jurisdiction of a
    Superior Court judge to review an arbitration decision. But at para. 26, Sharpe
    J.A. offers an interpretation of
Laurentian Plaza Corp.
which I find
    pertinent. He said:

I recognize that failure to satisfy an order for security for
    costs may lead to a dismissal of the claim, but the sanction for non-compliance
    with an order cannot alter the nature of the order itself. Many procedural or
    interlocutory orders  for particulars, for production of documents, for the
    payment of costs ordered in interlocutory proceedings  may carry the ultimate
    sanction of dismissal of the non-complying partys claim. But if the claim is
    dismissed, the dismissal flows from the partys failure to comply with the
    interlocutory or procedural order, not from the order itself, and does not
    alter the interlocutory or procedural nature of the order that led to
    dismissal: see
Laurentian Plaza Corp. v. Martin
(1992), 7 O.R. (3d)
    111 (C.A.).

[7]

In my view this reasoning applies in this case. If Justice Barnes order
    has had the effect of permanently staying the husbands long motion, the stay has
    resulted not from the nature of the order itself but from the husbands failure
    to satisfy the conditions that the order imposed. The overall intention and
    effect of Justice Barnes order was to impose terms to shepherd the proceeding
    along to the final hearing and disposition of the long motion.

[8]

It is my opinion that the order under appeal is interlocutory. To obtain
    an extension of time a party must demonstrate the proposed appeal is not
    meritless. An appeal of an interlocutory order filed in this court is
    meritless. I see no purpose in extending the time for the perfection of a
    matter that is not properly before this court.

[9]

The husbands motion for the extension of time is refused. The Registrar
    may dismiss his appeal for failure to adhere to the time limits. The wifes
    motion is moot.

[10]

Costs
    of the motions and of the appeal are fixed in the amount of $24,000.00 all
    inclusive, enforceable as support.

R.G.Juriansz
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hordo v.
    Bacchiocchi, 2014 ONCA 584

DATE: 20140814

DOCKET: C55508

Doherty, Laskin and Epstein JJ.A.

BETWEEN

Diana Hordo

Respondent

and

James Bacchiocchi, Maria Bacchiocchi, Lynda
    Ciaschini, the Estate of Giulio Bacchiocchi

Appellants

Marco Drudi, for the appellants

Robert Besunder, for the respondent

Heard:  August 13, 2014

On appeal from the judgment of Justice Elizabeth M.
    Stewart of the Superior Court of Justice, dated July 6, 2012.

APPEAL BOOK ENDORSEMENT

The Fresh Evidence

[1]

The moving party has not established that any of the proposed fresh
    evidence (the moving partys affidavit and attachments) meets any of the
    criteria for the admission of fresh evidence on appeal.  Most of the documents
    were available at trial (e.g. transcripts of discoveries) and others have no
    bearing on any of the issues raised on appeal (e.g. various unsubstantiated
    allegations made against persons who were not parties to the appeal).

The Appeal

[2]

The finding by the motion judge that Ms. Hordo was entitled to 20 per
    cent of the net proceeds of the sale of the Alton property was, in our view,
    based on a finding that there was an agreement between her and her parents to
    share in the proceeds of the sale.  The trial judge relied on a document
    referred to as a Declaration of Trust in coming to her conclusion.  The
    appellant submits that this constitutes a finding of liability on a basis not
    pleaded.  We disagree.  The Declaration was evidence of the existence of the
    agreement pleaded and properly treated as such by the trial judge.

[3]

We agree with the trial judges treatment of the various issues related
    to the calculation of the net proceeds of the sale and reject the submissions
    made by the appellant in this court.  Those submissions tracked the arguments
    at trial.

[4]

We would not interfere with the costs award.  Ms. Hordo was successful
    on one significant claim.  We would not interfere with the trial judges
    determination that Ms. Hordo was entitled to costs on a partial indemnity
    basis.  Nor would we interfere with the quantum.

[5]

The appeal is dismissed.

The Cross-Appeal

[6]

Counsel for Ms. Hordo advised that given our determination that the
    fresh evidence was not admissible, he would not pursue the cross-appeal.

[7]

The cross-appeal is dismissed.

[8]

No costs to any party on the appeal or cross-appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: Iskander v. BMO Nesbitt Burns Inc., 2014 ONCA 582

DATE: 20140814

DOCKET: C58725

Sharpe, Simmons and Pardu JJ.A.

BETWEEN

Christopher David Iskander

Applicant (Respondent)

and

BMO Nesbitt Burns Inc. and BMO Trust Company

Respondents (Appellants)

Mark Veneziano and Ian MacLeod, for BMO Nesbitt Burns
    Inc.

Nancy Arnold and Angela Shen, for the intervener, the
    Attorney General of Canada

Christopher David Iskander, in person

Heard and released orally: August 11, 2014

On appeal from the judgment of Justice P.T. Matlow of the
    Superior Court of Justice, dated April 16, 2014.

ENDORSEMENT

[1]

It is common ground that the only issue before the application judge was
    whether the applicant had provided BMO Nesbitt Burns (BMO) adequate information
    to allow BMO to deregister shares in a private corporation held in the
    applicants RRSP. The applicant accepted that BMO would be required to withhold
    and remit withholding tax to Canada Revenue Agency (CRA).

[2]

On his own motion, the application judge determined that there was no
    basis in law for BMO to withhold tax. He erred in so holding. That issue was
    not before him and this was not the appropriate forum to make that
    determination:
Tax Court of Canada Act
, R.S.C. 1985, c. T-2. S. 12.

[3]

In the circumstances, this is an appropriate case for this court to make
    the determination that the application judge should have made.

[4]

The applicant took the position that he had provided adequate
    information from which BMO could determine the value of the shares, namely, an
    offer by a third party to sell shares of a different class at the price of 50
    cents per share and a letter the applicant sent to the CRA purporting to
    confirm a conversation with a CRA representative that an offer to sell shares
    would be sufficient evidence to establish market value.

[5]

In our view, BMO was within its contractual rights to refuse to
    deregister the shares on the basis of the information the applicant had
    provided. The offer, standing alone without the shareholders agreement or any
    other details of the companys affairs, was inadequate.

[6]

Nor do we agree with the applicants interpretation of the exchange of
    emails between him and BMO as to what BMO would require. It was the applicant
    who insisted that BMO deregister the shares on the basis of the offer and we do
    not agree that BMO refused to accept anything other than a letter from the
    company as to the value of the shares.

[7]

Of course, it remains open to these parties to resolve the matter on the
    basis of proper documentation.

[8]

In the result, the appeal is allowed, the order of the application judge
    is set aside and the application is dismissed. Costs to the appellant fixed at
    $10,000 inclusive of disbursements and taxes, payable by the applicant.

Robert J. Sharpe J.A.

Janet
    Simmons J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McAfee v.
    Holloway, 2014 ONCA 600

DATE: 20140820

DOCKET: C58156

Doherty, Laskin and Epstein JJ.A.

BETWEEN

Carolyn J. McAfee

Appellant

and

Dr. Robin Holloway

Respondent

Carolyn J. McAfee, appearing in person

Cameron Fiske, appearing as
amicus
and duty
    counsel

Amanda Smallwood, for the respondent

Heard and orally released:  August 14, 2014

On appeal from the judgment of Justice Lederer of the Superior
    Court of Justice, dated April 18, 2013.

ENDORSEMENT

[1]

Assuming the defendant could be sued in negligence (the immunity issue),
    and assuming the defendant owed a duty of care to the appellant, the only
    evidence before the motion judge, an affidavit filed by the defendant,
    indicated that the defendant had met the applicable standard of care.

[2]

In this court, the appellant made a strong and concise argument that the
    defendant had misunderstood the medical root of her problems.  She contends
    that her problems are primarily related to visual deficiencies and not
    developmental deficiencies as indicated by the defendant in his report.

[3]

The appellant may well be right.  We do not know.  However, even
    assuming that she is right, there still must be evidence from which a trier of
    fact could find that the defendant fell below the applicable standard in
    characterizing the cause of her problems as he did.  The fact that he may
    ultimately have made an error is not, in our view, a basis for a finding that he
    fell below the appropriate standard of care.

[4]

In the absence of such evidence, the motion judge made no error in
    concluding there was no genuine issue requiring a trial on the negligence
    claim.  Summary judgment was properly granted and the appeal is dismissed.

[5]

We need not and do not address the immunity issue.

[6]

Costs are awarded in the amount of $2,500, inclusive of disbursements
    and taxes, if demanded by the defendant.  I would urge the respondent to bear
    in mind the problems the appellant has in making any demands in reference to
    costs.

[7]

The court is indebted to Mr. Fiske for his assistance as
amicus
.

Doherty J.A.

John Laskin J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mehedi v.
    2057161 Ontario Inc. (Job Success), 2014 ONCA 604

DATE: 20140821

DOCKET: M44010 (C54018)

Juriansz J.A. (In Chambers)

BETWEEN

Golam Mehedi

Plaintiff (Moving Party)

and

2057161 Ontario Inc., c.o.b. as Job Success,
Dale Smith
, M.A. Hameed, and Wendell Lacombe

Defendants (
Responding Party
)

Golam Mehedi, acting in person

Christopher Stanek, duty counsel for the moving party

No one appearing for the responding party

Heard: July 30, 2014

On a motion for directions to set aside the order of
    Justice Glenn A. Hainey of the Superior Court of Justice, dated June 23, 2011.

Juriansz J.A.:

[1]

Mr. Mehedi has brought a motion seeking directions with respect to the
    court, the judge and the manner in which to introduce new evidence after final
    judgment at trial and the dismissal of his appeal. The new evidence he tenders
    is a broadcast by the CBC investigative journalism program
Marketplace
that purports to expose the defendants in his action as fraudsters. The
    colourful history of this matter demonstrates Mr. Mehedis tenacity.

[2]

Mr. Mehedi brought an action against 2057161 Ontario Inc., carrying on business
    as Job Success, M.A. Hameed, Wendell Lacombe and Dale Smith, alleging they
    had defrauded him in a job placement program. Dale Smith is the owner of
    2057161 Ontario Inc. Mr. Mehedi testified that Mr. Hameed and Mr. Lacombe
    promised him a job as a project manager with a salary of $70,000. He sought
    return of the $3,742 he paid Job Success and punitive damages to prevent the
    recurrence of similar behaviour. Mr. Hameed and Mr. Lacombe testified, along
    with another Job Success official, Gordon MacKay. All denied that they had
    promised they would find Mr. Mehedi a job.

[3]

After a one day trial, the trial judge ruled in favour of the
    defendants. The trial judge noted that Mr. Mehedis written agreement with Job
    Success was for the provision of professional career development services to
    assist him in finding employment and did not guarantee a job placement. The
    trial judge preferred the evidence of Mr. Hameed and Mr. Lacombe. He said, I
    carefully observed Mr. Hameed and Mr. Lacombe while they testified both in
    chief and under cross-examination and I find them both to be credible witnesses
    and I accept their evidence. He concluded that, on the evidence before the
    court, there is no basis for finding that Job Success or any of the defendants
    made any promises or commitments to Mr. Mehedi that they did not fulfil.

[4]

Mr. Mehedis appeal to the Court of Appeal was dismissed on January 23,
    2012. In a brief endorsement, the court deferred to the trial judges findings
    of fact and credibility.

[5]

On February 17, 2012, the CBC broadcast an episode of
Marketplace
titled Recruitment Rip-off.
Marketplace
, using hidden cameras,
    purports to expose how a recruitment agency, carrying on business as Toronto
    Pathways, exploits vulnerable unemployed persons by promising to find them
    good jobs in exchange for fees. The clients shown in the program are mainly
    unemployed immigrants newly arrived in Canada. The program shows Dale Smith
    acknowledging that Toronto Pathways and Job Success are the same business.
    Mr. Smith, the owner, states, It is the same corporation. Same address. Brand
    marketing is the only reason for the change. Brand marketing just allows a
    fresh market approach. The program states that the company has changed
    business names five times in seven years.

[6]

The program purports to show company officials unequivocally promising
    prospective clients that they will be provided good jobs to induce them to
    enter contracts. The defendant Mr. Lacombe is shown being asked by a
Marketplace
staffer, So youre basically guaranteeing me that Im going to get a job?,
    and responding, Absolutely. And we are very good at it. The witness Mr.
    MacKay is also shown in the program. The program also shows numerous other
    individuals who make essentially the same allegations as Mr. Mehedi.

[7]

Upon learning of the
Marketplace
broadcast, Mr. Mehedi has been
    attempting to reopen his trial. His position is that the defendants are slick
    liars who perjured themselves at trial. He submits that the new evidence
    provides good reason for revisiting the credibility findings made at trial,
    which the trial judge indicated were based on the demeanour of the witnesses.
    The easy and self-assured manner in which Mr. Lacombe responds, Absolutely,
    to the
Marketplace
staffer provides considerable support for Mr.
    Mehedis position.

[8]

Mr. Mehedi has not been successful in having a court hear and determine
    his motion for fresh evidence.

[9]

On March 23, 2012, Mr. Mehedi, acting in person, brought a motion in the
    Superior Court for judgment in his favour based on new evidence. The judges
    handwritten endorsement explained that he must first bring a motion to have
    the trial judgment set aside and suggested that he obtain legal advice
    because it is a difficult motion.

[10]

Mr.
    Mehedi sought advice from counsel, who advised he needed to bring a motion to
    introduce new evidence and that the motion was properly brought before the
    judge who presided over the trial. On October 1, 2012, Mr. Mehedi had counsel
    write a letter to the trial judge asking for dates for the hearing of his
    motion to introduce new evidence. In response, he received a letter from the
    Chief Justices Executive Legal Officer dated October 9, 2012, advising that it
    was inappropriate to communicate with a judge directly, unless directed
    otherwise, and that he ought to schedule a motion through the Court Registry in
    accordance with the rules.

[11]

The
    trial scheduling clerk advised Mr. Mehedi that a motion before the trial judge
    could not be booked as the motion scheduling office was not privy to the
    schedule of specific judges. The clerk advised him to obtain dates directly
    from the trial judges office.

[12]

On
    November 29, 2012, counsel for Mr. Mehedi contacted the trial judges assistant
    to obtain dates for the motion and was advised that the trial judge was sitting
    in criminal court for the foreseeable future. The assistant advised that the
    trial judge suggested Mr. Mehedi bring a motion before a judge of the Superior
    Court for directions and to have a judge assigned to hear the motion to
    introduce new evidence.

[13]

Mr.
    Mehedi brought a motion in the Superior Court on March 27, 2013, which was
    adjourned to September 10, 2013, and then to May 21, 2014. The motion judges
    endorsement, dated May 21, 2014, states, In view of the fact that this matter
    was heard and disposed of by the Court of Appeal, directions should be sought
    from that Court as to a motion to reopen the appeal for the introduction of
    newly discovered evidence.

[14]

Mr.
    Mehedi has now returned to this court seeking advice and direction with
    respect to the court, the judge and the manner in which a motion to introduce
    new evidence after final judgment at trial has been made.

Analysis

[15]

Mr.
    Mehedi seeks to rely on rule 59.06(2) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, which provides as follows:

A party who seeks to,

(a) have an order set aside or
    varied on the ground of fraud or of facts arising or discovered after it was
    made;

(b)
suspend
the operation of an order;

(c) carry an
order
into operation; or

(d) obtain
other
relief than that originally awarded,

may make a motion in the proceeding
    for the relief claimed.

[16]

In
671122 Ontario Ltd. v. Sagaz Industries Canada Inc
., 2001 SCC 59,
    [2001] 2 S.C.R. 983, the Supreme Court indicated that the discretion to reopen
    the trial is the trial judges. The trial judge is in the best position to
    decide whether fairness dictates that the trial be reopened. The trial judge
    should exercise his or her discretion to reopen the trial sparingly and with
    the greatest care so that fraud and abuse of the [c]ourts processes do not
    result:
Sagaz
, at para. 61.

[17]

In
Sagaz
, however, the trial judge was asked to reopen the trial before
    the appeal, whereas in Mr. Mehedis case, the appeal has already been heard and
    determined.

[18]

In
Aristocrat v. Aristocrat
(2004), 73 O.R. (3d) 275 (C.A.), the moving
    partys appeal to the Court of Appeal and his application for leave to appeal
    to the Supreme Court of Canada had been dismissed, when subsequently he claimed
    he discovered fresh evidence showing that his wife and daughter had induced the
    Court of Appeal to dismiss his appeal by reason of false, fabricated,
    fraudulent and perjured evidence. He brought a motion in the Court of Appeal
    pursuant to rule 59.06(2)(a) to set aside the order dismissing his appeal. The
    matter was eventually heard by a panel of the court, which said at para. 9:

Based upon his oral submissions and his
    response to questions from the court, it is apparent that Mr. Aristocrats main
    concern is to re-open and set aside the original judgment of [the trial judge]
    as a judgment obtained by fraud. In order to accomplish this, he has moved
    under rule 59.06(2)(a). The Court of Appeal has no jurisdiction to hear such a
    motion. Such motions should be brought in the action before a judge of the Superior
    Court.

[19]

The
    court in
Aristocrat
referred to an earlier case,
R. v. Moura
(2003), 172 C.C.C. (3d) 340 (Ont. C.A.), in which Morden J.A. held that a
    motion to set aside an order of the Superior Court, affirmed on appeal, on the
    basis of newly discovered evidence of fraud should be brought in the Superior
    Court.

[20]

The
    rationale of rule 59.06(2)(a) continues to apply even though an appeal has been
    determined. An appeal merely concludes there is no reversible error at trial.
    The rule allows an order to be set aside or varied, not because of any mistake
    in the proceedings, but because it has become apparent that the decision was
    wrong due to fraud or other facts discovered after it was made.

[21]

While
    a motion under rule 59.06(2) must be brought in the Superior Court, it need not
    be brought before the trial judge. This is made clear by rule 37.14(4), which
    provides:

A motion underanyrule to set aside, vary or amend
    an order
[1]
of a judge may be made,

(a) to the judge who made it, at any place; or

(b) to any other judge, at a place determined in
    accordance with rule 37.03.

[22]

Rule
    37.03 merely requires that the motion be brought in the county where the
    proceeding was commenced or to which it has been transferred.

[23]

Case
    law applying rule 59.06(2) confirms that rule 59.06(2) motions may be made to
    the trial [j]udge or to a [j]udge in motions Court:
Lac Des Mille Lacs
    First Nation v. Viherjoki
(1996), 50 C.P.C. (3d) 94 (Ont. C.J. (Gen. Div.)),
    at para. 11.

[24]

Canada
    v. Granitile Inc
. (2008), 302 D.L.R. (4th) 40 (Ont. S.C.) is an example of
    a case where, under rule 59.06(2), a judge of the Superior Court set aside the
    judgment of another trial judge. Molloy J., the trial judge, found in favour of
    the plaintiffs in their action against Canada. Canada brought a rule 59.06(2)
    motion and Lederer J. held a trial on the issue of whether Molloy J.s judgment
    in the plaintiffs favour should be set aside because of the plaintiffs fraud.
    Lederer J. ultimately concluded that Molloy J.s judgment must be set aside.

[25]

In
Tsaoussis (Litigation Guardian of) v. Baetz
(1998), 165 D.L.R. (4th)
    268 (Ont. C.A.), Scott J. granted judgment by approving a settlement on behalf
    of a minor plaintiff. Leitch J., another judge of the Ontario Court (General
    Division), set aside the judgment on the basis of new evidence under rule
    59.06(2). On appeal, the Court of Appeal concluded that Leitch J. erred in
    doing so because the new evidence at issue was available at the time of the
    initial judgment. The Court of Appeal did
not
hold that only Scott J.
    could set aside her own judgment under rule 59.06(2).

[26]

While
    the law does not
require
the trial judge whose judgment is at issue to
    hear the rule 59.06(2) motion, it is
preferable
for the trial judge to
    do so. The trial judge is already familiar with all of the evidence at trial,
    and is well-suited to expeditiously determine whether the alleged fraud or the
    new evidence requires the trial judgment to be set aside.

[27]

In
    a recent chambers decision,
Janjua v. Khan
, 2014 ONCA 5, the appellant,
    who had a rule 59.06(2) motion regarding the trial judgment pending in the
    Superior Court, also sought leave to appeal the trial judgment in the Court of
    Appeal. Lauwers J.A. dismissed the leave application to allow the rule 59.06(2)
    motion to proceed.  He held, at para. 11:

the preferable procedure in these circumstances is to allow
    the process before the Superior Court to unfold.  It would perhaps be
    especially appropriate for [the trial judge] to hear the [rule 59.06(2)] motion
    to set aside her judgment on the basis of the fresh evidence.  She would be in
    a superior position to contextualize the fresh evidence and to direct the trial
    of an issue if so advised.

[28]

In
A.H. Al-Sagar & Brothers Engineering Project Co. v. Al-Jabouri
(1989), 46 C.P.C. (2d) 69 (Ont. H.C.), Sutherland J., while clear that a motion
    under rule 59.06(2) may be brought before any judge in motions court in the
    ordinary way, seems to suggest that the motion should be brought before the
    trial judge where the findings of the trial judge are being called into
    question and the new evidence must be considered along with the evidence that
    was before the trial judge.

[29]

In
    this case, Mr. Mehedi seeks to undermine the credibility findings made by the
    trial judge with the new evidence. However, as the trial judge has already
    declined to hear the motion, Mr. Mehedi must bring his motion before another
    judge in motions court in the ordinary way.

Conclusion

[30]

Regretting
    the inconvenience Mr. Mehedi has encountered, I conclude that his motion to
    introduce new evidence should be brought in the Superior Court before a motions
    judge in the ordinary way.

[31]

In
    the material before me, Mr. Mehedi filed the video and transcript of the
Marketplace
broadcast. He may consider attempting to obtain the entire hidden camera
    interviews with the defendants and retaining counsel to bring the motion.

Addendum regarding Service

[32]

The
    day after this motion was heard and taken on reserve, Mr. Dale Smith telephoned
    the court office to find out if there was a decision on the motion. He claimed
    that he had not been served with the motion. The court clerk advised that the decision
    was on reserve and that Mr. Smith could write a letter to the court stating he
    had not been served and requesting the opportunity to make submissions in
    writing. The court did not receive a letter from him.

[33]

I am satisfied that this motion came to Mr. Smiths attention
    and that he did not take the opportunity to put his position before the court
    in writing. In the circumstances, I validate service of the motion. I also
    order that future service upon him may be made by ordinary mail at the address
    indicated in the affidavit of service of this motion, subject to a further
    order of a court or his serving and filing a different address for service.

R.G. Juriansz J.A.

[1]
Order includes a judgment: see rule 1.03.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adamson, 2014 ONCA 570

DATE: 20140801

DOCKET: M44037 (C57116)

Juriansz J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Brandon Adamson

Applicant/Appellant

Lance Beechner, for the applicant

Megan Stephens, for the respondent

Heard: July 29, 2014

On application for the appointment of counsel pursuant to
    section 684 of the
Criminal Code
.

ENDORSEMENT

[1]

This is an Application for an order pursuant to s. 684(1) of the
Criminal
    Code
appointing counsel to represent the applicant in his appeal against
    his convictions for attempted murder, assault with a weapon, break and enter
    and aggravated assault. He was granted a Legal Aid Certificate for his sentence
    appeal and refused a Certificate for his convictions appeal.

[2]

The Crown concedes that he is without the means to retain counsel
    privately, that the appeal, while weak, has sufficient merit to meet the
    threshold required by s. 684(1), and that the applicant cannot personally
    present his appeal effectively. The question is whether the court can properly
    decide the appeal without the assistance of counsel.

[3]

Counsel for the applicant advanced a thoughtful argument that the
    existence of the Inmate Duty Counsel Program should not be a relevant consideration
    in determining a s. 684 application. He provided the court with the Legal Aid
    Bylaw relating to the Ontario Inmate Appeal Duty Counsel Program, and a
    number of affidavits and letters of experienced defence counsel who regularly
    act as duty counsel in the Program. Relying on this material he submitted that
    it is not the intention of the Duty Counsel Program to supplant the Legal Aid
    Ontario Certificate Program, and that it cannot be assumed that duty counsel
    will take on each and every matter. He said the Duty Counsel Program relies on
    the sympathy, empathy and desire for accessible justice of defence counsel who
    essentially work on a volunteer basis. If s. 684 applicants were denied funding
    solely because of the existence of the Duty Counsel Program, some duty counsel
    might rethink their participation in the Program. The Program would not be
    sustainable in the longer term.

[4]

In response Crown counsel was careful to place no reliance on the
    presumed availability of duty counsel in this case. She submitted that the
    appeal could be dealt with in the inmate stream without duty counsel and still
    satisfy the interests of justice. She submitted that the record required would
    not be large. The jury charge, the pre-charge conference, the draft charge
    provided in writing ahead of time, were already available. The only additional
    material needed might be the closing addresses of counsel. She pointed out that
    the three identified grounds of appeal all relate directly to the jury charge.
    She submitted that even if the charge were found to be technically deficient in
    some way, the Crown would have a compelling argument that the curative proviso would
    apply. Granting the young applicant could not advance the legal arguments on
    his own, she stated the basis of his appeal was clearly articulated in the
    material filed on this motion. That material, she said, could be included in
    the Appeal Book. Finally, she submitted, as was recognized in
R. v. Bernardo
,
    [1997] O.J. No. 5091, at para. 26, that Crown counsel at the hearing of the
    appeal could be relied on to alert the court to matters that were favourable to
    the appellant and to assist him in making his submissions.

[5]

I am persuaded it appears desirable in the interests of justice that the
    applicant should have legal representation for his convictions appeal. He is
    young, just 19 at the time, and has been convicted of extremely serious
    offenses. Even if his sentence appeal is successful he faces a substantial term
    of imprisonment. That the appeal has sufficient merit is conceded. Judicial
    economy would be served by having his sentence appeal and convictions appeal
    proceed together in the same stream. Counsel on his sentence appeal will
    already have some familiarity with the trial proceeding. Much more of the
    record might be required to properly address the application of the curative
    proviso. Crown counsel should not be placed in difficult position of arguing
    the curative proviso applies and at the same being expected to assist the
    applicant in making submissions why it doesnt apply. It is desirable in the
    interest of justice that the applicant has his own advocate.

[6]

This endorsement is to be provided to the Legal Aid Director. If the Director
    does not issue a certificate, the applicant will be represented by counsel
    appointed under s. 684(1) and counsels fees and disbursements, including
    preparation for and attendance on this motion shall be paid by the Attorney
    General under s. 684(2) of the
Criminal Code
.

R.G. Juriansz
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bui, 2014 ONCA 614

DATE: 20140829

DOCKET: C55994

Sharpe, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thu Van Bui

Appellant

Delmar Doucette and Daniel Santoro, for the appellant

Xenia Proestos, for the respondent

Heard: August 12, 2014

On appeal from the conviction entered by Justice Peter
    Hryn of the Ontario Court of Justice on March 21, 2012.

Simmons
    J.A.:

A.

INTRODUCTION

[1]

On January 15, 2009, the police executed a search warrant at a house jointly
    owned by the appellant and his wife. When the police entered the house, they detected
    a strong smell of freshly grown marijuana. During their search, the police found
    a significant marijuana grow operation. In addition, they found a loaded
    handgun hidden between the mattress and box-spring of a bed located in a second
    floor bedroom.

[2]

Apart from the bed, the house was sparsely furnished. Police found
    limited food, dishes or cooking utensils in the house. However, both mens and
    womens clothing was found in the second floor bedroom; and prescription pill
    bottles in the names of six different individuals were found on the kitchen
    table.

[3]

The appellant arrived at the house shortly after the search warrant was
    executed and was arrested immediately. Following his arrest, the police found a
    key to the house in his pocket.

[4]

The appellant and his wife were subsequently charged with a number of
    offences, including: production of marijuana; possession of marijuana for the
    purpose of trafficking; possession of the proceeds of crime; theft of
    electricity; possession of a prohibited weapon, namely a knife, (collectively
    the grow operation charges); and various firearms offences.

[5]

On the third day of trial, the Crown withdrew all charges against the
    appellants wife. At the conclusion of the Crowns case, the appellant did not
    call evidence. Rather, it was his position that the Crown had failed to
    disprove potential innocent explanations for the circumstantial evidence it
    presented, such as him being an absentee landlord who was visiting the house
    for the first time. He pointed to the absence of surveillance or other evidence
    suggesting that he occupied the home or was personally involved in the
    marijuana grow operation. Further, the appellant contended that the case with
    respect to the handgun was even weaker than the case with respect to the
    marijuana grow operation. According to him, a person could be involved in the
    marijuana grow operation without knowing about the hidden gun.

[6]

The trial judge found the appellant guilty of all charges. In his
    reasons, he found no evidence of another person or persons being involved with
    the marijuana grow operation. Indeed, in his view, the evidence was to the
    contrary. He concluded there were no proven facts upon which [he could] infer
    that someone else controlled the marijuana grow operation without the
    appellants knowledge.

[7]

The main issues on appeal are: i) whether the trial judge erred in his
    statement and application of the rule in Hodges Case; and ii) whether the
    trial judges findings of guilt on the firearms charges constituted an
    unreasonable verdict.

[8]

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

B.

background

[9]

The appellant and his wife purchased the house in April 2004. Ministry
    of Transportation records disclosed that the appellant had updated his
    residential address seven times over 20 years but that he had never shown the
    address of the house as his residential address.

[10]

Two
    days before the execution of the search warrant, the police conducted
    surveillance of the house for about four hours. A van registered in the
    appellants name was parked in the driveway. However, during their
    observations, the police did not see anyone at the house.

[11]

When
    the police executed the search warrant, the appellants van was again parked in
    the driveway, but no one was in the house. During their search of the house, the
    police found 50 baby clone marijuana plants on the second floor and 323 marijuana
    plants in various states of growth in the basement. In addition, they found a hydro
    meter by-pass; fans and a ventilation system; and, in the second floor
    bathroom, two drums of water and pesticide.

[12]

In
    addition to the marijuana grow operation, the police found a loaded
    semi-automatic handgun in a second floor bedroom of the house. The bedroom
    contained the only bed in the house  a mattress on top of a box- spring
    sitting directly on the floor. The handgun and some ammunition were found
    wrapped in white packing paper, hidden between the mattress and box-spring. A
    knife that opened by centrifugal force was found in the family room.

[13]

The
    police also found: mens and womens clothing (including womens underwear) in
    the second floor bedroom; feminine hygiene products in the second floor
    bathroom; and seven pill bottles with six different persons names on them on
    the kitchen table. The medications in the pill bottles had been prescribed between
    2005 and 2008. One of the pill bottles had the appellants name on it for
    medication prescribed in 2006.

[14]

Among
    other items found during the search, the police seized opened mail related to
    the property, such as a water bill and a gas bill, all in the names of the
    appellant and his wife. No mail was found in anyone elses name.

[15]

As
    the police were in the process of leaving the house after completing their
    search, the appellant drove down the street and parked his car. He waited on
    the road  and then, with several readily identifiable police officers nearby,
    drove into the driveway as soon as a police van pulled out. The police arrested
    the appellant as he was getting out of his car. On searching him, the police
    found a key to the house in his pocket.

[16]

At
    trial, the Crown led evidence about hydro consumption and called an expert
    witness who testified about hydro consumption patterns and theft of
    electricity. The evidence indicated that after the house was purchased the
    hydro service was registered in the appellants name and continued to be
    registered in his name until the execution of the search warrant. In the first
    few months after the appellant and his wife purchased the house, electrical
    consumption rose to about three times the daily consumption of the previous
    owners. Thereafter, consumption dropped, consistent with the installation of a
    hydro meter by-pass. Further, on specified dates between June 2007 and January
    2009, the pattern of consumption followed a 12 hour on-and-off cycle that differed
    from the pattern of the previous owners and the neighbours, and that was
    consistent with the use of an electrical lighting timer for growing plants.

[17]

A
    police officer, who was qualified as an expert in marijuana grow operations,
    testified that one person could care for a marijuana grow operation of this
    size. In cross-examination he indicated that he could not recall arresting more
    than two persons at a time  usually a couple  for a grow operation of this
    size. Another officer acknowledged that it was not possible to know how many
    persons had been involved in this grow operation.

C.

the trial judges reasons

[18]

At
    the outset of his reasons, the trial judge noted that the issue in dispute was
    whether the appellant had knowledge and control of the items found in the house.
    As the appellant owned the home since 2004, the trial judge found that if the
    appellant had knowledge, he also had control. The issue therefore was
    knowledge.

[19]

After
    observing that the Crowns case was based on circumstantial evidence, the trial
    judge quoted the following portion of
R. v. McIver
, [1965] 4 C.C.C.
    182, at para. 7, in which this court repeated the requirement from the rule in Hodges
    Case that conclusions alternative to the guilt of the accused must be rational
    conclusions based on inferences drawn from proven facts:

The rule in Hodges Case  was that before [the jury] could
    find a prisoner guilty, they must be satisfied not only that the circumstances
    were consistent with his having committed the act, but they must also be
    satisfied that the facts were such as to be inconsistent with any other
    rational conclusion than the prisoner was the guilty person. In his judgment,
    the Chief Justice said:

The rule makes it clear that the case is to be decided on
    the facts, that is, the facts proved in evidence, and the conclusions
    alternative to the guilt of the accused must be rational conclusions based on
    inferences drawn from proven facts. No conclusion can be a rational conclusion
    that is not founded on evidence. Such a conclusion would be a speculative,
    imaginative conclusion, not a rational one. [Emphasis added.]

[20]

The
    trial judge went on to review the position of the Crown, the evidence the Crown
    relied on and the position of the defence. He then set out his analysis. Included
    in this review and analysis were the following observations:

·

there was evidence that the marijuana grow operation required an
    experienced grower, and likely one individual or a couple;

·

except, perhaps, for some dated prescription containers in
    various names, there was no evidence that multiple individuals attended the
    house and the marijuana grow operation;

·

with respect to the defence submissions, it did not assist him to
    comment on how the police conducted the investigation; that is, what
    surveillance was or was not conducted, and whether fingerprints or DNA evidence
    was or was not collected. His role was to weigh the evidence that was in fact
    collected and presented in court;

·

there was no evidence that the property was rented out;

·

there was no evidence that the male clothing fit more than one
    male, nor that it did not fit the accused. There was womens clothing and
    costume jewellery. The accuseds wife was a co-owner; and

·

there was no evidence, but the opposite, that multiple
    individuals were involved in the operation of the marijuana grow and that
    therefore, one individual could have secreted a handgun without the knowledge
    of the others.

[21]

The
    trial judge concluded his reasons with the following assessment:

There are no proven facts upon which I can infer that some
    imagined person other than the accused, controlled the marijuana grow operation
    in the accuseds house without the accuseds knowledge
. Such a conclusion
    would be speculative, and not a rational conclusion. The Crown has proven the
    accuseds guilt beyond a reasonable doubt. The accused is found guilty of all
    counts. [Emphasis added.]

D.

Discussion

(1)

Did the trial judge err in his
    statement and application of the rule in Hodges Case?

[22]

The
    appellant submits that, in setting out the principles that apply to assessing
    circumstantial evidence, the trial judge erred in holding that conclusions
    alternative to the guilt of the accused can arise only from proven facts. The
    appellant says this error led the trial judge to shift the onus of proof and
    casts serious doubt on his findings of guilt.

[23]

In
    response, the Crown submits that, read in context, the trial judges rejection
    of the hypothetical alternatives to guilt relied on by the defence was not the
    product of reversing the burden of proof. The Crown is not required to disprove
    hypothetical theories not grounded in the evidence. The trial judges
    references to proven facts were nothing more than a response to the
    hypothetical alternatives to guilt advanced by the appellant that lacked an
    evidentiary foundation.

[24]

I
    agree with the appellant that the trial judge erred in law in holding that,
    when assessing circumstantial evidence, conclusions alternative to the guilt of
    the accused must arise from proven facts. Further, in my view, the trial
    judges reasons demonstrate that this error infected his reasoning process.

[25]

In
R. v. Robert
(2000), 143 C.C.C. (3d) 330, at para. 15, this court
    explained that, since the decision of the Supreme Court of Canada in
R. v.
    Cooper
, [1978] 1 S.C.R. 860, it has been clear that the rule in Hodges Case
    is not an inexorable rule of law in Canada. Further, the rules reference to
    requiring proven facts to ground alternative explanations is problematic
    because there is no obligation on an accused to prove any facts. Rather, an
    accused is entitled to an acquittal if there is a reasonable doubt on all of
    the evidence, a conclusion sustainable at a threshold significantly lower than
    a reasonable inference from proven facts:
Robert
, at paras. 17,
    21 and 25.

[26]

The
    Crown submits that this case is distinguishable from
Robert
because
    the accused in
Robert
called expert evidence to show that the fire he
    was charged with setting could have been caused accidentally. In
Robert
,
    the trial judge erred by requiring the appellant to prove that the fire was caused
    accidentally as opposed to considering whether the evidence raised a reasonable
    doubt.

[27]

According
    to the Crown, this case is different from
Robert
because, in this
    case, there was no competing evidence to consider and, indeed, no issue as to
    the proven facts. The facts were not in dispute. In the absence of evidence,
    the Crown is not required to disprove every conceivable explanation that could
    be urged upon the court.

[28]

In
    my view, this submission ignores the fact that the question of whether a
    reasonable doubt exists must be assessed based on the totality of the evidence
    adduced at trial and not simply based on the proven facts. While the evidence
    at trial may not have been in dispute, the inferences capable of being drawn
    from that evidence were very much in dispute.

[29]

As
    I read his reasons, the trial judge blurred the distinction between evidence,
    available inferences and proven facts. For example, in rejecting the defence
    submission that someone else could have hidden the handgun in the bed, he found
    that there [was] no evidence, but the opposite, that multiple individuals were
    involved in the operation of the marijuana grow.

[30]

While
    it is true that no one testified about the presence of persons other than the
    accused at the house, the evidence that both male and female clothing was found
    in the house and of the presence of prescription pill bottles in the names of
    several persons, gave rise to an available inference that more than one person
    had been in the house. Taking account of the state of the house (including the
    sparse furnishings, limited food and large number of marijuana plants) this, in
    turn, gave rise to an available inference that more than one person was involved
    in the marijuana grow operation. Although that inference may not have been
    strong enough to constitute a proven fact, it was not a mere theoretical
    possibility lacking any evidentiary foundation.

[31]

In
    my view, the trial judge erred in finding that there was no evidence that
    multiple persons were involved in the marijuana grow operation and in rejecting
    the defence submission about the handgun on that basis. As I read his reasons,
    this erroneous conclusion was driven by an incorrect view that, in a case
    involving circumstantial evidence, alternatives to guilt must be based on
    proven facts.

[32]

Although
    I acknowledge that the Crowns case that the appellant was at least a
    participant in the grow operation was strong, the trial judges erroneous
    approach to assessing the evidence could well have tainted his assessment of
    this issue. The Crown does not ask that we apply the proviso. In the
    circumstances, I would give effect to this ground of appeal. I will deal with
    the appropriate remedy after discussing the second ground of appeal.

(2)

Did the trial judges decision on
    the firearms charges constitute an unreasonable verdict?

[33]

The
    appellant does not dispute that the evidence led by the Crown at trial was
    capable of supporting findings of guilt on the grow operation charges. However,
    he contends that the trial judges decision on the firearms charges constitutes
    an unreasonable verdict. I agree.

[34]

To
    find the appellant guilty of the firearms offences, the trier of fact would have
    to be satisfied beyond a reasonable doubt that the appellant knew about the
    presence of the gun and had an element of control over it:
R. v. Pham
(2005), 77 O.R. (3d) 401 (C.A.), at para. 15, affd 2006 SCC 26;
R. v.
    Provost

(appeal by Watson)
, 2011 ONCA 437, 94 W.C.B. (2d) 733, at
    para. 10.

[35]

For
    the reasons I have explained, I am satisfied that the evidence of both male and
    female clothing being found in the house and of the presence of prescription
    pill bottles in the names of several persons, together with the evidence about
    the state of the house, gave rise to available inferences that more than one
    person had been in the house and that more than one person was involved in the
    marijuana grow operation.

[36]

In
    these circumstances, in the absence of some specific evidence linking the
    appellant to the gun, I see no basis on which a trier of fact could exclude the
    possibility, founded on the evidence, that another person hid the handgun and
    ammunition in the bed without the appellants knowledge.

E.

remedy

[37]

The
    appellant seeks a new trial on the grow operation charges and an acquittal on
    the firearms charges. In its factum, the Crown submitted that, if the appeal is
    allowed, we should order a new trial on all charges. For reasons that I will
    explain, I would not accept this submission.

[38]

At
    trial, the Crown tendered an inculpatory statement made by the appellant
    immediately following his arrest in which the appellant acknowledged operating
    the marijuana grow operation and purchasing the handgun. The Crown sought to
    prove the statement was voluntary. The appellant brought an application seeking
    to exclude the statement under ss. 10(a), (b) and 24(2) of the
Charter
.
    He denied making the statement and testified that he had virtually no ability
    to communicate in English. The trial judge excluded the statement, holding that
    the Crown had not proven beyond a reasonable doubt that it was given voluntarily.
    In the result, the trial judge did not address the appellants
Charter
application or make findings of fact concerning the appellants credibility.

[39]

On
    appeal, the Crown contends that the trial judge erred in excluding the
    statement simply on the basis that it was not recorded. In addition, the Crown
    submits that if this court allows the appeal in respect of the firearms
    charges, the appropriate remedy is to order a new trial so that the
    admissibility of the appellants inculpatory statement can be fully determined.

[40]

In
    his ruling on voluntariness, the trial judge relied on this courts decision in
R. v. Moore-McFarlane
(2001), 56 O.R. (3d) 737 (C.A.) and made the
    following specific findings:

·

the appellant was in custody when the statement was made;

·

recording facilities were readily available;

·

the police deliberately set out to interrogate the appellant
    without giving any thought to the making of a reliable record;

·

the context inevitably makes the resulting non-recorded
    interrogation suspect; and no sufficient substitute for an audio or a
    videotaped record has been provided to satisfy the onus on the Crown to prove
    voluntariness beyond a reasonable doubt.

[41]

These
    findings belie the Crowns general assertion that the trial judge excluded the
    appellants statement solely because it was not recorded. Moreover, given the
    trial judges finding on voluntariness, it was unnecessary that he address the
    appellants
Charter
application.

[42]

Under
    s. 686(2) of the
Criminal Code
, where this court allows an appeal from
    conviction it may direct an acquittal or order a new trial. As this court noted
    in
R. v. Harvey
(2001), 57 O.R. (3d) 296 (C.A.), at paras. 30 and 34,
    where the Court of Appeal allows a conviction appeal on the ground that the
    verdict is unreasonable it will usually order an acquittal. Nonetheless, the
    Crown is entitled to raise alleged errors that it claims inured to the benefit
    of the appellant to support an order for a new trial.

[43]

Based
    on
Harvey
, it would appear that it is customary for any issues raised
    by the Crown to be fully argued and decided in this court. In this case, I am
    not persuaded that the Crown has identified even an arguable ground of appeal
    in relation to the trial judges ruling on the admissibility of the appellants
    statement.

[44]

Accordingly,
    based on the foregoing reasons, I would allow the appeal and set aside the appellants
    convictions. I would order a new trial on the grow operation charges and enter
    acquittals on the firearms charges.

Released:

RJS                                                 Janet
    Simmons J.A.

AUG 29 2014                                   I agree
    Robert Sharpe J.A.

I
    agree G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Filian-Jiminez, 2014
    ONCA 601

DATE: 20140820

DOCKET: C57824

Sharpe, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

John Filian-Jimenez

Respondent

Chris Dwornikiewicz, for the applicant/appellant

Sam Goldstein, for the respondent

Heard and released orally: August 14, 2014

On appeal from the sentence entered on September 23,
    2013, by Justice M.G. McLeod of the Ontario Court of Justice.

ENDORSEMENT

[1]

The trial judge gave carefully considered reasons for imposing a
    sentence of 18 months on the offences of unlawful possession of a loaded
    restricted firearm and possession of a firearm knowing that its possession is
    unauthorized. The Crown seeks leave to appeal the sentence.

[2]

While this is a clearly a very low sentence, we are not persuaded that
    the trial judge erred in principle. He identified factors that in his view
    justified imposing a relatively lenient sentence. The respondent had repudiated
    his membership in a gang, entered an early guilty plea, was engaged in full
    time employment and had fundamentally changed his lifestyle. He had the gun
    because shots had been fired at his house and he feared for the safety of his
    mother and his girlfriend with whom he shared the house. While possession of a
    gun for protective purposes is certainly not to be condoned, the trial judge
    accepted that the respondent did not have the weapon for any other purpose. The
    trial judges assessment of the respondent and his prospects is entitled to
    deference in this court. While this is a very low sentence in the
    circumstances, it is not manifestly unfit.

[3]

Accordingly, we grant leave to appeal but dismiss the appeal from
    sentence.

Robert J. Sharpe J.A.

Janet
    Simmons J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Gyimah, 2014 ONCA 592

DATE: 20140818

DOCKET: C53305

Sharpe, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Anthony Gyimah

Appellant

Julian K. Roy, for the appellant

Dena Bonnet, for the respondent

Heard and released orally: August 12, 2014

On appeal from the conviction entered on April 1, 2009 by
    Justice G.S. Lapkin of the Ontario Court of Justice, dated April 1, 2009.

ENDORSEMENT

[1]

We reserved our decision on leave to appeal and permitted Mr. Roy to
    argue the merits of the appeal. Despite his very capable submissions, at the
    end of the day, we are not persuaded that leave to appeal should be granted.

[2]

The issues raised involve questions of mixed fact and law. The
    authorities on causing a disturbance make it clear that consideration of the
    context lies at the heart of the analysis: see
R. v. Lohnes
, [1992] 1
    S.C.R. 167 at para. 15:

The lawful jangling of the street musician at an urban
    intersection at noon may become criminal if conducted outside a citizens
    bedroom window at three oclock in the morning.

[3]

The appellant was shouting on a residential street late at night and one
    resident eventually came to his balcony and said knock it off. In our view,
    it was open to the trial judge to find the offence of causing a disturbance had
    been made out.

[4]

We see no merit in the argument that the appellant was psychologically
    detained when he pushed one of the officers. The appellants own evidence was
    that he freely walked to his house. The officers evidence was that when the
    appellant asked them to get out of his way, they parted so that he could pass
    between them.

[5]

Accordingly, leave to appeal is dismissed.

Robert J. Sharpe J.A.

Janet
    Simmons J.A.

G.
    Pardu J.A.