COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Staples, 2022 ONCA 266

DATE: 20220401

DOCKET: C63472

Fairburn A.C.J.O., Rouleau and
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mark Staples

Appellant

Michael Lacy and Carol Cahill, for the
    appellant

Alex Alvaro, for the respondent

Heard: October 27, 2021 by video conference

On appeal from the convictions entered
    on November 28, 2014 by Justice Harrison S. Arrell of the Superior Court of
    Justice, sitting with a jury.

Huscroft J.A.:

OVERVIEW

[1]

The appellants father, Bill Staples, and sister,
    Rhonda Borelli, went missing from Hamilton in January 1998. Five months later,
    their badly decomposed bodies were found in the back of Bills truck at a Park
    N Fly at Pearson Airport. Bill had extensive skull fractures and had been
    beaten to death. The cause of Rhondas death was undetermined, but it was
    theorized that her throat had been cut. The appellant inherited his fathers
    estate, valued at over $2.1 million.

[2]

The appellant was not arrested and charged with
    the murders until 2010. He was convicted of two counts of first-degree murder
    following a two-month jury trial in 2014.

[3]

The appellant argues that the trial judge erred
    in numerous ways and that his trial was unfair as a result. The trial judge is
    said to have erred by:

1.

failing to caution or correct the jury on
    demeanour evidence relied on by the Crown;

2.

leaving post-offence conduct with the jury and
    failing to properly instruct the jury on the use to be made of such evidence;

3.

failing to provide a limiting instruction on
    discreditable conduct;

4.

failing to caution the jury about too readily
    inferring guilt from circumstantial evidence;

5.

failing to prevent the Crown from inviting the
    jury to speculate and shifting the onus of proof onto the appellant;

6.

failing to instruct the jury to disregard
    impermissible opinion evidence; and

7.

refusing to permit the appellant to lead
    evidence of another unsolved homicide.

[4]

Finally, the appellant argues that the verdict
    was unreasonable. He seeks an acquittal or, in the alternative, a new trial.

[5]

I am not persuaded by any of these arguments,
    nor has the appellant established that the jurys verdict was unreasonable. I
    would dismiss the appeal for the reasons that follow.

BACKGROUND

[6]

Bill Staples and his wife adopted the appellant
    and Rhonda Borelli as children. Bill worked with the appellant in farming and
    supported him financially throughout his life, including gifting him land on
    which to build a home.

[7]

The appellant opened Mulligans, a
    bar/restaurant and golf business, in 1996. Bill supported him with gifts of
    money and loans but refused to invest in the business. By 1997, the appellants
    financial difficulties had become evident and Bills close relationship with
    the appellant had deteriorated. The appellant continued to seek support from
    him, but Bill told many people he was no longer going to give the appellant any
    money. Shortly before Bills death, the appellant stole $20,000 from him by
    forging a cheque on his account.

[8]

The Crowns theory was that the appellant killed
    Bill and his sister Rhonda on January 16, 1998 in order to inherit his fathers
    estate and save his Mulligans business. Although he ultimately received
    approximately $1.4 million from the estate, the appellant did not receive the
    money for several months following Bills death and was not able to save his
    business in the meantime. Mulligans had been operating pursuant to a credit
    proposal, but the business failed and the proposal amount was never paid off.

[9]

In support of its theory, the Crown led a large
    volume of evidence that I summarize here.

The appellants situation

[10]

The appellant owned a Camaro and a red pickup
    truck with a gas tank on the back, in addition to a John Deere tractor he used
    to plow snow.

[11]

The appellant owed over $600,000 dollars to
    secured and unsecured creditors when Bill and Rhonda disappeared. The money was
    owed both personally and through the Mulligans business. Several witnesses
    testified that they invested in Mulligans and received nothing in return.

[12]

Bills relationship with the appellant had become
    strained, and later in 1997 they were not on speaking terms. According to the
    appellants ex-wife, Cheryl Echlin, the appellant and Rhonda did not talk
    and he avoided contact with her.

[13]

Bill told many people that he would no longer
    give money to the appellant. Nevertheless, there was also evidence that Bill
    was proud of the appellants business venture and that he continued to lend
    money to him, including a loan of $15,000 in December 1997.

[14]

In January 1998, the appellant forged Bills name
    on a cheque for $20,000 made out to Mulligans Golf Centre. There is no
    evidence that Bill knew of the fraud prior to his disappearance. $20,510.58 was
    seized from the appellants account by the sheriff on January 16, 1998, leaving
    nothing in the account.

Bill and Rhondas final movements

[15]

David Staples, Bills nephew, last saw Bill on
    January 12, 1998. Bill told him that he did not want the appellant to use his
    new tractor and had put chains through the front wheels.

[16]

Bill made a same-day medical appointment on
    January 15, 1998 to address what he said was an emergency. Just before the
    appointment, the doctors assistant received a call from a woman stating that Bill
    would be late. He never attended the appointment.

[17]

Cheryl Echlin saw Bill on January 16, 1998  the
    last day he was seen alive. Bill told her that he had been in Toronto and was
    going back the next day.

[18]

Rhonda was last seen alive on January 16, 1998
    in Binbrook at around 12:00 p.m. by Gerald Patterson. He saw her arguing with a
    man who was in a red pickup truck that had a gas tank on the back. She
    eventually got into the truck and drove away. Patterson knew the appellant but
    was not able to say that the man he saw was the appellant.

[19]

Lorie Bunker attended the Staples farm on
    January 16, 1998 at approximately 2:30 p.m. to deliver Avon products to Rhonda.
    No one answered the door. She returned two days later, on Sunday at 4:00 p.m.,
    and again got no answer at the door.

The appellants movements on January 16,
    1998

[20]

Ron Bender saw the appellant in Hamilton in a
    red pickup truck at about 12:00 p.m. on January 16.

[21]

Carl Jennings, whose band played at Mulligans
    on January 16, testified that he did not see the appellant at Mulligans that
    night.

[22]

Steven van Zeben said the appellant was not at
    Mulligans on January 16 when he arrived at 10:00 p.m., but that the appellant
    arrived 15 or 20 minutes later. van Zeben left Mulligans after 30 to 45
    minutes. He saw the appellant leave the Mulligans parking lot in his truck and
    the appellant passed him, travelling toward Bills farm.

[23]

Angela Jessop saw the appellant at approximately
    5:45 p.m. at Mulligans and said that he left by 7:00 p.m. She did not see the
    appellant again until about 11:00 p.m. He had changed his clothing. The
    appellant bought her a drink after midnight and she left Mulligans at about
    2:00 a.m.

[24]

Steve Martin, who lived across the street from
    the Staples farm, saw a vehicle drive up the driveway of the farm at 11:30 p.m.
    or later on January 16. Approximately 20 minutes later, he saw two vehicles
    leave the farm but could not identify them.

[25]

van Zeben and John Potter returned to Mulligans
    at about 1:30 a.m. and saw the appellant there. They stayed until the appellant
    locked up at 3:30 a.m.

Post-January 16, 1998 events

[26]

David Bunker drove his ATV on the Staples farm
    on January 17, 1998. He observed that snowplowing had been done and saw the
    appellants John Deere tractor with a snowplow. He did not see Bills white
    pickup truck but later that day saw the appellants Camaro in the driveway. In
    his 1998 statements to police, the appellant said he had plowed only the
    driveway, but in 2010 he acknowledged plowing extensively between the buildings
    at the farm.

[27]

On January 19, the appellants uncles Don and
    Murray Staples stopped at Mulligans on their way to visit Bills farm. The
    appellant told them that Bill and Rhonda had said they were going away for a
    few days, or that they had gone on a little holiday. The appellant told them there
    was no use in going to the farm because he had already been there and was returning
    that afternoon to check.

[28]

Sandra McLean saw thick black smoke coming from
    the burner behind the shop on Bills farm on January 19 and saw the appellants
    red pickup at the farm. The police found buckles, zippers, round disks that
    could have been buttons, and several pieces of torn cloth, along with eight
    coins in the ashes beneath the incinerator.

[29]

Earl Barlow went to the farm on January 19 and
    found that the television was on. A protein drink was on the table. A wet pair
    of jeans was in the washing machine. Earl called the appellant, who said that
    the jeans were his and that he had left the light and television on.

[30]

Earl Barlow returned to the farm on January 20
    with others. He saw that Bills pickup truck was gone. It had been removed from
    a concrete pad in the drive shed by driving over a 10 to 12-inch curb, because it
    was blocked by a tractor that had a dead battery.

[31]

That same day, Murray Staples saw the appellant
    crying, but the appellant did not respond to questions asking him what was
    wrong.

[32]

David Staples visited the farm on January 20 and
    saw the appellant in drive shed #1 cleaning up, sweeping, and scattering straw.
    A large bloodstain that had penetrated the concrete was later found there.
    Subsequent DNA testing established that the blood was Rhondas. David also visited
    the farm with Murray Staples on January 21. On one of his visits, David saw the
    appellant sobbing. He said that the locks on Bills tool chest had been cut
    along with the locks on the tractor. Officers Shulist and Allison did not
    notice locks having been cut when they visited the farm.

[33]

On January 23, the appellant expressed the
    concern that too many people were going through Bills house and that things
    were being done without his involvement.

[34]

The appellant did not testify, but two
    videotaped statements and one written statement he made to the police were entered
    into evidence.

DISCUSSION

[35]

Although the appellant raised numerous alleged
    errors in his factum, his oral submissions focused primarily on the admission
    and use of post-offence conduct demeanour evidence and the trial judges alleged
    failure to give limiting instructions in key areas giving rise to moral and reasoning
    prejudice.

The trial judge did not err in leaving post-offence
    demeanour evidence with the jury

1.

Evidence that the appellant was crying

[36]

The appellant argues that evidence that he was
    seen crying had no probative value and significant prejudicial effect and
    should not have been admitted. Several witnesses testified they saw the
    appellant crying on January 20, 1998, when Bill and Rhonda had been missing for
    only a few days. The appellants ex-wife testified that he was crying and
    sweating and that he smelled quite badly of perspiration, something that she
    said never occurred. The appellant submits that the trial judge erred in
    relying on
R. v. Sodhi

(2003), 66 O.R. (3d) 641 (C.A.), because
    the post-offence conduct in that case  the accuseds suicide attempt  was more
    extreme than the conduct in this case.

[37]

The respondent submits that evidence of the
    appellant crying had probative value as it was unique and unusual. The
    appellant, who was on all accounts not an emotional person, was crying even
    though his father and sister had not been missing long enough to raise the
    spectre of their deaths. I agree.

[38]

The starting point is that although its
    admission may be somewhat rare, there is no bar to the admission of demeanour
    evidence. It may be admitted where a witness has a basis for believing that an
    accuseds demeanour was unusual:
R. v. Trotta
(2004), 190 C.C.C. (3d) 199 (Ont. C.A.), revd on
    other grounds, 2007 SCC 49, [2007] 3 S.C.R. 453;
R. v. Short
, 2018 ONCA 1, 358 C.C.C. (3d) 337, at para. 54
.

[39]

In this case, the key witness concerning the
    appellants crying was the appellants ex-wife, who was intimately familiar
    with him and had a strong basis for believing that his demeanour was unusual. It
    had probative value in light of the evidence that the appellant had told his
    uncles Murray and Don Staples on Monday  the day before his crying was
    observed  that he did not know where Bill and Rhonda were, but they had said
    they were going away for a few days. After all, if his father and sister had
    taken a short trip, why would their absence provoke such a reaction in the
    appellant?

[40]

The evidence of the appellants highly unusual
    sweating and smell also gained probative value when considered against his statement
    to his uncles. Again, if his father and sister had simply gone away for a few
    days, why did his ex-wife observe him to be in physical distress?

[41]

Perhaps the best indication of the probative
    value of this evidence lay in the silence of defence counsel at trial. No objection
    was taken to the admission of the evidence that appeal counsel now says was
    prejudicial. The silence of defence counsel  present at trial and able to measure
    its probative value  speaks volumes.

[42]

I am satisfied that the evidence was properly
    admitted. It was open to the trial judge to find that this post-offence
    demeanour evidence had probative value in the context of the broader
    evidentiary picture and, in particular, the appellants statement to his uncles
    that Bill and Rhonda had gone away.

[43]

The second aspect of this ground of appeal concerns
    the Crowns closing. The appellant argues that Crown counsel improperly invited
    the jury to infer guilt from the appellants demeanour in the days after Bill
    and Rhonda went missing and from his videotaped statement to the police.

[44]

Concerning the appellants crying, the Crown
    stated as follows:

On Tuesday, January 20
th
, 1998, the
    police are contacted and attend at Staples Farms for the first time. Mark
    Staples is noted by both officers to be crying and also by his family members.
    Most significantly, his wife Cheryl Echlin notes that he is crying, sweating
    and producing body odour that she has never smelled from him before. This is
    the woman he married and lived with for 12 years. She had only seen him cry
    that way twice before; when his mother died and when his dog died. He was under
    stress and strain from his crime, and this crying is not the crying associated
    with the worry about his father and sisters whereabouts. He told many people,
    including Don Staples and Murray Staples when he saw them on January 19
th
at Mulligans, that his father and sister may have gone away for a few days. He
    also told Special Constable Linda Walsh, when he called the police at 11:30 p.m.
    that night, that they may have gone away for a few days, which is why she
    didnt file a missing persons report. If you believe that your father and
    sister may have gone away for a few days, why are you crying, sweating and
    producing unusually heavy body odour? I suggest to you that he was crying too
    early in the process for it to be tears of worry. No need to cry if theyre
    gone for a few days. They had been missing three and-a-half days at that point.
    I suggest these are tears of guilt, not tears of worry.

[45]

The trial judge instructed the jury as follows:

When considering what inference, if any, to
    draw from evidence of after-the-fact conduct, keep in mind that people
    sometimes cry, burn items, do a wash etc. for entirely innocent reasons. Even
    if Mark Staples was motivated by a feeling of guilt, that feeling might be
    attributable to something other than in the offence with which he is now
    charged.

[46]

The trial judges instruction specifically referenced
    the appellants crying and instructed caution in drawing inferences of guilt
    from post-offence conduct. Significantly, the instruction made clear that even
    assuming feelings of guilt existed in the appellant, they may have been
    motivated by something other than guilt over having committed the offence with
    which he was charged. In my view, this instruction was adequate to address any
    concerns about the evidence of appellants crying and sweating.

2.

The videotaped statement

[47]

There are two objections concerning the
    appellants videotaped statement to the police. First, the appellant argues
    that Crown counsel improperly suggested to the jury that the appellant would
    have vigorously den[ied] responsibility if he were in fact innocent. The
    impugned passage from the Crown closing follows:

Much of the statement to Detective Rick Arnold
    is the detective presenting the evidence collected during the course of the
    police investigation and asking Mark Staples to comment. Sometimes he does,
    sometimes he doesnt. I suggest there are many moments when you would expect
    him to vigorously deny responsibility and instead he says, mm-hmm, or yeah.

[48]

Although this statement looks problematic when read
    in isolation, it must be considered in light of its context: a 140-page
    statement in which the appellant repeatedly answered yeah and mm-hmm both
    to highly innocuous and less innocuous matters. It was open to the jury to
    consider the whole statement, and in that context that Crown counsels lead-in
    to the impugned statement makes good sense:

The last statement he gives to the police is
    after he is arrested in 2010. He speaks with Detective Rick Arnold on video at
    the police station.
The defence will say he denied committing the murders
    under close questioning
, just like he had denied responsibility in his
    earlier statements to the police. They will say he has consistently denied
    responsibility. I suggest the lies he has told in his statements should lead
    you to disbelieve him and lead you to disbelieve him when he denies
    responsibility for the murders. [Emphasis added.]

[49]

Crown counsel then went on to review numerous
    lies and inconsistencies in the appellants statement.

[50]

This is not a case in which Crown counsel asked
    the jury to infer guilt from silence. Nor is it a case in which Crown counsel asked
    the jury to make assumptions based upon a stereotype or speculation. The jury
    had a lengthy videotaped interview to consider, in which the appellants words
    and conduct were captured. Numerous yeah and mm-hmm responses by the
    appellant during the course of that interview informed the jurys overall view
    of how seriously he was taking the situation and provided a context against
    which his denials were to be assessed  denials that, as the Crown warned the
    jury, the appellant would be relying on in his closing address.

[51]

I see nothing problematic about Crown counsels statement.
    The problematic part of the Crowns closing came later, near the end of his
    remarks.

[52]

The appellant argues that Crown counsel crossed
    the line when he told the jury that they could draw an inference of guilt from
    the appellants demeanour when confronted with photographs of his dead father
    and sister. Crown counsel stated:

You all paid attention to that statement and
    followed along in the transcripts you were provided to assist you. However,
    when Detective Arnold showed Mark Staples the photographs of his father and
    sisters decomposing bodies in the back of the pickup truck and later in a bag
    at autopsy, you all looked up from your transcripts to see Mark Staples
    reactions. I suggest you could not believe his reaction to the photographs.
He did not look away. He did not say take them away
.
    He made no comment about Detective Arnold showing him those photographs.
    Instead, he was cold and clinical, looking coolly at the disturbing remains of
    his adoptive father and sister.
I suggest this was not
    the reaction of a man who had nothing to do with this crime, but rather the
    reaction of a cold, calculating killer.

[Emphasis added.]

[53]

The appellant argues Crown counsels suggestion
    that not looking away was the reaction of a cold, calculating killer was improper
    and should not have been made. The appellants reaction or non-reaction to the
    photographs was post-offence demeanour evidence that had no probative value and
    was inflammatory, and it was prejudicial for the Crown to urge the jury to draw
    an inference of guilt from the evidence.

[54]

I agree that this comment should not have been
    made. It was improper to say that the appellants reaction to the photographs
    looking coolly at the disturbing remains of the deceased rather than looking
    away  was the reaction of a cold, calculating killer. Implicitly, it suggested
    that there is a normal way to look at the remains of your deceased family
    members, and this is clearly not so.

[55]

This sort of suggestion is potentially dangerous
    because perceptions of guilt based on demeanour depend on what Rosenberg J.A.
    described as highly subjective impressions:
R. v. Levert
(2001), 159
    C.C.C. (3d) 71 (Ont. C.A.), at para. 27. As Doherty J.A. explained in
Trotta
,
    at para. 41, the evidence must be sufficiently unambiguous and demonstrative
    of a relevant state of mind so as to overcome concerns that a trier of fact may
    too easily equate what is perceived to be an unusual reaction with a guilty
    mind.

[56]

The evidence here is not unambiguous. Does a
    guilty person look away from the photographs or stare at them? No inference
    could be drawn from the appellants reaction to the photographs.

[57]

Despite the impropriety of Crown counsels
    remarks, I am not satisfied that they had the effect of rendering the trial
    unfair.

[58]

I begin by noting that the appellants reaction
    or non-reaction to the photographs was apparent when viewing the videotaped
    statement that was properly admitted in evidence. This is not a case in which
    evidence was placed before the jury that should not have been. On the contrary,
    the appellant wanted the videotaped statement admitted at trial. He chose not
    to testify, as was his right, so the statement acted as his voice at trial
    his denial of the crimes.

[59]

The impropriety arose from the suggestion that
    the jury could infer guilt from viewing the appellants failure to react as an
    innocent person would. To assess whether the appellant was prejudiced by this
    suggestion, the circumstances of the trial as a whole must be considered:
R.
    v. McGregor
, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 184.

[60]

The appellant did not object to the now-impugned
    passage following the Crowns closing. Instead, defence counsel proceeded to
    close to the jury. His closing included repeated references to the appellants
    demeanour following the disappearance of his father and sister, which he sought
    to characterize favourably  as consistent with the demeanour of an innocent
    person.

[61]

For example, defence counsel relied on the
    witnesses who had described the appellants normal demeanour at Mulligans on
    the night of January 16 and the next morning during a photoshoot, the timeframe
    in which the Crown theorized the appellant had murdered his father and sister.
    He asked: does it make any sense that he would be crying on the Tuesday when
    it is clear that there was something wrong, and yet be in a good mood and so
    absolutely normal on Friday, shortly after having killed his father and sister
    just hours earlier? Defence counsel also pointed out what he described as the
    contradictory nature of the Crowns demeanour submissions: on one hand, the
    Crown argued that the appellant was sobbing out of guilt; on the other hand,
    the Crown described the appellant as having the reactions of a cold,
    calculating killer.

[62]

Defence counsel addressed the photographs issue
    directly, pointing out the problematic nature of drawing inferences from the
    appellants reaction or non-reaction:

[T]his is clearly one of those situations
    where youre damned if you do, and youre damned if you dont. I can guarantee
    you that if Mark Staples turned away or refused to look at those pictures, [Crown
    counsel] would stand right here, stare you right in the eye, and tell you that
    his refusal was clearly the sign of a guilty man.

[63]

This submission demonstrates why the trial
    Crowns suggestion was improper. This was a situation in which there was no one
    right way to react, and this defence closing went some distance to educating
    the jury on the nature of this problem.

[64]

Only after the defence closed to the jury - having
    answered the Crowns impugned suggestion and relied on all kinds of demeanour
    evidence to argue for innocence - did defence counsel raise a concern about the
    Crowns closing. Even still, that concern was put softly: rather than ask for
    an instruction that the jury disregard what the Crown had said, defence counsel
    requested that the trial judge consider [giving] an instruction to the jury
    that they should be cautious about demeanour evidence.

[65]

In response to the trial judges question about
    what evidence the defence was referring to, defence counsel replied:
    particularly [the Crown] going to the jury in his closing right at the end
    with look at the way Mark Staples looked at those photographs without turning
    away. Thats what a guilty man would do, right? Defence counsel went on to
    clarify that this was another example of post-offence-conduct.

[66]

The trial judge noted that defence counsel had
    also addressed demeanour in his closing, and specifically addressed the appellants
    reaction to being shown the photographs. He considered that the usual caution
    to the jury on demeanour evidence would be adequate, and those instructions
    were given.

[67]

Although the defence was concerned with what
    Crown counsel had said, it cannot be said that this concern was as grave as is
    now suggested on appeal. Defence counsel was in the best position to determine,
    in the context of the trial as a whole  including both closing addresses  the
    extent to which prejudice arose from Crown counsels comment. The fact that defence
    counsel did not consider it necessary to have the trial judge instruct the jury
    to disregard that comment is important in this context.

[68]

In addition to the caution on demeanour
    evidence, the trial judge instructed the jury that the things said by lawyers
    were not evidence. With respect to drawing inferences from post-offence conduct,
    the trial judge cautioned the jury that things might be done for entirely
    innocent reasons.

[69]

In all of these circumstances, I am satisfied
    that Crown counsels comment did not render the trial unfair.

The trial judge did not err in leaving post-offence
    conduct with the jury

[70]

The appellant submits that the trial judge erred
    in admitting several pieces of post-offence conduct evidence in addition to the
    demeanour evidence addressed above. He focused on the admission of the
    following evidence:

1.

The appellants statement to Mulligans employee Michael Keating
    that he should not talk to the police and should get a lawyer;

2.

The appellants statement to his uncles on
    January 19, dissuading them from going to the farm;

3.

The appellants wet jeans in the washing machine
    when Earl Barlow went to the farm on Monday evening, January 19; and

4.

The transport of the bodies in Bills truck to
    the Park N Fly.

[71]

I see no error. In each case, the post-offence
    conduct reasonably supported inferences of guilt.

[72]

First, the appellant visited the home of Michael
    Keating, whom he owed several thousand dollars, late on the night of February
    28, 1998. Keating testified that the appellant told him: if the police come to
    see you again, dont talk to them and maybe get a lawyer. This was not
    particularly strong evidence, but it did permit the inference that the
    appellant was frustrating or at least choosing not to assist the investigation
    at a time when Bill and Rhonda were presumed missing. Keating was also a
    witness who could support the evidence of the appellants financial distress,
    which was relevant to the Crowns motive theory.

[73]

Second, the evidence that the appellant
    dissuaded his uncles from attending the farm on Monday, January 19 supported
    the inference that he wanted to keep them away while he conducted a cleanup.
    This was supported by the evidence of thick black smoke coming from the burner
    outside the shop that day and the remnants of clothing that were found, along
    with evidence that the appellant had been sweeping straw in the area where
    Rhondas blood was found.

[74]

Third, the presence of the appellants wet jeans
    in the washing machine supported the inference that the appellant had been
    cleaning up the crime scene on January 19 and had washed clothing connected to
    the murders or cleanup.

[75]

Fourth, the appellant argues that the transport of
    the bodies in Bills truck is not really post-offence evidence. It is, however,
    circumstantial evidence pointing to the identity of the killer, for it
    supported the inferences that Bill and Rhonda were killed at the farm and that
    the killer was not a stranger. As the Crown asked, if a stranger were the
    killer, why would that person risk moving the bodies elsewhere? The appellant
    had access to the farm and truck, and the truck had been moved over a curb in a
    manner that suggested it had not been moved by Bill. Moreover, if he had left
    on a trip it was far more likely that Bill would have taken his car than his
    truck.

[76]

In summary, the trial judge did not err concerning
    the admission of the post-offence conduct evidence.

The post-offence conduct instructions and the Crowns
    closing

[77]

The trial judge cautioned the jury that the appellants
    post-offence conduct evidence had only an indirect bearing on his guilt and
    made clear there may be other explanations for his post-offence conduct. He properly
    instructed the jury not to infer guilt from the post-offence conduct evidence unless
    they were satisfied, in the context of the evidence as a whole, that it was
    consistent with his guilt and inconsistent with any other reasonable
    conclusion. The trial judge reiterated this point, stating that the jury could
    use the post-offence conduct to support an inference of guilt only if they rejected
    any other explanation for the conduct. Nothing more was required.

[78]

During the pre-charge conference, the trial
    judge ruled that some things could not be regarded as post-offence conduct from
    which guilt could be inferred, including evidence that the appellant had plowed
    behind the farm buildings to cover up Bills murder, which the Crown theorized
    happened outdoors. The trial judge ruled that this was too speculative and not
    probative. He also ruled that garbage bags in the dumpster were not admissible,
    along with the key to Bills safety deposit box, a copy of a loan agreement
    with Bill, and missing person posters the appellant threw away.

[79]

The following exchange took place:

The Court: I dont know how I can prevent you
    from commenting on it, either one of you, however, my ruling is you cannot
    comment on it on, on the basis of its after-the-fact conduct.

[Crown counsel]: Right.

The Court: And, and you cannot comment on it
    on the fact that consciousness of guilt through after-the-fact conduct flows
    from that evidence.

[Crown counsel]: I think what I will do then,
    Your Honour, is eliminate my references to the extra inference that should be
    drawn by the jury from that evidence, but I will canvas it as things they heard
    about what Mr. Staples did after the murder. I just wont go the extra step of
    suggesting that it shows that he was conscious of his guilt.

[Defence counsel]: I think that may be a
    slippery slope and it still may open up [Crown counsel] to, to sort of comment
    in your charge about, about that evidence depending on how he does it, Your
    Honour.

[The Court]: Well, I believe [Crown counsel]
    is careful and theres no reference that this is an inference of guilt or
    after-the-fact conduct. Its permissible. Its evidence the jurys heard and he
    can comment on any evidence the jurys heard, but hell have to be careful on
    the inference he tells them to draw from it.

[80]

The appellant argues that Crown counsel wrongly
    invited the jury to draw inferences of guilt from this evidence despite the
    trial judges ruling.

[81]

The line between using post-offence conduct
    evidence for proper and improper purposes is a fine one, and read in isolation
    some of the Crowns closing remarks came close to that line. However, read as a
    whole, the Crowns closing remarks would have been understood as an attack on
    the credibility of the appellants exculpatory statements. The Crown was
    entitled to note that evidence the appellant had plowed between the buildings
    contradicted his statements to the police that he had plowed only the driveway,
    and evidence that the key to Bills safety deposit box was found in the garbage
    was inconsistent with the appellants statement that he had not disposed of it.
    The evidence also demonstrated that the appellant had control of the farm during
    the relevant time.

[82]

The trial judge properly instructed the jury
    concerning the use of the appellants statements in accordance with
R. v. W.(D.)
, [1991] 1 S.C.R. 742.
Specifically, he instructed them that if they accepted the
    appellants denials of involvement in the deaths or disappearances, they must
    find him not guilty. Even if they did not accept his denials, the appellant was
    entitled to an acquittal if his statements gave rise to a reasonable doubt.
    Finally, the trial judge instructed the jury that even if they rejected his
    statements, they had to go on to determine if his guilt had been proven beyond
    a reasonable doubt on the basis of the evidence they accepted. For good
    measure, the trial judge repeated these instructions later in his charge.

[83]

This ground of appeal must be rejected.

The
OConnor
ruling on fabrication

[84]

At the end of the trial, the Crown sought a
    ruling that it be permitted to urge the jury to infer that numerous
    inconsistencies and lies in the appellants statements amounted to fabrication
    and consciousness of guilt, and requested that the jury be instructed in
    accordance with
R. v. OConnor
(2002), 62 O.R. (3d) 263 (C.A.). The
    trial judge found that there was no independent evidence establishing
    fabrication and so denied the Crown permission to make the fabrication
    argument.

[85]

The appellant argues that Crown counsels
    closing breached the trial judges ruling. This argument was not set out as a
    ground of appeal in the notice of appeal, nor was it made in the appellants
    factum, but it is similar to the appellants argument on the Crowns use of
    post-offence conduct so I address it here briefly.

[86]

The following exchange took place concerning the
    use that could be made of the evidence that had already been admitted:

The Court: And by dismissing it [the Crowns
    fabrication application], I mean, it certainly doesnt mean that youre not at
    liberty to go to the jury as all the inconsistencies and the obvious lies and
    all of the

[Crown counsel]: Ill be, Ill just be careful
    with my language, Your Honour.

[Crown counsel]: I understand I cant use the
    word fabrication or concoction.

The Court: Itll be

[Crown Counsel]: Well, I can use the word
    lie.

The Court: Or consciousness of guilt is
    another one.

[87]

Crown counsel was entitled to challenge the
    credibility of the appellants statements by pointing out the numerous inconsistencies
    or lies in those statements and the conflict with the other evidence, and he
    did so vigorously. I do not read the Crowns closing as offending the
OConnor

ruling. The Crown did not invite the jury to use disbelief of the
    appellants statement to find deliberate concoction, from which an inference of
    guilt could be taken:
R. v. Iqbal
, 2021 ONCA 416, at para. 54. Put
    another way, the Crown did not suggest to the jury that rejection of the
    appellants statement was capable of supporting an inference of guilt.

[88]

The failure of defence counsel to object to the
    Crown closing supports the conclusion that Crown counsel did not cross the
OConnor

line. Instead of objecting, defence counsel addressed the appellants statements
    at length in his submissions. He emphasized that the appellant had willingly assisted
    the police throughout their investigation and characterized the inconsistencies
    in his statements as relatively minor and of no real consequence. The
    appellant was admittedly terrible with times and dates, he said. If he were
    guilty of the murders, would he not have worked out a much more consistent
    timeline regarding his whereabouts at all material times?

[89]

As well, and as noted above, the trial judge
    properly instructed the jury concerning the use of the appellants statements
    in accordance with
W.D
.
It is not clear any further instruction
    would have benefited the appellant, given that it would have served to
    highlight the many inconsistencies the jury would be told they could not use to
    find guilt. In any event, the trial judge fairly put the defence argument to
    the jury: inconsistencies in the appellants statements came during a time in
    which the appellant was under great stress, and they were inconsequential in
    light of the evidence as a whole. Nothing more was required.

A discreditable conduct instruction was not required

[90]

The appellant argues that the Crown used the extensive
    evidence of the appellants financial difficulties to characterize him as a
    person of bad character  greedy, selfish, irresponsible, and a self-serving,
    cold and heartless person who thought nothing of taking advantage of people he
    knew  rather than to establish motive, and as a result the trial judge should
    have given a discreditable conduct instruction.

[91]

Defence counsel objected to the Crowns
    introduction of evidence concerning the many failed efforts of creditors to
    collect debts owed by the appellant after January 16, 1998, the date on which the
    Crown theorized Bill and Rhonda were killed. Defence counsel conceded that the
    evidence up to that date was relevant to establishing the appellants financial
    state and motive but argued that beyond this date it was simply evidence of the
    appellants bad character: he was someone who did not repay debts. The trial
    judge rejected this argument, describing the appellants financial stress as
    terribly relevant at the time of the murders, and stated that the only way to
    show financial distress was by showing that it was not relieved thereafter.
    However, he also indicated that it was not necessary to dwell on creditors
    efforts to try to collect on the appellants debts.

[92]

The appellant does not dispute the admissibility
    of the financial evidence but argues that Crown counsel went further than the trial
    judge authorized, and in doing so the evidence was used as bad character
    evidence. The appellant submits that a discreditable conduct instruction was
    required.

[93]

I do not agree.

[94]

Where evidence is admissible to establish
    motive, a discreditable conduct instruction on that same evidence will
    sometimes be unnecessary. As Doherty J.A. explained in
R. v. Merz
(1999),
    46 O.R. (3d) 161 (C.A.), at para. 59, leave to appeal refused, [2000] S.C.C.A.
    No. 240, an inference of motive may be more direct and powerful than the
    possibility of propensity reasoning, and a discreditable conduct instruction
    would only confuse the jury. See also
R. v. Krugel
(2000), 143 C.C.C.
    (3d) 367 (Ont. C.A.), at para. 90; and
R. v. Thomas
, 2018 ONCA 694, at
    para. 35.

[95]

The sole issue for the jury in this case was the
    identity of the killer. Extensive evidence of the appellants financial
    misconduct and financial woes was tendered to establish the appellants motive
    for wanting to kill his father. Although the trial judge could have told the
    jury that they must not use this evidence to conclude that the appellant was
    the
type
of person who would commit murder, and was thus likely to
    have committed the murders, the fact that he did not do so carries little
    weight. Indeed, any such instruction might have served to highlight the
    strength of the evidence of motive, which was already very strong.

[96]

In my view, there was no risk that the financial
    evidence would be misused by the jury. Even if the jury thought that the
    appellant was greedy, selfish, and so on, they would not have thought that he
    was a murderer  that he would have brutally murdered his father and sister  simply
    because he had those character traits. Again, the absence of an objection at
    trial belies the suggestion of prejudice raised on appeal.

The circumstantial evidence charge was adequate

[97]

The appellant argues that the trial judge did
    not provide the jury with an adequate circumstantial evidence instruction. In
    effect, the appellant says the trial judge instructed the jury to treat the
    post-offence conduct differently than the other circumstantial evidence. The
    jury should have been instructed in accordance with the requirements set out subsequently
    by the Supreme Court in
R. v. Villaroman
, 2016 SCC 33, [2016] 1 S.C.R.
    1000.

[98]

The trial judge instructed the jury on the
    distinction between direct and circumstantial evidence and the process of
    drawing inferences from circumstantial evidence. Later, in the context of
    instructing the jury on post-offence-conduct evidence, the trial judge
    instructed the jury as follows:

After-the-fact conduct is simply a type of
    circumstantial evidence.
As with all circumstantial
    evidence, you must consider what inference, if any, is proper to draw from this
    evidence.
You may use this evidence, along with all the other evidence
    in the case, in deciding whether the Crown has proved Mark Staples guilt
    beyond a reasonable doubt. However, you must not infer Mark Staples guilt from
    this evidence unless, when you consider it along with all the other evidence,
    you are satisfied that it is consistent with his guilt and is inconsistent with
    any other reasonable conclusion. [Emphasis added.]

[99]

Although this instruction arises in the context
    of the appellants post-offence conduct, it is not rendered inadequate on that
    account. What matters is whether the jury received the instruction, not the
    sequence in which the instruction was delivered. The trial judge made clear
    that the instruction applied to all circumstantial evidence. In the key
    passage, the trial judge told the jury that in relation to all circumstantial
    evidence, guilt was
not
to be inferred unless the
    evidence was consistent with guilt
and inconsistent with
    any other reasonable conclusion
. These instructions track the approach
    set out by the Supreme Court in
Villaroman
.

As Cromwell J.
    stated at para. 30:

[I]n a case in which proof of one or more
    elements of the offence depends exclusively or largely on circumstantial
    evidence, it will generally be helpful to the jury to be cautioned about too
    readily drawing inferences of guilt. No particular language is required.
    Telling the jury that an inference of guilt drawn from circumstantial evidence
    should be the only reasonable inference that such evidence permits will often
    be a succinct and accurate way of helping the jury to guard against the risk of
    filling in the blanks by too quickly overlooking reasonable alternative
    inferences.

[100]

If the appellant were right  if the jury would not have understood
    how to properly approach circumstantial evidence  one would have expected an
    objection on a matter so fundamental to this case. Again, the absence of the
    objection demonstrates defence counsels view that the instruction as given,
    albeit in the context of the post-offence conduct instruction, was sufficient.

The trial judge did not err by failing to prevent the
    Crown from inviting the jury to speculate and shifting the onus of proof

[101]

The appellant argues that deficiencies in the charge concerning
    circumstantial evidence were compounded by Crown counsels invitation to the
    jury to speculate on several matters. The appellant submits that the Crown
    invited speculation by suggesting:

·

the appellant likely had help in moving the
    bodies;

·

the appellant had gone to the bank on Friday to
    withdraw funds;

·

Bills hairpiece would likely have limited the
    blood splatter;

·

Bill was likely killed outside at the farm and
    evidence had melted away into the gravel and dirt; and

·

the degree of force used to kill Bill suggested
    an attack fueled by anger rather than murder by a stranger.

[102]

The appellant argues that by inviting speculation in a
    circumstantial case, the Crown shifted the burden onto the appellant to prove
    the opposite of what the Crown suggested the jury should conclude. Crown counsel
    also shifted the burden by suggesting that there was no evidence of anyone else
    with a motive to kill Bill and Rhonda; that rarely are people murdered for no
    reason; and by telling the jury there was no other explanation for Rhondas
    blood being found on the floor in drive shed #1. The trial judge erred, the
    appellant submits, in not reiterating that the appellant did not have to prove
    anything.

[103]

I would reject this submission.

[104]

The appellants argument overlooks the distinction between
    speculation and inferences. Admittedly, the distinction can be difficult to
    draw, but there is a distinction and it is relevant here.

[105]

The Crown was entitled to invite the jury to draw reasonable inferences
    based on evidence the jury was entitled to accept. For example, Gerald
    Patterson gave evidence that on January 16, 1998 at around 12:00 p.m., he saw a
    woman he subsequently identified as Rhonda arguing with a man in a red pickup
    truck that had a gas tank on the back. The appellant owned a red pickup truck
    with a gas tank on the back. Patterson saw Rhonda get into the truck with the
    man and drive off. This was the last time she was seen alive.

[106]

Lorie Bunker attended the Staples farm that same day at about 2:30 p.m.
    to deliver Avon products to Rhonda. No one answered the door. The jury was
    entitled to accept this evidence and to infer that Rhonda had been killed by
    this time. The inference that she had been killed was further supported by the
    large bloodstain found in shed #1  Rhondas blood, albeit that the date of the
    bloodstain could not be determined.

[107]

Acceptance of this evidence and the drawing of the inferences suggested
    by the Crown supports further inferences concerning the killing of Bill, for it
    was reasonable to infer that the same person killed both Bill and Rhonda. The
    appellants motive extended to both victims: he stood to inherit Rhondas share
    of Bills estate. Although there was evidence from one witness, Angela Jessop,
    that the appellant was at Mulligans on the night of January 16, there was
    evidence from several other witnesses that the appellant was not there that
    night and evidence that he was not there until much later in the evening. At
    the same time, there was evidence that the appellant was at the farm that
    night, when the Crown theorized that Bill was murdered and the bodies were moved.

[108]

It was for the jury to decide which evidence to accept. The jury was
    entitled to infer that the appellant killed Bill and Rhonda and moved their
    bodies. This inference was supported by an extensive body of post-offence
    conduct evidence. The evidentiary foundation for the inference that a second
    person was involved in moving the bodies was a witnesss observation that he
    saw two vehicles leaving the farm that night. The movement of the bodies, along
    with the absence of any evidence of a robbery or break-in at the farm, in turn supported
    the inference that Bill and Rhonda were not killed by a stranger.

[109]

The appellants argument focuses on individual pieces of evidence
    rather than the evidence as a whole. It ignores the larger picture the evidence
    painted and the inferences the jury was entitled to draw. This was indeed a
    circumstantial case, but it did not depend on speculation about any important
    matters. Although the details of the killings cannot be known with certainty,
    they need not be in order to sustain the convictions. The jury was properly
    instructed as to the presumption of innocence and the burden of proof and was reminded
    by the trial judge that it remained on the Crown throughout. Nothing more was
    required.

The trial judge did not err by failing to instruct the
    jury to disregard impermissible opinion evidence

[110]

The appellant argues that he was prejudiced when the jury heard
    evidence that the appellants family, friends, and the community thought that
    he was responsible for the disappearance of Bill and Rhonda. This was
    inadmissible opinion evidence that went to the very issue the jury was to
    decide, and no instruction was given.

[111]

The difficulty with this submission is that although two Crown witnesses
    testified as to their belief in the appellants guilt, their evidence was
    elicited in cross-examination. Further, the appellant relied on this evidence
    to support his argument that there was animus against him. The absence of an
    objection or request for an instruction confirms the conclusion that this
    evidence occasioned no prejudice.

The trial judge did not err in refusing to permit the
    appellant to lead evidence of another unsolved homicide

[112]

At the outset of the trial, the appellant brought an application in
    accordance with
R. v. OConnor
, [1995] 4 S.C.R. 411, seeking
    disclosure of the file concerning an ongoing murder investigation by the
    Hamilton Police Services. The investigation concerned the death of an elderly,
    relatively wealthy man, Clyde Frost, who was killed in his home on Hamilton
    Mountain, allegedly by blunt force trauma to the head. He was found in his
    vehicle, which had been parked in Toronto, several days later.

[113]

The appellant argued that the murderer in the Frost case could be
    the murderer in the Staples case, leading to reasonable doubt as to his guilt.
    The trial judge dismissed the
OConnor
application. He also dismissed
    the appellants application to adduce evidence of the Frost homicide as
    pointing to an unknown third-party suspect.

[114]

The appellant argues that the trial judge held the defence to too
    high a standard. Although he argues that the trial judge erred in dismissing
    both applications, his argument focuses on the trial judges refusal to permit
    him to adduce evidence of the Frost homicide. The appellant says that there
    were numerous similarities between the Frost and Staples homicides. The Frost
    homicide was logically relevant to the identity of the killer(s) in this case,
    and there was an air of reality to the suggestion that the same person
    perpetrated both crimes. In light of the Supreme Courts decision in
R. v.
    Grant
, 2015 SCC 9, [2015] 1 S.C.R. 475, the appellant should have been
    permitted to lead evidence of the Frost homicide.

[115]

This submission must be rejected. Although the trial judges
    decision was made prior to
Grant
, that case does not alter the result
    in this one.
The Supreme Court made clear in
Grant
that
    when the third-party suspect is unknown, there must be a sufficient factual
    foundation for a properly instructed jury to give effect to the defence. The
    Court stated, at para. 45:

Where the defences theory is that an unknown
    third party committed the indicted crime, this factual foundation will be
    established by a sufficient connection between the crime for which the accused
    is charged and the allegedly similar incident(s), coupled with the impossibility
    that the accused committed the other offence.

[116]

If
    this foundation is established, relevant evidence will be excluded only if its
    prejudicial effect substantially outweighs its probative value:
Grant
, at para. 46.

[117]

The
    trial judge found no sufficient connection between the Frost and Staples
    murders to give the unknown suspect defence an air of reality
no evidence to suggest a random killer in either case. The evidence
    in the Frost murder suggested that he was targeted by persons he knew.

[118]

The appellant cites a list of similarities between the Staples and
    Frost murders and invites this court to make a different assessment of the
    evidence. That is not this courts function on appeal. It was for the trial
    judge to consider the evidence and make the determination as to the sufficiency
    of the evidence. His finding

is entitled to
    deference.

[119]

Finally, although
there was no suggestion by the Crown that
    the appellant had committed the Frost murder, the trial judge found that he
    could not be ruled out as a suspect
.
The appellant argues that
Grant
cannot be read as establishing a burden on an
    accused to establish that he did not commit the other murder, but there is no
    need to address this issue. The bottom line is that the trial judge found no
    air of reality to the unknown third-party suspect defence. He made no error in
    doing so and there is no basis to interfere with his finding.

The verdict was not unreasonable

[120]

The appellants argument in this regard is brief. The appellant
    submits that there was a paucity of evidence in this case and no forensic
    evidence linking him to the homicides. The appellant then reiterates a number
    of arguments addressed above and submits that the verdict was unreasonable.

[121]

It is well established that a verdict is unreasonable only if it is one
    that a properly instructed jury, acting judicially, could not reasonably have
    rendered: see e.g.,
R. v. W.H.
, 2013 SCC 22,
    [2013] 2 S.C.R. 180.
Where a verdict rests wholly or substantially on
    circumstantial evidence, appellate courts must ask whether the trier of fact,
    acting judicially, could reasonably be satisfied that the guilt of the accused
    was the only reasonable conclusion available on the evidence taken as a whole:
R.
    v. Lights
, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 39. As Watt J.A.
    said in
R. v. Chacon-Perez
,
    2022 ONCA 3, at para. 80:

The circumstantial evidence does not have to
    totally exclude other conceivable inferences. Nor is a verdict unreasonable
    simply because the alternatives did not cause a doubt in the jurys mind. It remains
    fundamentally for the trier of fact to decide whether any proposed alternative
    way of looking at the case was reasonable enough to raise a doubt:
Villaroman
,
    at para. 56.

[122]

The sole issue in this case was the identity of the killer. Although
    the case against the appellant was circumstantial, the body of circumstantial
    evidence implicating him in the murders was substantial. I have already
    discussed this evidence. I summarize it here in broad compass:

·

strong motive established by extensive evidence
    of the appellants financial difficulties;

·

Bills unwillingness to provide further
    financial assistance to the appellant;

·

the appellant was the main heir to Bills estate
    in the event that Rhonda was killed;

·

the appellant was the last person seen with
    Rhonda prior to her death;

·

a large bloodstain found in drive shed #1 was
    Rhondas blood;

·

the appellant had the opportunity to kill Bill
    and Rhonda; and

·

the appellant was in control of Bills farm and there
    was evidence that he had engaged in a cleanup operation subsequent to the
    killings.

[123]

As in
Chacon-Perez
,
it
was for the jury to determine whether
the
cumulative effect
of this evidence  not
    simply its individual parts considered in isolation  excluded inferences other
    than guilt. To be sure, there were important conflicts in the evidence the jury
    had to resolve, but the jury was entitled to accept the evidence that permitted
    the inferences the Crown invited them to draw.

[124]

I conclude that the jury, acting judicially, could have been
    satisfied that the guilt of the appellant was the only reasonable conclusion
    available on the evidence considered as a whole.

CONCLUSION

[125]

I would dismiss the appeal.

Released: April 1, 2022 J.M.F.

Grant
    Huscroft J.A.

I
    agree. Fairburn A.C.J.O.

I
    agree. Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Andrews v. Pattison,
    2022 ONCA 267

DATE: 20220401

DOCKET: C69720

Doherty,
    Huscroft and Harvison Young JJ.A.

BETWEEN

Amanda
    Jane Andrews and Keri Ann Baker, personally and as Estate Trustees of the
    Estate of Linda Gordon, Willow May Baker, Tobin Bryon Baker and Violet Grace
    Baker, all by their Litigation Guardian Jeffrey Robert Baker, Sara Nicole
    Andrews and Emily Lyn Andrews

Plaintiffs (Appellants)

and

Dr. Leslie Pattison

Defendant (Respondent)

Bronwyn M. Martin, B. Robin Moodie and
    Joni Dobson, for the appellants

Andrea H. Plumb and John A. M.
    Petrella, for the respondent

Heard: March 28, 2021 by video conference

On
    appeal from the judgment of Justice John R. McCarthy of the Superior Court of
    Justice, dated July 5, 2021, with reasons at 2021 ONSC 4757.

REASONS FOR DECISION

[1]

The appellants appeal from a summary judgment
    dismissing their action on the basis that their claim was statute barred. The
    action arose from allegations of medical malpractice. The circumstances may be
    briefly summarized. Ms. Linda Gorton was diagnosed with terminal lung cancer in
    late spring 2013, and unfortunately died in April 2014. She had received
    medical attention and treatment from the respondent doctor between 2008 and
    2013, having complained of shortness of breath and chest pain. The respondent
    ordered a chest x-ray late in 2008 but discovered no anomalies. No further chest
    x-rays were ordered until May 2013. It was a result of that x-ray that the
    cancer was diagnosed. The appellants issued their statement of claim on April
    11, 2016.

[2]

The appeal rests on the argument that the motion
    judge erred in conducting his analysis under section 5(1)(a) of the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B, rather than s. 5(1)(b). Section
    5(1)(b) addresses discoverability, i.e., when a person ought to have known
    than an action could lie. Section 5(1)(a) addresses actual knowledge.

[3]

The appellants submit that the limitation period
    did not begin to run until they received expert reports on the standard of care
    and causation in August and December 2015 respectively.  The appellants also
    submit that the motion judge fell into palpable and overriding error in finding
    that the deceased and her family had actual knowledge of the facts upon which
    the allegations of negligence could be based as early as May 30, 2013, the date
    of the deceaseds diagnosis, and no later than February 6,2014 when they met
    with a medical malpractice lawyer. At that time, the lawyers explained the
    factor necessary to establish a breach of a standard of care and causation.
    The plaintiffs subsequently ordered expert reports on the standard of care and
    causation which were received in August and December 2015 respectively.  Both
    reports supported the appellants position that they had a viable cause of
    action.

[4]

We do not agree with the appellants submission
    that the limitation period did not begin to run until they had received the
    expert reports.

[5]

The parties agree on the test to be applied. As
    set out by the Supreme Court of Canada at para. 48 of
Grant Thornton LLP v.
    New Brunswick
, 2021 SCC 31, 461 D.L.R. (4th) 613, a claim is discovered
    when a plaintiff has knowledge, actual or constructive, of the material facts
    on which a plausible inference of liability on the defendants part can be drawn.
    A plausible inference lies along a spectrum, ranging from mere suspicion to
    certainty: at para. 46.  The parties also agree that the determination of where
    a particular case falls on this spectrum is a fact-based inquiry:
Lawless
    v. Anderson
, 2011 ONCA 102,

276 O.A.C. 75, at para. 23.

[6]

The appellants argue that the trial judge fell
    into palpable and overriding error in applying the test to these facts,
    particularly in failing to find that the receipt of expert reports was
    necessary to the appellants having sufficient material facts to satisfy the
    plausible inference that they had a potential negligence claim.

[7]

We disagree. The motion judge set out the
    evidence before him upon which he based his conclusion. The material facts upon
    which he relied include the undisputed facts that:

·

the deceased had been under the defendants care
    throughout the entire period between 2008 and 2013, during which she had
    complained repeatedly about shortness of breath, but the defendant had not
    ordered a chest x-ray between 2009 and May, 2013;

·

this x-ray lead immediately to the biopsy which resulted
    in the diagnosis of advanced, terminal lung cancer shortly thereafter;

·

the deceased and her family were immediately
    concerned about the fact that a chest x-ray had not been previously ordered and
    whether an earlier x-ray might have led to a different outcome;

·

after obtaining complete medical records, by the
    fall of 2013, they sought legal advice almost immediately, and through to her
    death in April 2014, the deceased indicated to her family that she wished to
    pursue the matter; and

·

the expert reports on standard of care and
    causation, received in August and December,2015, did not disclose any
    additional material facts.

[8]

The motion judge specifically addressed and
    rejected the appellants argument that the potential negligence claim was not
    discoverable until the receipt of the expert reports. In particular, he noted
    that the determination of when a potential plaintiff has sufficient material
    facts is not to be conflated with the question of the discovery of the merits
    of the potential action, stating that the Act does not distinguish between
    meritorious and non-meritorious claims.  This was a fact-based inquiry as the
    motion judge recognized in citing paras. 22-23 of
Lawless
.

[9]

We see no reason to interfere with the motion
    judges findings that the latest date upon which the action was discoverable
    was the date of the meeting with the medical malpractice lawyer on February 6, 2014
    and was therefore out of time when the claim was issued on April 11, 2016.

[10]

We also reject the appellants argument that
    they did not have knowledge, actual or otherwise, of the potential claim in May
    2013 as the respondent had told them that an earlier x-ray would not have
    affected the prognosis. The motion judge found that the deceased and her family
    intended to pursue the matter immediately following the deceaseds diagnosis
    until the time of her death. Accordingly, the appellants did not rely on the
    respondents representations. Further, the appellants point on this issue does
    not address the finding that in any event the appellants had actual knowledge
    no later than February 6, 2014. The constructive knowledge in s. 5(1)(b) can
    have no application to this case:
Dass v. Kay
, 2021 ONCA 565, at para.
    54.

[11]

The appeal is dismissed.  Costs of this appeal
    are payable by the appellants to the respondent in the amount, as agreed, of
    $15,000 within 30 days.

Doherty
    J.A.

Grant
    Huscroft J.A.

A.
    Harvison Young J.A.