COURT OF APPEAL FOR ONTARIO

CITATION: Li v. Li, 2021 ONCA 669

DATE: 20210929

DOCKET: C68703

Feldman, Paciocco and Coroza
    JJ.A.

BETWEEN

Xiang
    Li

Applicant (Respondent)

and

Xiang-E
    Li

Respondent (Appellant)

Heng (Pandora) Du, for the appellant

Michael J. Stangarone and Stephen P.
    Kirby, for the respondent

Heard: March 12, 2021 by video conference

On appeal from the order of Justice E.
    Llana Nakonechny of the Superior Court of Justice, dated September 15, 2020,
    with reasons reported at 2020 ONSC 5552.

Coroza J.A.:

I.

overview

[1]

The appellant appeals from the dismissal of her
    motion (the Motion), in which she sought an order dismissing, on
    jurisdictional grounds, the respondents application for relief arising from
    the breakdown of their marriage (the Application). Before the motion judge,
    the appellant argued: i) that Ontario lacked jurisdiction to hear the
    Application and ii) in the alternative, that the city of Kunming, in the
    province of Yunnan, Peoples Republic of China was the more appropriate forum
    for the dispute. The motion judge rejected both arguments, concluding that Ontario
    had jurisdiction and that the appellant had not met her burden of showing that
    China was the clearly more appropriate forum for the case.

[2]

For the reasons that follow, I would not
    interfere with the motion judges finding that Ontario has jurisdiction to hear
    the dispute. However, I conclude that the motion judge erred in reaching the
    conclusion that China was not the clearly more appropriate forum for
    resolving the respondents property and support claims.

[3]

At its core, this litigation relates to assets
    located in China and the respondents post-separation interest in them, if any.
    The respondent purportedly waived his interest in the assets by entering into
    three written agreements in China. These agreements have not been set aside.
    Since these documents were executed and witnessed in China, the Chinese courts
    are in a far better position to deal with their applicability. Respectfully,
    the motion judge ignored this very important factor in analyzing the doctrine
    of
forum non conveniens
.
[1]
Instead, the motion judge focused on the fact that the respondent was pursuing
    a trust claim interest in a single property in Ontario: a property worth a
    small fraction of the appellants overall assets. In my view, the failure to
    consider the parties domestic agreements as central to the
forum non conveniens
analysis was an error in principle justifying intervention by this
    court.

II.

background

[4]

In 2003, the appellant and the respondent met in
    China. In 2012, they married in the city of Kunming, Yunnan Province, China.

[5]

The appellant is a Chinese citizen. She
    previously held Canadian permanent resident status, until it expired in March
    2019. This status was not renewed. The respondent is a Canadian citizen.

[6]

The appellant provided evidence during the Motion
    demonstrating that, between the date of marriage in 2012 and the date of
    divorce in 2018 (approximately 6 years), she was in Canada for a total of approximately
    300 days (less than 10 months in total). She conceded during questioning that
    some visits to Toronto, Ontario in 2015 may not have appeared in the evidence
    filed by the parties.

[7]

Both parties were previously married and have
    children from those marriages. They do not have any children together.

[8]

The parties do not agree on their date of
    separation. The appellant claims that the parties separated in April 2016,
    after a physical altercation in their home. For his part, the respondent claims
    that the parties continued to reside together as a couple both in China and
    Toronto until at least March 2018.

[9]

In March 2018, the parties obtained a divorce
    certificate in China. As discussed in further detail below, the respondent
    disputes the validity of this divorce.

(1)

The Parties Assets and Debts

[10]

The respondent claims that he and the appellant
    contributed work and resources to a series of family companies that are located
    in China. He suggests that the appellant leveraged assets from certain family
    businesses to borrow funds to purchase real estate in her name alone.

[11]

The appellant states that she owned corporations
    and real property in China before and during the marriage. She denies that the
    respondent made any financial contributions to her assets.

[12]

The respondent claims that the parties shared
    two matrimonial homes located in Toronto. In 2012, just prior to the marriage,
    the appellant purchased a property at 220 Elmwood Avenue (the Elmwood
    Property), in her name alone. She claims that she purchased the Elmwood
    Property for her son to reside in while he attended school in Canada. In May
    2016, the Elmwood Property was sold, and the proceeds were used to purchase
    property at 33 Bevdale Road, Toronto (the Bevdale Property), also in the
    appellants name alone. The respondent claims he found the Bevdale Property and
    worked with a real estate agent to arrange the purchase. He states that the
    parties were not separated at this time.

[13]

The appellant has a Royal Bank of Canada account
    in Toronto, in her name alone, which she used to pay the expenses for the Elmwood
    and Bevdale Properties. The respondent argues that he made contributions to
    this account that were used to pay for the mortgage, taxes, utilities, and
    other expenses for the Bevdale Property.

(2)

The Marital Assets Agreement, Letter of
    Commitment, and Repayment Agreement

[14]

On March 11, 2014, the parties signed a Marital
    Assets Agreement addressing five Chinese properties the appellant purchased in
    her name alone. This Agreement confirms that the respondent has no entitlements
    to the properties.

[15]

On May 12, 2015, the respondent also signed a
    Letter of Commitment clarifying that he lacked any interest in 41 specified
    investment properties. These properties are all located in China.

[16]

In 2019, after the divorce, the parties
    negotiated the terms of a repayment agreement for a 2,000,000 RMB
[2]
loan made to the appellant by
    the respondent, his mother, sister, and brother-in-law. The repayment amount is
    6,000,000 RMB, which the appellant claims includes interest and an equitable
    voluntary payment by her to the respondent, representing his monetary
    interest in their relationship. The respondent argues that the repayment
    agreement is unrelated to any division of marital property. The Marital Assets
    Agreement, Letter of Commitment, and loan repayment agreement were all executed
    and witnessed in China, in the Chinese language and in Chinese currency.

(3)

The Divorce Agreement and the Supplementary
    Agreement

[17]

On March 26, 2018, the parties applied for a
    divorce in Kunming. They attended together at the Kunming City Ministry of
    Civil Affairs Marriage Registry and brought a handwritten document stating
    their intention to divorce as well as their agreement that i) there will be no
    disputes in relation to the children and ii) all issues related to
    property, debts, and liabilities had been resolved through private negotiation.

[18]

The registrar required a typed document, so the
    respondent typed a document with the same terms as the handwritten document
    (the Divorce Agreement). Both parties signed the document, added their
    fingerprints, and obtained a divorce certificate.

[19]

The appellant claims this divorce certificate is
    valid and reflects the parties agreement. The respondent states that the
    appellant misled him, assuring him that this was not a real divorce.

[20]

The appellant states that on March 26, 2018, the
    parties signed a Supplementary Agreement to the Divorce Agreement. In this
    document, the respondent waived his rights to any of the appellants assets. It
    states that all property in either partys name belongs to the appellant, except
    for a car and a debt owing by the respondent, which he would retain.

[21]

The appellant argues that the Supplementary
    Agreement reflects the parties negotiations and the fact that the respondent
    made no contributions to her corporations or real estate.

[22]

The respondent asserts that he does not recall
    executing the Supplementary Agreement. He claims he was unaware of the
    Supplementary Agreements existence until December 2019. He admits that the
    signature on the document resembles his but claims the appellant would ask him
    to sign blank documents in case his signature was needed while he was absent.
    The respondent contests the validity of the divorce obtained in China as well
    as the Supplementary Agreement.

III.

procedural history

(1)

The Application

[23]

In February 2020, the respondent commenced an
    Application for various relief, including: i) a declaration that the Chinese
    divorce not be recognized or enforced in Ontario; ii) a declaration setting
    aside the Supplementary Agreement; and iii) a declaration that Ontario has
    jurisdiction to determine the outstanding property and support issues between
    the parties. The outstanding property and support issues included claims for
    equalization, spousal support, and the respondents claim of a resulting and/or
    constructive trust over the Bevdale Property, based on the allegation that the
    appellant was unjustly enriched by his contributions to the Bevdale Property.

[24]

The appellant refused to attorn to the
    jurisdiction of the court. Instead, she brought a motion for an order: i)
    dismissing the respondents Application and ii) declaring that the city of Kunming,
    in Yunnan Province, China, is the more appropriate forum to determine any
    outstanding issues between the parties arising from the breakdown of their
    marriage.

(2)

The motion judges reasons

[25]

In her reasons, the motion judge framed the
    issues on the Motion as: i) whether an Ontario court had jurisdiction to
    determine the respondents property and spousal support claims and ii) if the
    court had jurisdiction, whether Ontario was the appropriate forum to determine
    the issues.

(a)

The motion judge finds Ontario has jurisdiction

[26]

The motion judge noted that she was not asked to
    determine the validity of the Chinese divorce. She acknowledged that there is a
    presumption in favour of recognizing the validity of foreign divorces, and that
    it is rare for a Canadian court to refuse to recognize a divorce properly
    obtained under the laws of another jurisdiction. While the divorces validity
    would impact the respondents spousal support claim, it would not impact the
    equalization and trust claims made under s. 15 of the
Family Law Act
, R.S.O. 1990, c. F.3 (
FLA
), which the motion judge
    considered next. In considering these claims, the motion judge recognized that,
    absent a statutory rule, an Ontario court may take jurisdiction
simpliciter
over the case if there is a real and substantial connection between
    the forum and the subject matter or the parties to the dispute:
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17, [2012] 1 S.C.R. 572.

[27]

The motion judge concluded that Ontario had
    jurisdiction to hear the respondents equalization and property division
    claims. In her view, the following factors provided Ontario with a real and
    substantial connection to the dispute:

·

The respondent is a Canadian citizen who
    primarily resided in Canada during the marriage and since separation (on either
    separation date put forward by the parties);

·

The respondent claims a beneficial interest in
    an Ontario property. The parties and their children resided in the Elmwood and
    Bevdale Properties as their family homes during the marriage;

·

The appellant regularly visited Ontario each
    year and obtained permanent resident status. In her application for this
    status, she expressed a desire to make Canada her home;

·

There may be unfairness to the respondent if
    Ontario does not assume jurisdiction. Expert evidence, adduced by the
    respondent yet untested by cross-examination, suggested that the respondent is out
    of time to make his claim for property division in China; and

·

Although there are relevant documents and
    witnesses in both China and Ontario, the documents relevant to the trust claim
    would primarily be in Ontario, as would some evidence relevant to determining
    the date of separation.

(b)

The motion judge finds Ontario is the more
    appropriate forum

[28]

The motion judge then went on to address the
    appellants argument that if the court found that Ontario had jurisdiction, it
    should nevertheless
decline to exercise jurisdiction on
    grounds of
forum non conveniens
because China was clearly the more
    appropriate forum. The motion judge disagreed and referenced the following
    considerations:

·

All the witnesses and evidence relating to the
    respondents trust claim would be in Ontario, except for the appellants evidence;

·

The natural forum for a claim to an interest
    in an Ontario property is Ontario;

·

The appellant would be able to present her case
    in Ontario without significant difficulty. While Chinese documents and currency
    values would need to be translated and converted for purposes of a claim in
    Ontario, the parties were able to do this for purposes of the Motion and the
    proceeding unfolded without disruption;

·

If the respondent is successful in asking an
    Ontario court not to recognize or enforce the Chinese divorce, he could then
    proceed with his spousal support claim. Certain relevant documents and
    witnesses would be in Ontario as the respondent spent more time here than in
    China; and

·

If the court declined jurisdiction, the
    respondent may be out of time to pursue a claim for division of marital
    property in China, as demonstrated by the conflicting expert evidence. This
    would represent the loss of a legitimate juridical advantage.

[29]

Accordingly, the motion judge dismissed the
    Motion, permitting the respondent to proceed with his claims in Ontario.

IV.

GROUNDS OF APPEAL

[30]

The appellant raises the following issues on
    appeal in her factum:

1.

Is there a real and substantial connection
    between the parties, the matrimonial claims being litigated, and Ontario?

2.

Is Yunnan Province, China the more appropriate
    forum to determine the claims raised in the respondents Application?

3.

Should this court strike out all or part of the respondents
    Application, leaving only the trust claims concerning the Bevdale Property to
    proceed in Ontario
?

V.

THE LEGAL FRAMEWORK

[31]

Both parties agree that in the absence of a
    statutory rule, the common law conflicts rule of Canadian private international
    law  the real and substantial connection test  determines whether
    jurisdiction exists in Ontario's courts. It is not disputed that the motion
    judge properly referenced
Van Breda
and identified that a real and
    substantial connection must be established primarily on the basis of objective
    factors that connect the legal situation or the subject matter of the
    litigation with the forum. The parties also agree that the motion judge
    properly recognized that, even when an Ontario court assumes jurisdiction, if
    the defendant (or respondent in the Application) establishes that another forum
    is clearly more appropriate for disposing of the litigation, then the court can
    decline to exercise jurisdiction on the grounds of
forum non conveniens
: see
Van
    Breda
,
at para.
    108.

VI.

DISCUSSION

(1)

Is there a real and substantial connection
    between the parties, the matrimonial claims being litigated, and Ontario?

[32]

The appellant argues that the motion judge erred
    in ignoring or misapprehending the facts in concluding that there was a real
    and substantial connection between this matter and Ontario.

[33]

In her factum, the appellant contends that the
    material before the motion judge suggests that the respondent worked in China
    and that his affidavit did not establish that he lived in Canada. She, on the
    other hand, does not live in or carry on business in Ontario; the appellants
    business is based entirely in China, and the respondents employment and
    business activities during the material times were entirely in China.
    Furthermore, the appellant argues that her only connection to Ontario is a
    single encumbered piece of real property (the Bevdale Property) and a bank
    account; by contrast, the appellant owns many assets and owes significant debts
    in China.

[34]

Absent palpable and overriding error or an
    extricable error of law warranting correctness review, deference ought to be
    afforded to the motion judge. In my view, the appellant has not identified any
    extricable errors of law or palpable and overriding error in the motion judges
    analysis on the question of whether Ontario has jurisdiction.

[35]

The motion judge found that the respondent was a
    Canadian citizen and that he resided primarily in Canada during the marriage
    and post separation. I do not accept the appellants submission that the motion
    judge misapprehended the evidence on this point and that there was not a
    shred of evidence that the respondent lived primarily in Canada. The
    respondent presented proof of Canadian citizenship and the respondents
    passport and drivers licence all indicated that he lived at the Elmwood and
    Bevdale Properties. Furthermore, there was evidence before the motion judge
    that he made payments towards the carrying costs of maintaining the properties
    in Ontario. In my view, the motion judge did not err in finding that the
    respondent resided primarily in Canada.

[36]

In
Wang v. Lin
, 2013 ONCA 33, 358
    D.L.R. (4th) 452, this court accepted that in the context of marriage breakdown
    the presumptive connecting factors are necessarily different from those
    identified in
Van Breda
, which was a tort case. This court noted that
    the list of presumptive connecting factors is not closed and the location of
    the real home or ordinary residence should be a presumptive connecting
    factor:
Wang
,
at paras. 46-47; see also
Knowles v. Lindstrom
, 2014 ONCA 116, 118 O.R. (3d) 763, at para. 27, leave to
    appeal refused, [2014] S.C.C.A. No. 161. Therefore, the respondents ordinary
    place of residence was a significant factor to consider in determining
    jurisdiction.

[37]

Furthermore, the motion judge noted that part of
    the respondents claim is an assertion that he has an equitable interest in the
    Bevdale Property. The location of that property is in Ontario. This court has
    held that the location of a property is also a presumptive connecting factor
    sufficient to establish jurisdiction
simpliciter
: Knowles
,

at paras. 21, 24.

[38]

As this court explained in
Knowles
, a single presumptive connecting factor, in the absence of any
    rebuttal of that presumption by the appellant, is sufficient to establish
    jurisdiction under the
Van
    Breda
analysis:
Knowles
,

at para. 24. In this case, the motion judge identified
    that the appellant was a Canadian citizen, ordinarily resident in Canada, and
    that he was advancing a claim on property located in Ontario.

[39]

I would defer to the motion judges conclusion
    that there was a sufficient connection to Ontario to establish jurisdiction
simpliciter
.

(2)

Is Yunnan Province, China the more appropriate
    forum to determine the claims raised in the respondents Application?

[40]

After finding that the Ontario court had
    jurisdiction, the motion judge then considered the appellants argument that
    she should decline to exercise that jurisdiction under the
forum non conveniens

doctrine because China was clearly
    more appropriate for determining the issues in the case. The burden was on the
    appellant to show why jurisdiction should not be exercised:

Van Breda
, at para. 103.

[41]

The motion judges conclusion on the
forum non conveniens
issue is properly viewed as an exercise in judicial discretion and
    this court will defer to that assessment, absent an error in principle, a
    material misapprehension of the evidence, or if, in the circumstances, the
    exercise of that discretion is unreasonable:
Knowles
,
at para. 40.

[42]

In essence, the doctrine focuses on the
    circumstances of the case, and its purpose is to ensure that both parties are
    treated fairly and that the process for resolving their litigation is
    efficient:
Van Breda
, at para. 105. The factors that come into play in considering the
    question of
forum non conveniens
depend on the context and may include
    the locations of parties and witnesses, the cost of transferring the case to
    another place, the impact of a transfer on the case or a related case, the
    possibility of conflicting judgments, problems relating to recognition or
    enforcement of judgments, and the relative strengths of the connections of the
    parties:
Van Breda
, at para. 110.

[43]

Loss of juridical advantage to one or the other
    of the parties is also a relevant consideration:
Knowles
, at para. 43. Even then, however, comity and an attitude of respect
    for the courts and legal systems of other countries may be in order:
Van Breda
, at para. 112. A court must not lean too instinctively in favour of
    its own jurisdiction:
Van
    Breda
, at para. 112.
[44]

In my view, the motion judge erred in principle
    in her analysis on the issue of
forum non conveniens
. I find this for
    several reasons.
[45]

First, the motion judge ignored a very important
    factor  the existence of three signed agreements waiving the respondents
    entitlement to the assets and properties in China. The Divorce Agreement, dated
    March 26, 2018 (translated), says, the [appellant and respondent] acknowledged
    that issues pertaining to assets, financial claims and debts have been resolved
    on their own through negotiations. The appellant claims that several key
    agreements have come out of the parties private negotiations, including:
·

The Supplementary Agreement to the Divorce
    Agreement, dated March 26, 2018, which states that the respondent
    will move out and waive rights to any property or assets (English
    translation). It further stipulates that [a]ll corporation or companys
    shares [sic] and personal assets under either the respondent or appellants
    name belong to the appellant, including the real estate property in Canada
    purchased by the appellant before the marriage (English translation).
·

The Marital Assets Agreement, dated March 11,
    2014, which states that the five properties in China being purchased are in the
    appellants name and the parties agree that she alone owns them and the
    respondent has no interest in them.
·

The Letter of Commitment, dated May 12, 2015,
    which states that the respondent makes the sincere promise to forego ownership
    in 41 properties he co-owned with the appellant (English translation).
[46]

As this court stated recently in
Krebs v. Cote
, 2021 ONCA 467, 459 D.L.R. (4th) 730, at para. 19, [p]arties
    should be encouraged to enter agreements to define their rights and
    obligations. Jurisprudential shoals upon which an agreement may founder
    unnecessarily do not advance that goal.
[47]

To this end, under Ontario law, there is a high
    bar to set aside a domestic contract that complies with the enforceability
    requirements of s. 55(1) of the
FLA
: namely, that it is made in
    writing, signed by the parties and witnessed.
[48]

In this case, to proceed with his claims for
    equalization or an interest in the properties covered by the agreements, the
    respondent would first have to seek to set those agreements aside. The
    respondent would also have to address the appellants position that there was a
    loan repayment agreement executed in 2019 that settled some of the matrimonial
    claims. In Ontario, of course, a claim for equalization or support under the
FLA
would engage the factors set out at s. 56(4) of the Act for setting aside
    a domestic agreement.
[49]

Section 56(4) of the
FLA
provides that,
A court may, on application, set aside a
    domestic contract or a provision in it,
(a) if a party failed to disclose to the other
    significant assets, or significant debts or other liabilities, existing when
    the domestic contract was made;
(b) if a party did not understand the nature
    or consequences of the domestic contract; or
(c) otherwise in accordance with the law of
    contract.
[50]

There was also evidence before the motion judge
    that similar provisions exist in China to set aside unfair contracts. The
    opinion letter tendered by the appellant on the Motion states that, according
    to Article 54 of the Contract Law of Peoples Republic of China, a valid
    contract can be set aside where there is a significant misunderstanding, or
    when one party uses fraudulent or coercive means or takes advantage of the
    other party while they are in a vulnerable state, not unlike Ontario.
[51]

In this way, the preliminary question of whether
    the agreements could be set aside, was in my view central to assessing the more
    appropriate forum. Respectfully, the motion judge erred in considering the
    respondents claims in the Bevdale Property  and his potential entitlements to
    share in some way (whether by way of equalization or a direct property
    interest) in the appellants Chinese properties  without considering the
    question of setting aside the divorce and/or the agreements about property. With
    the agreements as the proper focus, and given that the agreements were all
    executed and witnessed in China, in the Chinese language, it becomes clear that
    China is the most appropriate forum for the dispute.
[52]

Second, the motion judges reasons state that
    the natural forum for the claim to the Bevdale Property is here in Ontario. As
    set out above, the location of the property is a factor that carries
    considerable weight on the jurisdiction inquiry. However, the motion judges
    focus on the Bevdale Property overwhelmed her analysis of
forum non conveniens
. In this case, the far more valuable property interests are in
    China and are governed by contracts in China; there are multiple agreements
    between the parties that are, as mentioned, written in the Chinese language and
    in Chinese currency. These agreements concern multi-million-dollar business
    interests and properties there. In contrast, the Bevdale Property is worth
    considerably less. The Bevdale Property should not have been the focal point of
    the analysis and it certainly was not the natural forum for the division of
    property claim viewed as a whole.
[53]

Third, the motion judge held that the respondent
    was not claiming any property interest in properties or corporations located in
    China, only in the monetary payment that would occur after the equalization
    calculation based on properties or corporations in China. However, this factor
    assumes that an equalization payment would be the only remedy under Chinese
    law. There was no evidence that equalization rather than distribution of
    properties would be the remedy in China and the motion judge engaged in
    speculation that this would be the case.
[54]

Finally, the motion judge erred in her analysis
    in terms of the respondents loss of a legitimate juridical advantage. The motion
    judge identified the juridical advantage as the respondents ability to pursue
    his claim for property division in Ontario because he may be out of time in
    China. On the Motion, the respondent produced an opinion from a lawyer stating
    that, in China, where a man and woman are divorced by joint divorce and the
    parties have a change of mind over the issue of property division, they have
    one year from the date of the divorce to request to modify or revoke the
    property division agreement. The respondents legal opinion concludes that,
    based on this rule, litigation concerning division of property by joint divorce
    needs to be filed within one year.
[55]

For her part, the appellant disagreed that the
    respondent was out of time in China. She also produced an expert opinion that
    stated that the respondent could seek redress in a Chinese court to amend or
    void the Supplementary Agreement if he could demonstrate that he was under a
    serious misunderstanding, or there was an appearance of unfairness, or that he
    was defrauded, coerced or taken advantage of while in a vulnerable state that
    caused him to erroneously express his intention. Faced with this conflicting
    evidence, the motion judge nevertheless held that if Ontario declined
    jurisdiction, the respondent could lose a legitimate juridical advantage
    because he was out of time in China.
[56]

I acknowledge that there is some support for the
    respondents position that an expired limitation period in the other
    jurisdiction would make Ontario the more juridically advantageous forum for him
    as plaintiff, and that a juridical advantage to a plaintiff in Ontario weighs
    against staying the proceedings: see
Garcia v. Tahoe Resources Inc.
, 2017
    BCCA 39, 407 D.L.R. (4th) 651, at para. 91, leave to appeal refused, [2017]
    S.C.C.A. No. 94.
[57]

However, some courts have ruled that the
    plaintiffs failure to bring a claim within the time limit militates against
    attaching any weight to the juridical advantage factor because, in some
    circumstances, a plaintiff could successfully oppose a defendants
forum non conveniens
application in one jurisdiction by simply allowing the limitation
    period to expire in the other jurisdiction:
Tahoe
,
    at para. 91. It seems, then, that the weight attached to the juridical
    advantage factor when considering the expiration of a limitation period in
    another jurisdiction is a case-specific inquiry that turns on the facts:
Tahoe
,
    at para. 92.
[58]

In this case, the motion judge held that the limitation
    period weighed in the respondents favour. There was no case-specific inquiry in
    reaching that conclusion. As noted, this case involves the
potential
expiry of a limitation period; the
    respondents evidence on this point does not lead to this conclusion with any
    certainty. The motion judge did not resolve an inconsistency between the facts
    of the case and the facts relied upon by the respondents expert opinion. The
    opinion regarding the one-year time limit concerned parties who change their
    mind over property division. The respondents evidence, however, was that he
    was misled in terms of the Divorce Agreement and was not aware of the existence
    of a Supplementary Agreement. He did not argue that he had changed his mind
    about the agreements. On that evidence, it becomes less clear that the
    respondent is, in fact, out of time in China.
[59]

Furthermore, the respondent testified during
    questioning that he has never thought of going to court in China to deal with
    property division. This fact does not help the respondent claim the juridical
    advantage of an Ontario action: see
Hurst v. Société Nationale de L'Amiante
, 2008 ONCA 573, 93 O.R. (3d) 338, at paras. 51-52.
[60]

In summary, the motion judge erred in principle
    in her analysis under
forum non conveniens
. In my view, the appellant has
    demonstrated that the balance tips heavily in favour of China as the clearly
    more appropriate forum for resolving the parties property issues and the
    motion judge should have declined to exercise jurisdiction. Accordingly, I
    would allow this ground of appeal.
(3)

Should this court strike out all or part of the
    respondents Application, leaving only the trust claims concerning the Bevdale
    Property to proceed in Ontario?
[61]

The appellant also argued that this court should
    consider severing the respondents trust claim over the Bevdale Property,
    allowing it to proceed in Ontario while striking the remainder of the claims.
[62]

As I have already decided that China is the more
    appropriate forum to hear the claims arising from the parties marital
    breakdown, this issue is now moot.
[63]

However, I do make the following observations.
    Severing the specific claims in relation to the Bevdale Property appears to be
    contrary to some of the factors identified by the Supreme Court of Canada as
    relevant to the
forum
    non conveniens
analysis in
Van Breda
, at paras. 105, 110, including a desire to avoid a multiplicity of
    legal proceedings and avoiding conflicting decisions in different courts.
[64]

Severance of the trust claim is also potentially
    problematic because this court has made clear that claims of unjust enrichment
    are rarely appropriate to address financial issues after the breakdown of a
    marriage and a court would, in all likelihood, find that equalization of all
    net family properties under the legislation would provide a full remedy to any
    unfairness that would otherwise arise from different contributions to family
    assets:
McNamee v.
    McNamee
, 2011 ONCA 533, 106 O.R. (3d)
    401, at para. 66;
Martin
    v. Sansome
,

2014 ONCA 14, 118 O.R. (3d) 522,
    at para. 64.
VII.

CONCLUSION
[65]

For these reasons, I would allow the appeal and
    stay the respondents Application.
[66]

I would award the appellant her costs of the
    appeal in the agreed amount of $13,000 inclusive of disbursements and
    applicable taxes.
Released: September 29, 2021 K.F.
S.
    Coroza J.A.
I
    agree. K. Feldman J.A.
I
    agree. David M. Paciocco J.A.

[1]

I note that in a recent Superior Court decision,
Kore Meals

LLC v.
    Freshii Development LLC
, 2021
    ONSC 2896, 156 O.R. (3d) 311, E.M. Morgan J. observed that the world of
    videoconference hearings may have implications for the relevance of
forum non conveniens
.
I leave that issue for another day. In the present case,
    where the competing forums involve different languages and different time zones,
    the choice of forum remains relevant.

[2]

The evidence before the motion judge was that CAD$1 equals
    approximately 5.07 RMB.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Collingwood Prime Realty
    Holdings Corp. 2021 ONCA 665

DATE: 20210929

DOCKET:
C69445

Watt, Benotto and Trotter JJ.A.

BETWEEN

Her
    Majesty the Queen

Appellant

and

Collingwood Prime Realty Holdings
    Corp. & Issa El-Hinn

Respondent

Rick Visca, Holly Akin and Erryl
    Taggart, for the appellant

Melanie Webb
,
    for the respondent

Heard: September 21, 2021 by video conference

On
    appeal from the judgment of Justice David E. Harris of the Superior Court of
    Justice, dated May 12, 2020 with reasons reported at 2020 ONSC 2953, allowing
    the appeal from the sentences imposed on August 21, 2018 and September 12, 2018
    by His Worship Justice of the Peace Mangesh S. Duggal.

REASONS FOR DECISION

[1]

The Crown appeals the decision of the summary conviction appeal judge
    which reduced the sentence imposed at first instance on a conviction under the
Canadian Environmental Protection Act
.

[2]

A brief overview of the facts is necessary.

Facts

[3]

The respondent Collingwood Property Holdings Corp (the
    corporation) was the owner of property in Collingwood. The respondent Issa
    El-Hinn (El-Hinn) was the sole director and operating mind of the
    corporation. The respondents were given a written warning by Environmental and
    Climate Change Canada (ECCC) to remove transformers containing hazardous
    toxins. Ten months later the transformers were still there. The ECCC officers
    issued a Notice of Intent to issue an Environmental Compliance Order (NOI),
    to which the corporation did not respond. The ECCC officers then issued an
    Environmental Protection Compliance Order (EPCO) pursuant to s. 235(1) of the
Canadian Environmental Protection Act
(
CEPA
), requiring the removal of the equipment and an
    electronic report. The equipment was not removed nor was the report filed by
    their respective deadlines. Over a year later, the ECCC officers executed a
    search warrant on the property and found one of the transformers was still in
    use. The equipment was eventually removed, four years after the initial
    inspection. El-Hinn and the corporation were jointly charged in an 11-count
    information and plead guilty.

The sentence

[4]

The sentencing judge imposed separate fines amounting to $220,000
    and a custodial term of 45 intermittent days on El-Hinn pursuant to s.
    275(2)(b)(i) of
CEPA
. He also fined the
    corporation $40,000 for count 1, $10,000 for count 2, $1,250 each for counts
    3-10 amounting to $10,000 for those counts, and $140,000 for count 11 ($200,000
    in total).

[5]

The sentencing judge considered mitigating and aggravating
    factors. Mitigating factors were that the El-Hinn was a first offender, the
    transformers were eventually removed, El-Hinn was of otherwise good character,
    and the guilty pleas merited some leniency. Aggravating factors included the
    quantity and hazardous nature of the toxins, the large passage of time in
    regulatory compliance despite having financial capacity and having been issued
    an order to comply, cost avoidance, and great potential harm of the toxins. The
    sentencing judge noted the purposes of sentencing under the
CEPA
are to preserve the environment, to deter
    violations of the
Act
, to denounce damage or
    risk of damage to the environment and human health, and to reinforce the
    polluter pays principle for environmental restoration. The lack of actual
    injury was not found to be a mitigating factor, as under
CEPA
potential for harm is the relevant factor to consider in sentencing. The
    sentencing justice relied on
R. v. Sinclair
(2009), 45 C.E.L.R. (3d)
    222 (Ont. C.J.) finding that though in
Sinclair
actual harm to the environment was deliberately inflicted, El-Hinns moral
    culpability is similar despite no actual environmental damage. This is due to
    El-Hinns sustained non-compliance with warnings and orders.

Summary Conviction Appeal Court

[6]

The appellate judge allowed El-Hinn and the corporations appeal
    against both the fines and term of incarceration. He eliminated the term of
    incarceration and reduced the fines. He did so on the basis that there was an
    error in principle by the sentencing judge in finding parity with
Sinclair
. The appellate judge found that the moral
    responsibility of each Sinclair and El-Hinn were not similar. The sentencing
    judges finding was therefore found to amount to an error in principle, and
    deference was lost. The appellate judge reasoned that Sinclair had a much more
    blameworthy state of mind than did El-Hinn, as Sinclair was knowingly and
    intentionally polluting the environment. The harm in
Sinclair
was not caused by delay or negligence, but rather was caused by
    deliberate and calculated acts of pollution. El-Hinn and the company had a
    lower degree of culpability, as they were passively negligent. Further, unlike
    Sinclair, El-Hinn and the company also were not attempting to profit at the expense
    of the environment, which demonstrates a lower degree of moral culpability. Finally,
    the appellate judge found that
Sinclair
also
    should have been distinguished because there was actual harm to the
    environment, whereas in the case at hand there was not.

[7]

The appellate judge found that a jail sentence should only be imposed if
    it is necessary to achieve sentencing principles (s. 287.1(1) of
CEPA
incorporates the restraint principle under s. 718.2
    of the
Criminal Code)
.
[1]
The appellate judge determined that while the proper test is the potential harm
    to the environment, s. 718.2(a)(iii.1) of the
Criminal
    Code
requires a court to take into account harm to the victim in
    sentencing. Actual harm to the environment is not present in this case. The
    appellate judge found that these factors, plus the COVID-19 crisis weakening
    the public interest in jail sentence, militates against custody for El-Hinn. He
    found that fines are enough to fulfil sentencing objectives, especially as El-Hinns
    culpability was lower than that determined by the sentencing judge.

[8]

The appellate judge reduced the fines to $150,000 for the corporation
    and $170,000 for El-Hinn. In doing so, he determined that counts 1 through 10
    should be dealt with as the same charge.

Crown appeal

[9]

The Crown appeals arguing that the original sentence should be
    restored as there was no error in principle.

Analysis

[10]

We allow the appeal in part.

[11]

We agree with the appellate judge that there was an error in
    principle in comparing the case to
Sinclair
where there were
deliberate
    actions to harm the environment which are not analogous to the situation here.
    Having found otherwise, the sentencing judge erred in principle and the
    appellate judge did not owe the decision deference. We agree that the
    incarceration of El-Hinn is not proportional and should be eliminated.

[12]

We
    do not agree with the appellate judges reduction of the fines. It was not an
    error for the sentencing judge to impose separate fines for each count.
    Concurrent sentences apply only to incarceration. In this regard we restore the
    sentencing judges determination.

[13]

The appeal is allowed with respect to the fines but dismissed
    with respect to the incarceration.

David
    Watt J.A.

M.L.
    Benotto J.A.

Gary
    Trotter J.A.

[1]
See also:
Ontario (Labour) v. New Mex Canada Inc.
2019
    ONCA 30, 144 O.R. (3d) 673 released after the sentencing decision at first
    instance.


COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Manickam, 2021 ONCA 668

DATE: 20210929

DOCKET:
    C66892

Tulloch, Nordheimer and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kumaraguruparan Manickam

Appellant

Richard Litkowski, for the appellant

Jeremy D. Tatum, for the respondent

Heard: April 7, 2021 by video conference

On appeal from the conviction entered on
    October 15, 2018, by Justice Susan C. MacLean of the Ontario
    Court of Justice, and from the sentence imposed on April 29, 2019.

Tulloch J.A.:

A.

Overview

[1]

The appellant was charged with and convicted of
    two counts of fraud over $5,000 and one count of uttering forged document. He
    was sentenced to 18 months in jail, 3 years probation, and a standalone
    restitution order.

[2]

The appellant appeals his conviction and, in the
    alternative, appeals his sentence.

B.

factual background

[3]

The appellant was a small business owner. He
    owned, at various times, a gift store, a restaurant, a convenience store, a
    video store, and a grocery store.

[4]

He financed his restaurant business with private
    loans at a very high interest rate. By May 2013, he was still indebted to his
    private lenders and had accumulated substantial credit card debt. He was hoping
    to obtain loans from banks with lower interest rates.

[5]

The appellant testified that he met a man named
    Arul in January 2013. Arul introduced the appellant to a man named Ramesh. The
    appellant and Ramesh agreed to an arrangement where Ramesh would assist the
    appellant in obtaining a loan from a bank. Ramesh would get a 15 percent commission
    on any loan he obtained.

[6]

The appellant did not know Aruls or Rameshs
    last name.

[7]

Ramesh told the appellant that, in order to
    obtain a loan, he had to build up a transaction history to show the banks that
    he had an active business. He instructed the appellant to deposit cheques from
    companies, withdraw cash after the cheques were deposited, and then redeposit
    some of the money back into the account to create a transaction history.

[8]

The fraudulent scheme began with mainly two business
    accounts at Toronto Dominion Bank (TD): the Gurushoth Inc. account, which
    was used for his legitimate business, and the Twin Bird account, which was
    opened by the appellant in May 2013 to trick the bank. The appellant admitted
    that he knew Twin Bird was not a real business when the account was opened.

[9]

Between June 12 and June 18, 2013, the appellant
    deposited cheques from Ambigai Janitorial Services (a fake business) to his TD
    bank accounts. All the cheques were fraudulent. Most were cheques deposited in
    the two TD business accounts, but some were deposited to his personal account
    and to pay the balance on his credit cards. His TD accounts were blocked on
    June 17, 2013 and frozen after June 20, 2013.

[10]

In April 2013, the appellant opened two Royal
    Bank of Canada (RBC) business accounts for Twin Bird and two personal accounts.
    The appellant repeated the TD scheme with his RBC business accounts. Between
    September 19, 2013 and September 23, 2013, the appellant deposited 18 cheques
    in his RBC business accounts, all of which were fraudulent.

[11]

The appellant also made tens of thousands of
    dollars worth of purchases at Costco using his TD and RBC accounts and made
    thousands of dollars of withdrawals at a racetrack and casino.

[12]

As a result of this scheme, there was a combined
    loss to both banks of over $250,000.

C.

Reasons for Conviction

[13]

The main issue at trial was whether the
    appellant had the
mens rea
for the offences. He did not dispute that
    he opened fake business accounts and deposited counterfeit cheques. The core of
    his defence was that he trusted Ramesh and had no questions about the scheme
    until he was contacted by the police. He was the dupe of an unscrupulous
    fraudster who took advantage of him. He did what he was told to do by Ramesh
    and did not suspect that anything was amiss.

[14]

The Crown argued that this defence was not
    credible. The appellants involvement went beyond simply depositing cheques and
    included activity that would seem suspicious to anyone. It defied belief that
    the appellant did not appreciate the suspicious nature of the scheme. Instead,
    he feigned ignorance in an attempt to evade criminal liability. At a minimum,
    even if the appellants evidence is accepted, he was wilfully blind.

[15]

The trial judge did not believe the appellant,
    nor was she left with a reasonable doubt by his evidence. She found that the
actus
    reus
for fraud was met: the opening of the Twin Bird accounts was a dishonest
    act and the depositing of cheques for an illegitimate business created a risk
    of deprivation for the banks which materialized.

[16]

The trial judge also found that the appellant
    was, at the very least, wilfully blind to the fraud. There were numerous instances
    during the months-long scheme that raised the appellants suspicion. These
    instances included:

1.)

He was given several large cheques. His evidence
    was that he never questioned where the money came from and assumed it was
    legitimate, even though they came from a man whose last name and address he did
    not know;

2.)

He drove to several branches around Oshawa and
    Scarborough to deposit cheques in the same day;

3.)

He was using some of the money from Ramesh to
    pay off his credit card debt;

4.)

He bought lottery tickets at the casino,
    purportedly to show the bank that his businesses were legitimate;

5.)

His TD Bank accounts were blocked and later
    frozen, including an account associated with his legitimate business. He
    immediately stopped using the accounts; and

6.)

He continued the same behaviour with his RBC accounts,
    even though his TD accounts were already frozen.

D.

Analysis

[17]

The appellant appeals his conviction on the
    following grounds:

1.)

The trial judge erred in her analysis of wilful blindness, and did
    not provide any legal analysis of the appellants liability as a party under s.
    21(1)(b) or (c) of the
Criminal Code
;

2.)

The trial judge erred in her approach to
    assessing the appellants credibility and reliability; and

3.)

The trial judge erred by failing to explain how
    she used the similar fact evidence in her analysis.

[18]

The appellant also seeks leave to appeal his
    sentence, on the basis that the sentencing judge erred by failing to apply the
    principle of restraint, thereby imposing a sentence that was harsh and
    excessive in the circumstances.

(1)

The Trial Judges Analysis of Wilful Blindness

[19]

The appellant submits that the trial judge erred
    in finding that the appellant was, at the very least, wilfully blind to the
    fraudulent scheme and argues that the evidence only supported a finding of recklessness.
    He states that his evidence was clear that he had no idea anything illegal was
    happening and that, when he first learned of it, he cut ties with Ramesh.

[20]

In addition, he submits that the trial judge
    found him to be a party to the offence under s. 21 of the
Criminal Code
,
    even though she never conducted an analysis under s. 21. Recklessness, he
    argues, cannot ground party liability.

[21]

Wilful blindness is a substitute for knowledge
    where knowledge is a component of the
mens rea
:
R. v. Briscoe
,
    2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21. Wilful blindness imputes
    knowledge to an accused whose suspicion is aroused to the point where he or she
    sees the need for further inquiries, but
deliberately
    chooses

not to make those inquiries:
Briscoe
, at para.
    21 (emphasis in original). It is a state of deliberate ignorance.

[22]

In my view, there is no basis to interfere with
    the trial judges finding that the appellant was wilfully blind. His testimony
    that he had no suspicions about the legality of Rameshs scheme was wholly
    rejected by the trial judge. This finding was well supported by the record.

[23]

For example, the appellant was asked whether he
    thought it unusual that he deposited cheques at multiple banks on the same day:

Appellant: [Ramesh] told me thats the way to
    do it and it is good. That is why I followed him.

Q: Im sure he told you that, but didnt you
    think that was a little bit unusual?

A:
I thought its a bit
    unusual
, but when he told me this is the way you do it, then I followed
    him.

Q: So, you didnt ask any more questions?

A: No.

[Emphasis added.]

[24]

Additionally, in June 2013, the appellants TD
    bank accounts were blocked. When he asked Ramesh about it, he was told that it did
    not matter. The appellant stopped using his accounts but did not call the bank
    because he thought Ramesh was handling that. The trial judge concluded that
    he remained in a state of deliberate ignorance by not making inquiries after
    his TD bank accounts were blocked.

[25]

These are just a few examples of instances where
    the trial judge concluded that the appellants suspicions were raised. She
    found that the appellant had a handy excuse in the form of Rameshwhose
    whereabouts and identity is a complete mystery to all, that he insulated
    himself with a wall of deliberate ignorance, and that he had a readymade
    mantra for court.

[26]

The trial judge ultimately concluded that the
    appellant was wilfully blind:

I agree with the Crowns submissions that the
    very fact that Ramesh was giving Mr. Manickam reassurances, about the different
    aspects of the scheme, shows his suspicions were, in fact, raised and in
    between the TD scheme and the RBC scheme, Mr. Manickam had two months to
    make inquiries about the TD account and even though he was unable to pay his
    loans or pay his bills, and was not receiving any more statements from the
    bank, he did nothing to make any inquiries.

[27]

There is no palpable and overriding error in the
    trial judges factual findings that 1) the appellant had suspicions about the
    scheme, and 2) he did not make any inquiries beyond Ramesh. These findings,
    which were made after an extensive review of the evidence, support the
    conclusion that the appellant was wilfully blind.

[28]

Although the trial judge referred to the
    appellant as being a party to the fraud, she also concluded that all of the
    elements of fraud had been met respecting the appellant. While her language was
    confusing, I think it is clear from her reasons as a whole that she ultimately
    concluded that he actually committed the offences and not that he aided or
    abetted someone in committing the offences. I would also note that s. 21(1)(a)
    of the
Code
defines party as including a person who actually commits
    the offence.

(2)

The Trial Judges Assessment of Credibility and
    Reliability

[29]

The appellant argues that the trial judge
    rejected the appellants testimony because it did not match what she would have
    done in the circumstances. He argues that she did this because she commented,
    in multiple instances, that no reasonable person would have done what the
    appellant had done. For example, she stated that a reasonable person would
    contact their bank once they learned that their accounts had been blocked.

[30]

There is no basis to interfere with the trial
    judges assessment of the appellants credibility. Her ultimate conclusion was
    that the appellants testimony was not believable and that she was not left in
    reasonable doubt by it:
R. v. W.(D.)
, [1991] 1 S.C.R. 742. This
    finding was supported by numerous references to the appellants testimony and
    the record as a whole. Her conclusion that a reasonable person would have had
    suspicions was only one factor in concluding that he was not credible on this
    issue.

[31]

The trial judges use of the term reasonable
    person at multiple points in her reasons when evaluating the appellants
    credibility was unfortunate. The language of reasonable person should be
    avoided when determining whether someone was wilfully blind, as it suggests an
    objective fault standard. Wilful blindness and criminal negligence are distinct
    concepts:
Briscoe
, at para. 24.

[32]

Read fairly, however, the trial judges reasons
    show that she did not err. She simply did not find the appellants denials
    credible. The appellant had numerous good reasons to be suspicious, and it was
    simply not plausible that he did not have any suspicions at all. In referencing
    what a reasonable person would have thought, she was, in effect, concluding
    that his testimony was not in harmony with the way things can and do happen
    and was highly implausible: see e.g.,
R. v. Kiss
, 2018 ONCA 184,
    at paras. 28-34;
Faryna v. Chorny
, [1952] 2 D.L.R. 354 (B.C.C.A.).

(3)

The Trial Judges Use of Similar Fact Evidence

[33]

Mid-trial, the Crown made a similar fact
    application in relation to the TD and RBC allegations, to permit the facts to
    be used across counts. The Crown submitted that the similar fact evidence was
    probative in four ways:

1.)

The totality of the conduct demonstrates fraudulent intent;

2.)

The use of the business account in the name of
    Twin Bird Construction with TD bank and the subsequent use of an account with
    the same business name at RBC shows fraudulent intent;

3.)

The issue of the identity of the person making
    the transactions; and

4.)

The conduct after posting the cheques in the TD allegations
    demonstrate a clear wilful blindness as to the nature of the cheques.

[34]

The defence conceded that the application should
    be granted, and the trial judge accepted the concession and allowed the
    application. She did not include any analysis on what use, if any, she made of
    the similar fact evidence.

[35]

On appeal, the appellant argues that the trial
    judge erred because her reasons fail to explain how she used the similar fact
    evidence. He argues that the lack of discussion does not allow him to
    understand the ways in which his guilt was decided. He says that this error can
    only be remedied with a new trial. He does not argue that the evidence was not
    admissible as similar fact evidence.

[36]

I disagree. The trial judges reasons were
    extensive. They spanned almost 100 pages in the court transcript. The judgment
    canvassed the evidence in detail and clearly laid out the basis for conviction.
    Read as a whole, the reasons communicate that she disbelieved the appellants
    testimony, that she was not left in a reasonable doubt by it, and that the
    Crown had met its onus to prove that the appellant committed the
actus reus
and
mens rea
for the charged offences.

[37]

The primary issue at trial was whether the
mens
    rea
was proven. The trial judge gave detailed reasons for why she did not
    believe that the appellant was not suspicious of the fraudulent scheme he
    participated in.

[38]

A trial judge does not need to discuss every
    piece of evidence in their reasons. There was ample evidence in the record and
    in her reasons that supported the conviction, even without considering the
    similar fact evidence. It was not an error that the trial judge did not refer
    to other evidence that also could have supported a finding of guilt.

(4)

The Appropriateness of the Sentence Imposed

[39]

The appellant also seeks leave to appeal his
    sentence, and if leave is granted, he appeals the sentence on the basis that
    the trial judge erred in failing to apply the principle of restraint, and as a
    result, imposed an excessive and harsh sentence.

[40]

For this court to intervene with the sentence
    imposed, the appellant must establish that the sentence is demonstrably unfit,
    or that the sentencing judge made an error in principle that had an impact on
    the sentence. For the appellant to establish that the sentencing judge
    committed an error in principle, he must either show that the sentencing judge
    committed an error in law, failed to consider a relevant factor, or erroneously
    took into consideration an aggravating or mitigating factor:
R. v. Friesen
,
    2020 SCC 9, 444 D.L.R. (4th) 1;
R. v. Lacasse
, 2015 SCC 64, [2015] 3
    S.C.R. 1089.

[41]

At the sentencing hearing, the Crown sought a
    sentence of 30 months of incarceration to be served in the penitentiary, while
    the defence submitted that a sentence of 9 months of incarceration was
    appropriate. After considering the submissions of the parties, the sentencing
    judge imposed a sentence of 18 months of incarceration followed by 3 years of
    probation and a stand-alone restitution order.

[42]

The appellant argues that the sentencing judge
    failed to give effect to the principle of restraint, as the appellant was a
    first-time offender and had never been sentenced to any period of incarceration
    before. In my view, a fair reading of the sentencing judges reasons for
    sentence indicates otherwise.

[43]

The sentencing judge specifically referred to
    the fact the appellant was a first-time offender and that while the offence
    calls for a penitentiary sentence, she would not impose such a sentence. In the
    reasons, the sentencing judge stated:

This gentleman comes to me as a first
    offender. That is one of the most significant reasons why Im not putting you
    in the penitentiary today, sir, because we try to avoid putting first offenders
    in the penitentiary. We try to avoid jail, at all, but the extent of his fraud,
    and the aggravating factors, in my view, require there be a significant jail
    sentence.

[44]

I see no error in the sentencing judges
    reasoning and weighing of the factors under s. 718.2(e) of the
Criminal
    Code
. It is clear from the reasons for sentence that the trial judge
    considered all sanctions other than incarceration and found that due to the
    seriousness of the fraud and the significant loss that resulted, incarceration
    was necessary to adequately address the principles of deterrence and
    denunciation. She specifically turned her mind to the principle of restraint
    and reminded herself of her obligation on sentencing to impose the shortest
    available sentence that is proportionate to the gravity of the offence and
    degree of responsibility of the offender.

[45]

The sentencing judge also considered reference
    letters from the appellants family and friends, as well as the impact that
    incarceration would have on his family, his existing business, and more
    specifically, his wife and 20-year-old son.

[46]

The appellants offence was serious and
    premediated. His moral blameworthiness was high. He committed a premediated
    fraud purely for his personal gain, and this fraud resulted in a combined loss
    of over $250,000 to two banks. In the circumstances, the decision of the sentencing
    judge is owed a high degree of deference.

E.

Disposition

[47]

For the foregoing reasons, the appeal from
    conviction is dismissed. Leave to appeal the sentence is granted, but the
    sentence appeal is denied.

Released: September 29, 2021 M.T.

M.
    Tulloch J.A.

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

I
    agree. M. Jamal J.A.


WARNING

Prohibitions under the
Child, Youth and
    Family Services Act
, 2017, S.O. 2017, c.14, Sched. 1 apply to this
    decision:

Prohibition re identifying child

87(8)
No
    person shall publish or make public information that has the effect of
    identifying a child who is a witness at or a participant in a hearing or the
    subject of a proceeding, or the childs parent or foster parent or a member of
    the childs family.

Prohibition re identifying person
    charged

87(9)
The
    court may make an order prohibiting the publication of information that has the
    effect of identifying a person charged with an offence under this Part.

Transcript

87(10)
No
    person except a party or a partys lawyer shall be given a copy of a transcript
    of the hearing, unless the court orders otherwise.

Offences re publication

142 (3)
A
    person who contravenes subsection 87 (8) or 134 (11) (publication of
    identifying information) or an order prohibiting publication made under clause
    87

(7) (c) or subsection 87 (9), and a
    director, officer or employee of a corporation who authorizes, permits or
    concurs in such a contravention by the corporation, is guilty of an offence and
    on conviction is liable to a fine of not more than $10,000 or to imprisonment
    for a term of not more than three years, or to both.

COURT OF APPEAL FOR ONTARIO

CITATION: M.L. v. B.T., 2021 ONCA 683

DATE: 20211004

DOCKET: M52822 (C69821)

Paciocco
    J.A.

BETWEEN

M.L.
    and D.L.

Appellants/Applicants

and

B.T., D.C.
    and Dilico Anishinabek Family Care

Respondents/Respondents

Jessica Gagn
é
, for the
    appellants/applicants, M.L. and D.L.

Edward R. Van Voort, for the
    respondent, D.C.

Katherine Hensel, for the respondent,
    Dilico Anishinabek Family Care

Heard: September 29, 2021 by
    videoconference

ENDORSEMENT

OVERVIEW

[1]

This is a custody dispute between the
    applicants, M.L. and D.L., and the respondent, Dilico Anishinabek Family Care (Dilico).
    The custody dispute concerns J.T., a child in need of protection, whom Dilico placed
    in the applicants care more than six years ago, eight days after J.T.s birth.
    Dilico intends to terminate the placement so that J.T. can be placed with her
    mother, D.C.s, family, in the Berens River First Nation in Manitoba. In
    proposing this placement, Dilico is attempting to ensure that J.T.s best
    interests are served by preserving her links to her Indigenous culture, family,
    and community. However, D.L. and M.L believe that it is in J.T.s best
    interests that she remains in their care. Accordingly, they launched a custody
    application pursuant to the
Childrens Law Reform Act
, R.S.O. 1990, c.
    C.12.

[2]

On September 7, 2021, Newton J. of the Ontario
    Superior Court of Justice released an appeal decision that sets aside the applicants
    custody application and paves the way for Dilico to remove J.T. from the
    applicants care, and to pursue their intended placement of J.T with her
    mothers family.

[3]

The applicants now bring a motion before me to
    stay the appeal judges decision pending the final determination of their
    appeal. Dilico does not oppose a conditional stay that would require J.T. to
    continue to reside with the applicants pending that determination, but requests
    that the conditional stay maintain their role as the legal guardian of J.T. The
    applicants ask for supplementary relief as well, which Dilico does not oppose.
    D.C. did not participate in this motion. J.T.s father, B.T., was served with
    the applicants custody application, but has not responded.

[4]

For the reasons that follow, I am ordering a
    stay of the appeal decision, an order that will assure that J.T. is not removed
    from the applicants care pending the final determination of the appeal.
    However, I am also imposing conditions in J.T.s best interests that will
    satisfy some of Dilicos concerns. Finally, I make additional orders for
    associated relief, described below.

MATERIAL FACTS

[5]

J.T., an Indigenous child, was born in Thunder
    Bay in late 2015. Her case was referred to Dilico at the time of her birth. J.T.
    was apprehended by Dilico with the consent of her mother, D.C., and her father,
    B.T, when she was one day old. When J.T. was eight days old, she was placed in
    the care of Dilico pursuant to a short temporary care agreement signed between
    Dilico and J.T.s parents. Dilico  then placed J.T. in the care the applicants,
    M.L. and D.L., while maintaining contact with her biological family.

[6]

Under s. 80 of the
Child, Youth and Family
    Services Act
, 2017, S.O. 2017, c. 14, Sched 1, (
CYFSA
) childrens
    aid societies are obligated to make reasonable efforts to pursue a plan of
    customary care for Indigenous children. After a child is found to be in need of
    protection and placed into extended care pursuant to s. 101(3) of the
CYFSA

, this can be accomplished through a plan for customary care, an
    adoption, or a custody order under subsection 116(1):
CYFSA
, s.
    112(3). Dilico did not pursue these mechanisms, however, choosing instead to
    develop a plan of customary care for J.T. outside of the court system.

[7]

When J.T. was four months old, Dilico executed the
    first of a series of six-month customary care agreements. These short term customary
    care agreements were executed by D.C., as well as the band to which D.C.
    belongs, the Berens River First Nation in Manitoba. J.T. is now registered as a
    member of Berens River First Nation.

[8]

Each of the customary care agreements executed
    by the parties have the same terms. Specifically, the customary care agreements
    provide that Dilico is the legal guardian of J.T. during the duration of the
    agreements. In addition, they provide that Dilico is entitled to assume the
    duties of parent of the child, and to have the rights and responsibilities as
    parents of the child for the purposes of the childs care.

[9]

Dilico submits that its long-term plan was to
    use these customary care agreements as a mechanism for working towards
    reunification of J.T. with her Indigenous family and community. It now proposes
    a permanency plan for J.T. to live with D.C.s aunt, R.C, in the Berens River
    First Nations.

[10]

M.L. and D.L., who evidently care deeply for J.T.,
    believe that it is in J.T.s best interest to remain with them. In June 2017,
    they instituted custody proceedings under the
Childrens Law Reform Act
,
    R.S.O. 1990, c. C.12, which Dilico and D.C. opposed. Specifically, Dilico took the
    position that as foster parents within the meaning of s. 2 of the
CYFSA
,

the applicants are prohibited by
CYFSA
, s. 102, and
Family Law
    Rules
, O. Reg. 114/99,s. 7(4) from applying for or obtaining custody of
    J.T. Dilico brought a motion to strike the custody application on this basis.

[11]

The applicants submitted, in response, that
    they are not foster parents, but care providers as defined in
An Act
    respecting First Nations, Inuit and Métis children, youth and families
,
    S.C. 2019, c. 24, s. 1. They contended further that the customary care
    agreements are invalid. Their objections to the validity of the agreements include
    the claim that the
CYFSA

does not provide for out-of-court
    customary care agreements. They also maintained that Dilicos customary care
    plan is not in J.T.s best interests as required by the
CYFSA
and
    argue that it is in her best interest to remain with them. The applicants asked
    for the dismissal of Dilicos motion, and for interim custody.

[12]

On March 3, 2020, a judge of the Ontario Court
    of Justice agreed with the applicants and dismissed Dilicos motion. She ruled that
    the applicants are entitled to continue their custody application, and awarded
    them interim custody, subject to these material terms:

4.       A Childrens lawyer shall be appointed for [J.T.] or a
    social work investigation requested.

5.       [Dilico] shall facilitate services for the child, but shall
    not make decisions about the child without the consent of her caregivers or
    order of the court.

6.       The mother D.C. and the father B.T. shall be entitled to
    supervised access.

7.       If R.C. becomes a party, she is entitled to access.

8.       The access exercised by D.C., B.T. and R.C. shall be on the
    following conditions:

a. The access of the parents and great aunt shall not, in
    combination, exceed 48 hours per month.

b. There shall not be any overnight access at this time.

c. All access shall be in Thunder Bay.

d. No other individuals other than supervisors, the [Office of the
    Childrens Lawyer] or an agreed third party shall attend the access visits.

e. The parents and great aunt shall propose a schedule for the next
    two months which may be agreed by the Applicants or the matter of the schedule
    can be addressed with the court.

f. R.C. shall refrain from having the child refer to her as mother
    or mom.

9.       The current customary care agreement and the Alternative
    Care Agreement shall be stayed pending further order of the court. No other
    customary care agreements shall be signed regarding [J.T.] and no other
    proceedings shall be commenced without leave of the court.

[13]

Dilico appealed the motion judges order to the
    Ontario Superior Court of Justice. The Association of Native Child and Family
    Services Agencies of Ontario, and the Nishnawbe Aski Nation were granted
    intervenor status and took legal positions that buttressed Dilicos legal
    position.

[14]

On September 7, 2021, the appeal judge allowed
    the appeal, agreeing with Dilico that: (1) the motion judge erred in concluding
    that Out-of-Court Customary Care Agreements are not creations of the
CYFSA
,
    which must be given priority to court-ordered options; (2) the motion judge
    committed palpable and overriding error in finding that the applicants were not
    foster parents within the meaning of s. 2 of the
CYFSA
, and in
    exercising discretion to permit them to apply for custody contrary to the
    spirit of the legislation; and (3) erred in not deferring to Dilicos placement
    decision. He set aside the motion judges decision, struck the applicants
    application for custody, and prohibited the applicants from being parties in a
    case involving the custody of or access to J.T.

THE ISSUES

[15]

The applicants now bring this motion pursuant to
    Rule 63.02(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,

to stay the judges decision pending the final determination of their
    intended appeal. Dilico does not oppose a conditional stay that will require
    that J.T. reside with the applicants pending appeal. Responsibly, Dilico
    recognizes that it would not be in J.T.s best interests to remove her from the
    applicants residence and care, only to have to return her if the applicants
    ultimately succeed on appeal. They contend, however, that the
status

quo

includes their authority as J.T.s legal guardian, which is
    not being respected. They also contend that this authority is required to
    maintain J.T.s ties to her Indigenous family, culture and community. They
    request that the order of this court preserves their guardianship, including their
    decision-making authority. The applicants oppose this request, arguing that Dilicos
    guardianship derives from an invalid customary care agreement and should not be
    maintained by this court pending the final determination of the appeal.

[16]

The applicants also seek orders for the
    admission of fresh evidence, the representation of J.T. on appeal by the Office
    of the Childrens Lawyer, and leave to file an extended factum.

ANALYSIS

[17]

I am persuaded that a stay of the appeal judges
    decision pending the final determination of an appeal from that decision is in
    the interests of justice. The three factors required for consideration of such
    a stay, recently described by this court in
UD Trading Group Holding PTE.
    Limited v. TransAsia Private Capital Limited
, 2021 ONCA 279, at para. 29,
    each point in that direction.

[18]

First, a preliminary assessment of the merits of
    the case reveals that there are serious issues to be tried. Dilico agrees that
    this is so. Indeed, this appeal will raise important questions about the proper
    evaluation of the best interests in the placement of Indigenous children who
    have been apprehended, and it will invite close consideration of the effect of
    out-of-court customary care agreements.

[19]

Second, D.L. and M.L. have a tremendous
    emotional investment in their relationship with J.T. and will suffer
    irreparable harm if they lose their caregiving role without further and final
    determination of the serious questions I have identified. More importantly, all
    indications are that J.T. is being extremely well cared for and has closely
    bonded with D.L. and M.L. I agree entirely with the responsible and sensitive
    recognition by Dilico that it is not in her best interests to terminate her
    placement with D.L. and M.L., given that such outcome could be reversed as the
    result of this legal action. J.T. requires a stable interim care placement pending
    final determination of what her ultimate placement will be.

[20]

Third, I am persuaded that based on the harms I
    have identified, D.L. and M.L., and J.T., will suffer greater harm if I refuse
    to grant a stay, than Dilico, D.C., other members of J.T.s family or her
    Indigenous community will experience if I order a stay.

[21]

Having said that, the law is clear that as an
    Indigenous child, J.T.s best interests require that attention is paid to specific
    considerations, which affect both the irreparable harm and greater harm
    considerations discussed above. Subsection 74(3) of the
CYFSA

obligates
    courts, when determining the best interests of Indigenous children, to
    consider the importance  of preserving the childs cultural identity and
    connection to community. The preamble to the
CYFSA
makes clear how
    important it is in the spirit of reconciliation to care for Indigenous
    children in accordance with their distinct cultures, heritages and traditions.
    Section 10 of
An Act respecting First Nations, Inuit and Métis children,
    youth and families

removes any doubt that an ongoing relationship between
    the family and the childs Indigenous community is of central concern. Specifically,
    s. 10 provides:

10(1) The best interests of the
    child must be a primary consideration in the making of decisions or the taking
    of actions in the context of the provision of child and family services in
    relation to an Indigenous child, and, in the case of decisions or actions
    related to child apprehension, the best interests of the child must be the
    paramount consideration.

(2) When the factors referred to in
    subsection (3) are being considered, primary consideration must be given to the
    childs physical, emotional and psychological safety, security and well-being,
    as well as the importance, for that child, of having an ongoing relationship
    with his or her family and with the Indigenous group, community or people to
    which he or she belongs and of preserving the childs connections to his or her
    culture.

[22]

I do not disregard the fresh evidence confirming
    D.L.s Indigenous status, proof that was not available before the appeal judge.
    However, I agree with Dilico that the stay I order must make meaningful
    provision that enables Dilico to take reasonable steps to nurture J.T.s
    connection to her Indigenous culture, her family and her community, pending the
    final determination of the appeal. I therefore impose conditions on the stay I
    am ordering, and in recognition that this may not be adequate, I will also be
    ordering that this appeal be expedited.

DISPOSITION

[23]

The Order of Newton J. of the Ontario Superior
    Court of Justice dated September 7, 2021, Court File No. FS-20-0062-00AP, is
    stayed pending appeal. The following conditions apply:

1.       The
    most recent customary care agreement and the alternative care agreement shall remain
    in effect pending further order of the court. However, any authority that Dilico
    had as guardian to determine J.T.s custody placement is suspended, and J.T. shall
    not be removed from the physical care or control of D.L. and M.L. pending the
    final determination of this appeal. The obligation of D.L. and M.L. to
    participate with Dilico in developing a Plan of Care for the child in care is
    also suspended.

2.       The
    mother D.C. and the father B.T. and R.C. shall be entitled to supervised access
    to J.T., in Thunder Bay, on the following conditions:

a. The
    access of the parents and great aunt shall not, in combination, exceed 48 hours
    per month.

b. There shall not be any overnight access at this time.

c.

No other individuals, other than supervisors, the Office of the
    Childrens Lawyer or an agreed third party shall attend the access visits.

d.

R.C. shall refrain from having the child refer to her as mother or
    mom.

[24]

I am not prejudging the contested validity of the
    recent customary care agreement and the alternative care agreement by ordering
    that they be in effect pending the appeal. These agreements, the terms of which
    have been agreed to by the applicants, provide a mechanism for ensuring that J.T.
    continues to receive services, and that her needs as an Indigenous child are
    attended to pending the completion of the appeal.

[25]

As indicated, I am also ordering that this
    appeal be expedited. It is in J.T.s interest to have this matter resolved urgently
    and there is no impediment to having an appeal proceed quickly. The applicants
    are requesting a second appeal and the bulk of the required documentation and
    argument is already available.

[26]

The applicants request for an order admitting
    fresh evidence is premature. That motion must be brought before the panel
    hearing the appeal.

[27]

If intervenors are permitted to participate in
    the appeal, the applicant shall be permitted to file a factum exceeding 30
    pages, not to exceed 45 pages.

[28]

Pursuant to s. 89(3.1) of the
Courts of
    Justice Act
, R.S.O 1990, c. C.43, the Office of the Childrens Lawyer may
    act as legal representative for J.T.

[29]

Within 10 days of the release of this decision,
    the parties may provide costs submissions in writing not to exceed 3 pages,
    supported by bills of costs.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 2460907 Ontario Inc. v. 1521476
    Ontario Inc., 2021 ONCA 682

DATE: 20211006

DOCKET: C69130

Lauwers, Harvison Young and
    Sossin JJ.A.

BETWEEN

2460907
    Ontario Inc.

Plaintiff/Appellant

and

1521476 Ontario Inc.

Defendant/Respondent

Paul Starkman and Calvin Zhang, for the
    appellants

Elliot Birnboim and Michael Crampton,
    for the respondent

Heard: September 27, 2021 by video conference

On appeal from the order of Justice M.G.
    Ellies of the Superior Court of Justice, dated January 26, 2021

striking the appellants claim, with reasons reported at
    2021 ONSC 634.

REASONS FOR DECISION

[1]

The appellant 2460907 Ontario Inc. (246) appeals from an order
    striking its claim under r.
21.01(1)(b)

of
    the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194,

for pure
economic loss arising from the respondent 1521476 Ontario Inc.s (152)
    exercise of re-entry against 152s tenant, 2456787 Ontario Inc. (245).

[2]

The underlying facts are straightforward. 152
    had entered into a lease with 245. The lease was subsequently amended to allow
    for renovations, for which 152 was to obtain a building permit. The building
    permit was delayed. 245 was unable to afford the rent, stopped paying it, and
    asked 152 to waive or reduce the rent, a request 152 refused. 245 then wrote to
    152 advising that a new restaurant to be located in the premises would be
    operated by 246 and requested that the original lease and the amending
    agreement both be changed to reflect that the tenant would now be 246. 152
    responded by re-entering the premises and distraining the chattels of 245. 245
    commenced an action for wrongful distraint, to which 246 was not a party.

[3]

Over a year later, 246 commenced its own action
    against 152 for pure economic loss damages for the profits it was going to earn
    by operating a restaurant in the premises formerly occupied by 245. 246 claimed
    to have possessory or proprietary interest in the property. 152 brought a motion
    under r. 21.01(1)(b) of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194 and was successful.

[4]

The motion judge found that, as a third party,
246 did not have possessory or proprietary interests in the premises. 152 had not
    consented to an assignment of the lease and refused to enter into any new
    agreement with 246, and 246 could therefore not have acquired possessory or
    proprietary interest in the property. The motion judge also denied 246 the
    opportunity to amend its claim because (1) it had already been given that
    opportunity and (2) no amount of amendment would save 246s claim.

[5]

The appellant argues that the trial judge incorrectly applied the
    test set out
under r. 21.01(1)(b) by not accepting the facts
    pleaded in the statement of claim as true, and that he erred in his
    consideration of its tort claim for pure economic loss. Both arguments must
    fail.

[6]

First, we see no error in the motion judges
    finding that 152 did not consent to the assignment of the lease and that 246
    therefore had no possessory or proprietary interest in the property. This
    finding was well grounded in the record before the motion judge and was open to
    him. The motion judge was aware that 152 failed or refused to allow 246 to
    occupy the premises. The precise mechanism through which 246 did not obtain
    possessory or proprietary interest is not vital.

[7]

Second, there is no merit to the appellants
    argument that 152 owed it a duty of care arising from its possessory or
    proprietary interest in 152s property.  Without such an interest there could
    not be an entitlement on the part of 246 to claim possessory or proprietary
    interest in 152s property and thus a duty of care that could entitle it to economic
    loss. This was not a case like
Canadian National
    Railway Co. v. Norsk Pacific Steamship Co.
, [1992]
    1 S.C.R. 1021, which remains the leading case on relational economic loss and
    upon which the appellant relied. In that case, a barge owned by Norsk Pacific
    Steamship collided with a bridge owned by Public Works Canada. Although CN did
    not have any leasehold estate or interest in the bridge, it was,
pursuant
    to a contract
with Public Works Canada, its primary user. Nothing about
    this case is analogous to
Norsk.
246 did not have any relationship
    with 152, contractual or otherwise, that would entitle it to claim possessory
    or proprietary interest in 152s property.

[8]

Given the motion judges finding that 152 had
    not consented to any assignment of the lease, there was nothing to ground the
    necessary finding of proximity. As the Supreme Court of Canada stressed in
1688782
    Ontario Inc. v. Maple Leaf Foods Inc.
, 2020 SCC 35, 450 D.L.R. (4th) 181,
    at para. 21,
per
Brown and Martin JJ. writing for the majority, it is
    proximity and not a template of how a loss factually occurred, that remains a
    controlling concept and a foundation of the modern law of negligence: see
    also,
Norsk
, at
p.1152.

[9]

The motion judges decision to not allow 246 to
    amend its claim further is owed deference.

[10]

Appeal is dismissed with costs in the amount of
    $5,000, as agreed by the parties, awarded to the respondent.

P.
    Lauwers J.A.

A.
    Harvison Young J.A.

L.
    Sossin J.A.