COURT OF APPEAL FOR ONTARIO

CITATION: Marcus v. Cochrane, 2014
    ONCA 207

DATE: 20140320

DOCKET: C55101

Goudge, Sharpe and Rouleau JJ.A.

BETWEEN

Louise Marcus

Plaintiff (Appellant)

and

Carol Ann Cochrane and Low Murchison LLP

Defendants (Respondents)

Richard R. Marks, for the appellant

Heather J. Williams, for the respondents

Heard: March 5, 2014

On appeal from the judgment of Justice Bonnie Warkentin
    of the Superior Court of Justice, dated January 24, 2012, with reasons reported
    at 2012 ONSC 146.

Goudge
    J.A.:

[1]

At trial, the appellants claim against the respondent solicitor and her
    firm for solicitors negligence was dismissed.  The trial judge found that, in
    the circumstances of this case, the respondent solicitor did not breach the
    standard of care owed to the appellant, her client.  The trial judge also found
    that, in any event, the appellant suffered no damages due to the respondents
    conduct.  Finally, the trial judge awarded costs to the respondents on a full
    indemnity scale in the amount of $160,706.99.

[2]

Counsel for the appellant challenges all three findings in this court.
    In my view, there is no merit to his argument that the trial judge was wrong to
    dismiss the claim for solicitors negligence.  Nor is there any error in the
    trial judges finding that the appellant suffered no damages in any event.  However,
    in my opinion, the costs award was excessive and must be substantially reduced.

[3]

The background facts are straightforward.  The appellant separated from
    her husband on August 1, 2005.  By early February 2006, they had prepared their
    own draft separation agreement, which resolved their family law issues.  It
    provided for a small equalization payment to the appellant.  The appellant then
    sought legal advice from the respondent solicitor on the agreement she had
    reached with her husband.  The list of her assets at separation, which was
    attached to the agreement, included a severance payment of approximately
    $120,000 she received on March 16, 2006.  She received the payment as a result
    of the termination of her employment on January 19, 2006, which was after the
    date of separation.

[4]

The respondent cautioned her not to sign a final agreement until there
    had been full financial disclosure so that a proper equalization calculation
    could be made.  The appellant rejected this advice and, subject to several
    minor changes, proceeded to sign the agreement she had reached with her
    husband.

[5]

Mr. Marks argues that by not advising the appellant that her severance
    payment should be excluded from any equalization calculation, but rather
    suggesting that she had a severance pay entitlement at separation that would
    have to be factored in, the respondents conduct fell below the standard of
    care owed to the appellant.

[6]

The trial judge dealt with this issue by first finding the scope of the
    respondent solicitors retainer.  She concluded that it was only to accept the draft
    agreement prepared by the appellant and her husband, and with some minor
    amendments, incorporate that agreement into a final separation agreement.  That
    is a finding of fact for which there was ample evidence at trial.  There is no
    basis to disturb it on appeal.

[7]

The trial judge then turned to the standard of care required of a
    solicitor with such a retainer.  The appellant called no expert evidence on
    this question.  The respondents called as an expert witness a senior family
    practitioner in Ottawa.  His opinion was that in discharging this retainer, the
    respondent did not breach the standard of care required of a reasonably
    competent lawyer in the circumstances.  The trial judge accepted this opinion
    and found that the respondent was not negligent.  This conclusion was amply
    justified on the evidence the trial judge had before her.  We cannot interfere
    with her finding.

[8]

The trial judge then turned to the appellants claim that if she had
    been properly advised about her severance payment, she would have been able to
    negotiate an equalization payment of $70,000 to $80,000, rather than the
    $4,573.59 she did receive.

[9]

The trial judge found this position entirely unsupported by the
    evidence.  Rather, she concluded that the evidence indicated that had the
    appellant sought such a payment from her husband, he would not have agreed to
    it.  Nor would a court have ordered it.  The evidence was that, had full
    financial disclosure been made, the equalization result would have been much
    the same as that provided for by the agreement signed in March 2006.  This
    finding of fact was entirely open to the trial judge on the record.  As a
    result, I see no error in her conclusion that in any event the appellant
    suffered no damages.

[10]

The
    third issue before us is the award of trial costs on a full indemnity scale.
    The trial judge concluded that this was justified because the appellants
    conduct of the trial was reprehensible.  She based her conclusion on two
    reasons, neither of which is sustainable in my view.

[11]

The
    first concerned two emails that the respondent solicitor sent to the
    appellant.  After admitting on discovery that she received them, the appellant
    gave evidence at trial that she had not received them or thought it unlikely
    that she did, because the emails had no date and time stamp.  The IT
    information she received led her to believe they were invalid.  The trial
    judge found that the appellant was in effect suggesting that the respondent had
    falsified documents for trial and was calling her honesty into question, thus
    justifying full indemnity costs.  In my view, the appellants evidence cannot
    be taken that far.  I cannot read the appellants evidence as suggesting any
    deliberate conduct, let alone dishonesty, on the part of the respondent
    solicitor.

[12]

The
    second reason was that the appellant failed to call expert evidence on the
    standard of care and misstated her damages when she knew or ought to have
    known that she suffered no damages.  The failure to call expert evidence is
    normally a decision of trial counsel.  There is nothing here to suggest
    otherwise, let alone to lay the responsibility for it at the feet of the
    appellant.  While counsels decision may have been unwise, it is hardly
    reprehensible conduct justifying full indemnity costs against the appellant.
    The same is true of trial counsels decision to advance a theory of damages
    (namely that the appellant could have negotiated a vastly superior equalization
    payment) that the trial judge ultimately rejected.  I see no basis on this
    record to say that the appellant ought to have known that this would happen, or
    that she in fact knew it would happen.

[13]

Since
    neither of the trial judges reasons can be sustained, I conclude that it was
    an error in principle to fix trial costs on a full indemnity basis.  In order
    to bring a merciful end to these proceedings, this court should determine the
    appropriate trial costs order rather than remit the issue to the trial court.

[14]

In
    my opinion, there is no basis on this record to depart from the usual partial
    indemnity scale in fixing trial costs.

[15]

In
    fixing those costs, it is important to remember that the dispute was
    essentially about a claim for approximately $80,000.  The partial indemnity
    bill of costs of appellants counsel Mr. Marks was $172,645.55.  The full
    indemnity bill of costs of the respondents was $160,706.99.  The comparison of
    what this dispute was about and what was spent on it is stark and difficult to
    justify.  While undoubtedly Mr. Marks, as counsel asserting the claim, must
    bear the greater responsibility, the principle of proportionality which is
    fundamental to any sound costs award cries out for application by both
    counsel.  With the assistance and indeed the direction of the trial judge if
    need be, counsel simply must cut the cloth to fit.  The health of the justice
    system depends on it.  Trial costs cannot serve as an incentive to look away
    from this important challenge.

[16]

In
    the end, the order for trial costs against the appellant must be fair and
    reasonable: see
Boucher v. Public Accountants Council for the Province of
    Ontario
(2004), 71 O.R. (3d) 291
    (C.A.), at p. 299
.  Making that assessment is more art than
    science.  Of particular importance here is that, primarily, this was a trial
    about a modest amount of money.  In my opinion, an award to the respondents of
    $60,000 together with disbursements represents a fair and reasonable order for
    trial costs.  I would so order.

[17]

With
    this change in the costs provision, the appeal is otherwise dismissed.

[18]

Finally
    I turn to costs of the appeal.  Both counsel have submitted bills of costs.

[19]

Mr.
    Marks bill on a partial indemnity basis is $202,649.15.  Even if he charges
    his own client on no more than a partial indemnity basis, the appellant will
    face a total cost from her own lawyer of some $375,000 to try and unsuccessfully
    appeal a claim for $80,000.  In my view, that is completely unjustifiable.

[20]

Respondents
    counsel has submitted a vastly more reasonable partial indemnity bill of
    $49,001.53.  While the appellant succeeded on one issue, she was unsuccessful
    on two of the three issues in this court.  The respondents therefore deserve
    some modest costs.  I would order costs of the appeal to the respondents in the
    sum of $20,000 inclusive of disbursements and taxes.

Released: March 20, 2014 (S.T.G.)

S.T. Goudge J.A.

I agree. Robert J. Sharpe
    J.A.

I agree. Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  Martin v. Sansome, 2014 ONCA 192

DATE:  20140312

DOCKET: C55798

Hoy A.C.J.O., Laskin and Tulloch JJ.A.

BETWEEN

Delmer Bearinger Martin

Applicant (Appellant in Appeal)

and

Linda Lorraine Sansome

Respondent (Respondent in Appeal)

Aaron Franks and Michael Zalev, for the applicant
    (appellant)

Pamela L. Hebner and Patrick Jocsak, for the respondent

Heard:  October 8, 2013

On appeal from the judgment of Justice G.A. Campbell of
    the Superior Court of Justice, dated June 26, 2012.

COSTS ENDORSEMENT

[1]

We have received and reviewed the parties submissions on costs.

[2]

The appellant argues that he was the successful party on this appeal,
    and seeks costs on a partial indemnity scale in the amount of $25,000,
    inclusive of disbursements in the amount of $2,021 and HST.  The respondent
    submits that she was successful on the appeal, and seeks costs on a partial
    indemnity scale in the amount of $40,931.17, inclusive of disbursements in the
    amount of $4,984 and HST. It appears that the respondent, and not the
    appellant, paid for the transcripts required for the appeal.

[3]

In our view, the respondent was largely successful on the appeal. While
    the amount that the appellant is required to pay the respondent was reduced on
    appeal, the appellant did not obtain the principal relief he sought, namely a
    new trial.  As the respondent submits, such a result would have been disastrous
    for the respondent.  And the court did not interfere with the trial judges
    pivotal order setting aside the domestic contract between the parties.

[4]

We accordingly award the respondent costs of the appeal, fixed in the
    amount of $25,000, inclusive of disbursements and HST.

[5]

The appellant also submits that the costs awarded at trial  $73,000 on
    a substantial indemnity scale  should be reduced to $43,800 on a partial
    indemnity scale. The appellant suggests that the only reason that the trial
    judge fixed costs on a substantial indemnity scale was because the amount that
    he awarded to the respondent at trial exceeded her pre-trial settlement offer.
    The appellant notes that the amount to which the respondent is entitled
    following appeal is less than the amount of her pre-trial settlement offer.

[6]

It is not clear to us that the only reason that the trial judge ordered
    costs on a substantial indemnity scale was because of the settlement offer.
    The issue of the costs of trial is accordingly remitted to the trial judge in
    case he wishes to reconsider his costs award in the light of this courts
    decision.

Alexandra
    Hoy A.C.J.O.

John I. Laskin
    J.A.

M.
    Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Meyer v. Adrian, 2014 ONCA 173

DATE: 20140304

DOCKET: C57394

Juriansz, Pepall and van Rensburg JJ.A.

BETWEEN

Margaret Meyer

Appellant/Applicant

and

Timothy Adrian and Barbara Adrian

Respondents in Appeal/Respondents

M. John Ewart, for the appellant

J. Barry Eakins, for the respondents

Heard: March 3, 2014

On appeal from the judgment of Justice
Barry
    G. A.
MacDougall of the Superior Court of Justice, dated June 24, 2013.

APPEAL BOOK ENDORSEMENT

[1]

This appeal is abandoned. The respondents costs are fixed in the amount
    of $4000.00 all inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION: Middlesex Condominium Corporation
    229 v. WMJO Limited, 2014 ONCA 203

DATE: 20140317

DOCKET: M43095 (C57409)

Juriansz, Pepall and van Rensburg JJ.A.

BETWEEN

Middlesex Condominium Corporation 229

Plaintiff (Respondent/Appellant in Appeal)

and

WMJO
    Limited, Ayerswood Development Corporation, Middlesex

Condominium
    Corporation 282, Middlesex Condominium

Corporation 492 and
    Middlesex Condominium Corporation 500

Defendants (Moving Parties/Respondents in Appeal)

Paul Morrissey, for the appellant

Scott Turton, for the respondents

Heard and released orally: March 3, 2014

On appeal from the order of Justice Kelly A. Gorman of
    the Superior Court of Justice, dated June 27, 2013.

ENDORSEMENT

[1]

The respondents move to quash this appeal on the basis that the
    appellant seeks to appeal an interlocutory order.

[2]

The order below dismissed the appellant's summary judgment motion. In
    reaching her conclusion the motion judge analyzed the applicable legal
    principles.

[3]

This court has decided in
Ashak v. Ontario (Family
    Responsibility Office
), 2013 ONCA 375, 363 D.L.R. (4th) 322, at para. 11, that
    if a motion judge dismissing a motion for summary judgment proposes to make a
    binding determination of law, he or she should specifically make reference to
    rule 20.04(4) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 and
    the legal determination made should form part of the formal order. This
    approach was more recently confirmed in
Dams v. TD Homes and Auto Insurance
    Co.
, 2013 ONCA 730.

[4]

In this case the motion judge made no reference to rule 20.04(4) and no
    legal determinations are included in her formal order.

[5]

It follows that the motion judge did not make any binding determinations
    of law. Her legal analysis simply indicates the course of her reasoning in
    reaching the conclusion to dismiss the appellant's summary judgment motion.
    Should the appellant proceed to trial, the motion judge's reasons should not be
    treated as final determinations of the legal issues raised. The moving party
    recognizes this is the case.

[6]

The order made in this case is not a final order. The appeal is quashed.

[7]

Costs of the motion in the appeal fixed in the amount of $7,500 all
    inclusive.

R.G.
    Juriansz J.A.

S.E.
    Pepall J.A.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194

DATE: 20140314

DOCKET: C56832

Gillese, Rouleau and Tulloch JJ.A.

BETWEEN

Mountain View Farms Ltd.

Plaintiff (Appellant)

and

George Donald McQueen

Defendant (
Respondent
)

M.A. Cummings, for the appellant

V.L. Vandergust, for the respondent

Heard: February 13, 2014

On appeal from the judgment of Justice Alfred J. Stong of
the Superior Court of Justice, dated March 7, 2013, with reasons reported at
2013 ONSC 1440.

Gillese J.A.:

[1]

This appeal concerns the scope of a motion judges power to vary a
default judgment under rule 19.08 of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194.

OVERVIEW

[2]

Mountain View Farms Ltd. (the appellant) provided crop services to George
Donald McQueen (the respondent) for a number of years.  When the respondent
failed to fully pay for the services, the appellant had him sign an invoice to
acknowledge the outstanding amount of just under $50,000.  Pre-printed words on
the bottom of the invoice stated that interest would be charged on overdue
accounts at the rate of 24% per year.

[3]

The appellant later sued the respondent for the unpaid amount plus interest
at an annual rate of 24%.  The respondent did not respond to the appellants suit
and the appellant obtained default judgment against him.

[4]

Six years later, the respondent moved to have the default judgment set
aside.  By that time, interest calculated at 24% per annum had accumulated to
over $75,000.  The respondent acknowledged that he owed the principal amount but
maintained that he had never agreed to pay the appellant interest at the rate of
24% per year.

[5]

The appellant opposed the motion on a number of bases, including that the
invoice with the respondents signature on it was an agreement to pay interest
at the annual rate of 24%.

[6]

The motion judge was unable to find, on the evidence before him, that
the respondent had agreed to pay the 24% interest rate.  Thus, he concluded,
the respondent had an arguable defence on the merits of the applicable interest
rate.

[7]

The motion judge did not set aside the default judgment, however.  Instead,
by order dated March 7, 2013 (the Order), acting pursuant to rule 19.08, the
motion judge varied the default judgment by substituting an annual interest
rate of 5%.

[8]

The appellant submits that the motion judge erred in a number of ways
and asks this court to set aside the Order.

[9]

As I explain below, in my view, the motion judge erred.  Consequently, I
would allow the appeal.

FACTS

[10]

The respondent is a farmer in his late eighties. For
two decades, he traded equipment and services with his neighbours, Roger and
Bill McLeod. During the period relevant to these proceedings, the McLeods
provided crop services to the respondent through their corporation, the
appellant.

[11]

In February 2002, the appellant issued an invoice to
the respondent for $28,273.68.  The amounts shown on the invoice were for
baling hay in 1999, 2000 and 2001.  On the invoice, below the pre-printed
heading Work Performed, the appellant had handwritten in the amounts owing
and the years in which the services had been performed.  Although the services
had been provided over a three-year period, the invoice showed no interest charges.
However, the following pre-printed interest provision was in the bottom left
hand corner of the invoice:

Please
Pay By Invoice

No
statements issued

Terms:
Net 30 days

2%
Service charge per month (24% per annum)

will be charged on overdue accounts.

[12]

The respondent paid $10,000 of the amount claimed in
this invoice.

[13]

In December 2003, the appellant sent the respondent an
invoice for $39,685.52.  This amount reflected the outstanding balance from the
prior invoice (for the period from 1999 to 2001) and new charges for hay
baling, snow blowing, and swathing performed after 2001.  Again, the invoice
showed no charges for interest.  And, again, the pre-printed interest provision
was on this invoice.

[14]

The McLeods acknowledged that they neither asked nor
expected the respondent to pay interest on outstanding amounts. They testified
that they trusted the respondent to pay what he owed.

[15]

The McLeods did not, however, trust the respondents
son, who was taking an ever greater role in managing the respondents affairs
as the respondents age advanced. They did not want to deal with the
respondents son with respect to the account. They wanted to close the account
as soon as possible.

[16]

In June 2005, the McLeods decided to take a different
approach. The appellant prepared another invoice for services rendered to the
respondent.  The total amount claimed was $49,862.82 (the Invoice).  Like the
previous invoices, the Invoice did not claim an amount for interest but the pre-printed
interest provision was on it.

[17]

Roger McLeod walked up to the respondent, who was
sitting in his truck, and handed him the Invoice. He asked the respondent to
sign a copy of the Invoice, explaining that we want a bill signed so if
something happens [to you] we know we have a bill signed because right now its
just between you and us that the work was done. The respondent replied, Yeah,
I'll sign the damn thing.

[18]

Roger McLeod says he asked the respondent to sign down
by the [pre-printed interest provision].  However, the respondent actually
signed below the amounts shown as owing, and not next to the pre-printed interest
provision.

[19]

The respondent has a Grade 3 education.  His ability
to read and write is poor.

[20]

The Invoice was not paid and later in the summer of
2005, the appellant issued and served a statement of claim for the amount of
the Invoice plus interest at the rate of 24% per annum.

[21]

The respondent did not file a statement of defence or
notice of intent to defend.  He was noted in default and default judgment was
signed against him in August 2005 for the principal amount plus interest at the
rate of 24% per annum.

[22]

In November 2005, the appellant registered a writ of seizure
and sale against lands the respondent owned.  The writ was to expire six years
later, in November 2011.

[23]

The appellant took no further steps to enforce the default
judgment.

[24]

In 2010, the respondent transferred three of his four properties
to his son. All three properties were subject to the writ of seizure and sale.
The transfers were each stamped as being subject to the writ.

[25]

In May 2011, the respondents son wanted to refinance
his properties. To do so, because he and his father have the same name, he
needed to confirm that he was not the same person as his father.

[26]

In November 2011, the appellant renewed the writ.

[27]

In April 2012, the respondent brought a motion seeking,
among other things, to have the default judgment set aside, leave to file a
Statement of Defence, and such further relief as the court deemed just.

[28]

By the time the motion was argued, the respondent had accepted
that he owed the principal amount set out in the default judgment and, in fact,
had paid it plus assessed costs.  He continued to maintain that he had never
agreed to pay interest at the rate of 24% per year.

[29]

The appellant opposed the motion on a number of
bases.  It contended that it was the respondents son and not the respondent
who had brought the motion.  As a non-party, the respondents son lacked
standing to bring the motion.  Moreover, it submitted that the respondent
failed to meet the test for setting aside a default judgment and that he came
to the court without clean hands.  It also argued that the respondents
affidavit evidence should be struck for lack of reliability.

THE DECISION BELOW

[30]

The motion judge set out the three-part test for
determining whether to set aside the default judgment.  (The test is set out
later in these reasons.)

[31]

He found that there had been inexplicable delay in
the respondents bringing of the motion to set aside the default judgment.  The
respondent must have been aware of the writ (and, therefore, the default
judgment) no later than June 2010, when he transferred his properties to his
son.  No reasonable explanation had been given for the delay between then and when
he brought the motion in 2012.

[32]

The motion judge noted that while it had been argued
that the respondent was growing more forgetful over time owing to his advanced
age, no evidence of medical incapacity had been presented on the motion. He
added that the respondent was still driving in 2010 and had managed to transfer
his properties to his son that year without requiring a power of attorney.

[33]

The motion judge acknowledged that the appellant would
suffer prejudice from the respondents delay in seeking to set aside the
default judgment.  The prejudice consisted of the following: the process server
who served the statement of claim on the respondent had died; many of the
original invoices had been destroyed; the respondents mental competence was
now in issue; and, at least three of the respondents properties had been
conveyed since the default judgment was obtained. But, in the motion judges view,
the prejudice could be addressed in costs.

[34]

The motion judge then considered whether the
respondent had an arguable defence with respect to the matter of interest. He
noted that there was no evidence of any agreement to pay interest at 24% per year
except for the respondents signature on the Invoice  evidence that, in his
view, was not determinative. He also noted that Bill McLeod had testified that
he, his brother and the appellant had not charged the respondent interest in
their dealings with him prior to the lawsuit.

[35]

The motion judge found that the respondent had an
arguable defence on the merits of the claimed interest rate, saying that he was
not satisfied that the respondent had even impliedly agreed to pay interest at
the rate of 24% per annum.

[36]

The motion judge then explained that he would impose a
different annual interest rate, saying:

In these circumstances, it would be inappropriate to have
interest accrue at the rate claimed by the [appellant]. Certainly however,
reasonable parties to a commercial transaction would expect that monies left
unpaid would attract interest at some rate. In the absence of any evidence
before me to establish the credit costs of the [appellant] or the rate of
return it might reasonably have expected for investment of the amount of the
unpaid accounts, interest on the unpaid accounts, including prejudgment
interest, should properly be charged at the [postjudgment interest] rate
prescribed by the
Courts of Justice Act
, plus the 1% submitted by
concession of the [respondent], from August 25, 2005.

[37]

He ordered that the default judgment be varied only in
respect of the rate of interest, with an annual rate of 5% being substituted
for 24%.

THE ISSUES

[38]

The
appellant submits that the motion judge erred in:

1. allowing the respondents son to bring
the motion, when he had no standing;

2. admitting the respondents affidavit evidence;

3. his application of the test for setting
aside a default judgment; and

4. varying the interest rate in the default
judgment, pursuant to rule 19.08.

ANALYSIS

1.

Standing to bring the motion

[39]

The
appellant submits that the motion judge should not have heard the motion.  It
says that the motion to set aside the default judgment was brought and argued
by the respondents son and because the respondents son was not a party to the
default judgment, he had no standing to contest the default judgment.

[40]

Mr.
Vandergust is the lawyer who brought and argued the motion.  He told the motion
judge that he represented the respondent.  Furthermore, the materials filed in
support of the motion describe Mr. Vandergust as solicitor for the respondent.

[41]

Mr.
Vandergust is also the respondents sons lawyer.

[42]

While
the motion judge did not expressly deal with the issue of standing, it is implicit
that he accepted that the respondent brought the motion and that Mr. Vandergust
was acting on behalf of the respondent.  This is evident from the motion
judges reasons in which he lists Mr. Vandergust as counsel for the respondent.

[43]

I
see no basis for interfering with the motion judges implicit determination that
it was the respondent who brought the motion, and not the respondents son.  Accordingly,
I would dismiss this ground of appeal.

2.

The respondents affidavit evidence

[44]

The
appellant submits that the motion judge erred in admitting into evidence an
affidavit signed by the respondent. It submits that the affidavit was not
reliable because on cross-examination the respondent could not recall having signed
it and because his memory is unreliable.

[45]

I
see no error in the motion judges admission of the affidavit.  The problems identified
by the appellant go to weight rather than admissibility.  Furthermore, the
motion judges reasons show that he gave the affidavit little to no weight. He found
that the respondent had an arguable defence on the question of the interest
rate based on other evidence, particularly that of Bill McLeod who testified
that the appellant had a history of not charging the respondent interest on
overdue accounts.

[46]

I
would dismiss this ground of appeal.

3.  Application of the test for setting aside
default judgment

[47]

The
courts ultimate task on a motion to set aside a default judgment is to
determine whether the interests of justice favour granting the order.  The
approach to be taken to this determination has been considered numerous times
by this court.  The following draws heavily on the summary of the principles in
those cases by Perell J. in
Watkins v. Sosnowski
, 2012 ONSC 3836, at
paras. 19-20 and 23-24.

[48]

The
court must consider the following three factors:

(a) whether the motion was brought promptly after the
defendant learned of the default judgment;

(b) whether there is a plausible excuse or
explanation for the defendants default in complying with the Rules;  and

(c) whether the facts establish that the defendant
has an arguable defence on the merits.

[49]

To
this list, I would add the following two factors the court should have regard
to, as set out in
Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd
.
2007 ONCA 333, 87 O.R. (3d) 479 (C.A.), at para. 2:

(d) the potential prejudice to the moving party
should the motion be dismissed, and the potential prejudice to the respondent
should the motion be allowed; and

(e) the effect of any order the court might make on
the overall integrity of the administration of justice.

[50]

These
factors are not to be treated as rigid rules; the court must consider the
particular circumstances of each case to decide whether it is just to relieve
the defendant from the consequences of his or her default.

[51]

For
instance, the presence of an arguable defence on the merits may justify the
court exercising its discretion to set aside the default judgment, even if the
other factors are unsatisfied in whole or in part.  In showing a defence on the
merits, the defendant need not show that the defence will inevitably succeed.
The defendant must show that his or her defence has an air of reality.

[52]

The
motion judge considered the relevant factors.  In respect of the first and
second factors, he found inexplicable delay on the part of the respondent.
He also found that the delay had caused prejudice to the appellant.

[53]

However,
the motion judge was satisfied that the respondent had raised an arguable
defence in respect of the interest rate that applied to the principal debt.
There was evidence before him, including evidence led by the appellant, which
called into question whether the respondent had agreed to pay interest at the
rate of 24% per annum.

[54]

Having
found that there was an arguable defence, it was open to the motion judge to
find that the interests of justice favoured setting aside the default judgment.
It is not, as the appellant would have it, that the motion judge failed to give
adequate weight to the unexplained delay and prejudice to the appellant.
Rather, in the exercise of his discretion, after duly considering the factors, the
motion judge concluded that the respondents arguable defence on the matter of
the applicable interest rate weighed most heavily and caused the interests of
justice to favour setting aside.

[55]

A motion judges decision to set aside a default
judgment is a discretionary one that will attract deference on appeal. It
should not be interfered with absent an error in law or principle, a palpable
and overriding error of fact, or unless the decision is so clearly wrong as to
amount to an injustice:
HSBC Securities (Canada) Inc. v. Firestar
Capital Management Corporation
, 2008 ONCA 894, 245 O.A.C. 47, at para.
22.

[56]

I see no such error and the decision is not clearly
wrong.  Accordingly, I would dismiss this ground of appeal.

4.

Rule
19.08  setting aside or varying a default judgment

[57]

Rule
19.08 gives the court the power to set aside or vary a default judgment on
such terms as are just.  It reads as follows:

19.08 (1)  A judgment against a defendant who has
been noted in default that is signed by the registrar or granted by the court
on motion under rule 19.04 may be set aside or varied by the court on such
terms as are just.

(2)  A judgment against a
defendant who has been noted in default that is obtained on a motion for
judgment on the statement of claim under rule 19.05 or that is obtained after
trial may be set aside or varied by a judge on such terms as are just.

[58]

The
appellant says that the motion judge erred when he used his power under rule
19.08 to substitute an annual interest rate of 5% for the 24% rate in the
default judgment.

[59]

The
respondent contends that the Order was a valid exercise of the power under rule
19.08 to vary a default judgment on such terms as are just.  He says that the
parties were aware that the motion would focus on the issue of the interest
rate, and that the motion judge had sufficient evidence before him to decide
that issue on the merits. A rule 19.08 motion, in his submission, is akin to a
summary judgment motion, where the motion judge is entitled to reach a fair and
just adjudication of substantive issues in the interests of minimizing
unnecessary process.

[60]

I
would accept the appellants submission on this issue.

[61]

In
my view, the motion judge erred in making a final determination of the merits
of the respondents defence.  The respondents motion sought to set aside the
default judgment. Therefore, the courts task was to determine whether the
interests of justice favoured setting aside the default judgment.  As we have
seen, one factor in that determination is whether there is an
arguable

defence on the merits.  The materials filed on the motion did not seek
a determination of whether, if there were an arguable defence, that defence should
succeed.

[62]

Yet,
that is precisely what the motion judge did in the present case.  The effect of
the Order is to find in favour of the respondent, that is, to find that the
respondent is not bound to pay interest at the annual rate of 24%.  Indeed, the
motion judge went further and established the rate of interest that was payable,
despite his own observation that he lacked the requisite evidence.

[63]

To
move from finding an arguable defence to a final determination is not, as the
respondent contends, a just result.  A just result presupposes that both sides
had the opportunity to be fairly heard on the two issues of (1) whether the
respondent was bound to pay interest at an annual rate of 24%; and (2) if not,
what the appropriate rate of interest was.  That did not occur in the motion.
This is not surprising, given that the motion was to set aside a default
judgment.  Although both parties knew that the interest rate issue was to be a
central focus on the motion, the appellant was responding to a motion in which
the question was whether the respondent had an arguable defence in respect of
the 24% rate of interest contained in the default judgment.  The appellant was not
responding to a motion for summary judgment on the matter of the applicable
interest rate.

[64]

In
conclusion, the appropriate course was to set aside the default judgment in
part, and order that the matter proceed on the interest issue.

DISPOSITION

[65]

Accordingly,
I would allow the appeal, set aside para. 1 of the Order (which varies the rate
of interest in the default judgment), order that the 24% interest provision in
the default judgment be set aside, permit the respondent to file a defence, and
allow the matter to proceed on the rate of interest.

[66]

I
would order costs of the appeal in favour of the appellant fixed at $12,000,
all inclusive.  In light of the result on appeal, costs of the motion must be
revisited.  If the parties are unable to agree on that matter, they shall
return to the motion judge to have those costs decided.

Released: March 14, 2014 (E.E.G.)

E.E. Gillese
J.A.

I agree. Paul Rouleau J.A.

I agree. M. Tulloch J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: New York Stock Exchange LLC v. Orbixa Technologies
    Inc., 2014 ONCA 219

DATE: 20140321

DOCKET: C57699

Watt, Lauwers and Benotto JJ.A.

In the Matter
    of an Application to recognize an International Commercial Arbitral Award,
    pursuant to Section 11 of the
International Commercial Act
and Rule
    14.05(3)(d) and (h) of the
Rules of Civil Procedure

BETWEEN

New York Stock Exchange LLC

Applicant (Respondent)

and

Orbixa Technologies Inc.

Respondent (Appellant)

Morris Cooper, for the appellant

Jason Squire, for the respondent

Heard: March 20, 2014

On appeal from the judgment of Justice Laurence A.
    Pattillo of the Superior Court of Justice, dated September 6, 2013.

APPEAL BOOK ENDORSEMENT

[1]

Despite Mr. Coopers able
    argument, we are not persuaded that the application judge erred in rejecting
    each argument advanced there and repeated here. Indeed, we agree with his
    disposition of the application and the reasons he gave for reaching his
    conclusion.

[2]

The proposed fresh evidence
    satisfies the
Palmer
test for admission, but we do not need to
    consider it in reaching our conclusion in this appeal. The appeal is dismissed.

[3]

Costs of $7000, inclusive of
    disbursements and all applicable taxes, payable by the appellant to the
    respondent.


COURT OF APPEAL FOR ONTARIO

CITATION: Peciukaitis v. Forest Harbour Ratepayers
    Incorporated, 2014 ONCA 200

DATE: 20140317

DOCKET: C57015

Feldman, Lauwers and Strathy JJ.A.

BETWEEN

Colleen Peciukaitis

Appellant (Plaintiff)

and

Forest Harbour Ratepayers Incorporated

Respondent (Respondent)

Colleen Peciukaitis, appearing in person

Kurt K. Pereira, for the respondent

Heard: March 12, 2014

On appeal from the order of Justice John R. McCarthy of
    the Superior Court of Justice, dated April 12, 2013.

ENDORSEMENT

[1]

The appellant appeals the decision of McCarthy J. dated April 12, 2013
    where he dismissed her motion for a fair trial as non-justiciable, and struck
    her statement of claim as an abuse of process.

[2]

The action was an attempt to re-litigate a boundary dispute claim that
    was resolved by minutes of settlement and the exchange of mutual releases in
    2006. The appellants effort to subsequently reopen the claim in 2006 was
    dismissed by MacKinnon J. and that decision was upheld by the Divisional Court
    in 2007 OJ 1272.

[3]

We see no error in the decision of McCarthy J. The appeal is dismissed
    with costs fixed at $2000 inclusive of disbursements and HST.

K. Feldman J.A.

P. Lauwers J.A.

G.R. Strathy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Alabi, 2014
    ONCA 195

DATE: 20140313

DOCKET: C55299

Feldman, Lauwers and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Franca Alabi

Appellant

Lori-Anne Thomas, for the appellant

Michael Fawcett, for the respondent

Heard: March 13, 2014

On appeal from the conviction entered on July 27, 2011
    and the sentence imposed on March 15, 2012 by Justice Elinore A. Ready of the Ontario
    Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant seeks to set aside her guilty plea to the offence of
    participation in a criminal organization contrary to s. 467.12 of the
Criminal
    Code
. She received a sentence of 20 months in addition to presentence
    custody of 82 days.

[2]

The basis for the appeal is that the appellant did not make an informed
    decision to plead because she was wrongly informed by her trial counsel that a
    conditional sentence was available for the offence and that there was a strong
    likelihood that she would receive a conditional sentence. He also told her that
    90 days intermittent was the maximum she would receive.

[3]

As Crown counsel before us fairly conceded, everyone in the courtroom
    believed that a conditional sentence was available for the offence. Crown
    counsel had offered a plea deal based on a conditional sentence in exchange for
    certain testimony that the appellant could not provide. The trial judge did not
    realize that the submission for a conditional sentence was for an illegal
    sentence until she reserved her decision.

[4]

In our view, the plea should be set aside. Similar to the case
R. v.
    Al-Diasty,
2003 CanLII 41570 (OCA), the appellant entered her plea based on
    a misunderstanding of the available sentence that was shared by all counsel and
    the trial judge at the time. Her evidence is that she would not have pled
    guilty had she known that a conditional sentence was not available. Her
    evidence as to the extent of her involvement in the criminal organization
    supports a belief that a conditional sentence would not have been inappropriate
    had it been an available sentence.

[5]

In the exceptional circumstances of this case, where the appellant was
    informed that a sentence was available that was illegal, and where Crown
    counsel and the trial judge were under the same misunderstanding, in our view
    the plea should be set aside and a new trial ordered.

[6]

The sentence appeal is therefore moot.


WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4)
    or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4     (1)
Subject to subsection (2), the presiding judge or
    justice may make an order directing that any information that could identify
    the complainant or a witness shall not be published in any document or
    broadcast or transmitted in any way, in proceedings in respect of

(a)     any of
    the following offences;

(i)   an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 346 or 347,

(ii) an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)  at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, make the order.

(3)
In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)
An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community. 2005,
    c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

486.6     (1)
Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For
    greater certainty, an order referred to in subsection (1) applies to prohibit,
    in relation to proceedings taken against any person who fails to comply with
    the order, the publication in any document or the broadcasting or transmission
    in any way of information that could identify a victim, witness or justice
    system participant whose identity is protected by the order. 2005, c. 32, s.
    15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.D.H., 2014 ONCA 183

DATE: 20140307

DOCKET: M43410

Hourigan J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Applicant

and

C. D. H.

Respondent

Jennifer Woollcombe, for the applicant

Celine Dostaler, for the respondent

Heard:  March 5, 2014

Motion for extension of time.

[As transcribed from
    the handwritten endorsement on the back of the Application Record.]

ENDORSEMENT

[1]

The Crown brings an application to file an appeal of certain acquittals
    ordered by the trial judge. The primary ground of appeal is a reasonable
    apprehension of bias based on a conversation that the investigating officer had
    with the trial judge in chambers after the release of the trial judges
    reasons.

[2]

The test for an extension for the Crown in these circumstances is the
    interests of justice, having regard to factors such as whether the Crown formed
    a
bona fide
intention to appeal during the relevant time period,
    whether reasonable diligence was used in locating the party for service,
    whether the respondent would suffer undue prejudice and whether there is an
    arguable appeal: see,
R. v. Watkins
, [1999] O.J. 2314 (C.A. In
    Chambers).  This is not a rigid test. The focus is on the interests of justice.
    The failure of the Crown to establish any one of the factors is not an absolute
    bar to an extension of time:
R. v. Wa
, [2013] O.J. No. 6034 (C.A. In
    Chambers).

[3]

The Crown quite properly admits that no intention to file an appeal was
    formed during the requisite time period.  However, I am satisfied that the
    Crown intended to seek some form of redress to deal with this issue. They
    mistakenly thought that a mistrial application was available.

[4]

I am of the view that the respondent will not suffer any undue prejudice
    by reason of the 12 day delay. Any prejudice arises from the appeal itself and
    not the delay.

[5]

Turning to the merits of the appeal, I am satisfied that the Crown has
    established, at the very least, that there is an arguable appeal on the merits.
    In this regard, it must be noted that this was a case where the complainants
    credibility was a significant issue. The reported conversation between the
    trial judge and the investigating officer touches upon the complaints
    credibility in a significant way.

[6]

I conclude that it is in the interests of justice to grant the
    extension. This is a case where very serious issues have been raised; issues
    that go to the heart of trial fairness. The Crown made a mistake in terms of
    the appropriate remedy, however the Crown has also acted responsibly and
    professionally in dealing with a very difficult and very sensitive matter. This
    is a case that should proceed before this court. It would not be in the
    interests of justice to prevent this case from proceeding by reason of a simple
    mistake regarding the appropriate remedy.

[7]

The application is granted.  The Crown will have till March 14, 2014 to
    file its Notice of Appeal. Service of the Notice of Appeal may be made on the
    respondents lawyer of record, Celine Dostaler, and need not be made personally
    on Mr. H.

William Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chemama, 2014
    ONCA 171

DATE: 20140307

DOCKET: M43395 & M43425 (C46851)

Rosenberg, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Erich Chemama

Applicant/Appellant

Erich Chemama, appearing in person

Greg Skerkowski, for the respondent

Heard: February 19, 2014

On application to review the order of Justice Gillese
    dated December 17, 2013 and on application to review the order of Justice
    Feldman dated January 14, 2014.

ENDORSEMENT

[1]

The appellant applies to review the decision of Gillese J.A. fixing
    March 11, 2014 as the date for the hearing of a number of his appeals. He also
    seeks to review the decision of Feldman J.A. dismissing his application for
    appointment of counsel, Mr. D. Brodsky, pursuant to s. 684 of the
Criminal
    Code.
If he were appointed, Mr. Brodsky would not be able to prepare and
    argue these appeals on March 11. He says that he would not be ready until June
    or July. Most of these appeals relate to very old matters going back to 2007
    and 2008. Armstrong J.A. made a s. 684 order in December 2009. Since that time,
    the appellant has dismissed or refused to co-operate with three counsel. On
    December 13, 2011, Daniel Santoro was appointed
amicus
in an order by
    Simmons J.A. He had previously been counsel for the appellant. Mr. Santoro has
    prepared materials and is ready to argue these appeals on March 11 and make
    such arguments as he feels are justified.

[2]

The appellant says that he has confidence in Mr. Brodsky and wants him
    to be appointed for him. He argues that the appointment of Mr. Santoro violates
    the recent decision of the Supreme Court of Canada in
Ontario v. Criminal
    Lawyers Association
, 2013 SCC 43. We do not agree. Given the lengthy
    history of these matters it is apparent that any counsel appointed by the
    appellant would be dismissed by him. This is a proper case to appoint
amicus
,
    who cannot be dismissed by the appellant. As Karakatsanis J. said for the majority
    in
Ontario v. Criminal Lawyers Association
at para. 46, the authority
    to appoint
amicus
is grounded in the courts authority to control its
    own process and function as a court of law. The history of these proceedings
    shows that the appellants conduct, while perhaps unintentional, has
    nonetheless resulted in a frustration of this courts obligation to deal with
    appeals that have been outstanding for many years. Mr. Santoro has not been
    appointed to act as defence counsel. He will make those arguments that he
    believes are available on the record to assist this court. His appointment does
    not mirror the responsibility of defence counsel in the sense referred to by
    Karakatsanis J. in para. 50. The appointment does not interfere with the
    appellants right to represent himself and to make such arguments, in addition
    to those made by
amicus
, that are available on the records for these
    appeals. Mr. Santoro may consult with the appellant but he is not taking
    instructions from him.

[3]

Justice Feldman gave lengthy and careful reasons for her decision to
    dismiss the appellants application to have Mr. Brodsky appointed as counsel.
    That decision was correct.

[4]

After many years, the time has come to deal with these appeals. The
    application to review the decision of Feldman J.A. is dismissed. The
    application to review the decision of Gillese J.A. depended upon the success of
    the first motion. Since that motion has failed the appeals will proceed on
    March 11, 2014.

M. Rosenberg J.A.

Gloria Epstein J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chemama, 2014
    ONCA 220

DATE: 20140326

DOCKET: C46851, C48632, C49626,

C52177, C52178 and M40675

Sharpe, Cronk and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Erich Chemama

Appellant/Applicant

Erich Chemama, in person

Greg Skerkowski, for the respondent

Heard: March 13 and 14, 2014

ENDORSEMENT

[1]

There are six matters before this court for determination: (1) an
    application to review the decision of MacPherson J.A. of this court, dated
    November 2, 2011, dismissing an application for an extension of time to file a
    notice of appeal (M40675); (2) an appeal from the order of T. Ducharme J.,
    dated April 10, 2008 (C48632); (3) appeals from the convictions entered by D.P.
    Cole J., dated May 26, 2010 (C52177), M. Green J., dated May 6, 2010 (C52178),
    and G. Sparrow J., dated October 15, 2008 (C49626); and (4) an appeal from the
    order of A. Campbell J., dated March 15, 2007 (C46851), dismissing an
    application for a stay of proceedings.  These reasons address all these
    matters.

Request for an adjournment

[2]

When this matter came before us on March 13, the appellant requested an
    adjournment. We granted a brief adjournment of all the proceedings now before
    us because we were concerned that the appellant may not have received the
    Crowns factum.

[3]

However, we refused to adjourn the proceedings pending the application
    the appellant stated that he intends to bring to the Supreme Court of Canada for
    leave to appeal from the decision of another panel of this court dismissing his
    appeal from the dismissal of his application to have counsel appointed pursuant
    to s. 684.

[4]

In view of the concern the appellant expressed with respect to Mr.
    Santoros involvement as
amicus
, and without commenting in any way on
    the merits of that concern, we discharged Mr. Santoro as
amicus
on
    these files. We removed his factum and his brief of authorities from our
    consideration.

[5]

Because the appellant complained that he did not have all the materials,
    we provided him with a full set of materials even though we were satisfied that,
    with the possible exception of the Crowns factum, there had been adequate
    proof of service of these materials.

[6]

We then adjourned the hearing to 2:00 pm on March 14.

Section 684 application

[7]

At the commencement of the oral hearing on March 14, Mr. Chemama brought
    yet another s. 684 application to have counsel appointed. We dismissed that
    application for the following reasons.

[8]

The issue of appointment of counsel pursuant to s. 684 on the appeals now
    before the court has been the subject of numerous applications and decisions of
    this court. We see no reason to revisit the issue at this point.

[9]

The appellant has had the benefit of more than one s. 684 order. He has
    consistently frustrated the efforts of this court to provide him with
    representation by discharging the counsel who have been appointed. In his
    application, he asserts that the discharge of Mr. Santoro as
amicus
requires new counsel to be appointed pursuant to s. 684. The sole basis for the
    dismissal of Mr. Santoro was that the appellant himself objected to his
    continued participation in these proceedings.

[10]

Finally,
    we were satisfied that it would not be unfair to the appellant to hear these
    appeals without appointing counsel given the assistance the appellant has
    received to date, the inmate appeal procedure and the relatively
    straight-forward nature of the issues raised in these proceedings.

M40675
     Review of Decision of Justice J. MacPherson, dated November 2, 2011

[11]

By
    order dated November 2, 2011, MacPherson J.A. of this court dismissed the
    applicants application for an extension of time to appeal his convictions for
    sexual assault and forcible confinement in February 2001 on the grounds of unexplained,
    exceptional delay  seven and one-half years  and lack of serious merit in the
    proposed appeal.

[12]

Assuming,
    without deciding, that we have jurisdiction to entertain this review
    application, we see no error in MacPherson J.A.s ruling nor any special
    circumstances that would justify intervention with his decision by this Panel.
    On the record before him  and before this Panel  the applicant failed to
    demonstrate a
bona fid
e intention to appeal within the requisite time
    frame.  As observed by MacPherson J.A., the applicants delay was extraordinary
    and unexplained.  Moreover, like MacPherson J.A., we are not satisfied that the
    applicants proposed grounds of appeal are of sufficient merit to warrant the
    granting of the requested time extension.

[13]

The
    review application, therefore, is dismissed.

C48632  Appeal from Order of Justice T. Ducharme, dated
    April 10, 2008

[14]

By order dated April 10, 2008, T. Ducharme J. of the Superior Court of
    Justice prohibited the appellant from filing multiple copies of any
    applications in the Superior Court without leave of a judge of that court.  The
    appellant applied to review that order before Nordheimer J. of the Superior
    Court on April 15, 2008.  Justice Nordheimer dismissed the review application,
    holding that the applicable review route was by way of an appeal to this court.

[15]

Justice
    Ducharmes challenged order was a procedural order based on the inherent
    authority of the Superior Court to control its own process.  We see no
    jurisdictional or other error in Ducharme J.s order.  There is no explanation proffered
    by the appellant for his perceived need to repeatedly file duplicative
    materials in the Superior Court.  It was, therefore, entirely within Ducharme
    J.s discretionary authority to prohibit the appellant from continuing to do
    so.  There is no basis for appellate interference with his order.

[16]

This
    appeal is dismissed.

C52177,
    C52178 and C49626  Appeals from Convictions entered by Justices D.P. Cole (May
    26, 2010), M. Green (May 6, 2010) and G. Sparrow (October 15, 2008)

[17]

On
    May 26, 2010, the appellant pleaded guilty before D.P. Cole J. of the Ontario Court
    of Justice to uttering death threats.  On May 6, 2010, he pleaded guilty before
    M. Green J. of the Ontario Court of Justice to two counts of criminal
    harassment, two counts of obstructing police, and six counts of failing to
    comply with the terms of his probation.  Finally, on October 15, 2008, the
    appellant pleaded guilty before G. Sparrow J. of the Ontario Court of Justice
    to one count of forcible entry, one count of mischief, one count of attempting
    to obstruct justice, one count of public mischief, and two counts of
    obstructing police.  He appeals against the convictions that followed on the
    basis, in each case, that his guilty pleas were invalid.

[18]

The
    onus rests on the appellant to show that his guilty pleas were invalid.  To
    constitute a valid guilty plea, the plea must be voluntary, unequivocal and
    informed.  The accused must be aware of the nature of the allegations made
    against him or her, the effect of the plea, and the consequences of the plea.
    See
R. v. T.(R.)
(1992), 17 C.R. (4th) 247.

[19]

We
    have reviewed the transcript of the plea hearings in each of these three
    appeals.  In each case, the presiding judge conducted the requisite plea
    inquiry  in detailed or summary fashion  to ensure that the appellants
    guilty pleas were voluntary, unequivocal and informed.  The record in each
    proceeding confirms that these prerequisites were met in each case.  Moreover,
    it is clear from the transcript of each proceeding that the appellant was aware
    of the charges against him, and the effect and consequences of his plea.  The
    appellant, therefore, has failed to establish that his guilty pleas were
    invalid.

[20]

The
    appellant maintains that he was medically unfit at the time he entered the
    relevant guilty pleas and that, as a result, he did not have the necessary
    operating mind to plead guilty.

[21]

We
    reject this contention.  The appellant provided no evidence to support his claim
    that he was medically incapacitated or unfit at the time of his guilty pleas.  It
    is apparent from the records that none of the presiding judges perceived a lack
    of capacity to enter a valid plea.  Further, and importantly, nothing in the
    relevant transcripts suggests that the pleas at issue were other than
    voluntary, informed and unequivocal.  To the contrary, the transcripts confirm
    that the appellant pleaded guilty in each proceeding because that is what he
    wanted to do.

[22]

These
    three appeals are dismissed.

C46851
     Appeal from Order of Justice A. Campbell, dated March 15, 2007

[23]

The
    final matter now before this court is an appeal from the order of A. Campbell
    J. of the Superior Court of Justice, dated March 15, 2007, dismissing the
    appellants application for a stay of proceedings against him in the Ontario
    Court of Justice on charges that he and his mother attempted to obstruct the
    course of justice and counseled a witness to commit perjury.

[24]

We
    see no basis for interference with Campbell J.s discretionary decision to deny
    a stay order.  Under the terms of the impugned order, the appellant was
    expressly entitled to renew his stay motion before the trial judge at his trial
    on the obstruct justice and counsel perjury charges.  He has launched an appeal
    from that trial judgment and his appeal is pending.

[25]

In
    these circumstances, there is no merit to this appeal and it is also dismissed.

Dispositions

[26]

A copy of these reasons shall be placed in the court file for each of
    M40675, C48632, C52177, C52178, C49626 and C46851.

Robert J. Sharpe J.A.

E.A.
    Cronk J.A.

Paul
    Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cook, 2014 ONCA 170

DATE: 20140304

DOCKET: M43077 (C52643)

Doherty, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheldon Cook

Appellant

Matthew Gourlay, for the appellant

John North and Ruth McGuirl, for the respondent

Frank Addario, appearing as
amicus curiae

Heard: November 28, 2013

On an application under s. 683(1) of the
Criminal
    Code
, seeking production of certain documentation in connection with an
    appeal pending from a conviction entered on June 23, 2010 by Justice S. Casey
    Hill of the Superior Court of Justice, sitting without a jury.

Benotto J.A.:

Introduction

[1]

This is an application for disclosure of the redacted portions of information
    produced to the appellant by the Crown.

[2]

The applicant was convicted of unlawful attempt to possess
    cocaine for the purpose of trafficking, breach of trust by an official,
    possession of stolen property and simple possession of marijuana. He appealed
    to this court.  While the appeal was pending, Crown counsel provided certain
    information to counsel for the appellant that had come into the possession of
    the police post-conviction.  That development led to a process that has unfortunately
    delayed the hearing of the appeal.  This motion is the latest step in that
    process.

[3]

The appellant brings this application for disclosure of the identity of
    a person who provided information to the Peel Regional Police after his
    conviction. The Crown alleges that the identity of the person is protected by
    privilege either as a confidential informant or by way of public interest
    privilege.

[4]

The applicant argues that the only issue for the court to decide is that
    of privilege.  If privilege does not exist, the information should be
    produced.  The respondent, on the other hand, argues that if privilege does not
    apply, the application remains subject to the two-part test for production
    articulated in
R. v. Trotta
(2004), 23 C.R. (6th) 261 (Ont. C.A.).

Facts

[5]

The applicant was a Peel Regional Police officer who unwittingly
    intercepted a RCMP-controlled delivery of imitation cocaine.  The fake cocaine
    was packaged in the shape of bricks, each weighing one kilogram.  The applicant
    had 15 bricks in the trunk of his police cruiser and took them home.  Tracking
    devices installed in the bricks led the RCMP to locate them inside a Sea-Doo in
    the applicants garage.  They also found 443 grams of marijuana and some stolen
    property.

[6]

The applicants defence was that he did not know the bricks were cocaine
    and that he took them home on the orders of his supervising officers Detective
    Rykhoff and Constable Williams.  In short, he took the position that he was a
    stooge for these bosses.  The information that is the subject of this
    application relates to allegations of misconduct against these supervising
    officers.

[7]

The applicants trial lasted for 33 days. Detective Rykhoff and
    Constable Williams testified, as did the applicant. The trial judges decision
    convicting the applicant is 141 pages long. As his findings with respect to the
    applicant, Det. Rykhoff and Const. Williams are of particular relevance to this
    application, it is necessary to summarize the trial judges findings in some
    detail.  He made the following findings of fact:

·

He rejected the applicants evidence that he did not believe the bricks
    contained an illicit narcotic.

·

He rejected the applicants evidence that he did not know how the
    box containing the 15 packages of fake cocaine got into the trunk of his police
    vehicle and that he was surprised to find them there.

·

He found that the applicant took the packages home on his own,
    believing that they contained cocaine or some other narcotic that would have
    significant value.

·

He found that the applicants account of how the 15 packages
    ended up in the closed hatch of the Sea-Doo was not credible.

·

He rejected the submission that Det. Rykhoff and Const. Williams
    colluded to tailor their evidence to frame the applicant. He added that there
    was next to no prior relationship between the two and  no credible basis for
    believing that [Const.] Williams engaged in any criminality or was co-opted
    into a cover-up of some type.

·

He made findings of credibility against Det. Rykhoff and instructed
    himself to be very suspect of [Det.] Rykhoffs evidence in its entirety.  The
    trial judges findings included the fact that:

·

He was an unimpressive witness in many respects;

·

He was caught in what can only be described as a number of
    lies;

·

There were instances of the witness seriously misleading the
    court; and

·

He was highly evasive.

·

He also made findings of credibility against Const. Williams,
    describing him as:

·

An uncomfortable and at times evasive witness;

·

A witness who:

·

Distinguished himself in misleading the court;

·

Would change answers on the same subject, apparently when he
    could not recall his prior response;

·

Misled the RCMP, misled the prosecutor and gave answers that
    were equally convoluted and not creditworthy; and

·

Would shrug off discrepancies.

·

He found that, notwithstanding the caution needed to approach
    the testimony of [Det.] Rykhoff and [Const.] Williams, he was satisfied beyond
    a reasonable doubt that the applicant took the 15 bricks believing they contained
    cocaine.

[8]

The applicant was sentenced on October 15, 2010. Ten months later, an
    anonymous email was received by the Peel Regional Police.  The email alleged
    misconduct by Det. Rykhoff and Const. Williams dating back decades.  The
    Internal Affairs Bureau investigated and determined the identity of the
    author.  The existence of the investigation was disclosed to the applicants
    counsel, who requested disclosure of the authors identity.

[9]

The Crown provided a redacted summary of information from the investigation
    but asserted confidential informer privilege over information disclosing the
    identity of the author.

[10]

Mr.
    Addario was appointed
amicus
to assist the court. Counsel agreed that Mr.
    Addario would interview the author, and he did so.  A redacted version of his
    contact with the author was provided to the applicant, and Mr. Addario is the
    only person to have spoken to the author.  It is clear from the record that the
    author has had extensive prior involvement with the police, has mental health
    issues and wants his or her identity protected.

The Positions of the Parties

[11]

The
    applicant submits that the author may have information that would support an
    application to adduce fresh evidence on appeal.  In particular, the author may
    have information about a prior relationship between Det. Rykhoff and Const. Williams.
    This information, it is argued, would have undermined the finding of the trial
    judge that there was next to no prior relationship between the two officers.  The
    applicant argues that the authors identity is not privileged and that the
    information should therefore be disclosed.  He submits that there is no need to
    address the
Trotta
test for production, as privilege was the only
    reason that Crown did not produce the information sought.

[12]

The
    respondent submits that the identity of the author is protected by privilege.
    As a result, the applicant must bring himself into the innocence at stake exception
    which, in light of the trial judges findings, is not engaged.  In any event,
    the respondent argues that the information is irrelevant, unreliable and could
    not have affected the verdict.  It argues that the court is required to apply
    the
Trotta
test for production and that the test is not satisfied here.

[13]

The
amicus
provided an overview of the law without proposing a conclusion.

Issues

[14]

There
    are two issues to be considered:

1.

Is the identity
    of the author of the email protected by privilege, either as a confidential
    informant or by way of public interest?

2.

Does the
Trotta
test apply to the request for production?

Analysis

Privilege

[15]

In
    my view, the identity of the author is not protected by either informer or
    public interest privilege.  There is therefore no need to determine whether the
    innocence at stake exception is engaged.

[16]

I
    turn first to the issue of informer privilege. It was submitted that the law is
    not clear on this point. The leading cases analyze informer privilege on the
    basis that some promise of confidentiality express or implied is necessary.
    However, in
R. v. Barros
, 2011 SCC 51, [2011] 3 S.C.R. 368, Binnie J.
    seems to have left open the question when he stated, at para. 32: [i]t might
    be argued that in a situation of serious potential danger, the informer
    privilege (or other public interest privilege) might apply even in the absence
    of the contract-type elements of offer and acceptance.

[17]

In
    my view, this matter was settled in
R. v. Named Person B
, 2013 SCC 9,
    [2013] 1 S.C.R. 405, at para. 18, when Abella J. confirmed that there must be
    some conduct on the part of the police from which a promise of confidentiality
    could be inferred, either expressly or implicitly:

The legal question is whether, objectively, an implicit promise
    of confidentiality can be inferred from the circumstances.  In other words,
    would the police conduct have led a person in the shoes of the potential
    informer to believe, on reasonable grounds, that his or her identity would be
    protected?

[18]

In
    this case there was no conduct on the part of the police, express or implied,
    that could have led the author to believe that his or her identity would be
    protected.  The police merely received an unsolicited anonymous email.  The
    test for informer privilege is not satisfied on the facts of this case. (This
    is unlike a crime stoppers communication which is founded on a promise of
    anonymity.)

[19]

I
    similarly conclude that public interest privilege does not apply.  Public
    interest privilege involves a claim by a government or an official that certain
    information should be kept secret.  Typical situations involve the need to keep
    police investigative techniques confidential or the protection and safety of
    individuals.  The Crown has the burden of establishing the need to keep the
    identity of the author secret.  The Crown attempted to satisfy this burden by
    alleging that the authors mental health issues, fear of police and fear of
    retribution engage public interest privilege.  However, there is no objective evidence
    underlying the authors fears.  On the record before us, the Crowns burden has
    not been met.

[20]

The
    identity of the author of the email is not covered by privilege, either as a
    confidential informant or by way of public interest.

The
Trotta
Test

[21]

When
    production is sought in support of an anticipated fresh evidence application,
Trotta
provides a two-step framework:

1.

The applicant
    must first demonstrate a connection between the request for production and the
    proposed fresh evidence application.  It must be shown that there is a
    reasonable possibility that production will assist the applicant in developing
    or obtaining information that will be admissible as fresh evidence.

2.

Next,
    the applicant must demonstrate that there is some reasonable possibility that
    the evidence to which the production request is linked may be received as fresh
    evidence on appeal.

[22]

The
    applicant submits that the only issue for the court to determine is that of
    privilege and that there is no need to apply the
Trotta
test at all.
    He submits that, but for the assertion of privilege, the Crown would have
    produced the information sought and it should therefore be produced.  However,
    he argues that if this court decides that the
Trotta
test applies, the
    test is met and production should be ordered.

[23]

In
    contrast, the Crown argues that this court is required to apply the procedure
    set out in
Trotta
.  It takes the position that apart from privilege,
    the identity of the author is irrelevant and that any investigation by the
    applicant in connection with this person would not support a fresh evidence
    application and would amount to a complicated fishing expedition.  It therefore
    submits that the applicant cannot meet the
Trotta
test and that
    production should not be ordered.

[24]

In
    my view, it is premature to apply the
Trotta
test.  However, in light
    of the submissions, I will set out the
Trotta
analysis so that the parties
    will have a clear understanding of its parameters as the matter moves forward.

[25]

Were
    the
Trotta
test to apply, the application at this stage would not succeed.
    The second branch of the test would require the court to find that the author
    of the email would likely provide information that would lead to a reasonable
    possibility of admission as fresh evidence on appeal. The principles governing
    the admissibility of fresh evidence on appeal are outlined in
R. v.

Palmer
,
    [1980] 1 S.C.R. 759.  The
Palmer
test requires the applicant to
    satisfy four criteria: (i) the evidence could not have been adduced at trial;
    (ii) the evidence must be relevant in that it bears on a decisive or
    potentially decisive issue; (iii) the evidence must be reasonably capable of belief;
    and (iv) the evidence must be such that, if believed, it may have affected the
    result at trial.

[26]

On
    the information before the court, the
Palmer
criteria would not be
    satisfied. First, the quality of the authors information renders its
    credibility highly suspect.  Second, the findings of the trial judge are such
    that even if believed, the authors information could not reasonably have been
    expected to affect the result.

[27]

The
    author claimed to have information about misconduct by Det. Rykhoff and Const.
    Williams.  However, this information is decades old and unsubstantiated.  An
    Internal Affairs investigation uncovered no documented contact between the
    author and these officers. The author makes no suggestion that there was any
    prior relationship between Det. Rykhoff and Const. Williams, and the police
    provided an affidavit indicating that Det. Rykhoff and Const. Williams did not
    work together or in departments close to one another during the time period to
    which the authors comments refer.  They did work at the same division from
    1990-1992, but on different shifts and in different departments. The same
    Internal Affairs investigation revealed a history of frivolous claims against the
    police by the author.

The author has mental health issues, a history
    of addiction to drugs and alcohol, a history of violence and an animus against
    the police.  These factors impact the authors credibility.

[28]

The
    second issue is whether the author has any evidence that could have affected
    the result at trial. The applicant submits that the proposed evidence could
    have affected the result because the trial judge rejected the applicants
    defence in part because he was not persuaded that Det. Rykhoff and Const.
    Williams had a significant prior relationship or that Const. Williams had
    engaged in any criminality. The authors information does not suggest that
    Const. Williams and Det. Rykhoff ever engaged in misconduct together.  Given
    the basis on which the trial judge drew his conclusions, his findings could not
    reasonably have been affected by the authors information.  The trial judge
    rejected the applicants explanation for having taken the fake cocaine home: he
    found the testimony implausible, inconsistent and full of transparent
    falsehoods.  The authors evidence would not have any bearing on this
    assessment.

[29]

More
    importantly, the trial judge made credibility findings
against
Det.
    Rykhoff and Const. Williams.  He stated that Det. Rykhoff was probably involved
    in taking some of the fake cocaine.  He was suspect of Det. Rykhoffs testimony
    in its entirety.  He made equally negative findings against Const. Williams.
    The trial judge concluded that the testimony of both officers was highly
    suspect. Even if the author has information against these two officers, it
    could only reinforce, not change, the findings of the trial judge.

[30]

This
    would be the
Trotta
analysis as applied to the information currently
    available to the appellant and placed before this court.  It would, however, be
    premature to subject that information to the
Trotta
analysis.
    Although framed as an application for production under s. 683, the real issue
    before the court was whether the author of the email was a confidential
    source.  The application was framed and argued as one that was preliminary to
    an application for production.  In my view, (and without intending any
    criticism of counsel who were in a rather unique situation,) the motion is more
    properly described as a motion for directions with respect to the scope of
    Crown disclosure.

[31]

The
    distinction between a motion for production and a motion for directions in
    respect of Crown disclosure may be difficult to draw.  It is probably
    impossible to draw a bright line between the two.  I think it is best to
    approach each case having regard to exactly what is sought by the appellant and
    its potential impact on the putative fresh evidence application.  Ultimately,
    the court is concerned both with allowing the appellant an opportunity to
    pursue realistic fresh evidence possibilities and with the hearing of appeals
    in a timely fashion.  The characterization of any particular motion brought in
    the context of a proposed fresh evidence application must, to some extent, be a
    reflection of how those twin purposes can best be served.   Here, the issue was
    a narrow one:  was the authors identity confidential.

[32]

The Crown, quite rightly, disclosed the information received from
    the author and the results of the police investigation in redacted form.  In
    doing so the Crown was in no way conceding the relevance of any of the material
    to the appeal or its obligation to produce any related material should the
    appellant ultimately bring a production motion. The Crown, again quite rightly,
    redacted the information that could identify the informant pending a judicial
    determination of the privilege issue.  Clearly, the Crown had determined that
    having regard to its broad disclosure obligations, the substance of the
    information it had received should be disclosed.  The Crown did not argue
Trotta
on the application except in response to a specific inquiry by the court.  The
    Crown objected to disclosure of the identity of the author solely on the basis
    of privilege.

[33]

The
    Crowns claim for privilege with respect to the redacted information cannot
    stand.  Since this was the basis for redacting the information produced, the
    redacted portions of the documents should now be provided, subject to the 5
    areas relating to privacy issues that were identified during an in camera
    portion of the application.

[34]

In
    light of the delays that have occurred thus far, Justice Doherty will assume a
    case management role to establish timelines and to determine any additional
    disclosure issues so that the ongoing delay is minimized.

Conclusion

[35]

The
    identity of the author of the emails is not covered by privilege. The
Trotta
analysis is premature. The Crown is to provide unredacted copies of the
    documents already produced, subject to the privacy issues discussed in camera.
    Justice Doherty will case manage the matter with a view to a timely date for a
    hearing on the merits of the appeal.

[36]

I
    would therefore allow the application.

M.L. Benotto J.A.

I agree D. Doherty
    J.A.

I agree S.E. Pepall
    J.A.

Released: March 4, 2014