COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Labour) v. Quinton
    Steel (Wellington) Limited, 2017 ONCA 1006

DATE: 20171220

DOCKET: C61897

Pardu, Huscroft and Fairburn JJ.A.

BETWEEN

Her
    Majesty the Queen in Right of Ontario

(Ministry of Labour)

Appellant

and

Quinton Steel (Wellington) Limited

Respondent

Wes Wilson, for the appellant

Jeremy Warning, for the respondent

Heard: September 19, 2017

On appeal from the decision of Justice Norman S. Douglas
    of the Ontario Court of Justice, dated November 5, 2015, upholding the
    acquittal entered on December 17, 2014 by His Worship Justice of the Peace Thomas
    A. Stinson.

Huscroft J.A.:

OVERVIEW

[1]

Martin Vryenhoek died when he fell from a
    temporary welding platform while working at the factory of his employer, the
    respondent Quinton Steel. Quinton Steel was charged under s. 25(2)(a) of the

Occupational Health and Safety Act
, R.S.O. 1990, c. O.1 (
OHSA
)
    with failing to inform, instruct and supervise a worker to protect the health
    or safety of the worker, and under s. 25(2)(h) with failing to take every
    precaution reasonable in the circumstances for the protection of a worker.

[2]

Both charges were dismissed following trial
    before a justice of the peace. The Crown did not appeal dismissal of the charge
    under s. 25(2)(a). The Crown appealed dismissal of the count under s. 25(2)(h),
    but the appeal was dismissed by a summary appeal conviction judge. Leave to
    appeal to this court was granted by Feldman J.A.

[3]

The Crown submits that the trial justice erred
    in law by failing to adjudicate the s. 25(2)(h) charge as laid. In particular,
    the Crown says that the trial justice did not make the findings of fact necessary
    to determine whether it was reasonable to require that guardrails be installed
    on the platform Vryenhoek used while welding. The respondent submits that the
    trial justice and appeal judge properly adjudicated the charge and that the
    Crown is attempting to use s. 25(2)(h) to establish a stricter standard
    governing the hazard of falling than the regulations require for working at
    height.

[4]

As I will explain, the decisions below are based
    on a misunderstanding of the interaction between the
OHSA
and its regulations.
    I would allow the Crowns appeal and order a new trial.

BACKGROUND

[5]

The facts in this matter are not in dispute.

[6]

Quinton Steel operates a custom steel
    fabrication business, which involves the assembly of large steel components for
    industrial applications. Welding is a considerable part of its work. Quinton
    Steels facility is an industrial establishment as defined in the
OHSA
and, accordingly, the
Industrial Establishments,
R.R.O. 1990, Reg. 851,
regulation under
    the
OHSA
(the
Industrial Establishments Regulation
) applies to
    it.

[7]

Martin Vryenhoek was a finishing metal welder at
    Quinton Steel. On the day of the accident, he was involved in fabricating a
    large piece of steel equipment called a slide. Platforms were required in
    order for him to reach the height required to do the welding. In accordance
    with longstanding practice at Quinton Steel  some 17 years  a temporary
    platform was set up for Vryenhoek to use. The platform consisted of two
    eight-foot planks laid side by side on steel A-frame end pieces. The width of
    the platform was 19.5 inches. The platform was set up at a height of 6 feet, 6
    inches above the ground. It did not have guardrails and no fall arrest
    equipment was utilized.

[8]

Vryenhoek was wearing a welding helmet that
    covered his face. It had speed glass, which was clear and allowed forward
    vision, but became opaque once welding began in order to provide eye
    protection. He had a full view of his surroundings only when the helmet was
    lifted from his face.

[9]

Vryenhoek was completing an eight-foot weld. He
    would move along the platform by walking sideways, slowly, and would know that
    he had reached the end of the platform only by feeling the tip of the A-frame
    with his foot. Some employees would weld temporary bumpers or guards to the piece
    they were welding in order to alert them to their position at the end of the
    platform and serve as a protective device. However, whether and how bumpers
    were used was a matter of an individual welders discretion.

[10]

Quinton Steel did not require the use of bumpers
    and did not require the use of fall protection for platforms under nine feet in
    height. Following the accident, it implemented a rule requiring guardrails on three
    sides of any work surface over two feet high. A Ministry of Labour inspector subsequently
    made an order under s. 13 of the
Industrial Establishments Regulation

requiring this practice.

THE DECISIONS BELOW

(1)

The Justice of the Peace

[11]

The charge under s. 25(2)(h) was particularized
    on consent at the commencement of the trial to allege that Quinton Steel
    failed to take the reasonable precaution of installing guardrails at the open
    sides of a raised wood platform. The trial justice made the following
    findings:

·

Vryenhoek was not required to wear fall
    protection equipment under s. 85 of the
Industrial Establishments Regulation
because he was working at a height of less than three metres.

·

Construction Projects
,
    O. Reg. 213/91, (the
Construction Projects Regulation
),
another regulation
    under the
OHSA,
requires fall protection for work at three metres or
    more in height, and guardrails if a worker is exposed to a potential fall of
    2.4 metres or more, but that regulation did not apply to the work at Quinton
    Steel.

·

Section 13(1)(b)(i) of the
Industrial
    Establishments Regulation
requires a guardrail to be in
    place at the open side of a raised floor, mezzanine, balcony, gallery,
    landing, platform, walkway, stile, ramp, or other surface, regardless of
    height. The respondent did not face charges under s. 13.

[12]

The trial justice found that the requirements of
    ss. 13 and 85 of the
Industrial Establishments Regulation
were
    contradictory and difficult to reconcile. He considered that if s. 13 requires
    guardrails to be installed on any raised surface, no matter how high, its
    scope would be breathtaking. The trial justice noted that this interpretation
    would be inconsistent with the
Construction Projects Regulation
, which
    requires guardrails only for work at a height of 2.4 metres or more. Why, he
    asked, would there be a need for fall protection equipment in s. 85 of the
Industrial
    Establishments Regulation
if guardrails were required regardless of
    height?

[13]

The trial justice reconciled what he considered to
    be the obvious contradictions on guardrail requirements by limiting the scope
    of the guardrail requirement in s. 13 of the
Industrial Establishments
    Regulation
,
so that it applies to fixtures  things attached to the
    premises of the building or factory itself  but not to chattels. Applying this
    interpretation, he found that the guardrail requirement in s. 13 did not apply
    to the unattached A-frame platform from which Vryenhoek fell.

[14]

The trial justice concluded that s. 85 of the
Industrial
    Establishments Regulation
is a complete and discrete code with respect to
    the requirements for protecting workers from falls in a case such as this
    that is, a fall from a chattel rather than a workplace fixture governed by s.
    13. It was not appropriate for the Crown to use the general duty clause in s.
    25(2)(h) of the
OHSA
to extend the respondents duty beyond what was
    specifically outlined in s. 85 of the regulation. Thus, guardrails on the
    A-frame Vryenhoek used were not required as a matter of law. The trial justice
    noted that no one was aware of any prior incidents of falls from A-frame
    platforms and that the system had not been criticized by the Ministry of Labour
    in prior inspections.

[15]

Finally, the trial justice reviewed photographic
    evidence and found that there was a form of guardrail when the accident
    occurred, and that it was not unreasonable to conclude that Vryenhoek may have
    placed it there. Therefore, he concluded, the Crown had failed to prove the
    particulars of the charge under s. 25(2)(h) in any event.

(2)

The Summary Conviction Appeal Judge

[16]

The Crown appealed dismissal of the charge under
    s. 25(2)(h) on two bases. First, the Crown argued that the trial justice failed
    to address whether it was reasonable for Quinton Steel to have taken the
    precaution of using guardrails in the circumstances. Second, the Crown argued
    that the trial justice misapprehended the evidence by identifying a guardrail
    in one of the photographs.

[17]

The appeal judge concluded that the trial
    justice was alive to the fact that Vryenhoek was a welder operating with
    limited visibility, and that the trial justice had adjudicated the charge as
    laid. He concluded, further, that although the trial justice misapprehended the
    evidence concerning the existence of a guardrail, the misapprehension was not
    the basis of Quinton Steels acquittal. The appeal judge dismissed the appeal,
    finding there was no error of law and the verdict was not unreasonable.

DISCUSSION

[18]

I begin by revisiting the courts approach to
    the interpretation of public welfare legislation. I then consider the nature
    and purpose of the
OHSA
and the interaction of the Act and the regulations,
    before addressing the issues raised on appeal.

(1)

Interpreting public welfare legislation

[19]

The starting point is that the
OHSA
is
    public welfare legislation  legislation designed specifically to protect workers
     and this court has consistently instructed that it must be interpreted
    generously, not narrowly or technically, in order to allow it to achieve this purpose:
    see
R. v. Timminco Ltd
. (2001) 54 O.R. (3d) 21 (C.A.), at p. 27;
R.
    v. The Corporation of the City of Hamilton
(2002) 58 O.R. (3d) 37 (C.A.),
    at para. 16;
R. v. Dofasco Inc.
, 2007 ONCA 769, 87 O.R. (3d) 161, at
    para. 13. As Sharpe J.A. put it in
City of Hamilton
, at para. 16:

The
OHSA
is a remedial public welfare statute intended to guarantee a
    minimum level of protection for the health and safety of workers. When
    interpreting legislation of this kind, it is important to bear in mind certain
    guiding principles. Protective legislation designed to promote public health
    and safety is to be generously interpreted in a manner that is in keeping with
    the purposes and objectives of the legislative scheme. Narrow or technical
    interpretations that would interfere with or frustrate the attainment of the
    legislatures public welfare objectives are to be avoided.

[20]

The respondent acknowledges the need for a
    generous interpretation of the
OHSA
but submits that there are limits;
    the
OHSA
and the regulations cannot be interpreted to apply to every
    possible workplace scenario. The respondent cites this courts decisions in
Blue
    Mountain Resorts Ltd. v. denBok
, 2013 ONCA 75, 359 D.L.R. (4th) 276, at
    para. 26 and
Ontario (Ministry of Labour) v. Sheehans Truck Centre Inc.
,
    2011 ONCA 645, 107 O.R. (3d) 763, at paras. 29-30 in support of this
    proposition.

[21]

I agree that there are limits to the permissible
    interpretation of public welfare statutes, and to the
OHSA
in
    particular; the intention of the legislature remains the touchstone. But
    neither
Blue Mountain Resorts
nor
Sheehans Truck
provides
    support for a narrow interpretation of s. 25(2)(h). The nature and purpose of
    that section requires a broad interpretation, as I will explain.

(2)

The
OHSA

[22]

The
OHSA
establishes duties that are
    particularized by workplace-specific regulations. Separate regulations govern
    construction, mining, and industrial workplaces. As noted above, the respondents
    factory is an industrial establishment as defined in the
OHSA
and the
Industrial
    Establishments Regulation
applies to it.

[23]

Section 25(1) of the
OHSA
refers
    specifically to the regulations and imposes a duty on employers to ensure that
    the measures and procedures prescribed by the regulations are carried out. But
    s. 25(1) does not exhaust employers duties under the Act. Section 25(2)(h) provides
    as follows:

Without limiting the
    strict duty imposed by subsection (1), an employer shall,

...

(h) take every
    precaution reasonable in the circumstances for the protection of a worker;

[24]

Section 25(2)(h) establishes a duty that this
    court has described as even more sweeping than s. 25(1):
R. v. Wyssen
(1992), 10 O.R. (3d) 193 (C.A.), at p. 198. It is more sweeping because it does
    not depend on the existence of a specific regulation prescribing or proscribing
    particular conduct. Section 25(2)(h) is necessary because, as the Crown submits,
    the regulations cannot reasonably anticipate and provide for all of the needs
    and circumstances of the many and varied workplaces across the province.

[25]

The
OHSA
is for the most part a strict
    liability regime. This means that, for most offences  including s. 25(2)(h)
    the Crown is not required to prove
mens rea
in order to prove an
    offence. The Crown is required to prove only the
actus reus
of an
    offence  to prove, in other words, that the offence occurred  beyond a
    reasonable doubt. If the Crown succeeds in doing so, an employer can avoid
    liability only by establishing, on a balance of probabilities, that it acted
    with due diligence in seeking to avoid the event that occurred:
R. v. Sault
    Ste. Marie
,
[1978] 2 S.C.R. 1299, at pp. 1325-1326.

(3)

Did the trial justice adjudicate the charge as
    laid?

[26]

The respondent was charged with violating s.
    25(2)(h) of the
OHSA
. As noted above, the charge was particularized,
    as this court required in
R. v. Brampton Brick
(2004), 189 OAC 44
    (C.A.), at p. 52, on consent at the commencement of the trial. The Crown
    alleged that the respondent failed to take the reasonable precaution of
    installing guardrails at the open sides of a raised wood platform.

[27]

The Crown was not required to establish a
    failure to comply with any of the regulations in order to prove that s.
    25(2)(h) had been violated. It is common ground for the purposes of this appeal
    that s. 13 of the
Industrial Establishments Regulation
, which requires
    the use of guardrails in particular circumstances, does not apply in this case
    because it applies only to permanent platforms, not temporary ones. Nor does s.
    85 of the same regulation  which prescribes the use of fall protection
    equipment  apply, because Vryenhoek was not working at a height of three
    metres or more.

[28]

Instead, the Crown was required to prove that
    the installation of guardrails was a reasonable precaution in the circumstances
    of this workplace in order to protect a worker and that the respondent failed
    to install the guardrails. This was the
actus reus
of the offence. The
    respondent argued that the Crown did not succeed in proving the
actus reus
and did not call any evidence or otherwise attempt to establish a due diligence
    defence.

[29]

There is no question that the respondent did not
    install guardrails on the temporary platform from which Vryenhoek fell. The
    trial justices finding to the contrary has no support in the record and was
    not defended by the respondent. The only question that had to be determined by
    the trial justice was the first one: was the installation of guardrails a
    reasonable precaution necessary in the circumstances of this workplace in order
    to protect Vryenhoek?

[30]

The Crowns position, in essence, is that this
    question was never answered by the trial justice. I agree.

[31]

As this court pointed out in
Brampton Brick
,
at para. 18, the surrounding circumstances
    are an element of the offence under s. 25(2)(h) that must be considered before
    it can be concluded that a precaution not taken was reasonable. In order to
    apply s. 25(2)(h), the trial justice had to consider all of the relevant
    circumstances including the nature of the workplace, the work being performed
    by Vryenhoek, the equipment he was using, and the manner in which he was
    performing the work. Vryenhoek was welding while moving from side-to-side across
    a temporary platform; he was wearing a welding helmet that afforded him only
    limited sight and could not see the end of the platform from which he fell to
    his death. The question for the trial justice was whether the installation of
    guardrails on the A-frame platform was a reasonable precaution
in these circumstances
.

[32]

The trial justice did not answer this question.
    Instead, he concluded that s. 25(2)(h) of the
OHSA
was not violated
    because the respondent had not violated any provision of the regulations, and
    s. 25(2)(h) could not be used to extend an employers duties beyond those set
    out in the regulations.

[33]

The appeal judge found that the trial justice adjudicated
    the charge as laid, describing him as alive to the fact that this was a welder
    with limited visibility, working on a platform approximately six and a half
    feet from the floor. I do not read the trial justices decision in this way.
    The focus of the trial justices reasons was on the relationship between the
    statutory requirement and the regulations. He concluded that the respondent
    could not be convicted of violating s. 25(2)(h) because the regulations had not
    been violated. That conclusion is erroneous, as I will explain.

(4)

The relationship between the
OHSA
and the
    regulations

[34]

The trial justice relied on the regulations under
    the
OHSA
to limit the scope of the statutory duty set out in s.
    25(2)(h). I set out the salient portions of his reasons, at paras. 75-76:

I conclude, then, as a matter of fact and law,
    that the provisions of section 13 of the
Industrial Establishment
    Regulation
do not apply in this case. I further conclude,
    as a matter of law, that the provisions of section 85 of the
Industrial
    Establishment Regulation
form a complete and discrete
    code with respect to the requirements for protecting workers from falls in a
    case such as this, where the worker is standing atop an A-frame and plank
    system that is a chattel rather than a fixture within the industrial
    establishment.

I further
    conclude, therefore, that it is not appropriate for the Crown to use the
    general duty clause of section 25 of the
OHSA
to extend requirements beyond those specifically outlined in section 85 of the
Industrial
    Establishments Regulation
, which does govern the
    situation.

[35]

The error here is plain. Section 25(1) of the
OHSA
requires employers to ensure that the measures and procedures prescribed by the
    regulations are carried out. But employers are required to comply with s. 25(2)(h)
    as well as s. 25(1), and the application of s. 25(2)(h) does not depend on compliance
    with any of the regulations.

[36]

The respondents submissions in this court reflect
    a similar confusion about the relationship between the
OHSA
and the
    regulations. The respondent submits:

The normative standards, setting the reasonable precautions to
    address the hazard of falling, have been set out by the Legislature in the
    applicable regulations referred to above. The general duty clause cannot be
    used to modify these standards. To do so introduces uncertainty and would
    improperly permit regulated parties to be held to stricter standards than the
    Legislature has prescribed.

[37]

This submission proceeds from a fundamental
    error. The Legislature did not prescribe the
Industrial Establishment
    Regulation
. The regulation is subordinate legislation that was promulgated
    by the executive branch of government pursuant to authority set out in s. 70 of
    the
OHSA
.

[38]

Regulation-making authority under s. 70 does not
    extend to the making of regulations that purport to vary or limit the operation
    of employers duties under s. 25(2)(h) of the
OHSA
. It is an inversion
    of the normal relationship between the Act and its regulations  primary and
    secondary legislation  to give legislative duties a narrow interpretation so
    as not to interfere with regulations made under the Act.

[39]

This error runs throughout the respondents
    argument. The respondent describes the Crown as seeking to use s. 25(2)(h) to
    modify objective standards established in the regulations by the legislature
    and submits, in essence, that the regulations have occupied the field
    exhaustively determined the circumstances in which guardrails and fall
    protection are required. In other words, once regulations were made governing
    falls in the workplace, the general duty set out in s. 25(2)(h) had no role to
    play. As the respondent puts it: [t]he Legislature has, therefore, defined the
    acceptable level of risk for workplace falls. If the government position is now
    that working at a height of 6.5 feet represents an unacceptable risk, that
    should be addressed through the legislative process rather than through the
    hindsight application of the general duty clause.

[40]

This submission must be rejected.

[41]

First, regulations cannot occupy the field by
    displacing statutory authority. Section 25(2)(h) specifically requires that
    employers take every precaution reasonable in the circumstances for the
    protection of a worker. As I have said, that duty is not varied or limited by
    the existence of specific regulations.

[42]

Second, the effect of the trial justices
    interpretation is to limit the protection afforded workers in industrial
    establishments working on temporary structures: they are entitled to receive
    fall-protection equipment only, and then only if they are working at a height
    of more than three metres. This interpretation seriously undermines the purpose
    of the
OHSA
 the protection of the health and safety of workers  and
    is antithetical to the generous interpretation that the law requires.

[43]

The need for a generous interpretive approach to
    s. 25(2)(h) does not lead to intolerable uncertainty for employers, as the respondent
    submits. To be sure, certainty is an important aspect of the rule of law;
    parties should be able to ascertain what the law requires in order that they can
    arrange their affairs in compliance with its demands: see Lon Fuller,
The
    Morality of Law
(New Haven: Yale University Press, revd edn. 1969) at pp.
    63-64. This is particularly so in the context of the criminal law, and is
    reflected in the constitutional prohibition of retrospective criminal liability
    under s. 11(g) of the
Charter
: see
R. v. K.R.J.
,

2016 SCC 31, [2016] 1 S.C.R.
    906, at paras. 23-26.

[44]

But prescriptive certainty is not required in
    the context of regulatory offences such as s. 25(2)(h). That section establishes
    a standard, rather than a rule, the requirements of which are tailored to suit particular
    circumstances. Employers must take every precaution
reasonable
in the
    circumstances in order to protect workers. Reasonableness is a well-known legal
    concept that is interpreted and applied in a wide variety of legal contexts.
    Its use in s 25(2)(h) does not give rise to intolerable uncertainty.

[45]

It may not be possible for all risk to be
    eliminated from a workplace, as this court noted in
Sheehan Truck
, at
    para. 30, but it does not follow that employers need do only as little as is
    specifically prescribed in the regulations. There may be cases in which more is
    required  in which additional safety precautions tailored to fit the
    distinctive nature of a workplace are reasonably required by s. 25(2)(h) in
    order to protect workers. The trial justices erroneous conception of the
    relationship between s. 25(2)(h) and the regulations resulted in his failure to
    adjudicate the s. 25(2)(h) charge as laid.

CONCLUSION

[46]

I would allow the appeal and order a new trial
    before a different Justice of the Peace.

Released: December 20, 2017 (G.P.)

Grant Huscroft J.A.

I agree. G. Pardu J.A.

I agree. Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Perri v. Perri, 2017 ONCA 1001

DATE: 20171219

DOCKET: C62765

Pepall, Lauwers and Pardu JJ.A.

BETWEEN

Margaret Perri

Applicant (Respondent)

and

Enzo Perri

Respondent (Appellant)

Andrew Kania, for the appellant

Karen Cunningham and Athena McBean, for the respondent

Heard: December 11, 2017

On appeal from the judgment of Justice Kofi N. Barnes of
    the Superior Court of Justice, dated September 16, 2016, with reasons for
    judgment reported at 2016 ONSC 5833.

REASONS FOR DECISION

[1]

The appellant husband argues that the application
    judge erred in awarding lump sum support for the respondent wife on the
    following grounds:

1)

He awarded compensatory support although the
    wifes career prospects were in no way diminished by the marriage; there was no
    economic disadvantage which flowed from the marriage.

2)

He failed to consider the impact of the child of
    the marriage residing with the husband on the amount of Spousal Support Guideline
    support which he used as a basis for the calculation of lump sum support.

[2]

This was a 22 year marriage. The parties had two
    children. The older daughter was no longer a child of the marriage within the
    meaning of the
Divorce Act
,
    R.S.C. 1985, c. 3 (2nd Supp.)
at the time of
    trial, but was living with her mother. Just two or three weeks before trial,
    the son moved from his mothers home to reside with his father. He was 19 years
    old at the time of trial. He was halfway through completing a three year
    community college program. The wife was earning about $63,300 a year as a legal
    secretary. The husband's annual income was about $100,000. The wife was 49
    years old at the time of trial; the husband is the same age as the wife.

Application judges decision

[3]

The application judge found that the wife was
    entitled to compensatory support. He found that she had suffered economic
    hardship from the breakdown of the marriage at paras. 62, 77, and 82 of his
    reasons:

I conclude Ms. Perri suffered economic
    hardship as a result of the breakdown of the marriage. She was employed at the
    time of the marriage breakdown and remains employed. However, her decision to
    put the needs of the children first impacted the selection of the type of
    organization where she could work, effectively stifling her upward mobility and
    corresponding ability to increase her earnings.

[]

I have explained that Ms. Perri has suffered
    economic hardship arising from the breakdown of the marriage. She has lost the
    intra spousal financial and other support she enjoyed during the marriage. Her
    standard of living has deteriorated as a result of the marriage breakdown.

[]

The fact that Ms. Perri sacrificed her ability
    to earn a higher income was mitigated by the financial support and contributions
    of Mr. Perri. The marriage breakdown has left Ms. Perri without access to that
    support. Hence, her reduced earning potential has become a liability. She has
    suffered economic hardship from the breakdown of the marriage. In these
    circumstances, Ms. Perris entitlement to ongoing spousal support arises on a
    compensatory basis.

[4]

At the hearing below, both parties said they
    preferred a lump sum spousal support order rather than periodic payments. There
    was a high degree of animosity between the parties. The application judge accepted
    that a clean break would be appropriate. He calculated the support payment
    according to the mid-point of the Spousal Support Advisory Guidelines (Support
    Guidelines) amount, $1,194.00 per month, and selected a 10 year duration for
    the support payment, to arrive at a lump sum spousal support order of $143,280
    which he indicated was to be adjusted for tax consequences. Periodic support payments
    would be taxable in the hands of the wife, and tax-deductible for the husband,
    while lump sum support payments did not have these tax consequences.

[5]

The application judge declined to make any order
    that the son continued to be a child of the marriage. The son had only moved to
    his fathers home within a few weeks of the trial. The application judge
    indicated that there were many unanswered questions about the son at para. 55
    of his reasons:

such as how Matthew is paying for his
    education, whether his parents are contributing, if he is going to be working
    during school, whether he is paying for his education from savings or student
    loan; and if he still needs financial support from his parents, et cetera.

Standard of review

[6]

The standard of review of spousal support
    decisions is deferential. As this court observed in
Halliwell v.
    Halliwell
, 2017 ONCA 349, at para. 88, [a]ppellate
    courts should not interfere with support orders unless the reasons disclose an
    error in principle, a significant misapprehension of the evidence, or the award
    is clearly wrong.

Analysis

[7]

We would dismiss this appeal, except with
    respect to the narrow issues discussed below which are not controversial.

[8]

The husband argues that the wife could have, and
    could still, opt to work in downtown Toronto as a legal secretary and thereby
    earn more income. On this basis, the husband submits that no compensatory
    support should have been ordered. This, however, is not conclusive of the
    support issue. The application judge specifically found that after separation,
    the husband enjoyed much the same standard of living that he had before
    separation, but that the same was not true for the wife. The
Divorce
    Act
, ss. 15.2(6)(a) and (c),
mandate consideration of not only economic disadvantage flowing from
    the marriage, but also economic disadvantage flowing from the breakdown of the
    marriage. The application judges order was not simply an award based on the
    disparity of the parties incomes. It was also a recognition of a 22 year
    marriage during which the parties had two children.

[9]

The husband also argues that the application judge
    ought to have factored into the Support Guideline figure, which formed the
    basis of his lump sum calculation, recognition that the wife was obliged to contribute
    support for their son. The husband submits that this would have resulted in a
    base monthly Support Guideline figure of $917.00 per month for the entire 10
    year spousal support period, subject to a variation application by the wife
    when the son ceased to be a child of the marriage. As it turns out, the son
    finished school some 16 months after the trial.  He now lives with his
    grandmother.

[10]

Given that the son had moved into his fathers home
    within a few weeks of the trial, and the absence of full information about the
    sons circumstances, the application judge did not err by refusing to treat the
    son as a child of the marriage for the purposes of calculating spousal support.
    More information was required to make a finding that the son was a child of the
    marriage. See, for example, the factors

dealing with the determination of whether a child continues to be a
    child of the marriage within the meaning of the
Divorce Act
listed in
Pepin v. Jung
(2003), 39
    R.F.L. (5th) 383 (Ont. S.C.), [2003] O.J. No. 1779, at para. 15. The proposed
    fresh evidence is of no utility because it still does not deal with the gaps in
    the evidence about the son identified by the application judge.

[11]

The application judge did not foreclose
    consideration of this issue. He indicated that the issue of whether the son was
    still a child of the marriage could be revived with a proper evidentiary
    record. Neither party attempted to do so.

[12]

The wife agrees that an adjustment should be
    made to reflect the non-taxable nature of the lump sum spousal support ordered.
    The application judge ought to have calculated that adjustment or invited
    written submissions on that issue.

[13]

The parties are not in substantial disagreement
    as to the marginal tax rates applicable to the husband and the wife as at the
    date of trial: 41.8% for the husband and 30.2% for the wife. We would apply an
    amount equal to the halfway point between these two figures, or 36%.

[14]

Paragraphs 3 and 4 of the divorce order dated September
    16, 2016, specifying lump sum support amounts subject to adjustment for tax
    consequences shall be set aside and replaced as follows:

3.

The Respondent, Enzo Perri, shall pay the
    Applicant, Margaret Perri, retroactive lump sum spousal support in the amount
    of $14,840.32, payable within 30 days of September 16, 2016.

4.

The Respondent, Enzo Perri, shall pay the
    Applicant, Margaret Perri, lump sum spousal support in the amount of $91,699.20,
    payable within 30 days of September 16, 2016.

[15]

The application judge also ordered the husband to
    designate the wife as the sole irrevocable beneficiary on the life insurance
    policy available through his employer at para. 5 of the divorce order. This paragraph
    shall be varied as follows:

5.

The Respondent, Enzo Perri, shall designate the
    Applicant, Margaret Perri, as sole irrevocable beneficiary on his life
    insurance policy available through his employment
until the lump sum spousal
    support is paid and as security for payment of the lump sum spousal support.

[Emphasis added indicating variation.]

[16]

Paragraph 13 of the divorce order requires the
    husband to provide ongoing financial disclosure so long as spousal support is
    paid, each year, within 30 days of the anniversary of the divorce order, in
    accordance with s. 24.1 of the Child Support Guidelines. We are told that this
    paragraph was inserted at the insistence of counter staff in Brampton, ON. This
    paragraph is not appropriate where only lump sum spousal support is ordered.
    There is no need for ongoing disclosure. This paragraph is deleted from the
    order.

[17]

The divorce order should also provide that any
    amounts in default should bear post-judgment interest in accordance with s. 129
    of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43, and is varied to add this proviso.

[18]

In oral argument, the husband did not pursue the
    portion of the appeal advanced in his factum against the costs awarded against
    him by the application judge.  We see no basis upon which to grant leave to appeal
    costs and leave to appeal costs is denied.

[19]

The appeal is allowed to the extent described
    above. The wife may make brief written submissions as to costs, due within 30
    days after the release of this decision. The husbands submissions are due 30
    days thereafter.

S.E.
    Pepall J.A.

P.D. Lauwers J.A.

G. Pardu
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  Pitney v. Toronto (Police Services Board), 2017
    ONCA 1005

DATE: 20171219

DOCKET: C62063 and C62064

Doherty, Benotto and Miller JJ.A.

BETWEEN

Linda Pitney and Carole Tovell

Plaintiffs (Appellants)

and

Toronto Police Services Board

Defendants (Respondents)

Linda Pitney, appearing in-person

Carole Tovell, appearing in-person

Rebecca Bush and Kathryn Shani, for the respondents

Heard:  December 18, 2017

On appeal from the judgment of Justice E.M. Stewart of
    the Superior Court of Justice, dated March 24, 2016.

APPEAL BOOK ENDORSEMENT

[1]

The appellants claim that the proceedings in criminal court were a
    nullity because the information was not properly vetted by the Justice of the
    Peace.

[2]

In our view, that issue, and we make no comment on the merits of the
    allegation, had nothing to do with the motion for summary judgment on the
    appellants claims.

[3]

The appellants did not file any evidence on the summary judgment motion
    to support the claim that the police did not have reasonable and probable
    grounds.  They did not cross-examine on the extensive material filed by the
    respondents in support of their claim that reasonable and probable grounds
    existed.  Not surprisingly, the motion judge found that the respondents had met
    their onus (see reasons of the motion judge, at paras. 28-36).

[4]

We see no error in her analysis.  The appeal is dismissed.

[5]

Costs to the respondents in the amount of $2,500, as against each
    appellant.  The $2,500 represents the total costs award to all of the
    respondents against each appellant.


COURT OF APPEAL FOR ONTARIO

CITATION: Quest Management Services Inc. v. Quest Management
    Systems, 2017 ONCA 999

DATE: 20171219

DOCKET: C63643

Strathy C.J.O., Juriansz and Huscroft JJ.A.

BETWEEN

Quest Management Services Inc.
and Quest Management Systems Inc.

Plaintiffs

and

Quest Management Systems, a
    division of 1281068 Ontario Inc.
and Eileen Shewen

Defendants (
Respondents
)

and

Peter Merrill

Third Party (
Appellant
)

David A. Schatzker, for the appellant

Bayo Odutola, for respondents

Heard: December 6, 2017

On appeal from the order of Justice Kofi N. Barnes of the
    Superior Court of Justice, dated March 24, 2017, with reasons reported at 2017
    ONSC 2537.

REASONS FOR DECISION

[1]

The motion judge
    awarded costs against Peter Merrill (Merrill), a non-party, the sole
    shareholder, president and director of Quest Management Systems Inc. (Quest),
    a plaintiff in this action. He did so because he found that the plaintiffs
    action was an abuse of process and that Quest had provided a fraudulent
    undertaking to the court on its application for an interlocutory injunction.

[2]

In relation to the
    abuse of process ground, he relied on his conclusion, in an earlier motion,
    that the application for an injunction was a fishing expedition, in order to
    cross-examine the defendants to see whether there were grounds for injunctive
    relief.

[3]

He also relied on an
    order of another judge, on a motion under Rule 2.1.01, dismissing the action as
    frivolous, vexatious and an abuse of process. That motion was not opposed by
    the plaintiffs, no evidence was adduced, and no order was sought for costs
    against Merrill at the time.

[4]

In relation to the
    fraudulent ground, the motion judge relied on an affidavit sworn by Merrill
    on behalf of Quest, on the application for an interlocutory injunction, giving
    the usual undertaking to damages on behalf of Quest. On the motion giving rise
    to this appeal, the respondents had filed evidence, consisting of Quests tax
    returns for the years ending December 31, 2013 and 2014. They argued that the
    tax returns demonstrated that Quest did not have sufficient assets to honour
    the undertaking. There was no other pertinent material filed on the motion.

[5]

The motion judge found
    that the evidence established that Merrill was the sole shareholder and
    president of Quest, that Quest had suffered losses of approximately $36,000 in
    2013 and $25,000 in 2012, had negative shareholder equity for the three years
    2012-2014 and had assets of less than $800.

[6]

He found that the
    undertaking given by Merrill on behalf of Quest was a fraudulent
    misrepresentation as to Quests means to satisfy a damage award and justified
    an award of costs against Merrill personally in order to prevent the
    administration of justice from being brought into disrepute.

[7]

The motion was argued on October 20, 2016, prior
    to the release of this courts decision in
1318847 Ontario Limited
    v. Laval Tool & Mould Ltd.
, 2017 ONCA 184,
134 O.R. (3d) 641,
on March 3, 2017. It does not appear that
Laval Tool

came to the attention of the motion judge before he released his
    reasons in this matter.

[8]

There was no evidence
    before the motion judge to establish that
Merrill
engaged in an abuse of process in
    commencing the action. There was no basis to award costs against Merrill simply
    because he was the president and sole shareholder of Quest.

[9]

Nor did the evidence in
    relation to the undertaking rise to the very high level of establishing that
    the undertaking itself was fraudulent. The motion for an injunction was
    dismissed. The undertaking was never called upon. It was never demonstrated
    that the plaintiffs could not honour the undertaking if called upon to do so.

[10]

This courts
    observations at para. 77 of
Laval Tool

are apposite. Costs may be ordered against a non-party principal
    of a corporation in exceptional circumstances (including fraud or gross
    misconduct in the instigation or conduct of litigation) if the principal commits
    an abuse of process. But costs should not be awarded simply because the principal
    directed the operations of the corporation. There was no evidence in this case
    of the requisite exceptional circumstances, and the motion judge erred in
    principle in awarding costs against the appellant.

[11]

For these reasons, the
    appeal is allowed and the order of the motion judge is set aside, as is the
    order with respect to costs of the motion. The costs of this appeal are fixed
    at $5,000, inclusive of disbursements and all applicable taxes, payable by the
    respondents.

G.R.
    Strathy C.J.O.

R.G.
    Juriansz J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Adam, 2017 ONCA 988

DATE: 20171215

DOCKET: C59153

Hoy A.C.J.O., Doherty and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ahmed Adam

Appellant

Michael Dineen, for the appellant

Rachel Young, for the respondent

Heard and released orally:  December 8, 2017

On appeal from the conviction entered by Justice R. Smith
    of the Superior Court of Justice, dated October 30, 2013 and the sentence
    imposed on May 23, 2014.

REASONS FOR DECISION

[1]

This fraud case, involving multiple
    accused, was entirely completed in the trial court almost three years before
    the Supreme Court of Canadas decision in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631
.  The appellant appeals conviction.  He argues that the
    application judge erred in dismissing his s. 11(b) pre-trial
Charter
application.  In particular, he argues that the
    application judge erred in his
Morin
analysis.  He concedes that if the application judge did not err in his
Morin
analysis, the delay is reasonable under
Jordan
.

[2]

We agree with the application judge that, balancing the factors
    required to be taken into account in a
Morin
analysis, the delay is
    reasonable.

[3]

The delay in this case arose from the
    Crowns decision to join the appellants co-accused.  Even on the appellants
    argument, the delay resulting from joining the co-accused exceeded the
Morin
guidelines by only one month.

[4]

This is a moderately complex fraud case.
    As the application judge noted, it involved many documents and apparently
    intercepted communications.  Even if the co-accused had not been joined, given
    the nature of the fraud, the evidence against the co-accused was necessary and
    the trial would have been lengthy.

[5]

The appellant was on bail on liberal
    terms.  There was no prejudice to the appellants liberty interest.  Nor was
    there prejudice to the appellants ability to make full answer and defence in
    this largely document-driven matter.  We give little weight to prejudice to the
    security interests of the appellants person, in the sense of being free from
    the stress and cloud of suspicion that accompanies a criminal charge.  As
    indicated, the delay in excess of the
Morin
guidelines is, at best, one month and there was no
    evidence from the appellant as to the effect of the delay on him.

[6]

Finally, this was a serious fraud.
    There was a societal interest in bringing this case to trial.

[7]

Accordingly, the appeal is dismissed.

Alexandra Hoy A.C.J.O.

Doherty J.A.

K. Feldman J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bentley, 2017 ONCA 982

DATE: 20171215

DOCKET: C63398

Feldman, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

David Bentley

Respondent

Kevin Wilson, for the appellant

Janelle Belton, for the respondent

Heard: November 23, 2017

On appeal from the sentence imposed on January 27, 2017
    by Justice E. Allen of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The Crown appeals a 90-day intermittent sentence imposed on the
    respondent following his guilty plea to the charges of production of marihuana,
    contrary to s. 7(1) of the
Controlled Drug and Substances Act
, S.C.
    1996, c. 19 (the
CDSA
), and fraudulently consuming electricity,
    contrary to s. 326(1)(a) of the
Criminal Code
, on the bases that the sentencing
    judge erred in principle and that the sentence was manifestly unfit.

[2]

The respondent was arrested on charges of carrying on a marihuana
    grow-operation at a rental house. At the time of the arrest, police searched a
    shed and located and seized 3,618 marihuana plants and 7 pounds of processed
    marihuana. It was also determined that the appellant was stealing electricity
    at the house to power the grow-operation equipment.

[3]

At the sentencing hearing, the Crown sought a sentence of four to six
    years. Defense counsel requested a sentence of 90 days, to be served
    intermittently.

[4]

The respondent had a related but dated previous conviction for the production
    of a Schedule II substance, for which he had been sentenced to a nine-month
    conditional discharge.

[5]

At the time of sentence for the current charges, it was submitted to the
    court that the respondent was under the care of a psychiatrist, suffering from
    a series of chronic psychological ailments, including a history of depression
    and anxiety and a tendency to display intermittent chronic suicidal ideation. A
    letter was submitted by the respondents psychiatrist indicating that the
    respondent presented as a high risk for decompensating if he were to be
    incarcerated.

[6]

The sentencing judge sentenced the respondent to 90 days imprisonment,
    to be served intermittently. The reasons for sentence consisted of two
    paragraphs in which the sentencing judge did not address any of the principles
    of sentence which should have informed his decision, but rather stated that it
    was morally and rationally untenable for the federal government to seek to
    legalize the use of recreational marihuana while at the same time continuing to
    enforce the existing marihuana laws. In the view of the sentencing judge, the
    intended change in the law cuts the legs out from under all of the traditional
    sentencing rules in this area.

[7]

In our view, the sentencing judge erred in principle by failing to give
    appropriate reasons for sentence, as well as in the fitness of the sentence
    which he imposed.

[8]

With respect to the reasons, the sentencing judge focused entirely on
    his personal views, which he advanced without inviting submissions on them from
    either party. We adopt the observation of Trotter J., as he then was, in
R.
    v. Tran
, 2016 ONSC 3225, where he observed that the prospect of reform on
    the horizon did not entitle the sentencing judge to disregard the rule of law.
    See also
R. v. Song
, 2009 ONCA 896, 100 O.R. (3d) 23.

[9]

Both appellate counsel agree that by applying normal sentencing
    principles, the sentence imposed was unfit, given the high number of plants
    seized, the antecedent record of the respondent, as well as the pre-existing
    jurisprudence on sentencing for similar types of cases.

[10]

The offence under s. 7(1) of the
CDSA
was subject to a mandatory
    sentence of three years. Because the grow-operation consisted of more than 500
    plants and was located on a property owned by someone else, ss. 7(2)(b) and
    7(3)(a) of the
CDSA
applied. We note that during sentencing
    submissions the sentencing judge took the view that he was bound by the
    decision in
R. v. Pham
, 2016 ONSC 5312, in which Code J. held that the
    mandatory minimum infringed s. 12 of the
Charter
and was of no force
    and effect. The appeal from that decision, along with two companion appeals,
    has been heard by another panel of this court and is under reserve.

[11]

Both parties agree that it would be procedurally unfair to sentence the
    respondent based on the mandatory minimum sentence, as he was told by the
    sentencing judge not to make submissions on the constitutionality of the
    provision.  Both parties also submit that an appropriate sentence in this case should
    be in the upper end of the reformatory range, somewhere between 15 months and
    18 months incarceration. We agree. We are of the view that a fit sentence is 18
    months.

[12]

The respondent has tendered fresh evidence on this appeal. He is 62
    years old and is now fully employed as an auto mechanic. He has two adult sons,
    with whom he has a very close relationship; he speaks to them on a regular
    basis.

[13]

The respondent is also under the care of a psychiatrist and is being
    treated for anxiety and depression. He has completed serving his 90-day
    intermittent sentence and is fully reintegrated back into his community.

[14]

In our view, the principles of specific deterrence and rehabilitation have
    been met in this case. While we agree that in the instant case, the principles
    of general deterrence and denunciation are of paramount consideration, we are also
    of the view that those principles are now satisfied with the imposition of a
    sentence of 18 months incarceration. It is also our view that to re-incarcerate
    this respondent would not be in the interests of justice, and would have undue
    adverse effects on this respondent.

[15]

Accordingly, leave to appeal sentence is granted, and the appeal is
    allowed. In all the circumstances, we impose a sentence of 18 months and order
    that execution of that sentence be stayed.

K. Feldman J.A.

M. Tulloch J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boachie, 2017 ONCA 944

DATE: 20171204

DOCKET: C62880

Laskin and Pepall JJ.A. and Gans J. (
ad hoc
)

BETWEEN

Her Majesty the Queen

Respondent

and

Bernard Boachie

Appellant

James Zegers, for the appellant

Hafeez Amarshi, for the respondent

Heard: December 1, 2017

On appeal from the conviction entered on July 4, 2016 by
    Justice Lynne Leitch of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1]

The principal issue on this appeal is whether the trial judge erred in
    finding that a reasonable person in officer Bullicks position would have
    believed reasonable and probable grounds existed to arrest the appellant. In
    our view the trial judge did not err.

[2]

We agree with her analysis in her thorough reasons. She stated the
    correct test and correctly looked at the totality of the circumstances. Those
    circumstances, which the trial judge summarized at paras. 74-77 of her reasons,
    supported the objective reasonableness of the search.

[3]

The appeal is therefore dismissed.