COURT OF APPEAL FOR ONTARIO

CITATION: Chandra v. Canadian Broadcasting Corporation, 2016
    ONCA 448

DATE: 20160607

DOCKET: M45682 & M46448

MacFarland J.A. (In Chambers)

BETWEEN

Ranjit Kumar Chandra

Plaintiff (Moving Party)

and

Canadian Broadcasting Corporation,
    Chris ONeill-Yates
, Catherine McIsaacs,
Lynn
    Burgess
, Jack Strawbridge and Memorial University of Newfoundland

Defendants (Respondents)

H. Richard Bennett and Joseph Figliomeni, for the moving
    party Ranjit Chandra

Christine L. Lonsdale and Gillian Kerr, for Canadian Broadcasting
    Corporation, Chris ONeill-Yates and Lynn Burgess

Heard: May 12, 2016

ENDORSEMENT

[1]

The moving party seeks an extension of time to file a notice of appeal
    from the judgment of Mew J. sitting with a jury dated July 24, 2015.

[2]

In the event an extension of time is granted, then by way of
    cross-motion, the responding parties seek an order for security for costs and
    to have any stay pending appeal lifted.

[3]

For the reasons that follow, the extension of time is denied.

BACKGROUND

[4]

In January 2006, the CBC broadcast a three-part news segment entitled,
    The Secret Life of Dr. Chandra. As a result of the broadcast, the moving
    party, Dr. Chandra, sued the CBC and journalists ONeill-Yates and Burgess for
    libel and invasion of privacy. The action was discontinued against the other
    named parties prior to trial. The allegations in support of his claim are set
    out in his pleading:

15.     The plaintiff pleads that the words complained of were
    intended, meant and were understood to mean that:

(a)      the plaintiff engaged in a pattern of scientific
    and academic fraud, lying and financial deception;

[5]

Subparagraphs (b) through (j) of paragraph 15 detail further particular
    allegations of fraudulent conduct. Paragraph 24 of the statement of claim
    pleads invasion of privacy, and details of the conduct the moving party alleges
    in support of his claim for invasion of privacy continue in paragraphs 25
    through 30.

[6]

The moving partys claims for damages as the result of CBCs conduct are
    set out in paragraphs 19 and 20:

19.     By reason of the broadcast, the plaintiff has been
    greatly injured in his credit and reputation and has been brought into scandal,
    odium, hatred, ridicule and contempt and has suffered damage.

20.     The plaintiff states that the defendants conduct
    towards him has been reckless, malicious, oppressive, callous, shocking and
    high handed and in complete and total disregard for the rights and reputation
    of the plaintiff, and that such conduct warrants the imposition of aggravated
    and punitive damages against the defendant.

[7]

And further at paragraphs 30 and 31:

30.     The Plaintiff states further that all of the broadcasts
    of the CBC Defendants described herein depicted the plaintiff in a false light.
    The CBC Defendants caused widespread publicity of information which placed the Plaintiff
    in a false light that would be highly offensive to a reasonable person for
    which the CBC Defendants are liable. As a result of the false light depiction
    of the Plaintiff, he has been emotionally injured and publicly embarrassed.

31.     As a direct result of the CBC Defendants invasion of
    the Plaintiffs privacy, the Plaintiff has suffered damages for which the CBC
    Defendants are liable to compensate the Plaintiff.

[8]

In total, the moving party claimed over $130,000,000 in damages.

[9]

The statement of claim was issued April 27, 2006. The matter proceeded
    to trial nine years to the day later, on April 27, 2015. Four lawyers made
    appearances for the moving party at trial: Mr. Lavers, Ms. Learmonth, Mr.
    Bennett and Mr. Figliomeni. The responding parties were represented by Ms.
    Lonsdale, Mr. Marques and Ms. Kerr. The trial continued for some 54 days until
    the verdict of the jury was received on July 24, 2015.

[10]

The jury concluded, by their answers to the questions posed, that
    although the broadcast complained of was defamatory of the moving party,  the
    words used in the broadcast were true. They also concluded that there was no
    intrusion upon seclusion. Accordingly, the action was dismissed.

[11]

In detailed reasons released November 13, 2015, the trial judge fixed
    substantial indemnity costs against the moving party in the all-inclusive sum
    of $1,614,000.

THE MOTION

[12]

No notice of appeal was filed within 30 days of July 24, 2015. The
    moving party now seeks an extension of time to file one. The notice seeking an
    extension of time was filed October 21, 2015.

[13]

The test the moving party must meet in order to be granted an extension
    of time to file a notice of appeal is well-settled. Those factors are succinctly
    set out in this courts decision in
Rizzi v. Mavros
, 2007 ONCA 350, 85
    O.R. (3d) 401, at para. 16:

1)

whether the
    appellant formed an intention to appeal within the relevant period;

2)

the length of
    the delay and explanation for the delay;

3)

any prejudice to
    the respondent;

4)

the merits of
    the appeal; and

5)

whether the
    justice of the case requires it.

[14]

In that same decision, at para. 17, Gillese J.A. added:

However, I would echo the following comments of
    Laskin J.A. in
Bratti v. Wabco Standard Trane Inc. (c.o.b. Trane
    Canada)
(1994), 25 C.B.R. (3d) 1 at 3 (Ont. C.A.):

While appellate courts have considered a number of different
    factors in determining whether to grant leave to extend the time for appealing,
    the governing principle is simply whether the justice of the case requires
    that an extension be given.

First Factor
:          Whether the Appellant
    Formed an Intention to Appeal                               within the Relevant
    Time

[15]

The moving party submits that he formed his intention to appeal within
    the relevant time. He swears in his affidavit on this motion, sworn October 21,
    2015, that after the initial shock of the jury verdict he immediately consulted
    with his four trial lawyers with a view to preparing for an appeal of the jury
    verdict. During this process, he determined that [he] should obtain a second
    opinion about [his] litigation strategy.

Letters from Dr. Chandra

[16]

Appended to his affidavit, in support of the submission that he formed
    an intention to appeal on time, are two letters the moving party claims he sent
    to this court while he was in India in the month following the verdict. The
    letters are dated August 22, 2015 and August 23, 2015.

[17]

The letters contain discrepancies. In the August 22 letter, the moving
    party says that he is currently in India and will be away from Canada for
    several months. He says that his lawyers need time to review the many documents
    from the trial and requests an extension of time to file a notice of appeal to
    January 31, 2016. By contrast, in the August 23 letter, he says that he has to
    be away from Canada for several weeks. He also says he has had to replace
    [his] solicitors with new ones. In this letter, he requests an extension of
    time to file a notice of appeal to September 30, 2015.

[18]

This court has no record of ever having received either letter. They
    were not copied to the responding parties. Assuming the letters were sent, it
    is understandable that copies would not be retained as no file had been opened
    in this court, there being neither a notice of appeal nor a motion seeking an
    extension of time to file one.

[19]

A further difficulty with the letters is a statement in each one that
    the written judgment of Judge Mews had not yet been received by [the moving
    partys] solicitors.

[20]

This was a trial before a jury. The verdict of that jury was given July
    24, 2015. There would be no written reasons for judgment from the trial judge,
    and the moving partys lawyers were aware of the process for obtaining an
    issued and entered judgment at the conclusion of trial.

[21]

In addition, the dates of the letters are very close to the deadline for
    filing a notice of appeal.

The sought-after second opinion

[22]

As noted, the moving party swears that after consulting with his four
    trial lawyers with a view to preparing for an appeal of the jury verdict, he determined
    that [he] should obtain a second opinion about [his] litigation strategy. In
    early August, the moving party says he consulted with lawyer Mark McMackin, who
    recommended that the moving party obtain a second opinion from Mr. McMackins
    colleague Norman Ronski.

[23]

Mr. McMackin gave evidence on this motion after he was served with a
    summons to witness by the responding parties.

[24]

Mr. McMackins recollection is that he spoke to the moving party likely
    in August and that the moving party just said he was considering whether or
    not ... he was considering his appeal rights. It was Mr. McMackins belief
    that the moving party continued to be represented by his original trial lawyers
    throughout. Mr. McMackin also believed that the moving party had a conversation
    with Mr. Ronski about his views about an appeal before Mr. McMackin left for
    vacation on or about August 21, 2015.

[25]

Mr. McMackin and Mr. Ronskis firm was never retained.

[26]

Mr. McMackins evidence provided in response to an undertaking is:

Mr. Ronski provided no substantive advice to Dr. Chandra
    concerning the appeal. Mr. Ronski has not given any substantive advice to Dr.
    Chandra about an appeal or the potential for an appeal; at most,
    Mr. Ronski may have had some discussion involving Dr. Chandra about
    the timing of an appeal and when the appeal could be brought. Mr. Ronski has never
    met Dr. Chandra and they have only had discussions on the phone.

Mr. Ronskis letter

[27]

Following his conversation or conversations with Dr. Chandra, Norman
    Ronski sent a letter to this court dated August 24, 2015. In that letter, Mr.
    Ronski says that the moving party was previously represented by the four trial
    lawyers, is at present self-represented and is in the process of retaining
    his firm. He says it is the express intention of the moving party to appeal the
    July 24 verdict and it will be his intention, once retained, to bring a motion
    for an extension of time to file a notice of appeal.

[28]

The statement in Mr. Ronskis letter to this court about the moving
    party being self-represented conflicts with the belief of Mr. McMackin and with
    the letters sent by Dr. Chandra. In his letters, Dr. Chandra directs the court
    to his senior lawyer and senior attorney, Mr. John Lavers. Dr. Chandra does
    not deny that he was represented by counsel throughout.

[29]

Finally, while Mr. Ronskis letter purports to have been forwarded to
    counsel for the responding parties, it was never received because the email
    addresses were all incorrect. The letter indicates that it was forwarded to
    recipients at domain names variously recited as @macarthy.ca and
    @marcarthy.ca. The McCarthy firm, which represents the responding parties, is
    well-known, certainly among litigators in Toronto, and Mr. Ronski is described
    in these proceedings as a senior litigator. If the mistake wasnt deliberate,
    it was careless in the extreme.

[30]

As a result, the responding parties had no notice whatsoever of the
    moving partys intention to seek an extension of time to appeal until they were
    served with his motion record October 21, 2015.

[31]

The one thing that can be gained from all three letters is that both the
    moving party and one of the lawyers he consulted were well aware that an appeal
    had to be filed in a timely way. The timing of these three letters  so very
    close to the end of the 30-day appeal period  cannot be a coincidence.

[32]

I share counsel for the responding parties query  why, in these
    circumstances, knowing there was a timeline, would counsel not have filed a
    place-holder notice of appeal to meet that timeline? No satisfactory
    explanation was given. There seems simply to have been the expectation that an
    extension of time would be granted if Dr. Chandra ultimately decided that he
    wished to pursue an appeal after the 30-day period.

Conclusion

[33]

I am not persuaded on the record that Dr. Chandra formed an intention to
    appeal within the 30-day period.

[34]

The evidence as to whether Dr. Chandra formed the necessary intention
    to appeal within the 30 days is equivocal and contradictory. The court has no
    record of having received the letters offered by Dr. Chandra, they are
    misleading in some respects and they were never copied to counsel for the
    responding parties. Importantly, while in his affidavit he swears he formed the
    intention to appeal immediately, Dr. Chandras own letters sent at about the 30-day
    mark do not express that same intention. In neither letter does Dr. Chandra
    himself say words to the effect that he has decided to appeal the verdict of
    the jury. Instead, the letters speak only of wanting a second opinion about his
    litigation strategy.

[35]

Only in Mr. Ronskis letter to the court does he say  [i]t is the
    express intention of Dr. Chandra to appeal. The legitimacy

of this
    statement is undermined by the fact that, according to Mr. McMackins evidence,
    Mr. Ronski never actually provided Dr. Chandra with any substantive legal
    advice.

Second Factor
:
Explanation for the
    Delay

[36]

Dr. Chandra explains the delay in filing the notice of appeal based on
    his desire to obtain a second opinion regarding his litigation strategy. He
    says in his affidavit that he returned to Canada in late September 2015, at
    which time he immediately consulted with Mr. McMackin to determine whether Mr.
    Ronski was prepared to act on his behalf.

[37]

It was not unreasonable for Dr. Chandra to seek a second opinion from
    Mr. Ronski. Some time would reasonably be allowed for that. The difficulty is
    that while Dr. Chandra in his affidavit suggests he consulted with Mr. McMackin
    as to whether Mr. Ronski would act for him on his return to Canada in late
    September, 2015, Mr. McMackins evidence was that the initial telephone
    conversation between Dr. Chandra and Mr. Ronski took place before the date Mr.
    McMackin left on holiday that year  August 21, 2015.

[38]

In his affidavit, Dr. Chandra explains that he had surgery to replace
    the battery in his pacemaker on September 30, 2015 and was unable to meet with
    counsel until October 13, 2015. Yet his passport and his cross-examination
    demonstrate that he was back in Canada by September 5, 2015. There is no
    explanation why he could not meet earlier with Mr. Bennett and/or Mr.
    Figliomeni, the lawyers from his trial who appeared for him on this motion. As
    I said, his evidence about when he received advice from Mr. Ronski is
    contradicted by Mr. McMackins evidence on this point.

[39]

It must be remembered that matters did not stand idle following the
    jurys verdict. Three business days after the verdict, Dr. Chandra listed his
    Toronto condominium for sale with immediate occupancy available. When the
    responding parties learned of this they threatened to seek injunctive relief to
    preclude any sale. An agreement was ultimately reached whereby a sale would
    require the consent of the responding parties, with the net proceeds of sale to
    be placed in trust and the property not further encumbered.

[40]

A reading of Dr. Chandras affidavit would leave one with the impression
    that he sought a second opinion on his litigation strategy from Mr. McMackin
    soon after the jury verdict, and that he then went to India where he remained
    until he returned to Canada in late September 2015. He could not come to an
    agreement with Mr. Ronski at that time and he then had his pacemaker surgery
    which disabled him until October 13, 2015. After meeting with Messrs. Bennett
    and Figliomeni and consulting with Mr. Lavers, he says he instructed and
    retained Messrs. Bennett & Figliomeni on October 17, 2015 to bring a motion
    to extend time to file a notice of appeal.

[41]

While this statement may be accurate as far as it goes, it ignores
    entirely the fact that throughout this time, Dr. Chandra was instructing
    Messrs. Bennett and Figliomeni with respect to the signing of the final
    judgment, making costs submissions, and making and adjourning the appointments
    to make costs submissions. The litigation was ongoing and Dr. Chandra was of
    necessity in frequent communication with his lawyers and providing instruction
    in relation to those matters.

[42]

I ask again why, during all this time, no notice of appeal, even a
pro
    forma
document, was filed. During this entire period, Dr. Chandra was in
    communication with Mr. Lavers, as well as Messrs. Bennett and Figliomeni. The
    latter were preparing costs submissions and the argument on costs was originally
    scheduled for mid-September. Dr. Chandra would have the reader believe that he
    only retained Messrs. Bennett & Figliomeni in mid-October 2015 for the
    purpose of bringing this motion. The record simply does not support his
    assertion and it is misleading for him to suggest otherwise.

[43]

I am not persuaded that there has been any satisfactory explanation for
    the delay.

Third Factor
:
The
    Merits of the Appeal

[44]

When
    considering the merits of the appeal, it is not with a view to determining
    whether the appeal will succeed, but only with a view to determining whether
    the appeal has so little merit that the court could reasonably deny the
    important right of appeal:
Nguyen v. Economical Mutual Insurance Company
,
    2015 ONCA 828, at para. 13.

[45]

In my view, the moving party has failed to meet even this low threshold.

[46]

The moving party seeks to appeal the verdict of a jury. The law is
    well-settled and has been for decades going back to the decision of the Supreme
    Court of Canada in
McCannell v. McLean
, [1937] S.C.R. 341, where Chief
    Justice Duff noted, at p. 343:

[T]he verdict of a jury will not be set aside as against the
    weight of evidence unless it is so plainly unreasonable and unjust as to
    satisfy the court that no jury reviewing the evidence as a whole and acting
    judicially could have reached it.

[47]

It cannot be disputed that an appellant who seeks to overturn a jurys
    verdict faces an uphill battle. As Weiler J.A. of this court noted in
Gutbir
    v. University Health Network
, 2012 ONCA 66, 287 O.A.C. 223, at para. 5, Where
    there is some evidence to support the verdict, a jury will be accorded a high
    degree of deference.

[48]

This jury verdict in particular is based upon a defence of truth and the
    credibility of Dr. Chandra. There was no real issue that the broadcast was
    defamatory; the CBC defendants admitted that it was. The defence that succeeded
    at trial was that of justification  the jury concluded that the defamatory
    statements made about Dr. Chandra were true. And provided there was
some
evidence to support that finding, its verdict is
    not likely to be overturned.

[49]

The trial judge noted in his costs endorsement dated November 13, 2015
    that there was ample evidence adduced at trial to support the findings of the
    jury: 2015 ONSC 6519, at para. 30. Clearly, his view is not determinative, but
    it is informative where it is a jury verdict that is in issue.

[50]

In a nutshell, as the responding parties agree, the jury found that the
    statements made in the broadcast, which included that the moving party had
    engaged in scientific fraud and financial deception, were true.

[51]

With this background, I turn to the proposed grounds of appeal.

(1)

Errors Relating to the Sequence of Evidence

[52]

Dr. Chandra submits that the trial judge misapplied the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 194, and unjustly reversed the onus of
    proof at trial by requiring him to present his evidence prior to the defendants
    presenting theirs.

[53]

Rule 52.07(2) provides:

Where the burden of proof in respect of all matters
    in issue in the action lies on the defendant, the trial judge may reverse the order
    of presentation.

[54]

Dr. Chandra argues essentially that because the responding parties
    admitted that the broadcast was defamatory, the trial judge ought to have
    required that those parties lead their evidence first and that he be given the
    opportunity to present his evidence last. Mr. Bennett argues that to do otherwise
    prejudicially reverses the onus of proof and requires his client to prove a
    negative.

[55]

He relies on the decision of the Supreme Court of Canada in
Jerome
    v. Anderson
, [1964] S.C.R. 291, at p. 302:

The judgment of Abbott Ld. C.J. in
Browne v. Murray
[(1825)
    1 Ry. & M. 254, 171 E.R. 1012,] which was a ruling made during the course
    of the trial, appears to indicate the view that the plaintiff in a libel action
    has a right to choose which course he will take. The judgment reads as follows:

In actions of this nature, the plaintiff may, if he thinks
    fit,
content himself with proof of the libel,
and
    leave it to the defendant to make out his justification, and then the plaintiff
    may, in reply, rebut the evidence produced by the defendant. [Emphasis added.]

[56]

In my view, this ground of appeal cannot succeed. First, r. 52.07(2)
    applies only where the burden of proof in respect of all matters lies on the
    defendant, and even then its language is discretionary.

[57]

Second, the burden of proof here on all matters did not lie on the
    responding parties. The moving party concedes he had a burden minimally, in
    relation to the libel, to prove the broadcast, that he was the subject of the
    broadcast, and that the words were defamatory of him. In addition, the moving
    party claimed damages for the invasion of his privacy. The burden of proof for
    this claim was his alone.

[58]

Finally, this was not simply a case of libel where the only defence
    was justification: the claim was also defended on the basis of fair comment,
    responsible communication and qualified privilege.

[59]

As such,
Jerome
does not assist the moving party.

[60]

During the course of argument, Mr. Bennett provided a copy of the
    English Court of Appeals decision in
Beevis v. Dawson et al.
, [1956] 3
    W.L.R. 1016. At p. 1021, Singleton L.J. quotes the same passage from
Browne
    v. Murray
quoted above in
Jerome.
He then states:

I venture to doubt whether there is a hard and fast rule either
    way. The authorities seem to me to show that the practice is based on general
    convenience. It must depend, of course, on the issues which are raised;
    obviously it must depend upon the pleadings in the case in which the issues are
    set out. If publication is admitted and justification is set up as a defence,
    the plaintiff is entitled to say that the onus is upon the defendant; that it
    is for him to prove his case.

[61]

Counsel for the moving party relied on this passage and argued that the
    trial judge erred in failing to reverse the order of evidence. Yet in
Beevis
,
    the court continued:

In most cases there are other pleas, and the question arises as
    to what is the most convenient way of dealing with the matter in the interests
    of justice, in the interests of the parties, and from the point of view of the
    court. Those interests are really all the same. If, after hearing submissions,
    the judge decides that one course is preferable to another, his decision should
    in general be treated as final.

[62]

In my view, the trial judges decision was a discretionary one that is
    entitled to deference. This was not only a libel case but also a tort case
    where the moving party bore the onus of proof.

(2)

Evidentiary Rulings

[63]

Next, the moving party takes issue with certain of the trial judges
    evidentiary rulings. He argues that the prejudicial impact of such evidence
    outweighed its probative value and confused the jury.

(a)

Read-ins from Examination for Discovery

[64]

The moving party objected to the responding parties reading in what they
    considered to be admissions from his examination for discovery. They argue that
    permitting the CBC defendants to do so contravened the rule in
Browne v.
    Dunn
.

[65]

The answer to this argument is that the
Rules
permit the reading
    in of portions of an adverse partys examination for discovery: see r. 31.11(1).
    The trial judge was alive to the moving partys concern that the read-ins which
    had not been put to him while in the witness box not be used to impeach him.
    The trial judge instructed the jury accordingly. That charge was the last thing
    the jurors heard; the fact that Dr. Chandra had completed his evidence weeks
    earlier while the read-ins were entered into evidence as part of the responding
    parties case is simply a reality of court practice in long trials. We are
    entitled to assume that the jury followed the instruction it was given by the
    trial judge, and there is no issue raised about the content of that
    instruction.

[66]

Finally, the moving party argues that it was unfair to allow the
    read-ins where he had no opportunity to respond by way of comment or
    explanation. I note in his reasons on the ruling, reported at 2015 ONSC 8140,
    the trial judge said:

[T]o the extent that Dr. Chandra considers that he is
    prejudiced by any of these read-ins addressing matters which he feels he should
    have had the opportunity to address at trial and did not  because he assumed
    when he sat down, having concluded his evidence, that the evidence of this
    nature would not be tendered by the CBC, I will certainly entertain a request
    by Dr. Chandra for the opportunity to give evidence in reply.

[67]

Not having taken advantage of that opportunity afforded would, in my
    view, be dispositive of this ground of appeal.

(b)

Exclusion of Evidence

[68]

Dr. Chandra argues that the judge erred by the exclusion of a
    Corporation Profile Report confirming the existence of K.R. Marketing Inc. As
    the responding parties have noted at para. 46 of their factum:

Dr. Chandra attempted to introduce the K.R. Marketing Report
    only once, and through a witness who had never seen it ... In any event taken
    at its highest, the K.R. Marketing document was relevant to damages only and
    thus had no impact on the jury verdict.

[69]

Dr. Chandra further argues that the trial judge erred in failing to
    permit Dr. Khamis to give opinion evidence. Dr. Khamis was a participating
    expert witness. He had worked on one of the scientific papers in issue. He was
    permitted to testify in that capacity. Because he had not filed an experts
    report, as is required by r. 53.03, he was not permitted to give opinion
    evidence. The trial judge was simply adhering to
Rules of Civil Procedure
and it was not an error to do so.

(3)

Jury Charge

[70]

The moving party lists thirteen errors in the jury charge in his
    proposed notice of appeal. The notice alleges that the charge misapprehended or
    misstated just about every area of the law involved in this trial: burden of
    proof, the defence of justification or truth, the defence of responsible
    journalism, the defence of fair comment, the concept of malice in defamation
    law, and the tort of intrusion upon seclusion. Most of these grounds were not
    pursued either in the moving partys factum or in oral argument. I have
    addressed those that were.

[71]

Before I begin to address these grounds, I emphasize again the high
    threshold required to set aside a jury verdict. Appellate review of a jury
    charge takes a functional approach whose goal is to ensure that juries are
    properly, not perfectly, instructed. A new trial is not to be ordered unless
    the error results in a substantial wrong or miscarriage of justice:
Berthiaume-Palmer
    v. Borgundvaag
, 2010 ONCA 470, 273 O.A.C. 397.

[72]

The moving party argues that the charge was too long and too
    confusing, and that the jury may not have understood it. These general and
    bald assertions do not assist the moving party.

[73]

The charge was some 81 pages long. Considering that the trial proceeded
    over some 54 days (plus two days of jury deliberations), it is difficult to
    find fault with the charge merely on the basis of length.

[74]

Counsel complains that he only received the draft charge from the trial
    judge after midnight when he had already gone to bed. He complains he did not have
    sufficient opportunity to review the charge and consider objections before it
    was delivered to the jury. The answer to this objection is self-evident. Counsel
    was in the courtroom when the charge was delivered and had the opportunity to
    take any objection he had to the charge at that time. He did not do so.

[75]

Dr. Chandra further argues that the trial judge erred in allowing the
    defence of justification or truth to go to the jury. He argues that because
    neither the expert for Dr. Chandra nor the expert for CBC were able to say that
    Dr. Chandras conduct had been fraudulent, there was no evidentiary basis
    to support the defence of truth.

[76]

It seems to me that, as the trial judge noted in his costs disposition,
    there was ample evidence to support the jurys verdict. It is wrong to say that
    because the experts were unable to say whether or not Dr. Chandra committed
    fraud that it was not open to the jury to find he did. All the experts were
    saying in this respect was that they could not speak to Dr. Chandras
    state of mind. The experts opinions were not the only evidence of fraud. It
    was for the jury to find on the whole of the evidence whether Dr. Chandra had
    committed scientific and/or academic fraud. This was the ultimate issue.

[77]

The moving party also submits that, during the jury charge, the trial
    judge unfairly admonished his counsel for purportedly misstating the law. I see
    no admonishment or criticism in the charge, let alone improper criticism. The
    trial judge was clarifying the law and the evidence. He did not suggest that
    counsel intentionally misled the jury. He merely corrected any incorrect
    impressions or understandings that the jury might have been left with following
    counsels closing argument.

[78]

Next, Dr. Chandra submits that the trial judge failed to adequately draw
    to the attention of the jury the seriousness of the documentarys content and
    its consequences for Dr. Chandra. He says that the trial judge failed to
    instruct the jury of the inherent probabilities or improbabilities in the
    evidence. In my view, the trial judge properly instructed the jury on the
    single burden of proof that exists in civil proceedings: proof on a balance of
    probabilities. He told the jury that he was not suggesting that [they] should
    be unmindful of the seriousness of the allegations that have been made. But
    the standard of proof is a balance of probabilities. This portion of the
    charge informs the jury that they should consider the seriousness of the
    allegations against Dr. Chandra in the documentary in the context of the
    standard of proof in civil trials.

[79]

Dr. Chandra further complains that the trial judge failed to summarize
    his evidence despite summarizing the evidence of other witnesses. This, he says,
    created an impression with the jury that Dr. Chandras evidence was less
    important than that of other witnesses.

[80]

The trial judge reviewed the evidence from p. 53 to p. 69 of his charge.
    Dr. Chandra was in the witness box for 13 days. As I read the charge, Dr.
    Chandra was afforded as much print as the other witnesses. The charge did not
    so much review the evidence of the witnesses as remind the jury of who the
    witnesses were and what their evidence was about. At the end of his charge, the
    trial judge read to the jury the summaries that counsel had prepared that set
    out the respective positions of their clients in relation to the issues. He
    began with the position of the CBC defendants and then moved on to the position
    of the plaintiff. It was Dr. Chandras position that was last heard by the
    jury, and that position was put to them in the way his counsel had framed it. This
    was the last instruction  other than responses to questions, which are not in
    issue  that the jury heard.

[81]

The complaints about the jury charge are without merit. There was no
    unfairness to Dr. Chandra.

[82]

The simple fact of the matter is that the jury did not believe him.

[83]

In my view, this appeal is devoid of merit and cannot succeed.

Fourth Factor:
Prejudice

[84]

While there is little if any prejudice that arises from the three month
    delay in filing the notice of appeal, the overall prejudice to the respondents
    informs the justice of the case ground. Here, the prejudice to the responding
    parties if an extension is allowed is that they lose the finality of the jurys
    verdict.

[85]

The matters that gave rise to this action go back many years. Dr.
    Chandra retired from Memorial University in 2002. The allegations that formed
    the subject matter of the broadcast preceded that date by years. The statement
    of claim was issued nine years before the trial started. The litigation has
    been hard fought throughout. There has been delay and foot-dragging on Dr.
    Chandras part since the jury delivered its verdict. There was resistance to
    approving the form of judgment  an uncomplicated judgment that simply
    dismissed the action. There was resistance to the trial judge fixing costs and
    a request that they be assessed and, when that did not find favour, a request
    for the dockets of counsel for the responding parties. The date for the costs
    submission was adjourned several times.

[86]

As indicated earlier in these reasons, Dr. Chandra listed his
    condominium for sale three days post-verdict. There was a second attempt later
    by Mr. McMackin to place a further mortgage against that same condominium
    despite the agreement Dr. Chandra had made with the responding parties after he
    had listed the property for sale.

[87]

Mr. McMackins evidence was that hed been approached by Dr. Chandra
    seeking his assistance to obtain a loan. Mr. McMackin put a mortgage on the
    property, in the name of a corporation he wholly owned, and then made some
    efforts to obtain loan monies for Dr. Chandra. The idea was that if Mr.
    McMackin was successful in obtaining financing for Dr. Chandra, the mortgage
    would simply be assigned to the new lender. Dr. Chandra did not inform Mr.
    McMackin that he had entered an agreement whereby he was precluded from further
    encumbering the property absent the consent of the CBC defendants.

[88]

So far as is known, this condominium is the only asset Dr. Chandra owns
    in Ontario. He has refused to disclose any information at all about his
    finances. He has not claimed impecuniosity. He has attempted to deal with his
    only known Ontario asset twice since the verdict. The CBC defendants have a
    costs order against Dr. Chandra in the sum of $1,614,000.

[89]

Dr. Chandra has consented to an order requiring that he post security
    for costs in the sum of $166,369.90 in the event he is granted an extension of
    time to file his notice of appeal. He refuses to post any part of the trial
    costs award.

[90]

In light of Dr. Chandras conduct, granting the extension of time
    (assuming I was to deny the responding parties cross-motion, as Dr. Chandra
    suggests) would put at even greater risk the ability of the responding parties
    to enforce the trial costs award.

The Justice of the Case

[91]

Lastly, I consider the justice of the case. I am of the view that Dr.
    Chandra has not been candid with the court. He has misrepresented the nature of
    his representation by counsel. He has not given any credible explanation for
    why he did not and could not file a notice of appeal within the 30-day appeal
    period. He clearly knew on this record that there was such a deadline but
    ignored it and proceeded on the basis that when he was ready, he would simply
    apply for and receive an extension of time. He is a sophisticated litigant.

[92]

All during this time, he was represented by experienced counsel who were
    taking instruction from him on a myriad of related issues  yet no notice was
    filed.

[93]

In my view, the justice of the case requires that this application be
    dismissed and I so order.

[94]

The responding parties brought a cross-motion for security for costs and
    lifting of the automatic stay in the event an extension of time was granted.
    Because that motion was dismissed, it is unnecessary to deal with the
    cross-motion.

Costs

[95]

The amounts sought by the responding parties are substantial: roughly $98,000
    on a full indemnity basis and $74,000 on a partial indemnity basis.

[96]

The moving party argues that the costs of both motions should be no more
    than $5,000 and cites a number of decisions of this court on similar motions
    where costs in the amount of $5,000 were awarded.

[97]

It goes without saying that each case falls to be decided on its own
    particular facts. The record in this case was voluminous. The respondents
    record was four volumes totalling some 1141 pages. Some of that material
    related to the cross-motion that I concluded was unnecessary to deal with in
    view of my decision on the extension motion. Most of it, however, was relevant
    to the issues, and particularly to the merits of the appeal that I had to
    consider.

[98]

There is no basis upon which to award full indemnity costs for this
    motion. In addition, the $74,000 partial indemnity amount sought is simply too
    high, even for this motion. However, the costs should certainly be more than
    the $5,000 suggested by the moving party.

[99]

This has been hard fought litigation. While there is nothing wrong with
    that, it does come with a price. There was an examination of a non-party
    witness, the necessity of a motion to compel the moving party to attend for
    cross-examination, and the failure of the moving party to attend scheduled
    appointments on several occasions to name just a few.

[100]

In my view, the
    sum of $35,000 for the costs of this motion is a reasonable sum in all the
    circumstances. I award costs to the respondents fixed in the sum of $35,000
    inclusive of disbursements and HST.

J.
    MacFarland J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Chelli-Greco v. Rizk, 2016 ONCA 489

DATE: 20160617

DOCKET: C61472

Feldman, Rouleau and Huscroft JJ.A.

BETWEEN

Rosalba Chelli-Greco

Plaintiff

(Respondent)

and

Dr. Michael J. Rizk

Defendant

(Appellant)

Susanne M. Sviergula, for the appellant

John J. Cardill, for the respondent

Heard and released orally: May 20, 2016

On appeal from the order of Justice C.T. Hackland of the Superior
    Court of Justice, dated November 13, 2015.

ENDORSEMENT

[1]

This is an appeal from an order dismissing the appellants motion for
    summary judgment. The sole issue before the motion judge was whether the respondents
    action was statute-barred because the two-year limitation period established by
    s. 4 of the
Limitations Act
, S.O. c. 24, Sched. B, had expired.

[2]

The respondent was a patient of the appellant dentist from September
    2005 to October 2012. She commenced her action alleging negligence on June 16,
    2014, which was within two years of her last appointment with the appellant.
    The appellant argues that the limitation period began to run from September 21,
    2011 because that was the date that the respondent discovered her claim. On
    that date, the respondent complained about the dental work performed by the
    appellant, demanded reimbursement of $23,000.00, and threatened to go to a
    lawyer.

[3]

Under s. 5 (1)(a) of the Act, a claim is discovered on the date the
    claimant knew, or ought to have known, the material facts giving rise to the
    claim, and that
a proceeding would be an appropriate means to
    seek to remedy the claim.
The date is determined on a fact-based
    analysis.

[4]

The issue before the motion judge was when did the respondent know that
    a proceeding would be an appropriate means to seek a remedy. The motion judge
    accepted the respondents evidence that her decision to continue treatment with
    the appellant beyond September 21, 2011 was based on the appellants advice to
    her that her failed bridge was not his fault and he would endeavour to repair
    and remediate the problem.  . Given this finding, we see no error in the
    motion judges conclusion that the respondents action was not discovered until
    after the treatment and the dentist-patient relationship had ended and that her
    action was not statute barred as a result. See
Brown v. Baum
, 2016
    ONCA 325, at para. 18.

[5]

The appeal is dismissed.

[6]

The appellant seeks leave to appeal the costs awarded by the motion
    judge. We are not persuaded that the motion judge erred in the exercise of his
    discretion to award costs to the respondent that were significantly higher than
    those incurred by the appellant, given the nature of the motion.

[7]

Leave to appeal costs is granted, but the appeal is dismissed.

[8]

The appellant shall pay the costs of the appeal to the respondent in the
    agreed amount of $13,500, inclusive of taxes and disbursements.

K. Feldman J.A.

Paul
    Rouleau J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Deslaurier Custom Cabinets Inc. v. 1728106 Ontario
    Inc.,

2016 ONCA 436

DATE: 20160602

DOCKET: C59429

Cronk, Pepall and Miller JJ.A.

BETWEEN

Deslaurier Custom Cabinets Inc.

Respondent (Plaintiff)

and

1728106 Ontario Inc.
and John Faught Steel Inc.

Appellant (Defendants)

D.H. Rogers, Q.C. and Rebecca Moore, for the appellant

Matthew J. Halpin and Jenna Anne de Jong, for the
    respondent

Heard: October 16, 2015

On appeal from the judgment of Justice Monique Métivier of
    the Superior Court of Justice, dated October 1, 2014, with reasons reported at 2014
    ONSC 5148, and 2014 ONSC 5533.

COSTS ENDORSEMENT

[1]

This court released its judgment in this matter on April 4, 2016:
Deslaurier
    Custom Cabinets Inc. v. 1728106 Ontario Inc.
, 2016 ONCA 246.  The court
    granted the appellant, 1728106 Ontario Inc., its costs of the appeal in the
    total amount of $25,000, inclusive of disbursements and applicable taxes, and
    requested the parties further submissions regarding the appellants costs of
    the underlying action, excluding any costs associated with its cross-claim
    against John Faught Steel Inc.

[2]

The court has now received and reviewed those further submissions,
    together with additional costs submissions delivered by Tierney Stauffer LLP on
    behalf of the appellant and its shareholders relating to matters described in
    that firms submissions.

[3]

Based on the matters at issue on this appeal and in the underlying
    action, the parties positions and the participation of involved counsel, we
    conclude that the appellant is entitled to its costs of the underlying action,
    including its costs of the summary judgment motions but excluding costs
    associated with its cross-claim against John Faught Steel Inc., on a partial
    indemnity basis, in the total amount of $65,231.79.  We make no order in
    respect of the costs sought by Tierney Stauffer LLP.  Those costs, in our view,
    are not properly recoverable in the proceeding before this court emanating from
    the main action.

[4]

Accordingly, the costs order of Métivier J. dated October 1, 2014 is set
    aside and an order is substituted in its place granting the appellant costs of
    $65,231.79 in accordance with these reasons.

E.A. Cronk
    J.A.

S.E.
    Pepall J.A.

B.W.
    Miller J.A.