CITATION:
R. v. Stevens, 2011
          ONCA 504

DATE: 20110712

DOCKET: C50860

COURT OF APPEAL FOR ONTARIO

Laskin, Feldman and Armstrong JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lawrence Stevens

Appellant

John Norris and Brydie Bethell, for the appellant

David Finley, for the respondent

Heard: February 14, 2011

On appeal from the judgment of
          Summary Conviction Appeal Judge Sandra Chapnik of the Superior Court of
          Justice dated July 7, 2009, with reasons reported at 196 C.R.R. (2d) 32, dismissing
          the appeal from the convictions for careless storage of a firearm and
          ammunition entered on July 10, 2006 by Justice Lloyd M. Budzinski of the
          Ontario Court of Justice.

ARMSTRONG J.A.:

INTRODUCTION

[1]

The appellant was convicted on July 10, 2006 of
    four counts of careless storage of a firearm and one count of careless storage
    of ammunition by Justice Budzinski of the Ontario Court of Justice.  He received a suspended sentence and
    probation for 12 months.  He appealed his
    convictions to the summary conviction appeal court.  His appeal was dismissed by Justice Chapnik
    of the Superior Court of Justice on July 7, 2009.  He now applies for leave to appeal and, if
    leave be granted, he appeals to this court.

[2]

The main issue on the appeal is whether the
    search and seizure of the guns and ammunition in the appellants apartment was
    in breach of s. 8 of the
Canadian Charter
    of Rights and Freedoms
.

THE FACTS

[3]

The appellant and his girlfriend, Lourinda
    Beaver, lived in an apartment on Islington Avenue in Toronto.  A dispute arose between the landlord and the
    appellants girlfriend over the failure to maintain the property and Ms. Beaver
    withheld the rent.  The landlord obtained
    an eviction order.  The dispute was
    resolved through mediation and an agreement was entered into on January 5,
    2005.  The landlord agreed not to enforce
    an eviction order if certain payments were made in accordance with a payment
    schedule.  The first payment was due on
    January 14, 2005.  Despite the first
    payment having been paid on time, the landlord, apparently through
    inadvertence, commenced the eviction process by faxing instructions to a
    paralegal firm, which requested the sheriffs office to proceed.

[4]

On February 9, 2005, two sheriffs officers
    attended at the appellants apartment to enforce the eviction order.  They were met at the apartment building by
    the superintendent of the building.  The
    sheriffs officers had been provided with a risk assessment form, which stated
    that there was no risk in respect of the particular apartment.

[5]

The sheriffs officers knocked at the apartment
    door and received no response.  The
    superintendent opened the door with a master key.  When the sheriffs officers walked through
    the apartment, they noticed what appeared to be two gun cases in one of the
    bedrooms.  They did not know if the cases
    contained guns.  They did not touch them.  They also observed an Ontario Provincial
    Police shirt, a police badge from the Prince Edward Island provincial police and
    a bullet-proof vest (without panels).

[6]

After satisfying themselves that the apartment
    was vacant, they signed the eviction order.  They advised the superintendent that they had found firearms on the
    premises and that the police would be called.  The police were called and the superintendent and sheriffs officers
    waited in the apartment for the police to arrive.

[7]

Two police officers arrived shortly thereafter.  One of the police officers testified that
    they believed they were called to the apartment due to a concern that police
    property was present in the apartment.  The
    sheriffs officers explained that they were executing an eviction order and
    told the police about the gun cases.  The
    police decided to open the gun cases.  On
    opening the cases, they found firearms that were not properly stored or locked.

[8]

The superintendent of the apartment building
    changed the locks on the apartment door.

[9]

The more senior officer of the two instructed
    his colleague not to search any further because he intended to contact the
    Major Crime Unit about a search warrant.  Subsequently three officers from the Major Crime Unit arrived at the
    apartment.  They advised the first two
    officers that they would obtain a search warrant and instructed them to stay in
    the apartment.

[10]

About an hour later, the appellant arrived at
    the apartment.  His key would not fit the
    lock.  One of the police officers opened
    the door and the appellant was arrested.  Ms. Beaver arrived at the apartment some time later and was arrested.

[11]

A search warrant was obtained authorizing the
    police to enter the appellants apartment and search for certain specified
    items.  The police seized a number of
    items including firearms and ammunition.

THE PROVINCIAL COURT TRIAL

[12]

After a
voir
    dire
, the trial judge dismissed the appellants motion to exclude from
    evidence the guns and ammunition seized by the police.  The evidence was admitted for the purpose of
    the trial and convictions followed.

[13]

The trial judge held that the sheriffs officers
    were proceeding under the authority of a valid eviction order.  The police were initially assisting the
    sheriffs officers in what was essentially a civil matter.  The trial judge concluded that s. 8 of the
Charter
did not apply in the circumstances
    and dismissed the motion to exclude the evidence.

THE SUMMARY CONVICTION APPEAL

[14]

On the summary conviction appeal, the Crown
    conceded that the police are not exempt from the
Charter
when assisting sheriffs officers to carry out an eviction.  However, the Crown argued that there was no
    breach of s. 8.

[15]

The Superior Court judge on the summary
    conviction appeal posed the question: Was s. 8 of the
Charter
breached when the police entered the appellants private
    residence or when they opened the gun cases, then waited about six hours in
    the premises prior to the obtaining of the warrant?

[16]

The Superior Court judge approached her analysis
    on the basis that this was a warrantless search and is presumptively
    unreasonable.  She found that in the
    circumstances, the police acted reasonably throughout and the presumption of
    unreasonableness was rebutted.  At paras.
    21, 22 and 23 of her reasons, she said:

In this case, the police had been called to the
    apartment to investigate a serious safety issue.  The search of the premises did not commence,
    nor was one attempted, before the search warrant was obtained.  The police entered the apartment not for the
    purpose of a search, but in response to a call for assistance.  Upon entry, they were shown a copy of the
    eviction order.  Clearly, it was not
    feasible for them to obtain prior judicial authorization for the search.  The police actions, including the securing of
    the apartment for several hours prior to the obtaining of the warrant, were
    both subjectively and objectively reasonable in the circumstances and not, I
    find, intrusive in relation to the appellants privacy interests.  The police acted throughout pursuant to their
    common law duty to preserve the peace and prevent crime.

In my view, the factual situation here is
    exceptional and the state interest compelling such as to justify overriding the
    general prohibition against warrantless searches of a home.

The Crown has satisfied the onus of demonstrating
    that exigent circumstances justified the entry by the police, the opening of
    the gun cases and the securing of the premises as they did, prior to obtaining
    the warrant.  The concerns of the
    Sheriffs officers, the safety issue and the request for police assistance in
    securing safe transfer of the property were all found to be reasonable in the
    circumstances.

[17]

Finally, she concluded that if there was a
    breach of s. 8, the evidence would be admissible on a s. 24(2) analysis.

LEAVE TO APPEAL TO THIS COURT

[18]

The respondent does not oppose the granting of
    leave to appeal pursuant to s. 839(1) of the
Criminal Code
.  The trial
    judge considered the issues to be somewhat novel and the Superior Court judge
    described the factual situation as exceptional.  The issues appear to have importance beyond
    the appellants own case and raise a question of law concerning the proper
    application of s. 8 of the
Charter
.  I am satisfied that this case meets the test
    for leave to appeal in
R. v. R.R.
(2008),
    90 O.R. (3d) 641 (C.A.).

THE APPELLANTS POSITION ON THE APPEAL

[19]

The appellant submits that both the sheriffs
    officers and the police officers carried out unlawful searches in contravention
    of s. 8 of the
Charter
.  Sheriffs officers are state actors who
    perform their duties in these circumstances under the authority of various
    statutes including the
Tenant Protection
    Act, 1997
, S.O. 1997, c. 24, now the
Residential
    Tenancies Act
,
2006
, S.O. 2006, c.
    17, and are therefore bound by the
Charter
.

[20]

The appellant further argues that the searches
    carried out by the sheriffs officers and the police officers constituted
    searches of the appellants home and his belongings to which he had a
    subjective expectation of privacy and an objectively reasonable expectation of
    privacy.

[21]

Both the sheriffs officers and the police
    conducted searches before the police obtained a warrant, which were
    presumptively unreasonable.  The Crown
    failed to rebut the presumption of unreasonableness.

[22]

The appellant submits that the Superior Court
    judge erred in concluding that there were exigent circumstances that justified
    the police opening the gun cases before obtaining a warrant.

[23]

The fact that the police ultimately obtained a
    warrant is of no consequence.  The search
    warrant was obtained on the basis of information unlawfully obtained and cannot
    be used to legitimize the earlier illegal conduct.

[24]

The appellant also submits that the fact that
    the police remained in the premises for several hours constituted a further
    unreasonable search.

[25]

Finally, the appellant argues that both the
    trial judge and Superior Court judge erred in considering that the gun cases
    were in plain view to the sheriffs officers and to the police, which
    rendered the search and seizure of the guns reasonable,
ex post facto
.

[26]

The appellant submits that a proper analysis
    under s. 24(2) of the
Charter
pursuant to
R. v. Grant
, [2009] 2
    S.C.R. 353 leads to the exclusion of this evidence.

THE CROWNS POSITION

[27]

Counsel for the respondent Crown summarizes his
    arguments for dismissal of the appeal as follows:

(i)

The sheriffs officers entered the apartment
    pursuant to their statutory duty to enforce a facially valid eviction order,
    and thereafter conducted a lawful search of the apartment in order to provide
    the landlord with possession of the apartment free of persons and pets.  That search afforded them a plain view
    discovery of the two firearms cases.

(ii)

The police thereafter entered the apartment with
    the implied consent of the landlord, who had re-acquired possession of the apartment
    through the eviction process.  As the
    landlord had come into possession of the appellants personal possessions by
    operation of law, and the police had been called for assistance, the police had
    the implied consent of the landlord to open the two firearms cases in order to
    determine whether they posed a potential liability.

(iii)

In any event, the summary conviction appeal court
    judge correctly concluded that the admission of the impugned evidence would not
    bring the administration of justice into disrepute.

[28]

There is no issue between the parties that the
    sheriffs officers entered the apartment on the authority of a valid eviction
    order.  The Crown, therefore, submits
    that the execution of the eviction order objectively diminishes the appellants
    expectation of privacy in his apartment.  The sheriffs officers were obliged to walk through the apartment to
    ensure that it was vacant before turning the premises over to the
    landlord.  The discovery of the gun cases
    was a product of that exercise and prompted the landlord and sheriffs officers
    to call the police.

[29]

According to counsel for the Crown, the police
    officers had the implied consent of the landlord to enter what was a
    repossessed apartment.  The police entry
    was therefore not unreasonable.

[30]

Under s. 42 of the
Tenant Protection Act
, a landlord must store the personal property
    of an evicted tenant at a proximate location for a period of 48 hours to give
    the tenant an opportunity to collect his belongings.  From this, the Crown reasons that in carrying
    out his obligation to take an inventory of the evicted tenants personal
    property, he would be entitled to open the gun cases.  In these circumstances, the appellant would have
    a diminished expectation of privacy in the contents of the gun cases.

[31]

The police in opening the gun cases did so with
    the landlords implied consent.  When
    they discovered the guns, they closed up the cases and took appropriate steps
    to obtain a search warrant.

[32]

In the alternative, counsel for the Crown argues
    that the police were justified in opening the gun cases on the basis of exigent
    circumstances although he concedes that the Superior Court judges conclusion
    in this regard was perhaps generous[s].  In oral argument, counsel for the Crown said he preferred the
    description pressing circumstances rather than exigent circumstances.

[33]

Crown counsel submits that the police had been
    called to the apartment of an evicted tenant to deal with a situation involving
    what appeared to be firearms.  The
    uncertainty of what was in the gun cases raised a concern for safety.  To address the concern for safety, the police
    officers were justified in opening the cases.  When they discovered the guns, they closed the cases, secured the
    premises and took steps to obtain a search warrant.  However, the Crown concedes that before the
    police opened the cases, they did not have a basis to apply for a search
    warrant and were not then engaged in a criminal investigation.

[34]

Finally, the Crown submits that if there was a
    breach of s. 8, the evidence should not be excluded under s. 24(2) of the
Charter
.

ANALYSIS

(i)        The Law

[35]

There does not appear to be any case of this
    court or the Supreme Court of Canada directly on point.  Similarly, we were not cited any authority
    from other provincial appellate courts that addressed these circumstances.  The two most relevant cases appear to be
R. v. Mercer
(1992), 7 O.R. (3d) 9 (C.A.)
    and
R. v. Buhay
, [2003] 1 S.C.R.
    631.

[36]

In
Mercer
,
    a hotel maid entered a suite with a Do Not Disturb sign on the door for the
    purposes of cleaning the suite.  When
    looking into a closet for a missing pillow, she found a pillowcase containing a
    large sum of money.  The manager was
    called to the suite.  He observed the
    money and a brown, waxy block.  The
    police were called.  When the police
    arrived, they looked into the pillowcase and found $6,900 and what they
    believed was a block of cannabis resin.  The money and block of cannabis resin were placed back in the closet
    with the intention of getting a search warrant.  When the appellants returned to their suite, they were arrested.

[37]

Arbour J.A., writing for the court, found that there
    was a breach of s. 8.  She concluded at
    p. 15 that there was a reasonable expectation of privacy in a rented hotel
    suite:

I am not persuaded that hotel guests awareness that
    cleaning staff will enter their rooms at least daily removes the reasonable
    expectation of privacy.  Objects not left
    in plain view or stored in areas which do not require daily maintenance, such
    as inside drawers, closets, toiletry bags, briefcases and suitcases, can be
    reasonably expected to remain private despite access to the room by hotel staff
    for cleaning purposes.

[38]

The police officers justified their actions on
    the basis that they entered the suite and searched the closet with the hotel
    managers consent.  Arbour J.A. addressed
    the issue of consent as follows at p. 16:

[I]t is, in my view, more useful in the
Charter
context to determine whether, in
    the particular circumstances of a case, the consent given by a third party,
    which led to an invasion of the suspects privacy by agents of the state, was
    an acceptable substitute for the absence of prior judicial authorization.

[39]

Arbour J.A. concluded at p. 19 that there was no
    issue of urgency as follows:

There was no urgency compelling a warrantless search
    in this case.  The purpose of the entry
    by the police was to verify the hotel managers suspicion that something illegal
    had taken place in the room.  The
    respondent conceded that the police could not have obtained a search warrant
    because they had insufficient grounds.  In such a case, the avenues open to law enforcement authorities are to
    continue to investigate by methods less intrusive than a search and to seek to
    obtain a search warrant should the proper grounds upon which to do so
    materialize.

[40]

After doing a s. 24(2) analysis, the court did
    not exclude the evidence.

[41]

In
Buhay
,
    marijuana, rolled in a sleeping bag, was left in a bus terminal locker.  Security guards reported that they smelled
    the odour of marijuana emanating from the locker and advised the bus line.  A bus line employee opened the locker and the
    security guards found the marijuana.  They returned the sleeping bag and marijuana to the locker and called
    the police.  When the police arrived,
    they also smelled the marijuana and the bus employee opened the locker.  The police seized the marijuana.  The appellant, who rented the locker, was
    arrested.

[42]

By the time
Buhay
found its way to the Supreme Court, Arbour J. was on the court and wrote the
    reasons for judgment.  She held that the
    appellant had a reasonable expectation of privacy in the rented locker, stating
    at para. 21:

The appellant had control and possession of the
    lockers contents through possession of the key.  Although he did not own the locker, and
    although it remained the property of the bus companies, the appellant did pay
    the required fee to rent the locker for his exclusive use for a particular
    period of time.  Through the use of a
    key, the appellant had ability to regulate access to the locker for the rental
    period.  Moreover, the signs on the
    lockers made no mention of the possibility that they might be opened and
    searched.  The key holder would, in my
    view, have a subjective expectation of privacy and this expectation is
    objectively reasonable.  Indeed,
    generally, the purpose for renting a locker in such a location is to secure
    ones belongings against theft, damage, or even the simple curiosity of
    others.  A reasonable person would expect
    that his or her private belongings, when secured in a locker that he or she has
    paid money to rent, will be left alone, unless the contents appeared to pose a
    threat to the security of the bus depot.

[43]

The court concluded in
Buhay
that the initial search by the security guards did not
    infringe s. 8, because they were not agents of the state.  However, the opening of the locker by the
    police and the taking of the contents constituted a search and seizure  the intervention
    of the guards did not destroy the reasonable expectation of privacy.  The search was unreasonable; there were no
    exigent circumstances and the search was not authorized by law.  The plain view doctrine was inapplicable,
    as without a warrant, the police could lawfully enter the bus station but not
    the locker itself.

[44]

Arbour J. upheld the trial judges decision to
    exclude the evidence under s. 24(2) of the
Charter
.

[45]

I now turn to the case at bar.

(ii)       Did the appellant have a reasonable expectation of privacy in
    the apartment?

[46]

There was an agreement in writing between the
    appellants girlfriend (who was the tenant) and the landlord that the landlord
    would not enforce the eviction order if the rent was paid in accordance with a
    payment schedule.  The trial judge found
    that the appellant had an honest belief that the eviction order would not be
    executed.

[47]

The execution of the eviction order was the
    result of mistaken instructions given to the sheriffs officers by the
    landlord.  In these circumstances, it
    seems to me that the appellant continued to have an expectation of privacy in
    respect of the apartment, which was objectively reasonable.

[48]

In my view, the execution of the eviction order
    on the inadvertent and mistaken instructions of the landlord cannot diminish
    the expectation of privacy of the appellant in the apartment, which was his
    home.  The fact that no steps had been
    taken to rescind the eviction order does not change the analysis.  The landlord had undertaken not to take steps
    to execute the order as long as the rent was paid.

(iii)     Did the appellant have a
    reasonable expectation of privacy in the gun cases?

[49]

The appellant retained his interest and privacy
    expectations in his personal property stored in his apartment.  Assuming that the landlord were acting under
    a valid eviction order, his building superintendent was under an obligation to
    keep the appellants belongings in a nearby place for 48 hours to permit the
    appellant to claim them.  In so doing,
    the landlord was required to respect the appellants privacy interest in his
    personal property.  If the landlord had a
    duty to make an inventory of the appellants property, such a duty did not
    require the landlord to open the gun cases.  A simple notation of two gun cases would have been sufficient.

[50]

The Crown argues that
R. v. Wint
(2009), 93 O.R. (3d) 514 (C.A.), in which an inventory
    search by police of an impounded car did not violate s. 8, is analogous.  In
Wint
,
    this court held at para. 15 that for inventory searches to be meaningful, the
    police must be able to search and itemize the contents of objects such as
    purses, wallets and bags like the one observed in this case, to determine their
    contents.  In my view, the privacy
    interest in the contents of an apartment home after an eviction are different
    and much greater than that in the contents of an impounded car, and the
    custodial role of the landlord is qualitatively different than that of the
    police.  In any event the circumstances
    in this case, given the landlords breach of the agreement not to proceed with
    the eviction process, are very different.

[51]

The Superior Court judge appeared to rely on,
    and the Crown advocates, the plain view doctrine because the gun cases were
    located in a room of the apartment where they could be readily observed  thus
    reducing the expectation of privacy.  While the gun cases were in plain view, the guns were not and I do not
    agree that the plain view doctrine is of assistance.

[52]

I am satisfied that the appellant had both a
    subjective expectation and an objectively reasonable expectation of privacy in
    the gun cases.

[53]

I now turn to the question of whether the
    conduct of either the sheriffs officers or police officers constituted a
    breach of the appellants s. 8 rights.

(iv)      The Sheriffs Officers

[54]

I agree with the submissions of the appellant
    that the sheriffs officers are state actors and their conduct is subject to
Charter
scrutiny.  That said, I do not find anything in their
    conduct which constitutes a breach of the appellants s. 8 rights.  The sheriffs officers were carrying out
    their statutory duties pursuant to an eviction order that was valid on its face.  Their role was to return the vacant premises
    to the landlord and it was within their authority to walk through the apartment
    and to check for people or animals.  The
    sheriffs officers were not engaged in a criminal investigation and, more
    importantly, they did not open the gun cases.  There was no unlawful search by the sheriffs officers.

(v)       The Police Officers

[55]

The trial judge and the Superior Court judge
    found justification for the conduct of the police in s. 141(2) of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43:

A sheriff who believes that the execution of an
    order may give rise to a breach of the peace may require a police officer to
    accompany the sheriff and assist in the execution of the order.

The trial judge said that [t]he police had a statutory
    obligation to assist the sheriff in matters concerning the potential breach of
    the peace, which includes public safety.  The Superior Court judge accepted this conclusion.  Also, the Superior Court judge found that,
    exigent circumstances justified the entry by the police, the opening of the
    gun cases and the securing of the premises as they did, prior to obtaining the
    warrant.

[56]

I disagree.  There were no exigent circumstances and, in particular, no threat of a
    breach of the peace.  There was no
    serious safety issue.  When the sheriffs
    officers and later the police arrived, neither the appellant nor his girlfriend
    were in the apartment.  Once the locks
    had been changed, the appellant could not access the gun cases.  The safety concern, if any, was not genuine
    and immediate.  The safety concern of the
    sheriffs officers, as found by the trial judge, was sufficient to explain why
    the police were consulted, but was not grounds for the police to open the
    cases.  To the extent that the police
    were acting pursuant to their common law duty to preserve the peace and prevent
    crime, in the circumstances  particularly the absence of any urgency  this
    common law duty does not excuse the police from their obligations under the
Charter
.

[57]

The landlord could not authorize the police to
    open the gun cases.  Neither express nor
    implied consent of the landlord justified the police in opening the gun
    cases.  The landlord could allow the
    police to enter the apartment and look around and while the gun cases were in
    plain view, the contents of the gun cases were not.  As indicated, the Crown concedes that, at
    that point, the police had no basis to obtain a search warrant.  The distinction has to be made between the
    right to be present and the right to search.  The police had the former, but not the latter.  I repeat what Arbour J. said in
Mercer
at p. 19:

The respondent conceded that the police could not
    have obtained a search warrant because they had insufficient grounds.  In such a case, the avenues open to law
    enforcement authorities are to continue to investigate by methods less
    intrusive than a search and to seek to obtain a search warrant should the
    proper grounds upon which to do so materialize.

[58]

I conclude that the conduct of the police
    officers in opening the gun cases constituted a breach of s. 8.

[59]

The appellant also argues that the police
    remaining in the apartment for several hours pending the arrival of the warrant
    was a further search and ongoing breach.  I do not agree.  The mere presence
    of the police in the apartment, including any plain view observations of the
    appellants other belongings, did not constitute a breach of s. 8.

(vi)      Should the evidence be
    excluded under s. 24(2) of the
Charter
?

[60]

The first factor for consideration, in
    accordance with the Supreme Courts direction in
Grant
, is the seriousness of the
Charter
-infringing state conduct.  The Crown submits that the police acted in good faith.  However, the fact remains that the appellant
    was subject to the entry to his home by police, at the behest of a landlord who
    had agreed not to engage the eviction process.  While that conduct cannot be laid at the feet of either the sheriffs
    officers or the police, the subsequent conduct of searching the gun cases by
    the police was without any lawful authority.  The police did not have the basis for obtaining a search warrant before
    opening the gun cases and there were simply no exigent or pressing
    circumstances to justify their acting as they did.  In my view, this conduct weighs in favour of
    excluding the evidence.

[61]

The second
Grant
factor is the impact on the
Charter
protected interests of the appellant.  The
    appellant enjoys a very high expectation of privacy in his home and in his
    personal property kept in his home.  The
    second factor favours exclusion.

[62]

The final
Grant
factor is societys interest in an adjudication on the merits.  The evidence here is both reliable and
    critical to the prosecutions case.  Counsel for the Crown appropriately argues that [g]enerally speaking,
    firearms related offences are serious.  While this court has often clearly stated that gun crime is very
    serious, it is usually in reference to gun violence.  Gun safety is clearly very important, but the
    offences of careless storage of firearms and ammunition are far less serious
    than violent crimes involving guns.  The
    less serious character of these offences is reflected in the appellants
    sentence, which was a suspended sentence and twelve months probation.  That said, the third factor does favour the
    admission of the evidence.

[63]

It is then necessary to balance the three
    factors  two in favour of exclusion and one in opposition to exclusion.  I conclude that the privacy interest of the
    appellant in the circumstances of this case is paramount and I would exclude
    the evidence.

DISPOSITION

[64]

For the above reasons, I would grant leave to
    appeal, allow the appeal and set aside the convictions and enter verdicts of
    not guilty on each of the charges.

RELEASED:

JL                                                    Robert
    P. Armstrong J.A.

JUL 12 2011                                 I
    agree John Laskin J.A.

I
    agree K. Feldman J.A.


CITATION:
R. v. Wills, 2011
          ONCA 468

DATE:  20110706

DOCKET: C48195

COURT OF APPEAL FOR ONTARIO

Moldaver, Simmons and Rouleau JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Richard Charles Wills

Appellant

Richard Wills, in person

Delmar Doucette, amicus curiae

Michal Fairburn, for the respondent

Heard and released orally: June 15, 2011

On appeal from conviction by Justice Michelle Fuerst of the
          Superior Court of Justice, sitting with a jury, dated October 31, 2007.

ENDORSEMENT

[1]

The appellant appeals from his conviction for first
    degree murder. The trial was conducted before Fuerst J. and a jury. It lasted
    for approximately 18 months.

[2]

The charge against the appellant related to the death
    of Ms. Linda Mariani, a woman with whom the appellant had been romantically
    involved for some years.

[3]

On June 7, 2002, the appellant turned himself in to the
    police and revealed that Ms.
Marianis
body was
    in his basement and had been there since mid-February of that year. In his
    testimony at trial, he claimed that she had died accidentally in a fall and
    that he had entombed her body as an act of love with a view to removing it to
    his cottage in Wasaga Beach where she had requested that she be buried.

[4]

The Crown presented a different theory, namely that Ms.
    Mariani was in the process of exiting the relationship and the appellant would
    have none of that. As a result, he decided to kill her. To that end, he bought
    a garbage pail and other supplies and planned to entomb her body after killing
    her in the hopes of escaping detection. Following Ms. Marianis death, the
    appellant took steps to mislead the police and others both as to his knowledge
    of her death and the whereabouts of her body. In addition, he tried to point
    the finger of suspicion at Ms.
Marianis
husband.

[5]

By its verdict, it is apparent that the jury rejected
    the appellants evidence and accepted the position put forward by the Crown.

[6]

The appellants
    appeal came on for hearing today. The appellant claimed he was unable to make
    submissions on account of his mental state. He provided no supporting medical
    evidence and has never provided the court with proper supporting medical evidence,
    despite having raised his alleged mental difficulties as far back as September
    2010. In the face of the appellants bald and unsubstantiated claims, we
    refused to grant his adjournment request and invited him to make submissions. He
    refused to do so, claiming that he was unable to make submissions. He was told
    by the court and amicus that this was his final opportunity to say what he
    wished in support of his appeal and he declined to make submissions.

[7]

The appeal was filed in 2007 and the appellant has appeared
    before the court many times. In his Notice of Appeal, the appellant has raised
    some 35 grounds of appeal. Some relate to evidentiary rulings; some to the
    conduct of the Crown and the trial judge; some to the charge to the jury; and
    others relate to the overall fairness of the trial. Some of the grounds allege ineffective
    assistance of counsel but the appellant has not filed any material to support
    his allegations despite being advised of this courts protocol for doing so.  Accordingly, the grounds relating to
    ineffective assistance must fail.

[8]

The appellant has not filed written submissions
    regarding any of the grounds of appeal raised. Ms. Fairburn on behalf of the
    Crown has filed a factum and done her best to address the various issues
    advanced by the appellant in his Notice of Appeal. We have reviewed her factum
    which includes excerpts from the trial proceedings and various rulings made by
    the trial judge. We have also reviewed other aspects of the record in
    preparation for todays appeal. Having done so, we do not propose to address
    the various grounds on an individual basis. Suffice it to say that we can
    detect no errors in the evidentiary or other rulings that would warrant
    appellate intervention, nor can it be said that the appellant did not receive a
    fair trial.

[9]

On our view of the record, the appellant viewed the
    court process with disdain and did everything he could to subvert it and make a
    mockery of the proceedings. He was not interested in receiving a fair trial or
    indeed any trial. His strategy from start to finish was to delay and obstruct
    the course of justice and derail the trial if possible. To that end, he hired
    and fired lawyers at will; he engaged in obstructive trial tactics that turned
    the trial process into an 18-month ordeal; he brought on countless motions that
    were largely devoid of merit and in many instances, frivolous and vexatious; he
    engaged in appalling courtroom antics and he did his best at every turn to bait
    the trial judge into declaring a mistrial or committing reversible error.

[10]

Fortunately, the learned trial judge saw through the
    appellants strategy and was able to rise above it. Although she was firm when
    necessary, and correctly so, she treated the appellant with respect and dignity
    throughout and did everything in her power to ensure that he received a fair
    trial. This took admirable restraint on her part for which she is to be commended.

[11]

As indicated, we are satisfied that the trial judges
    rulings on process were fair to both sides and her evidentiary rulings, which
    were largely discretionary in nature, disclose

no reversible error. Her
    charge was a model of clarity, fairness and balance and we are satisfied that
    the jury was properly equipped to carry out its duty.

[12]

In our view, the verdict is entirely reasonable and
    amply supported by the evidence. There has been no miscarriage of justice here.
    As we have said, the appellant received a fair trial and we see no basis for
    appellate intervention.

[13]

Accordingly, the appeal is dismissed.

Signed:           M. J.
    Moldaver J.A.

Janet
    Simmons J.A.

Paul
    Rouleau J.A.


CITATION:
Ranger v. Penterman, 2011
          ONCA 496

DATE: 20110706

DOCKET: C49077

COURT OF APPEAL FOR ONTARIO

Weiler, Rouleau and Karakatsanis JJ.A.

BETWEEN

Claude
          Ranger and Claudette Ranger

Plaintiffs (Appellants on Appeal)

and

Louis Penterman and Patricia Penterman (also known as
          Patricia Leigh McGowan)

Defendants (Respondents on Appeal)

Justin Bertrand, for the appellants

Guy R
é
gimbald,
          for the respondents

Heard:
May 2, 2011

Judgment Released:  May
          31, 2011

On appeal from the judgment of Justice Michel Charbonneau of
          the Superior Court of Justice dated June 4, 2008.

COSTS ENDORSEMENT

[1]

In allowing this appeal and granting judgment to
    the appellant, we ordered costs for both the appeal and the trial, subject to
    submissions by the parties.

[2]

With respect to the trial costs, the appellant made
    two very reasonable Rule 49.11 offers and should therefore be entitled to costs
    on a substantial indemnity scale subsequent to the date of the first offer. The
    respondents made no offers to settle. The fact that the respondents were
    self-represented is not a reason to deny the appellants substantial indemnity
    costs.

[3]

However, in our view, the amount requested is not
    proportionate to the amount in issue.

[4]

The trial costs to the appellants are therefore amended
    and fixed in the amount of $30,000. The appeal costs awarded shall remain fixed
    at $15,000.

Karen
    M. Weiler J.A.

Paul
    Rouleau J.A.

Karakatsanis
    J.A.


CITATION: Robson v. Robson
      Estate, 2011 ONCA 521

DATE: 20110714

DOCKET: C52878

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Simmons JJ.A.

IN THE MATTER OF the Bankruptcy of Paul Alexander Robson
          of the City of Toronto in the Province of Ontario

BETWEEN

Paul Alexander Robson
, Anti-Aging Holdings
          Limited,
RX Corporation
and Cellex-C International Inc.

Appellants

and

Tessis and Partners Receivers and Trustees Inc. as
          Trustee of the Estate of Paul Alexander Robson

Respondent

Paul Alexander Robson, appearing in person and for RX
          Corporation

Richard B. Swan and Harold Maltz, for the respondent

Heard:  July 12, 2011

On appeal from the decision of Justice Pattillo of the Superior
          Court of Justice (Commercial and Bankruptcy), dated August 27, 2010.

APPEAL BOOK ENDORSEMENT

[1]

At the outset of the appeal, the appellant handed up two documents, one
    a signed affidavit of Megan McLellan and the other an unsigned affidavit
    attached to a one paragraph affidavit of his. The latter is of no value and the
    former does not assist the appellant on the issues raised on this appeal.
[2]

The motion judges reasons are thorough and exemplary.  We agree with
    them.  The motion brought by the appellant under Rule 59 was properly dismissed
    as an abuse of process.
[3]

The appeal is dismissed.  Costs to the respondent in the amount of
    $17,500, inclusive of disbursements and all applicable taxes.


CITATION:
Royal Bank of
          Canada v. Slopen, 2011 ONCA 516

DATE: 20110712

DOCKET: C51189

COURT OF APPEAL FOR ONTARIO

Rosenberg, Simmons and Blair JJ.A.

BETWEEN

Royal Bank of Canada and Royal Trust Corporation of
          Canada

Plaintiffs (Respondents)

and

Jeffrey Mark Slopen and Wilson Walker LLP

Defendants (Appellants)

W. A. Kelly, Q.C., for the appellants

Milton A. Davis and J. Thomas Curry, for the respondents

Heard: May 3, 2011

On appeal from the judgment of Justice Jane E. Kelly of the
          Superior Court of Justice, dated October 6, 2009.

ENDORSEMENT

[1]

The principal submission by the appellant is that Kelly
    J. erred in failing to apply the doctrine of issue estoppel given the earlier
    finding by Abbey J. in the rectification application.  Assuming without deciding that the trial
    judge erred in that respect, that error had no effect on the outcome.  The trial judges finding, which is not
    disputed, that Mr. Slopen was negligent in failing to seek instructions on
    whether the bank wanted the mortgages to be registered on all three parcels of
    land did not depend on whether the respondents intended to have a mortgage only
    on Parcel 1 (as found by Abbey J.) or on all three parcels (as found by the
    trial judge).  The only way that the
    mortgage could be enforced is if it was registered on all three parcels of
    land.

[2]

But for the negligence of the solicitor, the
    respondents would either have not advanced the funds or would have obtained
    security on all three parcels.  In either
    case, the measure of damages is the same.  Had the respondents not advanced the funds, there would have been no
    loss.  Had the respondents decided to
    advance the funds, they would have done so only if the mortgage was registered
    against all three parcels.  Given the
    value of the three parcels, again, there would have been no loss.  The damage award cannot be limited solely to
    the value of Parcel 1.  Thus, we are
    satisfied that the trial judge did not err in finding the appellants liable and
    in her award of damages.

[3]

We have not been persuaded that the trial judge erred
    in choosing the Navigant Report over the PWC report. The trial judge explained
    why she accepted the Navigant Report and her decision was reasonable.

[4]

With respect to the interest award, the appellants
    raise two issues.  They submit that the
    trial judge erred in using the mortgage rate of 8.4 percent rather than the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43 rate which, over the period, was between 2.8 and 3.3 percent and erred in
    awarding compound interest.

[5]

The awarding of interest is a discretionary matter and
    an appellate court will not lightly interfere with the trial judges exercise
    of discretion:
Air Canada v. Ontario (Liquor Control Board)
, [1997] 2 S.C.R. 581,
    at para. 86 and
Murano v. Bank of
    Montreal
(1998), 41 O.R. (3d) 222 (C.A.), at p. 253.  The appellant has not established that the
    trial judge erred in principle in using the mortgage rate and awarding compound
    interest.  She provided reasons for those
    awards, that are supported by the record.

[6]

In
Confederation
    Life Insurance Co. v. Shepherd, McKenzie, Plaxton, Little & Jenkins
(1996), 88 O.A.C. 398 (C.A.), this court refused to award compound interest in
    a solicitors negligence case in the handling of a mortgage transaction.  The court reasoned, at para. 9, that compound
    interest should be reserved for cases where the defendant wrongfully kept the
    plaintiffs money to ensure that they did not profit. In our view, that decision
    has been overtaken by the decision of the Supreme Court of Canada in
Bank of America v. Mutual Trust Co.
,
    [2002] 2 S.C.R. 601 where the court held that compound interest could be
    awarded as compensation, in that case for breach of contract.  We can see no difference in principle between
    awarding compound interest in a breach of contract case and in a solicitors
    negligence case where, as here, the negligence is rooted in a mortgage
    transaction.  Different considerations
    might well apply in other types of negligence cases.

[7]

We agree with the decision of the Alberta Court of
    Appeal in a solicitors negligence case,
Pasko
    v. Willis
(2004), 357 A.R. 215 where, at para. 10, Hunt J.A. wrote as
    follows:  The evidence established that
    if the plaintiffs instructions had been followed, they would have earned
    compound interest.  Bearing in mind the
    time-value of money, the only way to properly compensate them on these facts is
    to award compound interest.

[8]

Accordingly, the appeal is dismissed with costs fixed
    at $20,000 inclusive of disbursements and H.S.T.

Signature:      M. Rosenberg J.A.

Janet
    Simmons J.A.

R.
    A. Blair J.A.


CITATION:
Schembri v. Way, 2011
          ONCA 528

DATE:  20110721

DOCKET: C53911

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Simmons JJ.A.

BETWEEN:

Gordon Schembri,
          Schembri Financial Limited, Leaf Construction Management Inc. and 1784652
          Ontario Inc.

Plaintiffs (Appellants)

and

Al Way, Jamesway
          Construction Corporation, Kingsley Financial Inc., Triumph Financial
          Holdings Inc., 1725030 Ontario Inc., Premier Project Consultants Ltd.,
          National Rent-All Inc., Terra-Tec Excavating,Oxford &       First St. Inc., Simcoe & Eastwood Avenue Inc. and 359 King Ontario Inc.

Defendants (Respondents)

James M. Wortzman, for the appellants

Heath Whiteley, for the respondents

Lorne S. Silver and Joseph
          Bellissimo, for the Receiver, Schwartz, Levitsky, Feldman Inc.

Heard:
July 11, 2011

On appeal from the order of Justice
          Ruth E. Mesbur of the Superior Court of Justice, dated June 24, 2011.

By the Court:

I

[1]

The appellant, Gordon Schembri, and the respondent, Al
    Way, were joint venturers in the purchase and development of certain
    properties.  They had a falling out and Mr.
    Schembri sued Mr. Way for misappropriation of jointly held assets.  A Receiver was appointed in that litigation
    and pursuant to court order directed to sell two of the properties acquired by
    the joint venture.  Those properties were
    located in Waterloo and London.  A third property
    in Oshawa was the subject of a separate motion.  Depending on the outcome of that motion, it would also be sold by the
    Receiver.

[2]

The properties were not sold under the initial sales
    process order made in January 2011.  Eventually the Receiver recommended an amended sales process that
    involved Mr. Way making a stalking horse offer on each property, an opportunity
    for both Mr. Way and Mr. Schembri to make a superior offer on the properties
    and in respect of Waterloo and London, a break fee payable to Mr. Way if he was
    not the ultimate purchaser of the property.

[3]

The Receivers proposal reflected the offer put forward
    by Mr. Way.  That offer was made after
    the Receiver had recommended acceptance of an earlier offer made by Mr. Schembri
    on the Waterloo property.  Mr. Schembris
    offer had been made in response to the initial sales order.  The Receiver changed his recommendation after
    receiving Mr. Ways offer and after Mr. Way had brought a motion to remove the
    Receiver.  Mr. Way abandoned that motion
    after the Receiver supported his offer.

[4]

Mr. Schembri opposed the Receivers recommendation.  He argued that the court should order the
    Waterloo property sold to him under the terms of the offer he had submitted in
    response to the initial sales process established in January 2011 and, that
    subject to the resolution of an outstanding issue relating to the Oshawa
    property, both Oshawa and London should be sold on the open market.

[5]

The motion judge accepted the recommendation of the
    Receiver and directed that the properties should be sold according to the
    amended sales process outlined by the Receiver in his fourth report.  Mr. Schembri appeals from that order.

II

[6]

The motion judges reasons are a model of clarity and
    concision.  We adopt and will not repeat,
    except as is necessary to these reasons, her description of the relevant events
    and her factual findings.

[7]

We accept the respondents and the Receivers submission
    that the motion judges decision to approve the recommendation of the Receiver
    and order the property sold according to the amended sale process was a
    discretionary one that attracts substantial deference in this court.  Applying that standard of review, we see no
    reason to interfere with the motion judges order as it relates to the Oshawa
    and London properties.

[8]

The Waterloo
    property, however, raises different considerations.  With respect to the motion judge, we are
    satisfied that she erred in exercising her discretion exclusively on the basis
    that the sales process recommended by the Receiver would maximize the financial
    return for the estate.  The motion judge
    was required to consider the entirety of the circumstances and, in particular,
    the conduct of the parties.

[9]

On the motion judges findings, the conduct of Mr. Way
    had a negative impact on the integrity of the court supervised sales
    process.  Mr. Way stood to gain from
    whatever financial benefit flowed to the estate from the sale of the Waterloo
    property.  His conduct, as it impacted on
    the integrity of the sales process, should have been given significant weight when
    deciding whether the Receivers recommendation to accept Mr. Ways proposal
    should be approved by the court.  Instead, the motion judge expressly stated that she was giving Mr. Ways
    conduct no weight.

III

[10]

It is common ground that Mr. Ways offer on the
    Waterloo property was financially more attractive than Mr. Schembris.  It would have returned significantly more to
    the estate than would Mr. Schembris offer.  If financial concerns were the only relevant factor there could be no
    questioning the motion judges exercise of her discretion.

[11]

In the course of her reasons, the motion judge made
    strong findings about Mr. Ways conduct.  She concluded that he had brought an entirely unwarranted motion to
    remove the Receiver for purely tactical reasons.  She further concluded that his conduct had
    given him a distinct and unfair competitive advantage over Mr. Schembri.  The relevant passages of her reasons are set
    out below.

[46]     Removing
    a Receiver is a serious matter.  Mr. Way
    had called the Receivers integrity into question, and this issue had to be determined.
From Mr. Schembris point of view, the
    removal motion was tactical, and designed to derail the sales process so that
    Mr. Way could gain an advantage in it.  To some extent, I tend to agree.

[47]     Before
    he moved to remove the Receiver, Mr. Way had learned in the settlement
    conference that Mr. Schembri wanted to buy the Waterloo property and had no
    real interest in the London property.  As
    Mr. Schembri explains it, he disclosed this information to Mr. Way because he
    thought the original sales process was underway, and since the Receiver had
    rejected his bid, Waterloo and London would be sold to the public under the
    terms of the original sales order.  Because the Receiver was obliged under the terms of the original sales
    order to discuss each partys offer with the other, Mr. Way also knew what Mr.
    Schembri was prepared to pay for Waterloo.

[48]
When
    I look at the timing of the removal motion, coupled with Mr. Schembris later
    unsolicited bids for the three properties, I see a tactical move to wrest
    control of the process from the Receiver, and to prevent Mr. Schembri from
    purchasing Waterloo or to force him to pay significantly more for it than its
    appraised value.

[49]     By
    the time Mr. Way launched his removal motion, he knew that Mr. Schembri wanted
    Waterloo, and knew what he was prepared to pay for it.  He also knew that Mr. Schembri was less
    interested in the other two properties.
With
    this knowledge, he was able to structure his unsolicited offers so that he
    would usurp Mr. Schembri from purchasing Waterloo, and would acquire the other
    two properties for less than he was originally prepared to pay, at least
    notionally.

[50]     While
    the Receiver is adamant its current recommendations are not tied to Mr. Ways
    withdrawing the removal motion, the optics of the two events occurring
    virtually simultaneously give one pause.  I have no reason to disbelieve the Receiver, particularly since the
    Receiver did not accept Mr. Ways original proposal but negotiated a far better
    outcome, both in terms of the costs of the removal motion and the issue of
    break fees.  That said, however, I
    understand Mr. Schembris feelings about motivations and process.  The issue, as I see it, is whether those
    feelings should outweigh the Receivers duty to maximize recovery for the
    stakeholders. [Emphasis added.]

[12]

Mr. Schembris conduct in the course of the sale
    process could not be criticized.  He had
    submitted a bid that complied with the terms of the original sale order made in
    January 2011.  That bid was higher than
    the two reliable appraisals (the first and third) that the Receiver ultimately
    obtained.  In all likelihood, the
    Receiver would have recommended acceptance of Mr. Schembris bid at the close
    of the first phase of the process authorized under the January court order but
    for an appraisal (the second) that suggested Mr. Schembris bid was well below
    market value.  That appraisal was
    ultimately discredited by both Mr. Way and Mr. Schembri.  Indeed, after the appraisal was discredited,
    the Receiver recommended acceptance of Mr. Schembris original bid, albeit
    outside the time limits imposed by the original order.  The Receiver changed his position only after
    Mr. Way moved to have him removed and made an offer on all the properties.

[13]

Mr. Way did not submit any bid for the Waterloo
    property under the timetable set out in the original court order.  He offered no explanation for his failure to
    bid and did not suggest that the original sale process that generated Mr. Schembris
    bid operated unfairly against him.

[14]

In summary, Mr. Schembri made a commercially reasonable
    offer on the Waterloo property in response to the first sale order and Mr. Way
    chose not to participate in that process.

[15]

Having determined that Mr. Schembri had acted in
    compliance with the process ordered by the court and that Mr. Way had effectively
    gained control over that process through the combined effect of a last minute
    offer and a meritless motion to order the Receiver removed, the motion judge
    went on to hold at para. 54:

But this is not about Mr. Schembri and Mr.
    Way.  Their bitterness and ill will
    toward one another is palpable and will no doubt continue and colour all their
    future decisions.  It is not the courts
    function to facilitate or enable their bitterness and anger.  Instead, the court must determine whether the
    Receivers proposal is in the overall interest of the estate and is
    commercially reasonable.  As an overall
    comment, I am satisfied the Receiver has made sufficient effort to get the best
    price for the properties.  There is no
    suggestion that the Receivers proposal would result in an improvident sale.

[16]

The motion judge indicated that both Mr. Schembri and Mr.
    Way had legitimate complaints (para. 57) about the sales process.  She did not identify Mr. Ways legitimate
    complaints.  We can see none.  The motion judge ultimately concluded at
    para. 76:

I recognize that Mr. Schembri takes the position
    Mr. Ways conduct should preclude the court from exercising its discretion in
    favour of his stalking horse proposals.
In
    looking at the overall benefits to the estate, however, I disregard this
    conduct in exercising that discretion.
I do, however, consider his conduct as a potentially relevant factor
    when it comes to exercising my discretion on the issue of costs of this
    motion.  I expect the parties costs
    submissions will address that conduct in the context of the courts expectation
    that parties will follow court orders scrupulously.  [Emphasis added.]

[17]

It may be appropriate to disregard Mr. Ways conduct
    if the proceeds of the sale were destined for independent third party
    creditors.  In that circumstance, the
    maximization of financial return could trump all other considerations.  However, in this case, the beneficiaries of
    the sale would be Mr. Way and Mr. Schembri, not independent third party
    creditors.  Subject to Mr. Schembris
    ability to succeed in the underlying litigation, Mr. Way had a much greater
    beneficial interest in the sale proceeds than Mr. Schembri.  To the extent that Mr. Ways bid on the
    Waterloo property produced a better financial result for the estate, it would put
    more money back into Mr. Ways pocket.

[18]

In our view, where the ultimate beneficiaries of a
    court ordered sale are the parties competing in that sale, their conduct in the
    course of the court ordered sale process may be a significant factor in
    determining what process should be followed.  The conduct of one or more parties becomes especially significant where
    it undermines the integrity of the court ordered process either by giving the
    offending party an unfair advantage in the process, or by compromising the
    appearance of the neutrality of the Receiver.  Mr. Ways conduct as described by the motion judge had both adverse effects.  It could not be disregarded in determining
    whether a sales process that favoured Mr. Way should be implemented by the
    court.

[19]

Giving due effect to Mr. Ways conduct, we would order
    that the Waterloo property be sold to Mr. Schembri in accordance with his
    bid.  The sale can be consummated without
    delay and the costs associated with that delay.  As Mr. Ways conduct is not relevant to the integrity of the process as
    it relates to the London and Oshawa properties, we would affirm the order of
    the motion judge in respect of those properties.  We agree that the process recommended by the
    Receiver and approved by the motion judge in respect of those properties has
    the advantages described by her.

[20]

The appeal is allowed and para. 1 of the Amended Sales
    Process attached to the order of Mesbur J. dated June 24, 2011 is varied in
    accordance with these reasons.

[21]

If the parties cannot agree on costs, they may file
    written submissions of less than five pages.  The appellants submissions should be filed within 14 days of the
    release of these reasons and the respondents submissions filed within 14 days
    of receipt of the appellants submissions.

RELEASED:  DD  JUL 21 2011

Doherty J.A.

John I. Laskin J.A.

Janet Simmons J.A.


CITATION: Turmel v. CBC (Dragons'
          Den), 2011 ONCA 519

DATE: 20110713

DOCKET: C53732 and C52849

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Simmons JJ.A.

BETWEEN:

John C. Turmel

Plaintiff (Appellant)

and

CBC (Dragons Den)

Defendant (Respondent)

John C. Turmel, acting in person

M. Philip Tunley and Paul Saguil, for the respondent

Heard: July 12, 2011

On appeal from the judgment of
          Justice Thomas R. Lofchik of the Superior Court of Justice, dated September
          27, 2010 (C52849) and the judgment of Justice Harrison S. Arrell of the
          Superior Court of Justice, dated April 19, 2011 (C53732).

APPEAL BOOK ENDORSEMENT

[1]

The appellant voluntarily agreed to go on the show.  In order to do so,
    he was required to and did sign a consent.  Paragraph 27 of the consent
    precluded the two actions he commenced.
[2]

The only issue on the appeal is whether it would be unconscionable for
    the court to give effect to the terms of the consent.  We are of the view that
    it would not be unconscionable.
[3]

The Contestant Guide alerted the appellant to read the consent for the
    detailed rules about the show.  Before the taping, the appellant was given
    ample time to read the consent and was free to ask for more time to review it.
    He did not ask for more time and signed the consent without expressing any
    concern about its terms.
[4]

Therefore, this appeal and the appeal in file C52849 are dismissed.
    Costs of this and the companion appeal to the respondent in the amount of
    $3,500, inclusive of disbursements and applicable taxes.


CITATION: Valesco v. North York Chevrolet Oldsmobile
      Ltd., 2011 ONCA 522

DATE: 20110719

DOCKET: C53267

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Simmons JJ.A.

BETWEEN

Eliazbeth Velasco, Samuel Velasco, Angela Velasco,
          Samuel Velasco, Leticia Leano Cootauco, Cristano Cootauco, Ruel Cootauco, and
          Eden Cootauco Ilagen

Plaintiffs (Appellants)

and

North York Chevrolet Oldsmobile Ltd. and North York
          Chevrolet Ltd.

Defendants (Respondents)

William G. Scott for the appellants

Van Krkachachovski and Anthony Cole for the respondents

Heard: July 14, 2011

On appeal from the judgment of Justice Thomas J. McEwen of the
          Superior Court of Justice dated January 5, 2011

By the Court:

[1]

The appellant Elizabeth Velasco was seriously injured on
    July 23, 2005 after the car in which she was riding was struck by two other
    vehicles that may have been racing. Those two vehicles were driven by Steven
    Denyer and Douglas Coombs, respectively.

[2]

In issuing a statement of claim on March 15, 2006 in
    relation to the accident, counsel for the appellants relied on a statement in
    the police report that Steven Denyer was owner of the vehicle he was driving at
    the time of the accident (the Denyer vehicle).

[3]

Denyers insurer, the Royal & Sun Alliance
    Insurance Company, denied coverage to Denyer but added itself as a statutory third
    party to the action. In October 2006, Royal & Sun Alliance delivered a
    pleading admitting that Denyer was the owner of the Denyer vehicle.

[4]

In January 2007, counsel for the appellants
    received a 732 page Crown brief that contained a motor vehicle licence plate
    search disclosing that, in fact, it was the respondents who owned the Denyer vehicle
    at the time of the accident. Although a law clerk reviewed the Crown brief for
    the purpose of assessing whether Coombs and Denyer were racing, the law clerk
    did not notice what the licence plate search revealed about the ownership of the
    Denyer vehicle. The licence plate search did not come to the attention of
    counsel for the appellants until January 2009 when they were preparing for
    Denyer's discovery. In May 2009, the appellants issued a statement of claim
    against the respondents, asserting a claim against them on the basis of their
    ownership of the Denyer vehicle.

[5]

On a motion for summary judgment to dismiss the action
    against the respondents because of the expiry of the relevant limitation
    period, the motion judge said he could not conclude that counsel failed to
    exercise reasonable diligence in this case prior to receipt of the Crown brief
    given the combined information in the police report and the Royal and Sun
    Alliance pleading. However, the motion judge went on to hold that appellants counsel
    should not have closed their minds to the issue of ownership of the Denyer
    vehicle based on that information and should have reviewed the Crown brief promptly
    upon its receipt with a view to determining the ownership issue.

[6]

It is not disputed that appellants counsel did
    not actually know that the respondents were the owners of the Denyer vehicle
    until January 2009.

[7]

However under s. 4 of the
Limitations Act
,
    2002,
S.O. 2002, c. 24, a limitation period begins to run on the date a
    claim is discovered.  And under s.
s. 5(1) of the Act, a claim
    is discovered on the earlier of, (a) the day the person with the claim
    discovers [among other things, that the act or omission that caused injury,
    loss or damage was that of the person against whom the claim is made], and (b) the
    day on which a reasonable person with the abilities and in the circumstances of
    the person with the  claim ought to have known of the matters referred to in
    clause [5(1)]a.

[8]

Accordingly, the issue for the motion judge was
    whether the solicitors for the appellants ought to have known that the respondents
    were the owners of the Denyer vehicle shortly after they received the Crown
    brief.

[9]

In our view, having regard to the combination of
    information appellants counsel had indicating that Denyer was the owner of the
    Denyer vehicle, it was unreasonable for the motion judge  to conclude that appellants
    counsel should have treated the ownership issue as a live issue upon receiving
    the Crown brief. That combination of information led the motion judge to
    conclude that appellants counsel acted with reasonable diligence prior to
    receiving the Crown brief. In our opinion, counsel for the appellants acted
    with reasonable diligence in continuing to rely on that information until
    contrary information actually came to their attention.

[10]

The appeal is therefore allowed and the order of the motion judge
    dismissing the action is set aside. In accordance with the agreement of
    counsel, costs of the appeal are to the appellants on a partial indemnity scale
    fixed in the amount of $7500 inclusive of disbursements and applicable taxes.

Signed: Doherty J.A.

John Laskin J.A.

Janet Simmons J.A.

RELEASED: DD July 19, 2011


CITATION:
Walcott v. De
          Lucia, 2011 ONCA 508

DATE: 20110711

DOCKET: C53345

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and Epstein JJ.A.

BETWEEN

Michael Keith Walcott

Appellant

and

William C. De Lucia

Respondent

Michael Walcott, in person

M. Scott Martin, for the respondent

Heard and released orally: July 7, 2011

On appeal from the judgment of
          Justice Paul Perell of the Superior Court of Justice, dated January 27, 2011.

ENDORSEMENT

[1]

The appellant, a self-represented litigant,
    appeals the judgment of Perell J. of the Superior Court of Justice dated
    January 27, 2011 granting summary judgment in favour of the respondent in a
    solicitors negligence action, thereby dismissing the appellants action.  In our view, the appeal must be dismissed.

[2]

The appellant claims that the properties in
    question were sold at depressed prices during power of sale proceedings through
    the negligence of the respondent solicitor, thereby preventing the appellant
    from recovering his investment in the properties.  However, as the motion judge indicated, the
    properties were sold in mid-February 2009 under power of sale by the first
    mortgagee.  The appellant knew of the
    power of sale proceedings from at least early June 2008 when the respondent solicitor
    provided him with a copy of the notice of sale.

[3]

Notwithstanding this knowledge, the appellant
    took no steps to contact the mortgagee to negotiate the protection of his
    interests or to acquire the right to step into the mortgagees shoes.  Importantly, from at least September 2008,
    the appellant was represented by litigation counsel (not the respondent).  He still took no steps in respect of the
    power of sale proceedings.

[4]

The appellant appears to be under the impression
    that if the respondent solicitor had registered a lien on the properties in
    question on his behalf, his interest would have been protected and the power of
    sale proceedings prevented.  This is
    incorrect.  The appellant had an
    unsecured investment in the properties in question.  On the record before the motion judge, there
    was no legal basis for the registration of a lien on the property in the
    appellants favour during the time that he was represented by the
    respondent.  In any event, to prevent the
    sale of the properties, the appellant would have been required to negotiate a
    pay-out of the debt owed to the first mortgagee.  There is no evidence that he was ever in a
    position to do so.

[5]

In all these circumstances, we agree with the
    motion judge that no genuine issue exists requiring a trial in respect of the
    respondent solicitors conduct.  It is
    most unfortunate that the appellant appears to have lost the entirety of his
    investment in the properties in question.  However, there is no basis in law to fix the respondent with
    responsibility for this loss.

[6]

The respondent shall have his costs of this
    appeal in the amount of $5,000, inclusive of disbursements and all applicable
    taxes.

M. J. Moldaver J.A.

E.A. Cronk J.A.

G. J. Epstein J.A.


CITATION: Wielgomas v. Anglocom Inc., 2011 ONCA 490

DATE: 20110704

DOCKET: C53157

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Karakatsanis JJ.A.

BETWEEN

Wieslaw Wielgomas

Plaintiff (Appellant)

and

Anglocom Inc. and Caisse Populaire
          Desjardins De Quebec

Defendant (Respondent)

Monika A. Liberek, for the appellant

Mary Delli Quadri, for the respondent

Heard and released orally: June 29, 2011

On appeal from the judgment of Justice Andra Pollak of the
          Superior Court of Justice, dated December 2, 2010.

ENDORSEMENT

[1]

This is an appeal from an order of the Honourable Justice A. Pollak
    rendered on December 2, 2010, staying the action because the court lacked
    jurisdiction
simpliciter
. In the action, the appellant, a resident of
    Ontario, alleged he had been injured by ice that fell from the premises owned
    and occupied by the respondent Caisse Populaire Desjardins de Québec.
[2]

He was first hospitalized in Quebec, and has been attended to by a
    number of physicians in Ontario after his return home.
[3]

The motion judge found that the appellant had not met his burden of
    establishing that his action had a real and substantial connection with
    Ontario. We agree.
[4]

The evidence the appellant tendered that the respondent was a member of
    a group of companies, some members of which operate and advertise in Ontario
    and all of whom may have the same treasurer, was insufficient proof that the
    respondent itself operates in Ontario.
[5]

Though the appellants financial position was not pressed in oral
    argument here, the motion judge did consider, in effect, whether Ontario was
    the forum of last resort given his financial position. The motion judge
    considered that the appellant has no assets, and very little money, but
    concluded that he could commence proceedings in Quebec, though it might be
    difficult for him to do so. She observed that there was no evidence that
    proceeding in Quebec would be more expensive than in Ontario.
[6]

The motion judge correctly concluded that the appellants financial
    position, and the damages that he did continue to suffer in Ontario, would not
    on their own establish a real and substantial connection. She observed that it
    would be unfair to force an entity that had absolutely no connection whatsoever
    to the Province of Ontario to mount a defence in Ontario instead of Quebec.
[7]

The motion judge applied the legal principles that apply in Ontario,
    weighed the evidence appropriately and arrived at the correct decision.
[8]

The appellant contends that the motion judges costs award of $25,547.28
    was not proportionate to the nature of the motion.
[9]

We agree. The motion judge recorded the costs of the two parties which
    reflect, roughly, a 4:1 proportion of moving party/responding party effort. She
    did not then consider this large discrepancy and instead simply ratified every
    penny of the moving partys request. We cannot see any basis for such a large
    discrepancy in the costs sought by the two parties.
[10]

Moreover, although the motion judge recognized and considered the responding
    partys precarious financial position in her reasons on the motion, she did not
    mention this as a factor in her costs analysis.
[11]

Accordingly, we grant leave to appeal on the issue of costs, allow the
    appeal on that issue, and reduce the costs award by half, to $12,750.
[12]

In all other respects, the appeal is dismissed.
[13]

The respondent is entitled to its costs of the appeal fixed at $5,000
    inclusive of disbursements and HST.
J.C.
    MacPherson J.A.
R.G.
    Juriansz J.A.
Karakatsanis
    J.A.