Brummell v. Williams, 2014 ONSC 5733

PICTON COURT FILE NO.: CV-106-11

DATE: October 1, 2014

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GERALD GUY BRUMMELL
Plaintiff

– and –

ALEXANDER WILLIAMS

and

JENIFFER PERSAUD

Defendants

In Person

Mr. M.J. Pretsell, for the Defendants

HEARD: December 21, 2013;
January 30, 2014

DECISION ON MOTION FOR SUMMARY JUDGMENT

Abrams J.

Overview

1The Defendants move for an order for summary judgment dismissing the Plaintiff’s action. In the alternative, the Defendants move for an order requiring the Plaintiff to give security for costs of this action and a stay of proceedings until security is given.

Background

2The Plaintiff is suing the Defendant’s for $7,000,000 for “civil conspiracy”, “intentional infliction of emotional distress”, “trespass to land”, “invasion of privacy”, “surveillance”, “defamation”, “abuse of process”, “malicious prosecution alienation of affection”, “fraud”, “tortuous interference”, “negligence”, “battery”, “criminal assault”, “imminent harmful or offence contract”, “false imprisonment”, “intentional interference with prospective economic relations”, “intentional misrepresentation” and “engagement in ultra-hazardous activity”.

3In part, this action mirrors litigation that the Plaintiff commenced against the Attorney General for Ontario and several individually named police officers in the Coburg Superior Court, in court file number 11/11. On a Rule 21 motion, the Crown successfully moved to strike out the Plaintiff’s pleading as it failed to plead material facts to support the existence of the alleged torts. Moreover, the Crown contended that the claim was barred by application of the Limitations Act. Finally, the Crown asserted that the claim was an improper collateral attack on the findings of criminal proceedings brought against the Plaintiff and therefore constituted an abuse of process.¹

4On this motion for summary judgment, in addition to the materials filed by the parties, the court has the benefit of additional fact-finding² via direct examination and cross-examination of the parties, Crown Attorney Jodi Whyte, and certain police officers who investigated the Plaintiff in respect of the multi-count indictment that the Plaintiff was tried, convicted and sentenced on by Power J. in September, 2008.

Issues

(a) Should summary judgment be granted in favour of the Defendants?

(b) Alternatively, if the court finds that all or part of the action should continue, is an order for security for costs warranted?

Law

5On January 23, 2014, the Supreme Court of Canada released a decision which dictates the new test for summary judgment under Rule 20 of the Rules of Civil Procedure.

6In Hryniak v. Mauldin, 2014 SCC 7 (Hryniak), the Supreme Court of Canada considered when summary judgment can be granted on the basis that there is “no genuine issue requiring a trial”, as per Rule 20.04(2)(a).

7With respect to the issue of summary judgment, the Supreme Court of Canada stated, at para. 49:

49There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

8The overarching issue to be answered is “whether summary judgment will provide a fair and just adjudication.”³ The court went on to say that “the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.”⁴

Malicious Prosecution

9In essence, many of the Plaintiff’s claims against the Defendants fall under the umbrella of “malicious prosecution”, specifically: “false criminal allegations”, “conspiracy”, “false imprisonment” and “abuse of process”.

10The four-part test for malicious prosecution, as set out in Nelles v. Ontario, 1989 77 (SCC), [1989] 2 S.C.R. 170 and reiterated in the case of Miazga v Kvello Estate, 2009 SCC 51, [2009] S.C.J. No. 51, provides that a plaintiff must prove that the prosecution was:

i. initiated by the defendant;

ii. terminated in favour of the plaintiff;

iii. undertaken without reasonable and probable cause; and

iv. motivated by malice or a primary purpose other than that of carrying the law into effect.

11All four elements are required and if one fails, the test is not met.

12With respect to the first element of the test, the Defendants admit that they advised the police of their concerns regarding the Plaintiff which in turn gave rise to the criminal investigation.

13With respect to the second element, it is the Plaintiff’s onus to prove that the criminal proceedings terminated in his favour.

14The Defendants contend that the Plaintiff reached an agreement midway through the criminal trial whereby the Crown could read in facts in support of certain charges in the indictment and the Plaintiff would not dispute those facts but would invite the trial judge to make a finding of guilt. At the time, the Plaintiff had the assistance of amicus counsel after he dismissed the counsel he had retained and whose fees were paid by the Attorney General pursuant to a Rowbotham order.

15The Plaintiff contends that the Defendants’ argument relative to the termination of the criminal proceedings cannot succeed for two reasons, specifically:

(a) The proceedings did terminate in favour of the proceeding[sic]; and

(b) This argument is already before another court and therefore the Defendants’ argument, therefore this motion, is an abuse of process[sic]⁵.

16On this motion, the Plaintiff asserted adamantly in his materials, in his evidence and again during submissions that there was never any agreement or joint resolution reached with the Crown. I reject the Plaintiff’s position with reference to the transcript of the proceedings before Power J. and for the reasons stated below.

17In the Excerpt Of The Proceedings At Trial before Power J. on September 30, 2008, on page 1 beginning at line 3, amicus, Mr. Harnett, says:

MR. HARNETT: Your Honour, as amicus I would like to take the opportunity to indicate that it has come to our attention that Mr. Brummell wishes the matter to proceed in a slightly different manner than it has so far. I will summarize it and he can confirm whether this is true or not, but it might be easier for me to state it than for Mr. Brummell or for Madam Crown to do so. I understand that it is his desire that with respect to certain counts on this indictment that he relieve the Crown the necessity of calling any further evidence, and to the extent that no evidence is called on certain counts Madam Crown will read in what she anticipates witnesses would give as evidence and what other sources of evidence would reveal and Mr. Brummell will call no response and Your Honour will be invited to make a finding of guilt as a result. And then there will be joint submission as to the appropriate sentence in this matter as between Mr. Brummell and Madam Crown.

THE COURT: What will happen to the other matter, then?

MR. HARNETT: The other counts for which he’s been arraigned, you will be invited to dismiss those counts.

THE COURT: So there will be no change in the pleas.

MR. HARNETT: No change in the plea. It is going to be a matter that Madam will give the evidence by way of anticipated evidence and those facts will set out the essential elements of the offences for which – this is a procedure that has been contemplated – over the last hour-and-a-half of court time.

THE COURT: All right. Okay. Thank you. And, Mr. Brummell you heard what was said. Does that accurately reflect your position?

GERALD BRUMMELL: Yes Sir. (Emphasis added)

On page 14, beginning at line 18:

MS. WHITE: I would ask Your Honour, then, that there be findings of guilt on Counts 3, 4, 5, 6, 10, 12, 11, 13 and 14. The Crown calls no evidence on the other counts.

THE COURT: I have prepared some notes a long time ago on the essentials of each of the counts, and I just want to check my notes on these.

MS. WHITE: Thank you, Sir.

THE COURT: Okay. Before I make a decision on the guilt I just want to be satisfied, Mr. Brummell, that first of all you understand the nature of the arrangement that has been brought to my attention, in other words that the Crown will advise me of the evidence it has with respect to the counts that I have been referred to and that if I am satisfied that the evidence meets the requirements of the essentials of the counts concerned, you not having called any evidence on the stand, that if I am satisfied that all the essentials are there I can make findings of guilty. Do you understand that, sir?

GERALD BRUMMELL: Yes.

THE COURT: Okay. And I have to be assured that the agreement that has been reached is an agreement that was reached voluntarily in the sense that there has been no undue duress or threats made to you.

GERALD BRUMMELL: No threats, Sir.

THE COURT: Okay. And you understand that by entering into this agreement you have forfeited or given up your rights to a full trial on these counts.

GERALD BRUMMELL: I do, Sir.

THE COURT: You understand that if any arrangement is made between you and the Crown with respect to the appropriate sentences to be given with respect to these counts that I am not bound by that agreement, but that the law being that if I am satisfied that the agreement is an appropriate one I should accept it but I am not bound by it.

MR. HARNETT: I have explained to him, Your Honour, that you’ll give very due weight and attention to what is being proposed and that this proposal also has been reflected to some significant degree by pre-trial discussions that took place with your brother, Justice Byers, and as a result, it will have extra weight that will be accorded to it.

THE COURT: All right. I am not indicating to you, sir, that I am not going to accept it. I just want you to know that I am not bound to accept that agreement. Do you understand that?

GERALD BRUMMELL: I understand that, Sir.

THE COURT: All right. Having reviewed my notes on the essential ingredients and having heard the submissions of Ms. Whyte and considering the evidence that I have already heard at this trial, I make findings of guilt with respect to Counts 3, 4, 5, 6, 10, 11, 12, 13 and 14. No evidence having be led with respect to Counts 1 and 2, 7, 8 and 9 and 15 and 16, I dismiss those counts on the grounds that no evidence has been led to substantiate the charges in question.

On page 33, beginning at line 28:

MR. HARNETT: All right. And with respect to the term of probation, there are terms that – as I’ve indicated already – have been placed on the table. Those are terms that should be revisited should circumstances change. For example, the proposal is that he is not to attend on Rednersville Road. Well the idea is that the Persauds should be free from Mr. Brummell, but should circumstances change – if they [the Defendants] move away or something along those lines – my former client is free to approach the Crown’s office and they will be prepared to exercise their discretion to agree to variations in either the conditional sentence or the probation. (Emphasis added)

On page 35, beginning at line 11:

THE COURT: All right. Now, Mr. Brummell, do you wish to say anything before I consider this matter? What I am going to do is go back to my office downstairs and try to work this out and make sure, number one, I am satisfied with it and two, if I am to state it as clearly as possible. So, Mr. Brummell, do you wish to say anything?

GERALD BRUMMELL: I believe Mr. Harnett has spoken for me, Sir.

Analysis

18I find as a fact that the criminal proceedings did not terminate in the Plaintiff’s favour. Amongst other consideration, the Plaintiff agreed to a term of probation to provide for a three year period of non-contact with the Defendants, which was also reflected in the conditional sentence that he received. There was in fact an agreement resulting in a joint submission on sentence that the Plaintiff took the benefit of. As a result, certain charges were dismissed against the Plaintiff, but that does not assist the Plaintiff in “climbing the hill of showing that charges were terminated in his favour”.⁶

19In addition to the excerpts of the proceedings before Power J., I accept the evidence of Crown counsel, Jodi Whyte, who explained the substance of the agreement and the process that led up to it. Moreover, with respect to the third element of the test, I accept Ms. Whyte’s evidence that reasonable and probable cause existed at the time the Crown commenced or continued the criminal proceeding. Further, I accept Ms. Whyte’s evidence that, based on her review of the prosecution, there was a reasonable prospect of conviction. Notably, Ms. Whyte was cross-examined by the Plaintiff at length regarding her review and assessment of the prosecution. I find as a fact that Ms. Whyte’s evidence was not diminished in any respect under cross-examination. To that end, the Plaintiff likewise failed to prove that the Defendants’ conduct in setting the criminal process in motion was fueled by malice. Rather, in reporting their concerns to the police, I find as a fact that the Defendants had an honest and a reasonable belief that the Plaintiff was harassing them.

20Thus, the Plaintiff cannot prove the second, third or fourth elements of the test for malicious prosecution.

Limitations Defence

21In addition to malicious prosecution, the Plaintiff claims against the Defendants for “invasion of privacy / surveillance”, “defamation”, “battery”, “criminal assault”, “trespass to land”, “intentional infliction of emotional distress”, “intentional misrepresentation”, “fraud”, and “negligence”.

Law

22Sections 4 and 5 of the Limitations Act, 2002, S.O. 2002 c. 24, provide that:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

23The Defendants contend that the presumption contained in section 5(2) makes it clear that a claim is discovered with reference to the criteria contained in section 5(1)(a), unless the Plaintiff can prove the contrary. Further, the Defendants assert that since they have pleaded the limitations defence, the Plaintiff must prove that the cause of action arose within the statutory limitation period.⁷

Analysis

24I find as a fact that the Plaintiff and the Defendants had no communication between the summer of 2003 and November of 2004.⁸

25I accept that the Defendants believed that the Plaintiff began harassing them in 2005.⁹

26As a result, I find as a fact that that the Defendants had no communications or dealings with the Plaintiff after 2005.¹⁰

27I find as a fact that that the Plaintiff moved out of the residence located at 1838 County Road #3 Rednersville Road, in Carrying Place, Ontario by the end of 2007, and never returned again.¹¹

28Thus, I find as a fact that that the latest the Plaintiff could have an action against the Defendants, based on the events that transpired between the parties, would have been December 31, 2007.¹²

29The Statement of Claim in this matter was issued by the Plaintiff on September 22, 2010 and, therefore, the Plaintiff failed to institute the proceeding within the two year limitation period.

“Invasion of Privacy / Surveillance”

30There are additional deficiencies with respect to the evidentiary foundation in support of the various claims advanced against the Defendants. Specifically, the Plaintiff claims against the Defendants for “invasion of privacy / surveillance” allegedly conducted on his home.¹³

31I find as a fact that at the Plaintiff’s examination for discovery he admitted that surveillance would have been stopped by 2007 as he was no longer living in the residence on Rednersville Road.¹⁴

32Thus, I find as a fact that any claim based on “invasion of privacy / surveillance” is time barred.

“Defamation”

33The Plaintiff is suing the Defendants for defamation.¹⁵

34At the Plaintiff’s examination for discovery he was asked the following question:

Q. “And is there anywhere else where you say he [meaning the Defendant Williams] defamed you within two years of the statement of claim being issued?”

A. “well … I have no knowledge of whether he has or not.”¹⁶

35Thus, I find as a fact that there is no evidence of defamation and any claims with respect to defamation would be time barred.

“Assault and Battery”

36The Plaintiff claims as against the Defendants for assault and battery.¹⁷

37At the Plaintiff’s examination for discovery he was asked the following question:

Q. “Again, the question though, personally they never laid a hand on you and physically assaulted you or caused harm to you in any way physically except for the incident we talked about with the snowmobile and the cages.”

A. “No. Never.”¹⁸

38The Plaintiff further claims that he hurt his leg when the Defendants erected tomato cages to prevent the Plaintiff from entering their property.¹⁹

39I find as a fact that the event as alleged occurred more than two years before the statement of claim was issued. Moreover, if the Plaintiff could establish liability, the damages, if any, would be de minimis,²⁰ as a matter of law.

40Thus, I find as a fact that there is no evidence in support of a claim for assault or battery and, in any event, such claims would be time barred.

“Trespass to Land”

41The Plaintiff claims against the Defendants for trespass to land.²¹

42At the Plaintiff’s examination for discovery he admitted that any trespass to land would have happened while he was in possession of the residence located at 1838 Rednersville Road, prior to vacating the property in 2007.

Q. “At paragraph 49 you allege that my clients trespassed on your property.”

A. “Umm hmmm”

Q. “You would agree with me that that would have happened when you were in possession of the land, that is the home was still in your name.”

A. “That my, that I have evidence of, yes.”

Q. “Yes. And that that would have been more than two years before the statement of claim was issued.”

A. “Yes.”²²

43Thus, I find as a fact that any claims based in trespass would be time barred.

“Intentional Infliction of Emotional Distress”, “Intentional Misrepresentation”, “Fraud”, and “Negligence”

44The Plaintiff also claims against the Defendants for “intentional infliction of emotional distress”, “intentional misrepresentation”, “fraud”, and “negligence”. I find as a fact that any elements of such claims would be based on events in 2005 or up to December 31, 2007, at the latest.²³

45I find as a fact that these claims are entirely without merit, there being no evidence before the court to substantiate them. Alternatively, they are time barred.

“Imminent Harmful or Offensive Conduct”, “Engagement in Ultra-Hazardous Activity”, “Interference with Expected Economic Relations and Torturous Interference”

46Finally, I find as a fact that the remaining causes of action set out in the statement of claim being “imminent harmful or offensive conduct”, “engagement in ultra-hazardous activity”, “interference with expected economic relations and torturous interference” are either not viable actions in Canada and / or the Plaintiff has failed to provide any evidence in support of same.²⁴

Additional Findings of Fact Touching Upon the Plaintiff’s Credibility

47I find as a fact that the Plaintiff befriended the Defendants in 2001 claiming to be a lawyer and Crown Attorney for the Paul Bernardo case. Moreover, he claimed he was a Queen’s University Law graduate and displayed a fictitious Queen’s University Law Degree on a wall in his home.²⁵

48I find as a fact that the Plaintiff admitted that he lied about being a lawyer, a Queen’s Law graduate and was subsequently convicted of passport fraud.²⁶

49I find as a fact that in February, 2005, the Defendant Persaud received from the Plaintiff a document purporting to be an “order of restraint of interference with a minor”, which effectively alleged that the Defendant Persaud was molesting the Plaintiff’s step-children.²⁷

50I find as a fact that the document alleges “criminal activity” by the Defendant Persaud and states that if she is “found to be in violation of this order”, that her “molestation of this child will be made public in all appropriate manners as is consistent under “Christopher’s Law” and as with all such offenders you will be punished to the fullest extent of any and all applicable laws.”²⁸

51I find as a fact that the Children’s Aid Society (“CAS”) subsequently confirmed that there was no merit whatsoever to the “order of restraint of interference with a minor” and that the Plaintiff had in fact tricked the CAS worker into signing the document, which was prepared by the Plaintiff.²⁹

52I find as a fact that the Plaintiff has been convicted of fraud, using forged documents, and procuring a fraudulent passport.³⁰

53I find as a fact the Plaintiff defrauded several individuals and banks out of hundreds of thousands of dollars.³¹

54I find as a fact that the Plaintiff has represented to people that he is an “e-commerce attorney” and called to the California bar and resided in California at one time.³²

55I find as a fact that the Plaintiff had never held a Canadian passport up to the time of the criminal trial before Power J.³³

Conclusions

56I am confident that the court has before it, on this motion for summary judgment, sufficient evidence to find the necessary facts and apply the relevant legal principles so as to resolve the dispute. To recall, in addition to the materials filed by the parties, the court has the benefit of addition fact finding via direct examination and cross-examination of the parties, Crown counsel and other police witnesses. In effect, the motion was a “mini-trial” of sorts which provided a proportionate, more expeditious and less expensive means to achieve a just result.

57With respect to the claims rooted in malicious prosecution, the plaintiff failed to prove the second, third and fourth elements of the test. Accordingly, there is no genuine issue for trial.

58With respect to the balance of the claims, they are: (a) time barred; (b) not supported by the evidence; or (c) not viable in law. Accordingly, there is no genuine issue for trial.

59The Plaintiff is a recreational litigant who appears to enjoy playing the part of a lawyer to the point of holding himself out as such for the purpose of committing criminal fraud. Having had the opportunity to assess the Plaintiff’s demeanor in court, both as a witness and as a self-represented litigant, I am of the view that his determination to bend the evidence and the law to his particular view is only limited by his imagination.

Held

60Summary judgment is granted in favour of the Defendants. There is no need to consider the Defendants’ pleading in the alternative.

Costs

61Cost submissions limited to 2 pages, double spaced, shall be filed with the court, within 30 days.

The Hon. Mr. Justice Brian Abrams

Released: October 1, 2014

Footnotes

1. 1See the judgment of O’Connell J., dated January 21, 2014.
2. 2At a preliminary step, Pedlar, J ordered direct examination and cross-examination as part of the summary judgment process.
3. 3Ibid at para. 50.
4. 4Ibid at para. 50. See also memorandum, dated January 28, 2014, prepared by Andrew Christie, counsel and manager of Legal Research Office of the Chief Justice for the Ontario Superior Court of Justice.
5. 5See para. 23 of the Plaintiff’s factum. The reference to “another court” pertains to the decision of O’Connell J., which was still under reserve on December 2, 2013, that being the first day of this two day motion. As O’Connell J. found, independent of the analysis undertaken in respect of this motion, at page five, para. 41: “Of more import is that the criminal proceedings did not terminate in the Plaintiff’s favour. Mr. Brummell did not appeal, but he did seek leave to appeal late in the game. That motion failed in December, 2013. The fact that he is seeking a further audience before the Court of Appeal is no reason for me to delay my judgment on this motion.” And further at para. 42: “The fact that a variety of charges were dismissed does not assist Mr. Brummell in climbing the hill of showing the charges were terminated in his favour. Amongst other considerations, he agreed to a term of probation to provide for a three-year period of non-contact with witnesses and alleged victims.”
6. 6To borrow the words of O’Connell J.
7. 7Charan Sian, Pira Sian v. Avtar Kooner, ArtherWeingarden [2012] ONSC 692. Alexis v. Toronto Police Service Board, [2009] 187 CRR (2nd) 194.
8. 8Affidavit of Alexander Williams, sworn November 14, 2013, paragraph 15.
9. 9Affidavit of Alexander Williams, sworn November 14, 2013, paragraphs 15, 16, 17, 18, 22, 23, 24, 28 and 34.
10. 10Affidavit of Alexander Williams, sworn November 14, 2013, paragraph 30.
11. 11Examination for Discovery of Gerald Guy Brummell transcript paragraphs 393 to 394 (pages 88 and 89).
12. 12Affidavit of Alexander Williams, sworn November 14, 2013, paragraph 36.
13. 13Statement of Claim issued September 22, 2010, para. 51.
14. 14Examination for Discovery of Gerald Guy Brummell transcript, paragraphs 393 to 396 (pages 88 and 89).
15. 15Statement of Claim issued September 22, 2010, para. 52.
16. 16Examination for Discovery of Gerald Guy Brummell transcript, paragraph 393 (page 89).
17. 17Statement of Claim issued September 22, 2010, para. 61.
18. 18Examination for Discovery of Gerald Guy Brummell transcript, paragraph 416 (page 94).
19. 19Statement of Claim issued September 22, 2010, para. 20.
20. 20Examination for Discovery of Gerald Guy Brummell transcript, paragraphs 188 and 189 (pages 40 and 41). The Plaintiff admitted that he never sought medical attention for the tomato cage that allegedly made contact with his leg.
21. 21Statement of Claim issued September 22, 2010, para. 49.
22. 22Examination for Discovery of Gerald Guy Brummell transcript, paragraphs 375, 376 and 377 (page 85).
23. 23Statement of Claim issued September 22, 2010. Affidavit of Alexander Williams, sworn November 14, 2013, paragrph 36.
24. 24Statement of Claim issued September 22, 2010.
25. 25Affidavit of Alexander Williams, sworn November 14, 2013, paragraph 6.
26. 26Examination for Discovery of Gerald Guy Brummell transcript, paragraphs 123 to 128 (page 28). See also Affidavit of Officer Darryl Foulkes, sworn November 4, 2013, paragraph 9.
27. 27Affidavit of Alexander Williams, sworn November 14, 2013, paragraph 20.
28. 28Affidavit of Alexander Williams, sworn November 14, 2013, paragraph 20, including letters from the Children’s Aid Society found at tab B.
29. 29Affidavit of Alexander Williams, sworn November 14, 2013, paragraph 20 and enclosed letters from the Children’s Aid Society found at tab B.
30. 30Affidavit of Crown Attorney Jodi White, sworn November 4, 2013, paragraph 2 and the indictment located at tab A. Further, transcript of Excerpt of the Proceedings at Trial before the Honourable Justice Power on September 30, 2008, at Picton, page 29.
31. 31Transcript of Excerpt of the Proceedings at Trial before the Honourable Justice Power on September 30, 2008, at Picton, pages 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14.
32. 32Transcript of Excerpt of the Proceedings at Trial before the Honourable Justice Power on September 30, 2008, at Picton, page 4. Notably, the Plaintiff’s mother testified at an early proceeding that her son never resided or worked in the United States, at any time.
33. 33Transcript of Excerpt of the Proceedings at Trial before the Honourable Justice Power on September 30, 2008, at Picton, page 10.