COURT FILE NO.: CV-20-00643593-00CP
DATE: 20220802
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANIELE RAPONI
Plaintiff
- and –
OLYMPIA TRUST COMPANY
Defendant
Garth Myers, Paul Bates, Serge Kalloghlian and David Milosevic for the Plaintiff
Ryan Morris and Daniel Szirmak for the Defendant
Proceeding under the Class Proceedings Act, 1992
HEARD: May 30, 2022
PERELL, J.
REASONS FOR DECISION
A. Introduction and Overview
[1] This is a motion to strike the evidence of an expert whose opinions were filed in support of the certification of a proposed class action under the Class Proceedings Act, 1992.[^1]
[2] Between 2008 and 2017, Fortress Real Capital Inc. and Fortress Real Developments Inc. (“Fortress Developments”) designed, promoted, and marketed syndicated mortgages for real estate projects across Canada. The immediate proposed class action concerns 54 land development projects and 69 syndicated mortgage loans marketed by Fortress Developments in the period between 2011 and 2017. The 54 projects failed, and the mortgage security proved inadequate for the 69 syndicated loans.
[3] The plaintiff in this proposed class action, Daniele Raponi, who was a Lender for the Collier Centre project, used his registered savings account to invest in one of Fortress Developments’ syndicated mortgages. In his proposed class action Mr. Raponi sues Olympia Trust, which was the custodial trustee for the Lenders on the 69 syndicated mortgages who invested in the syndicated mortgages using funds from their registered savings account.
[4] The thesis of Mr. Raponi’s proposed class action is that Olympia Trust breached fiduciary, contractual, and common law duties and is the cause of the putative Class Members’ losses because, to quote Mr. Raponi’s factum: “Olympia Trust was a critical gatekeeper without which [the Borrower] could not have accessed the capital it needed to finance its failed development.”
[5] Mr. Raponi’s principal allegation against Olympia Trust is that it failed to satisfy itself, before, at the outset, and throughout the approximately 200 advances of the 69 syndicated mortgages for the 54 projects that the syndicated mortgages were “fully secured” and “qualified investments” under the Income Tax Act[^2] and the Income Tax Regulations.[^3] More precisely, Mr. Raponi submits that before, at the outset, and throughout the approximately 200 advances made on the 69 syndicated mortgages that Olympia Trust failed to ensure that the amount of loan did not exceed the fair market value of the borrower’s property at the time of the advance under the syndicated mortgage.
[6] In support of his thesis, Mr. Raponi proffered the expert evidence of Edward Wells. Mr. Wells delivered reports in affidavits dated April 29, 2021 and February 7, 2022. On March 11, 2022, Mr. Wells was cross-examined (874 questions, 215 pages). On March 30, 2022, Olympia Trust brought a motion to strike the evidence of Mr. Wells. Olympia Trust’s motion to strike was heard on May 30, 2022 as a preliminary matter at the commencement of the certification motion.
[7] Olympia Trust submits that Mr. Wells’ evidence should be struck for three reasons.
a. First, Olympia Trust submits that Mr. Wells’ evidence was not impartial, and he rather was a partisan non-independent witness.
b. Second, Olympia Trust submits that Mr. Wells’ testimony included irrelevant and unnecessary legal argument and opinions on the ultimate issues to be decided by this Court and was not restricted to conclusions or opinions beyond the Court’s expertise.
c. Third, Olympia Trust submits that Mr. Wells does not have special or particular knowledge or training to qualify him as an expert and should not be permitted to provide legal, tax, accounting, or property valuation evidence to this Court.
[8] For the reasons that follow, I grant Olympia Trust’s motion, and I strike the evidence of Mr. Wells in its entirety.
B. The Admission of Opinion Evidence
[9] Unless qualified as an expert or testifying about a matter of everyday human experience, a witness’s opinion about the facts is inadmissible; the general rule is that a witness does not opine but testifies as to facts he or she perceived.[^4] A witness that is qualified by education or experience to provide the trier of fact with an opinion that is outside the trier of fact’s knowledge and experience may provide an opinion to assist the trier of fact to come to his or her own conclusion.[^5] For a witness to be qualified as an expert, his or her opinion must be relevant and necessary to assist the trier of fact and not precluded by an exclusionary rule.
[10] As established by R. v. Mohan,[^6] the four criteria for the admissibility of expert evidence are: (a) relevance; (b) the trier of fact needs assistance to determine the truth of the facts; (c) the witness is qualified to express an opinion by virtue of study, training or experience; and (d) the absence of an exclusionary rule.[^7] For the four criteria to be satisfied, the witness must be shown to have acquired special or peculiar knowledge through experience or study in respect of the matters on which he or she will testify[^8] and as codified by rule 4.1.01 of the Rules of Civil Procedure[^9] and as required by the acknowledgement mandated by rule 53.03, the witness must be independent, objective, and impartial. There is a fifth criterion in cases in which the expert’s opinion is based on novel or contested science or science used for a novel purpose and, in these cases, the reliability of the underlying science for that purpose must be established.[^10]
[11] The opinion evidence must be necessary in the sense that the court needs the evidence to make its factual determinations in the case. Although experts are prohibited from providing opinion evidence on the ultimate issues, they should not usurp the functions of the trier of fact.[^11] It is inappropriate for a witness to provide evidence that constitutes argument on the issues that are to be decided by the Court.[^12] Legal argument and legal submissions belong in the party’s factum, usually authored by his or her legal representative, and may be struck out as an abuse of process if they are included in a witness’s affidavit.[^13] When an expert’s opinion approaches an ultimate issue, the trier of fact should exercise special scrutiny[^14] and neither a lay or an expert witness may provide an opinion on a pure question of law.[^15] The legal effect of domestic legislation is not a matter of evidence; it is the Court’s role to interpret legislation.[^16]
[12] As confirmed by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co.,[^17] there is a two-stage test for the admission of opinion evidence. In the first step, the threshold stage, the litigant proffering expert evidence must satisfy the factors from R. v. Mohan.[^18] In the second stage, the gatekeeper stage, the court makes a cost-benefit discretionary decision weighing the probative value of admitting the evidence against the potential adverse impacts of admitting the evidence, including the consumption of time, prejudice and the risk of confusing the trier of fact.
[13] To be qualified as an expert witness, the witness must be independent, objective and unbiased, and the witness should not be or become the advocate for the litigant who retained and called him or her to testify.[^19] In White Burgess Langille Inman v. Abbott and Haliburton Co.,[^20] Justice Cromwell for the Supreme Court explained that the independence and impartiality of the expert are to be considered at the threshold stage and not left as a matter going to the weight to be given to the expert’s testimony. Rather, an expert’s objectivity, independence, and non-partisanship are pre-conditions for the admissibility of his or her testimony.[^21] The disqualification inquiry is a fact-based inquiry having regard to the particular circumstances of the proposed expert and the substance of the proposed evidence.[^22] The court must take seriously the role of gatekeeper and scrutinize the expert evidence at the time it is proffered, and not allow too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility.[^23]
[14] Justice Cromwell stated that a proposed expert witness who is unable or unwilling to comply with these duties of impartiality is not qualified to give expert opinion evidence and should not be permitted to do so. Absent a challenge, the expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that the threshold test has been met. The burden is then on the litigant opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable or unwilling to comply with his or her duty. If the opponent meets this burden of showing a realistic concern, then the litigant proffering the witness must demonstrate that the expert is impartial, independent and unbiased. If this is not done, the expert’s evidence, or those parts of it that are tainted by a lack of independence or by impartiality, should be excluded.
[15] In some circumstances, an expert can be called to give evidence without complying with the duty of an expert as required by rule 4.1.01 of the Rules of Civil Procedure. In Westerhof v. Gee Estate,[^24] the Court of Appeal held that a treating physician could provide expert opinion evidence for the truth of its contents without complying with the duty of an expert: (a) based on the witness’s observation of or participation in the events at issue; and (b) provided that the witness formed his or her opinion as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events. The court retains its gatekeeper function in relation to the opinion evidence from participant experts.[^25] If the participant witness or non-party expert expresses his opinion beyond his or her participation in the events, the witness must comply with rule 53.03 to the extent of that departure.[^26]
C. Factual Background
[16] Mr. Wells was employed by Community Trust Company, a Registered Plan trustee for syndicated mortgage loans, during the period in which Olympia Trust agreed to act as Registered Plan trustee for the Fortress Developments Property syndicated mortgage loans.
[17] In 1988, Mr. Wells graduated from the University of Western Ontario with a B.A. He worked for 22 years in the investment, banking, and mortgage industries.
[18] In 2015, he joined Community Trust as a Business Development Manager, Investment Services. Community Trust is a competitor of Olympia Trust and is one of just five trust companies that permit clients to hold investments in syndicated mortgage loans. While at Community Trust, Mr. Wells worked on more than twenty syndicated mortgage loan transactions. He had a continuous account management role through the term of the syndicated mortgage beginning with overseeing whether the syndicator complied with Community Trust’s guidelines for acting as trustee for the syndicated mortgage, which guidelines included compliance with applicable legislation and industry standards. He oversaw the process for accepting an engagement to be a trustee for a syndicated mortgage.
[19] Mr. Wells left Community Trust in February 2020, and now works as a consultant assisting a real estate developer in complying with the legislation and guidance as it pertains to syndicated mortgages, including what constitutes a “qualified investment”.
[20] Mr. Wells was retained to provide an opinion as to the standard of care applicable to a reasonably prudent trustee in the circumstances of Olympia Trust.
[21] It was Mr. Wells’ opinion that s. 207.01(5) of the Income Tax Act sets out the standard of care applicable to trustees such as Olympia Trust requiring it “to exercise the care, diligence and skill of a reasonably prudent person to minimize the possibility that a trust governed by the registered plan holds a non-qualified investment.”
[22] It was an aspect of Mr. Wells’ opinion that a “fully secured” syndicated mortgage required when the mortgage loan is executed that the “as-is” value of the property be sufficient to pay back the amount owing on the syndicated mortgage and the other debt obligations ranking higher in priority to the syndicated mortgage. It was an aspect of Mr. Wells’ opinion that where a Borrower had been involved in prior syndicated mortgage loans, then a prudent trustee for the Lender should review the history of each prior syndicated mortgage loan to determine whether the loan remained a qualified investment throughout its term.
[23] Mr. Wells opined that the standard of care of a reasonable trustee/mortgage of a syndicated mortgage charged with ensuring that the mortgage is compliant for a registered savings account, entails the eleven duties, promises, and obligations that:
(1) Before agreeing to act, the trustee must review the syndicator’s marketing material to make sure the promotional material is not misleading, and the trustee must refuse to act as trustee if the syndicator’s marketing materials contain misrepresentations.
(2) Before agreeing to act, the trustee must identify risks to Lenders including the risk that the syndicated mortgage can be subordinated after its execution, and the trustee must refuse to act as trustee in those circumstances.
(3) The trustee must review the use to be made of the funds to be advanced to ensure that the use of the funds is exclusively to develop the property and not for other purposes such as consulting fees, marketing costs expenses, and sales commission, and the trustee must refuse to act as trustee if the use of the mortgage’s funds is for such purposes.
(4) The trustee must review the loan agreement to ensure that it was permitted to fulfill its obligation to communicate with and report to the Lenders.
(5) The trustee must obtain appraisals and not use opinions of value to determine the fair market value of the mortgaged lands.
(6) The trustee must determine if a proper appraisal of the mortgaged property uses an appropriate valuation method and must not advance funds for the mortgage relying on an appraisal based on the “residual method of valuation” or an appraisal based on future hypothetical assumptions.
(7) The trustee must refuse to act as trustee if the value of the syndicated mortgage plus prior encumbrances exceeds the appraised fair market value of the mortgaged land.
(8) The trustee must refuse to act as trustee if it knows or ought to know that the value of the syndicated mortgage plus prior encumbrances on any one of the prior syndicated mortgages plus prior encumbrances exceeds the appraised fair market value of the land mortgaged in that syndicated mortgage.
(9) The trustee must determine whether the syndicator was ever involved in syndicated mortgages where during the life of the loan, the amount of the loan plus the prior encumbrances exceeded the fair market value of the mortgaged lands and, if so, the trustee should refuse to be trustee.
(10) During the life of the syndicated loan, the trustee must conduct an annual review of each and every syndicated mortgage loan, to determine whether the fair market value of the land exceeds the value of the loan plus prior encumbrances and whether the borrower is in good standing in making its mortgage payments, and if the syndicated mortgage is non-compliant, the trustee must inform the Canada Revenue Agency (“CRA”) of the non-compliance.
(11) Before and during the life of the syndicated mortgage, the trustee must advise the Lender if the syndicated mortgage was at risk of being or of having become one in which the value of the syndicated mortgage and prior encumbrances exceeded the fair market value of the mortgaged land.
[24] In his reports, Mr. Wells opined on what was required of a trustee in assessing the appraisal reports. He opined about the proper use of “as is” appraisals and what is the nature of an “as is” appraisal in determining whether a syndicated mortgage is a qualified investment for the purposes of the Income Tax Act.
[25] In his reports, Mr. Wells criticized Olympia Trust’s use and due diligence in reviewing appraisals. Mr. Wells reviewed 34 valuation reports for the Fortress Developments projects. He reviewed these valuation reports to determine whether they were completed with the “residual method” or if they relied on material future hypothetical assumptions. He concluded that 27 of these reports relied on the “residual method” and on material future hypothetical assumptions to calculate value and opined that Olympia Trust was negligent in relying on these appraisals. Mr. Wells concluded that:
“[i]f Olympia relied on valuations that were not based on the “as is” value of the properties, this gives rise to a concern that the syndicated mortgage loans for these properties were not qualified investments from the outset. This is because these valuations would not have been capable of advising Olympia of the “as is” value of the Project, and thus Olympia would not have been able to determine whether the value of property exceeded the cumulative value of priority loans and the Fortress SML.”
[26] Mr. Wells was provided with information about the purchase price and syndicated mortgage loan value for the Capital Pointe, Soba, and The Kemp Fortress Developments projects. For each of these projects, Mr. Wells noted that the value of the syndicated mortgage loan was greater than the purchase price. Based on this data, Mr. Wells concluded that these investments were not “qualified investments” because “the value of the syndicated mortgage loan was greater than the value of the property at the time of the investment.” In Mr. Wells’ opinion, this should have been apparent to Olympia Trust before advancing funds from a registered savings account.
[27] In his reply expert’s report, Mr. Wells responded to Ms. Revol’s evidence as to Olympia Trust’s duties and obligations as trustee for syndicated mortgages where the Lender advances funds from a registered savings account. Ms. Revol is the Executive Vice President, Investment Account Services, of Olympia Trust. She began her career at Olympia Trust in 2002 and had a succession of increasingly senior roles at Olympia Trust in mortgages, operations and client services relating to registered savings accounts, including RRSPs, RRIFs, and TFSAs.
[28] Ms. Revol attached to her affidavit the opinions of value relied on by Olympia Trust in advancing funds for the Harmony Village project. Mr. Wells considered these opinions and opined that the Harmony Village project was not a “qualified investment”, and that this should have been apparent to Olympia Trust before advancing funds.
[29] Although Mr. Wells conceded that he did not have enough information at this stage to conduct this review for all the Fortress projects, he concluded that Olympia Trust should not have acted as trustee for any of the syndicated mortgages. In his opinion, a reasonably prudent trustee for Registered Plans in the position of Olympia Trust should not have agreed to act as a trustee for a Registered Plan if the syndicator (in this case, Fortress Developments) had been involved in prior syndicated mortgage loans held in registered savings accounts that are or were not qualified investments.
D. Discussion and Analysis
[30] Mr. Wells’ opinion is based on an amalgam of his interpretation of the requirements of the Income Tax Act, his understanding of what counts for an appraisal that may be used to determine whether a syndicated mortgage satisfies the requirements of a “qualified investment,” and his interpretation of the documents that constituted Olympia Trust’s relationship with the Lender advancing funds from a registered savings account.
[31] Mr. Wells went far outside his areas of knowledge and expertise and provided legal argument and opinion about legal issues for which the court did not need his assistance. He was not qualified to express his opinion and to the extent that he expressed an opinion, its worth was eliminated by the admissions, concessions, contradictions, inconsistencies, and mistakes revealed by his cross-examination, which also exposed his partisanship and the absence of independence required of an expert.
[32] Mr. Wells was not qualified and disqualified himself from being an expert witness. In particular:
a. Mr. Wells is not a lawyer, accountant, tax expert or in any way qualified to opine about the purposes or requirements of the Income Tax Act.
b. Mr. Wells is not a lawyer with the qualifications to opine about the interpretation of statutes, trust instruments, or contracts. Mr. Wells’ opinion was comprised of extensive legal argument about the interpretation and purposes of the registered savings account provisions of the Income Tax Act and about the interpretation and the legality of the contract documents between Olympia Trust and clients, who were Lenders using their registered savings accounts. These arguments were partisan arguments that Mr. Wells was not qualified to give.
c. Although Mr. Wells is not qualified to give expert legal advice to the court about domestic law or about appraisal methodology, Mr. Wells provided an opinion about the standard of care of a trustee acting for an investor lending funds from a registered savings account, but he strayed far beyond from providing evidence of what “is” the standard of care; i.e., what “is” the practice of a reasonably competent trustee, and he rather moved to opine about what he interpreted the standard “ought to be” having regard to his interpretation of the requirements of the Income Tax Act, the Income Tax Regulations and CRA’s guidelines and having regard to his interpretation and understanding of appraisal methodology and analysis. This was inadmissible opinion evidence.
d. Under cross-examination, Mr. Wells acknowledged that there was nothing in the Income Tax Act, the Income Tax Regulations, or the CRA’s guidance: (a) that defines “as is” value or requires its use; (b) that requires the use of a formal appraisal by an accredited appraiser. Further, he admitted that he did not know what Olympia Trust relied on in its engagement as a trustee for syndicated mortgage lenders investing using funds from a registered savings account.
e. None of the eleven legal responsibilities opined by Mr. Wells are supported by precedent case law and several of the duties are investment suitability requirements which Mr. Wells acknowledged that Olympia Trust was not required to undertake. Moreover, Mr. Wells acknowledged that Community Trust, Olympia’s competitor and another custodial trustee, disclaimed in its declaration of trust and related documentation with its clients, the eleven legal responsibilities that Mr. Wells opined were required of Olympia Trust.
f. Mr. Wells is not a qualified appraiser, and he has never performed a valuation or appraisal himself. He had never read the Canadian Uniform Standards of Professional Appraisal Practice (CUSPAP), which are the official standards governing the conduct of appraisals in Canada. Mr. Wells has never been qualified by any court as an expert on property appraisal or valuations. He is not qualified to critique an appraisal, and for his work at Community Trust, he depended on others to review the appraisals. Moreover, the qualifications of his subordinates were not disclosed in his reports to the court. Mr. Wells was supervising work that he was not qualified to do himself.
g. Nothing in the Income Tax Act, the Income Tax Regulations, or the CRA guidance he referred to in his affidavit requires the use of formal appraisals as opposed to “opinions of value” or mandates the use of a valuation providing an “as is” value. And Mr. Wells’ cross-examination demonstrated that he does not understand the relationship between an “as is” appraisal with residual valuation methods.
h. Mr. Wells expressed his opinion that all of the 69 syndicated mortgages were not qualified investments and that Olympia Trust ought never have agreed to be trustee notwithstanding that he reviewed only four syndicated Mortgages to come to the sweeping conclusion that all of them were unqualified.
i. Mr. Wells expressed an opinion that Olympia Trust was negligent; i.e., it breached the standard of care, which is an opinion that the court does not require his assistance and he expressed this opinion based on hypothetical information provided by Mr. Raponi’s counsel and notwithstanding that Mr. Wells did not actually know what investigations Olympia Trust had undertaken. Mr. Wells conceded that he did not know what steps Olympia Trust took or what valuations or other materials it relied on in determining that the syndicated mortgages were “fully secured” and therefore “qualified investments”.
j. On cross-examination, Mr. Wells conceded that he made significant unfounded assumptions and that he did not have sufficient information to arrive at the conclusion that the four projects he examined were not fully secured.
[33] Upon analysis, Mr. Raponi’s argument that Mr. Wells’ evidence should be admitted amounts to no more than a denial that Mr. Wells was not qualified to give his opinion and an assertion that Mr. Wells stayed within the scope of expertise gained from work experience particularly his five years at Community Trust. This “did/did-not” argument convinced me that Mr. Wells did indeed stray from his responsibilities as an independent unbiased expert to assist the court.
[34] In so far as Mr. Wells gave evidence as a participant-expert witness who formed his opinion as part of the ordinary exercise of his skill, knowledge, training and experience while observing or participating in the events, Mr. Wells’ evidence confirmed his partisanship. His participation was with respect to Community Trust’s decision not to be a trustee for Fortress Developments’ syndicated mortgages. He did not himself witness what Olympia Trust was doing and was obviously not involved in Olympia Trust’s decision making. He had no idea what Olympia Trust did or did not do in making its decisions. Mr. Wells was not a participant witness with respect to the events that are the subject of the proposed class action. Moreover, the probative value of this testimony was miniscule in comparison with its prejudicial value.
[35] The duty of an expert requires that he or she provide more to the Court than a restatement of the position of the party that retained them. In Carmen Alfano Family Trust v. Piersanti,[^27] the Court of Appeal stated:
It is not helpful to a court to have an expert simply parrot the position of the retaining client. Courts require more. The critical distinction is that the expert opinion should always be the result of the expert’s independent analysis and conclusion. While the opinion may support the client’s position, it should not be influenced as to form or content by the exigencies of the litigation or by pressure from the client. An expert’s report or evidence should not be a platform from which to argue the client's case.
[36] Mr. Wells was not a fact witness or a participant expert witness. It is my assessment that advertently or inadvertently, Mr. Wells allowed himself to become the partisan spokesman for Mr. Raponi’s legal argument and his argument of mixed fact and law.
[37] For the above reasons, I conclude that Mr. Wells’ evidence is not admissible in its entirety.
E. Conclusion
[38] For the above reasons, Olympia Trust’s motion is granted.
[39] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the submissions of Olympia Trust within twenty days of the release of these Reasons for Decision followed by Mr. Raponi’s submissions within a further twenty days.
Perell, J.
Released: August 2, 2022
COURT FILE NO.: CV-20-00643593-00CP
DATE: 20220802
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANIELE RAPONI
Plaintiff
- and –
OLYMPIA TRUST COMPANY
Defendant
REASONS FOR DECISION
PERELL, J.
Released: August 2, 2022
[^1]: S.O. 1992, c. 6. [^2]: R.S.C. 1985, c. 1 (5th Supp.). [^3]: C.R.C., c. 945. [^4]: R. v. Graat, 1982 33 (SCC), [1982] 2 S.C.R. 819. [^5]: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9; R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223; R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24. [^6]: 1994 80 (SCC), [1994] 2 S.C.R. 9. [^7]: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. [^8]: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 at para. 27. [^9]: R.R.O. 1990, Reg. 194. [^10]: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 23; R. v. Trochym, 2007 SCC 6; R. v. J. (J.-L.), 2000 SCC 51. [^11]: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 at para. 29. [^12]: Lockridge v Ontario (Director, Ministry of the Environment), 2012 ONSC 2316 at para. 123(Div. Ct.). [^13]: Gutierrez v The Watchtower Bible and Tract Society of Canada, 2019 ONSC 3069at para. 27; Enns v Goertzen, 2019 ONSC 4233 at para. 68. [^14]: R. v. J. (J.-L.), 2000 SCC 51at para. 37. [^15]: Brampton (City) v 1385127 Ontario Inc., 2019 ONCJ 193 at paras. 86, 89, 90. [^16]: Wagner v Canada (Attorney General), 2016 FC 412at para. 9; Brandon (City) v R.,2010 FCA 244 at para. 27. [^17]: 2015 SCC 23 (S.C.C.); Wright v. Detour Gold Corp., 2016 ONSC 6807. [^18]: 1994 80 (SCC), [1994] 2 S.C.R. 9. [^19]: Moore v. Getahun, 2015 ONCA 55, leave to appeal refused [2015] S.C.C.A. No. 119; Carmen Alfano Family Trust (Trustee of) v. Piersanti, 2012 ONCA 297, leave to appeal refused [2012] S.C.C.A. No. 309; Deemar v. College of Veterinarians of Ontario, 2008 ONCA 600. [^20]: 2015 SCC 23. [^21]: R. v. L.K., 2011 ONSC 2562; R. v. Docherty, 2010 ONSC 3628; United City Properties Ltd. v. Tong, 2010 BCSC 111; Deemar v. College of Veterinarians Ontario, 2008 ONCA 600. [^22]: Wright v. Detour Gold Corp., 2016 ONSC 6807 at para. 32; United City Properties Ltd. v. Tong, 2010 BCSC 111. [^23]: R. v J. (J.), 2000 SCC 51. [^24]: 2015 ONCA 206, leave to appeal refused [2015] S.C.C.A. No. 198. [^25]: Westerhof v. Gee Estate, 2015 ONCA 206 at para. 64. [^26]: Imeson v. Maryvale, 2018 ONCA 888at para. 53; Westerhof v. Gee Estate, 2015 ONCA 206 at para. 60. [^27]: 2012 ONCA 297at para. 108, leave to appeal refused [2012] S.C.C.A. No. 309.