COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

United States of America v. Dixon,

 

2011 BCCA 225

Date: 20110510

Docket: CA037235

Between:

Attorney General of Canada, on behalf of the United States of America

Respondent

And

William Dixon

Appellant

Between

Minister of Justice

Respondent

And

William Dixon

Appellant

Before:

The Honourable Mr. Justice Mackenzie

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Chiasson

On appeal from:  Supreme Court of British Columbia, June 25, 2009,
(The Attorney General of Canada v. Dixon, Vancouver Docket No. 23234); and

On judicial review of: Canada (Minister of Justice), April 23, 2010 order of surrender.

Counsel for the Appellant:

I. Donaldson Q.C.

Counsel for the Respondent:

K. Swift and D. Majzub

Place and Date of Hearing:

Vancouver, British Columbia

April 7, 2011

Place and Date of Judgment:

Vancouver, British Columbia

May 10, 2011


 

Written Reasons by:

The Honourable Mr. Justice Chiasson

Concurred in by:

The Honourable Mr. Justice Mackenzie
The Honourable Madam Justice Saunders


 

Reasons for Judgment of the Honourable Mr. Justice Chiasson:

Introduction

[1]             Mr. Dixon appeals a June 25, 2009 order committing him for extradition to the United States of America and seeks judicial review of the April 23, 2010 decision of the Minister of Justice ordering him to be surrendered.

Background

[2]             Mr. Dixon worked as a telemarketer for International Brokers Limited (“IBL”) in Surrey, British Columbia.  It is agreed that, using the alias Bill Best, he made telephone calls to elderly persons in the United States and gave them false information about their prospects of winning lotteries.  The victims were induced to send money to IBL on the basis they ranked in priority in a lottery or had an extremely good chance of winning a lottery.  Reference was made to a lottery in New South Wales.  The victims received no money in return.

[3]             The Record of the Case included, inter alia, the evidence of elderly persons who had been contacted by Bill Best, fellow workers at IBL, accounting records.

[4]             During its operation, IBL was believed to have collected approximately $3,000,000.  Mr. Dixon was the company’s most successful salesman.

[5]             The extradition judge concluded:

[95]      There is some evidence before the court, an alleged conspiracy to defraud the victims by falsely advising them that they needed to send money to claim lottery prizes.  A jury of reasonable persons properly instructed could conclude that a conspiracy existed including Dixon, Laidlaw and Tylor at least.  A properly instructed jury acting reasonably could find that Dixon was a party to the unlawful tele-marketing, possession of property obtained by crime, attempted fraud and aiding and abetting in the commission of offences.

[6]             In his letter to counsel, the Minister expressed his conclusion as follows:

The extradition judge has determined that the conduct which underpins the American offences for which extradition is sought would be criminal had it occurred in Canada. I have considered both separately and cumulatively, all of the submissions which you have made on Mr. Dixon’s behalf and conclude that his surrender would not be unjust or oppressive or contrary to s. 7 of the Charter under all of the circumstances. I am also satisfied that surrender would not unjustifiably violate Mr. Dixon’s s. 6(1) Charter rights and that there are no other considerations which would justify ignoring Canada’s obligations under the treaty with the United States.

Position of the parties

Extradition

[7]             Mr. Dixon advances one argument on his extradition appeal:  there was no evidence on which a jury reasonably instructed could conclude that he knew the representations he made were false.

[8]             The United States asserts the judge’s conclusions were reasonable and not subject to this Court’s intervention.

Surrender

[9]             Mr. Dixon contends the Minister erred in his assessment of the factors directed to be considered by the Supreme Court of Canada in United States of America v. Cotroni, [1989] 1 S.C.R. 1469 and that the Minister erred in determining that surrender would not be unjust or oppressive.

[10]         The Minister restates the issues as whether the Minister’s decision that surrendering Mr. Dixon would not unjustifiably violate his rights under s. 6(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 was reasonable and whether the Minister’s conclusion that surrender would not be unjust or oppressive was reasonable.

Discussion

Committal

[11]         I shall deal first with the committal order.

[12]         Mr. Donaldson, counsel for Mr. Dixon, fairly and frankly conceded that the slope for success on this appeal essentially is vertical.  This Court will not interfere with a committal order unless the judge’s conclusions are unreasonable or cannot be supported on the evidence:  United States of America v. Constanzo, 2009 BCCA 120.

[13]         In this case, the committal judge referred to the appropriate authorities and principles and extensively reviewed the evidence.  He recognized he was obliged to undertake a limited weighing of the evidence (United States of America v. Ferras, 2006 SCC 33, [2006] 2 S.C.R. 77; United States of America v. Graham, 2007 BCCA 345) and that the evidence was in large part circumstantial.  Referring to R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, the judge stated: “[t]he narrow issue to be determined is whether the circumstantial evidence could support an inference of guilt ...”.  The issue for a jury would be whether Mr. Dixon subjectively was aware that he was undertaking a prohibited act, in this case deceit or falsehood (R. v. Théroux (1993), 79 C.C.C. (3d) 449 (S.C.C.) at p. 460).

[14]         In his factum the appellant states: “[t]here was evidence [he made] statements, but no evidence he knew that the statements were false”.  It is correct that there was no direct evidence that Mr. Dixon knew that his representations were not true.  The question is whether there was circumstantial evidence on which a jury acting reasonably could conclude that he knew his representations were not true.

[15]         Mr. Dixon contends that if he is correct that there was no evidence of falsehood, he cannot be committed for possession of property obtained by crime.  He also asserts that the judge could not commit him for conspiracy because there was no evidence of an agreement. 

[16]         The extradition judge reviewed the evidence in the Record of the Case, including that of victims, an undercover operation, former employees of IBL who had worked with Mr. Dixon, information from IBL’s bank and officials of the New South Wales lottery.  The victims confirmed they sent money at the request of Bill Best.  The evidence of his co-workers included that all of the telemarketers used false names for a disguise and that Mr. Dixon used the false name Bill Best.  The operation was described as a “big scam”.  Everyone made the same representations.  A witness stated he knew this because “most of the employees were extremely loud and could be heard throughout the office”.  Some people worked as “openers”, that is, made the first contact and request for money; others were “closers” who followed-up with victims to make sure they sent the money.  Mr. Dixon was a closer.  Based on a sales chart posted in the office, he was the most successful sales person at IBL.

[17]         The judge quoted from Théroux:

... the Crown need not, in every case, show precisely what thought was in the accused’s mind at the time of the criminal act. In certain cases, subjective awareness of the consequences can be inferred from the act itself, barring some explanation casting doubt on such inference.  The fact that such an inference is made does not detract from the subjectivity of the test.

[Emphasis by extradition judge.]

[18]         The judge also reviewed the law of conspiracy and possession of the proceeds of crime.  It is not suggested that he erred in his appreciation of the law applicable to fraud, conspiracy or possession of the proceeds of crime.  Mr. Dixon’s case is that the evidence was not such that a jury reasonably instructed could commit him for trial for these offences.

[19]         Referring to the submission of counsel that it was “possible for Mr. Dixon when he advised Ms. Offredo that she had won an enhanced position in the lottery, that that statement was true, or at least not ... proven untrue”, in para. 87 the judge stated:

... With the combined evidence of the persons that I have mentioned, it is possible to accept that Mr. Dixon was blind to the illegitimate scheme for which he was working.  If he was blind, it was wilful.

Turning to counsel’s submission that Mr. Dixon’s representation to Ms. Bartlett that she had won a large sum of money in the New South Wales lottery, the judge stated in para. 88:

... On the whole of the evidence, I find it impossible not to infer that Mr. Dixon knew that it was a fraudulent scheme to solicit people out of their money and that his statements to Ms. Bartlett was false to his knowledge.

[20]         Mr. Dixon argues that these statements are inconsistent and cannot support a potential verdict of fraud.  In my view, the statements are not inconsistent.  The judge merely was examining the different basis on which a jury might find fraud:  wilful blindness to an illegitimate scheme or an inference drawn from the evidence as a whole.

[21]         In paras. 94 - 96, the judge summarized his conclusions:

[94]      I find that prima facie on the evidence the activities of IBL as a whole were fraudulent and that Dixon has been sufficiently identified as a telemarketer who participated knowingly in the fraudulent conduct.  In particular, using the name “Bill Best” he caused or sought to cause complainants such as Offredo, Bartlett, Green, Divall and Kicklighter to send money to IBL.  I find that Dixon persuaded the victims to send payments to IBL based on deceptive and false statements as a result of which the victims were placed at risk or suffered actual deprivation.

[95]      There is some evidence before the court, [of] an alleged conspiracy to defraud the victims by falsely advising them that they needed to send money to claim lottery prizes.  A jury of reasonable persons properly instructed could conclude that a conspiracy existed including Dixon, Laidlaw and Tylor at least. A properly instructed jury acting reasonably could find that Dixon was a party to the unlawful tele-marketing, possession of property obtained by crime, attempted fraud and aiding and abetting in the commission of offences.

[96]      I reject the argument on behalf of the respondent for the specific reasons I have mentioned, and generally because I find that a jury properly instructed…acting reasonably would find that, with Dixon’s knowledge and participation, IBL was entirely a fraudulent operation.

[22]         The evidence supports and Mr. Dixon in fact concedes that he made false statements to victims that caused them to send money to IBL.  IBL was an entirely fraudulent operation based on the evidence of former employees who described its activities.  Mr. Dixon worked in a team as a closer.  He was the most successful sales person. 

[23]         In my view, there was ample evidence to support the conclusion of the extradition judge that a jury properly instructed and acting reasonably could find Mr. Dixon guilty of the offences for which he was committed. 

Surrender

[24]         Mr. Dixon recognizes that the decision of the Minister is entitled to considerable deference and that the standard of review is reasonableness (Nemeth v. Canada (Justice), 2010 SCC 56, para. 10; Lake v. Canada (Minister of Justice), 2008 SCC 23, para. 41).  The Court in Lake made it clear that “[r]easonableness does not require blind submission to the Minister’s assessment”.  The Minister must “apply the correct legal test”; he must carry out the proper analysis.  Mr. Dixon asserts that the Minister did not do so in this case.

[25]         This leads to the Minister’s consideration of the so-called Cotroni factors.  In Cotroni, the Court was examining extradition in the context of s. 6(1) of the Charter: “[e]very citizen of Canada has the right to ... remain in ... Canada”.  The Quebec Court of Appeal allowed Mr. Cotroni’s appeal from committal on the ground that extradition was unreasonable and disproportionate because Mr. Cotroni could be prosecuted in Canada without infringing his s. 6(1) Charter right.

[26]         It is clear that extradition does infringe on s. 6(1) of the Charter (Cotroni, p. 1482).  At 1488, La Forest J., writing for the majority, stated: “I see nothing irrational in surrendering criminals to another country, even when they could be prosecuted for the same acts in Canada”.  His analysis then turned to the requirement that, even if rationally connected to the objective of the legislation, the means of achieving the objective should impair as little as possible.  It was in this context and in the context of prosecutorial discretion that the so-called Cotroni factors for considering whether extradition should be refused because charges could be laid in Canada were enunciated. 

[27]         At 1498 La Forest J. discussed prosecutorial discretion and observed:

… Of course, the authorities must give due weight to the constitutional right of a citizen to remain in Canada.  They must in good faith direct their minds to whether prosecution would be equally effective in Canada, given the existing domestic laws and international cooperative arrangements.  They have an obligation flowing from s. 6(1) to assure themselves that prosecution in Canada is not a realistic option.  As the Court observed in R. v. Beare, supra, at p. 411, ‘if, in a particular case, it was established that a discretion was exercised for improper or arbitrary motives, a remedy under s. 24 of the Charter would lie . . . .’

[28]         He then listed factors that usually will affect the decision whether to prosecute in Canada or allow a Canadian citizen to be extradited as including:

‑           where was the impact of the offence felt or likely to have been felt;

‑           which jurisdiction has the greater interest in prosecuting the offence;

‑           which police force played the major role in the development of the case;

‑           which jurisdiction has laid charges;

‑           which jurisdiction has the most comprehensive case;

‑           which jurisdiction is ready to proceed to trial;

‑           where is the evidence located;

‑           whether the evidence is mobile;

‑           the number of accused involved and whether they can be gathered together in one place for trial;

‑           in what jurisdiction were most of the acts in furtherance of the crime committed;

–          the nationality and residence of the accused; and

‑           the severity of the sentence the accused is likely to receive in each jurisdiction.

[29]         La Forest J. made it clear that the list was not conclusive as did the Court in Lake:

[30]      How relevant each of these factors is to the determination of the appropriate jurisdiction for prosecution may vary from case to case. Nothing in Cotroni suggests that these factors should be given equal weight or precludes a conclusion that a single factor is determinative in a particular case. The list merely identifies some of the factors that will tend to favour either extradition or prosecution in Canada. To instruct prosecutorial authorities on how to decide whether to prosecute would deprive the concept of prosecutorial discretion of all meaning. The responsibility for deciding which factors are determinative lies with the authorities themselves; the list serves simply to highlight the relevant factors. The exercise of prosecutorial discretion will be interfered with in only the clearest of cases, such as where there is evidence of bad faith or improper motives. Absent such evidence, the infringement of an individual's s. 6(1) mobility rights upon surrender will not be unjustified merely because the Minister has decided, rather than prosecuting the individual in Canada, to defer to the foreign authorities seeking extradition.

[30]         La Forest J. continued at 1499:

            As Hanssen J. observed, at p. 134, “. . . it is apparent from an examination of the factors listed above that although a fugitive may not have personally performed any act in the foreign jurisdiction in furtherance of the crime with which he is charged, that jurisdiction, for a variety of reasons may still be the most effective place for him to be prosecuted.”

            As I noted earlier, the effective prosecution and the suppression of crime is a social objective of a pressing and substantial nature, and it is imperative today that this objective be effectively pursued on the international as well as on the national plane.  In doing this, I am satisfied that some infringement of the right of s. 6(1) is warranted.  Speaking specifically of transnational crimes, Hanssen J., in a passage with which I am in entire agreement, stated at p. 133:

            I am satisfied that this objective is of sufficient importance to warrant overriding the constitutionally protected right of a citizen to remain in Canada even when all of the alleged acts constituting the crime took place in Canada and also constitute a crime which can be prosecuted here.  A general policy of refusing to extradite our citizens in such cases would reduce the effectiveness of extradition as a major tool in combatting transnational crime.  The mere fact that a fugitive may be prosecuted in Canada does not necessarily lead to an effective and efficient prosecution even when all of the constituent elements of the crime occurred in Canada.

[31]         With this backdrop I turn to the circumstances of the present case.

[32]         In para. 17 of his factum Mr. Dixon began his submissions addressing the Cotroni factors as follows:

As the appellant submitted to the Minister, all of the following factors militate in favour of a domestic prosecution:

(a)        All the evidence in this case, other than that of the complainants, is located in Canada;

(b)        The fact that almost all of the evidence was obtained in Canada confirms that the investigation was conducted here;

(c)        The appellant never left Canada, and his only presence in the United States was a participant in telephone calls;

(d)        He was not a party to the offence(s) committed by others, and the evidence of the complainants is therefore non-contentious.  It is the evidence of Canadian witnesses previously involved with IBL which will be vital to a prosecution, all of which evidence is located in Canada;

(e)        The evidence of the complainants can either be admitted, or obtained by video link in a Canadian prosecution, while in an American prosecution evidence of witnesses located in Canada cannot be adduced by video;

(f)         It will be infinitely more difficult for the appellant to mount his defence in the United States as attempting to persuade defence witnesses to attend in the United States will both involve substantial expense, and many witnesses may be reluctant, or refuse to enter, the United States;

(g)        Given that both countries have an interest in fair trials, the appellant is more likely to receive a fair trial in Canada than in the United States;

(h)        The decision to prosecute the appellant in the United States was tactical, and will have the effect of depriving him of his right to a fair trial; and

(i)         A Canadian prosecution will most quickly, expeditiously, and fairly determine the appellant’s responsibility concerning the alleged conduct, without needing to transport witnesses and other evidence to the requesting state.

He then repeated essentially verbatim from his submissions to the Minister.

[33]         In his decision, the Minister had this to say:

You submit that Mr. Dixon’s surrender should be denied on the following bases:

•           Mr. Dixon should be prosecuted in Canada, as surrender to the United States would unjustifiably violate his rights under s. 6(1) of the Canadian Charter of Rights and Freedoms (the Charter). In addition to addressing the factors set forth in the Supreme Court of Canada’s reasons in United States of America v. Cotroni, [1989] 1 S.C.R. 1469, you also advance the following submissions in support of your s. 6(1) argument;

o          The prison conditions, the rate of incarceration and the severity of the sentences in the United States would violate his s. 7 Charter rights, and also contribute to justifying a conclusion that surrender would unjustifiably violate his s. 6(1) Charter rights;

o          The discretion of Canadian prosecuting authorities was exercised arbitrarily or improperly by handing Mr. Dixon’s prosecution off to the United States, particularly considering comments made by the Assistant United States Attorney (AUSA) in previous cases; and

•           Surrendering Mr. Dixon would be unjust or oppressive within the meaning of s. 44(l)(a) of the Act, on the basis of his personal circumstances, in particular, based on the repercussions for Mr. Dixon's family.

The Minister then set out verbatim the submission of Mr. Dixon as stated in para. 17(a) - (i) of his factum.

[34]         In his decision, the Minister advised that:

In this case, the documentary evidence submitted by the United States in support of the extradition request was provided to the Attorney General of British Columbia and the Attorney General of Canada (Competition Law Division), the competent authorities to conduct a prosecution against Mr. Dixon in this matter. Counsel for both Attorneys General considered the factors identified by the Supreme Court of Canada in Cotroni, supra, and concluded that the United States was the most appropriate jurisdiction for prosecution.

As the Minister of Justice acting under s. 40 of the Act, my role in the extradition process is essentially political in nature. As such, I have no authority to interfere with the exercise of prosecutorial discretion, nor do I have the authority to direct the relevant Canadian investigative authorities to pursue an investigation or to lay charges against him.

However, notwithstanding the conclusions of the relevant Attorneys General, I am required to ensure that the decision to prefer extradition over domestic prosecution does not unjustifiably violate Mr. Dixon’s s. 6(1) Charter rights (Cotroni, supra; Kwok, supra; Lake, supra).

[35]         The Minister then addressed a number of Mr. Dixon’s submissions and concluded that surrender in this case would not violate Mr. Dixon’s s. 6(1) Charter rights.  He stated:

Based on the totality of the factors, including those set out in Cotroni, supra, and the additional submissions that you have made, it is my view that surrendering Mr. Dixon to the United States would not unjustifiably violate his s. 6(1) Charter rights. I am satisfied that it is appropriate in the circumstances of this case to yield to the superior interests of the United States in prosecuting this matter.

[36]         In my view, Mr. Dixon invites this Court to do the impermissible:  substitute its assessment of the facts and the weight to be given to the Cotroni factors for that of the Minister. 

[37]         Mr. Dixon asserts that the Minister erred when he wrote:

Although all of Mr. Dixon’s conduct took place in Canada, the victims were all located in the United States.  The impact of the alleged offences was therefore exclusively felt in the United States.  Accordingly, I am also satisfied that the United States has the greater interest in prosecuting this case.

[38]         Mr. Dixon’s contends that insofar as his conduct was a crime in Canada, as a matter of policy, there is an impact in Canada.  Canada has an interest in upholding its laws.  In my view, the Minister was speaking practically and not philosophically.  His focus was on the victims, not on the law abstractly. 

[39]         The Minister also considered and rejected Mr. Dixon’s submission concerning the length of sentence Mr. Dixon might receive in the United States and his allegation that the discretion of Canadian prosecutors was exercised improperly.

[40]         The Minister noted that the relevant penalties in Canada and the United States are similar and observed that while Mr. Dixon might receive a longer sentence in the United States, this alone would not justify refusing to surrender.  He referred to ample authority which supports this observation.

[41]         The Minister acknowledged that claims of abuse of process are within his authority to consider whether Mr. Dixon’s Charter rights have been violated, but concluded that Mr. Dixon had provided “no evidence to support the allegation that Canadian prosecutors acted improperly or arbitrarily in their decision to not prosecute Mr. Dixon domestically”.  In my view, Mr. Dixon has provided to this Court no basis on which it could disturb the Minister’s finding.

[42]         I would not accede to Mr. Dixon’s first ground for judicial review.

[43]         Section 44(1)(a) of the Extradition Act states:

44. (1) The Minister shall refuse to make a surrender order if the Minister is satisfied that

(a) the surrender would be unjust or oppressive having regard to all the relevant circumstances;

[44]         Mr. Dixon contends that the Minister erred in concluding that surrender would not be unjust or oppressive.  The main focus of his contention is on the effect surrender would have on Mr. Dixon’s family.  In his factum, he urges this Court to:

... interpret the ‘unjust or oppressive’ test in s. 44 ... to include a consideration of the impact of surrender on the welfare of his family.  It is a section which Parliament has broadly worded to require the Minister to ‘hav[e] regard to all relevant circumstances’.

[45]         He calls in-aid other legislation and authorities that address somewhat similar language.  In particular he relies on Cheng v. Hong Kong (December 17, 1992) (Ont. Gen. Div.), appeal dismissed (1996), 109 C.C.C. (3d) 384 (Ont. C.A.)[1], wherein a warrant of committal under the Fugitive Offenders Act, R.S.C. 1985, c. F-32, which has been repealed, was quashed on an application pursuant to s. 16 of that Act.  The circumstances of the case were extreme.  The offender’s wife had attempted suicide and was unable to breathe without a ventilator, which required the offender to be the only caregiver of the couple’s child.  The circumstances of this case are very different.  In any event, the language of the enactments, while similar, is different.  I do not think that it is appropriate to import into s. 44(1)(a) considerations that Parliament has not specified.

[46]         Similarly, Mr. Dixon relies on provisions of the Immigration Act, R.S.C. 1985, c. 1-2 and The United Nations Convention on the Rights of the Child.  I would not import the language of the Immigration Act into s. 44(1)(a) and do not think that it is necessary to resort to the Convention when considering the applicability of s. 44(1)(a).

[47]          The Minister referred to United States of America v. Burns, 2001 SCC 7, [2001] 2 S.C.R. 283 and acknowledged that the personal circumstances of Mr. Dixon were a legitimate consideration for the exercise of his discretion.  He had the following to say:

With respect to the impact of surrender on his family, while I accept that extradition may impose some hardship on his spouse, I note that persons accused of crimes in Canada cannot generally escape prosecution on the basis that it would create difficulty for their families. (United States of America v. Taylor (2005), 258 D.L.R. (4th) 119 (B.C.C.A.); R. v. Spencer (2004), 241 D.L.R. (4th) 542 (Ont. C.A.); United States of America v. Thomson, [2005] O.J. No. 762 (Ont. C.A.).

In my view, it would inequitable that Mr. Dixon could escape a trial on the crimes alleged against him on the basis of his wife’s needs when accused persons in Canada must generally face prosecution regardless of the negative effect that a prosecution would have on their family. The offences alleged against Mr. Dixon are very serious, and involve multiple victims, including some of the most vulnerable people in society: the elderly. It is my view that to deny Mr. Dixon’s surrender in these circumstances would violate Canada's treaty obligations, undermine the important interest of society in ensuring that persons wanted for criminal offences are brought to justice, and encourage other Canadians to hide behind our borders to prey on elderly victims in the United States. Absent some compelling or constitutional reason, the right of the United States to try and punish offenders in accordance with its own laws should be respected.

It is clear that the Minister did consider the effect of surrender on Mr. Dixon’s family.

[48]         In Lake, the Supreme Court stated at para. 34:

…The assertion that interference with the Minister’s decision will be limited to exceptional cases of ‘real substance’ reflects the breadth of the Minister’s discretion; the decision should not be interfered with unless it is unreasonable.

[49]         In my view, it cannot be said that the Minister did not apply the correct legal test.  I also do not think his exercise of discretion taking into account the impact of surrender on Mr. Dixon’s family was unreasonable.  I would not accede to Mr. Dixon’s second ground for judicial review.

Conclusion

[50]         I would dismiss Mr. Dixon’s appeal from committal and his application for judicial review of the Minister’s surrender order.

“The Honourable Mr. Justice Chiasson”

I agree:

“The Honourable Mr. Justice Mackenzie”

I agree:

“The Honourable Madam Justice Saunders”



[1] In fact, the correct reference is Hong Kong v. Cheng (December 19, 1996), which was a reconsideration of the court’s December 17, 1992 dismissal of Mr. Cheng’s s. 16 application.  The Ontario Court of Appeal stated it did not have jurisdiction to review that dismissal and adjourned the appeal in order to allow the Mr. Cheng to apply to the trial court for a “reconsideration” based on new evidence.