WARNING

This is
    a case under the
Child, Youth and Family Services Act
,
2017
and subject to subsections 87(8) and 87(9) of this legislation.
These subsections and
    subsection 142(3) of
the
Child,
    Youth and Services Act
, 2017
, which
deals with the consequences of failure to comply,
read as follows
:

87
(8)
Prohibition
    re identifying child

- No person shall publish or make public
    information
that has the effect
of identifying
    a child who is a witness at or a participant in a hearing or the subject of a
    proceeding, or the child's parent or foster parent or a member of the child's
    family.

(9)
Prohibition re
    identifying person charged
- The
    court may make an order prohibiting the publication of information
that has the effect
of identifying a person charged
    with an offence under this Part.

142
(3)
Offences
    re publication

- A person who contravenes subsection 87(8) or
    134(11) (publication of identifying information) or an order prohibiting
    publication made under
clause
87(7)(
c
)
    or subsection 87(9), and a director, officer or employee of a corporation who
    authorizes, permits or concurs in such a contravention by the corporation, is
    guilty of an offence and on conviction is liable to a fine of not more than
    $10,000 or to imprisonment for a term of not
more
    than three
years, or to both.

COURT OF APPEAL FOR ONTARIO

CITATION: Windsor-Essex Children's Aid Society v. E.W., 2020
    ONCA 682

DATE: 20201028

DOCKET: C67174

Doherty, Hoy and Jamal JJ.A.

BETWEEN

Windsor-Essex Children's Aid Society

Respondent

(Respondent)

and

E.W.

Appellant

(Appellant)

Gordon S. Campbell, for the appellant

Ronald Burnett, for the respondent

Heard: September 18, 2020 by videoconference

On appeal from the order of Justice Gregory J. Verbeem of
    the Superior Court of Justice, dated June 4, 2019, with reasons reported at
    2019 ONSC 3404, 29 R.F.L. (8th) 353, dismissing an appeal from the order of Justice
    Douglas W. Phillips of the Ontario Court of Justice, dated May 29, 2018.

Jamal J.A.:

[1]

The appellant, E.W., appeals from the order of Verbeem J. of the
    Superior Court of Justice ("appeal judge") made on June 4, 2019, dismissing an
    appeal from the order of Phillips J. of the Ontario Court of Justice ("trial
    judge") made on May 29, 2018. The appellant's two children, C.T-W. and
    T.J.E., were
found in need of protection
and
    placed in the extended care of the respondent, Windsor-Essex Children's Aid
    Society ("Society"), with no order for her or the children's respective biological
    fathers to have access to the children. The appellant also moves to adduce
    fresh evidence on appeal.

[2]

For the reasons that
follow, I would
    grant the motion to adduce fresh evidence. I would allow the appeal in part, only
    to the extent of granting the appellant an order for monthly photograph access to
    the children.

A.

statutory framework

[3]

The trial and the appeals were conducted under the
Child, Youth and
    Family Services Act, 2017
, S.O. 2017, c. 14, Sched. 1 ("
CYFSA
"),
    which came into force on April 30, 2018.
Among other
    things, the
CYFSA
replaced the concept of "Crown wardship"
    under the
Child and Family Services Act
, R.S.O. 1990, c. C.11 ("
CFSA
")
    with the concept of "extended society care", expanded the test for access to children
    in extended society care by focussing on the best interests of the children, and
    emphasized the special considerations applicable to children of Indigenous heritage:
    see
Kawartha-Haliburton Children's Aid Society v. M.W.
, 2019 ONCA 316,
    432 D.L.R. (4th) 497, at paras. 4, 31;
Children's Aid Society of Toronto v.
    J.G.
, 2020 ONCA 415, 151 O.R. (3d) 320, at paras. 20, 35; and
L.M. v.
    Peel Children's Aid Society
, 2019 ONCA 841, 149 O.R. (3d) 18, at para. 2.

[4]

Under the
CYFSA
, the court in a child protection proceeding
    must determine "as soon as practicable" if the child is a First Nations, Inuk, or
    Métis ("FNIM") child and, if so, the child's bands and First Nations, Inuit, or
    Métis communities:
CYFSA
, s. 90(2). This finding must be made before
    the court determines if the child
is in need of
protection:
Kawartha
, at para. 60.

[5]

The test for whether a child should be placed in extended society care
    under the
CYFSA
involves two broad inquiries: (1) whether the child is
    "in need of protection"; and (2) whether placement of the child in extended
    society care is "in the child's best interests" and the court is "satisfied
    that intervention through a court order is necessary to protect the child in
    the future":
CYFSA
, s. 101(1).

[6]

The court determines whether a child is "in need of protection" by
    applying the criteria in s. 74(2), which include, for example, the risk that the
    child is likely to suffer physical harm from a parent's failure or pattern of
    neglect to adequately care for, provide for, supervise, or protect the child
    (ss. 74(2)(b)(i) and (ii)); whether the child has suffered emotional harm from
    a parent's actions, including potentially from exposure to domestic violence
    (s. 74(2)(h)); and whether the child has been sexually abused or sexually
    exploited by a parent (s. 74(2)(c)).

[7]

The court determines whether an order for extended society care is in
    the "child's best interests" by applying the criteria in s. 74(3) of the
CYFSA
,
    which include, for example, the child's views and wishes (s. 74(3)(a)); the
    importance of preserving the child's cultural identity and connection to the
    community
in the case of
an FNIM child (s.
    74(3)(b)); and other relevant circumstances of the case (s. 74(3)(c)),
    including the risk of harm to the child if the child is returned to or allowed
    to remain in the care of a parent (s. 74(3)(c)(x)) and
the
    degree of risk
that justified the finding that the child
is in need of
protection (s. 74(3)(c)(xi)).

B.

BACKGROUND AND DECISIONS BELOW

(a)

Facts

[8]

The appellant, aged 27, is a member of the Eastern Woodland Métis Nation
    Nova Scotia ("EWMNNS"). Her two children, C.T-W., aged seven, and T.J.E., aged five,
    have been in the care of the Society for over four years, since July 2016,
    which is most of their lives.

[9]

The Society first apprehended the children in May 2016 because they were
    being exposed to domestic violence. The police had attended at the apartment of
    the appellant and her then-partner, T.E. (T.J.E.'s biological father), in
    response to a neighbour's call about a domestic assault in progress. When the
    police arrived, they heard the appellant and T.E. amidst a violent argument and
    heard a heavy glass object smash. When the police entered, they saw broken
    glass on the floor. The children, then aged about three and one, were crying
    loudly and crawling on the floor towards the broken glass. The police interviewed
    and then arrested both T.E. and the appellant - T.E. for pinning down the
    appellant and choking her, the appellant for throwing a glass jar at T.E. and stabbing
    him with a fork.

[10]

A
    few weeks later, the children were returned to the appellant's care subject to
    supervision, but in July 2016 they were removed again when she breached conditions
    of an interim supervision order and of her bail
that
she
    have no contact with T.E. The children have been in the Society's care since
    then.

[11]

Later
    that month, the Society learned the appellant had a video on her phone in which
    she had recorded T.E. naked and moving his erect penis without his hands, while
    their child, T.J.E., grasped at and briefly touched T.E.'s penis. About a year
    later, Douglas J. of the Ontario Court of Justice convicted the appellant of possessing
    child pornography and sexual interference. His reasons described the
video as follows
:

The video depicts [T.E.] Senior naked on a couch or a bed with
    his penis erect, pumping the penis up and down without his hands, with the
    one-year-old child trying to, and succeeding briefly, touch the erect penis. It
    also depicts [the appellant] capturing the activity on video, and directing
    [T.E.] Senior what to do and encouraging him to keep doing it.

[12]

In
    February 2017, with the appellant's criminal trial pending, Ross J. of the
    Ontario Court of Justice granted summary judgment, with the appellant's
    consent, awarding the Society wardship (under the former
CFSA
) of the
    children for four months and approving a plan of care requiring the appellant
    to participate in counselling and mental health programs. The appellant did not
    do so.

[13]

In
    April 2017, the Society began a status review application seeking permanent
    Crown wardship to secure an adoption placement for the children.

(b)

Trial Decision

[14]

After
    a seven-day trial, the trial judge found the children
were
    in need of
protection and ordered that they be placed in the Society's extended
    care, without ordering access for the appellant or for their respective
    biological fathers, neither of whom
participated in
    the trial
.
[1]

[15]

The
    trial judge held that although the appellant is a Métis person and a member of
    the EWMNNS, the children were not members of the Métis community.
He nevertheless
accepted the children's Indigenous
    heritage would "continue to be important" under the
CYFSA
.

[16]

The trial
    judge ruled the children
were in need of
protection
    on two grounds: "the exposure of [the] children, historically, to multiple
    incidents of domestic violence" (based on
CYFSA
, s. 74(2)(h)), and
    "the exposure of a child to adult sexual activity" (based on
CYFSA
, s.
    74(2)(c)).

[17]

Besides
    the violent incident in May 2016 when the children were first apprehended, and
    the conduct recorded on the cellphone video and described in Douglas J.'s
    reasons,
[2]
the trial judge found T.E. had assaulted the appellant several times before May
    2016, including in 2015 when she was pregnant with T.J.E. T.E. had been charged
    and incarcerated while awaiting trial, but the appellant
took steps to
have the charges withdrawn, and they resumed
    living together. The trial judge found the appellant had minimized the seriousness
    of the 2015 assault, even though she had needed medical care, and
at trial
there was evidence she wanted to reconcile and
    resume living with T.E. The trial judge also found the appellant had a history
    of suffering domestic violence at the hands of her former partner, V.T., the
    biological father of C.T-W. The trial judge also highlighted the appellant's
    failure "to discharge with any degree of sufficiency" the plan of care
    objectives the court had earlier imposed.

[18]

The trial
    judge held that returning the children to the appellant under supervision was
    not in the children's best interests. He noted the appellant had not achieved
    prior plan of care objectives, was not focussed on resolving domestic violence
    or sexual abuse issues, and had not complied with past court orders. He found
    the appellant was not a credible witness, noting that she denied T.E. had ever
    been violent towards her, and claimed she had fabricated the violence recorded
    in various police reports, even though T.E. had been
incarcerated
    as a result
. He also found she "clearly does not have any insight into
    the dynamic that is domestic violence", and "still has insufficient
    appreciation of the risk that [T.E.] poses to her and to these children."

[19]

The
    trial judge found the children could not be placed in the care of the
    appellant's mother in Nova Scotia (their maternal grandmother), who was also a
    member of the EWMNNS. The grandmother had an "extensive criminal record",
    including for breach of undertakings and court orders, "no appreciation of the risk"
    posed to the children by domestic violence, and was "blind to the circumstances
    of the cell phone video."

[20]

The
    trial judge also found that the Chief of the EWMNNS "made it clear that they
    were not prepared to be involved".

[21]

In all
    the circumstances, the trial judge ruled that an order for extended society
    care without access was in the children's best interests. He noted the
    children's foster mother, C.G., wished to adopt both children should they be
    placed in extended society care "with no access or with access by photographs".
    The foster mother advised she was adopted herself as a child and is trained and
    works in the fields of child mental health and early childhood development. She
    has been the foster mother of C.T-W. since July 2016, and is now caring for both
    children. The trial judge noted the children showed substantial developmental
    delays when they came into the Society's care, but have since made significant
    gains.

(c)

First Appeal Decision

[22]

After
    a four-day appeal, the appeal judge allowed the parties to adduce fresh
    evidence, dismissed the appeal, affirmed the order for extended society care
    without granting the mother any access order, and refused the appellant's
    request for a new trial.

[23]

The
    appeal judge addressed four main issues.

[24]

First,
    although the appeal judge accepted the trial judge erred by failing to identify
    the children as Métis children under the
CYFSA
, he held the trial
    judge consistently considered their Indigenous cultural identities and analyzed
    their best interests essentially as if he had found them
to be
Métis children. The appeal judge noted that further
    evidence tendered before him showed the Society had attempted to advance and
    preserve the children's cultural identities and their connection with their Métis
    culture and heritage:

The children are Métis. The additional evidence on appeal
    demonstrates that the Society has arranged for and provided services to
    preserve and advance the children's cultural identities and their connection
    with their Métis culture and heritage. The Society has also arranged for
    services for the foster parents and direct assistance to the children's foster
    parents (including the proposed adoptive parent),
in
    order
to educate and train them to support the preservation and
furtherance of
the children's cultural identities.

[25]

Second,
    the appeal judge held the trial judge did not err in holding that the children
were in need of
protection under s. 74(2)(c) of the
CYFSA
("sexually abused or sexually exploited"), even though the appellant's criminal
    conviction was under appeal and could be overturned. He concluded the trial
    judge had relied on the conduct depicted in the video, not the fact of the
    appellant's criminal conviction - the child protection finding was "conduct
    specific, not conviction specific". The appeal judge noted the appellant
    accepted that the conduct depicted in the video was accurately described in Douglas
    J.'s reasons and posed a significant risk of harm to the child.

[26]

Third,
    the appeal judge rejected the appellant's claim that the trial judge erred in refusing
    to admit evidence showing she had now participated in counselling, treatment,
    and other programs teaching her the life skills needed to mitigate the
    identified risks of harm to the children. The appeal judge found the trial
    judge considered all this evidence, but concluded it was of limited probative
    value.

[27]

Fourth,
    both the Society and the appellant sought to adduce further and fresh evidence
    on appeal. Although the appeal judge admitted some of this evidence, he
    concluded it did not warrant allowing the appeal.

(d)

Criminal Appeal Decision

[28]

Between
    the appellant's first appeal and the appeal to this court, the Superior Court
    of Justice overturned the appellant's criminal conviction. This court was not
    provided with the Superior Court's reasons. However, as part of her fresh
    evidence motion before this court, the appellant sought to adduce her factum
    before the Superior Court, in which she had contended the video depicted no
    actions that constitute sexual interference and did not meet the definition of
    child pornography. But she did not dispute, and has never disputed, Douglas
    J.'s description of the video.

C.

ISSUES

[29]

On a
    further appeal to this court, the appellant raises seven issues:

1.

Did the courts below err in interpreting the time limits for interim
    care orders under s. 122 of the
CYFSA
?

2.

Did the courts below misapprehend and undervalue the appellant's evidence?

3.

Did the trial judge's conduct of the trial give rise to a reasonable
    apprehension of bias?

4.

Given that the appellant's criminal conviction has now been overturned, did
    the courts below err in relying on it
as a basis
for
    a child protection finding?

5.

Did the courts
    below err in placing the burden of proof on the appellant to demonstrate that
    an access order would be in the children's best interests?

6.

Should the appellant's fresh evidence be admitted on appeal?

7.

Is the appellant entitled to full indemnity costs for this appeal?

D.

DISCUSSION

Standard of Review

[30]

This
    court may intervene in the decision of an appeal judge in a child protection
    matter only if the appeal judge erred in principle by failing to identify a
    material error in the trial judge's decision:
Children's Aid Society of
    Toronto v. V.L.
, 2012 ONCA 890, 299 O.A.C. 388, at para. 17, leave to
    appeal refused, [2013] S.C.C.A. No. 112. Deference to a trial judge's
    factual determinations is a "particularly compelling" consideration in child
    protection proceedings:
Children's Aid Society of Ottawa v. S.N.-D.
,
    2012 ONCA 590, 26 R.F.L. (7th) 46, at para. 19.

[31]

Although
    this is an appeal from the order of the appeal judge, many of the appellant's
    grounds of appeal are framed in terms of the trial judge's material errors. For
    simplicity, I will address the issues as framed by the appellant in order to
    determine whether the appeal judge made a reviewable error that justifies this
    court's intervention.

Issue #1: Did
    the Courts Below Err in Interpreting the Time Limits for Interim Care Orders
    Under s. 122 of the
CYFSA
?

[32]

The
    appellant asserts the courts below erred in finding that s. 122(1)(a) of the
CYFSA
imposes a strict 12-month time limit for interim society care orders where a
    child is younger than six. She says they interpreted s. 122(1)(a) in an
    "absolutist" way that excluded all other statutory considerations, including
    the best interests of the children and the importance of maintaining FNIM
    connections. She also contends they should have given her
more than 12
months to address her parenting issues
    and the proceedings should have been "paused" to allow the parties to tender
    more information about the children's best interests.

[33]

I do
not accept this submission. Section 122(1)(a)
    of the
CYFSA
is clear that, subject to ss. 122(4) and (5), which
    address deemed and court-ordered extensions, "the court
shall not
make
    an order for interim society care" (emphasis added) that results in a child
    being in the care and custody of a society for
more
    than 12
months, if the child is younger than six on the day the court
    makes the order. The 12-month time limit for an order under s. 122(1)(a) is
    plain on the face of the provision. The unfortunate practical reality that children
    do sometimes remain in interim society care for longer than this does not
    render the statutory time limit optional. Courts at all levels have stressed "the
    importance of reaching a speedy resolution of matters affecting children":
Catholic
    Children's Aid Society of Metropolitan Toronto v. M. (C.)
, [1994] 2 S.C.R.
    165, at p. 206; see also
Children's Aid Society of Oxford County v. W.T.C.
,
    2014 ONCA 540, 46 R.F.L. (7th) 290, at para. 10;
Children's Aid Society of
    Toronto v. C.J.W.
, 2017 ONCJ 212, at para. 90.

[34]

I
    would also reject the suggestion that the courts below took an "absolutist"
    approach to s. 122(1)(a) at the expense of the best interests of the children
    or the importance of maintaining FNIM connections. The time limits imposed by
    the statute must be presumed to reflect its objectives, including, especially,
    the promotion of the best interests of the children. Here, the trial judge considered
    the children's best interests throughout and emphasized the matter was "long
    overdue for resolution." The appeal judge similarly described the children as
    being "parked in limbo". These considerations are firmly rooted in the
    children's best interests. I see no basis to intervene.

Issue #2: Did
    the Courts Below Misapprehend and Undervalue the Appellant's Evidence?

[35]

The
    appellant asserts the courts below misapprehended and undervalued her evidence.
    She claims they failed to heed this court's admonition in
Kawartha
, at
    para. 80, that the "special considerations that apply to Indigenous children
    must be part of every decision involving Indigenous children." In her factum, she
    says the trial judge engaged in stereotypical reasoning by "impermissibly
    undervaluing the evidence presented by and progress made by a young indigenous
    mother towards being able to resume care for her children".

[36]

I do
    not agree with this submission. The reasons of the courts below and the record confirm
    their sensitivity to the children's Indigenous heritage and highlight the significant
    efforts to ensure all
relevant
information was
    presented:

á

The appeal judge concluded the children were Métis and noted that
    the trial judge's reasons addressed the best interests of the children
    essentially as if he had found them
to be
Métis
    children under the
CYFSA
.

á

Chief Mary Lou Parker of the EWMNNS, who testified by telephone
    from Nova Scotia, advised that the EWMNNS did not want to participate in the
    proceedings. She testified: "we have too many members going through similar
    things and we ... don't care to get mixed up within their rights".

á

Both courts below
were aware of
the
    appellant's commendable personal progress and the trial judge acknowledged that
    "she does care for her children". But they also emphasized the children were at
    risk of harm if returned to her care, given the children's history of exposure
    to domestic violence, the appellant's consistent minimization of those risks,
    her intention to reconcile with T.E., and her past failure to meet plan of care
    objectives.

á

The appeal judge was entitled to defer to the trial judge's decision
    to doubt the appellant's credibility because of her testimony
that
she had fabricated her statements to the police
    that T.E. had assaulted her, which had led to T.E.'s incarceration.

[37]

I see
    no error in the approach or conclusions of the courts below, which were amply
    supported by the record and in my view
are entitled
    to appellate deference
.

Issue #3: Did
    the Trial Judge's Conduct of the Trial Give Rise to a Reasonable Apprehension
    of Bias?

[38]

The
    appellant contends the trial judge showed a reasonable apprehension of bias by assuming
    the role of advocate for the Society. In her factum she claims the trial judge
    "coached the [Society] on the evidence to lead, coached the [Society] on what
    grounds of protection to advance, and excluded or minimized the [appellant's]
    evidence, consistently preferring the evidence of the [Society] even on
    conflicting issues".

[39]

This
    argument was not raised in the courts below.
As
    a general rule, this court will not entertain
entirely
new issues on appeal:
see
e.g.,
Kaiman v. Graham
, 2009 ONCA 77, 245 O.A.C. 130, at para. 18.

[40]

In any event, I
disagree with the appellant's
    submission. The trial judge did not "coach" the Society on what evidence to
    lead or the protection grounds to advance. Before the trial began, the trial
    judge conducted a trial management conference to canvass what evidence would be
    led by the parties and to clarify the grounds of protection to be advanced. He was
    rightly concerned that the trial proceed and not be adjourned, noting "this
    matter has got to proceed to trial. It's been outstanding for a very, very long
    period of time." He reiterated in his reasons that the issues were "long
    overdue for resolution", and stated that "the interests of these children have
    been, frankly, regrettably, parked."

[41]

It was in
that context
that
the Society confirmed that the Crown had not released to it a copy of
    the video, leading the Society to move to rely on Douglas J.'s reasons for
    conviction. Before the trial began the Society also advised that two protection
    grounds were in issue - risk of sexual harm and exposure to domestic violence -
    and the parties tendered evidence and made argument on both grounds. Appellant's
    trial counsel (not counsel before this court) conceded in her closing argument that
    both grounds were properly before the court:

[W]e are dealing with both the grounds related to the sexual
    behaviour and the emotional harm and domestic violence. So I'm just conceding
that
we were dealing with both grounds
during the course of the trial despite
the pleading
    not showing both grounds when it was amended.
In
    fact,
I responded to the emotional ground in my amended answer because
I believe that
a lot of the information
was still going to be
surrounding that issue.

[42]

This
    concession undercuts the suggestion that both grounds were not properly before
    the court or
that
there was procedural
    unfairness.
In my view, nothing
in the trial
    judge's handling of the trial supports a claim of reasonable apprehension of
    bias, assessed from the perspective of a reasonable observer present throughout
    the trial, or otherwise compromised the fairness of the trial: see
R. v.
    Ibrahim
, 2019 ONCA 631, 147 O.R. (3d) 272, at paras. 96-98.

Issue #4: Given
    the Appellant's Criminal Conviction Has Now Been Overturned, Did the Courts
    Below Err in Relying on It
as a Basis
for a Child
    Protection Finding?

[43]

In
    her factum the appellant asserts that her criminal conviction "played a very
    significant role in the trial results", and now that the conviction has been
    overturned, "a new trial is required."

[44]

I disagree.
    As the appeal judge ruled, the trial judge relied on the conduct depicted in
    the video, not the fact of conviction, in support of the child protection
    finding under s. 74(2)(c) of the
CYFSA
- it was "conduct specific, not
    conviction specific". The trial judge noted that "there was no essential
    dispute as to the cell phone video, what was depicted and the role played by
    the child." In oral reasons made on May 24, 2018, which addressed the two child
    protection risks of exposure of the children to multiple incidents of domestic
    violence and to adult sexual activity, the trial judge found that the mother did
    not explain forthrightly the video's contents and had been slow even to acknowledge
    any risk to the children:

While in cross-examination [the appellant] expressed some
    acknowledgement of poor judgment I do not understand why that was not recited
    within her affidavit material and I am
certainly
not
    satisfied about whether there have been disclosures made to any personnel with
    whom she has engaged at the Windsor Sex Offender Treatment Program. I am also
    mindful that the evidence is
that
these
    children given their ages have been in care since July of 2016 and the evidence
    is clear that the mother did not attend to address sexual issues until February
    of 2018 and at this point there is some regimen of counselling that lays ahead.

[45]

The
    appeal judge held that the conduct depicted in the video met the standard for
    sexual abuse or exploitation under s. 74(2)(c), even though there was no
    evidence that the child was involved in the video for
the
    purpose of
sexually gratifying the appellant or T.E.:

At trial, there was no evidence that the child's presence and
    involvement in the events depicted in the video was for the purpose of sexually
    gratifying either the appellant or T.E. In my view, however, in the context of child
    protection legislation and consistent with the stated
primary purpose of the
CYFSA
(to promote the best interests, protection and well being of children),
    the concepts of "
sexual exploitation
" and "
sexual abuse
" are broad
    enough to encompass circumstances in which: "sex play" between persons who are
    otherwise responsible for the care of a child, is knowingly carried out in
    front of a video camera within feet (if not inches) of the child; the child
    demonstrates an interest in touching and/or interacting with erect male
    genitalia; and the persons with care of the child do not engage in any effort
    to: cease the sexual activity; cease the recording of the sexual activity; or
    engage in any meaningful activity to remove the child or re-direct his
    interests. Instead, in this instance, the appellant encouraged T.E. to continue
    with the sexual activity, while the child attempted to touch T.E.'s penis, without
    any regard to the inappropriate nature of their conduct in the presence of the
    child, or the risks of
sexual harm

to the child that were posed
    by his exposure to their conduct (risks that the appellant now acknowledges). Further,
    when the child successfully made physical contact with T.E.'s exposed erect
    genitalia, the appellant's response was limited to encouraging T.E.'s sexual
    activity, while continuing to record it. [Emphasis in original]

[46]

The
    appellant sought to explain the conduct in the video as resulting from an error
    of judgment, and before this court highlights that her criminal conviction has
    now been overturned.

[47]

In my view, it
is unnecessary to determine whether the
    conduct depicted in the video amounts to sexual abuse or sexual exploitation under
    s. 74(2)(c) of the
CYFSA
. This is because I have concluded that the children's
    recurring exposure to domestic violence provides a sufficient basis to affirm the
    conclusion of the courts below that the children were, and continue to be, in
    need of protection and the appropriateness of an order for extended society
    care.

Issue #5: Did
    the Courts Below Err in Placing the Burden of Proof on the Appellant to Demonstrate
    that an Access Order was in the Children's Best Interests?

[48]

The
    appellant asserts the trial judge's no-access order failed to recognize that
    "[t]he burden is no longer on the person requesting access to demonstrate that
    the relationship is beneficial and meaningful to the child":
Kawartha
,
    at para. 49. She says there was no basis for, and no evidence justifying,
    a no-access order, and the appeal judge erred by failing to correct this error
    of the trial judge.

[49]

The
    appellant is correct to highlight what Benotto J.A. described in
Kawartha
,
    at para. 48, as the "significant shift in the approach to access for children
    in extended society care" under the
CYFSA
. Section 105(5) of the
CYFSA
now provides that "[a] court shall not make ... an access order ... unless the
    court is satisfied that the order ... would be in the child's best interests." At
    para. 49 of
Kawartha
, Benotto J.A. explained the change in
approach as follows
:

The burden is no longer on the person requesting access to
    demonstrate that the relationship is beneficial and meaningful to the child and
    will in no way impair the child's future adoption opportunities. Instead, the
    court is to undertake a best interests analysis, assess whether the
    relationship is beneficial and meaningful to the child, and consider impairment
    to future adoption opportunities only as part of this assessment and only where
    relevant. This means
that
it is no longer the
    case that a parent who puts forward no evidence will not gain access.
    Similarly, while any evidence of possible impairment to adoption opportunities
    would have thwarted previous requests for access, under the new Act, access is
    to be ordered for a child with otherwise excellent adoptive prospects if it is
    in her overall best interests.

See also
J.G.
, at paras. 37-53.

[50]

Here,
    the trial judge's reasons for the no-access order were brief, and simply
    highlighted the absence of evidence to support access:

There is no evidence to support any resolve but for extended [society]
    care and there is no evidence to support the matter of access.
Accordingly, the
order will be extended [society]
    care, no access.

[51]

The
    appeal judge concluded
that
there was nothing
    to justify substituting a different disposition than the one ordered by the
    trial judge.

[52]

Under
Kawartha
, the absence of evidence from the appellant to support access
    did not
in itself
justify denying the appellant
    access. The question is whether an access order would be in the best interests
    of the children.

[53]

Here,
    contrary to the trial judge's finding,
there was some
    evidence relating to
access in the foster mother's letter dated July 4,
    2017, where she stated that she wished to adopt both children should they be
    placed in extended society care with "no access or access by photographs". Access
    by photographs would thus not undermine the children's prospects of being
    adopted by the foster mother. Neither of the courts below appear to have
    considered this option. Even this very limited access could be significant to
    the appellant because it would entitle her to notice of the adoption
    proceedings and would keep the door open to some form of openness in the adoption
    that might be agreeable to the potential adoptive parent:
CYFSA
, s.
    195. I thus conclude that the ruling that there should be no access was tainted
    by legal error.

[54]

Despite
    this, I have concluded that this is not an appropriate case to order a
    rehearing on access. In all the
circumstances of this
    case
, the legislation's paramount purpose of promoting the best interests,
    protection, and well-being of children requires the matter to proceed to adoption,
    especially because the children have been in the Society's care well beyond the
    statutory timelines and because the record here is sufficient to permit this
    court to make an appropriate access order. The foster mother has expressed a
    willingness to accept photograph access. Nothing in the record suggests that
    access by photographs would not be in the children's best interests. Such
    access would allow the children to maintain, even if in a very modest way, some
    connection through their birth mother with their Métis culture, heritage, and
    tradition, a statutory factor the court must consider in making a determination
    in the best interests of the children:
CYFSA
, s. 74(3)(b).
In my view, granting
the appellant the right to photograph
    access during the period of extended society care would be in the best
    interests of the children.

[55]

I
    would therefore replace the no-access order with an order granting the
    appellant the right to monthly photograph access to the children.

[56]

Where
    the Society
begins planning
for the adoption
    of an FNIM child, s. 187(2) of the
CYFSA
requires the Society to
    consider the benefits to the child of an openness agreement or order. The
    Society should therefore ascertain the foster mother's most up-to-date views on
    the extent of acceptable access between the children and the appellant that
    could lead to an openness agreement. Additional forms of access or openness to
    consider might include the exchange of letters, gifts, emails, or video calls.

[57]

The Society should also
    contact the Office of the Children's Lawyer before serving notice of adoption. This
    early notice will allow the Office of the Children's Lawyer to assess whether
    it would be in the children's best interests to employ an alternative dispute
    resolution process to explore openness agreement options acceptable to the prospective
    adoptive mother.

[58]

It
    is hoped the children's adoption proceedings can start promptly and proceed
    expeditiously.

Issue #6: Should the Appellant's Fresh Evidence Be Admitted on
    Appeal?

[59]

The
    appellant seeks to adduce further and fresh evidence before this court. The
    evidence provides information about the appellant's mental health treatment,
    her attendance at parenting courses, skills training and employment programs,
    encloses her appeal factum from her criminal appeal, and includes
    correspondence between her counsel and the Society trying to negotiate interim
    access. The Society consents to the admission of at least some of this
    evidence, but notes some is very similar to evidence
that
    was
not admitted on the first appeal.

[60]

It
    is not useful or necessary to address each item of evidence individually. The appellant
    is to be commended for the steps she has taken to improve her education, mental
    well-being, and life prospects. However, I am not persuaded this new evidence -
    much of which is very general and simply describes the appellant's
    participation in various programs - sufficiently assuages the significant and
    longstanding risk of harm to the children because of recurring exposure to
    domestic violence under s. 74(2)(h) of the
CYFSA
. Nor does it provide useful
    information on whether returning the children to the appellant would be in
    their best interests.

[61]

The
    Society consented to admitting some
, but not all,
of
    this evidence. I would be prepared to admit all the evidence, but it
is not entitled to much weight
.
In my view, the
evidence does not change the result.

Issue #7: Is the Appellant Entitled to Full Indemnity Costs
    for this Appeal?

[62]

The
    appellant claims full indemnity costs for this appeal. The Society does not
    seek costs, even though it largely succeeded before this court.

[63]

In my view, this
appeal presents no "exceptional
    circumstances" for an award of costs against the Society: see
A.M. v.
    Valoris Pour Enfants et Adultes de Prescott-Russell
, 2017 ONCA 818, at
    para. 4. I would therefore make no order as to costs.

E.

DISPOSITION

[64]

I
    would admit the fresh evidence. I would allow the appeal in part, only to the
    extent of granting the appellant an order for monthly photograph access to the
    children. I would make no order as to costs.

Released: October 28, 2020 ("D.D")

"M. Jamal J.A."

"I agree. Doherty J.A."

"I agree. Alexandra Hoy
    J.A."

[1]

T.E. participated in a trial management conference on the
    first day of trial but then withdrew and did not participate further.

[2]
Although the cellphone
video was not in evidence in the child
    protection proceeding, Douglas J.'s reasons for conviction were admitted. The appellant
    conceded that they accurately described the video's contents.


COURT OF APPEAL FOR ONTARIO

CITATION: 2257573 Ontario Inc. v. Furney,
    2020 ONCA 742
DATE: 20201119
DOCKET: M51878 (C68734)

Jamal
    J.A. (Motions Judge)

BETWEEN

2257573
    Ontario Inc.

Plaintiff/Defendant by Counterclaim

(Respondent/Responding Party)

and

Alex Aiden Fitzgerald Furney also known as Alex Furney,
Maryam
  Furney and Hassan Hashemi

Defendants/Plaintiffs by
    Counterclaim
(Appellants/Moving Parties)
Richard K. Watson, for the moving
    parties
Howard W. Reininger, for the responding
    party
Heard: November 10, 2020 by video conference
REASONS FOR DECISION
Introduction
[1]

The appellants move to stay pending appeal parts
    of the orders of Turnbull J. (motion judge), dated October 14, 2020. The
    motion judge granted the respondent, a mortgage lender, summary judgment under several
    mortgages on the appellants properties found to be in default.
[2]

The motion judge ordered the appellants to pay
    the respondent $880,642.98 plus interest under the mortgage agreements. He also
    granted the respondent, as mortgagee, possession of two investment properties owned
    by the appellant Maryam Furney at 253 Four Mile Creek Road and 419 Progressive
    Avenue in Niagara-on-the-Lake, Ontario (Properties).
[3]

This stay motion relates only to the orders for
    possession of the Properties. It is not disputed that the orders to pay money were
    stayed by the appeal to this court: r. 63.01(1) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194.
[4]

It is also not disputed that the appellants
    mortgage loans have all been in default for several years. The motion judge
    found the appellants have paid absolutely nothing on the mortgages for over
    three and one-half years  nor offered to do so  not one cent has been paid on
    any of these mortgages since the funds were advanced over three years ago. That
    remains true today.
[5]

For the reasons that follow, the motion to stay
    the orders for possession is dismissed.
Background Facts
[6]

The motion judge set out the background facts
    about the parties mortgage financing transactions in two detailed rulings: an
    initial ruling ordering
viva voce
evidence on the summary judgment
    motions (
2257573 Ontario Inc. v. Furney et al.
, 2020 ONSC 781), and a
    later ruling granting summary judgment (
2257573 Ontario Inc. v. Furney et
    al.
, 2020 ONSC 6002).

The essential facts are as follows.
[7]

The appellant Maryam Furney, a licensed mortgage
    agent and an experienced real estate investor, is the registered owner of the
    Properties. Her husband, the appellant Alex Furney, was the registered owner of
    a third property in Niagara-on-the-Lake. The appellant Hassan Hashemi is an
    acquaintance of the Furneys and was the registered owner of a property in
    Woodstock, Ontario.
[8]

In early 2017, the Furneys were having financial
    difficulties and wanted to refinance the mortgages on their properties. Hashemi,
    who was interested in investing in one of the Properties, introduced the
    Furneys to Anil Kingrani, the principal of the respondent, a mortgage lender,
    to obtain short-term financing.
[9]

In February and March 2017, the Furneys, Hashemi,
    and Kingrani negotiated several high-interest, short-term loans from the
    respondent  totalling almost $900,000  secured by mortgages on the appellants
    properties, to allow the Furneys to seek alternative financing on a longer-term
    basis. The appellants were represented by counsel in these transactions.
[10]

Unfortunately, the Furneys could not obtain
    longer-term financing. This led to the accumulation of interest, other charges,
    and penalties on the mortgage loans with the respondent. The appellants defaulted
    on their mortgage agreements from the outset. As the motion judge found, the
    appellants have neither paid nor offered to pay anything towards these mortgage
    loans since they were concluded in early 2017.
The Claims and Counterclaims
[11]

In late 2017, the respondent sued the appellants
    for defaulting under the mortgage agreements. It then moved for summary
    judgment, seeking orders for possession of all the properties and repayment of
    the principal advanced, accrued interest, and other penalties, fees, and charges
    under the agreements.
[12]

In response, the appellants claimed the
    respondent had breached an alleged oral agreement, forming part of the
    refinancing arrangements, under which the respondent agreed to discharge three
    executions against the Properties. They also claimed the respondent failed to
    provide them with timely and accurate mortgage discharge statements and that, once
    the penalties, fees, and charges were included in the calculation of the effective
    annual interest rate, the mortgage loans involved a criminal rate of interest contrary
    to s. 347 of the
Criminal Code
, R.S.C. 1985, c. C.46. Finally, the
    appellants counterclaimed against the respondent, alleging that they suffered
    damages when the respondent unreasonably refused to discharge the executions
    against the Properties under the oral agreement and provided them with inflated
    mortgage statements.
The Summary Judgment Decision
[13]

The motion judge ruled that it was essential to
    hear
viva voce
evidence from Kingrani, Maryam Furney, and Hashemi. After
    hearing that evidence, the motion judge granted summary judgment for the
    amounts owing under the mortgage loans. He also granted orders for possession
    of the Properties and for those of Alex Furney and Hashemi.
[14]

The properties of Alex Furney and Hashemi were
    sold under powers of sale by prior mortgagees. The only remaining properties
    are the Properties of Maryam Furney.
[15]

The motion judge rejected the appellants claim
    that the respondent orally committed to discharge three executions against the
    Properties as part of the refinancing arrangements. He found it was
    inconceivable that a mortgagee would agree to refinance properties for amounts
    and upon terms which had not been specified. He also noted the appellants
    lawyer on the transactions did not file an affidavit on the summary judgment motion
    to support the claimed oral commitment, which he would have expected in the
    circumstances.
[16]

The motion judge accepted that if the other
    penalties, fees, and charges set out in the respondents discharge statements were
    included in the calculation of the effective annual interest rate, that rate
    would exceed the criminal rate of interest under s. 347 of the
Criminal
    Code
. He noted, however, that the respondent was now seeking repayment of only
    the principal and interest under the mortgage loans. In the circumstances, the motion
    judge was prepared to order severance of each of the mortgage loan agreements to
    allow the respondent judgment on only the principal advanced, with interest at
    the rates agreed to, which while high (24% and 18%) were below the criminal
    rate (exceeding 60%). He found that [t]his was a risky commercial transaction.
    The parties bargained for the interest rates reflected in the registered
    mortgages.
[17]

The motion judge allowed the counterclaims to
    proceed because the respondent did not seek their dismissal. He observed,
    however, there was no evidence before the court of any the damages alleged and
    the pleadings were sadly deficient of particulars.
[18]

The
motion
    judge suggested the appellants might have avoided the orders for possession by paying
    the disputed amounts into court, as the respondent had proposed, subject to an
    accounting and the courts decision. But they never did so.
The Test for a Stay Pending Appeal
[19]

To obtain a stay of a judgment pending appeal, a
    moving party must meet the three-part test for an interlocutory injunction: (1)
    there is a serious question to be determined on the appeal; (2) the moving
    party will suffer irreparable harm if the stay is denied; and (3) the balance
    of convenience favours granting the stay:
RJR-MacDonald Inc. v. Canada
    (Attorney General)
, [1994] 1 S.C.R. 311, at p. 334;
Wilfert v.
    McCallum
, 2017 ONCA 895, 54 C.B.R. (6th) 249, at para. 6; and
Starkman
    v. Home Trust Company
, 2015 ONCA 436, at para. 7.
[20]

In applying this test, the court is mindful that
    [t]hese three criteria are not watertight compartments. The strength of one
    may compensate for the weakness of another. Generally, the court must decide
    whether the interests of justice call for a stay:
Circuit World
    Corporation v. Lesperance
(1997), 33 O.R. (3d) 674 (C.A.), at p. 677.
Application to This Case
[21]

The
appellants
    meet none of the criteria for a stay.
(1)

Serious question to be determined on the appeal
[22]

The threshold to establish a serious question on
    the appeal is low. The court must make a preliminary assessment of the merits of
    the case and determine whether the issue on appeal is neither frivolous nor vexatious:
RJR-MacDonald
, at p. 337;
Circuit World Corporation
, at p.
    677.
[23]

Here, the appellants allege the motion judge erred
    in law and fact by: (1) failing to find an oral contract for the respondent to
    discharge executions against the Properties; (2) failing to apply the doctrine
    of good faith and honest performance to a contract; (3) failing to properly
    consider the legal consequences of the respondents prolonged and unlawful
    attempt to collect more than the criminal rate of interest; (4) misapplying the
    doctrine of severance by awarding the respondent a grossly excessive amount of interest;
    (5) failing to give the appellants a reasonable period of time to pay the
    amounts ordered; and (6) risking inconsistent results and substantial injustice
    by granting the respondent immediate possession before adjudicating the
    counterclaims.
[24]

All the appellants grounds of appeal address
    whether the motion judge erred in determining the total amount due under the
    mortgage loans. They do not dispute that the mortgage loans are in default and
    have been for several years. Even if the appellants succeed on appeal in
    reducing the interest payable, their mortgage loans will still be in default. That
    default triggers the respondents right to possession. There is thus no serious
    question on the appeal about the respondents right to possession of the
    Properties: see
Starkman
, at para. 9.
[25]

The appellants say, however, that they are now
    ready, willing, and able to satisfy their monetary obligations. They provided
    evidence on this motion that they have a commitment of alternative financing on
    the Properties and are prepared to pay the principal and three months interest
    into court. But the financing commitment letter they filed shows that their proposed
    new lender insists on a blanket first and second mortgage on the Properties as
    security. The respondent would therefore have to subordinate or relinquish its
    mortgages on the Properties. The respondent does not accept this proposal. In
    any event, the proposal does not detract from my conclusion that there is no
    serious issue on appeal as to the respondents right to possession of the
    Properties.
(2)

Irreparable harm
[26]

I also do not accept the appellants submission that
    they would suffer irreparable harm if the stay is denied.
[27]

Irreparable harm is harm which either cannot be
    quantified in monetary terms or which cannot be cured, usually because one
    party cannot collect damages from the other:
RJR-MacDonald
, at p.
    341.
[28]

The appellants posit three claims of irreparable
    harm if the stay is denied.
[29]

First, they say the respondent would engage in
    an improvident sale of the Properties, destroying the appellants equity and
    leaving them with a deficiency in what they owe the respondent and third-party
    judgment creditors. But in any sale, the respondent as mortgagee has a legal
    obligation to take reasonable precautions to obtain the true market value of
    the Properties as of the date of sale:
Centurion Farms Ltd. v.
    Citifinancial Canada Inc.
, 2013 ONCA 79, at para. 4;
Manufacturers
    Life Co. v. Granada Investments Ltd.
(2001), 150 O.A.C. 253 (C.A.), at
    para. 67, leave to appeal refused, [2001] S.C.C.A. No. 637;
Oak Orchard
    Developments Ltd. v. Iseman
, [1987] O.J. No. 361 (H.C.), affd [1989] O.J.
    No. 2394 (C.A.); and Joseph E. Roach,
The Canadian Law of Mortgages
, 3rd
    ed. (Toronto: LexisNexis, 2018), at pp. 136-139. Nothing before the court
    suggests the respondent will breach this legal obligation.
[30]

Second, the appellants say they will have no effective
    remedy against the respondent if they succeed on the appeal or counterclaims,
    because the respondent is a numbered company whose assets and financial
    condition are unknown. They fear Kingrani may deplete the respondents assets
    between now and the final determination of the appeal or counterclaims. Again,
    however, there is no evidence before the court to justify this fear.
[31]

Third, the appellants claim that if the stay is
    denied they will lose their right to redeem the mortgages and repurchase the
    Properties. I do not accept this submission. To date, the appellants have not sought
    to exercise their right to redeem the mortgages. Nor, on the evidence before
    the court, is there is any realistic prospect of them doing so in the
    foreseeable future. The evidence on this motion establishes that the appellants
    are heavily indebted: the Properties are encumbered with over $1.4 million in
    executions and liens by the Canada Revenue Agency, the Town of Niagara, and
    other judgment creditors. In the circumstances, I see no irreparable harm to
    the appellants in allowing the respondent to take possession of the Properties
    now, as permitted by the motion judge.
(3)

Balance of convenience
[32]

Finally, I do not accept the appellants
    submission that the balance of convenience favours granting a stay.
[33]

The balance of convenience involves a
    determination of who would suffer the greater harm from granting or refusing
    the stay, pending a decision on the merits of the appeal:
RJR-MacDonald
,
    at p. 342.
[34]

This factor overwhelmingly favours the
    respondent. If the stay is denied, the appellants will lose their right to
    redeem the mortgages. But on the evidence before me I have concluded there is
    no realistic prospect of such redemption in the foreseeable future. The
    appellants have significant indebtedness under loans from the respondent that allowed
    them to continue to own and perhaps earn income from the Properties for three-and-a-half
    years. Yet they made no payments, even under protest, as they challenged the
    quantum of their indebtedness. The respondent lent money to the appellants in
    exchange for mortgage security it now seeks to realize upon, after an extended period
    of default, and after the motion judge has ruled in its favour. In these
    circumstances, the respondent would suffer greater harm if its right to
    possession is delayed any more.
[35]

I therefore conclude the appellants have not met
    the test for a stay.
Disposition
[36]

The appellants motion to stay the orders for
    possession is dismissed.
[37]

The respondent is entitled to costs on a
    substantial indemnity basis under the standard mortgage terms in the claimed
    amount of $12,309.94, inclusive of disbursements and HST, to be paid within 30
    days of this order.
M.
    Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Abbas v. Albohamra, 2020 ONCA 740

DATE: 20201123

DOCKET: C68083

Feldman, Simmons and Harvison
    Young JJ.A.

BETWEEN

Yahya Abbas

Applicant

(Appellant in Appeal)

and

Methaq Albohamra

Respondent

(Respondent in Appeal)

Ronald B. Moldaver Q.C., for the appellant

Elaheh Aiaseh, for the respondent

Heard: November 4, 2020 by videoconference

On appeal from the order of Justice McSweeney
    of the Superior Court of Justice, dated January 28, 2020.

REASONS FOR DECISION

[1]

This is the second level of appeal of an order
    for child support made by the trial judge by imputing income to the payor
    father based on inferences drawn from his lifestyle, which indicated that he
    must have had sources of income beyond the amount declared based on his income
    tax T4.

[2]

The trial judges calculation method was to use
    the quantum of the voluntary monthly support payments that the father had made
    over a number of years to the mother as the basis for discerning from the Child
    Support Guidelines how much income he would had to have been earning to be required
    to make such payments. The appellant fathers position on the appeal is that
    this method was impermissible and constituted an error of law.

[3]

The first level appeal judge used her own method
    of calculating the amount of income to be imputed in order to perform a check
    on the acceptability of the trial judges method, by grossing up the
    appellants stated expenses and the voluntary payments for income tax. The
    amount the first level appeal judge arrived at was somewhat lower than the
    trial judges amount, but close enough to satisfy her that there was no
    unfairness in the circumstances where the payor was found not to have disclosed
    his true income and ability to pay at the trial.

[4]

In our view, the trial judge and the first level
    appeal judge made no error, based on the record, in imputing income to the
    father for the purpose of awarding child support. We agree with the appeal
    judge that the amount of the award is a matter of discretion to which deference
    is owed.

[5]

While it would have been preferable for the
    trial judge to use the method of grossing up expenses to draw inferences about
    the imputed income amount, we are not satisfied that the appeal judge made a
    reviewable error by endorsing the decision of the trial judge and dismissing
    the appeal. The appellant did not challenge the method used by the first level
    appeal judge or her calculations. His position was that there was no
    evidentiary basis to impute any income to the appellant. We reject that position.

[6]

The appeal is dismissed with costs fixed at $7,500.
    The parties are still waiting for the costs award from the trial judge.

K. Feldman J.A.

Janet Simmons J.A.

Harvison Young J.A.


WARNING

The President
of the panel hearing this appeal directs that the following should be attached
to the file:

An order restricting publication in this
proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
of the
Criminal Code
shall continue.  These sections of
the
Criminal Code
provide:

486.4(1)       Subject to subsection
(2), the presiding judge or justice may make an order directing that any
information that could identify the victim or a witness shall not be published
in any document or broadcast or transmitted in any way, in proceedings in
respect of

(a)     any of the following
offences;

(i)      an
offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
offence under this Act, as it read at any time before the day on which this
subparagraph comes into force, if the conduct alleged involves a violation of
the complainants sexual integrity and that conduct would be an offence
referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
the same proceeding, at least one of which is an offence referred to in
paragraph (a).

(2)     In proceedings in respect of
the offences referred to in paragraph (1)(a) or (b), the presiding judge or
justice shall

(a)     at the first reasonable
opportunity, inform any witness under the age of eighteen years and the victim
of the right to make an application for the order; and

(b)     on application made by
the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2),
in proceedings in respect of an offence other than an offence referred to in
subsection (1), if the victim is under the age of 18 years, the presiding judge
or justice may make an order directing that any information that could identify
the victim shall not be published in any document or broadcast or transmitted
in any way.

(2.2) In proceedings in respect of
an offence other than an offence referred to in subsection (1), if the victim
is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
the victim of their right to make an application for the order; and

(b) on application of the victim
or the prosecutor, make the order.

(3)     In proceedings in respect of
an offence under section 163.1, a judge or justice shall make an order
directing that any information that could identify a witness who is under the
age of eighteen years, or any person who is the subject of a representation,
written material or a recording that constitutes child pornography within the
meaning of that section, shall not be published in any document or broadcast or
transmitted in any way.

(4)     An order made under this
section does not apply in respect of the disclosure of information in the
course of the administration of justice when it is not the purpose of the
disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s.
8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015,
c.  13, s. 18.

486.6(1)       Every person who
fails to comply with an order made under subsection 486.4(1), (2) or (3) or
486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an
order referred to in subsection (1) applies to prohibit, in relation to
proceedings taken against any person who fails to comply with the order, the
publication in any document or the broadcasting or transmission in any way of
information that could identify a victim, witness or justice system participant
whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: Abdulle (Re), 2020 ONCA 698

DATE: 20201104

DOCKET: C67960

Rouleau, Benotto and Nordheimer
JJ.A.

IN THE MATTER OF: Abdiaziz Abdulle

AN APPEAL UNDER PART XX.1 OF THE
CODE

Michael Davies, for the appellant

Natalya Odorico, for the respondent
Attorney General of Ontario

Marie-Pierre T. Pilon, for the respondent
Person in Charge for the Brockville Mental Health Centre

Heard: in writing

On appeal from
the disposition of the Ontario Review Board, dated December 20, 2019, with
reasons dated January 21, 2020.

REASONS FOR DECISION

BACKGROUND

[1]

The appellant appeals from the most recent
disposition of the Ontario Review Board (Board) that concluded that the
appellant continues to present a significant threat to the safety of the public.
The Board ordered the continued detention of the appellant in the secure
forensic unit of the Brockville Mental Health Centre (Brockville). The
appellant was granted privileges, including approved community living and passes
to travel within 200 kilometres of Brockville, either indirectly supervised or
in the company of a staff member or another approved individual, for a maximum
of 48 hours. The Person in Charge of Brockville must approve the appellants
exercise of these privileges.

[2]

The appellants detention relates to two sets of
index offences. The first set occurred on April 8, 2008, when the appellant
attended at the residence of his brother and sister-in-law, threatened to kill
his brother, and kicked the front door off its hinges. On November 25, 2008, the
appellant was found not criminally responsible on account of mental disorder (NCR)
on charges of uttering threats to cause death or bodily harm, mischief, and
failing to comply with an undertaking.

[3]

On September 7, 2011, while the appellant was in
the community after leaving Montfort Hospital, he committed the second set of index
offences. The appellant, wielding a screwdriver, acted aggressively and chased
a stranger. Later, armed with a rock, the appellant continued to chase the
stranger, this time threatening to kill him. Also, before police brought him
into custody, the appellant exposed himself to three women. On October 21, 2011,
the appellant was found NCR on charges of assault with a weapon, uttering
threats to cause death or bodily harm, committing an indecent act, and failing
to comply with a recognizance.

[4]

The appellant continues to be under the
jurisdiction of the Board and receives treatment for his bipolar disorder,
antisocial personality disorder, and polysubstance use disorder. Notably, the
appellant continues to consume cannabis, which he has used since the age of 15,
despite the risk that combining cannabis use with the appellants bipolar
disorder could lead to additional relapses.

ISSUES

[5]

The appellant seeks an absolute discharge and advances
the three following grounds of appeal:

1.

The Board erred in finding that the appellant
poses a significant threat to the safety of the public;

2.

The Board erred in its consideration of a conditional
discharge; and

3.

The Board erred in failing to take the necessary
steps to assist the appellant in progressing toward an absolute discharge.

[6]

For the reasons that follow, we dismiss the
appeal.

ANALYSIS

(1)

The Boards finding that the appellant poses a
significant threat to the safety of the public was reasonable

[7]

The appellant contends that the Boards finding
that he remains a significant threat to the safety of the public is
unreasonable and he is therefore entitled to an absolute discharge. To
determine that an NCR accused remains a significant threat to the safety of the
public, there must be a real risk of physical or psychological harm to members
of the public that is serious in the sense of going beyond the merely trivial
or annoying:
Winko v. British Columbia (Forensic Psychiatric Institute)
,
[1999] 2 S.C.R. 625, at para. 62.

The primary focus of the appellants
submission is that the Board put insufficient weight on the fact that the appellant
has had no serious incident involving physical violence since October 2011. We
do not agree with this submission. We accept that the Boards finding that the
appellant remains a significant threat to the safety of the public was
reasonable.

[8]

The Board did not ignore the evidence favouring
the appellant, notably that there has been no incident of serious physical harm
to others since the second set of index offences in 2011. The Board considered
all of the evidence tendered, including the appellants evidence that there has
been a lack of serious physical acts of violence, and concluded the following:

Given [the appellants] lack of insight, undertreated
Bipolar Disorder, continuing use of a THC substance, and the resistance or
disagreements that he demonstrates as a result of his personality disorder,
it
is highly likely that if absolutely discharged he would stop or alter his
medication and treatment and continue the use of cannabis. The symptoms of his Bipolar
Disorder would emerge and his behaviour would eventually lead to his becoming a
real risk of serious bodily or psychological harm to members of the public
.
[Emphasis added.]

[9]

This conclusion was fully supported by the
record. The Board conducted a broad inquiry and relied on numerous cogent and
relevant risk factors, as required under s. 672.54 of the
Criminal Code
, R.S.C. 1985, c. C-46
.

[10]

The appellant suffers from bipolar disorder and an
antisocial personality disorder that causes him to be manipulative and
deceptive. The record shows that the appellant experienced cyclical periods of
relapse into his bipolar disorder and would become unstable and verbally
aggressive. It also revealed that he had limited insight into his illness, the
risk of relapse, and the risk of decompensation and violence associated with
his cannabis use. Despite having been educated and warned about the risks of
cannabis use given his bipolar disorder, he persistently continues to consume
this drug.

[11]

Furthermore, the appellants history while under
the Boards jurisdiction demonstrated that he had difficulty adhering to the
medication regime without hospital oversight. The evidence discloses that he
resisted medication, questioned medications and doses, and liked to control his
medication regime. As a result, if the appellant is granted an absolute
discharge and is without clinical supervision, he is likely to alter the dosage
of his medication or stop taking his required medication altogether and continue
his use of cannabis. This conclusion of the Board was fully supported by the
record.

[12]

The altering of his medication and continued use
of cannabis were such as to make it highly likely that the appellant would
relapse into his mental illness of bipolar disorder. When in that state, he
experiences persecutory delusions and becomes disinhibited and physically
agitated, which presents a significant threat to the safety of the public. This
is what led to incidents of verbal and physical aggression in the past.

[13]

The Board considered the fact that there were no
particularly serious incidents of physical violence since the appellants
second NCR finding in October 2011. In the present case, the Board found that
the structured environment of Brockville insulated the appellants potential
for violence. When the appellant showed signs of relapsing to his bipolar
disorder, his caregivers would quickly manage these relapses with relatively
minimal consequences, preventing the appellants escalating behaviour as
recorded in the index offences. Without continued supervision, his risk to
members of the public
[
would
]
be manifested through behaviours and
actions similar to those surrounding the index offences. This, the Board found,
represents a significant threat to the safety of the public.

[14]

As this court explained in
Mott (Re)
,
2019 ONCA 560, at para. 10, the absence of a significant or recent history of
violence by itself is not determinative of whether an NCR accused poses a
significant threat to the safety of the public. Evidence of the appellants
potential for violence, caused by his lack of insight into his illness, his
resistance to medication, and his continued substance abuse, may support a
finding that he remains a significant threat to the safety of the public:
Mott
,
at para. 10. The Board used this type of evidence to confirm the appellants potential
for violence and to conclude that the appellant remains a significant threat to
the safety of the public.

[15]

The Boards findings were both logical and
reasonable on the record before it. The Board was fully entitled to attribute limited
weight to the fact there had been an absence of serious incidents of physical
violence since October 2011, given its finding that the appellants behaviour
had not escalated to the point of physical violence because of the external
controls imposed by the hospital. In balancing these facts, the Board concluded
that the appellant continued to pose a significant threat to the safety of the
public and could therefore not receive an absolute discharge. This finding is
entitled to deference.

(2)

The Board properly considered and rejected a
conditional discharge

[16]

The appellant argues that the Board erred in its
consideration and rejection of a conditional discharge. He submits that the
Board failed to apply the appropriate legal test and failed to assess whether conditions
could be crafted to manage his risk in the community.

[17]

We disagree. At the outset, we note that the
appellant did not ask the Board for a conditional discharge. However, the Board
considered the possibility of a conditional discharge. Dr. Sanjiv Gulati, the appellants
treating psychiatrist since his transfer to Brockville, explained that the
hospital opposed a conditional discharge because the appellant had not had a
significant period of stability. He explained that, for a number of reasons,
there had been limited to no success in previous efforts to discharge the
appellant into the community. This was due, in part, to the appellants
continued use of cannabis, his violation of hospital rules, and relapses of his
bipolar disorder requiring a return to hospital to control his behaviour.
Dr. Gulati opined that the appellant was likely to relapse within weeks
if he was discharged and continued his pattern of using cannabis and neglecting
his medication.

[18]

The Boards conclusion that it was neither
practical nor possible to manage the appellant in the community without putting
members of the public at risk was reasonable. A gradual reintegration into the
community via supervised or transitional housing is needed. The Board concluded
that a detention order with no changes to the appellants privileges was
required, and the Boards finding in that regard was reasonable and is entitled
to deference.

(3)

The Board fulfilled its duty to ensure that
progress was being made with the appellant

[19]

The appellant faults the Board for not having
done more to assist him to move toward an absolute discharge. In the
appellants submission, there was an unresolved treatment impasse and the Board
failed to make recommendations as to how the appellants situation could be
improved. The term treatment impasse refers to a situation where an NCR
accused is detained without treatment, refuses treatment, or the treatment does
not result in any progress in managing the mental health condition:
Abeje
(Re)
, 2019 ONCA 734, at para. 30.

[20]

We do not view this case as one involving
treatment impasse. The record demonstrates that progress has been made and is
likely to continue. As of the hearing date, Brockville had implemented an
effective course of treatment to manage the appellants illness. Following an
increase in the appellants medication, there were fewer relapses observed. As
underscored by the Board, Dr. Gulati embraced
[the
appellants]
progress and is pleased with this
apparent improvement, as he hopes that it may break the
[appellants] cyclical pattern of episodes.
Still, Dr. Gulati confirmed it was too early to tell whether the increase in
medication will eliminate the appellants relapse cycle.

[21]

This is not a case where the appellant was
languishing in hospital. Rather, he was receiving treatment at Brockville and
was making some noticeable progress. Accordingly, this ground of appeal is
dismissed.

DISPOSITION

[22]

For the reasons above, the appeal is dismissed.

Paul
Rouleau J.A.

M.L.
Benotto J.A.

I.V.B.
Nordheimer J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Anderson v. Bubb, 2020 ONCA 746

DATE: 20201123

DOCKET: C68315

Tulloch, Miller and Paciocco JJ.A.

BETWEEN

Karen
    Margaret Anderson

Applicant
    (Respondent/

Appellant
    by way of cross-appeal)

and

Warren Grant Bubb

Respondent
    (Appellant/

Respondent
    by way of cross-appeal)

Marcel R. Banasinski, for the
    appellant/respondent by way of cross-appeal

Jordan Welsh, for the
    respondent/appellant by way of cross-appeal

Heard and released orally: November 17, 2020 by
    video conference

On
    appeal from the order of Justice Douglas K. Gray of the Superior Court of
    Justice, dated March 12, 2020.

REASONS FOR DECISION

[1]

The appellant appeals from an order awarding retroactive
    and prospective spousal support to the respondent. The order did not expressly state
    whether the spousal support order was made under the
Family Law Act
, R.S.O. 1990, c. F.3
or the
Divorce
    Act
, R.S.C. 1985, c. 3 (2
nd
Supp.)
.

[2]

The appellant argues that the spousal support
    order was made under the
Divorce Act
,
and because the application judge severed the application from an order of
    divorce, the support order is therefore a nullity. We do not agree. We do not
    accept the appellants starting premise that the support order was made under
    the
Divorce Act
rather than the
Family Law Act
. Although the respondents
    application did not check the box indicating that relief was sought under the
Family
    Law Act
, the respondent expressly pleaded relief under the
Family Law
    Act
at para. 21 of the application, and the application judge clearly
    contemplated the operation of the
Family Law Act
at para. 31 of his
    reasons.

[3]

The order was within the jurisdiction of the
    application judge under the
Family Law Act
and we accept it was made
    under that statute.

[4]

The appellant argues in the alternative that the
    application judge lacked jurisdiction because the respondent had attorned to
    the divorce proceedings commenced by the appellant in Alabama. We do not agree.
    The application judge made a finding, on the record before him, that he had
    jurisdiction. The application judges reasons were cogent and the appellant has
    not identified any error that would permit us to disturb this finding.

[5]

The appeal is dismissed. Costs are awarded to the
    respondent in the amount of $12,000, on a partial indemnity basis, all
    inclusive.

M.
    Tulloch J.A.

B.W.
    Miller J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Baig v. Mississauga, 2020 ONCA 697

DATE: 20201104

DOCKET: C67504

Roberts,
    Trotter and Thorburn JJ.A.

BETWEEN

Mirza Habib Baig

Plaintiff

(Appellant)

and

The Corporation of the Town of Mississauga

Defendant

(Respondent)

Mirza Habib Baig, acting in person

Robert Ryan, for the respondent

Heard: October 28, 2020 by
    videoconference and teleconference

On appeal from
    the order entered on August 30, 2019 by Justice Gisele M. Miller of the
    Superior Court of Justice with reasons at 2019 ONSC 5111.

REASONS FOR DECISION

Introduction

[1]

On May 21, 2013, Mr. Baig fell off his bicycle
    and injured himself. More than four years later, on September 1, 2017, he
    issued a claim against The Corporation of the Town of Mississauga
    (Mississauga), seeking damages.

[2]

Mississauga moved for summary judgment, alleging
    that the two-year limitation period under s. 4 of the
Limitations Act
,
    S.O. 2002, c. 24, Sch. B.  had expired. The motion judge determined that, on
    the materials before her, there was no genuine issue for trial. The motion was
    granted and Mr. Baigs action was dismissed.

[3]

Mr. Baig appeals from that decision. For the
    reasons below, the appeal is dismissed.

Factual Summary and Chronology

[4]

Mr. Baig fell off his bike after travelling
    across a pedestrian bridge. He went to the hospital that same day, where he was
    diagnosed with a broken finger and superficial facial abrasions.

[5]

Eight days later, on May 29, 2013, Mr. Baig
    submitted a Claim Report to Mississauga. He described his injuries: Facial
    lacerations, concussion/temporary blackout, broken bone in finger. Mr. Baig
    sought compensation and recommended remediation of the hazard that led to his
    fall. On the form that he completed, it stated: NOTE: THERE IS A 10 DAY NOTICE
    FOR PROVIDING THE CITY WITH NOTICE OF CERTAIN TYPES OF CLAIMS AND A TWO YEAR
    LIMITATION period for bringing an action in respect to all claims.

[6]

Mississauga assigned an adjuster to investigate
    the claim. However, Mr. Baig refused to cooperate with the adjuster, apparently
    based on legal advice. On May 5, 2014, a claims analyst sent Mr. Baig a letter
    advising him that he had unsuccessfully attempted to contact him many times and
    that, if Mr. Baig was not in contact within 30 days, his file would be closed.
    This letter also advised Mr. Baig of the limitation period. There was no
    further communication and the file was closed in June of 2014.

Mr. Baigs Arguments at the Summary
    Judgment Motion

[7]

Mr. Baig represented himself on the summary
    judgment motion. He advanced two arguments: (1) he did not discover the extent
    of his injuries until years after the accident; and (2) he lacked the capacity
    to commence litigation within the limitation period due to a disability and a
    compromised mental state. The motion judge rejected Mr. Baigs arguments.

Discoverability

[8]

Mr. Baig was permitted to amend his Statement of
    Claim to allege that, between late 2016 and early 2019, he discovered the
    following injuries arising from his accident: a laceration to his lip would not
    improve with surgery; he would not regain full use of his previously broken
    finger because of osteo-arthritis; and he suffers from carpal tunnel syndrome, moderate-severe
    depression, post-concussion syndrome, and osteo-arthritis in his neck.

[9]

The motion judge found that Mr. Baig discovered the
    material facts of his claim as of May 22, 2013 (the day he went to the
    hospital), or at the latest on May 29, 2013 (the day he submitted his claim to
    Mississauga). She held that the subsequent discovery of the severity of his
    injuries did not extend the limitation period.

[10]

The motion judge made no error. As this court
    held in
Liu v. Wong
, 2016 ONCA 366, leave to appeal refused [2016]
    S.C.C.A. No. 264, at para. 7: the law is quite well established that it is
    knowledge of the material facts necessary to support the cause of action that
    triggers the commencement of the litigation period. Knowledge of the extent of
    the damages is not necessary.

[11]

Mr. Baig was aware of the necessary facts to
    support a claim against Mississauga almost immediately after his fall. This was
    confirmed by the submission of his claim for compensation from Mississauga
    eight days later. He was twice advised of the two-year limitation period
    related to his claim for compensation. That his injuries appear to have worsened
    did not extend the limitation period.

[12]

We dismiss this ground of appeal.

Capacity

[13]

Mr. Baig claimed that he lacked the capacity to
    commence an action against Mississauga because he was under a disability. He
    relied on evidence that he receives a disability pension from the Province of
    Ontario. He also relied on academic articles filed with the motion judge.

[14]

The motion judge accepted that, while Mr. Baig
    had proffered evidence of a mental illness, there was no evidence that it rose
    to the level of incapacity for the purposes of s. 7 of the
Limitations Act
.
    After reviewing the chronology of events set out above, and noting that Mr.
    Baig had received legal advice on the issue, the motion judge held at paras.
    42-43 of her reasons:

There is a complete absence of any medical
    evidence to show that Mr. Baig by reason of his mental illness, the injuries
    suffered from the bicycle crash or his treatment at the hands of the insurance
    adjuster  rendered him incapable within the limitation period.
Medical
    documentation from 2017 and 2018 indicating that Mr. Baig has some cognitive
    deficits falls well short of establishing that he is now or was incapable
    during the limitation period
.

I note as well that Mr. Baig was articulate
    and organized in his preparation of and presentation of material to the Court
    and as well in his submissions.
There was nothing
    in his presentation which caused me to doubt that he had the capacity to
    commence the action within the limitation period. [Emphasis added.]

[15]

In our view, the motion judge correctly applied
    s. 7 of the
Limitations Act
. As she observed, under s. 7(2), a
    plaintiff is presumed to have been capable of commencing a proceeding, unless
    the contrary is proved on a balance of probabilities:
Carmichael v.
    GlaxoSmithKline Inc
.
, 2020 ONCA 447, 151 O.R. (3d) 609, at paras.
    77-78. As the motion judge found, it was not proved in this case.

[16]

This ground of appeal is dismissed.

Other
    Grounds of Appeal and Fresh Evidence Application

[17]

Mr. Baig advances other grounds of appeal
    related to the conduct of the hearing. He also applies to adduce fresh evidence
    to advance these grounds. As we explain below, the fresh evidence is not
    admissible on appeal. Even if we were to admit the fresh evidence, it would
    have no impact on the motion judges decision.

(1)

The Motion Judge Was Not Biased

[18]

Mr. Baig submits that an apprehension of bias
    arose from the beginning of the motion being appealed, and continued throughout
    the rest of the motion. In his fresh evidence affidavit, Mr. Baig recounted an
    exchange that he had with the motion judge in court about a report from one of
    his doctors. According to Mr. Baig, after reading the report, the motion judge
    looked at him and, in a harsh tone, said, youre fine. Mr. Baig subsequently
    told his doctor what happened, and he said: Thats not what I said at all.

[19]

Mr. Baig further submitted that the motion judge
    was not interested in hearing him and addressed him in a rude manner.

[20]

There is no merit to the submission that the
    motion judge was biased. First, Mr. Baig relies on his own assessment of what
    happened at the motion. He should have ordered the transcript of the
    proceedings. Moreover, the statement attributed to his doctor is hearsay and is
    not receivable as fresh evidence.

[21]

Even if Mr. Baigs description of what happened
    could be taken at face value, it does not establish a claim of bias. By all
    accounts, the hearing before the motion judge was lengthy. Mr. Baig had ample
    opportunity to state his case. The motion judge permitted him to file various
    documents at the hearing; documents that had not previously been served on
    Mississauga. Moreover, in the excerpt from the motion judges reasons
    reproduced in para. 14, above, the motion judge acknowledged the helpful manner
    in which Mr. Baig presented his case.

[22]

We dismiss this ground of appeal.

(2)

There Was No Breach of R. 15.01(1)

[23]

Mr. Baig submits that the motion judge infringed
    r. 15.01(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. He
    contends that, being a person under disability, he was entitled to be
    represented by counsel. As already noted above, the motion judge found that Mr.
    Baig was able to represent himself in court. Moreover, the issue was not raised
    with the motion judge, or any of the other judges before whom the motion was
    spoken to in the eight-month period between the service of the summary judgment
    motion and the day of the hearing.

[24]

We reject this ground of appeal.

(3)

The Appellants Rights Were Not Breached

[25]

Mr. Baig submits that his rights under s. 15 of
    the
Canadian Charter of Rights and Freedoms and the Ontario Human Rights
    Code
, R.S.O. 1990, c. H.19 were infringed as a result of discrimination
    based on disability. Mr. Baig has failed to establish any factual basis for
    this submission and we would not give effect to this ground of appeal.

(4)

Anonymizing the Title of Proceedings

[26]

In his fresh evidence application, Mr. Baig
    requests that the title of proceedings be anonymized in order to protect his
    privacy interests; a request that the motion judge refused. Instead, she sealed
    some of Mr. Baigs medical records.

[27]

We do not require fresh evidence to address this
    request. It is within the realm of legal argument. Nonetheless, we would take
    the same approach as the motion judge and extend the sealing order.  There is
    no legal basis to amend the title of proceedings in the manner that Mr. Baig
    requests.

(5)

Costs

[28]

Lastly, Mr. Baig seeks leave to appeal the
    motion judges costs award against him of $980. In our view, there is no basis
    to set aside this award, which was very reasonable in the circumstances.

Conclusion and Disposition

[29]

The appeal from the summary judgment order is
    dismissed. The application to adduce fresh evidence is dismissed. The
    application for leave to appeal the costs order is allowed, but the appeal is
    dismissed.

[30]

We award costs of the appeal to the respondent
    in the amount of $950, inclusive of taxes and disbursements.

L.B. Roberts J.A.

Gary Trotter J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Boehme (Re), 2020 ONCA 735

DATE: 20201120

DOCKET: C68412

Simmons, Lauwers and Nordheimer
    JJ.A.

IN THE MATTER OF:  Ralph Peter Boehme

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ralph Boehme in person

Erin Dann and Geocelyne Meyers, as
    amicus curiae

Nicholas Hay, for the respondent, Attorney
    General of Ontario

Heard: November 16, 2020 by
    videoconference

On appeal against the disposition of the
    Ontario Review Board dated December 16, 2019.

REASONS FOR DECISION

[1]

Mr. Boehme appeals from the disposition of the Ontario
    Review Board that continued the detention order against him. The appellant
    submits that the Board erred in not granting him an absolute discharge.

[2]

The Board found that the appellant continues to
    represent a significant threat to the safety of the public. It also found that,
    absent a detention order, the appellant would likely stop his medication,
    return to substance use, refuse psychiatric care and resume his harassing
    behaviour leading to the likelihood of serious psychological harm. The Board
    further found that a conditional discharge would not permit the appellants
    medical team sufficient time to intervene and prevent the appellant from
    engaging in criminal conduct, if the concerns about him abandoning his
    medication and returning to substance use materialized.

[3]

The evidence does not provide any foundation for
    an absolute discharge. All that the appellant offers is the simple passage of
    time. He says that he has had enough and that all he wants is to get on with
    his life. We contrast that statement by the appellant with the available
    evidence which shows that, notwithstanding the passage of time, the appellant
    still lacks insight into his behaviour, and his mental health issues, and he
    still poses a significant risk to the safety of the public.

[4]

Amicus
advances
    a separate position and that is that the Board erred in its consideration of a
    conditional discharge. We do not agree. The Boards rationale for rejecting a
    conditional discharge is sound, given the appellants current condition and the
    real concerns that, absent a detention order, the appellant will leave
    supervised housing, cease to take his medication, resume substance use, and
    deteriorate. The Board accepted the evidence of the appellants medical team
    that they need to be able to react quickly, if such a deterioration occurs, to
    mitigate the risk of the appellant contacting the victim, and that a
    conditional discharge does not provide that immediate response. It was
    reasonable for the Board to rely on that advice, given the gap in the
    enforcement of conditional discharges that has been identified on a number of
    occasions by this court: see, for example,
Re Davies
, 2019 ONCA 738,
    at para. 39.

[5]

Amicus
also
    submits that the Board failed to properly inquire into what is submitted to be
    a treatment impasse. Again, we do not agree. There is little in the record to
    establish that there is an impasse, as such. That said, the appellant has been
    under the supervision of the Board since 2011. We are concerned that there has
    been a lack of real progress in addressing the appellants condition since that
    time. The evidence does show that, at least recently, the appellants medical
    team has been considering alternate diagnoses and other forms of treatment. We
    would urge the Board to look closely at these efforts at the appellants next
    review (which is to be held shortly) and ensure that adequate steps are being
    taken to try and advance proper treatment of the appellants condition.

[6]

The appeal is dismissed.

Janet
    Simmons J.A.
P. Lauwers J.A.
I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Brampton (City) v. Elbasiouni,
    2020 ONCA 758

DATE: 20201130

DOCKET: C65017 &
C67931

Fairburn A.C.J.O., Miller and
    Zarnett JJ.A.

BETWEEN

The Corporation of the City of
    Brampton

Applicant (Respondent/Responding Party)

and

Ahmed Elbasiouni a.k.a. Ahmed
    Elbassiouni, by his litigation guardian Waleed Sewilam

Respondent (Appellant/Moving Party)

Mohamed Elbassiouni,
for the appellant by his litigation guardian Waleed Sewilam
[1]

Charles A. Painter for the respondent,
    The Corporation of the City of Brampton in C65017

Barnet H. Kussner, for the respondent,
    The Corporation of the City of Brampton in C67931

Heard and released orally: November
    24, 2020

REASONS FOR DECISION

[1]

These matters were scheduled for hearing today.

[2]

The appellant brings an adjournment application
    because a Litigation Guardian was appointed by a judge of the Superior Court of
    Justice on November 20, 2020. The City of Brampton (both as the respondent on
    the appeal and applicant on the Rule 2.1 application) opposes the adjournment
    in this self-represented matter. Considering all of the circumstances, including
    the fact that the self-represented appellant (respondent on the Rule 2.1
    application) has been in the hospital undergoing treatment for mental health
    concerns for over a month, and was only released yesterday, the adjournment is
    granted.

[3]

The Litigation Guardian has 30 days to respond
    to the Rule 2.1 application in C67931, after which that application will be
    considered by this court in writing.

[4]

In relation to the appeal in C65017, a date for
    hearing will be set for this matter to be heard as soon after 80 days from
    today as the courts schedule permits. That date will be marked peremptory. We
    are informed by Mr. Mohamed Elbassiouni, the appellants brother who is also a
    lawyer, that this is a reasonable amount of time for the adjournment. Mr.
    Mohamed Elbassiouni has said that he will not act on the appeal, but that this
    is nonetheless a reasonable amount of time to retain counsel, who has already
    been consulted, and will permit that counsel sufficient time to prepare.

[5]

Leave of the court must be sought before any
    additional materials are filed. Any such requests will be directed to the
    Associate Chief Justice.

[6]

Costs of todays hearing will be reserved to the
    panel that ultimately hears the appeal in C65017.

Fairburn
    A.C.J.O.

B.W.
    Miller J.A.

B.
    Zarnett J.A.

[1]

The appellants brother, Mr.
    Elbassiouni, is a lawyer. While not the lawyer of record for this matter, Mr.
    Elbassiouni gave submissions at the request of the litigation guardian for
    purposes of requesting the adjournment.