COURT OF APPEAL FOR ONTARIO

CITATION: Hamilton-Wentworth District School Board v. Fair,

2016 ONCA 421

DATE: 20160531

DOCKET: C60438

Laskin, Pardu and Roberts JJ.A.

BETWEEN

Hamilton-Wentworth District School Board

Applicant (Appellant)

and

Sharon Fair
,
Human Rights Tribunal of
    Ontario
and Kaye Joachim and Ontario Human Rights Commission

Respondents (
Respondents
)

Roy Filion and Mark Zega, for the appellant

Ed Canning, Wade Poziomka and Jennifer Zdriluk, for the
    respondent Sharon Fair

Margaret Leighton, for the respondent Human Rights
    Tribunal of Ontario

Insiya Essajee, for the intervenor Ontario Human Rights
    Commission

Heard: November 25, 2015

On appeal from the order of the Divisional Court (Justices
    Matlow, Whitaker and Ellies), dated September 29, 2014, with reasons reported
    at 2014 ONSC 2411, by way of judicial review of the decisions of Kaye Joachim,
    dated February 17, 2012 and March 14, 2013, with reasons reported at 2012 HRTO
    350 and 2013 HRTO 440.

Roberts J.A.:

Overview

[1]

This appeal concerns an employers duty to accommodate a disabled
    employee and the seldom-invoked remedy of reinstatement of an employee to her
    employment, under the Ontario
Human Rights Code
, R.S.O. 1990, c. H.19 (the

Code
).

[2]

The appellant, Hamilton-Wentworth District School Board (the School
    Board), submits that the Divisional Court erred in dismissing its application
    for judicial review of the Human Rights Tribunal of Ontarios (the Tribunal) decisions
    with respect to liability and remedy.

[3]

The Tribunal accepted the complaint by the respondent, Sharon Fair, and
    found that the School Board had discriminated against Ms. Fair by failing to accommodate
    her disability. As a remedy, among other relief, the Tribunal ordered Ms.
    Fairs reinstatement to employment with the School Board. The Divisional Court
    dismissed the School Boards application for judicial review.

[4]

The School Board argues that the Divisional Court erred in finding to be
    reasonable the Tribunals findings that there were positions available with the
    School Board in which Ms. Fair could and should have been placed as
    accommodation of her disability, and in ordering that Ms. Fair be reinstated to
    her employment with the Board after 14 years of absence.

[5]

For the reasons that follow, I see no error in the decision of the Divisional
    Court. In essence, the School Board is asking this court to retry the findings
    of fact that were made by the Tribunal, in the exercise of its specialized
    knowledge and discretion, and that were amply supported by the evidence. The
    Tribunals decision was reasonable and there is no basis for this court to
    interfere. I would therefore dismiss the appeal.

Background

[6]

Ms. Fair started her employment with the School Board in October 1988. In
    the seven years before taking a medical leave of absence, she occupied the
    position of Supervisor, Regulated Substances, Asbestos.

[7]

In the fall of 2001, Ms. Fair developed a generalized anxiety disorder, as
    a result of which she was hospitalized for almost a month. She was subsequently
    diagnosed with depression and post-traumatic stress disorder. This disability developed
    in response to the highly stressful nature of her job and her fear that, in
    making a mistake about asbestos removal, she could cause personal injury to
    others and be held personally liable for a breach of the
Occupational
    Health and Safety Act
, R.S.O. 1990, c. O.1.

[8]

In October 2001, Ms. Fair commenced an approved medical leave of absence
    from her employment. From March 2002 until April 2004, she received long-term
    disability (LTD) benefits from the Ontario Teachers Insurance Plan (OTIP),
    having met the standard of being totally disabled from performing the duties
    and responsibilities of her position.

[9]

In April 2003, Ms. Fair indicated that she wanted to return to work. Ms.
    Fairs OTIP consultant contacted the School Board to set up a meeting to
    discuss her return to work. The School Boards Disability Management Co-ordinator
    refused because she felt that she did not have enough information regarding Ms.
    Fairs restrictions and limitations to be able to discuss possible employment
    accommodations.

[10]

In June 2003, Ms. Fair began participating in a work-hardening schedule
    with the goal of returning to full-time employment. She made it clear that her
    participation in this program did not preclude her from accepting full-time
    employment as soon as it became available. In designing the work-hardening
    program, Ms. Fairs treating psychiatrist, Dr. Patricia Murphy, had indicated to
    the School Board that accommodations were to exclude work involving any
    personal liability, including, for example, overseeing construction or
    renovation projects. Ms. Fair participated in the program from June 2003 to January
    2004, volunteering with human resources.

[11]

There were full-time job openings for which the Tribunal found Ms. Fair ought
    to have been considered.

[12]

In June 2003, the School Board advertised a non-unionized Staff
    Development Supervisor position in the human resources department, the duties
    of which had previously been performed by another employee. Ms. Fair, that other
    employee, and others applied and were interviewed for the position. In August
    2003, the other employee was chosen as the successful candidate.

[13]

In July 2003, as part of a re-organization process of its plant
    department, the School Board redistributed the duties of a departing Area
    Supervisor.

[14]

In October 2003, Ms. Fair met with the Controller of the plant
    department and was informed that her medical condition precluded any
    accommodation within that department.

[15]

In November 2003, Ms. Fair requested more information about
    accommodation. In response, the Disability Management Co-ordinator advised that
    the School Board required clarification about Ms. Fairs restrictions and
    limitations.

[16]

In December 2003, Dr. Murphy provided the School Board with a medical
    update, advising that Ms. Fair could not return to her previous role for
    medical reasons and that she should look at positions that provided her with
    less exposure to the kind of stresses experienced in her previous role.

[17]

On December 15, 2003, Ms. Fair filed a human rights complaint, claiming
    that the School Board had discriminated against her under the
Code
by
    failing to accommodate her disability by placing her in a suitable alternate position.

[18]

In February 2004, the School Board requested that Ms. Fair attend an
    appointment with Dr. S.W. Dermer, a psychiatrist, to clarify and identify any
    restrictions or limitations that Ms. Fair might have and how best to
    accommodate her. In her March 1, 2004 instructing letter to Dr. Dermer, the
    School Boards Disability Management Co-ordinator stated that:

Sharon has a skewed view of entitlement and says we owe her a
    job and we are violating her human rights. I view Sharon as being extremely
    manipulative  if she believes you have something that can help her, she treats
    you well  otherwise.She can enhance details to attempt to sway your
    perspective. The rehab worker from OTIP has told me that she views Sharon as
    manipulative, difficult and single minded.

In closing, she directed Dr. Dermer to Please help
    identify REAL limitations/restrictions, fitness to return to work, separate
    medical from preference, etc.

[19]

Ms. Fairs eligibility for LTD benefits terminated in April 2004,
    because she was assessed as capable of gainful employment. She resumed sick
    leave benefits.

[20]

In May 2004, Dr. Dermer, who had examined Ms. Fair and consulted with
    her treating psychiatrist, Dr. Murphy, provided the School Board with his
    opinion that Ms. Fair suffers from a psychiatric impairment which renders her
    permanently disabled from her own occupation as a Supervisor, Regulated
    Substances. He indicated his agreement with Dr. Murphys opinion of Ms. Fairs
    restrictions and limitations, specifically:

Ms. Fair would not be able to function in a job which entailed
    responsibility for health and safety issues, nor any duties which would leave
    her at risk for personal liability. Outside these limitations and restrictions,
    Ms. Fair is otherwise capable of gainful employment, as she is not currently
    deemed to suffer from a psychiatric impairment sufficient to render her totally
    disabled.

[21]

The School Board did not identify another suitable position for Ms.
    Fair. On July 8, 2004, the School Board terminated her employment and offered
    her a severance package.

[22]

On November 24, 2004, Ms. Fair filed a further complaint with the
    Ontario Human Rights Commission, claiming that the Board had breached the
Code
by terminating her employment.

[23]

On July 4, 2006, Ms. Fair commenced a civil action claiming wrongful
    dismissal. The civil action remains active but was stayed pending the outcome
    of the human rights complaint process.

[24]

Following amendments to the
Code
, Ms. Fair transferred her case
    to the Human Rights Tribunal. In May 2009, in these new proceedings, Ms. Fair
    for the first time specifically requested reinstatement as a remedy.

Decisions of the Human Rights Tribunal

(i)

Liability

[25]

The Tribunal released its decision with respect to liability on February
    17, 2012. The Tribunal concluded that the Board discriminated against Ms. Fair
    on the basis of disability by failing in its duty to accommodate her beginning
    in April 2003.

[26]

The Tribunal found that Ms. Fair had fulfilled her obligation to
    co-operate fully in the accommodation process, including staying in constant
    communication with the School Board and providing her consent to the release of
    medical information.

[27]

By contrast, the Tribunal concluded that the School Board had failed to
    actively, promptly, and diligently canvas possible solutions to [Ms. Fairs]
    need for accommodation. That conclusion was based on a number of findings.

[28]

First, the Tribunal looked to the actions and inactions of the School
    Boards Disability Management Co-ordinator. Those included, among others: the
    failure to adopt an active role in canvassing all possible accommodation
    solutions from the outset; the failure to meet with the vocational
    rehabilitation consultant from Ms. Fairs long-term disability insurer to
    explore volunteer or work-hardening activity; and the attempt to influence the
    School Boards medical expert to conclude that Ms. Fair was not worthy of
    accommodation.

[29]

Second, the Tribunal considered the School Boards refusal to
    accommodate Ms. Fairs placement in available positions either temporarily or
    permanently. Specifically, the Tribunal held that the School Board could have
    accommodated Ms. Fair without undue hardship by placing her in the positions of
    Area Supervisor in the plant department and Staff Development Supervisor in the
    human resources department.

[30]

The Tribunal found that the budget documents for 2003/2004 reflected
    that there were surplus full-time Area Supervisor positions in the plant
    department, Ms. Fairs former department. Further, the Tribunal concluded that
    there was a genuine vacancy for the position of Staff Development Supervisor in
    the human resources department, where Ms. Fair had been volunteering during her
    work-hardening program, because the School Board had posted the position. It
    found that the position would have offered an opportunity for a lateral
    transfer without the displacement of any other party.

[31]

Finally, the Tribunal found a failure to accommodate on the part of the
    School Board when it neglected to give any consideration to Ms. Fairs ability
    to perform in alternate employment opportunities following the receipt of its
    experts report in May 2004, and instead terminated Ms. Fairs employment.

(ii)

Remedy

[32]

On March 14, 2013, the Tribunal released its decision on remedy and
    ordered, among other relief, the reinstatement of Ms. Fair to her employment
    with the School Board. In particular, the Tribunal concluded that, as soon as
    reasonably possible, Ms. Fair was to be reinstated to a suitable position for
    which she had the basic general qualifications, equivalent to the level that
    she had been at when last employed by the School Board. The position was not to
    involve exposure to personal liability for health and safety similar to the
    potential liability caused by working with asbestos. The School Board was also
    required to provide up to six months of training to prepare Ms. Fair for the
    position.

[33]

In ordering reinstatement, the Tribunal rejected the School Boards
    argument that the passage of time precluded or rendered unfair Ms. Fairs
    return to employment with the School Board. Specifically, the Tribunal noted
    that the delay in processing Ms. Fairs human rights complaint was not her
    fault and that Ms. Fairs assiduous efforts to find and engage in employment
    over the years indicated that she was still capable of returning to full-time
    employment.

Decision of the Divisional Court

[34]

On September 29, 2014, the Divisional Court dismissed the School Boards
    application for judicial review of the Tribunals decisions. Relevant to the
    issues raised and pursued on appeal, the Divisional Court upheld as reasonable
    the Tribunals findings that the School Board had failed to accommodate Ms.
    Fair to the point of undue hardship and that reinstatement was an appropriate
    remedy in the circumstances.

[35]

With respect to liability, the Divisional Court held that the Tribunals
    finding that the School Board never had any real intention to accommodate Ms.
    Fair, including its criticism of the School Boards Disability Management
    Coordinators efforts to undercut Ms. Fairs and her insurers efforts to
    obtain less demanding work, was amply supported by the evidence to which the
    Vice-Chair referred, particularly the documentary evidence.

[36]

On the issue of reinstatement, the Divisional Court found the Tribunals
    reasons to be intelligible, transparent and with justification. The
    Divisional Court recognized the broad remedial authority of the Tribunal to
    order reinstatement and, while acknowledging the relative uncommonness of the
    remedy in human rights litigation, noted that it was not unusual in labour
    relations litigation under the provisions of a collective agreement, where one
    might be dealing with exactly the same issues. The Divisional Court also
    agreed with the Tribunals conclusion that the passage of time did not render
    reinstatement inappropriate because the goal of the remedial provisions of the
Code
ought not to be thwarted because of the passage of time that was
    largely beyond the control of [Ms.] Fair.

[37]

On January 12, 2015, the Divisional Court dismissed Ms. Fairs motion to
    correct clerical errors in its September 29, 2014 decision, leaving the issue
    to this court.

Issues

[38]

The School Board raises the following issues on appeal:

(i)

Is the Divisional Courts
    apparent error in incorrectly referring to the position of Area Supervisor
    rather than Staff Development Supervisor a clerical or substantive error and to
    what extent does that error affect the issues on appeal?

(ii)

Did the Divisional Court err in holding
    that there was nothing unreasonable in the Tribunals findings on the issue of
    accommodation and that Ms. Fair should have been appointed to the position of
    Area Supervisor or Staff Development Supervisor?

(iii)

Did the Divisional Court err in holding
    that the Tribunals finding that the School Board failed to accommodate Ms.
    Fair to the point of undue hardship was reasonable?

(iv)

Did the Divisional Court err in
    holding that the Tribunals decision with respect to remedy was reasonable?

Analysis

Standard of appellate review

[39]

On an appeal such as this one, the standard of review on findings of
    fact, findings of mixed fact and law, and the exercise of remedial discretion
    is reasonableness.

[40]

This court recently explained the reasonableness standard in
Taylor-Baptiste
    v. Ontario Public Service Employees Union
, 2015 ONCA 495, 126 O.R. (3d)
    481, at para. 42, as follows:

The reasonableness standard of review recognizes that certain
    questions coming before administrative tribunals do not lend themselves to only
    one particular result. Consequently, reasonableness is concerned with both the
    existence of justification, transparency and intelligibility of the
    decision-making process, as well as with whether the decision falls within a
    range of possible, acceptable outcomes which are defensible in respect of the
    facts and law. Where the reasonableness standard applies to an issue, the
    person seeking judicial review must show that the tribunal could not reasonably
    have arrived at the decision it reached. [Footnotes omitted.]

[41]

Moreover, under the reasonableness standard, as also articulated in
Taylor-Baptiste
,
    at para. 40, the decisions of the Tribunal on determinations of fact and the
    interpretation and application of human rights law are entitled to the highest
    degree of deference having regard to the Tribunals expertise and
    specialization.

(i)

Is the Divisional Courts apparent error in incorrectly referring to the

position
    of Area Supervisor rather than Staff Development Supervisor

a
    clerical or substantive error and to what extent does that error

affect
    the issues on appeal?

[42]

The Tribunal found that the School Board could have accommodated Ms.
    Fair in the positions of Area Supervisor in the plant department and Staff
    Development Supervisor in the human resources department of the School Board.

[43]

The Divisional Court upheld the Tribunals findings on accommodation. However,
    the Divisional Court mistakenly referred to the position of Area Supervisor,
    rather than Staff Development Supervisor, in particular, as follows:

We can see nothing unreasonable in the Vice-Chairs findings on
    the issue of accommodation. While it is true, as the Board indicates, that it
    had identified the person who should be appointed to the position of Area
    Supervisor, that position was vacant. If Fair had been assigned to the
    position, no other person would require displacement. It is difficult to
    conclude that Fair was accommodated to the point of undue hardship where she
    was not assigned to a vacant position which would have accommodated her
    disability  and this is within a pool of hundreds of employees for a large
    public sector employer.

[44]

The School Board argues that this error indicates that the Divisional
    Court misconstrued material evidence and the parties submissions. As a result,
    this mistake rendered erroneous its conclusion that the Tribunals decision on
    accommodation was reasonable.

[45]

I would not give effect to this ground of appeal. It is clear from the
    Divisional Courts reasons that it was aware that there were two distinct
    positions in issue with respect to the question of Ms. Fairs accommodation: see,
    in particular, para. 28 of its reasons. Moreover, the balance of para. 39 of
    its reasons demonstrates that the Divisional Court considered the relevant facts
    and findings made by the Tribunal with respect to the position of Staff
    Development Supervisor and the accommodation issues related to that position,
    notwithstanding that it misstated the name of the position.

[46]

The Divisional Courts error in misstating the name of the position was
    clerical and did not affect its decision.

(ii)

Did the Divisional Court err in holding that the Tribunals findings on accommodation
    were reasonable and that Ms. Fair should have been appointed to the position of
    Area Supervisor or Staff Development Supervisor?

[47]

The School Board submits that this ground of appeal involves errors by
    the Tribunal in its interpretation of discrimination and/or the duty to
    accommodate. In my view, these submissions are no more than an attempt to
    re-argue findings of fact reasonably made by the Tribunal.

[48]

In order to put the School Boards submissions and the Tribunals
    findings into the appropriate context, it is useful at this point to set out
    some general principles about the employers duty to accommodate an employees
    disability under the
Code
. I start with the Supreme Court of Canadas
    articulation of the purpose of the duty to accommodate set out in
Hydro-Québec
    v. Syndicat des employé-e-s de techniques professionnelles

et de
    bureau dHydro-Québec, section locale 2000 (SCFP-FTQ)
, 2008 SCC 43, [2008]
    2 S.C.R. 561, at para. 14:

As LHeureux-Dubé J. stated, the goal of accommodation is to
    ensure that an employee who is able to work can do so. In practice, this means
    that the employer must accommodate the employee in a way that, while not
    causing the employee undue hardship, will ensure that the employee can work. The
    purpose of the duty to accommodate is to ensure that persons who are otherwise
    fit to work are not unfairly excluded where working conditions can be adjusted
    without undue hardship.

[49]

Section 5 of the
Code
confirms the right of every person to
    equal treatment in the employment relationship without discrimination or
    harassment because of certain specified attributes, such as disability, which
    are listed in that section. Under s. 10 (1) of the
Code
, disability is
    defined to include a condition of mental impairment or a mental disorder.

[50]

Section 17 of the
Code
is an interpretative provision that deals
    specifically with the duty to accommodate in the case of individuals who are
    disabled:

17. (1) A right of a person under this Act is not infringed for
    the reason only that the person is incapable of performing or fulfilling the
    essential duties or requirements attending the exercise of the right because of
    disability.

(2) No tribunal or court shall find a person incapable unless
    it is satisfied that the needs of the person cannot be accommodated without
    undue hardship on the person responsible for accommodating those needs,
    considering the cost, outside sources of funding, if any, and health and safety
    requirements, if any.

[51]

Failing to accommodate a persons disability-related needs is therefore
    a violation of s. 5 of the
Code
, which prohibits discrimination
    against a person because of disability, if that persons needs can be
    accommodated without undue hardship; the failure to take the appropriate steps
    to assess those needs is a violation of s. 5 of the
Code
:
Lee v.
    Kawartha Pine Ridge District School Board
, 2014 HRTO 1212, at para. 95;
ADGA
    Group Consultants Inc. v. Lane
(2008), 91 O.R. (3d) 649 (Div. Ct.), at
    paras. 107, 113.

[52]

The assessment of a persons disability-related needs and the
    appropriate accommodation to be made is a highly individualized process. As the
    Supreme Court of Canada observed in
British Columbia (Public Service
    Employee Relations Commissions) v. B.C.G.S.E.U.
, [1999] 3 S.C.R. 3, at
    para. 64:

Courts and tribunals should be sensitive to the various ways in
    which individual capabilities may be accommodated. Apart from individual
    testing to determine whether the person has the aptitude or qualification that
    is necessary to perform the work, the possibility that there may be different
    ways to perform the job while still accomplishing the employers legitimate
    work-related purpose should be considered in appropriate cases. The skills,
    capabilities and potential contributions of the individual claimant and others
    like him or her must be respected as much as possible. Employers, courts and
    tribunals should be innovative yet practical when considering how this may best
    be done in particular circumstances.

[53]

It is the employers onus to establish that it cannot accommodate the
    employees disability-related needs without experiencing undue hardship:
B.C.G.S.E.U.
,
    at para. 62. Undue hardship is not defined under the
Code
. Its
    interpretation has been the subject of much judicial consideration. In
Central
    Alberta Dairy Pool v. Alberta (Human Rights Commission)
, [1990] 2 S.C.R.
    489, at pp. 520-21, the Supreme Court of Canada provided the following guidance:

I do not find it necessary to provide a comprehensive
    definition of what constitutes undue hardship but I believe it may be helpful
    to list some of the factors that may be relevant to such an appraisal. I begin
    by adopting those identified by the Board of Inquiry in the case at
    barfinancial cost, disruption of a collective agreement, problems of morale of
    other employees, interchangeability of work force and facilities. The size of
    the employers operation may influence the assessment of whether a given
    financial cost is undue or the ease with which the work force and facilities
    can be adapted to the circumstances. Where safety is at issue both the
    magnitude of the risk and the identity of those who bear it are relevant
    considerations. This list is not intended to be exhaustive and the results
    which will obtain from a balancing of these factors against the right of the
    employee to be free from discrimination will necessarily vary from case to
    case.

[54]

In the present case, the evidence of both Ms. Fairs treating
    psychiatrist and the School Boards expert was that Ms. Fair had developed a
    psychiatric impairment that was caused by the stress of her former position. They
    agreed that her disorder disabled her from her former position. In particular,
    they opined that her disability prevented her from performing those essential
    duties of her former position that entailed responsibility for health and
    safety issues or that would leave her at risk for personal liability to the same
    extent as under that position. There is no dispute that Ms. Fairs psychiatric
    impairment is recognized as a disability for the purposes of the
Code
.
    As a result, the School Boards duty to accommodate Ms. Fair without undue
    hardship was triggered. These are the Tribunals findings. There is no error in
    these findings.

[55]

I now turn to consider the question of whether the Tribunal erred in
    finding that Ms. Fair could have been accommodated without undue hardship. The
    onus was on the School Board to demonstrate that it could not accommodate Ms.
    Fair without undue hardship.

Ms. Fairs capacity to return to full-time
    employment

[56]

The School Board takes issue with the Tribunals finding that Ms. Fair
    was capable of returning to full-time employment by April 2003. In essence, it
    argues that Ms. Fair was not medically cleared to return to full-time
    employment. Further, the School Board maintains that Ms. Fairs medical
    restrictions precluded her from working in a supervisory capacity because any
    supervisory position with the Board carries the potential for personal
    liability.

[57]

I would not accept these submissions. It was open to the Tribunal on the
    evidence before it to conclude that Ms. Fair could return to work full-time in
    a supervisory position in 2003 and 2004. The Tribunal was entitled to accept
    Ms. Fairs oral testimony and her email correspondence with the School Board,
    indicating her willingness and readiness to return to full-time employment. The
    work-hardening plan specifically anticipated a change in Ms. Fairs status in
    that the plan could change as required throughout the rehabilitation process
    and [would] be subject to further review. There were also the opinions of Ms.
    Fairs treating psychiatrist and the School Boards own expert that Ms. Fair
    was capable of returning to full-time employment. Indeed, it was as a result of
    the treating psychiatrists medical opinion that OTIP determined that Ms. Fair
    was no longer entitled to receive LTD benefits.

[58]

Moreover, in my view, the School Board too narrowly interprets the
    medical opinions to indicate that Ms. Fair was unable to work in any
    supervisory position because of potential liability and responsibility for
    safety issues. It was open to the Tribunal to construe the medical opinions as
    confining Ms. Fairs medical restrictions to supervisory positions involving
    the same level of personal liability as her previous position. Certainly there
    was no evidence that the positions of Area Supervisor or Staff Development
    Supervisor involved the same risk of personal liability as Ms. Fairs previous
    position.

Failure to appoint Ms. Fair to the position of Area
    Supervisor or Staff Development Supervisor

[59]

The appellant further submits that the Tribunal erred by finding that
    the School Board had failed to accommodate Ms. Fair by not appointing her in
    the summer of 2003 to the position of Area Supervisor in the plant department
    or Staff Development Supervisor in the human resources department. The School
    Board argues that the Tribunals liability decision creates new and unreasonable
    standards of accommodation because it requires an employer to create a surplus
    position or displace an incumbent employee to accommodate a disabled employee. Consequently,
    the appellant argues, the Divisional Court erred by finding the Tribunals decision
    to be reasonable.

[60]

I would not give effect to these submissions.

[61]

As I explain below, the Tribunal made factual findings that there would
    have been no need for the School Board to create a surplus position, as the
    financial resources existed for the Area Supervisor position, or to displace an
    incumbent employee, as the Staff Development Supervisor position was vacant.

[62]

The Tribunal did not create a new standard for accommodation but
    followed established principles. Specifically, the Tribunals decision is in
    keeping with the Supreme Court of Canadas decision in
Hydro Québec
. In
    that case, at para. 17, the court articulated an employers duty, short of undue
    hardship, to arrange the employees workplace or duties to enable the employee
    to work, as follows:

Because of the individualized nature of the duty to accommodate
    and the variety of circumstances that may arise, rigid rules must be avoided. If
    a business can, without undue hardship, offer the employee a variable work
    schedule or lighten his or her duties  or
even authorize staff transfers
 to ensure that the employee can do his or her work, it must do so to
    accommodate the employee. [Emphasis added.]

[63]

As the Tribunal correctly noted, the School Boards own policy on the
    Accommodation of Personnel recognized the principle that reasonable
    accommodation of a disabled employee may in some circumstances require the
    transfer of the employee to another position, as follows:

If an employee cannot perform the essential duties in his/her
    existing position, accommodation may be made in other positions. The respondent
    will consider the following factors in this process: seniority, availability,
    qualifications, and legislative or contractual obligations.

[64]

Consequently, the Tribunals conclusion that the School Board failed to
    accommodate Ms. Fairs disability was fact-driven and one that it was entitled
    to make based on the evidence before it.

Area Supervisor position

[65]

The School Board submits that, to have placed Ms. Fair into an Area
    Supervisor position in the summer or fall of 2003, it would have been required
    to create a position that was not needed and one that Ms. Fair had not
    indicated that she wanted or that she was capable of performing.

[66]

I would not accept these submissions. The Area Supervisor position was
    in the plant department where Ms. Fair formerly worked for over seven years. At
    that time, the plant department was in the process of re-organization and it
    was anticipated that several more Area Supervisors would be hired. The School Board
    ultimately decided not to fill these positions because of budgetary restraints but
    instead redistributed the duties of those positions among existing employees.

[67]

However, there was no evidence that the School Board did not have the financial
    resources, even during a period of fiscal restraint, to fill the position of
    Area Supervisor, or that it would have caused undue hardship to do so. On the
    contrary, as the Tribunal noted, the School Boards 2003/2004 budget provided
    for this position. Moreover, as indicated by Ms. Fair in her June 2003 email to
    the Disability Management Co-ordinator, she wanted to be considered for opportunities
    within the plant department. However, the Controller of the plant department
    refused to consider her for any position other than her previous position.

[68]

As a result, there is no basis to interfere with the Tribunals factually-based
    conclusion that the School Board could have placed Ms. Fair in the position of
    Area Supervisor in the plant department.

Staff Development Supervisor position

[69]

The School Board argues that the Tribunal misapprehended the evidence
    because there was no vacancy in this human resources position: the position had
    been temporarily occupied by another employee and continued to be occupied by
    her when Ms. Fair was reporting to her during her rehabilitation period. There
    was no issue that the other employee was more qualified for the position than
    Ms. Fair. According to the School Board, placing Ms. Fair into the position
    would have required the School Board to displace the other employee, which
    would have created undue hardship.

[70]

The School Boards arguments ignore evidence that the Tribunal was
    entitled to accept. First, as the Divisional Court agreed, the position was
    vacant. The other employee was not an incumbent in the position. If she had
    been, the School Board would not have been obliged to post the position to
    allow for competition in accordance with its own policy. The fact that there
    was a competition meant that there was no certainty that the other employee
    would be the successful applicant. Moreover, the fact that the School Board
    interviewed Ms. Fair and that she was one of the four applicants on the short
    list signified that Ms. Fair must have had more than the minimum qualifications
    for the position. Finally, there was no evidence that the other employees
    displacement from the position would have caused undue hardship to her, any
    other employee, or to the School Board.

[71]

The School Board also submits that there is no authority for the
    proposition that, in order to accommodate someone with a disability, that
    person should be given preference over someone who is a legitimate contender and
    the more qualified candidate for an employment position.

[72]

The School Boards argument misconstrues an employers duty to
    accommodate.

[73]

It is true that an employer has no obligation to place a disabled
    employee into a position for which he or she is not qualified: see, for
    example,
Ellis v. General Motors of Canada Ltd.
, 2011 HRTO 1453, at
    para. 28;
United Food and Commercial Workers Union, Local 1000A v.
    Kretschmar Inc. (MacEachern Grievance)
(2004), 129 L.A.C. (4th) 68, at
    paras. 7, 13-14, 21.

[74]

However, to fulfil its duty to accommodate an employees disability, an
    employer may be required in an appropriate case to place a disabled employee
    into a position for which he or she is qualified but not necessarily the most
    qualified.

[75]

For example, in
Re Union Carbide Canada Ltd. and E.C.W.U., Loc. 593
(1991), 21 L.A.C. (4th) 261, the arbitrator dismissed the grievance of an
    employee. The grievor was displaced by another employee who had been off work
    on a compensable injury and was not capable of performing his old job. The
    grievor had greater seniority than the returning employee. Nevertheless, the
    returning employee, who was capable of performing the position, was awarded the
    position because the employers obligation to accommodate under the
Code
prevailed over the seniority rights of the grievor.

[76]

The Divisional Court held that the Tribunals decision was based on the
    evidence before it and was not unreasonable. I would agree. The Tribunals
    decision is entitled to deference and there is no basis to interfere with it.

(iii)

Did the Divisional Court err in holding that the Tribunals finding that
    the School Board failed to accommodate Ms. Fair to the point of undue hardship
    was reasonable?

[77]

The School Board submits that the Tribunal erred in finding that any
    procedural inadequacies in the accommodation process followed by the School
    Board amounted to a breach of the
Code
. It argues that its reasonable
    compliance with the rehabilitation plan, in the absence of specific medical
    clearance for Ms. Fairs return to work, was sufficient to comply with its
    substantive obligations under the
Code
. It was only required to
    consider available positions after Ms. Fair had been medically precluded from
    returning to her original position, or had the rehabilitation plan been
    amended.

[78]

The School Board maintains that the Tribunal failed to identify any
    available position within Ms. Fairs restrictions at the time of the
    termination of her employment or in the foreseeable future. As a result, if it
    had not found that she should have been placed in either of the two positions
    discussed above, the Tribunal would not have found that the School Board had
    failed to accommodate Ms. Fair.

[79]

I would not accept these submissions. They essentially boil down to a
    challenge of the reasonableness of the Tribunals finding that the School Board
    failed to accommodate Ms. Fair to the point of undue hardship.

[80]

In the present case, it was open to the Tribunal on the evidence before
    it to find that Ms. Fair suffered from a disability that prevented her from
    performing or fulfilling the essential duties or requirements of her former
    position. This finding then engaged s. 17 of the
Code
, which required
    the School Board to accommodate Ms. Fair to the point of undue hardship.

[81]

I would agree with the School Boards submission that s. 17 of the
Code
does not impose a requirement on an employer to be perfect or allow the
    Tribunal to engage in speculation about what positions could potentially be
    available or performed by the disabled employee just because the accommodation
    process followed was not ultimately successful.

[82]

However, that is not what happened here. Section 17 of the
Code
obligated the School Board to accommodate Ms. Fairs needs to the point of
    undue hardship. This means that the School Board was required to take
    reasonable steps to accommodate Ms. Fair. Such reasonable steps, as the
    Tribunal explained, included altering her previous position or looking for
    alternate positions if the previous one could not be altered in order to
    accommodate her without undue hardship. As the Tribunal found, the School Board
    failed to do so.

[83]

As the Divisional Court explained, the Tribunal found that the School
    Board never had any real intention to accommodate [Ms. Fair]. Rather, the
    School Boards position from the beginning was that Ms. Fair was restricted
    from employment in all supervisory positions and, therefore, [it would] not
    accommodate her even if one was available.

[84]

It was open to the Tribunal to conclude that the School Board had failed
    to accommodate Ms. Fairs needs without undue hardship. As the Divisional Court
    noted, the Tribunal implicitly held that the duty to accommodate was not put on
    hold during the work-hardening program. The Tribunal also held that the School
    Board had a duty to obtain the medical evidence necessary to accommodate Ms.
    Fair, that Ms. Fair was willing to provide this information, and that the
    School Board had not fulfilled this duty.

[85]

The Tribunal fairly observed that the medical evidence required
    clarification concerning Ms. Fairs restrictions and that, as Dr. Dermer stated
    during his evidence, it would have been a simple thing for the School Board to
    clarify those restrictions with its own expert. There was no evidence that the
    School Board made any attempt to clarify Ms. Fairs restrictions with its own
    expert or consider alternate positions during the two months following receipt
    of its experts report in May 2004, confirming that Ms. Fair was capable of
    gainful employment, and its termination of Ms. Fairs employment in July 2004.

[86]

Overall, as the Divisional Court held, the Tribunals finding that the
    School Board failed to accommodate Ms. Fair to the point of undue hardship was
    reasonable. I would agree. There is no reason to interfere.

(iv)

Did the Divisional Court err in holding that the Tribunals decision
    with respect to remedy was reasonable?

[87]

The School Board submits that because Ms. Fair did not initially ask to
    be reinstated and did not request that remedy until the new tribunal and
    transition process were in force, she was precluded from receiving this remedy
    from the Tribunal.

[88]

I do not agree with these submissions. As the School Board concedes,
    under the former system, complainants did not have to specify remedies. When
    she transferred her complaint in 2009, Ms. Fair was entitled to request this
    remedy.

[89]

Further, the School Board submits that the remedy of reinstatement is
    unreasonable, unprecedented and disproportionate after a delay of so many years
    and in light of the failure of the Tribunal to identify any available position
    to which Ms. Fair could return. It also argues that the Divisional Court erred
    in drawing a comparison between reinstatement in human rights litigation and
    labour relations litigation.

[90]

I would not accept these arguments.

[91]

First, while rarely used in the human rights context, the remedy of
    reinstatement clearly falls within the Tribunals discretion to order under s.
    s. 45.2(1) of the
Code
, as follows:

45.2 (1) on an application under
    section 34, the Tribunal may make one or more of the following orders if the
    Tribunal determines that a party to the application has infringed a right under
    Part I of another party to the application:

3. An order directing any party to
    the application to do anything that, in the opinion of the Tribunal, the party
    ought to do to promote compliance with this Act.

[92]

As the Divisional Court correctly noted, The
Code
provides the
    Tribunal with broad remedial authority to do what is necessary to ensure
    compliance with the
Code
.

[93]

The determination of remedy falls within the specialized expertise of
    the Tribunal, and as such is accorded a high degree of deference:
Phipps v.
    Toronto Police Services Board
, 2010 ONSC 3884, 325 D.L.R. (4th) 701 (Div.
    Ct.), at para. 42, affd 2012 ONCA 155, 347 D.L.R. (4th) 616.

[94]

Further,
Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights
    Commission)
(2001), 209 D.L.R. (4th) 465, where this court set aside the
    reinstatement of an employee, is distinguishable from the present case.
    Although in
Ford Motor
, this court pointed to the time that had passed
    since the employees dismissal, it also relied on the internal inconsistencies
    within the Boards decision and the lack of consideration of an arbitrators
    prior decision upholding the discharge: see paras. 68-73.

[95]

The passage of years is not, by itself, determinative of whether
    reinstatement is an appropriate remedy. Rather, the decision as to whether to
    order reinstatement is context-dependent. In the present case, the Tribunal
    found none of the barriers to reinstatement that foreclosed reinstatement in
    the
Ford Motor
case. Specifically, Ms. Fairs employment relationship
    with the School Board was not fractured and the passage of time had not
    materially affected her capabilities.

[96]

Moreover, the Divisional Courts reference to the labour relations
    context was not unreasonable or unusual. For example, the Tribunal in
Krieger
    v. Toronto Police Services Board
, 2010 HRTO 1361, espoused similar
    principles. This case involved an application by a terminated employee for
    reinstatement following alleged discrimination. In examining the issue of
    reinstatement, the Tribunal noted, at para. 182:

While reinstatement orders are rarely requested or ordered in
    human rights cases, they are normally ordered in arbitral cases where a
    violation of a grievors rights has been found, unless there are concerns that
    the employment relationship is no longer viable
A.U.P.E. v. Lethbridge
    Community College
, [2004] 1 S.C.R. 727, 2004 SCC 28 (S.C.C.), at para. 56.
    The goal of human rights legislation, which is remedial in nature, is to put
    the applicant in the position that he or she would have been in had the discrimination
    not taken place. See
Impact Interiors Inc. v. Ontario (Human Rights
    Commission)
(1998), 35 C.H.R.R. D/477 (Ont. C.A.). Where viable,
    reinstatement is sometimes the only remedy that can give effect to this
    principle.

[97]

Finally, there was no error in the Tribunals requiring the School Board
    to determine the appropriate position. The School Board remains in the best
    position to determine what positions are available or could be made available,
    and the adjustments that it will be required to make in order to accommodate
    Ms. Fair.

Disposition

[98]

For these reasons, I would dismiss the appeal.

[99]

If the parties cannot agree on the disposition of costs here and before
    the Divisional Court, they may make brief written submissions of no more than
    two pages as follows: the respondents shall deliver their submissions by June
    14, 2016; and the appellant shall deliver its submissions by June 24, 2016.

Released: May 31, 2016

L.B. Roberts J.A.

I agree John Laskin
    J.A.

I agree G. Pardu
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: J.K. v. The Korea Times & Hankookilbo Ltd. (The
    Korea Times Daily), 2016 ONCA 375

DATE: 20160518

DOCKET: C60633

Laskin, Hourigan and Brown JJ.A.

BETWEEN

J.K. and S.K.

Plaintiffs

(Appellants)

and

The
    Korea Times & Hankookilbo Ltd. carrying on business as The

Korea
    Times Daily and carrying on business as Korean Entertainment

Weekly,
    Young Kwon Cho and Jay Jung

Defendants

(Respondents)

Peter Downard and Fida S. Hindi, for the appellants

Bruce McEachern, for the respondents

Heard:  April 15, 2016

On appeal from the order of Justice Darla A. Wilson of
    the Superior Court of Justice, dated June 2, 2015.

Hourigan J.A.:

A.

Overview

[1]

The appellants, J.K. and S.K., appeal the order of the motion judge
    dismissing their defamation claims for failure to comply with the notice
    provision contained in s. 5(1) of the
Libel and Slander Act
, R.S.O.
    1990, c. L.12.

[2]

For the reasons that follow, I would allow the appeal. In my view, the
    motion judge erred in law in her analysis of the sufficiency of the notice in
    issue, including by failing to consider the notice in the context of all of the
    surrounding circumstances.

[3]

A proper analysis of the notice makes plain that it conveyed to the
    respondents the essence of the matter complained of so that they could take
    appropriate steps to mitigate any damages, if they chose to do so. Therefore,
    it complied with the notice provision in the
Libel and Slander Act.

B.

Facts

[4]

The appellants are two young Korean women who came to Canada to study.
    They made complaints to the police that they were victims of repeated sexual and
    physical assaults and other crimes by members of their church group. The crimes
    were allegedly perpetrated by nine people over a twelve-month period.

[5]

As a consequence of the appellants allegations and the allegations of
    three other women, criminal charges were laid. The Korean press, both in Canada
    and Korea, reported on the charges and the subsequent court appearances.

[6]

On October 17, 2011, prior to the conclusion of the preliminary hearing,
    the Crown decided to withdraw the charges on the basis that there was no
    reasonable prospect of conviction.

[7]

The next day, the withdrawal of the charges was the subject of a
    front-page news article authored by the respondent, Jay Jung, entitled The
    Truth Has Finally Won in the
Korea Times Daily
,
a newspaper owned
    by the respondent The Korea Times & Hankookilbo Ltd. (Korea Times). In
    the article, the appellants were identified by name as complainants in the
    criminal proceedings. The article alleges that the appellants criminal
    complaint was a fabricated case.

[8]

In the same issue, the respondent editor Young Kwon Cho published an
    opinion column on the withdrawn charges entitled The Truth Came Out In This
    Way. Two days later, an article written by Mr. Jung about the case was
    published in
Korean Entertainment

Weekly
, a
    publication that is also owned by Korea Times, entitled Young Church Members
    Free From False Charges.

[9]

All three articles, which were written in the Korean language, contained
    statements that the charges against the accused were fabricated.

[10]

On November 22, 2011, the appellants counsel, J. David Sloan, wrote to the
Korea Times Daily
and
Korean Entertainment Weekly
. In that letter, counsel indicated that he
    represented the appellants and identified the articles in issue.  He alleged a
    breach of the publication ban made in the criminal proceedings because there
    were specific references identifying the appellants in the articles.

[11]

In the letter, counsel for the appellants also purported to provide
    notice of the appellants defamation claim:

Indeed, the entire tenor of the articles contained in your
    publications, which were at pages identified as A1, A3 and A4 on Tuesday,
    October 18, 2011 and in the October 21 edition of the Korean Times Daily as
    well as the October 21 edition of the Korean Entertainment Weekly of the Korean
    Times were totally improper as well as being defamatory and malicious in
    nature.

It is quite clear that the purpose behind the articles and the
    words printed was an attempt to harm my clients and their reputation.

As a result, notice is hereby given to you that an action will
    be brought for damages pursuant to the provisions of the
Libel and Slander
    Act
as a result of the defamation of these two ladies. In addition, there
    will be included a claim for punitive and aggravated damages by reason of the
    breach of the publication ban and the extreme agony and embarrassment that you have
    caused these two ladies by the publication of their names, contrary to the
Criminal Code of Canada
.

[12]

The respondents published no retraction, apology, or correction. The
    appellants issued their statement of claim seeking damages for defamation and for
    breach of the publication ban.

[13]

The respondents defended the action, pleading as follows, at para. 24:

LIMITATION PERIOD

The Defendants deny that the notice provided on behalf of the
    Plaintiffs pursuant to the
Libel and Slander Act
,
R.S.O. 1990,
    Chap. L 12, constituted proper notice of libel, as it did not sufficiently
    specify the matters complained of, given what was subsequently alleged in the
    Amended Statement of Claim. As such the claims in the Amended Statement of Claim
    which extend beyond the matters complained of in the said libel notice are
    statute-barred. The Defendants plead and rely upon s. 5(1) of the Act.

[14]

The case proceeded through discovery and pre-trial proceedings over the
    course of approximately three years. At examinations for discovery, counsel for
    the appellants asked about para. 24 of the respondents statement of defence.
    Counsel for the respondents replied that the notice should have particularized
    the allegedly libellous words complained of and that his position was that the
    notice was a breach of s. 5(1) of the
Libel and Slander Act
.

[15]

The action was set down for a three to four week jury trial to commence
    on June 1, 2015. On May 29, 2015, the respondents served a notice of motion to
    the trial judge, returnable June 1, 2015, seeking, among other things, an order
    dismissing the appellants defamation claims for failure to comply with s. 5(1)
    of the
Libel and Slander Act
.
Nowhere in the notice of motion
    is there any reference to the rule relied upon. Presumably, the respondents
    moved under Rule 21 of the
Rules of Civil Procedure
, R.R.O 1990, Reg.
    194.

[16]

The motion judge granted the motion and dismissed the appellants
    defamation claims. She held that the notice was deficient because it put the
    respondents in a position where they would have to guess at what statements
    were alleged to be defamatory.

c.      Analysis

(i)       Legal
    Principles

[17]

Subsection 5(1) of the
Libel and Slander Act
, provides:

Notice of action

No action for libel in a newspaper or in a broadcast
    lies unless the plaintiff has, within six weeks after the alleged libel has
    come to the plaintiffs knowledge, given to the defendant notice in writing,
    specifying the matter complained of, which shall be served in the same manner
    as a statement of claim or by delivering it to a grown-up person at the chief
    office of the defendant.

[18]

If s. 5(1) is applicable, compliance is a condition precedent to
    bringing an action in libel such that failure to provide adequate notice will
    bar the action:
Grossman v. CFTO-T.V. Ltd. et al
. (1982), 39 O.R. (2d)
    498 (C.A.), at p. 501, leave to appeal refused (1983), 39 O.R. (2d) 498 (note)
    (S.C.C.);
Misir v. Toronto

Star Newspapers Ltd
.
(1997),
    105 O.A.C. 270 (Ont. C.A.), at p. 273.

[19]

A review of the authorities considering s. 5(1) of the
Libel and
    Slander Act
reveals the following principles:

i.   There is no prescribed form of
    notice. The notice must identify the matter complained of and need not
    describe the statement complained of or specify the exact words:
Grossman
,
    at pp. 501-502.

ii.     Notices need not contain the
    same level of particularity as a statement of claim:
Canadian Union of
    Postal Workers v. Quebecor Media Inc
., 2016 ONCA 206, at para. 5;
World
    Sikh Organization of Canada v. CBC/Radio Canada
, 2007 CarswellOnt 7649
    (S.C.), at para.12.

iii.
     The adequacy of the notice must be assessed in the light                 of
    its purpose:
Shtaif v. Toronto Life Publishing Co
.,            2013
    ONCA 405, 366 D.L.R. (4th) 82
,

at para. 57.

iv.    The
    purpose of the notice is to call the publishers attention to the alleged
    libellous matter, so that the publisher may investigate and, if it deems it
    appropriate, publish a retraction, correction, or apology. This will permit the
    publisher to reduce or eliminate any damages:
Grossman
, at p. 501; see
    also
Janssen-Ortho Inc. v. Amgen Canada Inc
.
(2005), 256 D.L.R.
    (4th) 407 (Ont. C.A.), at para. 38;
Siddiqui v. Canadian Broadcasting Corp
.
    (2000), 50 O.R. (3d) 607 (C.A.), at para. 16, leave to appeal refused
    (2001), 271 N.R. 196 (note) (S.C.C.); and
Canadian Union of Postal Workers
,
    at para. 6.

v.   The
    appropriate test for the sufficiency of the notice is whether the notice fairly
    brings home to the publisher the matter complained of to permit the publisher
    to review the matter and decide how to respond:
Grossman
,
at pp. 504-505; see also
Siddiqui
,
    at para. 18;
Canadian Union of Postal Workers
,
at para. 6;

Gutowski v. Clayton
,
    2014 ONCA 921, 124 O.R. (3d) 185, at para. 36; and
Shtaif
at para. 58.

vi.   Courts
    can assess the adequacy of the notice in the light of all of the surrounding
    circumstances:
Grossman
, at p. 505; see e.g.
Pringle v. Channel 11
    Limited Partnership
, 2015 ONSC 2699, at paras. 20-22;
Boyer v. Toronto
    Life Publishing Co
.
(2000), 48 O.R. (3d) 383 (S.C.), at paras. 17-19.

vii.  A
    plaintiff may also benefit from the notice, because a timely correction,
    retraction, or apology may constitute a better remedy than damages:
Grossman
,
at p. 501.

viii. There
    is a preference in the case law to have matters determined on the merits,
    rather than terminating them on technical grounds: see
Grossman
, at p.
    505;
Telegram Printing Co. v. Knott
, [1917] 55 S.C.R. 631, 3 W.W.R.
    335, at p. 342;
Sentinel-Review Company Limited v. John R. Robinson
, [1928] S.C.R. 258, at pp. 262-63;
Pringle
, at paras. 33-34;

Boyer
, at para. 19.

[20]

In summary, in considering the adequacy of a notice, the court must have
    regard to the purpose of s. 5(1) and the circumstances of the particular case
    to determine whether it fairly alerts the publisher to the matter complained of,
    so that the publisher may take appropriate action.

[21]

In conducting this analysis, the court must be careful to ensure that
    the notice provision is not abused to shield publishers from legitimate
    defamation claims. Subsection 5(1) of the
Libel and Slander Act
was
    not enacted to reward publishers who are deliberately obtuse. Rather, it is
    designed to ensure that publishers have sufficient information to permit them
    to take appropriate steps to mitigate or to eliminate potential damages, if
    they choose to do so.

(ii)      The
    Principles Applied

[22]

In my view, the motion judge erred in her application of these legal
    principles in her analysis of the sufficiency of the notice. She repeatedly (at
    paras. 21 and 26-27 of her reasons) referred to the fact that the notice failed
    to specify the impugned phrases. There was, of course, no obligation on the
    part of the appellants to cite the specific statements complained of in the
    notice. All that had to be conveyed was the matter complained of.

[23]

The motion judge also noted, at para. 26, that the statement of claim
    provided more detail regarding the alleged defamatory statements. This is
    hardly surprising as, unlike the notice, the statement of claim in a libel
    action must specify the precise words that form the basis of the claim.

[24]

These errors taken alone are not necessarily fatal, but they reflect a narrow
    approach that is inconsistent with the case law, which shows a preference for cases
    to be determined on the merits and not dismissed for technical reasons where a
    publisher has the required information.

[25]

Compounding this error in the motion judges analytical approach is her failure
    to consider all of the surrounding circumstances to determine whether the
    notice brought home the matter complained of. Instead, her focus was primarily
    on the text of the notice compared to what was pleaded in the statement of
    claim.

[26]

The motion judge also erred in her
    application of this court's decision in
Siddiqui
.
At issue
    in
Siddiqui
was a broadcast that
    reported on an exclusive business arrangement between a travel company operated
    by the plaintiff and a charity. The content of the
Siddiqui

broadcast
    conveyed several distinct defamatory meanings, including that: (i) the travel
    agency was profiting unreasonably from what in effect is public money;  (ii)
    that the travel agency was a party to a rebate agreement with the charity pursuant
    to which the rebates were not recorded in the proper way, so that it was
    unknown where the money goes; (iii) that a kickback scheme may have been in
    place between the travel agency and the charity; and (iv) that the plaintiff
    and the travel agency had offered unauthorized discounts on Air Canada flights,
    had been cut off by Air Canada from booking seats on the airline, and were
    being sued by Air Canada.

[27]

The
Siddiqui

libel
    notice identified the date of the television broadcast, complained that the
    broadcast was slanderous of the plaintiff, and stated the plaintiffs intention
    to sue. This court concluded that a reasonable recipient of the notice could
    not know which of the distinct defamatory stings conveyed by the broadcast were
    complained of. In the present case, the libel notice was similarly vague.
    However, the context is much different because the three articles complained of
    in this case conveyed a single defamatory sting which was plain on the face of
    the articles, i.e. that the appellants fabricated the criminal charges against
    the nine accused. Therefore, this case is distinguishable from
Siddiqui
,
which
    involved multiple distinct defamatory stings. The motion judge erred in failing
    to take this context into account and in concluding that upon receipt of the
    notice the respondents could not know the essence of the case against them.

[28]

The cumulative effect of these errors is that the motion judge erred in
    law in her analysis of the sufficiency of the notice. This court is therefore obliged
    to consider the issue anew, namely, whether in all of the circumstances the
    notice fairly alerted Korea Times to the matter complained of, so that it could
    take appropriate action. I conclude that the notice, while hardly a model of
    clarity, met the requirements of s. 5(1) for the following reasons.

[29]

First, the articles are replete with references to the appellants having
    fabricated allegations of sexual assault and levelling false accusations
    against the accused in the criminal proceeding. The respondents were not in a
    position, as was suggested by the motion judge, of having to guess about the
    matter complained of. The nature of the alleged libel, being that the
    appellants falsified complaints to the police, is of the most serious nature.
    There is no need to resort to innuendo; the sting of the libel is plain on the
    face of the articles.

[30]

Second, it is significant that the respondents made only a limited objection
    to the notice in their statement of defence. They did not allege that the
    notice was invalid because it failed to specify the matter complained of.
    Instead, they complained that the statement of claim went beyond the matters
    complained of in the notice. Query how the notice can be both invalid for
    failing to specify the matter complained of and, at the same time, serve to
    define the limits of the matter complained of? The limited objection raised by
    the respondents speaks volumes about the true state of their understanding
    regarding the matter complained of in the notice.

[31]

Third, the timing of the motion leads to a reasonable inference that
    this was a position that the respondents decided to try on well into the
    litigation and that they were not genuinely confused about the nature of the
    matter complained of on receipt of the notice. Notably, their intention to
    bring the motion was not disclosed to the pre-trial judge. Respondents counsels
    explanation that he was waiting to obtain agreed upon translations of the
    articles before bringing the motion strikes me as hollow.

[32]

Fourth, in his opinion column, editor Young Kwon Cho acknowledged that
    in proclaiming the innocence of the accused, he recognized that his newspaper
    could be exposed to a defamation claim. It is not credible that, having averted
    to this possibility, the notice did not sufficiently bring home to him the
    matter complained of. Either the appellants were telling the truth or they were
    not. In reporting on the withdrawal of the charges in the manner they did, the
    respondents understood that they faced litigation exposure.

[33]

Fifth, the respondents primary submission in oral argument on appeal was
    that the articles properly construed are not defamatory of the appellants.
    Rather, they say that the real criticism was directed at a third party, who is
    alleged to have instigated and encouraged the false statements. That argument
    may well form the basis of a defence on the merits, but it adds little to the
    present analysis. The notice made clear that it was being sent on behalf of the
    appellants. It is difficult to fathom that the respondents would think that
    counsel for the appellants was writing to give notice of a potential claim
    related to statements made about a third party. It would have been clear to any
    publisher that the appellants were complaining that the articles stated that
    they had fabricated their allegations.

d.      Disposition

[34]

I would allow the appeal and set aside the order of the motion judge.
    The appellants, as the successful parties, are entitled to their costs of the
    appeal, which I would fix at $15,000, inclusive of fees, disbursements, and
    HST.

Released: May 18, 2016 JL

C.W.
    Hourigan J.A.

I
    agree John Laskin J.A.

I
    agree David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jacobs v. Ottawa (Police Service), 2016 ONCA 345

DATE:  20160510

DOCKET: C61012

Laskin, Hourigan and Brown JJ.A.

BETWEEN

Constable
    Kevin Jacobs

Appellant

and

Ottawa
    Police Service (Chief of Police)

Mark
    Krupa (Public Complainant)

Ontario
    Civilian Police Commission

Respondents

and

Police Association of
    Ontario

Intervenor

W. Mark Wallace and Elizabeth Warren, for the appellant,
    Constable Kevin Jacobs

Ian J. Roland and Michael Fenrick, for the intervenor,
    Police Association of Ontario

Eric Granger and Lawrence Greenspon, for the respondent,
    Mark Krupa

Christiane F. Huneault, for the respondents Ottawa
    Police Service

Benson Cowan and Kathryn Chung, for the respondent,
    Ontario Civilian Police Commission

Heard:  April 11, 2016

On appeal from the decision of the Divisional Court of
    the Superior Court of Justice (P.T. Matlow, T.R. Lofchik and M. Donohue JJ.),
    dated May 27, 2015, with reasons reported at 2015 ONSC 2240.

Hourigan J.A.:

[1]

The appellant, Constable Kevin Jacobs, is a
    police officer employed by the respondent Ottawa Police Service. He was found
    guilty of misconduct under
the
Police
    Services Act
,
R.S.O. 1990, c. P.15 (the
PSA
)
,
resulting from the
arrest of the respondent, Mark Krupa.
The respondent,
    the
Ontario Civilian Police Commission (the
    Commission), affirmed the hearing officers finding of guilt,
and the
    appellants judicial review application to the Divisional Court was dismissed.

[2]

The discrete issue for determination on this
    appeal is the standard of proof  applicable to a finding of misconduct under

s. 84(1) of the
PSA
,

which provides:

If at the conclusion of a hearing under subsection 66 (3), 68
    (5) or 76 (9) held by the chief of police, misconduct as defined in section 80
    or unsatisfactory work performance is proved on clear and convincing evidence,
    the chief of police shall take any action described in section 85.

[3]

The appellant and the intervenor, Police
    Association of Ontario, submit that s. 84(1) mandates a standard of proof that
    lies somewhere between a balance of probabilities and proof beyond a reasonable
    doubt, and that the hearing officer, the Commission, and the Divisional Court
    erred in finding that the standard of proof is a balance of probabilities.

[4]

The respondents take the position that the
    standard of proof for a finding of police misconduct is a balance of
    probabilities. They submit that clear and convincing evidence describes the
quality

of evidence generally required
    to meet the balance of probabilities
standard

in professional discipline matters and that this quality of evidence applies
    equally to police officers prosecuted under the
PSA
.

[5]

In reaching its
    conclusion that the standard of proof in disciplinary hearings under the
PSA
is a
    balance of probabilities, the Divisional Court held that the existence of an
    intermediate standard of proof was rejected by the Supreme Court of Canada in
F.H. v. McDougall
, 2008 SCC 53, [2008]
    3 S.C.R. 41, and that it was bound by this decision. The Divisional Court
    declined to follow the
Supreme Courts decision
    in
Penner v. Niagara (Regional Police Services Board)
,
2013 SCC 19
, [2013] 2 S.C.R.
    125, on the basis that the court did not undertake any analysis of whether a
    higher standard of proof applied to disciplinary proceedings under the
PSA
or refer to any jurisprudence.

[6]

In
    my view, the Divisional Court erred in relying on
McDougall

and in distinguishing
    the Supreme Courts remarks in
Penner
.

[7]

In
McDougall
,
    the Supreme Court considered
the civil standard of
    proof at common law

in a
civil claim alleging sexual assault. The main
    issue on appeal was whether a majority of the British Columbia Court of Appeal
    erred in finding that the trial judge misapplied the standard of proof in civil
    cases where allegations of morally blameworthy conduct have been made.
McDougall
did not purport to establish
    a universal standard applicable to statutory standards of proof. It is well-settled
    that it is within the authority of a legislature to create a standard of proof
    specific to a particular statute:
Stetler v. Agriculture, Food and Rural
    Affairs Appeal

(2005),

76 O.R. (3d) 321 (C.A.), at para. 79,
    leave to appeal refused (2006), 219 O.A.C. 400 (note) (S.C.C.). In my view,
    therefore, the Divisional Court erred in relying on
McDougall
.

[8]

The Divisional
    Court also erred in declining to follow the Supreme Courts decision in
Penner
. There,

the appellant made a complaint against two police officers under
    the
PSA
in relation to his arrest for disruptive behaviour in a
    courtroom. He also brought a civil action for damages arising from the same
    incident against the police officers, among others. The police officers were
    found not guilty of misconduct under the
PSA
and the Divisional Court
    ultimately upheld that finding. The respondents then filed a motion to
    dismiss the civil action on the basis of issue estoppel, taking the position
    that the disciplinary hearing finally determined the issues underpinning the
    civil action. That motion was successful in the Superior Court. This court
    dismissed an appeal of the motion judges order.

[9]

On further appeal to the Supreme
    Court,
a majority of the court held that it would be
    unfair to apply the discretionary remedy of estoppel to bar the appellants
    civil action because the appellant could not have reasonably contemplated that
    the officers acquittal at the disciplinary hearing would be conclusive of the
    outcome of his civil action. As part of its analysis, the court addressed, at
    para. 60, the different standards of proof in civil actions and
PSA
hearings:

As the Court of Appeal recognized, because the
PSA
requires that misconduct by a police
    officer be proved on clear and convincing evidence (s.64(10)), it follows
    that such a conclusion might, depending upon the nature of the factual
    findings, properly preclude relitigation of the issue of liability in a civil
    action where the balance of probabilities  a lower standard of proof  would
    apply.  However, this cannot be said in the case of an acquittal.
    The prosecutors failure to prove the charges by clear and convincing
    evidence does not necessarily mean that those same allegations could not be
    established on a balance of probabilities.  Given the different standards
    of proof, there would have been no reason for a complainant to expect that
    issue estoppel would apply if the officers were acquittedThus, the parties
    could not reasonably have contemplated that the acquittal of the officers at
    the disciplinary hearing would be determinative of the outcome of Mr. Penners
    civil action.

[10]

Penner
was
    binding authority on the Divisional Court and it erred in distinguishing it on
    the basis that all parties in that case accepted that clear and convincing
    evidence was a higher standard of proof. In fact, a review of the written
    record and the oral submissions in the Supreme Court shows that there was no
    agreement on the appropriate standard of proof. Although counsel for the
    respondents consistently argued that the higher clear and convincing evidence
    standard was immaterial in the circumstances of the case, counsel for the
    intervenor, Canadian Police Association, argued that it was artificial to
    discuss a third standard in the light of the recent
McDougall
decision. In his reply, counsel for the appellant agreed that there was only
    one standard of proof in civil matters, citing the
McDougall
decision
    as conflating the standard of proof. Counsel thus retreated from the position
    taken in his factum that clear and convincing evidence is a higher standard of
    proof than a balance of probabilities. That concession, that
McDougall
determined that clear and convincing evidence is a standard within the balance
    of probabilities, was clearly rejected by the Supreme Court.

[11]

I also cannot accede to the respondents submission
    that the courts statement in
Penner
regarding the standard of proof
    under the
PSA
is
obiter dicta
. At para. 47, the court held
    that the parties reasonable expectations regarding the scope and effect of the
    administrative proceedings are shaped by the text and purpose of the
    legislative scheme. Therefore, the finding on the standard of proof was central
    to the courts analysis of the reasonable expectations of the parties, which
    was the basis on which a majority of the court overturned the decision below.

[12]

Counsel for the respondents fairly concede that
    if the Supreme Court determined the issue of the standard of proof under the
PSA
in
Penner
, the appeal must be allowed and it is unnecessary to engage
    in a statutory interpretation of s. 84(1). In my view, we are bound by the Supreme
    Courts statement in
Penner
that the standard of proof in
PSA
hearings is a higher standard of clear and convincing evidence and not a
    balance of probabilities.

[13]

I would grant the appeal and set aside the order
    of the Divisional Court
dismissing
    the appellants application for judicial review to quash the decision of the
    Commission
. The matter is remitted
to the Commission for further consideration
    in accordance with these reasons.

[14]

If the parties are unable to agree as to costs,
    they may make brief written submissions.

Released:  May 10, 2016 DB

C.
    W. Hourigan J.A.

I
    agree John Laskin J.A.

I
    agree David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Laski v. Laski, 2016 ONCA 337

DATE: 20160504

DOCKET: M46343

Gillese J.A. (In Chambers)

BETWEEN

Wayne Steven Laski

Applicant (Moving party)

and

Wayne Steven Laski, Brian Eric Laski and
Wendi
    Susan Laski
, in their capacity as Estate Trustees of the Estate of Harold
    Laski, deceased and in their personal capacity as beneficiaries

Respondents (
Responding Party)

Peter Jervis, for the moving party

Andrea L. Di Battista, for the responding party

Heard: April 13, 2016

ENDORSEMENT

OVERVIEW

[1]

Wayne Laski (Mr. Laski or the Moving Party) and Wendi Laski (Ms. Laski
    or the Responding Party) are brother and sister. Mr. Laski started legal
    proceedings in respect of their fathers estate in June 2012. In those
    proceedings, he challenged his sisters right to certain accounts that had been
    in the joint names of her and their father, prior to their fathers death (the
    joint accounts).

[2]

On September 23, 2015, on consent of the parties, a court order was
    issued that contained a schedule for the hearing of a summary judgment motion to
    be brought by Ms. Laski (the Consent Order). When Ms. Laski brought the summary
    judgment motion, Mr. Laski responded with his own summary judgment motion. The two
    motions were heard together. The primary issue raised on both motions was the
    ownership of the joint accounts.

[3]

By order dated January 28, 2016 (the Order), Ms. Laskis motion was
    granted and Mr. Laskis motion was dismissed. The result of the Order is that
    the joint accounts are declared to have passed by right of survivorship to Ms.
    Laski and, therefore, do not form part of their fathers estate.

[4]

Mr. Laski moves before this court for an order extending the time to file
    a notice of appeal from the Order.

[5]

For the reasons that follow, the motion is dismissed.

BACKGROUND IN BRIEF

[6]

Harold Laski (the Testator) had three children: Wayne, Brian and
    Wendi. He passed away in 2012.

[7]

In paragraph 8(e) of his will dated March 27, 2003, the Testator
    specified that any assets which he owned jointly with Wendi Laski were hers
    alone on his death. Paragraph 8(e) reads as follows:

I advise my Trustees that I own some assets jointly with my
    daughter, WENDI SUSAN LASKI. For greater certainty, I advise my Trustees that
    these assets are owned jointly, with right of survivorship. If my said daughter
    survives me and if, for any reason, any assets owned jointly with my said
    daughter at the time of my death do not pass to her automatically on my death
    by operation of law, I direct my Trustees to transfer such assets to my said
    daughter on my death.

[8]

He bequeathed the residue of his estate to Ms. Laski and Mr. Laski in a
    60/40 split, having made provision for Brian on an
inter vivos
basis.

[9]

After the Testator died, Mr. Laski began litigation in which he sought,
    among other things, a determination of what joint accounts had passed to Ms. Laski,
    based on a right of survivorship, and which of those accounts she held by way
    of resulting trust for the Estate. He alleged that Ms. Laski dealt fraudulently
    with the joint accounts and had exercised undue influence over the Testator
    during the final months of his life, during which time some of the Testators
    assets were transferred into joint names with Ms. Laski.

[10]

Mr.
    Laski is a lawyer. Early in the litigation, Mr. Laski had legal representation
    but he acted in person on the summary judgment motions. He is represented by counsel
    on this motion.

[11]

Ms.
    Laski has had counsel throughout.

[12]

Mr.
    Laski served a notice of appeal of the Order in mid-March 2016,
[1]
by which time the 30-day deadline for serving a notice of appeal had passed. As
    a result, he brought this motion to extend the time to appeal.

THE DECISION BELOW

[13]

The
    motion judge reviewed the significant record that had been filed on the two summary
    judgment motions, including the evidence of: all three Laski children; Angelique
    Hamilton, the solicitor who had prepared the Testators will; and Norman Yu,
    the Testators investment advisor at BMO Nesbitt Burns. It is noteworthy that
    the vast bulk of the record was created by Ms. Laski.

[14]

Ms.
    Hamiltons evidence, supported by her contemporaneous notes, was that it was
    she who had suggested that clause 8(e) be inserted into the Testators will. The
    Testator had told her that he held assets in joint tenancy with Ms. Laski and
    wanted to ensure that those assets would go directly to her on his death, and
    not form part of his estate. Ms. Hamiltons evidence was that the Testator was
    concerned about Ms. Laskis financial situation because she was single, lived
    in Los Angeles, and worked in the film industry, which has its ups and downs
    whereas Mr. Laski was married, had a family and was a practicing lawyer.

[15]

Ms.
    Hamiltons evidence was that the Testator fully understood how joint accounts
    with a right of survivorship worked, that the Testator told her that he believed
    that Mr. Laski would challenge entitlement to the joint accounts based on the
    right of survivorship, and that he (the Testator) wanted to avoid litigation. This
    led Ms. Hamilton to suggest that para. 8(e) be inserted into the Testators
    will so that there would be no mistake about his intention in relation to the
    joint accounts. The Testator specified that he did not want to identify the jointly
    owned assets in his will because it would make his life a living hell if Mr. Laski
    knew the extent of the assets that would fall outside of his estate.

[16]

Mr.
    Yus evidence related to the account that the Testator opened in April 2011 at
    BMO Nesbitt Burns in joint names with Ms. Laski (the BMO Joint Account). Mr.
    Yus evidence was that the agreement was prepared on the Testators
    instructions and the BMO Joint Account had a right of survivorship. Investments
    of approximately $102,000 were transferred from a joint investment bank account
    at a different bank into the BMO Joint Account in May 2011.

[17]

The
    Testator entered the hospital in December of 2011 and remained there until the
    beginning of January 2012, when he returned home. On January 10, 2012, while at
    home, the Testator and Ms. Laski signed two directions. Both directions had
    been prepared by Mr. Yu on the Testators instructions. Mr. Yu completed the
    forms and witnessed the signatures of the Testator and Ms. Laski.

[18]

The
    first direction transferred money from the BMO Joint Account into Ms. Laskis
    own account at BMO. Mr. Laski did not take issue with that transfer.

[19]

The
    second irrevocable direction transferred over $400,000 in securities from the
    Testators sole account at BMO into the BMO Joint Account. Mr. Yus evidence
    was that the Testator instructed him to make this transfer because he felt he
    was dying and wanted to make sure that Ms. Laski was taken care of. Mr. Yu
    understood from the Testator that the assets were to be for Ms. Laskis benefit
    alone. Mr. Yus evidence was that the Testator complained that he was having
    problems with Mr. Laski at the time, and that Mr. Laski had been bullying him
    and asking for money that the Testator did not want to give him. His evidence
    was that the Testator said he was tired of Mr. Laskis bullying, that he did
    not want Mr. Laski to receive more money, and that he wanted to protect Ms.
    Laski.

[20]

The
    motions judge rejected Mr. Laskis allegations that Ms. Laski had exerted undue
    influence over the Testator during this period. She found no evidence that the
    Testator was dependent on or vulnerable to Ms. Laski, noting that the Testator
    had 24-hour third party caregiving in the relevant period. She also noted that
    there was no evidence that the Testator was isolated in any way from the rest
    of his family. The fact that Ms. Laski visited her father and supported him
    during and after his hospital stay was not evidence of undue influence nor was
    the mere fact that she was liaising with the Testators investment advisor,
    given that the Testator wanted to make some changes to his accounts at that
    time.

[21]

There
    was no medical evidence to support Mr. Laskis claim that the Testator was
    vulnerable to any undue influence at the time.

[22]

All
    parties conceded that there were no issues with respect to the Testators
    mental capacity.

[23]

The
    motions judge observed that on a summary judgment motion, each side must put
    its best foot forward. She described Mr. Laskis evidence as bald and
    self-serving.

[24]

The
    motions judge found that the issues relating to the joint accounts could be
    fairly and justly adjudicated on the motions and did not require a trial. She
    also reviewed the evidence relating to the alleged inconsistencies in Ms.
    Laskis evidence that Mr. Laski relied on and found they did not give rise to a
    legal finding of fraud or deceit.

[25]

The
    motions judge referred to the relevant legal principles in
Pecore v. Pecore
,
    2007 SCC 17, [2007] 1 S.C.R. 795, and concluded that the presumption of
    resulting trust had been rebutted. She found the evidence was overwhelming
    that the Testator intended that any assets in joint accounts were gifts to Ms.
    Laski and that she acquired them, on the Testators death, for her sole use. The
    Testator knew exactly what he was doing.

ANALYSIS

The Test

[26]

The
    overarching principle on a motion to extend time to file a notice of appeal is
    whether the justice of the case requires that an extension be given:
1250264
    Ontario Inc. v. Pet Valu Canada Inc.
, 2015 ONCA 5, at para. 6.  Each case
    depends on its own circumstances but, in answering that question, the court is
    to take into account all relevant considerations, including:

1.   whether the moving
    party formed a
bona fide
intention to appeal within the relevant time
    period;

2.   the length of, and
    explanation for, the delay in filing;

3. any prejudice to the
    responding parties caused, perpetuated or exacerbated by the delay; and

4.   the merits of the
    proposed appeal.

1.       Intention to appeal

[27]

In
    this case, there is no doubt that the moving party formed a
bona fide
intention
    to appeal within the appeal period.

2.       Length of, and explanation for, the delay

[28]

The
    length of the delay in filing the notice of appeal is short  less than three
    weeks.

[29]

However,
    I find the explanation given for the delay to be troubling.

[30]

In
    his affidavit on this motion, Mr. Laski states that he failed to file his
    notice of appeal in a timely fashion because he thought that it could only be
    prepared after he received a transcript of the oral reasons for judgment. The oral
    reasons were delivered in court at the end of the hearing of the summary
    judgment motions.

[31]

In the
    same affidavit, Mr. Laski says: I do not do civil appeals. I am not
    experienced with respect to civil appeals. He goes on to say that he only
    realized that he had missed the deadline for appeal when he contacted counsel
    after receiving the transcript of the oral reasons.

[32]

Counsel
    for the Responding Party points out that in his affidavit, Mr. Laski neglected
    to inform the court that he acted as counsel for the plaintiffs (one of whom
    was an employee of his) in a summary judgment motion heard over two days in the
    Superior Court of Justice in April of 2014.
[2]
Mr. Laski also neglected to inform this court that later that year, he acted
    as counsel for the same parties when they appealed from the decision rendered
    on the summary judgment motion.
[3]

[33]

The Responding
    Party raised other instances of what it called the Moving Partys
    misrepresentation and/or false evidence. I find it unnecessary to deal with
    those other matters. The facts set out in the preceding paragraph alone make
    the explanation for the delay troubling. While Mr. Laski states that he practices
    in the field of criminal law, the fact remains that less than two years ago, he
    served as counsel both on a summary judgment motion and on an appeal against
    the resultant decision to this court.

[34]

In
    these circumstances, doubt is cast on the explanation for the delay. At a
    minimum, it suggests that Mr. Laski was less than forthcoming in his
    explanation for the delay.

3.       Prejudice

[35]

The Responding
    Party asks the court to consider the emotional toll that this litigation is
    exacting on Ms. Laski, noting that this emotionally-charged estate litigation
    between siblings has been drawn out over several years and involves deeply personal
    allegations against Ms. Laski, including allegations of fraud.

[36]

It
    is an unfortunate reality that a respondent often suffers emotional and
    financial stress when an appeal is delayed. However, as I understand it, the
    prejudice to be considered when deciding a motion to extend time to appeal
    refers to the prejudice attributable to the delay in filing the notice. I have
    been pointed to no prejudice caused, perpetuated or exacerbated by the delay.

4.       Merits of the appeal

[37]

When
    considering the merits of the proposed appeal for the purpose of determining
    whether to grant an extension of time to appeal, the court is to determine not whether
    the appeal will succeed but whether it has so little merit that the court can reasonably
    deny the moving party his or her important right of appeal:
Nguyen v.
    Economical Mutual Insurance Co.
, 2015 ONCA 828, at para. 13. It is readily
    apparent that this is a low threshold. However, it is a very significant one
    because even if the other considerations augur in favour of extending time,
    where the appeal is clearly without merit, the motion will be denied:
Nguyen
,
    at para. 13.

[38]

The
    Moving Party in this case has failed to show any merit in his proposed appeal.

[39]

In
    his proposed notice of appeal, Mr. Laski raises two different sorts of grounds
    of appeal. First, at clauses 11 (a), (b) (c) and (g) of the proposed notice of
    appeal, Mr. Laski sets out grounds of appeal relating to the way in which the
    motions judge handled credibility issues. Second, in the balance of paragraph
    11, there is a list of numerous alleged errors going to the merits of the
    Order. Paragraph 11 of the proposed notice of appeal is set out in full at
    Appendix A to these reasons.

Grounds Relating to Credibility

[40]

Based
    on the proposed notice of appeal and oral submissions made at the hearing of
    this motion, I understand that in the proposed appeal, the Moving Party would
    seek to establish that the motions judge erred in deciding the motions without
    requiring either the oral examinations of witnesses as part of the hearing of
    the motions or requiring a trial of an issue. Counsel for Mr. Laski says that Mr.
    Laski raised credibility issues before the motions judge that could not be
    fairly decided in the absence of oral evidence. Counsel further submits that
    Mr. Laskis plea to the motion judge that he be allowed to cross-examine Norman
    Yu was shut down and this was a denial of procedural fairness.

[41]

For
    three reasons, I see no merit in this ground of appeal.

[42]

First,
    Mr. Laski agreed to have the matter proceed by way of a summary judgment
    motion. It is not a viable ground of appeal to now argue that the summary
    judgment process, which gives the motion judge the power to decide credibility
    matters without the necessity of hearing oral testimony, was flawed.

[43]

The Consent
    Order makes it clear that Mr. Laski agreed that the matter would be dealt with
    by way of a summary judgment motion. So, too, does the fact that he responded
    to Ms. Laskis motion by bringing his own summary judgment motion, returnable
    at the same time. Clearly, he must have thought that the summary judgment
    process was suitable for disposing of the proceeding. Notably, his cross-motion
    for summary judgment addressed the same issues as those in Ms. Laskis motion:
    ownership of the joint accounts.

[44]

Second,
    Mr. Laskis complaint that the summary judgment motions could not be fairly
    decided in the absence of oral testimony is belied by the fact that the primary
    relief he seeks in the proposed notice of appeal is that his summary judgment
    motion be allowed. If it were an error for the motions judge to have decided
    the motions without hearing oral evidence then that relief could not fairly be
    granted on an appeal.

[45]

Third,
    there is nothing to Mr. Laskis submission that the motions judge erred in
    failing to call oral evidence or order trial of an issue.

[46]

Mr.
    Laski says that the motions judge erred by failing to allow him to call Norman
    Yu. But there was nothing to prevent Mr. Laski from calling Mr. Yu as a witness.
    Paragraph 2 of the Consent Order provides that [e]ither party may elect to
    call Norman Yu as a witness at the Summary Judgment motion in addition to seeking
    an Order pursuant to Rule 31.10 of the
Rules of Civil Procedure
. Mr.
    Laski did neither. Had he wanted to call Mr. Yu as a witness, para. 2 of the
    Consent Order expressly empowered him to do exactly that.

[47]

While
    Mr. Laski did not call Mr. Yu as a witness at the hearing of the summary
    judgment motions, as he could have, he did ask that Mr. Yu be ordered to
    re-attend for examination. The motions judge denied that request after hearing
    submissions from both parties and from counsel for Mr. Yu. Mr. Laski conceded
    that, at his December 2015 examination, Mr. Yu answered the questions that Mr.
    Laski asked about Mr. Yus interactions with the Testator. The motions judge
    observed that it was those questions that were relevant to the summary judgment
    motions. There is nothing to the suggestion that the motions judge erred in
    refusing to require Mr. Yus re-attendance.

[48]

Similarly,
    there is nothing to the submission that the motions judge failed to properly
    consider the credibility issues that Mr. Laski raised in respect of Ms. Laski. The
    motions judge dealt with those matters, pursuant to her powers under rule 20.04(2.1)
    which empowers her to weigh the evidence and evaluate credibility. Saying that
    she erred by failing to order the trial of an issue does not make it so. The Moving
    Party must do more than baldly assert that it was an error to fail to order the
    trial of an issue, particularly as Mr. Laski never asked below that Ms. Laski
    be required to give oral testimony or for trial of an issue.

[49]

Accordingly,
    there is no merit to Mr. Laskis submission that the motion judge erred in
    principle when she decided the motions on the basis of the written record
    before her.

Merits of
    the Order under Appeal

[50]

The
    grounds in the proposed notice of appeal going to the merits are bald
    generalised assertions that amount to little more than saying that the motions
    judge erred in everything that she decided.

[51]

The
    motion judges findings are entitled to significant deference. Mr. Laski has
    pointed to no errors in those findings, much less a palpable and overriding
    error. Although there is a low threshold when considering the merits of the
    proposed appeal, bald assertions without more do not meet it.

The Justice of the Case

[52]

As I
    previously indicated, the overarching principle on a motion to extend time is whether
    the justice of the case requires that the extension be granted.

[53]

There
    is no question that Mr. Laski formed the intention to appeal immediately on
    learning that he was unsuccessful on the motions below. The delay in this case
    is short and I have been pointed to no prejudice flowing from that delay. However,
    as I have explained, I am troubled by the moving partys explanation for the
    delay. Furthermore, Mr. Laski has failed to show that there is any merit to the
    proposed appeal.

[54]

The
    motions judge dealt thoroughly  both legally and factually  with Mr. Laskis contention
    that his father never intended Ms. Laski to have the joint accounts on his
    death, and that Ms. Laski exercised undue influence and fraud to transfer the
    bulk of their fathers estate to a joint account in the three months before his
    death.

[55]

In
    the words of the motions judge, there was overwhelming evidence that the
    Testator intended the joint accounts to pass to Ms. Laski on his death. Paragraph
    8(e) of his will said precisely that. His solicitor gave evidence, supported by
    her notes made contemporaneously with the preparation of his will, that it was
    the Testators clear intention that Ms. Laski was to be solely entitled to the
    joint accounts on his death. So, too, did the Testators investment advisor.

[56]

The
    justice of the case does not warrant an extension of time to file a notice of
    appeal.

DISPOSITION

[57]

Accordingly,
    the motion to extend time is dismissed.

[58]

If the parties are unable to agree on costs, they may make written
    submissions, not to exceed two typewritten pages, no later than 7 days from the
    date of release of this endorsement.

E.E. Gillese
    J.A.

APPENDIX A

Paragraph 11 of the moving partys proposed notice of
    appeal reads as follows:

11. In summary, Conway J. made the
    following errors:

(a) She erred by
    failing to properly direct herself regarding the proper principles to apply
    when determining a summary judgment motion involving issues of credibility and
    material conflicts in the evidence on the record which require either a trial
    of the issue or trial to resolve fairly.

(b) The failure
    to properly consider the issues of credibility arising: Conway J. erred in
    ignoring the issues of credibility and perjury on the record.

(c) Failure to
    direct oral examination when there were serious issues of credibility on the
    record.

(d)  Failure to
    apply the proper principles with respect to the presumption of undue influence
    on a testator.

(e)  Failure to
    apply the proper principles with respect to the presumption against gift.

(f)   Failure in
    finding there was no independent evidence to support undue influence.

(g)  The
    evidence of Norman Yu was concealed by Wendi Laski and the Bank of Montreal for
    almost four years before it was brought forward. It was only brought forward
    one month before the motion. Conway J. erred in failing to consider the fact
    that the evidence of Norman Yu was untested and uncorroborated and lacking in
    credibility.

(h) Failure in
    her finding that Wayne Laski was in breach of section 13 of the
Evidence Act
.

(i)   Failure to
    use the proper test for civil fraud.

(j)   Her
    findings and decision were contrary to the weight of the evidence.

(k)  The
    transcript of Oral Reasons of Justice Conway, which provide the basis for this appeal,
    were only released on March 2, 2016.

[1]
The parties dispute the effective date of service.  It is either March 17 or
    19, 2016.

[2]

Danos v. BMW Group Financial Services Canada et al
, 2014 ONSC 2060.

[3]

Danos v. BMW Group Financial Services Canada
, 2014 ONCA 887.