COURT OF APPEAL FOR ONTARIO

CITATION: Sokoloff v. Tru-Path
    Occupational Therapy Services Ltd., 2020 ONCA 730

DATE: 20201117

DOCKET: C67387

Huscroft, Zarnett and Coroza JJ.A.

BETWEEN

Wendy Sokoloff and
    Wendy Sokoloff Professional

Corporation
    c.o.b. Sokoloff Lawyers

Plaintiffs (Respondents)

and

Tru-Path Occupational
    Therapy Services Ltd.

and
    Troy Campbell

Defendants (Appellants)

Shantona Chaudhury and
    Cristina Senese, for the appellants

Jonathan C. Lisus, Andrew
    Winton and Vlad A. Calina, for the respondents

Heard: July 20, 2020 by video
    conference; additional written submissions filed

On
    appeal from the order of Justice Edward M. Morgan of the Superior Court of
    Justice, dated July 25, 2019, with reasons reported at 2019 ONSC 4756.

Huscroft
    J.A.:

OVERVIEW

[1]

The appellants appeal from the order of the motion judge dismissing
    their motion to dismiss the respondents defamation action under s. 137.1 of
    the
Courts of Justice Act
, R.S.O. 1990, c. C.43 (
CJA
),
    Ontarios so-called anti-SLAPP (Strategic Litigation Against Public
    Participation) provision. The motion judge held that the impugned expression
    messages on signs displayed on the sidewalk outside the respondents office
    concerned the appellants private and commercial interests and did not relate
    to a matter of public interest within the meaning of s. 137.1(3) of the
CJA
.
    The motion judge went on to conclude that, in any event, the harm caused by the
    appellants alleged defamatory comments was sufficiently great as to favour of
    letting the respondents defamation action proceed pursuant s. 137.1(4)(b) of
    the
CJA
.

[2]

As I will explain, the motion judge erred by taking into account
    irrelevant considerations in determining whether the expression at issue
    related to a matter of public interest. Nevertheless, his conclusion is amply
    supported by the relevant considerations he relied upon, and by the record, and
    should be upheld. Accordingly, the s. 137.1 pretrial dismissal remedy was not
    available to the appellants.

[3]

I would dismiss the appeal and would deny leave to appeal costs for the
    reasons that follow.

BACKGROUND

[4]

The alleged defamatory statements were made by the appellant Troy
    Campbell, president of Tru-Path Occupational Therapy Services Ltd., on two
    occasions when he stood in the street outside the respondent Wendy Sokoloffs
    law office, Wendy Sokoloff Professional Corporation (Sokoloff Lawyers),
    holding signs that stated:

SOKOLOFF LAWYERS USED OUR COMPANYS REHAB SERVICES TO HELP MANY
    OF THEIR CLIENTS AB CLAIMS BUT WONT PAY.

OVER $1.3 MILLION OF OUR REHAB COMPANYS PAYMENT IS BEING
    SEIZED BY SOKOLOFF LAWYERS.

DEAR SOKOLOFF LAWYERS: YOU HAVE OUR REHAB COMPANYS NEARLY $1.4
    MILLLION DOLLARS. PAY YOUR UNDERTAKINGS NOW!

SOKOLOFF LAWYERS IS TAKING MONEY FROM OUR REHAB COMPANYS
    ACCOUNT TO PAY THEIR CLIENTS TORT DISBURSEMENT. HOW IS THIS LEGAL?

[5]

The first two statements were alleged to be defamatory. They were made
    in the context of a dispute over payment of the appellants fees for services
    provided to the respondents clients. The respondents have held back payment
    the appellants say they are owed by the respondents clients, pending
    authorization by their clients to pay the appellants.

The motion judges decision

[6]

The motion judge approached the first prong of the test under s.
    137.1 by asking what the impugned expression was about, or what it pertained
    to, as directed by this court in
1704604 Ontario Ltd. v. Pointes Protection
    Association
, 2018 ONCA, 685, 142 O.R. (3d) 161 (
Pointes (ONCA)
)
,
affd 2020 SCC 22 (
Pointes (SCC)
). It was not enough that the expression
    might address the field of law, legal ethics, health care, rehab services, or
    accident benefits. The real question was whether the expression concerned the
    respondents publicly scrutinized conduct as members of the legal profession
    or, instead, the respondents private conduct in carrying on their business.

[7]

The motion judge found that the interest of the public did not rise
    above mere curiosity or prurient interest and so did not meet the s. 137.1
    test. The sole issue between the parties was a contractual dispute  whether
    the respondents had to protect fees owing to the appellants by their clients when
    they received settlement funds for those clients. The motion judge found that Mr.
    Campbell acknowledged as much when he stated in cross-examination: the signs
    I was carrying in front of Sokoloff Lawyers offices are concerned with settled
    matters in which Wendy and Sokoloff Lawyers are holding onto  have seized
    money belonging to Tru-Path.

[8]

The motion judge noted that Mr. Campbell did not say he was holding the
    signs because he was concerned about accident victims or the provision of
    services to the public. Nor did he profess to being concerned about the
    regulation of lawyers or their professional duties in handling trust funds. On
    the contrary, he stated specifically that these things did not concern him. The
    motion judge adopted the respondents submission in stating: you cannot be
    making statements about a matter of public interest if you profess to be
    indifferent to the public interest.

[9]

The motion judge acknowledged that a fee dispute between a solicitor and
    client could be a matter of public interest, as it touches on legal fees and
    access to justice. But this was not a dispute between a solicitor and client;
    it was a contractual dispute between two sets of regulated professionals and
    had a strictly private character. He added that if there was a public interest
    in anything in these circumstances, it was in having professionals resolve
    their differences in court rather than on the street. The motion judge described
    the expression as an unseemly attempt to embarrass the respondents.

[10]

This
    was sufficient to dispose of the appellants motion, but the motion judge went
    on to briefly consider the test under s. 137.1(4)(b). He stated that in light
    of his conclusion that there is no real public interest in the expression, the
    harm to the respondents would not have to be great in order to tip the balance
    in their favour. The motion judge found that the allegations against the
    respondents were serious and impacted their professional reputation, and that
    the harm to the respondents outweighed any imperative that the appellants air
    their financial dispute on the street corner.

THE POSITIONS OF THE PARTIES

The appellants

[11]

The appellants argue that the motion judge erred at the first
    step of the inquiry by finding that the appellants expression did not relate
    to a matter of public interest. Specifically, the motion judge erred (1) by
    taking into account the appellants presumed motives in finding that their
    expression did not relate to a matter of public interest; (2) by taking into
    account the manner of the appellants expression; (3) by making a qualitative
    assessment of the impact of the expression; and (4) by failing to consider that
    expression may relate to more than one matter. The appellants cite this courts
    decisions in
Levant v. Day
, 2019 ONCA 244, 145 O.R. (3d) 442, leave to
    appeal refused, [2019] S.C.C.A. No. 194 and
Nanda v. McEwan
, 2020 ONCA
    431, both cases in which a motion judge was found to have erred in considering
    the motivation for expression in determining the public interest question under
    s. 137.1(3).

[12]

In
    supplementary submissions made following the release of the Supreme Courts
    decision in
Pointes
, the appellants reiterate these arguments and
    emphasize that the phrase relates to a matter of public interest in s.
    137.1(3) should be given a broad and liberal interpretation. The appellants
    submit that the motion judges approach was misguided from beginning to end.
    The only question for the motion judge was: what is this expression about, and
    is this something that any segment of the public would have a genuine interest
    in knowing about? The appellants argue that the bar should be low in order
    that most cases be resolved at the balancing stage of the inquiry, thus
    promoting participation in public life.

[13]

The
    appellants summarize their position as follows: The manner in which a
    regulated profession such as a law firm renders service to its clients,
    including the arrangements it makes with heath care providers whose services
    are incorporated into its clients claims, is undoubtedly a subject that some
    members of the public have an interest in knowing about. The fact that the
    expression stemmed from a private dispute was irrelevant. The appellants
    submit that expression related to an organizations business dealings is a
    matter of public interest even if the business involved is not a regulated profession,
    citing
Bradford Travel and Cruises Ltd. v. Viveiros,
2019 ONSC 4587,
    at paras. 31-32.

The respondents

[14]

The
    respondents argue that the motion judge did not make any of the mistakes
    alleged by the appellants. Instead, the respondents say that Mr. Campbells
    statements in his affidavit and in cross-examination informed the context in
    which the nature of the expression at issue was to be determined. His evidence
    demonstrated his indifference to the public interest and he bluntly admitted
    that he was not interested in the ethical duties of lawyers holding clients
    funds on trust, testifying: I really dont give, you know, any nasal snots
    about that.

[15]

The
    respondents submit that Mr. Campbells statements made no reference to any of the
    public interest issues the appellants assert that the statements engage. Viewed
    objectively and in context, the statements concerned a private dispute over
    alleged unpaid accounts. The motion judge made no legal errors in dismissing
    the motion and his decision is entitled to deference.

[16]

In
    their supplementary submissions, the respondents say that the Supreme Court
    held that whether the expression relates to a matter of public interest is a
    contextual inquiry that asks what the expression in question is really about.
    In answering this question, the motion judge considered the circumstances that
    prompted Mr. Campbell to hold signs outside the respondents offices and gave
    full faith and credit to his professed indifference to the public interest. The
    motion judges decision that the expression concerned a private dispute was
    solidly rooted in the record, which demonstrated a lengthy financial dispute.

DISCUSSION

[17]

In
    its decision in
Pointes
, the Supreme Court affirmed this courts
    approach to identifying the public interest, following
Grant v. Torstar
    Corp.
, 2009 SCC 61, [2009] 3 S.C.R. 640. Expression is to be assessed as a
    whole and the question is whether some segment of the community would have a
    genuine interest in receiving information on the subject:
Pointes (SCC)
,
    at para. 102.

[18]

There is necessarily a normative aspect to what is genuinely a
    matter of public interest. As the Supreme Court put it, there is no single
    test for identifying the public interest; [t]he public has a genuine stake
    in knowing about many matters ranging across a variety of topics:
Pointes
    (SCC)
, at para. 27;
Grant,
at paras. 103, 106. The court described
    the proper interpretation of whether expression relates to a matter of public
    interest as both broad and liberal and generous and expansive:
Pointes
    (SCC)
, at paras. 24, 30.

[19]

But
    not everything
relates
to a matter of public interest. For example, it
    is not enough if expression simply makes reference to something that is of
    public interest, or to something that arouses the publics curiosity. Moreover,
    the courts instruction of interpretive generosity cannot be read in isolation.
    The scope for legitimate interpretation of vaguely worded concepts such as
    public interest must be informed by the purpose of the legislation: to safeguard
    the fundamental value that is public participation in democracy. The burden is
    on the moving party to establish that its expression relates to a matter of
    public interest, albeit that this burden is not an onerous one.

[20]

The
    appropriate inquiry is contextual in nature. However, the Supreme Court makes
    clear in
Pointes
that no qualitative assessment of the expression in
    question is to be made. It is enough that the expression relates to a matter of
    public interest. As Côté J. put it, it is not legally relevant whether the
    expression is desirable or deleterious, valuable or vexatious, or whether it
    helps or hampers the public interest:
Pointes (SCC)
, at para. 28. The
    question at the heart of s. 137.1(3) is this: Understood in its context, what
    is the expression really about?

[21]

This
    is essentially the approach set out by Doherty J.A. in this courts decision in
Pointes
, an approach that the motion judge followed. He asked: what
    is the expression about, or what does it pertain to?:
Pointes

(ONCA)
,
    at para. 54. But while the motion judge cited this courts instruction that the
    determination of public interest does not take into account the merits or
    manner of the expression, he went on to consider these things, along with the
    motive of Mr. Campbell, in finding that the expression was really about a
    private contractual dispute.

[22]

For example, the motion judge considered  and criticized  the way
    in which Mr. Campbell chose to express himself. He described Mr. Campbells
    street protest as lacking in decorum, characterizing it as an unseemly attempt
    to embarrass the respondents that serve[ed] no public interest. These
    considerations were not relevant to the question the motion judge had to decide
    under s. 137.1(3). Again, as Côté J. stated, it is not legally relevant
    whether the expression is desirable or deleterious, valuable or vexatious, or
    whether it helps or hampers the public interest:
Pointes (SCC)
, at
    para. 28.

[23]

Moreover,
    the motion judge considered Mr. Campbells motive in expressing himself,
    finding that he was indifferent to the public interest when he expressed
    himself:

To perhaps state the obvious, Mr. Campbell does not say that he
    was holding signs on the sidewalk because he was concerned about accident
    victims, or the provision of services to the public. Likewise, he was not
    concerned with the regulation of lawyers and their professional obligations in
    handling trust funds. When asked in cross-examination about a lawyers duty of
    loyalty to their client, and whether he was aware that lawyers cannot pay out
    trust funds without the clients authorization, he responded curtly and
    frankly: No, and it doesnt concern me.

As counsel for the Plaintiffs points out, you cannot be making
    statements about a matter of public interest if you profess to be indifferent
    to the public interest.

[24]

This,
    too, was inappropriate. The motion judge could properly consider the entire
    communication and the context in which it was made. But the motivation behind
    the communication
why
the impugned expression occurred  is a
    subjective consideration that is not relevant to determining the objective
    nature of that expression. The quality or merits of the expression and the
    manner in which the expression is conveyed are similarly irrelevant.

[25]

Mistakes have sometimes been made in this regard  see
Levant
,
    at para. 11;
Ontario College of Teachers v. Bouragba
, 2019 ONCA
    1028, 51 C.P.C. (8th) 280, at paras. 31-33; and
Nanda
, at para. 37
    so the point bears repeating: Motive, merit, and manner are irrelevant in
    determining whether expression relates to a matter of public interest under
    s.137.1(3).

[26]

Although
    the motion judge erred in taking into account irrelevant considerations, he
    also identified the relevant considerations and, in my view, he reached the
    correct result. His conclusion that the appellants expression did not relate
    to a matter of public interest is amply supported by the relevant
    considerations in the record.

[27]

The
    parties had a professional relationship that involved referrals. The
    respondents would refer clients who required occupational therapy to the
    appellants, who would provide services approved by the clients insurance
    company. The appellants would be paid by the clients insurance company, but if
    the insurer denied coverage the appellants might agree to treat the client and
    the client would be responsible for paying. In the event of a dispute between
    the insurer and the client, the respondents agreed to protect the appellants
    accounts. The respondents would hold funds received from the insurance company in
    trust and would pay the appellants if the clients did not object or the
    appellants proved their expenses at a hearing.

[28]

The
    respondents began to question charges made by the appellants and this led to a
    breakdown in the parties relationship. The appellants terminated the referral
    arrangement with the respondents in 2016 and, in 2018, brought an application
    against the respondents seeking payment of their accounts. The application was
    converted to an action and is ongoing.

[29]

This
    is the context in which Mr. Campbells expression occurred. The appellants were
    pressuring the respondents to pay monies they claim they are owed by their
    mutual clients. The fact that the parties are members of regulated professions
    does not make their dispute a matter of public interest, nor does the fact of
    unrelated proceedings by the Law Society of Ontario concerning the respondents make
    it so.

[30]

The
    appellants submit that the public, or an aspect of it, has an interest in the
    expression because if lawyers are not held to their undertakings to protect the
    fees of service providers, many involved in motor vehicle accidents would be
    deprived of rehabilitation services while their disputes are adjudicated. Referring
    to this Courts decision in
Platnick v. Bent
, 2018 ONCA 687, 426
    D.L.R. (4th) 60 (
Platnick

(ONCA
)), affd 2020 SCC 23 (
Platnick

(SCC)
) the appellants argue that because Mr. Campbells expression
    relates to a lawyers undertaking it therefore relates to the public interest
    in holding lawyers to their undertakings.

[31]

Plainly,
    the public has an interest in the ethical conduct of lawyers. But it does not
    follow that every lawyers transactions are a matter of public interest, nor
    does it follow that expression touching on the ethical conduct of an individual
    lawyer necessarily relates to the publics interest in the ethical conduct of
    lawyers.

[32]

The task of the motion judge under s. 137.1(3) is to determine what
    the expression is really about, bearing in mind the purpose of s. 137.1: protecting
    expression relating to matters of public interest and safeguarding the fundamental
    value of public participation in democracy:
Pointes (SCC)
, at para.
    30. Again, only expression
relating
to a matter of public interest
    attracts the statutes protection; expression that simply makes reference to
    something of public interest does not:
Pointes (SCC)
, at para. 29.

[33]

Understood
    in context, the expression at issue in this case is really about a private
    commercial dispute between the appellants and the respondents. The respondents
    happen to be lawyers. Mr. Campbells expression does not relate to a matter of
    public interest on that account.

[34]

Comparison to the Supreme Courts decision in
Platnick
is helpful in illustrating the nature of the public interest under s. 137.1(3).
    In that case the impugned expression was an email, sent by a lawyer who was the
    president-elect of the Ontario Trial Lawyers Association. The email, sent to
    several hundred members of the Association by a listserv, alleged that a doctor
    frequently engaged as a medical expert in insurance litigation had engaged in
    dishonest conduct. The Supreme Court agreed with this court that the expression
    related to a matter of public interest. In
Platnick (SCC)
, Côté J.,
    for the majority stated that the defendants email:

raises concerns regarding the truthfulness, reliability, and integrity
    of medical reports filed on behalf of insurers in the arbitration process. In
    turn, her email raises concerns regarding the integrity of the arbitration
    process itself and the proper administration of justice writ large. Further,
    the email is directed at a not insignificant number of individuals, who, more
    importantly, have a special interest in exactly that... (at para. 83).

[35]

The
    expression in this case and the context in which it occurred are in no way
    similar. Mr. Campbells expression raised no general concerns about the
    importance of lawyers respecting their undertakings, nor was it directed to
    anyone with an interest in the respondents conduct. The expression did not
    relate to a matter of public interest. It was really about the appellants
    commercial dispute with the respondents.

[36]

In
    summary, the motion judge did not err in concluding that the impugned expression
    did not relate to a matter of public interest. Accordingly, the motion failed
    at the public interest threshold and it is not necessary to proceed to the
    merits-based hurdle under s. 137.1(4)(a) or the public interest weighing
    exercise under s. 137.4(b).

LEAVE TO APPEAL COSTS

[37]

The
    motion judge initially awarded the respondents $75,000 in partial indemnity
    costs on the basis that they were the successful party. He did not consider s.
    137.1(8) of the
CJA
in making this costs award. That section provides:

If a judge does not dismiss a proceeding under this section,
    the responding party is not entitled to costs on the motion, unless the judge
    determines that such an award is appropriate in the circumstances.

[38]

As
    this provision makes clear, the default position is the opposite of the
    position that normally obtains: a responding party who succeeds on the motion
    is
not
entitled to costs. However, the motion judge has the discretion
    to award costs if appropriate in the circumstances. No guidance is provided
    as to what it is that renders a costs award appropriate.

[39]

Following
    the release of his decision, the motion judge was alerted to his error in
    overlooking s. 137.1(8). He advised the parties that he was open to revisiting
    his costs decision and invited further submissions from the parties.

[40]

In
    his amended reasons, the motion judge determined that his award of costs would
    be unchanged and awarded the respondents $75,000 on a partial indemnity basis. The
    motion judge acknowledged the policy of making motions under s. 137.1
    accessible and that the no-costs presumption was not to be put aside lightly.
    However, he considered that the facts of this case were compelling: this was a
    financial dispute between members of two publicly regulated professions. The
    appellants were simply trying to get the respondents to pay a disputed bill and
    resorted to allegedly defamatory street corner placards rather than legal
    proceedings. In these circumstances, the appellants did not deserve costs
    immunity. Nevertheless, the motion judge exercised his discretion to reduce the
    costs award somewhat (from the requested $102,000 on a partial indemnity scale),
    bringing it more closely in line with the costs incurred by the appellants.

[41]

The
    decision to award costs is a discretionary one that is entitled to deference.
    Leave to appeal a costs order is granted only where there are strong grounds
    upon which the court could find that the motion judge made an error in
    principle or the costs award is plainly wrong:
Hamilton v. Open Window
    Bakery Ltd
.
, 2004 SCC 9, [2004] 1 S.C.R.
    303, at para. 27.

[42]

In
    this case, the legislation reverses the ordinary presumption that the
    successful party is entitled to costs but empowers the motion judge to award
    costs to the successful party if the motion judge finds that costs are
    appropriate in the circumstances. Thus, the decision to award costs is
    discretionary and the same deferential standard applies on appeal.

[43]

I see no error here that would allow this court to disturb the motion
    judges costs award. Although the motion judge misstated when the appellants
    resorted to street protest  they commenced their application against the
    respondents in September 2018, after Mr. Campbells initial demonstration but
    before his second one  that error is not significant. As the motion judge
    noted, in
Veneruzzo v. Storey
, 2018 ONCA 688, 23 C.P.C. (8th) 352, Doherty
    J.A. stated, at para. 39, [t]he purpose underlying the costs provisions in s.
    137.1 disappears when the lawsuit has none of the characteristics of a SLAPP,
    and the impugned expression is unrelated to a matter of public interest. The
    motion judge found that the appellants were simply trying to get the
    respondents to pay a disputed bill for their services. It was open to him to
    conclude that they did not deserve costs immunity in all of the circumstances
    of this case.

[44]

It was not necessary to say more than this, and I should not be
    taken as endorsing the suggestion that the exercise of the right to protest to
    resolve a dispute necessarily exposes a party to cost consequences under s. 137.1(8).

[45]

I
    would add these comments. First, although the dismissal of a motion at the
    137.1(3) threshold stage is a relevant consideration in determining whether to
    award costs to a plaintiff, it is not determinative of the appropriateness of a
    costs order. There will be cases in which the assertion of the public interest
    is wholly lacking in merit, but there will also be cases in which the moving
    party may have an arguable basis to assert that their expression relates to a
    matter of public interest. The award of costs in the former may be easier to
    justify in the former than the latter cases, but every case is different and
    the law will no doubt continue to develop in this regard.

[46]

Second,
    although in
Pointes
the Supreme Court deprecated reliance on the
    traditional SLAPP indicia identified by this court  (1) a history of the
    plaintiff using litigation or the threat of litigation to silence critics; (2)
    a financial or power imbalance that strongly favours the plaintiff; (3) a
    punitive or retributory purpose animating the plaintiffs bringing of the
    claim; and (4) minimal or nominal damages suffered by the plaintiff  it did
    so in the context of the inquiry at the weighing stage, s. 137.1(4)(b), in
    order to ensure the primacy of the text of the statute and the considerations
    it sets out: see
Pointes (SCC
), at paras. 78-80. The court did
not
hold the traditional SLAPP indicia are irrelevant  they may bear on the
    analysis under s. 137.1(4)(b), provided the analysis remains tethered to the
    statutory criteria  and, in any event, the court said nothing about their
    relevance to the question of costs.

[47]

Finally,
    as Doherty J.A. explained in
Pointes (ONCA)
, at para. 73, a motion under
    s. 137.1 is meant to be a screening or triage device designed to eliminate
    certain claims at an early stage of the litigation process. It is not an
    alternative means of trying a claim nor is it a form of summary judgment, and
    it is important to maintain a sense of proportionality where costs are
    concerned. The motion judges decision to reduce the respondents partial
    indemnity costs was appropriate.

CONCLUSION

[48]

I
    would dismiss the appeal.

[49]

I
    would refuse to grant leave to appeal costs.

[50]

The
    parties are encouraged to reach an agreement on the costs of this appeal. If
    they cannot do so, they may make three-page submissions within 30 days of
    these reasons.

Released: November 17, 2020 (G.H.)

Grant Huscroft J.A.

I agree. B. Zarnett J.A.

I agree. S. Coroza J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Tran (Re), 2020 ONCA 722

DATE: 20201112

DOCKET: C67286

Pepall, Hourigan and
    Roberts JJ.A.

IN THE MATTER OF: Van
    Truong Tran

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the appellant

Dena Bonnet, for the respondent, Attorney General of
    Ontario

Kendra A. Naidoo, for the respondent, Person in Charge
    of the Centre for Addiction and Mental Health

Heard: June 2, 2020 by videoconference

On appeal from the disposition of
    the Ontario Review Board, dated July 18, 2019, with reasons reported at [2019]
    O.R.B.D. No. 1733.

Pepall
    and Roberts JJ.A.:

A.

Introduction

[1]

This appeal primarily focuses on the issue of
    notice of a significant increase in restrictions on the liberty of an NCR (not
    criminally responsible on account of mental disorder) accused and the resultant
    mandatory hearing under ss. 672.56(2) and 672.81(2.1), respectively, of the
Criminal Code
, R.S.C. 1985, c. C-46
    (the
Code
),
and the application of the
    framework established by this court in
Campbell (Re)
, 2018 ONCA 140, 139 O.R. (3d) 401. The appellant, Van Truong Tran,
    submits that notice and a restriction of liberty hearing were required and that
    the increased restrictions on his liberty were not the least onerous and least
    restrictive in the circumstances.

[2]

Mr. Tran also asks that the Ontario Review Boards
    (the Boards) continued detention disposition be replaced by a conditional discharge
    disposition.

[3]

Lastly, as part of this appeal and the companion
    appeal in
Brownlee (Re)
, 2020 ONCA 723, the Attorney General of
    Ontario invites this court to endorse its proposed procedures on notices and
    hearings under ss. 672.56(2) and 672.81(2.1) of the
Code
.

[4]

For the reasons that follow, we would dismiss
    the appeal. We would also decline to endorse the Attorney Generals proposed
    notice and hearing procedure.

B.

Background Facts

[5]

Mr. Tran had been found NCR on charges of
    attempted murder, assault with a weapon, endangering life while committing an
    assault, aggravated assault, uttering threats to cause death or bodily harm,
    and possession of a weapon for a dangerous purpose. The index offences occurred
    in April 2014. He had stabbed the victim in his right side before stabbing him
    again in the back. Two days later, he contacted the victim, stating this time,
    it was with a knife but the next time it could be worse. He has been diagnosed
    with schizophrenia and substance use disorder (which is in remission in a
    controlled setting) and has differential diagnoses of schizoaffective disorder
    and major depressive disorder.

[6]

He is 49 years old, and prior to the index
    offences, he had no known psychiatric history or hospitalizations. He was
    initially under the jurisdiction of the Quebec Review Board and subsequently
    was transferred to the Centre for Addiction and Mental Health (CAMH) in March
    2016. He started on the secure forensic unit and then was moved to the general
    forensic unit in November 2016.

[7]

In February 2017, he began using accompanied
    hospital grounds privileges. This meant he could leave the ward with one staff
    person and other patients. This expanded to use of accompanied privileges to
    the community in April 2017.

[8]

By October 2017, he was exercising indirectly
    supervised privileges on hospital grounds, and by January 2018, to the
    community. This meant he could leave the grounds alone.

[9]

On June 4, 2018, he was subject to a disposition
    detaining him on a general forensic unit with privileges up to and including
    community living in approved accommodations with conditions. He continued to
    reside on the general forensic unit, under the care of Dr. Benassi. In the
    hospital report filed as evidence before the Board, CAMH reported that there
    were no incidents of violence, physical aggression, absconding, or other
    problematic behaviour. He attended Hong Fook Asian Mental Health Associations
    English classes (ESL classes) twice a week in the community, which were
    operated by the Toronto District School Board. His team arranged for a
    Vietnamese-speaking volunteer to visit Mr. Tran and assist in practicing his
    English. The hospital further reported that with encouragement from the
    recreational therapist, Mr. Tran participated in some recreational programming,
    including a cooking group, gym, and a summer outdoor soccer league. Feedback
    from program facilitators was positive.

[10]

Other than his partner, who visited once or
    twice a month at the hospital, Mr. Tran did not identify any other
    personal supports. The hospital reported that he was not observed to often
    socially engage with others and tended to keep to himself in the hospital and
    in the community. The clinical team applied to a variety of community
    accommodations, and Mr. Tran was designated Alternative Level of Care, a
    hospital designation that signifies readiness for discharge.

[11]

In January 2019, Mr. Tran asked to switch to a
    new antipsychotic medication due to potential weight gain side-effects. The
    hospital changed his medication.

[12]

On April 10, 2019, the Board convened for Mr.
    Trans 2019 annual disposition review, but it was adjourned to June 12, 2019
    due to the absence of the Vietnamese interpreter.

[13]

After April 10, 2019, his clinical team saw a
    change in his mental state and noticed behavioural changes indicating possible
    mental deterioration. In its report, the hospital stated:

On several occasions [Mr. Tran] was observed
    to be talking to himself out loud in Vietnamese which was out of character for
    him. When questioned about this, he claimed he was either [singing] out loud or
    telling others (who were not Vietnamese-speaking) jokes. His affect remained
    euthymic, yet he became more socially withdrawn and suddenly stopped
    participating in hospital and community programming. It was discovered that he
    missed several Hong Fook ESL classes as he stopped attending. When questioned
    by the team, he claimed he was suffering from a headache [and] could no
    longer concentrate and participate in programs or activities.

[14]

As of April 10, 2019, he had voluntarily ceased
    attending all of his community programs but was using indirectly supervised
    passes daily to go on hospital grounds and to go to the store in the community
    across the street from the hospital.

[15]

Then, on April 30, 2019, Mr. Tran disclosed at
    his team review that he had been experiencing delusions and auditory
    hallucinations, and that they had been present during his entire admission to
    CAMH. He reported hearing voices that, among other things, would threaten to
    kill him. Dr. Benassi comprehensively assessed Mr. Tran, who no longer believed
    that he suffered from a mental condition and did not believe psychotic
    treatment was necessary to manage his mental condition or that there would be
    any consequence if discontinued. Dr. Benassi opined that Mr. Tran was no
    longer capable of consenting to psychiatric treatment.

[16]

On April 30, 2019, Mr. Trans team placed on
    hold his access to the community and his indirectly supervised privileges both
    on the hospital grounds and in the community. He did not lose his accompanied
    privileges to the hospital grounds but declined to use them. He did not want to
    go out with staff members.

[17]

On May 28, 2019, Mr. Tran regained his access to
    escorted community passes, but again did not want to go out with staff members.
    On June 7, 2019, he was restarted on his former medication. Dr. Benassi
    testified that within two to three weeks the hospital might be in a position to
    restore the passes.

CAMH Letter to the Board

[18]

On May 27, 2019, CAMH wrote to the Board, with a
    copy to the Crown and Mr. Trans counsel, for informational purposes only
    pursuant to para. 69 of this courts decision in
Campbell
.

[19]

Dr. Darby, the Person in Charge at CAMH,
    commenced CAMHs letter with reference to
Campbell
. He advised that as
    of April 30, 2019, Mr. Trans indirectly supervised off-unit privileges were
    placed on hold:

due to a significant deterioration in his
    mental state, including auditory hallucinations and paranoid beliefs. Mr. Tran
    has disclosed that he has been hearing voices making derogatory comments and
    threatening to kill him. At times, the auditory hallucinations scare Mr. Tran,
    who also believes he has a camera in his eye controlled remotely by people via
    the Internet and has disclosed delusional thoughts with respect to people
    spying on him. Mr. Tran has had at least two episodes of non-compliance with
    his oral anti-psychotic medication during this period of psychotic relapse.

[20]

Dr. Darby explained that Mr. Trans indirectly
    supervised passes were on hold given concerns about his risk to others if
    unsupervised while off the unit. Mr. Tran continued to have access to
    staff-accompanied passes off the unit.

[21]

Dr. Darby added that when Mr. Trans passes were
    placed on hold, Mr. Trans liberty norm could be characterized as the
    exercising of indirectly supervised passes into the community and on hospital
    grounds. Referencing
Campbell
, Dr. Darby acknowledged that the
    restriction from April 30 to the date of the letter, May 27, 2019,
clearly deviated from Mr. Trans established liberty norm
.
    However, applying the test from
Campbell
, CAMH took the position that
    a reasonable person aware of the circumstances of Mr. Trans case
would not
believe that the hospitals decision to place his indirectly supervised passes
    on hold resulted in a loss of liberty so significant that the Board must
    convene a hearing (emphasis in original). Dr. Darby concluded his letter by
    stating that the hospitals actions were the least onerous and restrictive way
    of managing the risk, the letter was not a notification under s. 672.56(2) of
    the
Code
of a
    significant restriction of liberty, and Mr. Trans annual review was scheduled
    for June 12, 2019.

[22]

On May 28, 2019, Mr. Trans counsel wrote to the
    Board asking it to convene a hearing to review the allegedly significant
    increase on the restriction of his liberty.

[23]

On May 29, 2019, the Board responded to Dr.
    Darby at CAMH with a copy to Mr. Trans counsel, stating that his letter would
    be distributed at Mr. Trans annual hearing on June 12, 2019. It did not write
    separately to Mr. Trans counsel.

The Hearing and the Boards Decision

[24]

The Board convened on June 12, 2019. It addressed
    the necessary and appropriate disposition. As well, the Board considered Mr. Trans
    loss of privileges and asked the parties to provide written submissions on this
    issue.

[25]

CAMH and the Crown recommended the continuation
    of the detention order and took the position that there was no need to review
    the restriction of liberty decision of the hospital.

[26]

Mr. Tran took the position that he was not a
    significant threat and was entitled to an absolute discharge, or if found to be
    a significant threat, a conditional discharge with terms mirroring the current
    detention order. He also sought a review of his restriction of liberty.

[27]

The Board found that Mr. Tran continued to pose
    a significant threat to the safety of the public. He had limited insight into
    his illness and the need for medication, could not consent to treatment, and
    exhibited positive signs of his illness. The index offences were very serious
    and violent, and he was experiencing symptoms of psychosis and auditory
    hallucinations similar to those he experienced at the time of the index
    offences. The hope was that once his new medication dosage was optimized, his
    privileges would incrementally increase to the point of once more exercising
    his indirectly supervised passes. The Board determined that the necessary and
    appropriate disposition was a continuation of the detention order on the
    general forensic unit, with privileges up to and including community living in
    approved accommodations, as well as the terms and conditions that were
    implemented in the prior years disposition.

[28]

As for the restriction of liberty decision, the
    Board noted the need for an individualized assessment, as mandated by this
    court in
Campbell,
and that the court, at para. 65, directed the Board
    to consider what liberty the accused was actually experiencing before the
    increased restrictions were put in place.

[29]

At para. 12 and following of its reasons, the
    Board reviewed in detail Dr. Benassis evidence. At para. 13, the Board
    reviewed evidence that [f]rom April 10
th
until April 30
th
,
    notwithstanding the change in Mr. Trans behaviour, he continued to use his
    indirectly supervised passes, although in a somewhat limited fashion. Further,

sometime after April 10, 2019, he stopped
    going to his ESL classes and other programs in the community and he only used
    his hospital ground privileges. Dr. Benassi advised that he expects Mr. Trans
    privileges to slowly be restored beginning in the next two to three weeks, as
    it is hoped that he will show improvement, as he started his Olanzapine [his
    former medication] last week. However, the usual trajectory is that the
    treatment team will want him to successfully use his escorted passes to the
    community first (for example, to see if he can follow direction of staff),
    before reinstituting indirectly supervised passes to the community.

[30]

The Board, at para. 17, noted Dr. Benassis
    evidence that up until April 2019, Mr. Tran was using his passes for other
    activities, such as soccer, attending stores, and running errands by himself.
    He had several hours a day in which he was exercising those passes.

[31]

The Board commenced the analysis section of its
    reasons on restriction of liberty by referring to para. 68 of
Campbell,
where this court identified
    an instance where notice is required as one where an NCR accused has been
    afforded significant community access for long enough that it has become the
    individuals liberty norm. The Board then asked itself whether, considering
    Mr. Trans lengthy access to the hospital grounds and community, the Board
    should exercise its jurisdiction and what circumstances it should consider. It
    considered the
dicta

in
Campbell
on notice as an
    important liberty safeguard, the need for a case-by-case review, an
    individualized assessment, and the rejection by
Campbell
of a
    categorical approach.

[32]

The Board directed itself to consider the
    liberty Mr. Tran was actually experiencing before the increased restrictions
    were put in place:
Campbell
, at para. 65. The Board wrote, at para.
    41:

It was after around April 10
th
that
    there was observed a noticeable change in Mr. Trans behaviour, which appears
    to have resulted in Mr. Tran no longer utilizing his indirect passes to the
    community to, for example, attend ESL classes.
He
    used his passes from April 10-30, but only to attend the hospital and grounds
    and to attend the store across the street from the hospital
. [Emphasis added.]

[33]

The Board concluded, at para. 42:

Mr. Trans liberty norm on April 30, 2019 was
     in a state of flux and it was in the process of deteriorating. As well,
    this is not a situation where Mr. Tran was employed or going to school at the
    time his indirectly supervised passes were curtailed, as Mr. Tran had stopped
    attending ESL classes from around April 10, 2019. It is reasonable to conclude
    that
the deterioration in Mr. Trans mental state
    was probably the reason why he no longer was attending such classes, or using
    his community privileges to the degree he was prior to April 2019
. The Court in
Campbell

mandates
    an analysis of the determination of the pre-existing liberty norm that
    considers the individuals pattern of liberty in the recent past (para 66).
    The Board finds that Mr. Trans liberty norm could be characterized, on April
    30, 2019, as him significantly reducing the use of his indirectly supervised
    hospital and community privileges. He also continued to have accompanied
    hospital grounds privileges, and escorted passes to the community were
    reinstated on May 28
th
. [Emphasis added.]

[34]

As such, the Board concluded that Mr. Trans
    liberty norm following removal of the passes was not significantly different
    than his liberty norm prior to that date. He could no longer attend the
    hospital grounds or the store just outside the hospital grounds, indirectly
    supervised, and his escorted passes to the community were withheld until the
    end of May and then reinstated.

[35]

The Board found that Mr. Trans restriction of
    liberty, and change in liberty status, was not so significant that a
    reasonable person, considering all of the circumstances, would think that the
    Board should be called on to consider whether the hospital properly applied the
    least onerous and least restrictive test ahead of the next annual review:
    citing
Campbell
, at para. 67. At para. 44, the Board also adopted the
    submission of Ms. Naidoo, counsel for CAMH, that:

Given the significant increase in risk
    associated with the emergence of active symptoms similar to those at the time
    of the index offence, and concurrent changes in Mr. Trans behavior, the
    decision of [the] hospital to ensure that he was supervised when off the unit
    was clearly within the hospitals day-to-day discretion, necessary to protect
    public safety.

[36]

The Board decided that a notice of restriction
    of liberty was not required.

C.

Issues

[37]

This appeal raises four issues:

1.

Did the Board err in ordering Mr. Trans continued detention?

2.

Did the Board err in concluding that the increase in the restrictions on
    Mr. Trans liberty was not significant?

3.

If the increase in the restrictions on liberty was significant, was this
    increase the least onerous and least restrictive measure in the circumstances?

4.

Should this court impose a restriction of liberty notice and hearing
    procedure on the Person in Charge and the Board, as proposed by the Attorney
    General?

D.

Standard of
Review

[38]

The standard of review of a Board decision is
    set out in s. 672.78 of the
Code
. This court is only entitled to
    interfere if the decision (a) is unreasonable or cannot be supported by the
    evidence; (b) is based on a wrong decision on a question of law; or (c)
    occasioned a miscarriage of justice. The reasonableness standard of review
    applies to findings of facts and the drawing of inferences:
Campbell
,
    at para. 27. If the Boards disposition is supported by reasons that can bear even
    a somewhat probing examination, it will not be considered unreasonable:
Saikaley
    (Re)
, 2012 ONCA 92, 109 O.R. (3d) 262, at para. 35, citing
Mazzei v.
    British Columbia (Director of Adult Forensic Psychiatric Services)
, 2006
    SCC 7,
[2006] 1 S.C.R. 326, at para. 17
. The Boards discretionary decisions are similarly owed deference:
Saikaley
,
    at para. 36. Questions of law, on the other hand, are assessed on a correctness
    standard:
M.L.C. v. Ontario (Review Board)
, 2010 ONCA 843, 104 O.R.
    (3d) 450, at para. 21.

[39]

As discussed in
Campbell
, at para. 28, the
    meaning to be given to significantly increase in s 672.81(2.1) attracts a
    standard of correctness because this engages a question of law. A
    reasonableness standard applies to the Boards application of the test in
Campbell
.

E.

Analysis

(1)

Did the
    Board err in ordering Mr. Trans continued detention?

[40]

While not conceding that he continued to be a significant
    threat to the safety of the public, Mr. Tran focused his challenge of the
    disposition on the Boards rejection of his submission that he should be
    discharged pursuant to certain conditions. Mr. Tran had consented to submit to
    a treatment clause and to the Person in Charge determining his residence and
    agreed to remain at CAMH until appropriate accommodation could be found for
    him.

[41]

The Board determined that a conditional
    discharge was not an appropriate disposition in Mr. Trans circumstances. These
    circumstances included Mr. Trans significant psychiatric history, the index
    offences, and his recent decompensation following a change in his medication.
    In consequence, the Board concluded that although Mr. Tran was initially
    designated as ready for discharge, that plan had to be altered because of the
    dramatic change in his condition. As a result of this change, his risk to the
    public could not be adequately safeguarded by a conditional discharge
    disposition. A detention order allowing CAMH staff to stabilize Mr. Trans
    psychotic symptoms and medication, approve his housing, and determine his level
    of privileges in the community was required to manage his significant risk to
    the safety of the public, with the hope that Mr. Tran would again be ready for
    discharge in the near future.

[42]

We see no error in the Boards disposition which
    was the least onerous and least restrictive in these circumstances, in
    accordance with s. 672.54 of the
Code
. The record clearly supports the
    Boards conclusion that Mr. Tran represents a significant risk to public
    safety. Mr. Trans index offences were very serious: under the influence of his
    psychosis, he heard voices telling him to kill people, which led to him
    stabbing an acquaintance with a knife. While Mr. Tran has made significant
    progress over the last few years and was ready for discharge, unfortunately,
    following a change in his medication, he again began to exhibit psychotic
    symptoms and heard the same kind of voices that had led to the index offence,
    though Mr. Tran submits these voices do not instruct him to commit violence
    against others. He lost insight into his mental illness and need for medication,
    and he became incapable of consenting to treatment.

[43]

In these circumstances, it was open to the Board
    to conclude that a conditional discharge was not appropriate. To manage Mr.
    Trans significant risk, the Board recognized, correctly in our view, that CAMH
    must be able to regulate Mr. Trans medication and treatment and to choose his
    residence and the details of community access, which is only possible under a
    detention order. This was the least onerous and least restrictive disposition
    in the circumstances.

[44]

Accordingly, we would not give effect to this
    ground of appeal.

(2)

Did the Board err in determining that the
    increase of the restrictions on Mr. Trans liberty was not significant?

[45]

Mr. Tran submits that the Board erred in
    its approach and consideration of his use of privileges thereby incorrectly
    concluding that the increase of the restrictions on his liberty was not
    significant. He argues that the Board unreasonably minimized the importance of
    Mr. Tran being able to leave the unit on his own to go wherever he wants on the
    hospital grounds or to the store in the community. In addition, he submits that
    the Board misapprehended the evidence relating to his use of privileges.

(a)

Code
Provisions

[46]

The relevant
Code
provisions are:

s. 672.56(2)

A person who increases the restrictions on the liberty of the accused
    significantly pursuant to authority delegated to the person by a Review Board
    shall

(a)
make a record
    of the increased restrictions on the file of the accused; and

(b)
give notice of
    the increase as soon as is practicable to the accused and, if the increased
    restrictions remain in force for a period exceeding seven days, to the Review
    Board.

s. 672.81
(2.1)
The Review Board shall hold a hearing to review a decision to
    significantly increase the restrictions on the liberty of the accused, as soon
    as practicable after receiving the notice referred to in subsection 672.56(2).

(b)

Division of Responsibilities and Context

[47]

Under s. 672.81(1), an NCR accused is entitled
    to a review hearing of the Board every year. Between those annual reviews,
    authority is delegated to the hospital, which is charged with the care and
    progress of the accused. The hospital may make decisions between annual reviews
    which restrict the liberty of the accused. The question to be addressed with
    any restriction of liberty of an accused is when and whether a hearing is
    required between the regularly scheduled annual reviews. The purpose of an
    additional hearing is to take a second look at a hospitals decision involving
    a restriction of the liberty of the accused.

[48]

In
M.L.C.
, this court succinctly
    described the division of responsibilities between the Board and the hospital
    while an NCR accused remains under the jurisdiction of the Board. The court stated
    at para. 28, that s. 672.56(1) of the
Code:

allows the Board to delegate to the hospital
    certain decisions about the patients liberty. Any restrictions the hospital places
    on the patient must fall within the envelope of the conditions enumerated by
    the Board in its disposition. As a safeguard, any decision by a hospital that
    significantly restricts a patients liberty for more than seven days must be
    considered by the Board in a restrictions review.
[1]

As noted in that case, at para. 28,
    hospitals must be provided with sufficient flexibility to respond to a
    patients needs.

[49]

It is easy to become entangled in the semantics
    of the notice requirement found in s. 672.56(2), but the fundamental issue must
    be whether the increase in the liberty restriction is sufficiently significant
    that a hearing into the merits of the hospitals decision should be convened.

[50]

The interpretation accorded to the significance
    component of the notice requirement in s. 672.56(2) follows from the context of
    the notice requirement in the overall statutory scheme. The words of the
    section are to be read in their entire context, as repeatedly instructed by the
    Supreme Court: see
Bell ExpressVu Limited Partnership v. Rex
, 2002 SCC
    42, [2002] 2 S.C.R. 559, at paras. 26, 29. This context includes the division
    of responsibilities between the Board and the hospital, as outlined above, and
    the other liberty safeguards present in the scheme, including the requirement
    for an annual review, and the mandatory nature of the hearing that follows
    automatically upon notice under s. 672.56(2), together with the public
    protection objective of the statutory provisions.

[51]

The notice provision is an important safeguard
    for liberty, but it is far from the only liberty safeguard for the accused. It
    must be construed against the backdrop of the many liberty safeguards in
    place, including the requirement for an annual review and the availability of
    discretionary reviews at the direction of the Board or the hospital:
Campbell
,
    at paras. 50, 55 and 60.

[52]

Once notice is triggered, a hearing is
    mandatory; there is no discretion given to the Board. The mandatory hearing
    obligation that flows from the giving of notice of a significant increase must
    also inform the meaning to be given significant. That is, given that the
    hospital must be afforded flexibility to respond to the day-to-day needs of the
    accused, in order to keep patients and staff safe and to provide care, notice
    and a mandatory hearing are not required for any increase in restriction on
    liberty. Such an approach would result in unnecessary mandatory hearings and
    interfere with the work of hospitals:
Campbell
, at para. 63.

[53]

Considered in this context, the purpose of s.
    672.56(2) is to act as a final liberty safeguard, allowing for a second-look at
    those hospital decisions that have such serious ramifications for the liberty
    of the NCR accused, that they should be examined ahead of the next yearly
    review:
Campbell
, at para. 64.

(c)

The
Campbell
Decision and its Application

[54]

Campbell
provided a useful analysis of the methodology to be taken when dealing with the
    issue of the notice requirement under s. 672.56(2). A case-by-case approach and
    an individualized assessment are to be adopted. Fairburn J.A. (as she then was)
    noted that as with all tests, over time, jurisprudence will breathe life into
    the analysis:
Campbell
,

at para. 68.

[55]

The
Campbell
framework provides, at
    paras. 65-67, that:

[T]he NCR accuseds liberty norm must be
    identified. Calibrating the liberty norm requires consideration of the duration
    and pattern of liberty the NCR accused was experiencing before the decision or
    decisions resulting in increased restrictions on liberty. Determining the
    liberty norm does not ask what the individual may have been entitled to, but
    what [they were] actually experiencing before the increased restrictions were
    put in place. The liberty must be of sufficient duration to have become,
    objectively speaking, the NCR accuseds norm.

Accordingly, when determining the NCR
    accuseds liberty norm, hospitals should take a contextual approach, one that
    considers the individuals pattern of liberty in the recent past.

Once the liberty norm is determined, it must
    be compared against the NCR accuseds liberty status following the increases in
    restrictions. Only where the change in liberty status clearly deviates from the
    NCR accuseds liberty norm must the hospital notify the Board. The change in
    liberty status must be so significant that a reasonable person, considering all
    of the circumstances, would think that the Board should be called on to
    consider whether the hospital properly applied the least onerous and least
    restrictive test ahead of the next annual review.

[56]

Put another way,
Campbell

asks:

1. Was there an increase in the restrictions on the accuseds
    liberty, having regard to:

(a) the accuseds liberty norm before the impugned restriction;

(b) the accuseds liberty status following the impugned
    restriction; and

2. If yes, is the change in liberty status  so significant
    that a reasonable person, considering all of the circumstances, would think
    that the Board should be called on to consider whether the hospital properly
    applied the least onerous and least restrictive test ahead of the next annual
    review: at para. 67.

Thus,
Campbell

contemplates
    first a finding on whether there was in fact an increase in restrictions. In
Campbell
itself, the majority of the Board had concluded that the transfer of Ms.
    Campbell from the secure forensic rehabilitation unit (FRU) to the secure forensic
    assessment unit (FAU) actually resulted in a less restrictive environment
    because at the FAU, she no longer needed one-on-one supervision:
Campbell
,

at para. 18. Once an increase has been established, then the question is
    whether the increase is significant such that notice and a mandatory hearing
    are required.

[57]

Campbell
does
    not mandate an inflexible mathematical before and after approach to an NCR
    accuseds liberty norm. The increase component of s. 672.56(2), or part
    one of the test, requires a quantitative assessment, comparing the before and
    after of the accuseds liberty status. However, part two then involves
    assessment of the reasonableness or significance threshold. In this second part
    of the test, a contextual approach is to be adopted. This flows from Fairburn
    J.A.s direction that the assessment of the significance of the increase should
    be contextual and individualized (
Campbell
,

at paras. 65, 68)
    and conducted from the perspective of a reasonable person,
considering all
    of the circumstances
:
Campbell
,

at para. 67 (emphasis
    added). This may include consideration of such factors as an accuseds history
    and use of privileges. Examination of what an accused has experienced in the
    recent past involves consideration of the use of privileges by the individual.
    It would also include an accuseds treatment horizon and the proximity of the
    annual review. This evaluation engages the significant component of s.
    672.56(2).

[58]

Applying the first part of the
Campbell
test, there was an increase in the restrictions on Mr. Trans liberty. He no
    longer could attend the hospital grounds or community indirectly supervised and
    for one month his escorted passes to the community were withheld. Indeed, in
    its
Campbell
letter to the Board, the hospital acknowledged an
    increase in the restrictions on Mr. Trans liberty. In making the restriction
    of liberty determination, the Board conflated the two parts of the test. The
    Board looked at both Mr. Trans liberty history and his more recent experience
    and concluded that his liberty norm was in a state of flux and in the process
    of deteriorating. Thus, it examined use of privileges in its analysis of Mr.
    Trans liberty norm rather than as a factor to be considered in its significance
    analysis. This conflation amounted to an error of law.

[59]

However, we do not see any error with the
    Boards conclusion that the significance threshold was not met. The Board
    recognized the need for a case-by-case analysis and the importance of notice as
    a liberty safeguard.

[60]

In examining all of the circumstances (to use
    the words from
Campbell
), the hospital and the Board were faced with
    an NCR accused who had been using his privileges for a variety of activities, who
    was on the verge of being placed in a home in the community, whose medication
    was altered, whose mental state then seriously deteriorated, and who had reduced
    his own use of his privileges. He had stopped engaging in the indirectly
    supervised activities he used to enjoy, instead preferring to remain close to
    the hospital. While he could no longer exercise indirectly supervised passes,
    he continued to have access to accompanied passes to the hospital grounds, and
    as of May 28, 2019, he could use escorted passes into the community. He chose
    not to use those passes.

[61]

We do not agree with Mr. Trans submission that
    the Board minimized the importance of his activities of walking around the
    hospital grounds or going to the nearby store in the community. By indicating
    that Mr. Tran was only participating in these activities, the Board did not
    engage in a qualitative evaluation of their worth. Rather, the use of the word
    only refers to the narrowness of Mr. Trans self-restricted activities, which
    the Board was entitled to take into account.

[62]

Applying the second part of the
Campbell

test, the change in liberty status was not so significant that a reasonable
    person, considering all of the circumstances, including Mr. Trans reduced use
    of privileges, would think that notice and a hearing were required.

[63]

The changes made in this case are the kind of
    day-to-day adjustments that should properly reside with the clinical team, the
    experts who are charged with the care and improvement in the mental condition
    of the NCR accused and his gradual reintegration into the community.

[64]

As Fairburn J.A. wrote, at para. 63 of
Campbell
,
    the hospital must be left to do its work free from constant review and all of the
    demands that a decision-notice-review-decision-notice-review approach would
    impose. Absent a significant increase in the restriction of liberty, the
    day-to-day management decisions are to be left with the hospital until the next
    annual review. The significance inquiry must be informed by the discretion
    afforded to the hospital. To require notice and a hearing in the circumstances
    faced by the hospital and the Board in Mr. Trans case involves the precise
    sort of micro-management that
Campbell
warns against.

(d)

Alleged Misapprehension

[65]

Turning to the alleged misapprehension of the
    evidence, Mr. Tran submits that the Board erred in stating that after April 10,
    2020, Mr. Tran was significantly reducing the use of his indirectly
    supervised hospital and community privileges and only using his passes to
    visit a store across the street from the hospital and to access the hospital
    grounds. According to Dr. Benassis evidence, Mr. Tran continued to use his
    privileges on a daily basis; only the nature of his activities had changed. As
    a result, according to Mr. Tran, the Board erred in concluding that Mr. Trans
    liberty norm was accordingly in a state of flux and deteriorating by April 30,
    2019.

[66]

It follows from our earlier analysis that the
    Board was entitled to rely on the evidence about Mr. Trans use of privileges
    in assessing the significance arm of the test. Moreover, certainly there was
    evidence to support the Boards finding that Mr. Tran was significantly
    reducing his use of privileges and that his use was in a state of flux and in
    the process of deteriorating.

[67]

The hospital report was filed in evidence before
    the Board. It reported that prior to April 10, 2019, Mr. Tran had attended ESL
    classes twice a week and recreational programming including a cooking group,
    gym and a summer outdoor soccer league. The hospital reported that shortly
    after April 10, 2019, he had stopped participating in hospital and community
    programming including his ESL classes. He had become socially withdrawn. By
    April 30, 2019, when his privileges were placed on hold, he had not been attending
    ESL classes or any of the other community programs for close to three weeks.
    This could only be described as a significant reduction or deterioration in usage,
    not in the sense of evaluating what was the best use of Mr. Trans time, but
    with respect to the materially narrowed scope of his activities.

[68]

At the same time, the Board recognized that Mr.
    Tran was continuing to exercise his indirectly supervised privileges by going
    to the store across the street from the hospital and by accessing the hospital
    grounds.

[69]

The Board did not misapprehend the purport of
    the evidence.

(3)

Was the increase in restrictions on Mr. Trans
    liberty the least onerous and least restrictive measure?

[70]

Since the Board determined that notice of the
    increased restrictions was not required, it did not go on to consider whether they
    were the least onerous and least restrictive measures to impose in the
    circumstances of this case. Mr. Tran requests that this court undertake that
    analysis.

[71]

While not strictly necessary given our
    disposition of this appeal, we undertake this analysis for completeness. We
    conclude that the increase in the restrictions on Mr. Trans liberty was the
    least onerous and least restrictive in the circumstances.

[72]

The Person in Charge was required to give due
    regard to Mr. Trans liberty interest in light of the twin goals of public
    safety and treatment and also had to ensure that the conditions it imposed met
    the least onerous and least restrictive standard:
M.L.C.
, at paras.
    27-28, 45-46;
Chaudry (Re)
, 2015 ONCA 317, 125 O.R. (3d) 641, at para.
    72, leave to appeal refused, [2016] S.C.C.A. No. 460.

[73]

Mr. Tran had sadly decompensated following a
    change in his medication. He stopped attending all structured programming in
    the community, such as soccer and his ESL classes. The deterioration in his
    activities mirrored the deterioration in his condition. He heard the same kind
    of threatening voices that had urged him to commit the index offences. He had
    lost all insight into his condition. He was deemed incapable of treatment. The
    decision to impose more restrictive measures until Mr. Tran was stabilized was necessary
    to manage the risk he posed to others when unsupervised, given the
    deterioration in his mental state. Accompanied passes to the CAMH grounds
    remained available and escorted passes to the community were offered to Mr.
    Tran as of May 28, 2019. We are satisfied that this was the least onerous and
    least restrictive measure in these circumstances.

[74]

Accordingly, and in any event, we would not give
    effect to this ground of appeal.

(4)

Should the proposed restriction on liberty
    notice and hearing procedure by the Attorney General be imposed?

[75]

On this appeal and in
Brownlee
, the
    Attorney General proposes that a uniform procedure to restriction on liberty
    notice and hearings should be developed. The Attorney General advocates this
    approach in order to respond to regional differences in how hospitals and the
    Board approach the question of notice and hearings in situations where the
    hearing has not been triggered automatically.

[76]

In particular, the Attorney General submits that
    there are varying approaches to the giving of informal notices as noted by this
    court in
Campbell
. While notice under s.
672.56(2)
of the
Code
will generate an automatic hearing under s.
672.81(2.1)
, it is always open to the hospital to
    simply inform the Board (in what has come to be known as a
Campbell
letter) about a decision that has changed the NCR accuseds liberty status. Counsel
    for the parties advised that in some jurisdictions,
Campbell
letters are
    not routinely filed with the Board. In other jurisdictions, where
Campbell
letters are sent to the Board, the Board apparently only acknowledges receipt
    and does not specifically respond to defence counsels request for a review.

[77]

As a result, the Attorney General submits that
    the following procedure should be adopted:

(1) As obligated under Part XX.1, if notice is provided subject
    to s. 672.56(2), this will generate an automatic [restriction of liberty
    (ROL)] hearing under s. 672.81(2.1)[.]

(2) If the Hospital provides notice to the Board of a
    restriction of liberty as information only, the Review Board will review the
    information provided (including any subsequent letter from the accuseds
    counsel that sets out their position) and determine whether a discretionary
    hearing should be convened. Their decision should be communicated to all
    parties in a timely manner (although reasons are not required)[.]

(3) If the Board determines that a hearing is required, they
    will convene a hearing under s. 672.82(1)[.]

(4) If a ROL hearing is not convened after information is
    provided to the Board, then, to the extent that [it] is warranted or requested
    by one of the parties, the general circumstances of the restriction of liberty
    should be considered at the next annual hearing.

(5) If a ROL issue only becomes known at the annual hearing, it
    should be addressed during that hearing.

[78]

We decline to comment on or order the
    implementation of the Attorney Generals proposed procedure. This court should
    not generally dictate the Boards approach on this issue. Such a directive
    could impinge upon the Boards jurisdiction to fashion its own rules of
    procedure and practice and the exercise of its discretion.

[79]

Section 672.44(1) of the
Code
empowers
    the Board to make rules providing for the practice and procedure before it,
    subject to the approval of the Lieutenant Governor in Council of the province. Other
    than the procedures prescribed by the
Code
and the regulations made by
    the Governor in Council, any additional rules concerning the response to
Campbell
letters must therefore come from the Board:
Code
, ss. 672.44(1),
    672.44(3). However, prescribing procedural rules of general application in the
    abstract is not the role of the appellate court under Part XX.1 of the

Code
.

[80]

This does not preclude these issues being raised
    in an appropriate case.
The fairness and reasonableness
    of the Boards procedure and its treatment of the parties in coming to a
    disposition can warrant appellate intervention
: see e.g.,
Chaudry
,
    at paras. 112, 116 and 118;
Kachkar (Re)
, 2014 ONCA 250, 119 O.R. (3d)
    641, at para. 39. The Board has a duty to treat vulnerable NCR accused with the
    utmost dignity:
Winko v. British Columbia (Forensic Psychiatric Institute)
,
    [1999] 2 S.C.R. 625, at para. 42.

[81]

Accordingly, we decline the Attorney Generals invitation
    to elaborate on or impose a uniform procedure.

F.

Disposition

[82]

For these reasons, we would dismiss the appeal
    on all grounds.

Released: November 12, 2020 (S.E.P)

S.E. Pepall J.A.

L.B. Roberts J.A.

I agree. C.W. Hourigan J.A.

[1]

In the case under appeal, the restrictions fell within the
    envelope of the enumerated conditions for Mr. Tran. There is therefore no issue
    about this.


COURT OF APPEAL FOR ONTARIO

CITATION: Visic v. Elia Associates
    Professional Corporation, 2020 ONCA 690

DATE: 20201102

DOCKET: C67881

Hourigan, Trotter and Jamal
    JJ.A.

BETWEEN

Anica Visic

Plaintiff (Appellant)

and

Elia Associates Professional Corporation, Patricia Elia, and

University
    of Windsor

Defendants (Respondents)

Christopher
    Du Vernet and Carlin McGoogan, for the appellant

Antoni Casalinuovo, for the respondents
    Elia Associates Professional Corporation and Patricia Elia

Michael A. Wills, for the
    respondent University of Windsor

Heard: In writing

On appeal
    from the order of Justice Sandra Nishikawa of the Superior Court of Justice,
    dated December 12, 2019, with reasons at 2019 ONSC 7238.

REASONS FOR DECISION

[1]

This is an appeal from the motion judges order dismissing
    the appellants action as against the respondent University of Windsor under r.
    2.1.01 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, because
    the action against the University is
on its face
frivolous,
    vexatious, and an abuse of the courts process.

[2]

For the reasons that follow, the appeal is
    dismissed.

Background

[3]

The appellants action against the respondents
    seeks, among other relief, an order requiring the University to permanently
    delete all references to her first first year law school results and damages against
    the respondents of $500,000 for invasion of privacy, breach of fiduciary duty, breach
    of confidence, breach of contract, negligence, defamation, and infringement of
    the
Ontario Human Rights Code
, R.S.O. 1990, c. H.19. The respondents
    Patricia Elia and Elia Associates Professional Corporation (Elia respondents)
    were the appellants articling principal and former employer, respectively.

[4]

The motion judge held that the appellants action
    against the University seeks to relitigate the same issues the appellant raised
    in an earlier action and in proceedings before the Human Rights Tribunal of
    Ontario (HRTO), both of which were dismissed. She noted that the HRTO
    declared the appellant to be a vexatious litigant and the Divisional Court
    dismissed appeals from these orders:
Visic v. HRTO and Law Society of Upper
    Canada
, 2015 ONSC 7161;
Visic v. HRTO and University of Windsor
, 2015 ONSC 7162; and
Visic v. HRTO and Elia Associates Professional Corporation
, 2015 ONSC 7163.

[5]

The motion judge dismissed the appellants
    action as against the University under r. 2.1.01, but allowed the action to
    continue as against the Elia respondents because the appellant had never sued the
    Elia respondents in the Ontario Superior Court, even though she had pursued them
    before the HRTO. The motion judge held:

It is clear that this
action is yet another attempt to relitigate the same issues raised
    in Ms. Visics previous action in this court and the proceedings before the
    HRTO. Ms. Visic alleged that the University breached the
Human Rights Code
in her application to the HRTO. She alleged breach of contract, negligence and
    breach of fiduciary duty in her previous civil action against the University.
    Having failed to prosecute her previous action, Ms. Visic is not entitled to
    relitigate the same claims in a new proceeding before this court.

[6]

The appellant now appeals the motion judges
    order. Her four grounds of appeal are addressed below.

Legal Framework

[7]

Rule 2.1.01 allows a court to stay or dismiss a
    proceeding if the proceeding appears on its face to be frivolous or vexatious
    or otherwise an abuse of process of the court.

[8]

The following principles govern the application
    of r. 2.1:

1.

Rule 2.1 must be interpreted and applied robustly so that a motion
    judge can effectively exercise his or her gatekeeping function to weed out
    litigation that is clearly frivolous, vexatious, or an abuse of process:

Scaduto
    v. The Law Society of Upper Canada
, 2015 ONCA 733, at para. 8, leave
    to appeal refused, [2015] S.C.C.A. No. 488. The Rule is not for close calls
    it may be used only in the clearest of cases where the abusive nature of the
    proceeding is apparent on the face of the pleading and there is a basis in the
    pleadings to support the resort to the attenuated process:
Scaduto
,
    at paras. 8-9;
Khan v. Law Society of Ontario
, 2020 ONCA 320 (
Khan
),
    at para. 6, leave to appeal to S.C.C. requested, 39321.

2.

A motion under r. 2.1 focuses on the pleadings and
    any submissions of the parties made under the rule. No evidence is submitted on
    a r. 2.1 motion:
Scaduto
, at paras. 9, 11-12. A court may, however, review
    reasons and pleadings from other proceedings to determine whether the case is
    abusive:
Khan
, at para. 9.

3.

Rule 2.1 does not replace other rules in the
Rules
    of Civil Procedure
to strike out actions or to deal with other procedural
    irregularities summarily:
Khan
, at para. 7. The rule is not meant to
    be an easily accessible alternative to a pleadings motion, a motion for summary
    judgment, or a trial:
Khan v. Krylov & Company LLP
, 2017 ONCA
    625, 138 O.R. (3d) 581, at para. 12;
P.Y. v. Catholic Childrens Aid
    Society of Toronto
, 2020 ONCA 98, at para. 11. The Rules provide many
    other remedies to address cases that are not clear on the face of the pleading:
Khan
, at para. 15.

4.

The case law under r. 2.1 will continue to develop
    as the rule is used more widely:
Scaduto
, at para. 9.

5.

A motion judges ruling under r. 2.1 is a
    discretionary decision entitled to appellate deference. Such a decision may be
    set aside only if the motion judge misdirected themselves or their decision was
    so clearly wrong as to amount to an injustice:
Khan
, at para. 10;
Penner
    v. Niagara Regional Police Services Board
, 2013 SCC 19, [2013] S.C.R. 125,
    at para. 27.

Discussion

[9]

The motion judge correctly identified the
    relevant legal principles under r. 2.1, and her discretionary decision to dismiss
    the action
is entitled to appellate deference
.

[10]

In our view, the appellants four grounds of
    appeal lack merit.

[11]

First, the appellant asserts the statement of
    claim pleads proper causes of action lacking the evident hallmarks of
    frivolous, vexatious, or abusive litigation. We disagree. The motion judge reviewed
    the claim and the many decisions detailing the appellants litigation history against
    the University about her law school transcript. Based on that review, she was
    entitled to conclude that the action involves abusive relitigation. We see no
    basis to intervene.

[12]

Second, the appellant asserts her claim does not
    seek to relitigate the same factual circumstances that were dismissed in her court
    action in 2005 or in her application to the HRTO in 2008. We disagree. Her action
    impugns the same conduct of the University that she has unsuccessfully impugned
    before  the Universitys policy of including her first first year results on
    her official transcript. This is apparent on the face of the statement of
    claim, paragraph 7 of which asserts:

The [University] continuously, carelessly or
    deliberately and in any event wrongfully created, maintained, published, and
    disclosed academic transcripts relating to the Plaintiff which had the effect
    of obliging the Plaintiff to reveal to those to whom it was disclosed that she
    suffered from a physical disability, the nature and existence of which she was
    entitled by virtue of the Ontario Human Rights Code to keep confidential, and
    which she in fact wished to keep confidential; and which, when disclosed, has
    tended and will in future tend, to cause potential employers to think poorly of
    her professional acumen and intellectual abilities.

[13]

Third, the appellant asserts that her claim for
    invasion of privacy rests on a new tort that this court first recognized in
Jones
    v. Tsige
, 2012 ONCA 32, 108 O.R. (3d) 241, after the appellants previous
    proceedings were dismissed.

[14]

The motion judge rejected this argument. She
    noted that this court in
Jones v. Tsige
confirmed a cause of action
    that already existed at common law, and thus concluded that the appellants claim
    here was barred by the doctrine of cause of action estoppel:

Contrary to Ms. Visics submissions, the Court
    of Appeal did not recognize a new tort of invasion of privacy in
Jones v.
    Tsige
, 2012 ONCA 32, 108 O.R. (3d) 241 [
Jones
]. The Court of Appeal
made clear that
it was recognizing a cause of
    action that existed at common law:
Jones
, at para. 65. The doctrine of
    cause of action estoppel is applicable here. That doctrine prevents parties
    from re-litigating matters by advancing a point in subsequent proceedings which
    properly belonged to the subject of the [previous] litigation:
The Catalyst
    Capital Group Inc. v. VimpelCom Ltd.
, 2019 ONCA 354, 145 O.R. (3d) 759, at
    para. 49 (internal quotations omitted).

[15]

We agree with the motion judges reasoning and
    conclusion.

[16]

Fourth, the appellant asserts the motion judge
    erred in relying on abuse of process and cause of action estoppel under r.
    2.1.01 because she says such a finding requires evidence. We disagree with this
    submission in the context of this case. Relitigation of issues determined in a prior
    judicial proceeding is a classic example of abuse of process under r. 2.1:
Activa
    Trading Co. Ltd. v. Birchland Plywood-Veneer Limited
, 2020 ONCA 93, at
    para. 9. In applying r. 2.1.01, the motion judge was entitled to review reasons
    from other proceedings describing the appellants long history of litigation
    against the University involving the same issues. We see no error in her
    approach or conclusion.

Disposition

[17]

The appeal is dismissed.

[18]

If the parties cannot resolve
the issue of
costs, the respondents may file a bill
    of costs and written submissions of no more than two pages within 10 days of
    this decision, and the appellant may file a bill of costs and written
    submission of no more than two pages within 20 days of this decision.

C.W. Hourigan
    J.A.

Gary
    Trotter J.A.

M.
    Jamal J.A.