COURT OF APPEAL FOR ONTARIO

CITATION: Afifi (Re), 2019 ONCA 457

DATE: 20190605

DOCKET: C66163

Watt, Lauwers and
    Hourigan JJ.A.

IN THE MATTER OF:
    Sheab Afifi

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Deborah Krick, for the respondent, Her Majesty the Queen

Gavin MacKenzie, for the respondent, Person in Charge of
    the Centre for Addiction and Mental Health

Heard: May 22, 2019

On appeal against the disposition of the Ontario Review
    Board, dated October 10, 2018.

REASONS FOR DECISION

[1]

On November 22, 2006, Sheab Afifi was found not criminally responsible
    for mischief under $5,000 (x2), assault and uttering threats. Mr. Afifi has
    been diagnosed with schizophrenia, cannabis use disorder (partial remission),
    alcohol use disorder (sustained remission) and anti-social personality
    disorder. He is capable of consenting to his own treatment. He was subject to a
    detention order and is placed at the Centre for Addiction and Mental Health
    (CAMH or the hospital).

[2]

This appeal concerns two restrictions on liberty hearings and the annual
    hearing for the 2018 reporting year. The Ontario Review Board found that the
    two restrictions on liberty were warranted and represented the least onerous
    and least restrictive decisions in the circumstances. The Board imposed a
    detention order (General Forensic Unit).

[3]

Mr. Afifi appeals. He argues that the Board erred in failing to grant
    him a conditional discharge. He takes the position that his risk can be managed
    safely with a conditional discharge and resort to the provisions of the
Mental
    Health Act
, R.S.O. 1990, c. M.7
He also asserts that the hospitals threshold for admitting him to hospital is
    too low, overly restrictive and onerous. Counsel for the appellant submits that
    his aggressive behaviour is often not derivative of his mental illness, but of
    his personality.

Index offences and detention history

[4]

On August 20, 2006, Mr. Afifi arrived at the family home. He jumped on
    the hood of his fathers car, damaging it. When his father stepped out of the
    car, Mr. Afifi approached him and spat in his face. He then started punching
    his father in the chest with both hands, stating: I know you just had a heart
    attack before, now Im going to kill you. He then kicked his father in the
    groin. A neighbour called the police. They arrested Mr. Afifi and put him in
    the back of a marked police car. He kicked at the rear passenger window,
    causing it to shatter.

[5]

Mr. Afifi had behavioural problems in Egypt before coming to Canada,
    which escalated here. His parents advised that he was involved in truancy,
    bullying, fire-setting, stealing and fighting. He began seeing a psychiatrist
    in 2000, but has a history of being non-compliant with treatment. Mr. Afifi
    started using marijuana in 2002 or 2003 and reported experiencing increased
    paranoia when intoxicated with marijuana. Dr. Ulrich testified that, in Mr.
    Afifis fragile mental state, the use of substances makes him more psychotic
    and a greater risk to public safety when he becomes stressed.

[6]

According to the hospital record, Mr. Afifi lived in the community with
    his parents and was an outpatient in the forensic outpatient service of CAMH
    from January 10, 2007. However, his parents could not cope and Mr. Afifi was
    admitted to hospital briefly and then eventually discharged to his own
    apartment on December 3, 2008. He obtained a conditional discharge on July 31,
    2014, but his behaviour reportedly changed significantly. He missed
    appointments, provided fake urine samples and diluted urine samples and had 11
    positive cannabis tests after September 10, 2014. These resulted in an early Board
    hearing, a detention order and admission to the hospital. Mr. Afifi was not
    discharged to his apartment again until May 20, 2015. Since then, there has
    been a pattern of multiple admissions, as a hospital report notes, usually
    because of marijuana use, problematic urine samples and deterioration in Mr.
    Afifis mental condition.

[7]

In the 2018 reporting year, Mr. Afifi had three admissions to hospital,
    prompted by diluted urine samples and positive marijuana results, as well as
    deterioration in his behaviour and mental status. The first admission was from
    April 24 to April 30, 2018. The second admission was from July 10 to August 10,
    2018. The third admission started on August 31, 2018 and was still in place at
    the time of the Board hearing. The second and third admissions resulted in
    restrictions on liberty that the Board reviewed along with the annual hearing.

The decision under appeal

[8]

The Board unanimously found that Mr. Afifi is a significant threat and
    concludes that the current Disposition is necessary and appropriate. The Board
    added that the two restrictions on his liberty were necessary and warranted in
    the circumstances. The ongoing restriction on liberty is also warranted,
    pending the exercise of indirectly supervised community passes that must be
    completed before he can return to the community.

[9]

The Board also commented on the low threshold for admitting [Mr. Afifi]
    to hospital. The Boards understanding, from the evidence of Dr. Ulrich, is
    that:

Mr. Afifi would not be readmitted
    on the basis only of dilute or abnormal urine screens. Rather, [Dr. Ulrich] spoke
    of a constellation of factors related to increased, dynamic risk; these include
    changes in his mental status and what the doctor described as Mr. Afifis high
    baseline risk.

[10]

In
    its reasons, the Board quoted Dr. Ulrich:

Mr. Afifi does not want to take
    medication and would discontinue if not under the oversight of the ORB.  Were
    he to be released from the ORB, he would use substances and discontinue his medication,
    both of which would increase his risk of violence. When not on medication, Mr.
    Afifi is more labile, more prone to perceived threats, and at much higher risk
    of committing an act of violence. Dr. Ulrich described this likelihood as being
    quite high.

[11]

The
    Board considered the proposed alternate disposition of a conditional discharge.
    Dr. Ulrich opposed a conditional discharge on the basis that the hospital
    needs the authority to return Mr. Afifi to hospital. Dr. Ulrich took the
    position that the
Mental Health Act
is not a satisfactory strategy
    for managing the risk, because Mr. Afifi can be quite good at concealing his
    symptoms of psychosis and could fool emergency room personnel.

Fresh evidence

[12]

The
    hospital tenders fresh evidence in the form of the affidavit of its legal
    counsel. It sets out Mr. Afifis history since the hearing that is the subject
    of this appeal. Mr. Afifi was discharged from CAMH on October 5, 2018, four
    days after the hearing. He remained in the community until March 17, 2019, when
    he was apprehended by police, after allegedly assaulting a stranger.

[13]

The
    police report of the March 17, 2019 incident describes an assault on a stranger
    whom he punched in the stomach. The victim did not want to press charges and
    Mr. Afifi was apprehended under the
Mental Health Act
. Mr. Afifi was
    then transported to Michael Garron Hospital, where he was to be seen and
    assessed by a doctor. Due to the long wait at Michael Garron Hospital, police
    were advised to take Mr. Afifi to CAMH, where he was admitted. CAMH provided
    the Board with notice of a significant restriction of his liberty on March 25,
    2019.

[14]

Mr.
    Afifi was discharged to the community on April 9, 2019, but then readmitted to
    CAMH on April 16, 2019, under a warrant of committal. Notice of significant
    restriction of Mr. Afifis liberty was again provided to the Board by CAMH on
    April 24, 2019.

[15]

The
    Board has scheduled a hearing for June 21, 2019, to review both recent
    restrictions of Mr. Afifis liberty. We were advised that the hearing will also
    serve as Mr. Afifis annual review. The customary hospital report supplement has
    been prepared and describes the events leading to the restrictions on liberty. The
    urine drug screens in the hospital report also reveal considerable cannabis use
    by Mr. Afifi over the period.

Analysis

[16]

The
    appellants counsel raises several issues. Her overall position is that the
    hospitals approach to Mr. Afifi is misguided. The low threshold for admitting
    Mr. Afifi to hospital subjects him to unnecessary admissions and prevents the
    formation of a therapeutic alliance between Mr. Afifi and the treatment team,
    whom, she says, he now hates. He considers the hospital to be obsessed with
    his urine.

[17]

However,
    this submission confirms that Mr. Afifi has no insight into his mental illness
    and its connection with his abuse of cannabis; the urine tests are intended to
    detect such use and the use of other drugs. It also appears from the record
    that even though Mr. Afifi is on long-acting (3 week) injectable anti-psychotic
    medication, it is not sufficient to overcome his rapid decompensation when he
    smokes cannabis. He seems unable or unwilling to accept the connection.

[18]

There
    is no merit in counsels submissions that both of the restrictions on liberty
    were unwarranted. The decision relies on the evidence, which shows that Mr.
    Afifi was decompensating on both occasions.

[19]

There
    is likewise no merit in counsels argument that the Board erred in keeping Mr.
    Afifi on a detention order instead of moving him to a conditional discharge. The
    Boards decision was not unreasonable given the evidence before it. While the
    long-acting injectable medication can form a springboard to increased levels of
    liberty, as it has in other cases, this is not true for Mr. Afifi at this time,
    given his lack of insight; his continued if not escalating cannabis use;

the limited protective effect of the anti-psychotic
    medication, which is not sufficient to overcome his rapid decompensation when
    he smokes cannabis; the risk factors including his status on the
    psychopathology index; and his occasional flashes of violence.

[20]

Appellants
    counsel raised several other arguments concerning the interplay between the
Criminal
    Code
, R.S.C. 1985, c. C-46, and the
Mental Health Act
that are
    best left for determination on a better record and more cogent evidence.

[21]

The
    appeal is dismissed.

David
    Watt J.A.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Asghar v. Ruffudeen, 2019 ONCA 533

DATE: 20190624

DOCKET: M50270 (C66620)

Juriansz, van Rensburg and Paciocco JJ.A.

BETWEEN

Amy Samina Asghar

Applicant (Respondent)

(Moving Party)

and

Zamaludeen Ruffudeen

Respondent (Appellant)

(Responding Party)

Amy Asghar, self-represented

Michelle Kropp, for the responding party

Heard and released orally: June 17, 2019

REASONS FOR DECISION

[1]

The appellant abandoned the appeal. The only issue remaining is the
    respondents claim for costs of the appeal.

[2]

We consider the appellants expenditures on legal advice to have been reasonably
    incurred. We are not persuaded there is any basis to order costs on a substantial
    indemnity basis.

[3]

The judge below awarded the respondent costs in the amount of 70 percent
    of the legal fees incurred on a partial indemnity basis, and 100 percent of her
    disbursements. Following the same approach, we fix the respondents costs in
    the amount of $1,500.00 all-inclusive.

[4]

There will be no order as to costs of the attendance today.

R.G. Juriansz J.A.

K. van Rensburg J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Asghar v. Toronto Police Services Board, 2019 ONCA
    479

DATE: 20190611

DOCKET: C65470

Hoy A.C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Sajjad
    Asghar

Plaintiff/Responding Party
(Appellant)

and

Toronto Police
    Services Board
,
Toronto Police Chief
,

Constable Brad
    Verspeeten #9278 41 Division
,

Toronto
    Transit Commission (TTC), Edwin Collins (TTC Driver)

Defendants/
Moving Parties

(Respondents)

Sajjad Asghar, acting in person

John Rosolak, for the respondents Toronto Transit
    Commission (TTC) and Edwin Collins (TTC Driver)

Natalie Salafia, for the respondents Toronto Police
    Services Board, Toronto Police Chief and Constable Brad Verspeeten #9278 41
    Division

Heard: May 10, 2019

On appeal from the
    order of Justice Andra Pollak of the Superior Court of Justice, dated May 10,
    2018, with reasons reported at
2018 ONSC 2354
.

REASONS FOR DECISION

[1]

The appellant owned and operated a motor vehicle that was involved in a
    collision on May 31, 2014. He was charged by the respondent Constable Brad Verspeeten
    with careless driving. The charge was withdrawn on May 16, 2016. The appellant
    was convinced that he had been wrongfully charged and issued a statement of
    claim. See the earlier endorsement of Faieta J. dated July 27, 2016, with
    reasons reported at 2016 ONSC 4844.

[2]

In oral argument, the appellant drew the courts attention to the
    investigating officers sketch of the accident scene and the sketch provided by
    the TTC driver, Edwin Collins. He also referred to several witness statements.
    He pointed out how all of this evidence was belied by the dash cam footage from
    Officer Verspeetens vehicle. It is not surprising that the charge of careless
    driving was withdrawn.

[3]

The appellant was outraged by this situation and started this action. On
    the plausible side of the ledger, he alleges negligent investigation, malicious
    prosecution and conspiracy. He has also drawn several more contentious and
    implausible inferences from the evidence about an international criminal
    conspiracy involving U.S. and Canadian police forces and organized crime.

[4]

The police respondents focused in oral argument on the implausible allegations
    in the statement of claim and assert that these are driving the case. They say
    that the implausible allegations do not form the basis of a cause of action
    and, for that reason, the appeal should be dismissed. Counsel points to para.
    25 of the statement of claim as asserting a claim for relief that is beyond the
    jurisdiction of the court. That paragraph states:

This is high time for the Canadian
    Court System and the Parliament to promulgate law that addresses organized
    crime since Canada runs rife with organized crime and the Crown in Right of
    Canada facilitates organized crime on law abiding citizens.
That discussion
    is beyond the scope of this action.
All defendants owed duty of care to the
    plaintiff which was breached and plaintiff was injured due to the negligence of
    all defendants. [Emphasis added]

[5]

The appellants answer to the critique of the breadth of the implausible
    allegations is in the underlined portion of the quote. He well understands the
    limits of the courts jurisdiction and seeks tort relief (damages) from
    recognized causes of action, in particular, negligent investigation, malicious
    prosecution and conspiracy related to those torts. The other allegations give
    context, he says.

[6]

The appellants factum and his oral submissions bubble with outrage
    about the bums rush he thinks he got from Faieta J. and from the motion judge.

The context before the motion judge

[7]

The police respondents brought a motion for an order striking out the
    statement of claim, without leave to amend, as being frivolous and vexatious
    under r. 21.01(3)(d) of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, and for a lack of compliance with the pleadings requirements of r.
    25.06(8), which requires that where allegations of intentional or malicious
    conduct are made, the claim must contain full particulars supporting the causes
    of action that are alleged. The police respondents also invoked r. 21.01(1)(b) to
    argue that the statement of claim discloses no reasonable cause of action.

The governing principles

[8]

In a motion to strike a pleading as disclosing no reasonable cause of
    action under r. 21.01(1)(b), the moving party must show that it is plain,
    obvious and beyond doubt that the claim will not succeed at trial:
MacKinnon
    v. Ontario Municipal Employees Retirement Board
, 2007 ONCA 874, 88 O.R.
    (3d) 269, at para. 19. The court added, at para. 20, that [t]he statement of
    claim must be read generously to allow for drafting deficiencies and [i]f the
    claim has some chance of success, it must be permitted to proceed. The court
    concluded, at para. 21, that the threshold for sustaining a pleading on a Rule
    21 motion is not high. See also
Doe v. Metropolitan Toronto (Municipality)
    Commissioners of Police
(1990), 74 O.R. (2d) 225 (Div. Ct.), leave to
    appeal refused, [1991] O.J. No. 3673 (C.A.).

[9]

The usual result when a pleading is struck is to grant leave to amend.
    The principles are set out in
Spar Roofing & Metal Supplies Ltd. v.
    Glynn
, 2016 ONCA 296, 348 O.A.C. 330, at paras. 35-45, where Weiler J.A. pointed
    out that this approach is consistent with the generous approach to pleadings
    amendment under r. 26. Leave to amend should accordingly be denied only in the
    clearest of cases:
South Holly Holdings Ltd. v. The Toronto-Dominion Bank
,
    2007 ONCA 456, at para. 6; and
Tran v. University of Western Ontario
,
    2015 ONCA 295, at para. 26.

[10]

Read
    generously, with due allowance for the fact that the appellant is
    self-represented and is not a lawyer, the nub of the claim is for negligent
    investigation, and malicious prosecution on the part of the investigating officer,
    together with conspiracy in relation to these torts.

The motion judges reasons

[11]

The
    motion judge accepted the police respondents submissions that much of the
    statement of claim was scandalous and should be struck on that basis. The police
    respondents argued that the claims for racial profiling, improper purpose
    (organized crime), and malicious falsehood are not recognized causes of
    action. They also submitted that the statement of claim did not plead material
    facts that would establish a breach of the
Canadian Charter of Rights and
    Freedoms
. The motion judge agreed. She dismissed claims against the
    Toronto Police Services Board on the basis of s. 31 of the
Police Services
    Act
,

R.S.O. 1990, c. P.15
. She agreed with the
    submission of counsel for the police respondents that the Claim cannot be
    repaired by amendments as it seeks a remedy outside of the Court's jurisdiction;
    discloses no reasonable cause of action and contains irrelevant and
    inflammatory statements that cannot be removed from the pleading. On this
    basis she struck the claim in its entirety with no leave to amend. She accepted
    the submission that if the claim is not struck out, the result will be unfocussed
    discoveries and a lengthy, complex trial.

The principles applied

[12]

As
    to the proper parties, there is no duty of care owed by the Toronto Police
    Chief personally to the appellant. The action against the Toronto Police Chief was
    properly dismissed. Nor do the Toronto Transit Commission and Edwin Collins,
    the TTC driver, owe a duty of care in negligence that is engaged in this case.

[13]

We
    agree with the motion judge that many sections of the statement of claim are
    scandalous in the technical, legal sense of being irrelevant to the plausible causes
    of action advanced by the appellant. We now turn to the causes of action.

[14]

With
    respect to negligent investigation, Pollak J. commented:

[T]here are no allegations of acts
    or omissions to support the allegation that Constable Verspeeten breached the
    standard of care. The claim is the allegation that Constable Verspeeten and fellow
    Police officers maliciously and intentionally conducted false and negligent
    investigation.  The plaintiff has not pleaded facts which demonstrate how
    the defendant officers breached the standard of care required of police
    officers.

[15]

This
    is not correct. The plaintiff did make allegations about the nature of the
    investigation, which might demonstrate how the defendants breached the standard
    of care required of police officers. In oral argument he complained that he
    himself was not interviewed by the investigating officer. Several other
    relevant allegations can be found at paras. 23 and 24 of the statement of claim:

Defendant and fellow police officers changed the final location
    of both vehicles inside the file which was contrary to the material facts,
    circumstantial and video evidence but fit well with the maliciously falsified
    statements of the witnesses.

[P]olice changed the material facts by falsifying information
    and by fixing things that fit the false statements of thug witnesses.  [C]hanging
    of the facts on the file by the police to fit witness statements are confirmed
    by a video evidence.

Defendant constable and fellow
    officers failed to record the material facts correctly and in fact falsified
    facts such as final locations of the vehicles, motion trajectory of plaintiffs
    vehicle before and after the accident, motion trajectory of the other vehicle,
    Police failed to take plaintiffs statement or at least hear what was the
    truth.  The investigating officer acted with indifference to the consequences
    of laying the charge and fell short of even the rudimentary steps which might
    have been taken to establish reasonable and probable grounds for laying a
    charge. In the present case defendant Police constable knew or ought to have
    known that witnesses were lying.

[16]

Each element of the claim of malicious prosecution against the
    investigating officer appears in the statement of claim: see
Curley
    v. Taafe
, 2019 ONCA 368, at para. 19. First, paras. 17,
    24 and 28 indicate that he initiated the prosecution:

Defendant constable was the investigating officer and was
    working with a team of police officers, names  Peter Upton, James Lee,
    Michelle Moorcroft, Glen Pitters apparently all from 41 Division.

The investigating officer acted with indifference to the
    consequences of laying the charge.

The Defendant officer falsely
    charged the Plaintiff.

[17]

Second,
    the proceedings terminated in favour of the appellant. Third, the appellant
    alleges the absence of reasonable and probable cause. This is implicit in the
    negligent investigation allegations. Several other statements, at paras. 24 and
    29, could be construed as speaking to an absence of reasonable and probable
    cause:

The investigating officer acted with indifference to the
    consequences of laying the charge and fell short of even the rudimentary steps
    which might have been taken to establish reasonable and probable grounds for
    laying a charge. In the present case defendant Police constable knew or ought
    to have known that witnesses were lying.

The Plaintiff states and the fact
    is that the Defendant had no reasonable or probable grounds for charging the
    plaintiff. Further, the Plaintiff asserts that his decision to charge the
    Plaintiff was motivated by the subject officers indifference to the guilt innocence
    or correct identity of the Plaintiff.

[18]

Fourth,
    malice is asserted throughout. For example, paras. 21, 24, 33 and 43 state the
    following:

This action is being brought against the malicious design
    crafted by the Police with an assist from the false witnesses.

Defendant Police constable and fellow Police officers
    maliciously and intentionally conducted false and negligent investigation.

The Plaintiff asserts that the conduct of the Defendant officer
    and TTC driver was malicious and was driven by malice and organized motive.

[T]he malicious attempt to lay
    false charges.

[19]

Finally, the appellant asserted
actual
    injury.

[20]

The
    tort of conspiracy exists if either (1) the predominant purpose of the
    defendants conduct is to cause the plaintiff injury, whether or not the
    defendants means were lawful, or (2) the defendants act in combination, that
    is, in concert, by agreement or with a common design; their conduct is unlawful;
    their conduct is directed towards the plaintiff; the defendants should know
    that, in the circumstances, injury to the plaintiff is likely to result; and
    their conduct causes injury to the plaintiff:
Fanshawe College of Applied
    Arts and Technology v. Au Optronics Corporation
, 2016 ONCA 621, 132 O.R.
    (3d) 81, at para. 71; and
Agribrands Purina Canada Inc. v. Kasamekas
,
    2011 ONCA 460, 106 O.R. (3d) 427, at paras. 24-26. The appellant has pleaded
    each element of this tort against the remaining parties, except for the TTC,
    who remain implicated on the basis of possible vicarious liability for the
    actions of the TTC driver, Edwin Collins.

[21]

First, the appellant pleaded, at para. 23, that [t]he predominant
    objective of the defendant Constable and the fellow police officers including
    the false witnesses was to harm the plaintiff.

[22]

Second, the statement of claim contains the following allegations
    at para. 23:

Defendant constable, false
    witnesses and the fellow police officers acted in concert and combination to
    harm the plaintiff.  Defendant Police Officer, fellow officers and defendant
    TTC driver including other witnesses knew or ought to have known that injury to
    the plaintiff was likely to occur due to their unlawful actions.

As described above, the appellant also asserted actual
    injury.

Disposition

[23]

We
    recognize that motion judges are sometimes faced with claims that seem
    incredible and highly implausible, which are asserted by self-represented individuals
    who are often insulting in their manner of presentation and in the material
    they file with the court. Nonetheless, these individuals are entitled to have
    their pleadings assessed on an objective basis, read generously. They are
    entitled to have their claims determined on the merits, however tenuous those
    might seem to be, or might actually be.

[24]

In
    the statement of claim considered by the motion judge, in our view the
    appellant comes very close to properly pleading the main claims of negligent investigation,
    malicious prosecution, and conspiracy. There are also possible claims pursuant
    to s. 24(1) of the
Charter

and s. 46.1 of the
Human Rights
    Code
, R.S.O. 1990, c. H.19, although they have not been properly pleaded.
    Malicious falsehood, which is referred to a number of times in the statement
    of claim, is not a recognized cause of action. However, in some circumstances
    it could be interpreted as an appropriate factual description.

[25]

We
    therefore vary the motion judges order as follows. We agree with the motion judge
    that much of the pleading is scandalous in the technical legal sense of being
    irrelevant to the determination of the causes of action on the merits. Attached
    to these reasons as Appendix A is a copy of the statement of claim, with
    several portions stroked out. These are struck without leave to amend. The
    balance of the pleading is struck with leave to amend.

[26]

The
    appellant was successful in this appeal. We therefore set aside the motion
    judges costs award. If the parties cannot agree on the costs of the appeal,
    then they may make submissions not more than three pages in length on a ten-day
    turnaround starting with the appellant.

Alexandra Hoy
    A.C.J.O.

P. Lauwers J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: BGOI Films Inc. v. 108 Media Corporation, 2019 ONCA
    539

DATE: 20190625

DOCKET: M50283 and M50284 (C66668 and C66669)

Hourigan,
    Paciocco and Fairburn JJ.A.

BETWEEN

BGOI Films Inc.

Applicant

(Respondent in Appeal)

and

108 Media Corporation

Respondent

(Appellant)

Jenna Anne de Jong, for the moving party BGOI Films Inc.

Thomas Dumigan, for the respondent 108 Media Corporation

Heard and released orally: June 24, 2019

REASONS FOR DECISION

[1]

These are motions to quash two appeals. Counsel
    to the appellant (respondent on the motions) appeared as a courtesy to the
    court, but did not respond to the motions.

[2]

In the first motion, the applicant says that this court does not have
    jurisdiction to hear an appeal from a decision refusing leave to appeal from an
    arbitral award under s. 45(1) of the
Arbitration Act
,
where
    that refusal is based upon a lack of jurisdiction.

[3]

We need not address this issue given that no appeal lies to this court
    from a refusal to grant leave to appeal where that refusal is based upon the
    merits. Although the application judge found that he was without jurisdiction
    to entertain the matter, he went on in any event and decided the matter on its
    merits, deciding that neither of the questions that he was called upon to
    decide raised questions of law. No appeal lies from an order granting or
    refusing leave to appeal on the merits.

[4]

Accordingly, we would quash the appeal in the matter of C66668.

[5]

The applicant also seeks to quash the appeal in C66669, an appeal from
    the decision recognizing and enforcing the arbitral award dated December 11,
    2017. Section 50(3) of the
Arbitration Act
deprives a judge of
    jurisdiction to refuse to enforce an arbitral award except in certain
    circumstances, none of which apply here. The fact of quashing the appeal in
    C66668 means that there is no basis upon which to continue this appeal and that
    the arbitral award must be enforced.

[6]

Accordingly, the appeal in C66669 is also
    quashed.

[7]

The appellant 108 Media Corporation shall
    pay costs to BGOI Films Inc. for both appeals in the aggregate amount of
    $14,000. We award costs on a higher scale because it is evident that 108 Media
    Corporations litigation strategy has been to delay the inevitable, knowing
    that they had no arguable grounds of appeal. This is a waste of court resources
    and is worthy of censure by this court.

C.W. Hourigan J.A.

David M. Paciocco J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bang v. Sebastian, 2019 ONCA 501

DATE: 20190614

DOCKET: C66179

MacPherson, Tulloch and Harvison Young JJ.A.

BETWEEN

Wonkyun
    Bang and Eunkyung Moon

Plaintiffs (Respondents)

and

Julia Bency
    Sebastian

Defendant (Appellant)

and

Signature Realty
    Inc. carrying on business as Royal LePage Signature Realty

Defendant (Noted in Default)

Harpreet Singh Makkar, for the appellant

Victor Tchor, for the respondents

Heard: June 13, 2019

On appeal from the
    judgment of Justice Andrew Sanfilippo of the Superior Court of Justice, dated October
    18, 2018, with reasons reported at 2018 ONSC 6226.

REASONS FOR DECISION

[1]

The appellant Julia Bency Sebastian appeals from the judgment of
    Sanfilippo J. of the Superior Court of Justice granting summary judgment to the
    respondents Wonkyung Bang and Eunkyung Moon for the appellants failure to
    close a residential real estate transaction.

[2]

The motion judge determined that there was no genuine issue requiring a
    trial on the respondent/plaintiffs claim for breach of the applicable
    agreement of purchase and sale. He awarded damages of $122,221.33, representing
    $75,000 in lost value for the property and $47,221.33 in consequential damages,
    including financing and carrying costs. The motion judge gave the appellant
    credit for her $35,000 deposit, resulting in total judgment against the
    appellant of $87,221.33.

[3]

The appellant appeals in respect of only the damages award. She seeks a reduction
    of almost $50,000.

[4]

First, the appellant contends that the trial judge erred by finding that
    there was no evidence of the appellant making an offer in June 2017 to purchase
    the subject property at the reduced price of $920,000 (the original purchase
    price, agreed to by the appellant, was $995,000). This error, says the
    appellant, goes to the root of the motion judges finding with respect to
    mitigation.

[5]

We do not accept this submission. The duty to mitigate does not compel
    the seller of residential property to abandon a perfectly valid agreement and
    accept a substantially reduced price just because the purchaser decides to
    abort the valid agreement because of a falling real estate market.

[6]

Second, the appellant submits that the motion judge erred in not drawing
    an adverse inference against the respondents for not producing evidence from
    their real estate agent and making findings based on hearsay evidence.

[7]

We disagree. These points relate to the mitigation issue. As we said above,
    the respondent did not have to accept a reduced offer (by $75,000) to mitigate
    potential losses caused by the appellants breach of the original agreement.

[8]

Third, the appellant asserts that the motion judge erred by finding that
    the appellant knew that the respondents were selling the property to purchase
    another property and in awarding compensation for financing that property once
    the appellant abandoned the agreement.

[9]

We are not persuaded by this submission. There was evidence that the
    respondents were buying a new home and, in our view, it was reasonably
    foreseeable that there would be finance and carrying expenses related to that
    purchase.

[10]

The
    appeal is dismissed. The respondents are entitled to their costs of the appeal
    fixed at $10,000 inclusive of disbursements and HST.

J.C. MacPherson J.A.

M. Tulloch J.A.

Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Beaver v. Hill, 2019 ONCA 520

DATE: 20190621

DOCKET: C65513 & C66285/M50431

Brown, Roberts and Miller JJ.A.

C65513

BETWEEN

Brittany
    Beaver

Applicant

(Respondent)

and

Kenneth Hill

Respondent

(Appellant)

C66285/M50431

AND BETWEEN

Kenneth
    Hill

Applicant

(Appellant/Responding
    Party)

and

Brittany Beaver

Respondent

(Respondent/Moving
    Party)

Michael S. Rankin and Andrew K. Lokan,
    for the appellant, C65513

Melvyn L. Solmon, Malliha Wilson and Gathya
    Manoharan, for the appellant, C66285, for the responding party, M50431

Harold Niman, Martha McCarthy, and
    Scott Byers, for the respondent, C65513 & C66285, for the moving party,
    M50431

Heard: June 6, 2019

On appeal from the order of Justice James
    W. Sloan of the Superior Court of Justice, dated May 24, 2018; and on appeal
    from the judgment of Justice Alex Pazaratz of the Superior Court of Justice,
    dated November 28, 2018, with reasons reported at 2018 ONSC 7138, 144 O.R. (3d)
    46.

BROWN J.A:

I.        OVERVIEW

[1]

In late 2015, Brittany Beaver commenced an
    application against Kenneth Hill, pursuant to the
Family Law Rules
,
    seeking relief under the
Family Law Act,
R.S.O. 1990, c. F.3, and
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12 (the FLA Proceeding). Ms. Beaver
    and Mr. Hill are the parents of one child, B., who is almost 10 years old.

[2]

Three matters are before this court: two appeals
    from orders made in or in respect of the FLA Proceeding and a motion to quash
    one of those appeals.

[3]

The history of this litigation has been
    described in decisions of this court and the Superior Court of Justice: 2018
    ONCA 816, 428 D.L.R. (4th) 288; 2017 ONSC 7245; 2018 ONSC 7138, 144 O.R. (3d)
    46. It need not be repeated.

[4]

In its October 12, 2018 reasons, this court, at
    para. 78, described the procedural history of this matter and issued the
    following caution and direction:

This case has developed into a procedural
    morass, to which both sides have contributed. A phalanx of lawyers appeared
    before us. The parties have made no effort to save expense or time as required
    by ss. 2(3) of the
Family Law Rules
:
Titova v. Titov
, 2012 ONCA 864 , 299
    O.A.C. 215, at para. 54. Their tactics have led to a proliferation of
    materials, skirmishes and arguments that the Rules seek to avoid. This must not
    be permitted to continue.

[5]

Last August, Pazaratz J. was designated as the
    case management judge for the FLA Proceeding. In his November 27, 2018
    Settlement Conference endorsement, he made two comments, neither of which
    disclosed the content of the settlement discussions, but both of which
    described the conduct of the parties in this litigation. He wrote:

I am led to conclude that cumulatively there
    is little indication of good faith efforts being made by anyone.

I have no control over what happens with
    respect to appeals, but I would ask that any judges hearing any pending appeals
    be mindful of the absolute frustration being experienced at this level. These
    parties just want to litigate, and as a judicial system we need to be
    delivering a consistent message that were not going to tolerate or facilitate
    such a wasteful and destructive approach to important and sensitive family law
    issues.

[6]

On January 16, 2019, at the conclusion of a
    third full day of conferencing, Pazaratz J. wrote:

At the end of three long days in October,
    November and now today, I have advised counsel that I am of the view that there
    is no demonstrated desire or intention to resolve any issues or even narrow the
    issues.

[7]

Given those comments by the case management
    judge, it is evident that the parties have not listened to this courts caution
    nor followed its direction. That is the background to the three matters argued
    before this court on June 6, 2019.

II.       APPEAL
    C66285

Motion to
    quash

[8]

Sloan J. made several endorsements and orders in
    the FLA Proceeding.

[9]

On July 27, 2018, Mr. Hill issued a notice of
    application against Ms. Beaver pursuant to rule 14.05(3)(h) of the
Rules of
    Civil Procedure
, which authorize commencing a proceeding by bringing an
    application in respect of any matter where it is unlikely that there will be
    any material facts in dispute requiring a trial (the Rule 14 Application).
    In that civil application, Mr. Hill sought the following relief: Judgment that
    the Honourable Mr. Justice Sloan recuse himself from presiding over
any further matters
in relation to the FLA Proceeding
    (emphasis added).

[10]

At a November 27, 2018 case/settlement
    conference, Pazaratz J. was asked by Mr. Hills counsel to schedule a hearing
    for the civil recusal application. Pazaratz J. heard extensive submissions from
    both parties concerning the request. On November 28, 2018 Pazaratz J. granted
    judgment as follows: THIS COURT ORDERS THAT the Application is dismissed,
    without prejudice to it being returnable in the event that the Honourable Mr.
    Justice Sloan is assigned to a future event on this file.

[11]

Mr. Hill appeals that judgment. Ms. Beaver moves
    to quash his appeal, taking the position that the judgment is an interlocutory
    order, an appeal from which requires leave of the Divisional Court.

[12]

At the hearing, the panel advised the parties
    that we would hear the appeal. These are the reasons for doing so, as well as the
    disposition of Mr. Hills request for appellate review of the order of Pazaratz
    J.

[13]

Generally speaking, a judgment dismissing a r.
    14.05(3) application under the
Rules of Civil Procedure
is a final
    order for the purpose of determining the route of appeal:
Buck Bros.
    Limited v. Frontenac Builders Ltd.
(1994), 19 O.R. (3d) 97 (C.A.), at pp.
    101-104. However, the FLA Proceeding between Ms. Beaver and Mr. Hill in which
    Sloan J. made his endorsements and orders is a proceeding under the
Family
    Law Act
and
Childrens Law Reform Act
. The
Family Law Rules
 which are intended to be a complete procedural code  apply to such a
    proceeding:
Family Law Rules
, r. 1(2);
Gray v. Gray
, 2017
    ONCA 100, 137 O.R. (3d) 65, at para. 30. The only application recognized by
    the
Family Law Rules
is the one that commences a proceeding. Once a
    proceeding is commenced under the
Family Law Rules
, any request for
    pre-trial relief, including the recusal of a judge from hearing a step in the
    proceeding, must be brought before the court by way of a
motion
in accordance with the
Family Law Rules
: rr. 2(1) and 14(1)2.

[14]

In the present case, Mr. Hill chose the wrong
    procedure to bring his recusal request before the court: he commenced a r. 14
    civil rules application when he should have brought a motion within the FLA
    Proceeding using the
Family Law Rules
. An incorrect procedural choice
    does not render his application a nullity:
Family Law Rules
, r.
    1(8.1);
Rules of Civil Procedure,
r. 2.01. That said, the characterization
    of an order under appeal that is the product of an incorrect procedural choice
    must be determined by looking at the substantive effect of the order. In the
    present case, the judgment of Pazaratz J. dismissing Mr. Hills recusal request
    on a without prejudice basis clearly is interlocutory in nature. It does not
    result in the final determination of any legal or litigation right of Mr. Hill
    he may renew his motion in the event Sloan J. is assigned to hear a matter in
    the FLA Proceeding.

[15]

The appeal of an interlocutory order of a judge
    of the Superior Court of Justice lies to the Divisional Court, with leave:
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, s. 19(1)(b). Given the procedural
    morass permeating this case and the need to move it along to a final
    adjudication on the merits, this panel secured designation as a panel of the
    Divisional Court to hear Mr. Hills request for appellate review and granted
    leave to appeal:
CJA,
s. 18(2). The panel so advised the parties at
    the hearing.

[16]

However, I would dismiss the appeal. Pazaratz J.
    was correct in the order he made. Mr. Hills appeal is without merit.

[17]

Pazaratz J. accurately described Mr. Hills
    application as one
seeking a court order that
[Sloan J.]
not do
    something he isnt going to do anyway
 (emphasis in original): at para.
    12. As the case management judge correctly stated, if the motion was to
    proceed, it would obviously have to be decided by Sloan J.: at para. 10. In his
    capacity as case management judge, Pazaratz J. refused to schedule the
    application. He quite properly stated, at paras. 30 and 31:

Courts exist to resolve real disputes between
    parties. Not to provide opinions in response to hypothetical or academic
    problems. And certainly not to encourage or facilitate convoluted litigation
    strategies.

If the reality is that Justice Sloan would not
    be assigned to future events on this file anyway, then a motion seeking his
    recusal is not only premature  its pointless and purely hypothetical.

[18]

Pazaratz J. then made the common sense proposal
    to Mr. Hills counsel to adjourn the recusal request indefinitely and only
    bring it back on if there were a suggestion that Sloan J. would be assigned to
    hear or deal with a step in the case. Surprisingly, that common sense proposal
    was rejected. Pazaratz J. thereupon dismissed the application, without
    prejudice to Mr. Hill bringing a motion  the proper procedure  back on in the
    event that Sloan J. is assigned to this proceeding.

[19]

That disposition of the application/motion was
    open to Pazaratz J. in his capacity as the case management judge. The
    disposition accorded with and promoted the objectives of the
Family Law
    Rules
as stated in rr. 2(2) and 2(3). It also furthered the direction of
    this court in its October 12, 2018 reasons that [t]he case going forward
    requires active and determined case management. I see no error by Pazaratz J.
    In fact, I completely agree with the common sense disposition he made by, in
    effect, deferring the issue of whether Sloan J. could hear any future matters
    until such time as Sloan J. was assigned to do so. That was a proper direction
    for the case management judge to make with respect to any intended motion:
Family
    Law Rules
, r. 17(4)(i).

[20]

I would also observe that the expansive case
    management powers possessed by judges under r. 2 of the
Family Law Rules
include the duty to promote active management of cases by considering whether
    the likely benefits of taking a step justify the cost. As I read the reasons
    of Pazaratz J., that is precisely what he did in dismissing Mr. Hills recusal
    request on a without prejudice basis.

[21]

I make one final comment. Mr. Hill submits that,
    notwithstanding the singular relief sought in his notice of application, the
    purpose of his recusal application actually was two-fold: (i) to determine
    whether Sloan J. should recuse himself from hearing any future matter; and (ii)
    to determine whether Mr. Hill is entitled to set aside all prior orders made by
    Sloan J. As Pazaratz J. quite correctly stated, if any party disagreed with the
    merits of an order made by Sloan J., it was open to that party to appeal the
    order or move to set it aside, in accordance with the process and timeframes
    set out in the
Rules of Civil Procedure
and the
Family Law Rules
.
    That is precisely
what
Mr. Hill did in respect of the May 28, 2018
    order of Sloan J. fixing interim child support and s. 7 expenses. The
    Divisional Court dismissed his application for leave to appeal by order dated
    February 15, 2019.

Disposition

[22]

For these reasons, leave to appeal from the order
    of Pazaratz J. made November 28, 2018 having previously been granted to Mr. Hill
    by the panel, sitting as the Divisional Court, I would dismiss the appeal.

[23]

Ms. Beaver is entitled to her costs of this
    matter on a partial indemnity basis, which I would fix in the amount of
    $22,000, including disbursements and applicable taxes, payable within 5
    business days of this order.

III.      APPEAL C65513

Overview

[24]

The other appeal concerns the order of Sloan J.
    dated May 24, 2018, in which he dismissed the part of a motion by Mr. Hill that
    sought leave to amend his Answer and Claim to seek custody of their child, B.
    Specifically, Mr. Hill sought leave to amend to request an order that B.
    reside with Mr. Hill as follows: a) primarily with [Mr. Hill]; or in the
    alternative, b) equally with [Ms. Beaver and Mr. Hill]; or in the alternative,
    c) with [Ms. Beaver] and [Mr. Hill] shall have access with [B.] as may be
    agreed upon by the parties.

[25]

In his reasons, Sloan J. observed, based on the
    evidence before him that: B. has been in the custody and care of Ms. Beaver
    the vast majority of the time since he was born; Mr. Hill saw B.
    infrequently; Mr. Hill initially had questioned his paternity of the child;
    and, Mr. Hills counsel had represented to this court in March 2018 that
    custody was not an issue. Sloan J. stated in his endorsement:

Under all the circumstances of this case [Mr.
    Hills] actions speak louder than words. I can come to no other conclusion on
    the material before me that the proposed claim for custody amendment is meant
    to intimidate the applicant and for the respondent to get more leverage than he
    already has over the financial issues.

Further, to the extent I can on the material
    filed, I find it would not be in the best interest of [B.] to be caught in the
    middle of what I believe to be a manufactured custody battle.

[26]

Sloan J. dismissed Mr. Hills motion for leave
    to amend his Answer and Claim dated February 4, 2016 to seek custody of the
    child, B. However, on consent, Sloan J. ordered that Mr. Hill shall not be
    precluded from seeking further amendments to his Answer and Claim, provided
    that he meets the criteria for doing so as set out in the Rules and relevant
    case law.

[27]

Mr. Hill appeals and asks this court to grant
    him leave to amend his Answer and Claim to seek custody of B. However, at the
    hearing, counsel for Mr. Hill clarified that his client was not seeking the
    approval of this court for any particular form of an amended Claim.

Analysis

[28]

At the hearing of the appeal, counsel was asked
    whether this appeal had been overtaken by events that occurred after Sloan J.
    made his May 24, 2018 order. The question was asked of counsel because of the
    following sequence of events.

[29]

On February 4, 2016 Mr. Hill delivered his
    initial Answer and Claim. In that pleading, Mr. Hill agreed with Ms. Beavers
    claim for a final order granting her sole custody of B., with primary residence
    to be with her.

[30]

That was followed by Mr. Hills delivery on June
    8, 2016 of a Fresh as Amended Answer and Claim. Again, in his Answer, Mr. Hill
    agreed with Ms. Beavers claim for a final order granting her sole custody of
    B., with primary residence to be with her. Notwithstanding that admission, in
    his Claim Mr. Hill sought custody of B.

[31]

In para. 4 of her December 8, 2017 order,
    Chappel J. struck out Mr. Hills June 8, 2016 Fresh Answer and Claim, without
    leave to amend: 2018 ONSC 7245, at paras. 128 and 157. On March 26, 2018,
    Roberts J.A. stayed that part of Chappel J.s order. In her reasons, Roberts
    J.A. noted that Mr. Hill does not take issue with the son remaining in the
    custody of Ms. Beaver: at para. 4.

[32]

Sloan J. then made his order dismissing Mr.
    Hills motion for leave to amend, which is the subject-matter of this appeal.

[33]

Next, by order dated June 11, 2018 made on a 14B
    motion, Sloan J. granted sole custody of B. to Ms. Beaver. Mr. Hill has not
    appealed that order. However, on June 18, 2018 he did file a rule 14B motion to
    set the order aside.

[34]

On August 9, 2018, Mr. Hill moved before this
    court for leave to amend his Answer and Claim. The draft amended Answer and Claim
    filed with this court included a claim for access to B. but no claim for
    custody. Nordheimer J.A. heard the motion and dismissed it. He endorsed the
    record: If the appellant is successful in getting the right to seek to amend
    his Answer and Claim the formal motion to amend will properly [be] dealt with
    in the SCJ.

[35]

On August 29, 2018 Pazaratz J. was appointed
    case management judge.

[36]

On September 11, 2018 the parties argued Mr.
    Hills appeal to this court from the order of Chappel J. By order dated October
    12, 2018, this court allowed the appeal, in part, set aside para. 4 of the
    order of Chappel J., which dismissed the constitutional claim, and
    substituted the following: The Respondents Amended Answer and Claim dated
    June 8, 2016 is struck, with leave to amend.

[37]

During the hearing of the appeal on September
    11, 2018 Mr. Hills counsel handed up to the court a draft of his clients
    proposed Amended Answer and Claim. In the Answer part of the document, Mr. Hill
    did not agree with Ms. Beavers claim for sole custody. However, in the Claim
    portion, Mr. Hill indicated that he was not making any claim for custody of B.
    but was making a claim for access to B.

[38]

The endorsement made by Pazaratz J. at the
    October 17, 2018 case conference records, as Item 5: Without prejudice to the
    disposition of the request to file an amended Answer, [Mr. Hill] shall serve
    the Applicants counsel with a final version (final dealing with all issues) of
    the Amended Answer he seeks to file, no later than November 13, 2018.

[39]

Counsel provided the panel with a copy of the Amended
    Answer and Claim sent by Mr. Hills counsel to Ms. Beavers in compliance with
    that direction. Whereas in the August and September proposed Amended Answer and
    Claims submitted by Mr. Hill to this court he did not assert a claim for
    custody, in the November 13, 2018 draft he claims joint custody of B. with Ms.
    Beaver.

[40]

This chronology discloses three things. First,
    Mr. Hill repeatedly has represented to this court that he is not seeking
    custody of B. However, in drafts of Amended Answers and Claims filed or served
    in the court below, Mr. Hill has taken the contrary position. Mr. Hill has
    changed his position on custody with some frequency, in some cases within the
    span of a few weeks.

[41]

Second, as the record in this proceeding now
    stands, the issue of the custody of B. was determined by the final order of
    Sloan J. dated June 11, 2018. The record also discloses that:

(i)

Mr. Hill has not appealed that order;

(ii)

One year ago  on June 18, 2018  Mr. Hill filed
    a 14B motion with the Superior Court of Justice to set aside that final order;
    and

(iii)

Mr. Hill has not sought to move that motion along, notwithstanding
    the appointment of a designated case management judge.

[42]

Third, given the existence of the final order
    granting Ms. Beaver custody of B., the earlier May 24, 2018 order of Sloan J.
    dismissing Mr. Hills motion for leave to amend his pleading to claim custody was
    superseded by the June 11, 2018 final order. Yet, instead of appealing that
    final order, Mr. Hill has appealed the superseded May 24, 2018 order. He is
    challenging the wrong order. Accordingly, his appeal is dismissed.

[43]

I note that counsel for Ms. Beaver informed the
    court that her client consents to Mr. Hill amending his Answer and Claim to
    seek relief regarding access and terms of access.

Disposition

[44]

The appeal is dismissed.

[45]

Ms. Beaver is entitled to her costs of this
    appeal on a partial indemnity basis, which I would fix in the amount of
    $25,000, including disbursements and applicable taxes, payable within 5
    business days of this order.

IV.     FINAL
    COMMENT

[46]

I conclude with a comment about the process that
    has brought these two appeals before us. As mentioned, in its October reasons
    this court stated that this case has developed into a procedural morass. Both
    appeals are examples of that morass. In both appeals, Mr. Hill has attempted to
    challenge orders made below by resorting to indirect, convoluted procedural
    tactics, instead of taking the direct routes of review open to him under the
Family
    Law Rules
and
Rules of Civil Procedure
. Such tactical
    indirectness not only drives up the parties legal fees, it also delays
    bringing certainty to the life of a 9-year old boy whose best interests seem to
    have been completely lost in the high conflict litigation battle between his
    father and mother.

[47]

I repeat what this court directed eight months
    ago: This must not be permitted to continue.

Released: DB JUN 21 2019

David Brown J.A.

I agree. L.B. Roberts J.A.

I agree. B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Brankovic (Re), 2019 ONCA 494

DATE: 20190613

DOCKET: C65966

Doherty, Watt and Pardu JJ.A.

IN THE
    MATTER OF MARKO BRANKOVIC

AN
    APPEAL UNDER PART XX.1 OF THE
CODE

Geocelyne Meyers and Erin Dann, for the appellant,
    Melville Ince

Sarah Shaikh, for the respondent, Ministry of the
    Attorney General for Ontario

Janice Blackburn, for the Person in Charge, St. Josephs
    Healthcare Hamilton

Heard: June 12, 2019

On appeal from the disposition of the Ontario Review
    Board, dated July 16, 2018.

APPEAL BOOK ENDORSEMENT

[1]

Despite counsels able arguments, we are not satisfied that the Boards
    decision is unreasonable or that the Board misapprehended the evidence. On the
    totality of the evidence, it was open to the Board to find a direct
    connection between the appellants abuse of drugs and alcohol and his
    psychotic state when he committed the very serious index offences. The Board
    was also entitled to conclude that the appellants concerns about the status of
    his young daughter at the time of the Ontario Review Board hearing added an
    additional significant stressor to his life at the time.

[2]

In terms of the reasonableness of the order, we are satisfied
    that the Board was entitled to act on the opinion of the treating psychiatrist.
    The appellant has done well in many ways, but he has had the benefit of very
    close supervision
, especially in terms of medication
    compliance. He was on a detention order at the time of this hearing. While he
    had nine months of apparent abstinence from drug abuse, we cannot say the Board
    acted unreasonably in concluding that a significant threat to the safety of the
    public remained. The conditional discharge reflected both that continued risk
    and the appellants progress in the preceding year. Hopefully, that progress
    will continue.

[3]

We need not consider the fresh
    evidence.

[4]

The appeal is dismissed.