COURT OF APPEAL FOR ONTARIO

CITATION: E.S. v. Joannou, 2017 ONCA 655

DATE: 20170817

DOCKET: C60295

Rouleau, Pepall and Roberts JJ.A.

IN THE MATTER
    OF an application under section 39 of the
Mental Health Act
, R.S.O.
    1990, c. M.7, as amended

BETWEEN

E.S.

Applicant (Appellant)

and

Jason
    Joannou and

the
    Attorney General of Ontario

Respondent/Intervener

(Respondents)

Kelley Bryan, for the appellant

Hart Schwartz and Padraic Ryan, for the respondent
    Attorney General of Ontario

Paul-Erik Veel and Danielle Glatt, for the respondent Dr.
    Jason Joannou

Karen R. Spector, for the intervener ARCH Disability Law
    Centre

Heard: March 24, 2017

On appeal from the judgment of Justice Edward Belobaba of
    the Superior Court of Justice, dated March 3, 2015, with reasons reported at
    2015 ONSC 1316, dismissing the appeal from the order of the Consent and
    Capacity Board, dated August 8, 2014.

Rouleau J.A.:

A.

Introduction

[1]

This appeal raises the following question: does the Consent and
    Capacity Board (the Board) have the jurisdiction to grant remedies under s.
    24(1) of the
Canadian Charter of Rights and Freedoms
? For the reasons
    that follow, I have concluded that it does not and that the appeal should be
    dismissed.

B.

BACKGROUND

[2]

On June 26, 2014, the appellant was admitted to the Centre for
    Addiction and Mental Health (CAMH) out of concern for the deterioration of her
    physical health and mental state, on the basis of a Form 1 application for
    psychiatric assessment, which provides for up to three days detention under
    the
Mental Health Act
, R.S.O.
    1990, c. M.7
.

[3]

On June 27, 2014, a Form 3 certificate of involuntary admission,
    under which a patient is detained for up to two weeks, was issued by a CAMH
    psychiatrist on the ground that the appellant was refusing to eat due to
    paranoid thoughts about food. She appeared thin and malnourished and had lost
    significant weight. She was assessed as suffering from cannabis-induced
    psychotic disorder with delusions or psychotic disorder. On the same day, the
    appellant was also found incapable by the same psychiatrist of consenting to treatment
    with anti-psychotic medication.

[4]

On June 30, 2014, the appellant applied to the Board to review
    the finding of incapacity. On the same day the respondent physician, Dr.
    Joannou, assumed care of the appellant and proposed treatment with
    anti-psychotic medication.

[5]

Shortly after this, the Public Guardian and Trustee, acting as
    the appellants substitute decision-maker, advised Dr. Joannou that it gave its
    consent to treatment with certain anti-psychotic medications. This oral advice was
    confirmed in writing by letter dated July 4, 2014.

[6]

The appellants incapacity to consent to treatment and her involuntary
    status were confirmed by the Board on July 9, 2014. On July 10, Dr. Joannou
    completed a Form 4 certificate of renewal, providing for up to one months
    detention.

[7]

On July 10, 2014, Dr. Joannou sought to administer the
    anti-psychotic medication. The appellant refused the prescribed oral medication.
    Following that refusal, she was placed in four-point restraints and forcibly
    injected with paliperidone, a long-acting anti-psychotic medication.

[8]

On July 11, 2014, the appellant applied to the Board for a review
    of her involuntary status under the July 10 certificate of renewal. As part of
    that review, the appellant claimed that the July 10 injection had been
    unlawful.

[9]

The appellant alleges that this medication was beyond the scope
    of the substitute consent which had been provided on her behalf by the Public
    Guardian and Trustee. Specifically, she asserts that the Public Guardian and
    Trustee consented only to injectable paliperidone if the appellant received and
    tolerated oral paliperidone. If she refused to receive oral paliperidone, she
    was only to be injected with loxapine, a short-acting anti-psychotic
    medication. This appears to be the content of the written confirmation letter
    from the Public Guardian and Trustee, dated July 4, 2014. Dr. Joannou asserts
    that the verbal consent he received from the Public Guardian and Trustee was for
    both long- and short-acting anti-psychotics in the event that the appellant
    refused oral medication, and that he did not become aware of the apparent discrepancy
    between the verbal consent and the letter until July 18.

[10]

The parties agreed that the start of the hearing would be
    postponed to after the seven-day statutory time-frame for beginning a hearing. A
    date of July 23, 2014 was set.

[11]

During the adjournment period, the appellant, through her
    counsel, gave notice that she was raising
Charter
issues, including
    the question of the Boards
Charter
jurisdiction.  This resulted in a further
    adjournment on consent to July 28, 2014. On July 24, the appellant served a
    notice of constitutional question pursuant to s. 109 of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43
.

[12]

In her notice of constitutional question, the appellant asked the
    Board to consider: whether it had jurisdiction to determine that the injection
    was unlawful and a violation of her s. 7
Charter
rights; if so,
    whether the injection was unlawful and a violation of her s. 7
Charter
rights; and if it was, whether the Board had jurisdiction to grant a remedy
    under s. 24(1) of the
Charter
, namely the rescission of her
    certificate.

[13]

The hearing proceeded on the merits for a full day on July 28,
    2014. Consideration of the issues raised in the notice of constitutional
    question was deferred to August 7, 2014.

[14]

The Board received evidence on the issues of whether the
    appellant met the criteria under the
Mental Health Act
for detention
    pursuant to s. 20(5)(a)(iii) and s. 20(5)(b) (Box A grounds of serious
    physical impairment) or s. 20(1.1) (Box B grounds of substantial mental or
    physical deterioration). Uncontested facts relating to the allegedly illegal
    injection were contained in an agreed statement of facts put before the Board. The
    Board also received some evidence regarding the injection, going to the issue of
    whether Dr. Joannou acted in accordance with the substitute decision-makers
    directives.

[15]

The appellant argued that, as a remedy for the allegedly illegal
    injection, the Board should rescind the involuntary admission certificate. She
    maintained that, because the injection of anti-psychotic medication was
    unauthorized, the Board should exercise its discretion pursuant to s. 41(2) of
    the
Mental Health Act
to rescind the Form 4, even if satisfied that
    the statutory criteria for involuntary admission were met. Under s. 41(2), the
    Board may confirm the patients involuntary status if it determines that the
    prerequisites for involuntary status were met at the time of the hearing; by
    contrast, under s. 41(3), the Board shall rescind the certificate if it
    determines that the prerequisites were not met.

[16]

The appellant further submitted that the injection violated her
    rights under s. 7 of the
Charter
. She argued that the Board had
    jurisdiction to grant
Charter
remedies under s. 24(1) and that it
    should rescind the Form 4 as a remedy for the violation.

The decision of the Board

[17]

On August 8, 2014, the Board issued its decision confirming the
    appellants involuntary status. It determined that the prerequisites set out in
    the
Mental Health Act
had been met at the time of the hearing. The
    Boards reasons were released on August 29, 2014.

[18]

The Board was satisfied that both the Box A criteria of serious
    physical impairment and the Box B criteria of substantial mental
    deterioration were met, and that the appellant was not suitable for
    continuation as a voluntary patient.

[19]

As for the appellants request that the Board exercise its
    discretion under s. 41(2) of the
Mental Health Act
to rescind her
    certificate of renewal on the basis that treatment had been administered
    without the consent of her substitute decision maker, contrary to the
Health
    Care Consent Act,

1996
, S.O. 1996, c. 2, Sched. A, the Board
    declined to exercise this discretion. The Board held that to grant a remedy
    under the
Mental Health Act
for conduct impugned under the
Health
    Care Consent Act
would be contrary to the intent of the legislature.

[20]

The Board did not make a finding as to whether the July 10, 2014
    injection was lawful or made without consent.

[21]

In response to the appellants notice of constitutional question,
    the Board considered whether it had jurisdiction to grant a remedy for the allegedly
    unlawful injection under s. 24(1) of the
Charter
. It held that the
    conclusions of the Divisional Court in
Ontario (A.G.) v. Patient
(2005), 194 O.A.C. 331 (
Jane Patient
) regarding s. 52(1)
    jurisdiction were binding and applicable to s. 24(1) jurisdiction. The Board followed
Jane Patient
in ruling that it did not have the power to decide
    questions of law and, even if it did, the jurisdiction to decide constitutional
    questions had been clearly withdrawn.

[22]

The Board went on to find that, even if it had the jurisdiction
    to grant s. 24(1) remedies, it would not grant the remedy sought by the
    appellant. In the Boards view, it would not be appropriate or just to rescind
    a certificate for a reason that had no nexus with the statutory criteria for
    involuntary admission, and it would be contrary to the mandate of the Board to
    release a patient who continued to present a risk of harm to herself.

[23]

The Board dismissed the motion for a
Charter
remedy and therefore
    did not determine whether the July 10, 2014 injection violated the appellants
    s. 7
Charter
rights.

[24]

The appellant appealed the Boards decision to the Superior Court.

The decision of the appeal judge

[25]

By the time her appeal was heard in the Superior Court, the
    appellant had been discharged. As a result, she changed her requested remedy.
    She asked that the court issue a declaration that the July 10, 2014 injection
    had violated her s. 7
Charter
rights. She also sought rescission of
    the certificate of renewal
nunc pro tunc
on the basis that the Board
    had erred in finding that it lacked jurisdiction to grant remedies under s.
    24(1) of the
Charter
and in
    failing to consider the impact of the
Charter
breach occasioned by the injection
.

[26]

The appeal judge dismissed the request for a declaration on the
    basis that it was not sought before the Board or mentioned in the notice of
    appeal. The appeal judge was of the view that it would be procedurally unfair
    to grant the declaration sought. Dr. Joannou had not received proper notice of
    the remedy being sought and may well have led different evidence at the Board
    hearing, had a declaration been sought there.

[27]

In the appeal judges view, the appellant should have filed a
    separate
Charter
application to be heard together with her appeal of
    the Boards decision. Further, the appeal judge declined to rescind the
    certificate of renewal
nunc pro tunc
,
finding that the issue was moot as the certificate had already expired. There
    was no longer a live controversy between the parties. The substratum on which
    the case was based had ceased to exist and there was no pressing issue that was
    evasive of review, given the numerous other cases heard by the Board each year.
    In any event, had the appeal not been moot, the appeal judge would have
    dismissed it as he agreed with the Boards view that there was no nexus between
    the injection and the finding regarding involuntary status.

[28]

The appeal judge ordered the appellant to pay partial indemnity
    costs to Dr. Joannou. In his view, it had been fundamentally unfair of the
    appellant to have sought a remedy personally against the physician for the
    first time on appeal.

C.

Issues

[29]

There are three issues raised in this appeal:

(1)

Is the appeal moot and, if so, should this court nonetheless hear the
    appeal?

(2)

Does the Board have s. 24(1)
Charter
jurisdiction and can it
    grant the remedy sought?

(3)

Did the July 10, 2014 injection violate the appellants s. 7
Charter
rights?

[30]

The costs order was initially appealed, but at the hearing we
    were informed that the parties had resolved this issue and the costs appeal was
    withdrawn.

D.

Analysis

(1)

Is the appeal moot and, if so, should this court nonetheless hear the
    appeal?

[31]

The respondents argue that the Superior Court correctly concluded
    that the appellant could not seek a free-standing declaration that her
Charter
rights were breached when it was not sought before the Board and no
Charter
application on notice was filed in the Superior Court. They further maintain
    that the issue as to whether the Board has
Charter
jurisdiction was
    properly found to be moot in the court below and remains moot in this court. This
    is because the appellant has been discharged and the appeal would have no
    practical effect on the rights of the parties. There remains no live
    controversy.

[32]

In the respondents submission, there is no pressing reason for
    this court to decide the issue of the Boards
Charter
jurisdiction. There
    is no adversarial context. The fact that the parties are engaged in adversarial
    litigation is not, in their submission, sufficient. Further, judicial economy
    is better served by refusing to hear the issue. As explained by the appeal
    judge, the issue of the Boards s. 24(1) jurisdiction is not evasive of review
    because it could be raised in one of the 2,000 or so cases heard by the Board
    annually.

[33]

Finally, rather than raising her
Charter
issues in what
    is, in effect, an unrelated appeal, the appellant should have brought an
    appropriate originating process to deal with her allegation regarding the
    allegedly illegal injection.

[34]

Dealing first with the declaration sought by the appellant, I
    agree with the appeal judges ruling. Raising such a request for the first time
    on appeal would be unfair to Dr. Joannou. The declaration was not even sought
    in the notice of appeal to the Superior Court and would have required detailed
    factual inquiries into the circumstances surrounding the obtaining of the
    substitute decision makers authorization and the actions taken by Dr. Joannou.
    These inquiries were not undertaken before the Board. Although the Board was
    provided with a letter from the relevant official of the Public Guardian and
    Trustee stating that, in her recollection, the July 4, 2014 letter accurately
    reflected the verbal consent given on June 30, the Public Guardian and Trustee
    gave no oral evidence before the Board and Dr. Joannou had no opportunity to
    cross-examine. Further, seeking declaratory relief against Dr. Joannou changes
    his role from one of defending the detention of the appellant under the
Mental
    Health Act
to one of defending himself against a serious allegation of
    having violated the appellants
Charter
rights when he administered
    medication pursuant to a different Board order by which the appellant was found
    to be incapable.

[35]

The second head of relief sought by the appellant is a finding
    that the Board has
Charter
jurisdiction and that the remedy sought
    before the Board, the rescission of the certificate under which she was
    detained, would have been a just and appropriate remedy. In my view, this
    aspect of the appellants appeal is moot. The remedy sought before the Board,
    rescinding the certificate, is no longer a live issue between the parties. The
    certificate has expired and the appellant is no longer detained at CAMH.

[36]

Having determined that the appeal is moot, I must, nonetheless, consider
    whether the court should exercise its discretion to hear the portion of the
    appeal that raises the question of the Boards jurisdiction to grant s. 24(1)
Charter
remedies.

[37]

The appellant argues that the appeal judge ought to have exercised
    his discretion to decide this issue. I agree. The key consideration for a court
    when it is asked to exercise its discretion to hear an otherwise moot appeal is
    whether the appeal presents special features which make it in the interests of
    justice or in the public interest to resolve. See
R. v. Smith
,
2004 SCC 14, [2004] 1 S.C.R. 385, at
    paras. 32, 40 and 41.

[38]

The courts exercise of discretion is guided by assessing the
    extent to which the case engages any of the main rationales underlying the
    doctrine of mootness, namely: (a) the need for an adversarial context; (b) the
    concern for judicial economy; and (c) sensitivity to the courts adjudicative
    role:
Borowski v. Canada (Attorney General)
, [1989] 1 S.C.R. 342, at
    pp. 358-363.

(a)

Adversarial context

[39]

In the present case, the adversarial context that prevailed below
    continues to exist on appeal. The
Charter
issues were fully and vigorously
    argued both here and below. The parties were represented by counsel. The
    Attorney General of Ontario participated as a respondent and ARCH Disability
    Law Centre intervened.

(b)

Judicial economy

[40]

Judicial economy also favours resolving the issue. In my view the
    appeal judges reliance on the fact that there are 2,000 hearings per year
    before the Board, while statistically true, is not determinative of whether the
    issue is evasive of review and whether judicial economy favours hearing the
    moot appeal. This figure fails to properly consider the context of appeals from
    rulings on involuntary status made by the Board. Reviews of involuntary status
    are only one of the several types of applications that are heard by the Board.
    Appeals of such decisions tend to be moot by the time they reach the reviewing
    court, let alone the Court of Appeal. If and when a case will arise that
    engages a
Charter
breach for which a s. 24(1) remedy is sought before
    the Board, and for which the patient remains in hospital up to and including
    the time the appeal is heard and disposed of, is speculative.

[41]

Further, the present case raises an issue of public, social and
    constitutional importance. Whether the Board has the jurisdiction to grant s.
    24(1)
Charter
remedies is an important question with implications
    beyond this case. While it may seem inimical to judicial economy to determine a
    moot appeal, the expenditure involved may yield dividends by resolving
    uncertainties in the law:
Ontario (Provincial Police) v. Mosher
, 2015
    ONCA 722, 340 O.A.C. 311, at para. 46. This is particularly so where we are
    presented with a complete record and the matter was fully argued.

(c)

The courts adjudicative role

[42]

Finally, with respect to the courts adjudicative role, the
    Boards s. 24(1)
Charter
jurisdiction was squarely in issue in oral
    and documentary evidence and submissions at the hearing. The issue was fully
    canvassed before the Board and the Superior Court and again in this court. There
    is an ample record before the court to decide the appeal. In my view,
    therefore, the reasons for deciding whether the Board has s. 24(1) jurisdiction
    are compelling.

(2)

Does the Board have s. 24(1)
Charter
jurisdiction and can it
    grant the remedy sought?

[43]

Section 24(1) of the
Charter
confers on a court of
    competent jurisdiction the discretion to grant remedies for
Charter
violations:

24
.
(1) Anyone
    whose rights or freedoms, as guaranteed by this Charter, have been infringed or
    denied may apply to a court of competent jurisdiction to obtain such remedy as
    the court considers appropriate and just in the circumstances.

[44]

Whether the Board has s. 24(1) jurisdiction is the central issue
    raised by this appeal. As set out above, the Board held that it did not have
    jurisdiction to grant
Charter
remedies under s. 24(1), and therefore
    did not make a finding as to whether the appellants s. 7 rights were
    infringed.

[45]

Pursuant to the test created by the Supreme Court of Canada in
R.
    v. Conway
,
2010 SCC 22,
    [2010] 1 S.C.R. 765, tribunals that can decide questions of law are presumed to
    be courts of competent jurisdiction for the purpose of s. 24(1) of the
Charter
.
    The presumption can be rebutted where it is clearly demonstrated that the
    legislature intended to exclude
Charter
remedies from the tribunals jurisdiction.

[46]

The appellant argues that the Board routinely decides questions
    of law and that, when viewed as a whole, it is apparent from the statutory
    scheme that the Board has all of the trappings of an adjudicative tribunal with
    the powers to consider complex and contested issues such as those involving
Charter
claims.

[47]

For their part, the respondents interpret the statutory scheme
    quite differently. They argue that the strict statutory timelines and focused
    mandate of the Board clearly reflect an intention by the legislature to exclude
Charter
remedies from the Boards powers.

[48]

Before addressing the submissions of the parties, I will first
    review the structure and functioning of the Board. Then I will set out the test
    for determining whether an administrative tribunal has
Charter
jurisdiction, as developed by the Supreme Court of Canada in
Conway
.

(a)

Structure and function of the Board

[49]

As the following discussion illustrates, the Board operates under
    very strict timelines and has narrowly circumscribed jurisdiction. These
    features inform the
Conway
analysis I will undertake later in these
    reasons.

(i)

The work of the Board

[50]

The Consent and Capacity Board is constituted under Part V of the
Health Care Consent Act
. It hears a broad range of appeals under
    several statutes. Under the
Health Care Consent Act
, the jurisdiction
    of the Board includes the review of a finding of incapacity with respect to
    treatment, admission to a care facility or a personal assistance service as
    well as the appointment or termination of substitute decision-makers with
    respect to these matters.

[51]

Under the
Mental Health Act
, someone such as the appellant
    who is subject to civil committal may apply for a review of their involuntary
    status. There is also provision in that Act for the review by the Board of
    other matters such as community treatment orders and findings of incapacity to
    manage property.

[52]

The Board also reviews incapacity to manage property under the
Substitute
    Decisions Act, 1992
,
S.O.
    1992, c. 30; incapacity to consent to the collection, use and disclosure of
    personal health information under the
Personal Health Information
    Protection Act,

2004
, S.O. 2004, c. 3, Sched. A; and whether to
    order a person to provide a blood sample under the
Mandatory Blood Testing
    Act, 2006
,
S.O. 2006, c.
    26.

[53]

According to the Boards 2015-2016 Annual Report, it appears that
    90 percent of applications to the Board involve review of involuntary status or
    community treatment orders under the
Mental Health Act
or capacity to
    consent to or refuse treatment under the
Health Care Consent Act
.

(ii)

Composition of the Board

[54]

Apart from the chair, the members of the Board are all part-time.
    Members of the Board are appointed by the Lieutenant Governor in Council and,
    depending on the matter being heard, the panel can be comprised of one, three
    or five members. There are certain stipulations as to the experience and
    qualifications of members sitting on various panels. These vary depending on
    the nature of the matter being heard. For example, when reviewing the
    involuntary status of a patient under the
Mental Health Act
, the Board
    must be a panel of three or five:
Mental Health Act
,
s. 39(13), (14). In such cases, a three-member
    panel must consist of a lawyer, a lay person and a person who must be a
    psychiatrist, physician, registered nurse or other prescribed person under
    the Act. If the patient is under a certificate of continuation, that is, has
    been detained for over six months, then the third person must be a
    psychiatrist.

(iii)

Procedure

[55]

The procedures relevant to the present appeal are the procedure
    for involuntary patients to apply to the Board under the
Mental Health Act
to review their detention certificate, and the procedure for persons found to
    be treatment incapable under the
Health Care Consent Act
to seek
    review by the Board of such a finding. In both cases, there is a right to apply
    for a review after the initial determination is made. Subject to certain
    conditions, there are rights to review the determination periodically
    thereafter.

[56]

Once an application to the Board is filed, the application is
    governed by the procedure set out in Part V of the
Health Care Consent Act
.
    By virtue of s. 39(15) of the
Mental Health Act
, this procedure also
    applies to applications for review of a patients involuntary status. When the
    Board receives an application, it is bound by very restrictive timelines. It
    must promptly fix a time and place for the hearing and the hearing is to begin
    within seven days of the receipt of the application unless the parties agree
    otherwise. The Board is to render its decision within a day after the day the
    hearing ends. If a party requests written reasons within 30 days after the
    hearing, the Board must provide these reasons within four business days of
    receiving the request.

(iv)

Remedial scope

[57]

The remedial powers of the Board are circumscribed by the various
    statutes. In each case the Board is to carry out a very focussed inquiry, as
    prescribed by the statute, and there are clearly defined dispositions available
    to it.

[58]

In an application for review of a finding of incapacity with
    respect to treatment, the Board may confirm the health practitioners finding
    or may determine that the person is capable with respect to the treatment, and
    in doing so may substitute its opinion for that of the health practitioner:
Health
    Care Consent Act
, s. 32(4).

[59]

Under s. 41 of the
Mental Health Act
, upon hearing an
    application, the Board is to determine whether or not the patient still meets
    the conditions for involuntary status. The Board may confirm the patients
    status as an involuntary patient if the Board determines that the prerequisites
     were met at the time of the hearing of the application. The Board shall
    rescind the certificate if it determines that the prerequisites were not met
    at the time of the hearing.

[60]

Following this courts decision in
P.S. v. Ontario
, 2014
    ONCA 900, 123 O.R. (3d) 651, the remedial powers of the Board were broadened
    somewhat, but only when the Board is reviewing a certificate of continuation,
    that is, when a patient has been involuntarily detained for more than six
    months and two weeks. This represents approximately two percent of the
    involuntary status cases heard by the Board. These broadened powers, under ss.
    41(3.1) and 41.1 of the
Mental Health Act
, are similar to the powers
    of the Ontario Review Board (ORB). They include the power to rescind a certificate
    of continuation effective on the issuance of a community treatment order; to
    transfer the patient; to place the patient on a leave of absence; and to direct
    that the facility provide the patient with a different security level,
    different privileges, supervised or unsupervised community access, or
    vocational, interpretation or rehabilitative services.

[61]

Section 70.1(1) of the
Health Care Consent Act
, added
    after the Divisional Courts decision in
Jane Patient
,

states
    that the Board shall not inquire into or make a decision concerning the
    constitutional validity of a provision of an Act or a regulation. This
    provision specifically precludes the jurisdiction to find legislation invalid
    under s. 52(1) of the
Constitution Act, 1982
.

(v)

Appeals

[62]

A party has an appeal as of right from a decision of the Board to
    the Superior Court of Justice on a question of law or fact or both:
Health
    Care Consent Act
,
s. 80(1);
Mental Health Act
,
s.
    48(1). The timeline for the appeal is expedited. The party must serve and file
    the notice of appeal within seven days of receiving the Boards decision. There
    are two-week timelines for serving and filing factums and the court is to fix
    the earliest hearing date compatible with the just disposition of the appeal:
Health
    Care Consent Act
,
s. 80;
Mental
    Health Act
,
s. 48(3).

[63]

On appeal, the Superior Court need not be limited to the record
    that was before the Board. Section 80(9) of the
Health Care Consent Act
provides that the court shall hear the appeal on the record, including the
    transcript, but may receive new or additional evidence as it considers just.
    On the appeal, the court may, among other things, exercise all the powers of
    the Board or refer the matter back to the Board for rehearing: s. 80(10).

(b)

Legal principles

[64]

I turn now to the legal principles that apply when a court is to
    determine whether a tribunal has
Charter
jurisdiction.

[65]

A tribunal has only the powers that are explicitly or implicitly
    conferred on it by statute:
Rio Tinto Alcan v. Carrier Sekani Tribal Council
,
    2010 SCC 43, [2010] 2 S.C.R. 650, at para. 60.

[66]

When a remedy is sought from an administrative tribunal under s.
    24(1) of the
Charter
, a three-step process is to be adopted in order
    to determine whether the tribunal has the jurisdiction to grant s. 24(1)
    remedies generally and the power to grant the particular remedy sought:
Conway
,
at paras. 81-82.

[67]

Those three steps are as follows:

1.

Determine whether the tribunal can decide questions of law.

2.

Consider whether the power to grant
Charter
remedies generally has,
    explicitly or by clear implication, been excluded by statute.

3.

Determine whether the tribunal has the power to grant the specific
    remedy requested.

[68]

This three-step process is explained at paras. 81 and 82 of
Conway
as follows:

Building on the jurisprudence, therefore, when a remedy is
    sought from an administrative tribunal under s. 24(1), the proper initial
    inquiry is whether the tribunal can grant
Charter
remedies generally. To
    make this determination, the first question is whether the administrative
    tribunal has jurisdiction, explicit or implied, to decide questions of law. If
    it does, and unless it is clearly demonstrated that the legislature intended to
    exclude the
Charter
from the tribunals jurisdiction, the tribunal is
    a court of competent jurisdiction and can consider and apply the
Charter
 and
Charter
remedies  when resolving the matters properly before
    it.

Once the threshold question has been resolved in favour of
Charter
jurisdiction, the remaining question is whether the tribunal can grant the
    particular remedy sought, given the relevant statutory scheme. Answering this
    question is necessarily an exercise in discerning legislative intent. On this
    approach, what will always be at issue is whether the remedy sought is the kind
    of remedy that the legislature intended would fit within the statutory
    framework of the particular tribunal. Relevant considerations in discerning
    legislative intent will include those that have guided the courts in past
    cases, such as the tribunals statutory mandate, structure and function.
    [Citation omitted.]

[69]

Applying the
Conway
test to the present case is,
    however, not straightforward. This is because, under s. 70.1(1) of the
Health
    Care Consent Act
, the legislature has precluded the Board from finding a
    law unconstitutional pursuant to s. 52(1) of the
Constitution Act, 1982
.
    Let me explain.

[70]

Remedies for
Charter
breaches are governed by s. 24(1)
    of the
Charter
and s. 52(1) of the
Constitution Act, 1982
. As
    set out earlier, s. 24(1) of the
Charter
confers on a court of
    competent jurisdiction the discretion to grant remedies for
Charter
violations:

24
.
(1) Anyone
    whose rights or freedoms, as guaranteed by this Charter, have been infringed or
    denied may apply to a court of competent jurisdiction to obtain such remedy as
    the court considers appropriate and just in the circumstances.

[71]

Section 52(1) of the
Constitution Act, 1982
expresses
    the principle of constitutional supremacy by providing that laws inconsistent
    with the constitution are of no force and effect to the extent of the
    inconsistency:

52.
(1) The Constitution of
    Canada is the supreme law of Canada, and any law that is inconsistent with the
    provisions of the Constitution is, to the extent of the inconsistency, of no
    force or effect.

[72]

As explained by the Supreme Court in
R. v. Ferguson
,
    2008 SCC 6, [2008] 1 S.C.R. 96, at para. 60, these two provisions serve
    different remedial purposes. Section 24(1) provides a remedy for government actions
    that violate
Charter
rights, while s. 52(1) provides a remedy for
    unconstitutional laws.

[73]

Prior to
Conway
, the tests for determining whether an
    administrative tribunal had jurisdiction to apply s. 52(1) of the
Constitution
    Act, 1982
,
and whether it
    had s. 24(1) jurisdiction, were distinct.

[74]

The test for s. 24(1) jurisdiction required consideration of
    whether the court or tribunal had jurisdiction over the parties, the subject
    matter and the remedy. See
Ontario v. 974649 Ontario Inc.
, 2001 SCC 81,
    [2001] 3 S.C.R. 575 [
Dunedin

].
    If it did, the court or tribunal would be found to be competent to grant s. 24(1)
    remedies. Determining jurisdiction over the remedy required an assessment of
    legislative intent in light of the tribunals function and structure:
R. v.
    Hynes
, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 27.

[75]

The test for determining s. 52(1) jurisdiction was slightly
    different. If the administrative tribunal had jurisdiction to decide questions
    of law, then it was presumed to have jurisdiction to apply s. 52(1) and consider
    the constitutional validity of sections of its constituent statute unless that jurisdiction
    had been withdrawn by the legislature, explicitly or by clear implication:
Martin
    v. Nova Scotia (Workers Compensation Board)
, 2003 SCC 54, [2003] 2 S.C.R.
    504. The principle underlying this test was succinctly explained at para. 36 of
Martin
: the power to decide a question of law is the power to decide
    by applying only valid laws.

[76]

In
Conway
, the Supreme Court of Canada decided to merge
    these two separate lines of authority. The logic behind merging the two lines
    was explained by the court, at para. 80:

If  expert and specialized tribunals with the authority to
    decide questions of law are in the best position to decide constitutional
    questions when a remedy is sought under s. 52 of the
Constitution Act, 1982
,
    there is no reason why such tribunals are not also in the best position to
    assess constitutional questions when a remedy is sought under s. 24(1) of the
Charter
.

[77]

In other words, the court reasoned that if there is s. 52(1)
    jurisdiction, then s. 24(1) jurisdiction should logically follow unless
    withdrawn, explicitly or by clear implication. In the present case, because s.
    52(1) jurisdiction is precluded by statute, that logical flow has been broken.
    This, in my view, must be accounted for in applying the
Conway
test to
    determine the s. 24(1) jurisdiction of the Board.

(c)

Application

[78]

What, then, is the approach to be taken when the legislature has
    excluded by statute the Boards power to find legislation invalid under s.
    52(1) of the
Constitution Act, 1982
? In my view, this signals that, in
    applying the
Conway
test for s. 24(1)
Charter
jurisdiction,
    the weight to be given to the Boards power to decide questions of law is
    somewhat attenuated. By removing the Boards ability to consider the
    constitutional validity of the legislative framework in which it operates, the
    legislature is signalling clearly that the Board is to be bound by the terms of
    its statute. It would seem to me that this feature is of particular relevance
    when addressing the second step of
Conway
 whether the legislature
    explicitly or by clear implication intended to exclude the
Charter
from the Boards jurisdiction.

[79]

The appellant and the intervener argue that by specifically
    excluding s. 52(1) jurisdiction and remaining silent with respect to s. 24(1)
    jurisdiction, the legislature must, logically, have intended that the Board
    have s. 24(1) jurisdiction. I disagree. In my view, by excluding s. 52(1)
    jurisdiction, the legislature expressed an intention that the Board be bound by
    its statute; this, in turn, suggests that similar limits were intended with
    respect to the remedies or dispositions that the Board is empowered to grant. In
    other words, this points to an intention of the legislature that the Board is
    to carry out the functions with which it has been tasked using the arsenal of
    remedies provided in its statutes. It is not to undertake the broader inquiries,
    and consider the possible remedies, that might be involved in exercising s. 24(1)
Charter
jurisdiction.

[80]

On balance, therefore, I view the legislatures removal of s.
    52(1) jurisdiction as indicative but not determinative of a legislative
    intention to also remove s. 24(1) jurisdiction. I turn now to the application
    of the
Conway
test.

[81]

The Attorney General conceded in oral argument that the Board has
    jurisdiction to decide questions of law. In light of this concession, I will
    focus my analysis on the second step of
Conway
: determining whether,
    by implication, it is clearly demonstrated that the legislature intended to
    exclude s. 24(1)
Charter
jurisdiction from the Board.

[82]

For the reasons that follow, I have concluded that the legislature
    clearly intended that s. 24(1) jurisdiction be removed from the Board.

[83]

I reach this conclusion in light of the fact that s. 52(1)
    jurisdiction was removed, but also for several other reasons: the strict
    timelines under which the Board operates; the limited dispositions available to
    the Board; the composition and expertise of the Board; the provisions for the
    appeal of the Boards decisions; and the fact that, in making its decisions,
    the Board can and does take
Charter
rights into account. I will
    address each of these in turn.

(i)

Strict timelines

[84]

As explained earlier, the statute sets very strict timelines for a
    Board hearing to begin, the decision to be rendered and the reasons to be
    issued. These tight timelines are understandable and, indeed, necessary given the
    nature of the matters that are decided by the Board. In many cases, the Board
    is dealing with crisis situations where persons have become a danger to
    themselves or are in need of immediate treatment they do not consider to be
    necessary. Barring an emergency, treatment is stayed until the final disposition
    of the review and appeal process. Clearly, delays are contrary to the objective
    of the legislation in such cases.

[85]

The appellant argues that little significance should be given to
    the tight timelines because, if
Charter
issues are raised, the parties
    can simply agree to adjourn the proceeding. While this is correct, adjournments
    run contrary to the objective of the statute, which is to have the matter heard
    and the decision rendered promptly. This also assumes that adjournments will be
    agreed to when requested and that delay will not have any negative impact. Neither
    assumption is necessarily correct. Where an adjournment is not consented to,
    the Board may find itself burdened with the task of enquiring into and deciding
    s. 24(1)
Charter
issues within this tight timeframe, which risks
    impeding its ability to properly and promptly exercise its statutory function. Where
    the proceeding is adjourned, the pressure to decide quickly is nonetheless
    present and repeated delays invariably result in wasted resources.

[86]

As explained in
Starson v. Swayze
,
2003 SCC 32, [2003] 1 S.C.R. 722, at
    para. 87, a principal aim of the
Health Care Consent Act
is to
    facilitate treatment for incapable patients. Delay would frustrate that purpose.

[87]

Finally, the Board operates quite differently from tribunals such
    as the Ontario Review Board (ORB), which was the subject of the
Conway
decision. The ORB schedules its hearings well in advance, which allows the
    parties time to provide adequate notice of the intention to raise
Charter
issues and to prepare materials, evidence and reports. Board hearings, by
    contrast, are scheduled on very short notice, as they must comply with the
    statutory provision that a hearing is to commence within seven days of an
    application being made. Absent an adjournment on consent, this short timeline does
    not allow for compliance with the statutory requirement of giving a notice of
    constitutional question 15 days in advance:
Courts of Justice Act
,
s. 109(2.2).

(ii)

The dispositions available to the Board

[88]

In
Conway
,
the Supreme Court of Canada indicated that the availability of the particular
    remedy sought is not to be considered until the third step of the
Conway
analysis. This does not, however, mean that the ability of the Board to grant remedies
    more generally is not a factor to be considered in determining the
    legislatures intention.

[89]

Although
Hynes
was decided before

and partly
    overruled by
Conway
, the considerations set out in
Hynes
,
    while not determinative, are still relevant  particularly where the
    legislature has removed s. 52(1) jurisdiction. As explained by the court in
Hynes
,
    at para. 27, one indication of legislative intent is whether the tribunal is
    equipped with procedures and processes capable of fairly and justly resolving
    the
Charter
issues that arise. Although the court went on to focus on
    the availability of the specific remedy sought in that case, it is the broader
    assessment of the tribunals ability to grant effective remedies for
Charter
breaches that I consider relevant at this stage of the
Conway
analysis.

[90]

As noted earlier, the remedial powers of the Board are
    circumscribed by various statutes. The statutory dispositions prescribed are
    limited. When viewed together with the Boards mandate, procedures and
    processes, this suggests that the legislature did not intend to empower the
    Board to grant a broad array of relief under s. 24(1) of the
Charter
. Although
    I need not decide the issue, it is likely that, as with the ORB, the Board
    would be found not to have the power to grant remedies such as costs or damages:
    see
Re Starz
, 2015 ONCA 318, 125 O.R. (3d) 663, and
Re Chaudry
,
    2015 ONCA 317, 125 O.R. (3d) 641.

[91]

When a tribunal is limited in the type of remedy it can grant
    pursuant to s. 24(1), there is a significant risk of bifurcated proceedings and
    uncertainty as to which body, the tribunal or the Superior Court, should carry
    out the fact-finding necessary to determine whether there was a
Charter
breach.

[92]

If the Board had s. 24(1) jurisdiction, then it would be a proper
    forum to determine whether a
Charter
breach had occurred. In cases
    where the Board did not have the power to grant the remedy sought, however, an
    applicant would have to bring a proceeding in Superior Court, which has plenary
    jurisdiction under s. 24(1), to obtain the requested remedy. In such
    circumstances, there is the risk of confusion and conflicting findings.
    Moreover, such bifurcation would impede, rather than promote, prompt access to
    effective
Charter
remedies. It is, in my view, unlikely that the
    legislature intended such a result.

(iii)

The composition and expertise of the Board

[93]

With the exception of the Chair, the Board is composed entirely
    of part-time members. The make-up of the panel of the Board hearing a review is
    tailored to the issues it is called to rule on; as noted earlier, these are principally
    involuntary committal and capacity to consent to treatment. The expertise of
    these panels is not
Charter
litigation.

[94]

The Boards function is primarily forward-looking and
    non-adversarial. Nothing in the relevant statutes suggests that the Board is to
    review and assess prior misconduct. For example, s. 41(1) of the
Mental
    Health Act
provides that upon an application the Board is to determine
    whether or not the conditions for involuntary status continue to be met at the
    time of the hearing. The issue is not, therefore, whether the original
    determination was correctly made but rather whether the patient still meets the
    conditions. The process is more inquisitorial than fault- or blame-based.

[95]

Further, if
Charter
issues are to be decided by the
    Board, this will frequently require adding parties who are alleged to have
    participated in a breach of the applicants
Charter
rights. In the
    present case, it is the physician, Dr. Joannou, who is alleged to have breached
    the appellants
Charter
rights. If the appellant had sought relief
    against the hospital, the Public Guardian and Trustee or even the staff who
    assisted Dr. Joannou in administering the injection, or if Dr. Joannou had
    sought to attribute blame based on the conduct of any of these, they would likely
    also have been parties to the proceeding. Adding any party to the proceeding will
    delay and complicate what is intended to be an expeditious process.

(iv)

Appeals of Board decisions

[96]

Appeals from decisions of the Board are to the Superior Court
    pursuant to an expedited procedure. This further supports a legislative
    intention to limit the Board to the functions assigned to it by statute and to
    exclude s. 24(1)
Charter
jurisdiction. Significantly, on an appeal
    from the Board under the
Health Care Consent Act
or
Mental Health
    Act
,

the Superior Court can receive new or additional evidence as
    it considers just:
Health Care Consent Act
s. 80(9);
Mental Health
    Act
s. 48(3). This is somewhat akin to the two-stage process discussed in
Tétreault-Gadoury
    v. Canada (Employment and Immigration Commission)
, [1991] 2 S.C.R. 22. The
    appeal structure allows a party who appeals a Board decision to introduce
    additional evidence on the appeal, with the courts consent. The issues before
    the Superior Court could potentially be broadened to include alleged
Charter
breaches and remedies sought.

[97]

If necessary, it is open to an appellant to combine the appeal
    with an originating application to the Superior Court seeking
Charter
remedies. This ability to rapidly appeal to the Superior Court and introduce
    fresh evidence is in contrast to the procedure for appealing decisions of the
    ORB, which was found to have s. 24(1) jurisdiction in
Conway
. An
    appeal from the ORB is directly to the Court of Appeal, which is not a court of
    inherent jurisdiction, and the admission of fresh evidence is circumscribed by
    s. 672.73 of the
Criminal Code
.

(v)

The Board

can take
Charter
rights into account

[98]

Even though the Board does not have s. 24(1)
Charter
jurisdiction, it is not prevented from taking the
Charter
into account
    in applying the statutes under which it operates and exercising the discretion
    it has under those statutes. The Boards authority derives from statute, which
    should not be interpreted as conferring the power to infringe the
Charter
,
    unless this power arises by necessary implication. Statutory discretion must,
    therefore, be exercised in a way that complies with the
Charter
,
    interfering with its protections no more than necessary given the statutory
    mandate:
Slaight Communications Inc. v. Davidson
, [1989] 1 S.C.R.
    1038, at pp. 1077-78;
Loyola High School v. Quebec (Attorney General)
,
    2015 SCC 12, [2015] 1 S.C.R. 613, at paras. 39-40.

[99]

The Boards decisions often have a direct impact on fundamental
Charter
rights, such as the right not to be detained and the right to control ones
    body. See
Gligorevic v. McMaster
, 2012 ONCA 115, 109 O.R. (3d) 321, at
    para. 60.

In deciding issues of detention and consent to treatment,
    the Board is often engaged in balancing
Charter
rights, such as those
    under s. 7 of the
Charter
, against the objectives of the statutes
    which the Board is mandated to apply. This balancing reflects the Board's obligation
    to exercise its discretion in a
Charter
-compliant way. Thus, while the
    Board does not have s. 24(1)
Charter
jurisdiction, it is not precluded
    from considering the impact of its decisions on
Charter
rights.

[100]

Moreover, as explained in
Conway
, at para. 103,
Charter
rights can be effectively vindicated without separate applications, through the
    exercise of the statutory powers and processes of the Board. Where the facts
    underlying a
Charter
breach are otherwise relevant to the statutory
    discretion of the Board, they may be taken into account in the exercise of that
    discretion: see
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, at
    para. 47. In the present case, the Board found that the facts at issue were not
    relevant to the discretion it was exercising under the
Mental Health Act
.

(d)

Conclusion

[101]

For these reasons, I conclude that the Board is not a court of
    competent jurisdiction under s. 24(1) of the
Charter
.

[102]

This is not to say that a person, such as the appellant, who
    considers herself aggrieved has no remedy. If appropriate, relief can be sought
    by way of a
Charter
application in Superior Court or through other
    less cumbersome processes for addressing any concerns, such as complaints to
    the professional or regulatory bodies that oversee the relevant parties.

(3)

Did the July 10, 2014 injection violate the appellants s. 7
Charter
rights?

[103]

In light of my conclusion that the Board does not have
Charter
jurisdiction, I need not deal with this issue.

E.

Conclusion

[104]

For these reasons, I would dismiss the appeal. As agreed by the
    parties, I would make no order as to costs.

Paul Rouleau J.A.

I agree S.E. Pepall
    J.A.

I agree L.B. Roberts
    J.A.

Released: August 17, 2017


COURT OF APPEAL FOR ONTARIO

CITATION: Gonsalves v. Scrymgeour, 2017 ONCA 630

DATE: 20170802

DOCKET: C63005

Sharpe, Lauwers and Roberts JJ.A.

BETWEEN

Prudence Gonsalves

Applicant
(Respondent in Appeal)

and

Steven Scrymgeour

Respondent
(Appellant)

Alex Finlayson, for the appellant

Elliott Birnboim and Faye Yao, for the respondent

Heard: July 19, 2017

On appeal from the judgments of Justice B. T. Glustein of
    the Superior Court of Justice, dated October 27, 2016, with reasons reported at
    2016 ONSC 6659, and dated February 22, 2017, with reasons reported at 2017 ONSC
    1034, and on motion for leave to appeal the costs order of Justice B. T. Glustein,
    dated May 1, 2017, with reasons reported at 2017 ONSC 2651.

Roberts J.A.:

[1]

The
    parties were never married but lived together in a conjugal relationship for over
    16 years. They have three children, one of whom requires ongoing financial
    child support. The appeal and cross-appeal challenge the trial judges
    determinations in relation to the issues of spousal and child support, and the
    division of the value of the family home as an asset of a joint family venture.

[2]

After
    14 days of trial and further written submissions, the trial judge granted
    judgment in favour of the respondent, determining as follows:

(i)

that there was a joint family
    venture and that the respondent was entitled to $595,530 as her share of the
    value of the family home;

(ii)

that $150,000 should be imputed
    to the appellant as annual income for the purposes of calculating spousal and
    child support and that the respondent is entitled to retroactive and future
    spousal and child support;

(iii)

that the appellant pay costs fixed
    in the amount of $280,000.

A.

Appeal

(1)

Property issues

[3]

The
    appellant does not challenge the trial judges finding that there was a joint
    family venture. However, he submits that the trial judge misapplied the test
    for unjust enrichment under a joint family venture and therefore erred in awarding
    anything on account of the respondents property claims because she did not
    contribute to the generation of wealth in the joint family venture; rather, she
    should be ordered to repay the appellant $130,000.

[4]

In
    the alternative, the appellant contends that the trial judge erred in granting
    the respondent about 50 per cent of the value of the family home because the respondents
    share should have been limited to her contributions, which the appellant
    calculated to be approximately 12 per cent of the value of the family home. Moreover,
    he submits, the value of the family home should have been assessed as of the
    date of the separation, rather than the date of trial.

[5]

Finally,
    the appellant maintains that the trial judge erred in failing to deduct the
    deposit paid by the appellant and the outstanding balance of the mortgage on
    the family home.

[6]

With
    the exception of the deduction of the outstanding mortgage on the family home, to
    which I return later in these reasons, I would reject the appellants
    submissions. All of those submissions depend on this court setting aside the trial
    judges findings of fact. Absent overriding and palpable error or error of law,
    this court cannot interfere. I see no such error here.

[7]

In
    considering the respondents property claim, the trial judge correctly framed
    his analysis, following the leading decision of
Kerr v. Baranow
, 2011
    SCC 10, [2011] 1 S.C.R. 269. As the trial judge noted, Cromwell J., writing for
    the unanimous court in
Kerr
, at para. 81, stated that a claim for
    unjust enrichment arises when the parties have been engaged in a joint family
    venture and there is a clear link between the claimants contributions to the
    joint venture and the accumulation of wealth.

[8]

The
    trial judge concluded that, on the facts of this case, there was both a disproportionate
    accumulation of assets by the appellant, linked to the respondents
    contributions to the parties joint family venture, and a corresponding
    deprivation and absence of juristic reason for the appellants disproportionate
    accumulation of assets.

[9]

The
    trial judges conclusions are grounded in his detailed factual findings about the
    parties respective monetary and non-pecuniary contributions to their joint
    family venture. In his very thorough examination of the evidence, the trial
    judge carefully examined the respective benefits received and efforts
    maintained by each party. It was open to him to weigh the factual circumstances
    of this case as he did. The trial judges findings of the parties respective
    contributions and their expectations that the family home would be shared as an
    asset of their joint family venture flow from his factual analysis. I see no
    error in either the trial judges findings or treatment of these issues.

[10]

The thrust of the
    appellants argument is that the trial judge erred in not giving more weight to
    the financial support provided by the appellant over the course of the parties
    relationship. The appellants position runs directly contrary to the approach
    mandated in
Kerr
and other cases: namely, that the courts
    consideration of the parties respective contributions and entitlement to a
    share in their joint family venture should not amount to a bookkeeping exercise
    but instead must take account of all contributions, both pecuniary and
    non-pecuniary:
Kerr
, at paras. 57-58.

[11]

I turn finally to the
    issue of whether the trial judge erred in failing to deduct the outstanding
    mortgage on the family home from its assessed value in his calculation of the
    respondents monetary remedy. In my view, he did.

[12]

The trial judge
    accepted the evidence of the appellant and his brother that the balance of the
    mortgage is outstanding and is required to be paid upon sale of the family
    home. Given these findings, it was not then open to the trial judge to ignore
    the ongoing liability for which the appellant would be solely responsible
    following the sharing of the value of the family home. That the mortgage was
    not satisfied during the course of the parties relationship meant that they
    both benefitted from the availability of the funds from the familys disposable
    income which otherwise would have been depleted to pay off the mortgage debt.

[13]

As a result, I would
    deduct the amount of $137,060 from the net value of the family home of
    $1,191,060, resulting in the amount of $1,054,000, of which the respondents
    share is $527,000 (rather than the $595,530 awarded by the trial judge).

(2)

Imputation of income and support issues

[14]

The appellant does not
    take issue with the retroactive support ordered by the trial judge. However, he
    submits that the trial judge erred in imputing a total of $150,000 of annual
    income to him for the purposes of calculating future spousal and child support.
    Specifically, while he does not challenge the trial judges imputation of
    employment income, the appellant maintains that the trial judge erroneously
    included three anomalies in the respondents income which would not be repeated
    in following years: a one-time dividend of $50,000 paid in 2013; a capital gain
    of $34,975.76 paid in 2014; and a dividend of $17,434 paid from retained
    earnings in 2015. The appellant submits that a reasonable rate of return of 3
    per cent on his investments of $442,805.68 ought to be imputed to him and that
    the imputed investment amount should be $13,284.17, which, added to the $98,000
    calculation of employment income, amounts to $111,284.17.

[15]

I would not give
    effect to these submissions.

[16]

For the appellants
    investment income, the trial judge calculated the average of the appellants
    investment income from all sources for the three-year period from 2013 to 2015
    and arrived at a figure of $52,000. He then added this $52,000 to the
    appellants employment income of $98,000, to arrive at a total of $150,000 as
    the appellants annual imputed income. It is clear from his reasons that the
    trial judge did not accept that the appellants investment income was anomalous
    or non-recurring.  Instead, the trial judge found that after 2012, the
    appellant received regular income from dividends and capital gains:  $81,000
    in 2013; $43,000 in 2014; and $34,000 in 2015; and that the appellants brother
    has paid dividends from time to time to the appellant and his siblings from
    GHL, the holding company established by their father to hold investments.  In
    my view, these findings were open to the trial judge and there is no basis to
    interfere with them.

B.

Cross-appeal

[17]

The respondent submits
    that the trial judge erred by not imputing additional income to the appellant
    in relation to the following:

(i)  his
    inheritance from his fathers estate that he donated to the University of
    Toronto to create a scholarship;

(ii)  the
    value of the appellants shares in GHL.

[18]

The appellant inherited
    approximately $1.3 million from his father. The trial judge found that in
    accordance with their fathers wishes, which were not enshrined in his will,
    the appellant and his brother had pledged their inheritances totalling about $2.6
    million to establish a scholarship at the University of Toronto.

[19]

To
    create a legally valid gift, there must be (1) an intention to make a gift on
    the part of the donor, without consideration or expectation of remuneration,
    (2) an acceptance of the gift by the donee and (3) a sufficient act of delivery
    or transfer of the property to complete the transaction:
McNamee v.
    McNamee
, 2011 ONCA 533, 106 O.R. (3d) 401, at para. 24. Here, the appellant
    had given his full share of the inheritance to his brother for the purpose of donating
    the entire inheritance in accordance with their fathers wishes. The
    appellants brother was to receive the entire tax benefit of the donation. At
    the date of the trial, the appellants brother had donated approximately $1.6
    million. A further $500,000 was to be donated in 2016; and the final $500,000
    was to be donated by December 31, 2017.

[20]

The respondent
    effectively asserts that the appellant was required to retain his inheritance from
    his father in order to pay additional spousal and child support based on the
    income generated from investing this inheritance. There is no evidence that the
    appellant had access to any income or other benefits produced from that
    inheritance. The trial judge accepted that the appellant had gifted his share
    of his inheritance to his brother in good faith for the purpose of making a
    donation to honour their fathers wishes and memory. He did not see these
    circumstances as justifying imputing any additional income to the appellant. This
    finding is entitled to deference, absent error of law or palpable or overriding
    error.  I see no such error here.

[21]

As for the
    appellants interest in GHL, the trial judge found that the appellant does not
    have access to GHLs assets nor the ability to require the sale of his share or
    the declaration of dividends. Again, these were findings that were available to
    the trial judge on the evidentiary record before him.  I see no error in his
    findings that would permit appellate intervention.

[22]

The trial judge
    correctly recognized that the appellant had received, and would continue to
    receive, dividends and other income benefits from GHL. For that reason, he included
    the supposedly one-time dividends and other benefits that the appellant
    received from GHL in order to calculate the average income that should be
    imputed to the appellant. To impute further income from the same assets would
    amount to double-counting.

[23]

Accordingly, I would
    dismiss the cross-appeal.

C.

Leave to appeal costs

[24]

While not pressed in
    oral argument, the appellant seeks leave to appeal the costs order dated May 1,
    2017. I see no basis on which to grant leave.

[25]

The trial judge found
    that the respondent had obtained a more favourable result at trial than her
    offer to settle and was entitled to full recovery costs from the date of her offer
    in accordance with the provisions of r. 18(14) of the
Family Law Rules
.

[26]

The trial judge
    reviewed the factors enumerated under r. 24(11) of the
Family Law Rules
.
    In particular, the trial judge found that the appellants pre-trial conduct in
    failing to pay spousal support and opposing an order that their youngest son
    move back in with the respondent notwithstanding the recommendation of the
    Office of the Childrens Lawyer, was unreasonable. He also found that the
    parties respective costs were comparable.

[27]

Based on all of the
    circumstances, the trial judge awarded the respondent costs in the amount of
    $280,000, which represented a significant reduction of the $376,540.32 in costs
    claimed by the respondent.

[28]

I see no error in the
    trial judges cost award and would not interfere.

D.

Disposition

[29]

For these reasons, I
    would allow the appeal with respect to the recalculation of the respondents
    share of the family home, and dismiss the cross-appeal and motion for leave to
    appeal the costs order.

[30]

I would amend the first
    paragraph of the trial judges October 27, 2016 order to read as follows:  The
    Respondent shall pay to the Applicant the amount of $527,000.

[31]

As for costs of the
    appeal, the parties agreed that $50,000 on a substantial indemnity basis and
    $35,000 on a partial indemnity basis would be appropriate.

[32]

In my proposed
    disposition, the appellant would achieve modest success on a narrow issue that
    took up little time at trial and on appeal: namely, the $68,530 reduction in
    the amount payable to the respondent as her share of the value of the family
    home. I agree with the respondents submissions that this outcome ought not to
    affect the costs disposition at trial nor justify an award of costs to the
    appellant on appeal.

[33]

The appellant
    submitted an offer to settle with respect to the appeal.  While it is open to this
    court to consider offers to settle, having reviewed the appellants offer, in my
    view it represents little compromise and has no relevance given the outcome of the
    appeal or the cross-appeal.

[34]

While in my proposed
    disposition, the respondent would prevail on many issues on the appeal, her
    cross-appeal would be dismissed.

[35]

Given the mixed
    success, I would make no order as to the costs of the appeal.

Released: August 2, 2017

L.B. Roberts J.A.

I agree Robert J.
    Sharpe J.A.

I agree P. Lauwers
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Levesque v. Crampton Estate, 2017
    ONCA 676

DATE: 20170829

DOCKET: C62912

Strathy C.J.O., Gillese, Pardu JJ.A.

BETWEEN

Raymond Levesque, Jr.,
Dianne Gagnon and Derek Levesque

Plaintiffs

and

The Estate of Father Dale
    Crampton
and
The Roman Catholic Corporation of the
Episcopal Archdiocese of Ottawa

Defendants (
Appellant
)

(
Respondent
)

Matthew Sammon, for the appellant

Heather Williams, for the respondent

Heard: April 21, 2017

On appeal from the order of Justice Martin S. James of
    the Superior Court of Justice, dated October 31, 2016, with reasons reported at
    2016 ONSC 6809.

COSTS ENDORSEMENT

[1]

Having received submissions from the appellant with respect to costs in
    the court below, the respondent having made no submissions, we fix those costs
    at $12,500, inclusive of disbursements and all applicable taxes, payable to the
    appellant within 30 days.

G.R. Strathy C.J.O.

Eileen E. Gillese
    J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Misir v. Misir, 2017 ONCA 675

DATE: 20170830

DOCKET: C62436 & C63026

Pepall, van Rensburg and Trotter JJ.A.

BETWEEN

Randy Misir

Plaintiff (Respondent in Appeal)

and

Geree Misir and Rajendra Narine (a.k.a. Hardial
    Singh)

Defendants (Appellants)

AND BETWEEN

Randy Misir

Applicant (Respondent in Appeal)

and

Geree Misir and Rajendra Narine (a.k.a Hardial
    Singh)

Respondents (Appellants)

David Reiter, Selwyn Hicks and Brian Chung, for the
    appellants

Abba Chima, for the respondent

Heard: August 18, 2017

On appeal from the order of Justice Edward M. Morgan of
    the Superior Court of Justice, dated July 19, 2016 and the order of Justice
    Peter J. Cavanagh of the Superior Court of Justice, dated November 23, 2016.

REASONS FOR DECISION

OVERVIEW

[1]

An action was commenced in 2001, and not defended. The plaintiff (who is
    the respondent in this appeal) obtained a judgment after an assessment of
    damages for almost $86,000. In the following years, the judgment was set aside
    on motion by the defendants (who are the appellants) but later reinstated. The
    appellants unsuccessful attempt to set aside the reinstatement of the judgment
    is the subject of this appeal.

[2]

The issue on appeal is whether the motion judge erred in dismissing the
    appellants motion to set aside the reinstated default judgment, and in
    authorizing the respondent to sell the appellants property in satisfaction of
    the judgment. The appellants appeal the order of Morgan J. dated July 19, 2016
    (the motion judge), and the order of Cavanagh J. dated November 23, 2016
    which varied the Morgan J. order.

[3]

For the reasons that follow, the appeal is allowed.

FACTS

[4]

It is sufficient for the purpose of this appeal to set out a summary of
    the action and a chronology of steps taken in the litigation, based on the
    evidence that was before the motion judge. The record is voluminous, and
    contains affidavits from the parties with contradictory accounts of misconduct
    and subterfuge on all sides in connection with the litigation. Fortunately, the
    disposition of the appeal does not require these contradictory accounts to be
    reconciled. Except as otherwise noted, the relevant facts are undisputed, or
    based on information or documents contained in the respondents own affidavits.

[5]

The action was commenced by statement of claim issued in April 2001. The
    respondent Randy Misir claims damages against the appellants Geree Misir (who
    is his ex-wife) and Hardial Singh. The action claims that  Geree Misir made false
    allegations against the respondent to the police, leading to criminal charges
    that were tried and dismissed, and that both appellants conspired to injure him
    and to cause him emotional distress and harm, through various acts of
    harassment that are detailed in the claim.

[6]

The appellants did not respond to the claim and were noted in default.
    On October 29, 2001, Wilkins J. granted judgment against the appellants in
    favour of the respondent in the sum of $85,984, following an undefended trial
    (the Wilkins J. judgment).

[7]

In 2004, the appellants moved to set aside the Wilkins J. judgment,
    after they learned of the judgment and writs of execution that had been filed.
    Swinton J. granted an order that set aside the judgment of Wilkins J. and the
    noting in default, and required the appellants to serve their statement of
    defence by June 30, 2004 (the Swinton J. order). The Swinton J. order was
    amended in August 2004 to lift the writs of execution.

[8]

A statement of defence on behalf of both appellants was filed with the
    court on June 28, 2004. The statement of defence, which is only nine paragraphs
    long, consists mainly of general denials of the facts pleaded in the statement
    of claim. The affidavit of service filed with the statement of defence states
    that the defence was sent by mail to 340 College Street (without showing the
    suite number indicated on the statement of claim) and by fax to the fax number
    of the solicitor who had acted for the respondent in the motion to set aside
    the default judgment, although no fax confirmation is attached to the
    affidavit. The respondent contends, and Morgan J. accepted, that he was never
    served with the statement of defence.

[9]

The respondent prepared a trial record in June 2005 that included the
    statement of claim issued April 3, 2001, the statement of defence dated June
    10, 2004 and a certificate of trial record, and served it on the appellants
    counsel of record. The respondent asserts that he located the statement of
    defence in the court file.

[10]

The respondent contends that in 2007 he wrote to the appellants and
    their former counsel, but did not receive a response. He asked the court to set
    the matter down for an assessment of damages.

[11]

On September 8, 2008, Brown J. (as he then was) issued a judgment
    restoring the default judgment of Wilkins J.
nunc pro tunc
and
    awarding costs against the appellants of $11,000, inclusive of GST. A
    transcript was filed by the appellants, indicating what transpired in the
    attendance before Brown J. (We note here that the respondent was represented by
    counsel other than Mr. Chima, who represented him before Morgan J. and on
    appeal). The following is a summary of what transpired :

·

Brown
    J. was given a trial record containing the Wilkins J. judgment (it is unclear
    whether anything else was in the trial record). The respondents counsel advised
    that he would be asking the court to reinstate the judgment. After counsel informed
    the court that the Wilkins J. judgment had been set aside, Brown J. adjourned
    the matter briefly so that counsel could provide the materials relevant to the
    setting aside of the judgment.

·

When
    counsel returned to the court room without materials, Brown J. adjourned the
    matter to the afternoon, indicating that he wanted a pretty clear picture of
    whats happened since, communications between the parties, why defendants who
    moved to set aside an order are not showing up today. He stated, Im going to
    insist on having a very clear picture of whats gone on and why the defendant
    isnt here today before proceeding.

·

In
    the afternoon, counsel attended with the order and endorsement of Swinton J.,
    requiring a defence to be served by June 30, 2004. Brown J. asked whether a
    defence was filed and counsel responded, No. No defence was filed. Nothing has
    been filed ever. Brown J. then asked when the defendants were noted in default
    and counsel advised, September of 04. Brown J. observed that it was a long
    time for something that had been noted in default to get onto the trial list
    and asked what happened. Counsel advised that the respondents former counsel
    was trying to find the appellants and that they moved, and left the country.
    Counsel then stated that the respondent filed a trial record and got the matter
    on the list, and then retained him to assess the damage. Counsel asked that
    Brown J. restore the default judgment
nunc pro tunc
.

·

Brown J., after marking the documents provided by counsel as
    exhibits, asked the respondent to provide evidence under oath that no defence
    was filed and that he did not know where the appellants were. The respondent
    testified that a statement of defence was never served on him by or after June
    30, 2004, and that he noted the defendants in default in September, or
    sometime of that year, of 2004. He also testified that the appellants had
    commenced an action against him which had been administratively dismissed.
    Finally, he testified that he did not know where the defendants live, that they
    disappeared, and that Immigration was looking for them.

[12]

In his brief endorsement Brown J. referred to the fact that the
    respondent testified that the appellants failed to serve statements of defence
    by June 30, 2004 and that the respondent noted the appellants in default around
    September 2004. He noted that another action commenced by the appellants
    against the respondent had been administratively dismissed earlier that year
    and that the respondent did not know where the appellants currently lived.
    Brown J. concluded:

The defendants were given the
    opportunity to present a defence to this court, which they have failed to do.
    It appears their objective was solely to lift the execution filed against the
    property. When the judgment was set aside, without any financial condition,
    they lost interest in the litigation and appear to have left the jurisdiction.

[13]

In May 2010, the respondent filed writs of execution in respect of the
    reinstated judgment.

[14]

In early 2015, the appellants moved to set aside the judgment of Brown
    J. after Hardial Singh, in 2014, discovered the writs of execution registered
    against his name. The motion was before Master Short on three occasions before
    it was adjourned to a judge. In the interim, the respondent brought an
    application to enforce the judgment by a court-supervised sale of the
    appellants property.

ISSUES AND ANALYSIS

[15]

The appellants assert that the motion judge made palpable and overriding
    errors of fact in refusing to set aside the Brown J. judgment and ordering that
    certain property be sold. They also contend that the Brown J. judgment ought to
    have been set aside on the basis that the respondent did not make full and fair
    disclosure when he and his counsel attended before the court without notice to
    the appellants.

[16]

We agree with the latter submission. As a result, it is unnecessary to
    address the motion judges findings of fact or the appellants submissions about
    them.

[17]

A party who seeks relief from the court in proceedings without notice is
    obliged to make full and fair disclosure of all material facts. This is a
    common law rule that is enshrined in rule 39.01(6). See also
Sangster v.
    Sangster
, [2003] O.J. No. 69 (C.A.), at para. 7. It is unnecessary to find
    that the court was deliberately misled before a court will set aside such an
    order. The basis of the rule is fairness. As the rule confirms, the failure to
    make such disclosure is a reason, in itself, to set aside the order made:
Mariani
    v. Mariani
, [2010] O.J. No. 1464 (S.C.);
Balanyk v. Greater Niagara
    General Hospital
, [1997] O.J. No. 4867 (C.A.).

[18]

Here, the respondents counsel, who had only been retained for an
    assessment of damages, provided information to the court that was inaccurate
    that no statement of defence had been filed, and that there had been no
    communication between the parties in the interim. The respondent did not
    correct this information, and he testified that the appellants had been noted
    in default in 2004. As a result, Brown J. proceeded on the assumption that the
    action was not defended when he granted a judgment restoring the Wilkins J.
    judgment. There is nothing on this record to support the respondents
    submission on appeal that Brown J. must have known that a defence had been
    filed and that he granted judgment based on lack of service of the defence on
    the respondent. Brown J. was clearly proceeding on the basis that there was no
    defence  the respondents counsel said none had been filed, and the respondent
    testified that the appellants had been noted in default. What was material to
    Brown J. was whether the action was being defended, and why the matter was
    proceeding
ex parte.

[19]

The respondent did not make full and fair disclosure of material facts.
    The Brown J. judgment ought to have been set aside on this basis.

DISPOSITION

[20]

The appeal is therefore allowed. The orders of Morgan J. and Cavanagh J.
    are set aside. If the parties are unable to agree on costs, we will receive
    written submissions from the appellants within 15 days and from the respondent
    ten days thereafter, limited to five pages each, including any costs outline.

S.E. Pepall J.A.

K. van Rensburg J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Multitechture Inc. v. Gaertner, 2017 ONCA 674

DATE: 20170828

DOCKET: C61884

Laskin, Juriansz and Miller JJ.A.

BETWEEN

Multitechture Inc. and Ben Kutner

Appellant (Plaintiff)

and

Arie Gaertner and Miller Canfield Paddock and
    Stone LPP

Respondent (Defendant)

Martin Diegel, for the appellant

Stephen Cavanagh, for the respondent

Heard: August 25, 2017

On appeal from the judgment of Justice James of the Superior
    Court of Justice, dated February 17, 2016.

APPEAL BOOK ENDORSEMENT

[1]

The appellants argue only the issue of the alleged cooling off period.
    They submit that there was an understanding Mr. Kutner had 24 hours to call the
    deal off and that Mr. Gaertner failed to tell Mr. Kutner about this understanding.

[2]

We do not accept this submission. The trial judge addressed this issue.
    He held that the evidence was too tentative to support a finding of a legally enforceable
    provision entitling Mr. Kutner to withdraw: and even if there was, he could not
    make a finding that Mr. Kutner communicated his desire to withdraw within 24
    hours. The evidence of Mr. Kutner and Mr. Gaertner support the trial judges
    view of the evidence. Moreover, the trial judge found that the appellants
    damages claim was speculative.

[3]

The appeal is dismissed with costs in the agreed amount of $10,000 all
    in.


COURT OF APPEAL FOR ONTARIO

CITATION: Nason v. Thunder Bay Orthopaedic Inc., 2017 ONCA
    641

DATE: 20170803

DOCKET: C61659

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Darren Nason

Plaintiff (Appellant)

and

Thunder Bay Orthopaedic Inc.

Defendant (Respondent)

Daniel Matson, for the Plaintiff (appellant)

Donald B. Shanks and Jordan Lester, for the Defendant
    (respondent)

Heard: April 20, 2017

On appeal from the judgment of Justice J.S. Fregeau of
    the Superior Court of Justice, dated December 30, 2015.

REASONS FOR DECISION

[1]

The appellant, Darren Nason, was an orthotic
    technician working for the respondent, Thunder Bay Orthopaedic Inc. He
    developed problems with his arms and hands as a result of the physical demands
    of his work. The respondent placed him on a medical leave of absence on August
    18, 2010, and terminated his employment on January 22, 2013. The appellant sued
    for wrongful dismissal and for damages under the
Human Rights Code
for his employers failure to accommodate his disability and for
    disability related discrimination. The trial judge awarded damages for wrongful
    dismissal equal to 15 months pay in lieu of notice, net of WSIB benefits the
    appellant received during that period, plus $10,000 in damages for breach of
    the
Human Rights Code
, finding that the
    disability was a factor in the respondents decision to terminate the
    appellants employment.

[2]

The appellant submits that the trial judge erred
    by refusing to award him additional damages for loss of income between August
    18, 2010, and January 22, 2013. He says the trial judge erred in concluding
    that the respondent had accommodated his disability to the point of undue
    hardship on August 18, 2010, and that the employer was justified in placing him
    on medical leave on that date.

[3]

The respondent cross-appeals. It submits that
    the trial judge erred by failing to find that the employment contract was
    frustrated by the appellants disability. The respondent submits that at the time
    of termination, there was no reasonable likelihood of the employee being able
    to return to work within a reasonable time.

[4]

For the reasons that follow, both the appeal and
    the cross-appeal are dismissed. Neither party has demonstrated palpable and
    overriding error on the part of the trial judge.

A.

The trial judges reasons

[5]

Both parties agree that the trial judge
    correctly articulated the applicable legal tests. Both disagree with his
    application of those tests to the facts as he found them.

B.

Accommodation to point of undue hardship

[6]

The trial judge found  that the respondent had made
    significant changes to the appellants work duties to accommodate his
    disabilities, but that it  had reached the point of undue hardship in making
    those accommodations:

[159]  Pursuant to TBOs knowledge of Mr.
    Nasons condition and their knowledge of the physical requirements of a
    technicians job, modifications were put in place for Mr. Nason. It was agreed
    that he would be allowed to work at a pace compatible with his condition. Mr.
    Nason was allowed rest breaks at his discretion and breaks to perform
    stretching exercises. He was told not to use the computer at lunch and to rest
    his hands and wrists instead. He was allowed extensive paid time off as
    requested to attend physiotherapy and medical appointments. Most significantly,
    he was no longer required to do cast modifications, a job that Mr. McWhirter
    knew was physically demanding. Mr. Nasons evidence that he was not consulted
    and that all changes were made unilaterally is not credible.

[160]  In my opinion, the steps taken by TBO
    satisfy the substantive component of their duty to accommodate Mr. Nasons
    disability. Mr. McWhirter testified that despite these accommodations, the
    overall situation got worse. He testified that Mr. Nasons condition continued
    to deteriorate and his productivity declined to the point where it was 50% or
    less of what it should have been. I accept this evidence.

[161]  Mr. McWhirter testified that TBO
    employed only two technicians at this time, one of whom was Mr. Nason. As Mr.
    Nasons productivity decreased, Mr. McWhirter and Mr. Berezowski were required
    to work evenings and weekends, each working an additional 12 to 13 hours per
    week, to maintain productivity and to keep pace with others. This represents
    approximately 2/3 of a full time position. Mr. McWhirter testified that he and
    his co-owner came to realize that this was simply not sustainable. He testified
    that it made no sense to keep Mr. Nason on the payroll. TBO felt it was in the
    best interests of TBO and of Mr. Nason that he be put on leave, allowed to draw
    the WSIB benefits for which he was qualified and given time away from the
    workplace to recover from his injuries. I find this to be logical and
    reasonable.

[162]  A determination of whether an employer
    has accommodated a disabled employee to the point of undue hardship must take
    account of the specific fact situation and apply common sense. An employer is
    not required to create a new position for the employee. An employer is not
    required to make fundamental changes to the employees job scope or working
    conditions. Hardship becomes undue when an employee is no longer able to
    fulfill the basic obligations of his employment position, despite
    accommodations.

[163]  I am persuaded that TBO fulfilled the
    procedural and substantive components of their duty to accommodate Mr. Nason.
    TBO is a small business in which all aspects of the operation are familiar to
    the owners. To a large extent, they work in close proximity to or alongside
    their employees. They know what is going on in their shop on a day to day
    basis. TBO understood Mr. Nasons disability and they acted proactively to
    accommodate that disability by significantly altering his employment duties
    over the summer of 2010. Despite such accommodations, his condition worsened
    and his ability to fulfill his employment obligations decreased beyond the
    point of viability. Keep him on as an active employee beyond this point would
    have required further fundamental changes to his job duties as well as hiring
    another technician to do what Mr. Nason could no longer do.

[164]  I find that as of early August 2010,
    TBO had fulfilled their duty to accommodate Mr. Nason to the point of undue
    hardship. Having done so, their decision to put him on unpaid leave on August
    18, 2010 was not an infringement of Mr. Nasons rights to equal treatment with
    respect to employment. This aspect of the plaintiffs claim is dismissed.

[7]

The appellant argues that the respondent could
    have asked other employees to work through their lunches, or to work more hours.
    He submits that there was no evidence of financial hardship.

[8]

The trial judge had the benefit of hearing the evidence
    of the appellant and the respondent.  There is no basis to interfere with his
    finding that each of the two proprietors of this specialized small business
    could no longer sustain 12-15 extra working hours each week.

C.

Frustration of the employment contract

[9]

The trial judge rejected the respondents argument that
    the employment contract had been frustrated by the appellants disability:

[180]  The issue of whether the termination of
    the employment contract of a disabled employee is a wrongful dismissal or the
    frustration of the employment contract depends on the facts. Where an employee
    is permanently unable to work because of a disabling condition, the doctrine of
    frustration of the employment contract depends on the fact of the case. Where
    an employee is permanently unable to work because of a disabling condition, the
    doctrine of frustration of contract applies because the permanent disability
    renders performance of the employment contract impossible, such that the
    obligations of the parties are discharged without penalty. Frustration of
    contract is established if at the time of termination there is no reasonable
    likelihood of the employee being able to work with a reasonable time. (Fraser
    v. UBS, 2011 ONSC 5448, paragraphs 15 and 32). The onus is on the employer to
    prove that the contract was frustrated.

[181]  TBO has failed to establish that there
    was no reasonable likelihood of Mr. Nason being able to return to work within a
    reasonable time of January 22, 2013. The evidence does establish that Mr.
    Belcamino was of the opinion that Mr. Nason had permanent restrictions. The
    evidence also establishes that WSIB felt that Mr. Nasons recovery had
    plateaued and that he had reached his maximum medical recovery. WSIB also
    concluded that Mr. Nason was partially permanently impaired as of the end of
    2012. However, whether Mr. Nason could have returned to work, with
    accommodations, had not been sufficiently explored as of January 2013 such that
    one could conclude that there was no reasonable likelihood of it happening in
    the future.

[182]  TBOs statement in their January 14,
    2013 letter to Mr. Nason undermine their position on this issue. In this letter
    they advised Mr. Nason that nothing is currently available but they will
    re-evaluate his desire to return to work if and when medically cleared.

[10]

The respondent, however, terminated the
    appellants employment on January 22, 2013, about a week after sending a letter
    dated January 14, 2013 in which it stated that it would re-evaluate his desire
    to return to work if and when medically cleared.  The termination was made, on
    the findings of the trial judge, before the appellant could produce evidence
    establishing that there was a reasonable likelihood of an ability to return to
    work within a reasonable time. The trial judge correctly noted that the
    employer had the onus of establishing frustration of the employment contract. There
    is no basis for this court to interfere with his determination that the issue
    of whether the appellant could have returned to work within a reasonable time
    had not been adequately explored as at the date of termination.

[11]

Since success was divided on the appeal and
    cross-appeal, this is not a case for costs.

[12]

In the result both the appeal and the
    cross-appeal are dismissed without costs.

G.R. Strathy C.J.O.

E.E.
    Gillese J.A.

G. Pardu J.A.