COURT OF APPEAL FOR ONTARIO

CITATION: D.H. v. Ferencz, 2017 ONCA 20

DATE: 20170113

DOCKET: C61327

Strathy C.J.O, MacPherson and Hourigan JJ.A.

BETWEEN

D. H.

Appellant

and

Dr. Joseph Ferencz

Respondent

Mercedes Perez, appearing as
amicus curiae

Janice Blackburn, for the respondent

Heard: January 11, 2017

On appeal from the order of Parayeski J. of the Superior
    Court of Justice, dated November 20, 2015.

ENDORSEMENT

[1]

The Consent and Capacity Board (the Board) found the
    appellant incapable with respect to mood stabilizers (lithium), anti-psychotic,
    benzodiazepines and anticholinergic medication, in both oral and injectable
    form. That decision was upheld on appeal at the Superior Court.

[2]

The appellant now appeals to this court. For the
    reasons that follow, we would dismiss this appeal.

Facts

[3]

The appellant
is
    49 years old. Starting in 2010, he was repeatedly hospitalized in psychiatric
    facilities for short periods of time. Following an incident on October 23, 2014,
the appellant
was
    charged with assault, breach of probation, and forcible seizure of a child. He
    was found not criminally responsible on those charges, and has been detained at
    St. Josephs Healthcare Hamilton since March 16, 2015.

[4]

The appellants
attending psychiatrist, Dr. Ferencz, diagnosed him with
    bipolar disorder. On May 21, 2015, Dr. Ferencz found
the
    appellant
not mentally capable to consent to
    treatment for this disorder.
The appellant
applied to the Board to challenge this incapacity finding.
    A hearing proceeded on May 28, 2015. The Board found
the
    appellant
incapable with respect to the four
    classes of medication listed above.

[5]

The appellant
submits
    that the hearing at the Board was procedurally unfair, in that the requirements
    of s. 20 of the Ontario
Evidence Act
, R.S.O. 1990, c. E.23 were not
    complied with. He further submits that the evidence as a whole demonstrates
    that the Boards decision was unreasonable. Finally, he submits that the
    Boards reasons were inadequate, in particular the finding of incapacity with
    respect to medications other than lithium.

Analysis

[6]

Prior to the Board hearing,
the appellant
prepared written
    materials that were included in his clinical record at his request. He also
    elected to testify at the hearing. His oral testimony appeared to contradict at
    least part of the written materials, and the Board chair posed questions to
the appellant
to pursue the
    contradictions.
The appellant
was represented by counsel at the hearing, who did not
    object to the chairs line of questioning.

[7]

On appeal, amicus submits that the
    chairs failure to refer
the appellant
to each and every specific point in the written materials that
    was contradictory was unfair and a violation of s. 20. We reject this submission.

[8]

A central issue before the Board was
    whether
the appellant
is
    able to admit to the possibility that he is affected by the manifestations of
    bi-polar disorder. In his oral testimony before the Board there was a
    suggestion that he is able to admit to that possibility. That testimony was not
    entirely consistent with
the appellants
written statement. The specific written statement was put
    to
the appellant
and
    questions were asked of him exploring the inconsistency. In our view, to the
    extent that s. 20 may be applicable to a Board hearing, it was complied with in
    this case.

[9]

Amicus argues that the decision of the
    Board respecting lithium was unreasonable, when the totality of the evidence is
    considered. We disagree. The Board is a highly specialized tribunal. It
    correctly stated the statutory test for capacity found in the
Health Care
    Consent Act, 1996
, S.O. 1996, c. 2, Schedule A, and carefully analyzed the
    evidence and relevant case law.

[10]

In
Fleming v. Starson
, 2003 SCC
    32, [2003] 1 S.C.R. 722, the Supreme Court of Canada held, at para. 5, that on
    questions of treatment incapacity, the Boards conclusion must be upheld
    provided it was among the range of conclusions that could reasonably have been
    reached on the law and evidence. We see no basis to interfere with the Boards
    conclusion.
The appellant
has not demonstrated that the Board made an error of law or
    misapprehended the evidence.

[11]

Amicus argues that there was no factual
    foundation for the Boards finding of incapacity with respect to antipsychotics,
    benzodiazepines and anticholinergics. He submits that Dr. Ferencz only
    discussed lithium with
the appellant
, and that the other medications were only mentioned in a
    single sentence in the summary submitted to the Board.

[12]

We note that this argument was not
    raised by
the appellant
at the first level of appeal.  This court will generally
    not entertain new issues on appeal, save for exceptional circumstances:
M.M.
    v. De Souza
, 2016 ONCA 155. We are not satisfied that exceptional
    circumstances have been established in this case.

[13]

In any event, we agree with the
    respondent that there was an evidentiary foundation for the Boards decision to
    find
the appellant
incapable
    with respect to those medications. Dr. Ferencz was asked by the Board what
the appellants
objections were to
    those medications, immediately after Dr. Ferencz had referred to all of the medications
    in issue. Dr. Ferencz replied that
the appellant
did not feel that he had an illness that required those
    medications, and that
the appellant
felt there were other equally effective treatments that did
    not involve medicine. There was, therefore, a factual foundation for the
    Boards findings with respect to the medications other than lithium.

[14]

The appeal is dismissed.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:  Elaziz v. Wahba, 2017 ONCA 58

DATE: 20170123

DOCKET: C62385

Simmons, Brown and Roberts JJ.A.

BETWEEN

Tarek Mohammed Tawfik Abd Elaziz

Appellant (Respondent)

and

Heba Wahba

Respondent on Appeal (Applicant)

David Sherr, for the appellant

Mark Trenholme, for the respondent

Heard: January 18, 2017

On appeal from the order of Justice Irving André of the
    Superior Court of Justice dated June 10, 2016.

ENDORSEMENT

[1]

The issue on appeal concerns a change order for access to a seven-year-old
    child.

[2]

The original order for access was made on February 28, 2014 following a
    two-day trial.  A change order was made on June 10, 2016 under which the motion
    judge permitted enhanced overnight access to the father largely to respond to
    some issues the child was having concerning evening change-overs of childcare
    responsibilities as between parents.

[3]

As a matter of common sense, change-overs proceed more smoothly if they
    do not occur at the childs bedtime but rather occur in neutral territory at
    the commencement of the school day.

[4]

The appellant argues that in crafting his decision, the motion judge
    originally provided for Monday and Thursday overnights with the father in
    alternate weeks  but then, in response to a concern expressed by the mother,
    changed his endorsement so that the father would have overnight access on
    Thursdays only in alternate weeks.  The concern expressed by the mother was that
    the revised schedule would amount to shared custody for child support purposes which
    would create issues concerning child support.

[5]

The appellant argues that the trial judge erred in principle in revising
    his endorsement to limit the fathers alternate week access to Thursday
    overnights only, based on a factor unrelated to the best interests of the child
     namely the impact of the change on the child support regime.

[6]

We would not accept this submission.  The trial judge made a change
    order to respond to the fathers concerns about the childs reaction to evening
    change-overs.  Upon hearing the wifes objection to his originally crafted
    order, the motion judge deleted Monday overnight access in alternate weeks.

[7]

In our view, it is apparent that the motion judges intention was to
    respond to the presenting issue of evening change-overs.  It was not his
    intention to change the overall access scheme of joint custody  but not shared
    parenting  which was crafted following a two-day trial.

[8]

We see no error in his revised endorsement.  We observe that the order
    as finalized provided for enhanced access to the father.

[9]

We see no basis on which to interfere with any other aspect of the
    motion judges order.

[10]

The appeal is therefore dismissed.  Costs of the appeal are to the
    respondent on a partial indemnity scale fixed in the amount of $1,000 inclusive
    of applicable taxes and disbursements.

Janet Simmons J.A.

David Brown J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fancy Barristers P.C. v. Morse Shannon LLP, 2017
    ONCA 82

DATE: 20170131

DOCKET: C62453

Benotto, Brown, and Miller JJ.A.

BETWEEN

Fancy Barristers, P.C., Hassan Fancy, Nathaniel
    Hughes, by his Litigation Guardian Adam Hughes, Adam Hughes, personally, and
    Dawn Pearson

Appellants

and

Morse Shannon, LLP

Respondent

AND BETWEEN

Fancy Barristers, P.C.,
    Hassan Fancy, Ibrahim Nasir, by his litigation guardian Tahir Nasir, and Tahir
    Nasir, personally

Appellants

and

Morse Shannon, LLP

Respondent

Shahzed Siddiqui, for the appellants

Jerome R. Morse, for the respondent

Heard: January 23, 2017

On appeal from the judgment of Justice D.A. Wilson of the
    Superior Court of Justice, dated June 27, 2016.

ENDORSEMENT

[1]

This appeal involves a dispute between law firms that resulted in a
    charging order granted by the application judge for fees.

[2]

Fancy Barristers P.C. (Fancy) was retained on a contingency fee basis
    by two minor plaintiffs in two separate actions: one for medical negligence;
    and the other for motor vehicle injury. Both clients signed agreements with
    Fancy in the following terms:

the client agrees to pay to Fancy Barristers P.C. as and for
    their fees, twenty five percent (25%) of all amounts recovered on the clients
    behalf (paid and received) plus party and party costs plus GST excluding costs
    and disbursements, regardless of the source of said recovery, in respect of
    clients claims. The client shall also pay for disbursements and for GST on the
    fees and disbursements which shall likely be collected from the insurer.

[3]

Fancy then retained Morse Shannon LLP (Morse) pursuant to two agency
    agreements to assist with pursuing the two claims. The agency agreements
    provided that Morse and Fancy would split the fees in the two actions after
    repayment for docketed time and disbursements.

[4]

Morse spent time on the two actions and incurred fees and disbursements.
    However, the relationship between Morse and Fancy broke down and eventually
    Fancy terminated the agency agreements. Fancy did not pay Morse for its
    docketed time or disbursements. Nor did Fancy provide an undertaking to pay
    Morse out of any eventual proceeds from the actions.

[5]

Morse applied for charging orders in both actions under s. 34 of the
Solicitors
    Act
, R.S.O. 1990, c. S.15, to ensure that it would be paid out of any
    eventual proceeds.

[6]

The application judge granted the orders.

[7]

Fancy appeals, and submits that the application judge erred by granting
    the charging orders. It submits that Morse does not have a retainer agreement
    with the minor plaintiffs; that there was no outstanding account between Morse
    and the minor plaintiffs; that the test to obtain a charging order was not met,
    as there was no fund yet in existence; that the order is inequitable; and that
    the order should have been limited to a specific amount.

[8]

We do not accept these submissions.

[9]

Section 34 of the
Solicitors Act
provides that the court may
    grant a charge on property recovered or preserved through the instrumentality
    of the solicitor for the solicitors fees, costs, charges and disbursements.
    The test for a charging order is well-established: see
Thomas Gold Pettinghill
    LLP v. Ani-Wall Concrete Forming Inc.
, 2012 ONSC 2182, 349 D.L.R. (4th)
    431, at paras. 84-88. Here, the respondent Morse was employed to prosecute the
    litigation; the funds  in the form of a chose in action - were in existence at
    the time the order was granted; the funds were recovered through the
    instrumentality of the lawyer; and, as found by the application judge, there
    was evidence that the lawyers account would not be paid. The application judge
    applied this test and there is no reason to interfere with the exercise of her
    discretion.

[10]

During the course of oral argument, the panel raised the terms of the
    charging order which appear to cover the entire proceeds of the plaintiffs recovery,
    not just the 25% referred to in the agreements. Fancy relied on this as a
    further ground to set aside the order. However, Morse acknowledged that it was
    never its intent to interpret the order to apply to the entire proceeds. It
    referred to the notice of application and the claims made against Fancy in
    support of this position. In our view, had this issue been raised as the only
    ground of appeal, Morse would have consented and the appeal would not have been
    necessary. It is clear in the application judges comments that the charging
    order was to apply to the 25% plus fees and disbursements only, not the entire
    recovery. The order may, if necessary, be amended accordingly.

[11]

Fancy further submitted that the application judge was biased. It relies
    on the fact that she appears to have changed her view on certain points.

[12]

There is a strong presumption of judicial impartiality and a heavy
    burden on a party who seeks to rebut this presumption. Judicial impartiality
    has been called the key to our judicial process:
Wewaykum Indian Band v.
    Canada
, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59. Nothing in the
    material before us comes close to rebutting the presumption of impartiality.

[13]

For these reasons, the appeal is dismissed with costs payable by the
    appellant Fancy to the respondent Morse fixed in the amount of $14,000
    inclusive of disbursements and HST.

M.L. Benotto
    J.A.

David Brown J.A.

B.W. Miller J.A.


WARNING

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

An order restricting publication on the
    name of claimant M.F. (lAP file no. E-5442-1O-F-13421); and

An order sealing documents pursuant to s.
    137(2) of the
Courts of Justice Act
. This section of the
Courts of
    Justice Act
provides that:

(2)
A court
    may order that any document filed in a civil proceeding before it be treated as
    confidential, sealed and not form part of the public record.

COURT OF APPEAL FOR ONTARIO

CITATION: Fontaine v. Canada (Attorney General), 2017 ONCA
    26

DATE: 20170116

DOCKET: C62519

Strathy C.J.O., Hoy A.C.J.O. and Sharpe J.A.

BETWEEN

Larry Philip Fontaine
    in his personal capacity and in his capacity as the executor of the estate of
    Agnes Mary Fontaine, deceased, Michelline Ammaq, Percy Archie, Charles Baxter
    Sr., Elijah Baxter, Evelyn Baxter, Donald Belcourt, Nora Bernard, John Bosum,
    Janet Brewster, Rhonda Buffalo, Ernestine Caibaiosai-Gidmark, Michael Carpan,
    Brenda Cyr, Deanna Cyr, Malcolm Dawson, Ann Dene, Benny Doctor, Lucy Doctor,
    James Fontaine in his personal capacity and in his capacity as the executor of
    the Estate of Agnes Mary Fontaine, deceased, Vincent Bradley Fontaine, Dana Eva
    Marie Francey, Peggy Good, Fred Kelly, Rosemarie Kuptana, Elizabeth Kusiak,
    Theresa Larocque, Jane McCullum, Cornelius McComber, Veronica Marten, Stanley
    Thomas Nepetaypo, Flora Northwest, Norman Pauchey, Camble Quatell, Alvin Barney
    Saulteaux, Christine Semple, Dennis Smokeyday, Kenneth Sparvier, Edward
    Tapiatic, Helen Winderman and Adrian Yellowknee

Plaintiffs (Respondents)

and

The Attorney General
    of Canada, The Presbyterian Church in Canada, The General Synod of the Anglican
    Church of Canada, The United Church of Canada, The Board of Home Missions of
    the United Church of Canada, The Womens Missionary Society of the Presbyterian
    Church, The Baptist Church in Canada, Board of Home Missions and Social
    Services of the Presbyterian Church in Bay, The Canada Impact North Ministries
    of the Company for the Propagation of the Gospel in New England (also known as
    The New England Company), The Diocese of Saskatchewan, The Diocese of the Synod
    of Cariboo, The Foreign Mission of the Presbyterian Church in Canada, The
    Incorporated Synod of the Diocese of Huron, The Methodist Church of Canada, The
    Missionary Society of the Anglican Church of Canada, The Missionary Society of

the Methodist Church
    of Canada (also known as the Methodist Missionary Society of Canada), The
    Incorporated Synod of the Diocese of Algoma, The Synod of the Anglican Church
    of the Diocese of Quebec, The Synod of the Diocese of Athabasca, The Synod of
    the Diocese of Brandon, The Anglican Synod of the Diocese of British Columbia,
    The Synod of the Diocese of Calgary, The Synod of the Diocese of Keewatin, The
    Synod of the Diocese of QuAppelle, The Synod of the Diocese of New Westminster,
    The Synod of the Diocese of Yukon, The Trustee Board of the Presbyterian Church
    in Canada, The Board of Home Missions and Social Service of the Presbyterian
    Church of Canada, The Women's Missionary Society of the United Church of
    Canada, Sisters of Charity, A Body Corporate also known as Sisters of Charity of
    St. Vincent De Paul, Halifax, also known as Sisters of Charity Halifax, Roman Catholic
    Episcopal Corporation of Halifax, Les Surs de Notre Dame-Auxiliatrice, Les
    Surs de St. François D'Assise, Institut des Surs du Bon Conseil, Les Surs de
    Saint-Joseph de Saint-Hyacinthe, Les Surs de Jésus-Marie, Les Surs de
    l'Assomption de la Sainte Vierge, Les Surs de L'Assomption de la Saint Vierge
    de L'Alberta, Les Surs de la Charité de St. Hyacinthe, Les uvres Oblates de
    L'Ontario, Les Résidences Oblates du Québec, La Corporation Épiscopale
    Catholique Romaine de la Baie James (The Roman Catholic Episcopal Corporation of
    James Bay), The Catholic Diocese of Moosonee, Surs Grises de Montréall/Grey Nuns
    Of Montreal, Sisters of Charity (Grey Nuns) of Alberta, Les Surs de la Charité
    des T.N.O., Hôtel-Dieu de Nicolet, The Grey Nuns of Manitoba Inc.-Les Surs
    Grises du Manitoba Inc., La Corporation Épiscopale Catholique Romaine De La
    Baie D'Hudson - The Roman Catholic Episcopal Corporation of Hudson's Bay,
    Missionary Oblates - Grandin Province, Les Oblats de Marie Immaculée du
    Manitoba, The Archiepiscopal Corporation of Regina, The Sisters of the
    Presentation, The Sisters of St. Joseph of Sault St. Marie, Sisters of Charity of
    Ottawa, Oblates of Mary Immaculate -St. Peter's Province, The Sisters of Saint
    Ann, Sisters of Instruction of the Child Jesus, The Benedictine Sisters of Mt.
    Angel Oregon, Les Pères Montfortains, The Roman Catholic Bishop of Kamloops
    Corporation Sole, The Bishop of Victoria, Corporation Sole, The Roman Catholic
    Bishop of Nelson, Corporation Sole, Order of the Oblates of Mary Immaculate in the
    Province of British Columbia, The Sisters of Charity of Providence of Western Canada,
    La Corporation Épiscopale Catholique Romaine de Grouard, Roman Catholic
    Episcopal Corporation of Keewatin, La Corporation Archiépiscopale Catholique
    Romaine de St. Boniface, Les Missionnaires Oblates Sisters de St. Boniface-The Missionary
    Oblates Sisters of St. Boniface, Roman Catholic Archiepiscopal Corporation of
    Winnipeg, La Corporation Épiscopale Catholique Romaine de Prince Albert, The
    Roman Catholic Bishop of Thunder Bay, Immaculate Heart Community of Los Angeles
    CA, Archdiocese of Vancouver - The Roman Catholic Archbishop of Vancouver,
    Roman Catholic Diocese of Whitehorse, The Catholic Episcopal Corporation of
    Mackenzie-Fort Smith, The Roman Catholic Episcopal Corporation of Prince
    Rupert, Episcopal Corporation of Saskatoon, Omi Lacombe Canada Inc. and Mt.
    Angel Abbey Inc.

Defendants (Appellants)

Proceedings
    under the
Class Proceedings Act
, 1992, S.O. 1992 c. 6

Catherine Coughlan and Brent Thompson, for the
    appellant, the Attorney General of Canada

David Schulze and Marie-Eve Dumont, for the respondent,
    M.F.

Peter Grant and K. Williams, for the respondent,
    Independent Counsel

Catherine Boies Parker, for the intervener, The Chief
    Adjudicator

Heard: December 5-6, 2016

On appeal from the judgment of
    Mr. Justice Paul M. Perell of the Ontario Superior Court of Justice, sitting as
    the Eastern Administrative Judge for the Indian Residential School Settlement
    Agreement, dated July 5, 2016, with reasons reported at 2016 ONSC 4326.

Sharpe J.A.:

[1]

The
Indian Residential School Settlement Agreement
(the IRSSA) is a national settlement resolving various class action
    proceedings against the Attorney General of Canada
(Canada)
and
    other parties implicated in the deplorable history of physical, sexual and
    psychological abuse suffered by aboriginal children at residential schools.
    IRSSA provides for compensation to the victims of residential schools. A Common
    Experience Payment is available immediately to all eligible class members who
    had resided in a residential school. An
Independent Assessment
    Process (IAP), a specially designed inquisitorial process involving trained adjudicators,
    was established to provide compensation to claimants who could show that they
    had suffered serious physical or sexual abuse or psychological harm at a
    residential school.

[2]

The central issue on this appeal is the availability of recourse
    to the courts with respect to the determination of claims made
under the IAP.

[3]

The respondent, M.F. made a claim pursuant to the
    IAP. His claim was rejected by an Adjudicator, by a Review Adjudicator and by a
    Re-Review Adjudicator, on the ground that he was not an eligible claimant. He
    brought a Request for Directions (RFD) before the judge designated under the
    IRSSAs Court Administration Protocol as the Eastern Administrative Judge,
    challenging the rejection of his claim.

[4]

Shortly before the RFD was heard, Canada
    discovered and disclosed two documents that had not been considered by the IAP Adjudicators
    and that arguably demonstrated that M.F. was an eligible claimant. Canada was
    prepared to consent to an order remitting M.F.s claim to the Chief Adjudicator
    for reconsideration. M.F. refused to consent and the RFD proceeded.

[5]

The administrative judge held that he had the
    authority to review the decisions of the IAP Adjudicators. He engaged in a
    detailed review of the record and the evidence and concluded that, quite apart
    from the newly discovered evidence, M.F. was entitled to compensation. He
    refused to remit the claim back to the Chief Adjudicator for reconsideration,
    and found that he was entitled to award M.F. compensation, to quantify the
    award, and determine the appropriate quantum of M.F.s IAP costs.

[6]

On appeal, Canada submits that the
    administrative judge erred by assuming jurisdiction over M.F.s claim without
    applying the proper threshold for judicial recourse under the IAP, by
    interfering with the factual findings of the IAP Adjudicators, and by ordering
    and quantifying the compensation and costs to which M.F. is entitled.

[7]

M.F. cross-appeals, asking this court to declare
    that Canada breached its document disclosure obligations under the IAP.

[8]

At the conclusion of oral argument, the court
    indicated that for reasons to follow, Canadas appeal was allowed, the
    cross-appeal was dismissed, and that the matter was remitted to the Chief
    Adjudicator for reconsideration.

M.F.s Claim

[9]

M.F. was born on May 12, 1950. He was not a resident or a student at an Indian
    Residential School (an IRS). His aunt worked as a cook at the Spanish Boys
    IRS in Spanish, Ontario. M.F. stated that when he was about 10 years old, in
    about 1960, he sometimes visited his aunt at the Spanish Boys IRS with his
    cousin after school to have milk and cookies before going home.

[10]

In his claim, M.F. stated that he was altar boy at the church on the
    property of the Spanish Boys IRS between 1960 and 1962, when he was between
    the ages of 10 and 12. While working as an altar boy, he was sexually assaulted
    in the sacristy of the church by a priest named Father B. He met Father B. at
    the Spanish Boys IRS when he visited his aunt. Father B. recruited and trained
    M.F. to become an altar boy. At his initial IAP hearing, M.F. testified that he
    thought he may have been 8 years old at the time of the abuse, placing it
    sometime after May 12, 1958. The Spanish Boys IRS closed on June 30, 1958.
    There was also some suggestion at the hearing that the abuse might have
    occurred in relation to the Spanish Girls IRS, which had used the church of
    the Boys IRS after the Boys IRS had closed.

[11]

IAP documents revealed that M.F.s aunt was employed as a cook at the Spanish
    Boys IRS from 1951 until 1957. Father B appeared on staff lists for the Spanish
    Boys IRS for December 1957 and June 30, 1958 as living at the school, but not
    having any duties.

[12]

M.F. brought his claim in January 2012, at the age of 61.

[13]

Claimants, like M.F., who were not IRS students or residents, may claim
    compensation pursuant to the IAP for physical or sexual abuse in certain
    circumstances. To succeed as a non-resident claimant, a claimant such as M.F.
    has to show that: (1) the perpetrator was an adult employee of the government
    or church entity that operated the IRS; (2) the perpetrator was lawfully on the
    premises of the IRS; (3) the claimant was under the age of 21 at the time of
    the assault; (4) an adult employee of the government or church entity gave the
    claimant permission to be on the premises of the IRS for the purpose of taking
    part in school activities; and (5) the assault arose from or was connected with
    the operation of the school.

The IAP Adjudication

[14]

The IAP is a contractual component of the IRSSA that provides for the
    post-class litigation assessment of the individual claims of class members. The
    IAP consists of three levels of adjudication under the supervision of the Chief
    Adjudicator. Adjudicators use an inquisitorial model. Only parties may call
    witnesses or produce evidence, but Adjudicators manage hearings, question all
    witnesses, and test evidence through cross-examination. The process was
    described by Brown J., the Western Administrative Judge, in
Fontaine v.
    Canada (Attorney General),
2012 BCSC 839, at paras 29-30, as follows:

The hearings are to be inquisitorial in nature and the process
    is designed to minimize further harm to claimants. The adjudicator presiding
    over the hearing is charged with asking questions to elicit the testimony of
    claimants. Counsel for the parties may suggest questions or areas to
    explore to the adjudicator but they do not question claimants directly.

The hearings are meant to be considerate of the claimants
    comfort and wellbeing but they also serve an adjudicative purpose where
    evidence and credibility are tested to ensure that legitimate claims are
    compensated and false claims are weeded out.

[15]

The IAP empowers Adjudicators to make binding findings on credibility,
    liability, and compensation within defined standards. Claimants must meet the
    civil standard of proof on a balance of probabilities to show an entitlement to
    compensation. Adjudicators are required to issue decisions outlining key
    factual findings and their rationale for finding or not finding compensability
    within the IAP, and for the compensation assessed, if any.

The Adjudicators Reasons

[16]

The Adjudicator found M.F.s testimony credible and concluded that he had
    suffered the abuse he described. However, the Adjudicator found that M.F. had
    not established on a balance of probabilities that he met the IAP test for
    non-resident/non-student claimants.

[17]

She noted that M.F. testified that he was abused for a period of two
    years, from the ages of about 10 to 12, when he had been an altar boy. That
    would place the abuse after the date in 1958 when the school closed and after
    Father B.s employment at the IRS had terminated. Even if she accepted that the
    abuse occurred when M.F. was 8 years old, the school closed in June 1958, one
    month after M.F.s 8
th
birthday, making it unlikely that M.F. had
    been recruited, trained as an altar boy and sexually assaulted before the
    school closed. There was no evidence that Father B. was employed by the girls
    school, the alternate theory advanced by M.F. to explain how the abuse may have
    occurred in connection with an IRS after the closure of the boys school. Even
    if Father B. had given M.F. permission to be on the premises to receive altar
    boy training, given the probable time when this training likely took place, it
    was likely after the school closed.

[18]

The Adjudicator concluded that the abuse did not arise from and was not
    connected to the operation of the Spanish Boys IRS.

[19]

M.F. takes issue with the following passage in the Adjudicators reasons,
    in which she relied on extra-curial knowledge regarding the age at which M.F.
    could have served as an altar boy:

It is my understanding that standard practice is that a boy
    cannot serve as an altar boy until he is confirmed in the Catholic Church.
    Confirmation usually takes place when a boy turns 8 years of age. If [M.F.] was
    confirmed at age 8 (May, 1958), then he was confirmed in the year the Spanish
    Boys school closed that June. It is highly unlikely that in the time between
    his 8
th
birthday and the time the school closed, that he was able to
    be confirmed and trained to be an altar boy.

[20]

The IAP allows Adjudicators to use extra-curial knowledge to make
    decisions, including background or personal knowledge of the IRS system and the
    effects of child abuse. They may carry forward information from hearing to
    hearing, such as information about the
modus operandi
of alleged
    perpetrators, conditions at a particular school, or past credibility findings.
    However, such extra-curial knowledge cannot be relied on as an independent
    basis for their conclusions of fact.

Review and re-review

[21]

If a claimant is dissatisfied with the Adjudicators decision, the IAP
    provides that he or she may ask for a review by another Adjudicator, and if
    dissatisfied with the review, for a further review, referred to by the parties
    as a re-review.

[22]

The review and re-review of Adjudicators decisions is governed by s.
    III (l)  which provides as follows:

(i)

For cases within the standard or
    complex track, any party may ask the Chief Adjudicator or designate to
    determine whether an adjudicators, or reviewing adjudicators, decision
    properly applied the IAP Model to the facts as found by the adjudicator, and if
    not, to correct the decision, and the Chief Adjudicator or designate may do so.

(ii)

In both the standard and the
    complex issues tracks, Claimants may require that a second adjudicator review a
    decision to determine whether it contains a palpable and overriding error.

(iii)

(iv)

If a palpable and overriding
    error is found, the reviewing adjudicator may substitute their own decision or
    order a new hearing.

The Review Adjudicators Reasons

[23]

M.F. sought review. The Review Adjudicator upheld the Adjudicators
    decision. Although M.F. had not specifically raised palpable and overriding
    error as a ground of review, the Review Adjudicator considered it.

[24]

The Review Adjudicator cited
Housen v. Nikolaisen
, 2002 SCC 33,
    [2002] 2 S.C.R. 235, at para. 23, and
Waxman v. Waxman
(2004), 186
    O.A.C. 201 (C.A.), at paras. 296-297, leave to appeal refused, [2004] S.C.C.A.
    No. 291, for the proposition that a palpable and overriding error is one that
is
    plainly seen
 (emphasis in original). She also cited
Dunsmuir v. New
    Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, for the proposition that the
    Adjudicators factual findings should not be disturbed if her reasoning path
    was clear and her outcome fell within a range of reasonable alternatives.

[25]

The Review Adjudicator concluded that the Adjudicator did not commit a
    palpable and overriding error in holding that M.F. had failed to demonstrate on
    a balance of probabilities that the abuse he suffered occurred while the
    Spanish Boys IRS was in operation. The Adjudicator had taken into account
    M.F.s birth date (May 12, 1950), his claim that he was an altar boy in the
    period 1960-1962, that according to M.F.s own testimony, it takes from a
    couple of weeks to a month to become an altar boy, that M.F. was abused after
    he became an altar boy, and that the Spanish Boys IRS closed on June 30, 1958.
    The Review Adjudicator concluded that the Adjudicators decision fell within a
    range of reasonable outcomes, and was supported by the facts and reasonable
    inferences.

Re-Review Adjudicators Reasons

[26]

M.F. sought re-review and submitted that the Adjudicator committed a
    palpable and overriding error. M.F. argued that she should have found that as
    M.F. was invited onto the premises of the IRS by his aunt, and as his aunt and
    Father B. were not on the premises after the IRS closed, then M.F. must have
    been abused before the IRS closed.

[27]

The Re-Review Adjudicator ruled that he had no authority to review the
    Adjudicators decision for factual error, and that he was restricted to
    considering whether the Review Adjudicator and the Adjudicator had correctly
    applied the IAP framework.

[28]

M.F. once again raised the argument that the abuse could have occurred
    in relation to the use of the chapel at the boys school by the residents of
    the girls school after the boys school had closed. He argued that the
    Adjudicator had failed to take judicial notice of the fact that the residents
    of the girls school would be expected to attend mass performed by a priest. The
    Re-Review Adjudicator dismissed this argument, pointing out that M.F. had
    testified that he was not sure whether he had seen any residential school
    students at the masses when he served as altar boy.

[29]

M.F. submitted for the first time on re-review that the Adjudicator had
    erroneously relied on extra-curial knowledge of the age at which a Catholic boy
    may become an altar boy.

[30]

The Re-Review Adjudicator agreed with M.F. that the age at which a boy
    may serve as an altar boy in the Catholic Church is not obvious, that it was
    ill-advised for the Adjudicator to rely on her personal knowledge, and that
    the Adjudicator may have been wrong as to the age. However, the IAP only
    prevents adjudicators from relying on extra-curial knowledge as an independent
    basis for their conclusions of fact. The Re-Review Adjudicator concluded that
    the Adjudicators finding that M.F. had not established on a balance of
    probabilities that the abuse occurred prior to the closure of the IRS was well
    supported by other facts and evidence, and that it was not independently based
    on her use of extra-curial knowledge. The Re-Review Adjudicator concluded,
    accordingly, that the Adjudicator had not failed to apply or misapplied the IAP
    model.

M.F.s Request for Directions

[31]

M.F. brought a RFD asking for a declaration of his entitlement to
    compensation at a specified level, and for declarations as to the standard of
    review which should be applied by Review and Re-Review Adjudicators.
    Independent Counsel, an IRSSA entity, supported M.F.s position.

Newly discovered evidence

[32]

The IAP imposes an obligation on the Government of Canada to search for
    and collect relevant documents and provide a report setting out the dates a
    claimant attended an IRS. Canada must provide a Person of Interest or POI
    Report detailing information about alleged perpetrators of abuse, including
    their jobs at the IRS and the dates they worked or attended there. Canada must
    also gather documents about the IRS that the claimant attended and provide the
    claimant with an IRS School Narrative summarizing those documents. The
    claimant is entitled to request copies of documents located by Canada.

[33]

When preparing for the RFD, Canada found documents that had been listed
    as source documents in the POI Report and the IRS School Narrative created
    pursuant to M.F.s claim, but ignored at the IAP hearing. The first new
    document was a copy of a diary referenced in the POI Report. The second was an
    excerpt from the Dictionary of Jesuit Biography referenced in the IRS school
    Narrative. M.F. had not requested copies of either document, nor was either
    document requested by or provided to the Adjudicator.

[34]

Canada provided copies of these documents to M.F. Initially Father B.s
    name was improperly redacted in the relevant portion of the diary. Canada
    agreed to provide an unredacted copy. These documents showed that Father B. had
    left Spanish, Ontario for Winnipeg the day after the IRS closed, never to
    return. It is common ground that these documents could have affected the
    outcome of M.F.s claim, as they undermined the Adjudicators finding that the
    abuse of M.F. by Father B. probably occurred after the IRS closed.

[35]

Canada took the position that M.F.s claim should be remitted to the
    Chief Adjudicator for reconsideration in the light of the documents that had
    been revealed and that given that concession, the RFD was moot. M.F. resisted
    having the matter remitted for reconsideration, and insisted that the RFD
    should proceed.

The Administrative Judges Reasons

Jurisdiction

[36]

The administrative judge held, at paras. 34-41, that he had four sources
    of jurisdiction: (1) the courts jurisdiction over the administration of a
    class action settlement; (2) the courts plenary jurisdiction from
s. 12
of the
Class Proceedings Act, 1992
;
    (3) the courts jurisdiction derived from the IRSSA, which includes its
    jurisdiction to interpret and enforce contracts and its own orders, including
    its approval and implementation orders of the IRSSA; and (4) the courts
    general curial jurisdiction with respect to matters arising from the IAP. As
    authority for the courts general curial jurisdiction, the administrative
    judge cited this courts decision in
Fontaine v. Duboff Edwards Haight
    & Schachter
, 2012 ONCA 471, 111 O.R. (3d) 461. As I will explain
    below, Canada takes serious issue with the administrative judges reading of
Schachter.

Mootness

[37]

The administrative judge held that M.F.s RFD should be considered on
    its merits despite its purported mootness, as it raised significant issues
    respecting the proper interpretation of the review provisions in the IAP
    framework, as well as respecting the courts jurisdiction to fashion remedies
    when the IAP adjudication produces a patent miscarriage of justice.

Canadas disclosure obligations

[38]

The administrative judge rejected M.F.s contention that Canada had
    breached its IAP disclosure obligations by failing to give the Adjudicator the
    documents disclosing Father B.s departure from Spanish after the Spanish Boys
    IRS closed.

[39]

Canada had referred to the documents in the IRS School Narrative and POI
    Report. Those reports had accurately reported what the documents said about when
    Spanish Boys IRS had closed, and about the dates when Father B. was at the
    school, although they had not reported that Father B. had left Spanish the day
    after the IRS closed. The documents were identified and available. M.F. could
    have obtained copies and ensured that the Adjudicator had them, but he did not
    do so. The Adjudicator could have examined the documents herself. The erroneous
    redaction of Father Bs name in the diary did not breach Canadas IAP
    disclosure obligation because the Adjudicator had not read the diary and M.F. had
    not requested it.

Review and Re-Review

[40]

The administrative judge found, at paras. 64-65, that the Re-Review
    Adjudicator erred in his interpretation of the review provisions of the IAP. The
    Re-Review Adjudicator had restricted his review to whether the Review
    Adjudicator had properly applied the IAP model to the facts as found by the
    Adjudicator. In the administrative judges opinion, the Re-Review Adjudicator
    was supposed to review the decisions of both the Adjudicator and the Re-Review
    Adjudicator.

[41]

The administrative judge rejected the Re-Review Adjudicators view that
    the IAP did not permit him to review the decisions of the Adjudicator or the
    Review Adjudicator for palpable and overriding errors as a dangerous over-simplification:
    para. 66. The administrative judge found that with respect to the present
    claim, review of the first two Adjudicators decisions for a correct
    application of the IAP framework was inseparable from review of the facts found
    by the Adjudicator.

[42]

The administrative judge ruled that the Re-Review Adjudicator erred by
    concluding that the Adjudicator had not used extra-curricular knowledge as an
    independent basis for her findings of facts. The administration judge stated,
    at para. 70, once the Adjudicators speculation is excised from the case,
    there is no basis to conclude that M.F. had failed to prove on a balance of
    probabilities that he was assaulted before the school closed.

[43]

The administrative judge implicitly exercised the error-correcting jurisdiction
    of an appellate court by identifying, at para. 71, what he described as an
    inconsistent, discordant, and with respect, perverse finding of fact regarding
    the timing of the abuse alleged in M.F.s claim. The Adjudicator had found that
    M.F. had been sexually assaulted and, in the administrative judges view, there
    was no evidence indicating that the assault occurred after the IRS closed. It
    was, therefore, a palpable and overriding error for the Adjudicator to conclude
    that M.F. had not met the standard of proof for entitlement to IAP
    compensation, quite apart from the impact of the newly discovered evidence. Once
    he had identified that purported error, the administrative judge assumed the
    role of a trier of fact, re-weighed the evidence and concluded that M.F. was
    entitled to compensation.

[44]

The administrative judge went on to hold that even if the Re-Review
    Adjudicator was only required to review the Review Adjudicators decision, he
    erred in affirming that decision because the Review Adjudicator failed to apply
    the IAP framework and correct the palpable and overriding error made by the
    Adjudicator: para. 72. Moreover, the Review Adjudicator did not articulate the
    correct test for what constitutes a palpable and overriding error. She relied
    on
Dunsmuir
to hold that she had to defer to the Adjudicator if the
    Adjudicators decision was reasonable, but
Dunsmuir
[is not] relevant
    to the exercise of a Review Adjudicators jurisdiction to review decisions of
    Adjudicators: para. 76.

Remedy

[45]

The administrative judge rejected Canadas position that a rehearing of
    M.F.s claim should be ordered. He agreed that such a remedy was available but
    stated that the alternatives would be to decide the IAP claim himself, or to
    appoint a referee to decide the claim.

[46]

The administrative judge held that, even without the fresh evidence
    disclosed by Canada, the decision as I have corrected it can only lead to one
    result, that is, that M.F. was entitled to compensation: para. 80. Therefore,
    he did not send the matter back to adjudication. Although the administrative
    judge did not deal with the point in his reasons, his order made an award to
    M.F. at a specified level of harm under the IAP grid, despite the fact the IAP
    requires medical evidence to support that level of compensation and no such
    evidence had been led. The administrative judge also decided that he would
    quantify M.F.s compensation and costs, subject to providing the parties with a
    30-day opportunity to settle the award and costs claim.

ISSUES

[47]

The central issue on this appeal is whether the Administrative Judge
    exceeded the limits of his authority by failing to apply
Schachter,
which
    expressly limited judicial recourse to challenge IAP decisions to very
    exceptional circumstances, by overturning and making findings of fact, and by
    awarding compensation and costs to M.F. rather than remitting the claim for
    reconsideration to the Chief Adjudicator. The appeal also raises the issue of
    the proper roles of the Review and Re-Review Adjudicators. The issue raised by the
    cross-appeal is whether Canada breached its IAP disclosure obligations.

[48]

Independent counsel supports the position of M.F. The Chief Adjudicator,
    intervener, supports Canadas position with respect to the jurisdictional issue
    and the roles of the Review and Re-Review Adjudicators.

ANALYSIS

Schachter and the jurisdiction of the
    administrative judge

[49]

The starting point for determining the availability of recourse to the
    courts to challenge IAP decisions is the decision of this court in
Schachter
.
    That case involved an attempt to appeal a determination made by the Chief
    Adjudicator in relation to legal fees. Winkler C.J.O., the administrative judge
    who had been instrumental in the approval of the IRSSA and who was entirely
    familiar with the IAP process it established, ruled that the IAP only allowed
    for appeals to the court in certain defined circumstances, and that all other
    appeals were excluded. He also ruled that as the Chief Adjudicator was not
    exercising a statutory power of decision, judicial review of IAP orders was
    also excluded:
Fontaine v Canada (AG)
(7 March 2011)

[50]

This court dismissed an appeal from that decision. Writing for a
    unanimous court, Rouleau J.A. emphasized the importance of respecting the
    expertise of the Chief Adjudicator, and of protecting the IAP from curial
    review that would undermine the finality of IAP decisions. He agreed with
    Winkler C.J.O. that there was no appeal from an IAP decision, and no right to
    judicial review. However, this court left open the possibility of judicial
    recourse in very exceptional circumstances (para. 53) or very limited
    circumstances (para. 57). Rouleau J.A. described those exceptional or limited
    circumstances at paras. 57 and 78 in the following words:

[I]n the very limited circumstances where the final decision of
    the Chief Adjudicator reflects a failure to comply with the terms of the
    [IRSSA] or the implementation orders, the aggrieved party may apply to the
    Administrative Judges for directions. These limited circumstances would include
    where the Chief Adjudicator upholds a decision of the Adjudicator as fair and
    reasonable even though the Adjudicator failed to consider the factors set out
    in para. 18 of the implementation orders in arriving at his/her fee review
    decision in a specific case. By providing for recourse to an Administrative
    Judge in these limited circumstances, the parties will be able to ensure that
    the bargain to which they consented is respected.

[A] Request for Direction may only be brought where it is alleged
    that the Chief Adjudicator's decision reflects a failure to enforce the
    provisions of the [IRSSA] and the implementation orders. This very limited
    availability of a right to seek review of a Chief Adjudicator's decision
    reflects both the importance of the finality of decisions under the [IRSSA] and
    the relative expertise of the Chief Adjudicator in the legal fee review
    process.

[51]

I see no merit in M.F.s argument that
Schachter
should be read
    narrowly as applying only to legal fee determinations. That argument was
    properly rejected in
Fontaine v. Canada (Attorney General),
2016 BCSC 2218 at para. 176.
While
Schachter
involved a dispute concerning IAP legal fees, the principles upon which the
    decision rests apply with equal force to IAP compensation decisions. The IAP
    represents a comprehensive, tailor-made scheme for the resolution of claims by
    trained and experienced adjudicators, selected according to specified criteria
    and working under the direction of the Chief Adjudicator. Allowing appeals or
    judicial review to the courts from IAP decisions is not contemplated by the
    IAP, the IRSSA or the Implementation Orders. Allowing appeals or judicial
    review would seriously compromise the finality of the IAP and fail to pay
    appropriate heed to the distinctive nature of the IAP and the expertise of IAP
    adjudicators.

[52]

I disagree with the administrative judges conclusion that
Schachter
created a general curial jurisdiction in relation to the IAP. This court
    did not use that phrase and the entire thrust of the judgment is to the
    contrary. As Brown J. explained in
Fontaine v. Canada (Attorney General),
2016 BCSC 2218, at para. 177
: the phrase
    curial review suggests a right to seek review before the courts and a
    standard of review, both of which are untenable in the light of
Schacher
.

[53]

Schachter
imposed strict limits on the scope for judicial
    intervention. It did so to respect the IRSSA, the contract the parties
    negotiated, of which the IAP is a fundamental part. As this court recognized in
Fontaine v. Canada (Attorney General),
2016 ONCA 241 at para. 48:
    [a]djudicators are specially trained to conduct the hearing in a way that is
    respectful to the claimant and conducive to obtaining a full description of his
    or her experience. The IAP has been aptly described as a complete code that
    limits access to the courts, preserves the finality of the IAP process and respects
    the expertise of IAP adjudicators: see
Fontaine v. Canada (Attorney
    General),
2016 BCSC 2218, at para. 178.

[54]

Subsequent decisions confirm the limits imposed by
Schachter
.
    In
Fontaine v. Canada (Attorney General),
2016 MBQB 159, Edmond J.
    held that judicial recourse was limited to ensuring that the Review Adjudicator
    did not endorse a legal interpretation that was so unreasonable that it
    amounted to a failure to apply the IAP. In
Fontaine v. Canada (Attorney
    General),
2016 BCSC 2218, at para. 183, Brown J.  held that judicial
    recourse was limited to situations where an IAP decision reflects a patent
    disregard for the IAP Models compensation rules, such as a failure to award
    compensation on the basis of the rubric it provides or (at para 211), was so
    exceptionally wrong at to amount to a failure the apply the IAP Model.

Did the administrative judge exceed the limits
    imposed by Schachter?

[55]

In my respectful view, the administrative judge failed to respect the
    limits imposed by
Schachter.
His reasons reveal that he undertook a
    full-blown appeal of the IAP decisions on both law and fact. He engaged in a
    detailed review of the factual findings made by the Adjudicator, and thereby
    assumed the role of the Review Adjudicator. He was not entitled to assume a
    role the IAP specifically assigns to the Review Adjudicator. The Review
    Adjudicator had reviewed the evidence in some considerable detail and explained
    why she found that the Adjudicator made no palpable or overriding error. While
    the administrative judge may have disagreed with her conclusion, disagreement
    with the result reached does not equate to a failure to enforce the IRSSA agreement
    or apply the IAP model, thereby justifying judicial intervention. If it did,
    all IAP decisions would be appealable to the courts, the very thing
Schachter
forbids. The Review Adjudicator conducted the very review of the
    Adjudicators factual findings that is mandated by the IAP by considering
    whether the Adjudicator had made a palpable and overriding error of fact. Both
    the Adjudicators factual findings and the Review Adjudicators review of them
    on the palpable and overriding error standard were entitled to the high level
    of deference imposed by
Schachter
.

[56]

In
Fontaine v. Canada (Attorney General),
2016 BCSC 2218, at
    para. 180, Brown J., who has many years of experience administering the IRSSA,
    explained the rationale for a judicial hands-off approach to IAP fact
    finding: Despite my years of administering the IRSSA, it would be impossible
    for me to know better than those who have been immersed in the IAPThe Courts
    are simply not well-placed to make findings of fact. See also
Fontaine v
    Canada (Attorney General)
, 2016 MBQB 159, at para. 59, confirming the
    exclusive jurisdiction of independent adjudicators to make findings of fact,
    upholding the parties clear intention as reflected in the IRSSA that IAP
    adjudicators, and not judges, should find facts and determine amounts of
    compensation in accordance with the IAP.

[57]

I do not agree with M.F.s suggestion that the passing reference to the
Dunsmuir
standard indicates that the Review Adjudicator failed properly to apply the
Housen
test for palpable and overriding error to the facts found by the Adjudicator.
    The issue was one of fact: when did the abuse occur? There was no danger here
    that reference to the
Dunsmuir
reasonableness standard skewed the
    Review Adjudicators consideration of the palpable and overriding error
    standard. When considered in that context, the Review Adjudicators finding
    that the Adjudicators findings fell within a reasonable range of outcomes was
    consistent with
H.L. v. Canada (Attorney General)
, 2005 SCC 25, [2005]
    1 S.C.R. 401. At para. 57, the Supreme Court, citing the writings of Professor
    Adrian Zuckerman, stated that an appellate court must not intervene in factual
    findings under a palpable and overriding error standard if the appeal court
    cannot conclude that the lower courts inference from the primary facts was
    wrong, in the sense
that it fell outside the range of inferences that a
    reasonable court could make
 (emphasis added).

[58]

I would add that even if the administrative judge had been entitled to
    review the Adjudicators findings, I disagree with his conclusion that they
    reveal palpable and overriding errors. There was, in my view, some evidence to
    support her findings. M.F.s claim stated that the abuse took place over a two
    year period in 1960-62. M.F. testified that the abuse could have commenced earlier
    when he was eight years old, after he had been recruited and trained by Father
    B. as an altar boy, but as M.F.s eighth birthday fell within a month of the
    schools closure, the timing was problematic. M.F.s counsel suggested that the
    abuse may have occurred at the church but in relation to the girls school
    after the boys school had closed. However, M.F. testified that he did not
    recall any IRS students attending the masses at which he served as altar boy. On
    that record, the Adjudicator was entitled to conclude that M.F. had not met the
    burden of proving certain necessary elements of his claim, namely, that the
    abuse had occurred at the Spanish Boys IRS before it closed, or that it arose
    from or was connected with the operation of the school.

[59]

The Re-Review Adjudicator fully considered M.F.s argument that the
    Adjudicator had made improper use of her extra-curial knowledge in relation to
    the age at which boys are confirmed in the Catholic Church. After a thorough
    review of the record, the Re-Review Adjudicator concluded that the
    Adjudicators decision could be supported without reference to her extra-curial
    knowledge. That conclusion was, in my view, supportable. As I have already
    explained, there was considerable evidence beyond this extra-curial knowledge
    from which a fact-finder could reasonably conclude that M.F. had failed to
    establish the necessary elements of his claim as an IRS non-resident. While I
    understand that the administrative judge did not agree with that conclusion,
    the Re-Review Adjudicators decision was not so unreasonable or exceptionally
    wrong that it amounted to a failure to enforce the IRSSA or apply the IAP model.

[60]

The administrative judge appears to have taken the view that if, in his
    judgment, M.F. was entitled to compensation, any other conclusion necessarily
    reflected a failure to apply the IAP model. In my respectful opinion, that
    approach reflects a failure to follow the strictures imposed in
Schachter
on
    recourse to the courts from IAP decisions, and one that, if accepted, could
    significantly undermine  the finality and integrity of the IAP.

Newly discovered evidence

[61]

As Canada is prepared to consent to an order remitting M.F.s claim to
    the Chief Adjudicator for reconsideration in the light of the newly discovered
    documents, it is not necessary for me to consider whether, in the circumstances
    of this case, the newly discovered evidence would amount to an exceptional
    circumstance that would allow for judicial recourse.

Remedy

[62]

It follows from what I have said about the limited jurisdiction of the
    administrative judge that he erred by making his own determination of M.F.s
    claim rather than remitting it to the Chief Adjudicator for re-consideration.
    Nor can his decision to depart from the IAP model for determining the appropriate
    level of compensation and costs be supported. The determination of harm and
    level of compensation requires the specialized knowledge and experience of an
    IAP adjudicator. The compensation rules include an intricate points system. The
    category of harm the administrative judge selected requires a medical
    assessment, and none had been provided. The IAP also requires reasons for the
    assessment of harm and, as noted, the administrative judge gave none, as the
    specified level of harm first appeared in the order he signed. He was, in my
    view, not entitled to depart from the IAP to establish an alternate framework
    whereby he could delegate responsibility to determine compensation or fees to
    other judicial officers.

[63]

I have no doubt that the administrative judge was motivated by a genuine
    and sincere desire to see that justice was done in this particular case, and to
    ensure that M.F. received compensation without further delay. Doing justice,
    however, involves more than going straight to what the judge thinks is the
    right result. Justice requires that procedural rules and jurisdictional
    boundaries designed to protect the rights of all parties be respected. The IRSSA
    provides that claims for compensation are to be resolved not by courts, but by
    trained and specialized adjudicators operating under the carefully designed IAP
    model. In my view, justice in this case can more fully and completely be
    achieved for all parties by respecting the IAP, following the law as laid down
    in
Schacher
, and remitting M.F.s claim for proper reconsideration by
    the Chief Adjudicator under the terms of the IAP, in accordance with the
    agreement of all parties to the IRSSA.

Roles of the Review and Re-Review Adjudicators

[64]

For the sake of completeness and to clarify matters for future cases, I
    add that in my view, the administrative judge erred in his interpretation of
    the IAP review and re-review model. For convenience, I repeat here the relevant
    provisions:

(i)

For cases within the standard or
    complex track, any party may ask the Chief Adjudicator or designate to
    determine whether an adjudicators, or reviewing adjudicators, decision
    properly applied the IAP Model to the facts as found by the adjudicator, and if
    not, to correct the decision, and the Chief Adjudicator or designate may do so.

(ii)

In both the standard and the
    complex issues tracks, Claimants may require that a second adjudicator review a
    decision to determine whether it contains a palpable and overriding error.

(iii)

(iv)

If a palpable and overriding
    error is found, the reviewing adjudicator may substitute their own decision or
    order a new hearing.

[65]

I disagree with the administrative judge that these provisions
    contemplate two levels of review of factual findings on the palpable and
    overriding error standard. The provisions make a distinction between review on
    the ground that the Adjudicator failed to properly apply the IAP model on the
    one hand, and review of factual findings for palpable and overriding error, on
    the other. The power to review on grounds of compliance with the IAP model is
    given to a reviewing Adjudicator, a term that embraces both the first and
    second level of review. However, only a second Adjudicator is specifically
    assigned the responsibility to review an Adjudicator decision for factual errors
    on the palpable and overriding standard. In my view, the term second
    adjudicator can only embrace the first level of review. I add that it would
    constitute a breach of the IAP model should the second adjudicator
    inappropriately fail or refuse to conduct a review for palpable and overriding
    error, and it would be open to a Re-Review Adjudicator to so find. However, it
    would be wrong for a Re-Review Adjudicator to second-guess a Review
    Adjudicators call on factual errors under the guise of upholding the IAP
    model. There may also be cases where misapplication of the IAP framework by the
    Review or Re-Review Adjudicator could involve disturbing factual findings made
    by an Adjudicator. For example, if the Adjudicator used extra-curial knowledge
    as an independent basis for a decision contrary to the framework, correcting
    such a misapplication of the framework will necessarily involve interference
    with the factual findings of the Adjudicator.

[66]

Finally, both the Review Adjudicator and the Re-Review Adjudicator have
    the authority to review prior decisions to ensure that the IAP model has been
    followed. I agree with the Re-Review Adjudicator in the present case that the
    standard of review for that must be correctness: see
Fontaine v. Canada
    (Attorney General),
2016 BCSC 2218, at para. 24. I also agree that the
    task of the Re-Review Adjudicator is to review the decision of the Review
    Adjudicator. However, as the standard of review on the only available ground is
    correctness, the Review Adjudicators decision on that issue does not attract
    deference at the Re-Review stage.

Cross appeal

[67]

Shortly before the oral argument of this appeal, M.F. moved to amend his
    Notice of Cross Appeal. Canada did not consent to the amendment but did not
    strenuously resist. In my view the amendments sought were inconsequential and I
    would accordingly dismiss the motion to amend.

[68]

I agree with the administrative judge that Canada did not breach its
    disclosure obligations. In any event, I fail to see what purpose a declaration
    to that effect would serve at this point.

[69]

The documents at issue were listed as supporting documents in the IRS
    School Narrative and POI Report and copies were available upon request. There
    is no suggestion that Canada acted improperly or was concealing the documents.
    There is no dispute that Father B.s name should not have been redacted in the
    diary, but as no one asked for the document, the improper redaction caused no
    harm.

Disposition

[70]

I would allow the appeal, dismiss the cross-appeal and remit M.F.s
    claim to the Chief Adjudicator for reconsideration. As the administrative judge
    noted, M.F. has waited a long time and gone through many proceedings and his
    claim has not yet been resolved. It is plainly in the interest of justice that
    the reconsideration be completed as soon as possible.

[71]

Canada does not seek costs of the appeal. The more difficult issue is
    whether we should accede to the claims advanced by M.F. and Independent Counsel
    that Canada pay their costs despite the outcome of the appeal. Awarding costs
    to an unsuccessful litigant is permitted by Rule 57.01(2) of the
Rules of
    Civil Procedure
, but doing so is rare. Canada has benefitted from having
    the law clarified on important aspects of the IAP process, a factor that may
    justify an award of costs to an unsuccessful party:
Schachter v. Canada,
[1992] 2 S.C.R. 679;
B. (R.) v. Childrens Aid Society of Metropolitan
    Toronto
, [1995] 1 S.C.R. 315. The fees of lawyers representing IAP
    claimants are limited and relatively modest. This appeal raised and clarified
    important legal issues that transcended the interests of M.F. This court
    benefited from having the submissions of M.F. and Independent Counsel in
    resolving those issues. It seems to me that in these circumstances, it would be
    in keeping with the spirit of the IRSSA and the interests of justice to require
    Canada to pay $50,000 inclusive of disbursements and taxes towards M.F.s costs
    here and below. I would also award costs to Independent Counsel, fixed at
    $10,000, inclusive of disbursements and taxes.

Released: January 16, 2017

Robert J. Sharpe J.A.

I agree G.R. Strathy
    C.J.O.

I agree Alexandra
    Hoy A.C.J.O.


COURT OF APPEAL FOR ONTARIO

CITATION: (Re) Girard, 2017 ONCA 11

DATE: 20170106

DOCKET: C61056

Juriansz, Watt and Roberts JJ.A.

IN THE MATTER OF:  Robin Girard

AN APPEAL UNDER PART XX.1 OF THE
CODE

Robin Girard, in person

Howard L. Krongold,
amicus curiae

Kevin Rawluk, for the Attorney General of Ontario

Janice Blackburn, for the Person in Charge of North Bay
    Regional Health Centre

Heard: December 20, 2016

On appeal against the disposition of the Ontario Review
    Board dated July 12, 2016.

APPEAL BOOK
    ENDORSEMENT

[1]

The parties all recognize that this appeal must be dismissed as moot.


COURT OF APPEAL FOR ONTARIO

CITATION: Greenberg v. Nowack, 2017 ONCA 54

DATE: 20170120

DOCKET: C61756

Strathy C.J.O., LaForme and van Rensburg JJ.A.

BETWEEN

H. Joseph Greenberg and Pepi Greenberg

Plaintiffs/Appellants

and

Steven J. Nowack

Defendant/Respondent

Martin Greenglass, for the appellants

Steven J. Nowack, acting in person

Heard: October 14, 2016

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated February 1, 2016, with reasons reported at
    2016 ONSC 808.

COSTS ENDORSEMENT

[1]

On December 16, 2016, this court allowed the
    appeal, with costs of the motion in the court below and of the appeal to the
    successful appellants on a partial indemnity basis. The court invited written
    submissions if the parties were unable to agree on costs. Costs submissions
    were received from the appellants, but not from the respondent, within the
    deadline imposed. We have fixed the appellants costs of the appeal and the
    motion in the sum of $20,000.00, inclusive of disbursements and HST.

G.R. Strathy C.J.O.

H.S.
    LaForme J.A.

K. van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Harper v. Cox, 2017 ONCA 79

DATE: 20170127

DOCKET: C62363

Doherty, Brown and Miller JJ.A.

BETWEEN

Jane Harper

Client (Respondent)

and

John G. Cox

Solicitor (Appellant)

Gary S. Joseph and Kristy A. Maurina, for the appellant

Robert G. Schipper, for the respondent

Heard and released orally: January 25, 2017

On appeal from the order of Justice Jennifer Woollcombe of
    the Superior Court of Justice, dated June 2, 2016, with reasons reported at 2016
    ONSC 3567.

ENDORSEMENT

[1]

The appellant solicitor advances two grounds
    of appeal.

[2]

First, the solicitor submits the motion judge
    erred in characterizing the first 37 of the 38 accounts as interim accounts that
    fell within the limitation period for their assessment. The solicitor contends
    each account was a final one. We do not accept this submission. We see no error
    with the motion judges conclusion that the accounts were interim: there was
    nothing in the retainer agreement that made clear the accounts rendered during
    the retainer would each be final accounts; each account was marked as an
    interim account; and the transmittal letters to the client described them as
    interim. Based on her finding that the 37 accounts were interim, the motion
    judges conclusion in para. 3 of her reasons is unassailable. The fact the
    client had paid the interim accounts is irrelevant.

[3]

Second, the solicitor contends the motion
    judge erred in refusing the solicitors request for production of (i) all the
    clients communications with another lawyer who worked on aspects of her
    matrimonial litigation and (ii) the clients tax returns and notices of
    assessment for the years in which the solicitor rendered his accounts. The
    motion judge held those documents were not relevant to the issues on the
    assessment. We see no basis upon which to interfere with that decision. The
    solicitor has not demonstrated the motion judge committed any error in
    principle or misapprehended the evidence in so exercising her discretion. If,
    during the assessment, an issue arises about the work performed by the other
    counsel, that is a matter for the assessment officer to deal with.

[4]

The appeal is dismissed.

[5]

The respondent is entitled to her partial
    indemnity costs fixed in the amount of $16,000, inclusive of HST and
    disbursements.

"Doherty J.A."

"David Brown J.A."

"B.W. Miller J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Hirchberg v. Branson Drug Store, 2017 ONCA 62

DATE: 20170125

DOCKET: C62626

Cronk, van Rensburg and Pardu JJ.A

BETWEEN

Terry Hirchberg

Self-Represented Plaintiff
(Appellant)

and

The Branson Drug Store/North York General
    Hospital and Odette Cancer Centre Pharmacy/Sunnybrook Health Sciences Centre
    and MD Mary Doherty - Odette Cancer Centre and MD Todd Mainprize - Sunnybrook
    Hospital and MD Ken Peckham - Sunnybrook Hospital and MD Michelle Hart - Baycrest
    Hospital

Defendants
(Respondents)

Terry Hirchberg, acting in person

Chris Hubbard and Alexandre Blanchard, for the
    respondents Dr. Mary Doherty, Dr. Todd Mainprize, Dr. Ken Peckham and Dr.
    Michelle Hart

Logan Crowell, for the respondents North York General
    Hospital and Sunnybrook Health Sciences Centre

Heard: January 20, 2017

On appeal from the judgment of Justice Wendy M. Matheson
    of the Superior Court of Justice, dated August 2, 2016.

ENDORSEMENT

[1]

The appellant appeals the summary dismissal of a medical malpractice
    action. The action was brought as a result of the death of the appellants
    common law spouse, Ms. Dubins, who passed away after she was diagnosed with
    terminal brain cancer. At the core of the appellants claim is a concern about
    Ms. Dubins treatment with the drug dexamethasone, commonly used to reduce
    cerebral swelling associated with brain tumours. In particular, the appellant
    alleges that the drug was terminated without tapering off, and that, having
    regard to the various risks associated with the drug, informed consent to its
    use was not obtained.

[2]

Summary judgment motions were brought after a significant amount of
    documentary and oral discovery had taken place. The moving parties relied on
    affidavits of some of the defendant treating physicians as well as three expert
    reports to the effect that the defendant physicians met the requisite standard
    of care and that Ms. Dubinss death was not caused by any of the alleged breaches
    of the standard of care, but was the result of her brain cancer. In response to
    the summary judgment motions the appellant delivered two expert witness
    declarations of Dr. Mark Levin, answering certain questions about the drug
    dexamethasone.

[3]

The action was dismissed after the motion judge concluded that there was
    no genuine issue requiring a trial as against the respondent physicians or
    institutions.

[4]

The appellant raises a number of issues that can be grouped into three
    main grounds of appeal.

[5]

First, the appellant contends that the motion judge erred in her
    treatment of his expert evidence. The appellant says that the motion judge
    struck out Dr. Levins declarations, without a motion to strike, and
    that he was therefore deprived of due process. He asserts that the motion judge
    ought to have permitted him to have obtained a further expert opinion, as the
    time for delivery of expert reports under the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, had not expired. Further, he says that the motion judge
    erred in failing to consider evidence in the form of a declaration with respect
    to what occurred in another case.

[6]

We do not give effect to this ground of appeal. In this complex medical
    malpractice case, it was incumbent on the plaintiff to provide expert opinions
    on standard of care and causation. Contrary to the appellants assertions, the
    motion judge did not strike Dr. Levins declarations. Rather, she considered
    whether Dr. Levin was qualified to provide an expert opinion on standard of
    care and causation, and she considered the content of his opinions. The motion
    judge did not err in her conclusion that Dr. Levin was not qualified to provide
    such opinions, and further that his two declarations (that consisted of answers
    to questions about the drug in question), did not address the particular
    circumstances of the case and did not speak to the issues of standard of care
    or causation. Similarly, the other declaration, about what happened in another
    case, was clearly not an expert opinion and could have no bearing on the issues
    of standard of care and causation in the appellants action.

[7]

As for the contention that the time had not expired for the delivery of
    expert reports, the obligation on the appellant, in responding to a summary
    judgment motion, was to put forward all the necessary evidence to establish
    that there was a genuine issue requiring a trial. This means that the motion
    judge was entitled to assume that all the evidence he was relying on to oppose
    the motion was before the court. The appellant did not seek an adjournment or
    additional time to obtain a further expert opinion; consequently, there was no
    basis for the motion judge to dismiss or adjourn the motions so that the
    appellant could obtain another medical report.

[8]

Second, the appellant contends that the motion judge erred in her
    conclusions about informed consent. He asserts that she ignored the evidence he
    put forward as to the risks of the subject drug, and contends that there was no
    evidence that all such risks had been communicated in Ms. Dubinss case.

[9]

Again, there was no error of law or principle in the motion judges
    findings on this issue. The evidence was that Ms. Dubins and her four powers of
    attorney for personal care were advised of and understood the material risks of
    treatment, including the risks of the subject drug, and provided their fully
    informed consent. Contrary to the appellants submissions during oral argument,
    the transcript of the cross-examination of Ms. Dubinss son, who was one of her
    powers of attorney, does not undercut this conclusion, nor was his evidence on
    this point hearsay. Accordingly, there was no conflict on the evidence on this
    issue that would require a trial.

[10]

Third, the appellant says that other issues and causes of action raised
    by his statement of claim (described at para. 26 of his factum) were not
    considered by the motion judge, and ought not to have been dismissed summarily.
    We disagree. The function of the motion judge in dealing with a summary
    judgment motion is to consider the evidence, and not simply the pleadings. What
    was relied on as expert evidence by the appellant was limited to concerns about
    the risks and use of the drug dexamethasone, and although other matters may
    have been pleaded, there was no expert evidence to address such issues.

[11]

In the end, the appellant led no expert opinion evidence on the
    respondents summary judgment motions to establish a breach of the standard of
    care by any of the respondents or causation. By contrast, the respondents led
    expert evidence to establish that the respective standards of care were met,
    and to negate causation. Further, we see no procedural unfairness in the
    conduct of the hearing, nor any breach of the appellants constitutional
    rights. In these circumstances the motion judge was entirely justified in
    granting a summary dismissal of the action.

[12]

The appeal is therefore dismissed. The appellant shall pay costs to the
    physician respondents in the sum of $5,000 and to the hospital respondents in
    the sum of $4,000, both amounts inclusive of disbursements and applicable
    taxes.

E.A. Cronk J.A.

K. van Rensburg J.A.

G. Pardu J.A.