COURT OF APPEAL FOR ONTARIO

CITATION: Foulidis v. Ford, 2014 ONCA 530

DATE: 20140708

DOCKET: C56537

MacPherson, Watt and Benotto JJ.A.

BETWEEN

George Foulidis

Plaintiff (Appellant)

and

Robert Ford

Defendant (Respondent)

Paul J. Pape and Andrea M. Bolieiro, for the appellant

Gavin J. Tighe and Stephen Thiele, for the respondent

Heard: May 20, 2014

On appeal from the judgment of Justice John A. B.
    MacDonald of the Superior Court of Justice, dated December 27, 2012, with
    reasons reported at 2013 ONSC 7189, 114 O.R. (3d) 58, and the costs order dated
    June 10, 2013, with reasons reported at 2013 ONSC 2787.

MacPherson
    J.A.:

A.

INTRODUCTION

[1]

During a municipal election campaign in 2010, Councillor Robert Ford, a
    candidate for mayor of the City of Toronto, was interviewed by the editorial
    board of the Toronto Sun newspaper.  In the interview, Mr. Ford made critical
    comments about a City contract with a restaurant on City property.

[2]

George Foulidis was involved in the operation of the restaurant.  He
    sued Mr. Ford for libel.

[3]

After a six-day trial, J.A.B. Macdonald J. of the Superior Court of
    Justice dismissed Mr. Foulidis action.

[4]

Mr. Foulidis appeals.  His appeal raises two main issues: was Mr. Foulidis
    the target of Mr. Fords remarks, and were the remarks defamatory?

B.

FACTS

(1)

The parties and events

[5]

In the summer of 2010, Mr. Ford had been a city councillor for Ward 2,
    Etobicoke-North, for almost 10 years.  He was a candidate for the position of
    Mayor.  His platform called for greater accountability and transparency at City
    Hall and fewer in-camera sessions and back-room deals.

[6]

The corporation Tuggs Incorporated (Tuggs) owned and operated the
    Boardwalk Pub and concessions in the Beaches area of Toronto.  The restaurant
    was on City property.  It was built and operated pursuant to a 20 year lease
    with the City commencing in 1987.

[7]

George Foulidis was not an officer or director of Tuggs.  His brother
    Konstantinos was the President, Secretary and a director of Tuggs from 1993 to at
    least 2011.  However, George Foulidis was involved in the operation of the
    restaurant.

[8]

George Foulidis took the lead in attempting to negotiate an extension of
    the lease beyond 2007.  He dealt with the relevant City authorities from 2006
    to 2010.

[9]

On May 12, 2010, City Council voted to approve the Tuggs lease for
    another 20 years.  The contract that flowed from this vote was sole-sourced and
    untendered.  On June 2, 2010, Mr. Foulidis signed the new lease on behalf of
    Tuggs.

[10]

The
    Tuggs deal with the City was controversial because of its sole-sourced,
    untendered nature.  Through the late spring of 2010, the deal attracted a
    substantial amount of media attention.

[11]

On
    August 10, 2010, Mr. Ford, and his brother Doug Ford, met with the editorial
    board of the Toronto Sun to discuss his campaign.  The meeting lasted about 75
    minutes.  A 30 page transcript was prepared.  Mr. Ford was asked about the
    Tuggs-City deal.  This part of the interview covers less than one page of the
    transcript.  The relevant parts are:

Q:      Rob, you I think I spoke with you yesterday,
    there are a number of things being rammed through at the next City Council
    meeting, um, you know, you know Ive written about the Foulidis contract.
    There are a number of other things leasing deals which Ill be writing about.
    All kinds of um, things.  Um, first of all how do you feel about that and
    second of all, as Mayor, I mean is it possible for you to undo any of this
    stuff, after the fact?

ROB FORD: Absolutely.  Absolutely it is. Let me ask
    you one question, how did David Miller get elected?

Q:      On a bridge.  On a bridge.

ROB FORD: Thats exactly how he got it.  The $2
    bridge that ended up costing millions.  And so, he said that you can undo
    anything thats been done.

Q:      The Foulidis deal?

ROB FORD: Wha On the Tuggs?

Q:      Yes.

ROB FORD: Absolutely.  Its in camera, obviously, its
    confidential, I wish that you guys knew what happened in camera, which a lot of
    you do, obviously, but these in camera meetings, theres more corruption and
    skullduggery going on in there than Ive ever seen in my life.  Andand if
    Tuggs isnt, I dont know what is.  And I cant accuse anyone, or I cant
    pinpoint it, but why do we have to go in camera on a Tuggs deal?

DOUG FORD:       There is a culture of corruption
    down there and were going to put an end to it.

ROB FORD: So, I wish, I wish I could tell you the
    stuff thats happened behind closed doors.  The things the media does not know.

ROB FORD: So, a lot of these issues sorry Andy  A
    lot of these issues dont have to go in camera.  And if that Tuggs deal doesnt
    stink to high heaven II.

DOUG FORD:       How about a 20 year untendered bid
    at a lower cost and then you find out the owners contributing to the guys who
    are voting for him.

ROB FORD: Thats illegal.  You call the police to
    investigate that.

[12]

Two
    days after the interview, the Toronto Sun published a news story relating to it
    written by reporter Jonathan Jenkins:

Contract for Beaches eatery
    stinks to high heaven

JONATHAN JENKINS
City
    Hall Bureau

City councils decision to award
    an untendered, 20-year contract to Boardwalk Pub operator Tuggs Inc. smacks of
    civic corruption, Councillor Rob Ford says.

If Tuggs isnt, then I
    dont know what is, Ford told the
Toronto Suns
editorial board.

I cant accuse anyone
    or I cant pinpoint it, but why do we have to go in-camera on the Tuggs deal?

These
    in-camera meetings, theres more corruption and skullduggery going on in there
    than Ive ever seen in my life.

Tuggs owner
    George Foulidis did not respond to requests for comment from the
Sun
.

Sandra Bussin,
    the local councillor who has defended Tuggs in the past recused herself form
    the most recent vote on the contract in June, also declined to comment.

Both were provided with a
    transcript of Fords remarks by email.

Bussin
    received more than $12,000 from Foulidis and people associated with him in
    campaign contributions in 2003 and 06.

City staff had
    recommended putting the food and drink concession at the eastern Beaches up for
    public tender after Tuggs first contract expired but councillors opted instead
    to negotiate with the firm.

A belated
    attempt to re-open the deal at councils June meeting failed to get the
    necessary two-thirds support.

Its
    confidential and I wish you guys knew what happened in-camera, Ford said.  I
    wish I could tell you the stuff that happens behind closed doors.

He said the
    Tuggs deal stinks to high heaven and if he is elected mayor on Oct. 25  he
    told the
Sun
hes now leading the race with 35% support, according to
    his campaign polls  he might try to break the contract.

You can undo
    anything thats been done, Ford said.  If its going to save (money) in the
    long run, then Im going to do it.  If theres a short-term cost for a
    long-term gain, then thats whats going to happen.

Doug Ford, Robs brother and
    campaign manager who is also running for council in Ward 2, said the system at
    City Hall is broken.

Theres a
    culture of corruption down there and were going to put an end to it, Doug
    said.

If this was
    Chicago or anywhere in the States, theyd be in front of a grand jury and
    theyd be indicted and theyd be in jail right now.

He said its unthinkable that a private business would agree to a
    10-year lease, let alone a 20-year lease, for such a business.

[13]

On
    October 6, 2010, Mr. Foulidis issued a Statement of Claim in which the
    principal claim was that Mr. Fords words were false and defamatory.

(2)

The trial judgment

[14]

The
    trial judge dismissed the action.  He said that Mr. Foulidis needed to prove
    four things on the balance of probability to prove libel in this case: (1) Mr.
    Ford spoke the words in issue; (2) Mr. Ford published the words in issue to one
    or more third parties; (3) the words in issue referred to Mr. Foulidis; and (4)
    the words in issue were defamatory of Mr. Foulidis.

[15]

The
    trial judge recorded that the first two propositions were not in issue.  Mr.
    Ford accepted the accuracy of the words attributed to him and he gave the
    interview to the Toronto Sun in the context of his mayoral campaign, knowing
    that his words would be published.

[16]

The
    trial judge held that Mr. Foulidis had not proved the third and fourth
    propositions.

[17]

With
    respect to the third proposition, the trial judge applied the relevant two-part
    test: (1) were Mr. Fords words capable of referring to Mr. Foulidis; and (2)
    if yes, would Mr. Fords words lead reasonable people to conclude that they
    did in fact refer to Mr. Foulidis: see
Sykes v. Fraser
, [1974] S.C.R.
    526, and
Knupffer v. London Express Newspaper Ltd.
, [1944] A.C. 116
    (H.L.).  He answered Yes to the first question and No to the second
    question.

[18]

With
    respect to the fourth proposition, the trial judge concluded that Mr. Fords
    words were not defamatory.  He reasoned, at paras. 38 and 44:

The reasonable person, having read fairly all of the
    defendants assertions in the article in issue, both quoted statements and
    accurate paraphrasing, likely would have understood him to have said:

(1)

I sense or suspect corruption in
    Tuggs Inc.s deal with the City

(2)

However, Im unable to say that
    anyone did anything wrong

(3)

My sense or suspicion of
    corruption is based on the Tuggs deal having been considered by the City in
    camera

(4)

In camera meetings are where more
    corruption and skullduggery goes on than Ive ever seen

(5)

However, I dont know what
    actually took place.

In my opinion, the reasonable reader would have concluded that
    the statements in issue, read as a whole and understood as aforesaid, did not
    defame the plaintiff, even if is assumed that the statements were about him
    The words in issue leave no doubt about their meaning, when read reasonably and
    in their context.  The defendant voiced only a suspicion of corruption which
    he, immediately and in clear terms, admitted was without factual foundation or
    insufficient for him to be able to say that anyone had done anything wrong.  In
    my opinion, he clearly and explicitly prevents any defamatory meaning being
    perceived in his suspicion of corruption.

[19]

Having
    concluded that Mr. Foulidis was not the target of Mr. Fords words and that the
    words were not defamatory, the trial judge declined to address the defences of
    qualified privilege, fair comment, and responsible communication on a matter of
    public interest, as well as the issue of express malice.  He did say that if he
    had found that Mr. Fords words defamed Mr. Foulidis, he would have assessed
    general damages at $20,000.

[20]

In
    a costs order dated June 10, 2013, the trial judge awarded costs to Mr. Ford
    and Bruce Baker
[1]
jointly on a partial indemnity basis fixed in the amount of $135,750, plus
    disbursements of $9,095.62, plus HST where applicable.

[21]

Mr.
    Foulidis appeals both the trial judgment and the costs order.

C.

Issues

[22]

The
    appellant raises four issues
[2]
:

(1)

Did the trial judge err by
    concluding that Mr. Fords words did not refer to Mr. Foulidis?

(2)

Did the trial judge err in
    concluding that Mr. Fords words were not defamatory?

(3)

Are any defences available to Mr.
    Ford?

(4)

Did the trial judge err in
    awarding costs to Mr. Ford?

D.

Analysis

(1)

The target of Mr. Fords words

[23]

The
    appellant contends that the trial judge erred by concluding that Mr. Fords
    words during the interview with the Toronto Sun did not refer to Mr. Foulidis.
    Although Mr. Fords words referred to the Tuggs deal, and not to Mr.
    Foulidis, the appellant contends that the reasonable reader of the Toronto Sun
    article would have known that corruption behind the Tuggs deal really meant
    corruption by the person negotiating the Tuggs deal, namely, Mr. Foulidis.

[24]

For
    several reasons, I do not accept this submission.

[25]

First,
    it is important to underline the fact that in the brief portion of the
    interview giving rise to this defamation action, Mr. Ford never uses Mr.
    Foulidis name.  He refers to Tuggs or the Tuggs deal four times, but never
    to George Foulidis.  Yet the plaintiff, the only plaintiff, is George Foulidis,
    not Tuggs Inc.

[26]

Second,
    the appellants attempt to interpret Mr. Fords words as linking Tuggs to the
    appellant is tenuous.  The transcript reads:

Q. The Foulidis deal?

ROB FORD: Wha On the Tuggs?

That is the entire extent of the alleged link.  After
    this answer, Mr. Ford refers only to Tuggs and the Tuggs deal.  In my view, a
    fair inference is that Mr. Ford regards the target of his critical comments as
    the entity known as Tuggs, not Mr. Foulidis personally.

[27]

Third,
    the trial judge accepted Mr. Fords evidence that he barely recognized Mr.
    Foulidis name when asked about the Foulidis deal by the Sun, and that he did
    not know him personally.  Having heard the testimony of Mr. Ford and Mr.
    Foulidis, about whom the trial judge said I am left with serious doubt about
    the credibility and reliability of his testimony, the trial judge was entitled
    to reach this conclusion.

[28]

Fourth,
    although Mr. Ford used strong language in his criticism of the Tuggs deal, the
    focus of his comments was on the role of City Council in approving the deal.
    For example, his use of the words corruption and skullduggery was in the
    context of his complaint about
in camera
meetings at City Council.

[29]

Fifth,
    Mr. Ford used strong limiting language  I cant accuse anyone  that
    suggests, again, that his focus was on the City Council process, not Mr.
    Foulidis.

[30]

Sixth,
    the trial judge concluded that Mr. Foulidis has failed to prove his assertion
    that he is either the face of Tuggs, or its alter ego.  On the evidence, I find
    that he has failed to prove that he was the person, and was seen as the person
    with management control of Tuggs Inc.  On the basis of the evidence reviewed
    by the trial judge, including Mr. Foulidis testimony and various Tuggs
    corporate documents, this conclusion was certainly open to the trial judge; it
    supports the respondents position that Mr. Foulidis was not the target of Mr.
    Fords words.

[31]

Seventh,
    the link between Tuggs and Mr. Foulidis was drawn explicitly by Jonathan
    Jenkins, the reporter, in his story in the Toronto Sun.

[32]

In
    the end, we are left with a lone and puzzling plaintiff, George Foulidis.
    Where is Tuggs Inc.?  We are also left with a lone and puzzling defendant,
    Robert Ford.  Where is the Toronto Sun or even Doug Ford who said in the same
    interview: How about a 20 year untendered bid at a lower cost and then you
    find out the owners contributing to the guys who are voting for him?  Viewed
    in context, it cannot be said that the trial judge erred by concluding that Mr.
    Foulidis was not the target of Mr. Fords words.

(2)

Mr. Fords words  defamatory?

[33]

The
    appellant submits that the trial judge erred by concluding that Mr. Fords
    words were not defamatory.  The appellant asserts that the trial judge did not
    assess those words from the perspective of the reasonable reader.  Instead, he
    focussed on a single phrase with vague meaning  I cant accuse anyone, or I
    cant pinpoint it  and wrongly concluded that it neutralized the overall
    defamatory imprint of the words taken as a whole.  In a vivid summary of his
    position, the appellant asserts that these words have as much neutralizing
    effect on the rest of Fords words as lipstick does on a pig.

[34]

I
    begin with some basic propositions.

[35]

First,
    words are defamatory if their publication tends to lower a person in the
    estimation of right-thinking members of society, or exposes a person to hatred,
    contempt or ridicule: see
Botiuk v. Toronto Free Press Publications Ltd.
,
    [1995] 3 S.C.R. 3, at para. 62.

[36]

Second,
    whether words are defamatory will be assessed on the basis of their ordinary
    meaning, taking into account the surrounding circumstances, including the
    occasion of speaking and the relationship between the parties: see Raymond E.
    Brown,
Brown on Defamation
, 2d. ed., looseleaf (Toronto: Carswell,
    2010), at para. 5.3(1)(a).

[37]

Third,
    the decision of the fact finder as to whether impugned words have a defamatory
    meaning is entitled to substantial deference on appellate review: see
Simao
    v. Hankook Ilbo et al.
, 2012 ONCA 175, 348 D.L.R. (4th) 472, at para. 22.

[38]

Against
    this backdrop, I see no basis for interfering with the trial judges conclusion
    that Mr. Fords words were not defamatory of Mr. Foulidis.  The trial judge
    carefully and comprehensively examined Mr. Fords actual words, their ordinary
    meaning, and the context in which they were delivered.  He concluded that Mr.
    Ford voiced only a suspicion of corruption, that the focus of his words was
    on the decision-making process at City Council and that the word corruption
    was linked to Councils
in camera
meetings, and, importantly, that Mr.
    Ford explicitly disavowed accusing anyone of corruption, thereby clearly and
    explicitly prevent[ing] any defamatory meaning being perceived in his suspicion
    of corruption.  In my view, this analysis and conclusion were entirely open to
    the trial judge.

[39]

In
    the end, it deserves to be noted that two people spoke in the brief portion of
    the Toronto Sun interview dedicated to City Councils approval of a
    sole-sourced, untendered 20 year renewal of a lease with Tuggs.

[40]

Robert
    Ford spoke principally about the City Council process, criticized it sharply,
    did not mention Mr. Foulidis or use language suggestive of him, and explicitly
    stated that he was not accusing anyone of corruption.

[41]

Doug
    Ford said: how about a 20 year untendered bid at a lower cost and then you
    find out the owners contributing to the guys who are voting for him.

[42]

In
    my view, there is a world of difference between these two sets of words.  The
    appellant sued Robert Ford; he did not sue Doug Ford.  He lost his lawsuit, in
    part because the trial judge found that Robert Fords words were not defamatory
    of him.  I see no basis for interfering with the trial judges decision in this
    regard.

(3)

Defences and Malice

[43]

In
    light of my conclusions on the first two issues, it is not necessary to address
    the issues of possible defences and malice.

(4)

Costs

[44]

The
    appellant seeks leave to appeal the trial judges costs award in favour of the
    respondent.  The appellant contends that even if the appeal is dismissed, this
    court should find that Mr. Fords words were abusive and insulting and should
    express its disapproval by denying Mr. Ford his costs of the trial.

[45]

I
    am not persuaded by this submission.  Mr. Foulidis was not the target of Mr.
    Fords words.  Mr. Fords words were not abusive or insulting towards Mr.
    Foulidis.  There is nothing to disapprove.

E.

Disposition

[46]

I
    would dismiss the appeal.  The respondents are entitled to their costs of the
    appeal which I would fix, in accordance with counsels agreement, at $27,651
    for Mr. Ford and Mr. Baker in the companion appeal jointly.

Released: July 8, 2014 (J.C.M.)

J.C. MacPherson J.A.

I agree David Watt J.A.

I agree M.L. Benotto J.A.

[1]
Mr. Baker is the defendant in a companion defamation action,
Foulidis v. Baker
, 2012 ONSC 7295, and
    the respondent in a companion appeal, with reasons released concurrently today.

[2]
Three weeks after the appeal hearing, on June 10, 2014, counsel for the respondents
    wrote a brief letter to the court submitting that this appeal and the companion
Foulidis v. Baker
appeal should be
    dismissed because they should have been brought in the Divisional Court, not in
    this court.  The appellant disagreed and submitted a factum in support of this
    courts jurisdiction on June 12, 2014.  The respondents made reply submissions,
    affirming their previous position, on June 16, 2014.  I agree with the
    appellants analysis on this issue.  This court has jurisdiction to hear both
    appeals, this appeal as of right, and
Foulidis
    v. Baker
by virtue of s. 6(2) of the
Courts of Justice Act
, R.S.O. 1990, c. C.
    43.


COURT OF APPEAL FOR ONTARIO

CITATION: Fraser v. 4358376
    Canada Inc., 2014 ONCA 553

DATE: 20140722

DOCKET: C58321

Sharpe, Simmons and Benotto JJ.A.

BETWEEN

John Fraser

Plaintiff/Respondent

and

4358376 Canada Inc. Operating as Itravel 2000 and
    Travelzest PLC, The Cruise Professionals Limited,
Jonathan Carroll and
    Adrian Cobbold

Defendants/Appellants

Jeffrey E. Goodman and Kathryn J. Bird, for the
    appellants

Nadine Cote, for the respondent

Heard: June 26, 2014

On appeal from the order of Justice James M. Spence of
    the Superior Court of Justice dated January 9, 2014.

By the Court:

[1]

The central issue on this appeal is whether the appellants, the
    individual defendants, attorned to the jurisdiction by taking certain
    procedural steps in conjunction with their motion to stay or dismiss the action
    on the ground that the Ontario courts have no jurisdiction.

[2]

The respondent plaintiff originally brought this action for wrongful
    dismissal against the corporate defendants. Those defendants moved for an order
    staying or dismissing the action on the ground that the respondents claim was
    governed by a jurisdiction clause in his employment contract that required any
    disputes to be litigated in England.

[3]

In the face of the jurisdiction motion, but before it had been set down
    for hearing, the respondent moved for and obtained an order adding the appellants
    as parties. The respondent alleged intentional interference with his economic
    relations, inducement of breach of contract and related agreements and asserted
    statutory claims arising from the personal appellants positions as senior
    officers and directors of the corporate defendants. The appellants were served
    with that motion but they advised the respondent that given their position as
    to jurisdiction, they would not appear.

[4]

After the appellants were added as defendants, the corporate defendants
    were placed into receivership pursuant to bankruptcy legislation in Ontario, in
    the case of itravel2000 and The Cruise Professionals Limited, and in the United
    Kingdom, in the case of Travelzest plc. As a result of the bankruptcy
    proceedings, the actions against the corporate defendants were stayed.

[5]

Following the bankruptcy proceedings in Ontario and the United Kingdom,
    the individual defendants filed an amended notice of motion to bring the
    jurisdictional issue before the court. The amended notice of motion asked for a
    temporary stay of the actions against the personal defendants until the stay of
    the actions against the corporate defendants had been lifted or until the
    proceedings against those defendants had been dismissed or otherwise finally
    resolved. The amended notice of motion also asked for an order striking out or
    expunging the fresh as amended statement of claim on the ground that the court
    was required to deal with the issue of jurisdiction on the basis of the
    pleadings as they existed at the time the jurisdiction motion was first
    brought.

[6]

The basis for the appellants request for a temporary stay pending
    resolution of the bankruptcy proceedings was that the claims against the
    individual defendants were inextricably tied to the claim of wrongful dismissal
    against the corporate defendants and that the jurisdictional issue was entirely
    predicated upon the terms of the respondents employment contract with the
    corporate entities. The appellants took the position that so long as the claims
    continued against the corporate defendants, the issue of jurisdiction could not
    be fairly resolved without their presence. The bankruptcy stays made that
    impossible.

[7]

The motion judge ruled that by asking for the temporary stay pending the
    lifting of the bankruptcy stay or dismissal of the claims against the corporate
    defendants, the individual defendants had attorned to the jurisdiction of the
    court. He further ruled that as his ruling on attornment resolved the issue of
    jurisdiction the request for a temporary stay was rendered moot. He dismissed
    the request to strike the amended statement of claim and he awarded costs of
    the one day motion on a substantial indemnity basis in the amount of $83,163.

[8]

The appellants appeal the declaration that they had attorned to the
    jurisdiction and seek leave to appeal the costs order. The respondent takes the
    position that the appellants have attorned but also argues that if they have
    not, the motion for a temporary stay should be dismissed.

[9]

We agree with the appellants that the motion judge erred in law by
    concluding that the steps they took amounted to attornment. In our view, all
    the steps taken by the appellants are more properly characterized as procedural
    steps taken within the confines of the jurisdiction motion.

[10]

By
    asking for a temporary stay, the appellants were asserting their position that
    proper resolution of their jurisdictional motion required that the corporate
    defendants be present before the court.  The temporary stay they requested was
    for that specific and limited purpose.

[11]

In
    our view, a party who challenges the jurisdiction of the court is entitled to
    insist upon a proper procedural foundation for the determination of the
    challenge. Provided that the partys steps request no more than that, they do
    not amount to attornment.

[12]

As
    the motion judge decided that the appellants had attorned by seeking a temporary
    stay, he did not deal with the argument that by asking the court to strike out
    the amended statement of claim the appellants had attorned. He dealt with that
    request on the merits and dismissed it.

[13]

We
    find it difficult to understand how the appellants could ask the court to
    strike the amended statement of claim on the basis that the amendment had
    followed the original jurisdiction motion since it was only through the
    amendment that they became parties with an interest in proceeding with the
    motion. We agree with the motion judges reasons dismissing that motion on its merits.
    On the issue of attornment, however, we conclude that the motion to strike the
    statement of claim, although ill-founded, was entirely based and dependent upon
    the appellants contention that the courts of Ontario had no jurisdiction to
    entertain the claim. Like the motion for the temporary stay, the motion to
    strike the claim was nothing more than a request to have the jurisdictional
    motion proceed on a proper procedural foundation.

[14]

We
    recognize that decisions of this and other courts have taken a broad view of
    the kind of steps taken in a proceeding that amount to attornment. See, for
    example:
Wolfe v. Pickar
, 2011
    ONCA 347,
332 D.L.R. (4
th
) 157;
Mid-Ohio Imported
    Car C. v. Tri-K Investments Ltd.
(1995), 129 D.L.R. (4th) 181 (B.C.C.A.).
    However, the test expressed in those cases is whether the party appears in
    court and
goes beyond challenging the jurisdiction
of
    the court based on jurisdiction
simpliciter
and
forum non

conveniens
:
Wolfe v. Pickar
, at para. 44 (emphasis added).

[15]

We
    know of no authority for the proposition that procedural steps brought within
    the confines of a jurisdiction motion dealing solely with the mechanics of
    having that motion heard in a proper procedural setting amount to attornment.
    In our view that is all that occurred in this case. The appellants did not go
    beyond challenging the jurisdiction and the motion judge erred in law in
    concluding otherwise.

[16]

This
    brings us to the respondents request that if we find there has been no
    attornment, we deal with motion for the temporary stay on its merits. It is
    entirely regrettable that this action has become mired in a dispute over
    jurisdiction involving parties that almost certainly will never be brought
    before the court. It is our view that the interests of justice would be served
    by dealing with the motion for a temporary stay pursuant to the power conferred
    by the
Courts of Justice Act
, R.S.O., c. C.43, s. 134(1).

[17]

In
    our view, the appellants request for a temporary stay should be dismissed. As
    matters stand, the action against the corporate defendants is stayed by virtue
    of the bankruptcy proceedings. There is nothing in the record to suggest that
    there is any realistic prospect that the bankruptcy stay will be lifted or that
    the claims against the corporate defendants will ever proceed. We see no reason
    why what appears to be the purely theoretical possibility of the claims
    proceeding against the corporate defendants should preclude the respondent from
    proceeding with his claims against the appellants.

[18]

We
    note that counsel for the appellants was also counsel for the corporate
    defendants before the bankruptcy and if so advised, it remains open to him to
    move to have the bankruptcy stays lifted.

[19]

We
    express no view as to merits of the appellants position as to jurisdiction
    apart from holding that the procedural steps they have taken do not amount to
    attornment to the Ontario jurisdiction.

[20]

Accordingly
    we allow the appeal and set aside the order of the motion judge. As the costs
    order necessarily must also fall as a consequence, it is not necessary for us
    to deal with the submission that this was not a case for substantial indemnity
    costs order or that the costs awarded were excessive.

[21]

There
    has been divided success on this appeal. We note as well that the appellants
    have consistently taken the position that if the action does not proceed
    against the corporate defendants, they would not dispute jurisdiction. The
    respondent has not provided us with a satisfactory explanation for refusing to
    act on that offer. In these circumstances, neither party is entitled to costs
    of the motion or of this appeal.

Robert J. Sharpe J.A.

Janet Simmons J.A.

M.L. Benotto J.A.

Released: July 22, 2014


COURT OF APPEAL FOR ONTARIO

CITATION:  Gordon v. York Region Condominium Corporation No.
    818, 2014 ONCA 549

DATE: 20140721

DOCKET: C57685

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

BETWEEN

Stanley Gordon

Applicant (Appellant)

and

York Region Condominium Corporation No. 818, Ed
    Rotman, Ahsan Zaiyouna, Harold Davis, Eugene Katz and Manfred Kapp

Respondents (Respondents)

Michael J. Campbell, for the appellant

Benjamin J. Rutherford, for the respondents

Heard:  July 15, 2014

On appeal from the judgment of Justice J. R. McCarthy of
    the Superior Court of Justice, dated August 21, 2013.

ENDORSEMENT

[1]

The appellant, Stanley Gordon, appeals the August 21, 2013 judgment of
    the application judge, which (i) set aside the November 21, 2011 decision of
    the board of directors of York Region Condominium Corporation No. 818 (the
    Condo) disqualifying him as a director pursuant to the Condos By-law No. 9
    for violations of the Directors Code of Ethics during his term of office; and
    (ii) made provision for the conduct of a fresh ethics review by the board of
    the appellant.

[2]

The application judge concluded that while By-law No. 9 permitted the
    board to disqualify a director who violated the Directors Code of Ethics, the
    manner in which the Board had done so violated principles of natural justice
    and procedural fairness. Among other things, the appellant was not given
    reasonable notice of the ethical review. The boards decision could accordingly
    not stand.

[3]

However, the application judge was not prepared to order re-instatement
    of the appellant as a director at that time: the vacancy left by his
    disqualification had been filled. While there was a significant evidentiary
    record before the application judge detailing the appellants alleged ethical
    violations, the application judge declined to make findings as to whether the
    appellant had violated the Directors Code of Ethics. He ordered that the board
    was at liberty to conduct a fresh ethics review of the appellant within 90
    days, failing which the appellant could move for re-instatement as a director
    or for such other remedy as he may request. The application judge directed that
    the one director, whom he had found was looking to have the appellant removed
    from the board, not participate in the fresh ethics review. The application
    judge remained seized in the event that either party wished to seek further
    directions from the court following the ethics review or the expiration of the
    time period set out for the ethics review.

[4]

Counsel advise that a fresh ethics review was conducted, as ordered by
    the application judge, and that the appellant was disqualified on that review.

[5]

The appellant advances three arguments on appeal, the first two
    relating to the validity of By-Law No. 9, and the third the appropriateness of
    the remedy.

[6]

First, he argues that the provisions of By-law No. 9 permitting the
    board to determine whether a director has violated the Directors Code of
    Ethics are contrary to s. 56(6) of the
Condominium Act, 1998
,
S.O. 1998, c. 19, (the Act), which
    requires that by-laws be reasonable. Therefore, the appellant argues, the
    directors could not properly have made By-Law No. 9 under s. 56(1)(a) of the
    Act, and it should accordingly be declared invalid. Second, and in the
    alternative, he argues that such provisions are inconsistent with the
    democratic principles of condominium governance reflected in the Act as a whole,
    and in that manner contrary to a second requirement of s. 56(6) of the Act,
    namely that by-laws be consistent with the Act. Third, he argues that the
    application judge in any event erred by not immediately re-instating him. The
    appellant seeks an order declaring the provisions of By-law No. 9 unreasonable
    or inconsistent with the Act and therefore invalid and re-instating him as a
    director.

[7]

The respondent Condo argues that the application judge correctly
    concluded that By-law No. 9 permitted the board to disqualify the appellant for
    violations of the Directors Code of Ethics, and that his decision not to
    immediately reinstate the appellant was an appropriate exercise of the
    application judges discretion. The respondent also argues that the issue of the
    appellants reinstatement is moot: the appellants term as a director would
    have ended in or about June, 2014.

[8]

For the reasons that follow, we conclude that the application judge
    correctly found that By-law No. 9 is valid and permits the board to disqualify
    a director for violations of the Directors Code of Ethics, that there is no
    basis for this court to interfere with the application judges discretionary
    decision to defer reinstatement of the appellant, and that the issue of
    reinstatement is, as the respondent argues, in any event now moot. We note that
    under the respondents by-laws, the appellant is at liberty to stand for
    re-election. And under those by-laws, violations of the Directors Code of
    Ethics during his prior term, in the absence of a criminal conviction, are not
    a basis for disqualifying him if re-elected. We accordingly dismiss this
    appeal.

Is By-Law No. 9 Valid?

(a) Relevant provisions of the Act and By-law No. 9

[9]

The relevant provisions of the Act are as follows:

33.(1) Subject to subsection 51(8), a
    director, other than a director on the first board, may be removed before the
    expiration of the directors term of office by a vote
of the owners at a
    meeting duly called for the purpose where the owners
of more
    than 50 per cent of all of the units in the corporation vote in favour of
    removal.

56. (1) The board may, by resolution, make,
    amend, or repeal by-laws,
not
    contrary to this Act
or to the declaration,

(a) to govern the number, qualification, nomination,
    election, resignation, removal, term or office and remuneration of the
    directors, subject to subsection (2)
[1]
;

(6) The by-laws shall be reasonable and consistent with this
    Act and the declaration.

[10]

Article
    6.03 (c)(x) of By-law No. 9 provides for the disqualification and deemed
    resignation of directors:

c) A director shall cease to be qualified to
    be a director of the Corporation and shall be deemed to have resigned from the
    Board of Directors of the Corporation, if the director:

(x) violates the Directors Code of Ethics on three (3) occasions
    over the course of the directors term, unless determined otherwise by a court.

For the purposes of this section, a violation of the Directors Code
    of Ethics will be established if:

(a) another director on the board notifies
    the Corporation, in writing, of the violation (the Code of Ethics Violation),
    upon which the matter shall be added as the first agenda item to the very next
    meeting of the board and shall be identified in the agenda as the Ethics
    Review. The procedure to be used for the Ethics Review shall be the same
    procedure used by the board to decide all Corporation matters except, to ensure
    fairness, the director named in the Code of Ethics Violation shall be allowed
    to address the board at the meeting, but shall not vote nor be present when the
    board votes on the matter; and,

(b) the majority of the remaining directors
    on the board, present at the meeting during the Ethics Review, determine that a
    Code of Ethics Violation has occurred. The decision rendered at the conclusion
    of the Ethics Review shall be duly minuted in the Corporations records. If it
    is determined at the end of the Ethics Review that a Code of Ethics Violation
    has occurred and constitutes the subject directors third (3rd) violation, then
    prior to concluding the Ethics Review, the subject director shall provide, in
    writing, his/her immediate resignation from the board, failing which it shall
    be deemed to have been provided and duly noted within the minutes as such.

[11]

The
    appellant signed the Directors Code of Ethics.

(b)  Are the provisions of
    By-law No. 9 permitting the board to determine whether or not a director has
    violated the Directors Code of Ethics unreasonable?

[12]

The
    appellant argues that it is not reasonable for a board of directors to determine
    whether or not a fellow board member has violated the Directors Code of
    Ethics. He says that such a determination should be made by an independent
    third party.

[13]

While
    there are other procedures that could have been adopted to determine whether or
    not a director has violated the Directors Code of Ethics, we are not persuaded
    that permitting a board to make that determination is unreasonable.

(c)  Are the provisions of
    By-law No. 9 permitting the board to disqualify a director for violations of
    the Directors Code of Ethics inconsistent with the Act because they offend
    democratic principles of governance enshrined in the Act?

[14]

We
    note that, on appeal, the appellant concedes that s. 33(1) is not exhaustive
    and does not limit the ability of the board to make by-laws governing the
    qualification, resignation and removal of directors pursuant to s. 56(1)(a). He
    does not argue that the provisions at issue are contrary to a specific section
    of the Act. Rather, he refers to principles of democratic governance which he
    says are established by the Act, as a whole.

[15]

In
    our view there is simply no merit to the appellants argument that the
    provisions of By-law No. 9 at issue are inconsistent with the democratic
    principles of the Act and therefore invalid.

[16]

Section
    56(1) specifically contemplates the enactment of by-laws dealing with
    qualification, resignation and removal of directors. By-law No. 9 was passed by
    a vote of the owners of a majority of the units in the Condo, including the
    appellant, and the directors who were accorded the power under By-law No. 9 to
    determine whether one of their members had violated the Directors Code of
    Ethics were elected by the unit-holders.  To the extent that the Act enshrines
    democratic principles, they have been respected.

Did the application judge err by not
    immediately re-instating the appellant? Is this issue moot?

[17]

The
    appellants application was commenced under s. 134(3) of the Act, which reads:

134. (3) On an application, the court may,
    subject to subsection (4)
[2]
,

(a) grant the order applied for;

(b) require the persons named in the order
    to pay,

(i) the damages
    incurred by the applicant as a result of the acts of non-compliance, and

(ii) the costs
    incurred by the applicant in obtaining the order; or

(c)
grant such other relief as
    is fair and equitable in the circumstances.
[Emphasis
    added.]

[18]

As
    the application judge observed, the vacancy created by the appellants
    disqualification had been filled.  Reinstating the appellant would have
    required an order against someone who was not before the court. The remedy
    crafted by the application judge left open the possibility of re-instatement in
    the near future, presumably when notice to the person potentially affected
    would have been given. The application judge also remained seized, to
    facilitate the process he had ordered.

[19]

In
    our view, there is no basis on which to interfere with the application judges
    exercise of discretion under s. 134(3).  On the contrary, it appears to be
    eminently fair and equitable in the circumstances.

[20]

Further,
    we agree that the issue of reinstatement is now moot. As noted above, the
    appellants term of office has now expired.  And, as also noted above, the
    appellant is at liberty to stand for re-election.

Disposition

[21]

This
    appeal is accordingly dismissed with costs to the Condo fixed at $8,500,
    inclusive of disbursements and HST.

Alexandra
    Hoy A.C.J.O.

E.E.
    Gillese J.A.

P.
    Lauwers J.A.

[1]

Section 56(2) relates to remuneration of directors and is not
    relevant on this appeal.

[2]
Section 134(4) relates to the termination of a lease, and is not relevant here.


COURT OF APPEAL FOR ONTARIO

CITATION:
Langstaff v. Marson, 2014 ONCA 510

DATE: 20140702

DOCKET: C56643

MacPherson, Watt and Benotto JJ.A.

BETWEEN

Scott Langstaff

Plaintiff (Respondent)

and

Robert Terry Marson and the
Hastings and Prince
    Edward District School Board

Defendants (Appellant)

Donald Rogers and David Rogers, counsel for the
    appellant

R. Steven Baldwin, counsel for the respondent

Heard: May 21, 2014

On appeal from the judgment of Justice Wolfram
    Tausendfreund of the Superior Court of Justice, sitting with a jury, dated January
    25, 2013.

Benotto J.A.:

A.

Introduction

[1]

The appellant seeks to admit fresh evidence which, it is submitted,
    would disclose a reasonable apprehension of bias on the part of the trial
    judge. The appellant asks that the judgment and jury verdict be set aside and
    that a new trial be ordered. In the alternative, the appellant asks that the
    quantum of damages be varied.

[2]

For the reasons that follow, I would admit the fresh evidence, allow the
    appeal and order a new trial.

B.

FACTS

(1)

The Respondents Action

[3]

The respondent brought an action for damages for the sexual abuse he
    suffered at the hands of his grade seven and eight science teacher in 1976 and
    1977. The teacher, Robert Terry Marson, was employed by the Hastings and Prince
    Edward District School Board (the appellant). The respondent named both Mr. Marson
    and the appellant as defendants. Mr. Marson did not defend the action.

[4]

Mr. Marson operated a mini-zoo in his classroom at Harry J. Clarke
    School in Belleville, Ontario. The zoo consisted of a number of small animals housed
    in cages. Mr. Marson used the zoo as a way to lure and groom young boys so that
    he could sexually abuse them.

[5]

The respondent was one of those boys.  It is not in dispute that Mr.
    Marson abused the respondent by fondling him, performing oral sex on him and,
    on one occasion, sodomizing him. The respondent told no one until 2006 when he
    disclosed the abuse to his wife. Thereafter, he went to the police and Mr.
    Marson was charged and convicted of sexual assault. The respondent brought this
    action in 2008 for damages against Mr. Marson and the appellant. It was tried
    by a judge and jury in January 2013.

[6]

The appellant did not deny the assault or that the respondent had
    suffered damages. The issues at trial involved the quantum of damages and
    whether the appellant had been directly negligent or was vicariously liable for
    the acts of Mr. Marson.

[7]

The jury found that the appellant had been negligent. In a separate
    ruling, the trial judge found the appellant vicariously liable for the
    teachers acts of abuse. The jury awarded general, special and punitive
    damages.

(2)

The Mead Action

[8]

The respondent was not the only former student to bring an action
    against the appellant and Mr. Marson for sexual abuse. Kent Mead was a student
    of Mr. Marsons around the same time as was the respondent, and he also brought
    an action for damages. The Mead action was proceeding through the courts and was
    to be heard after the respondents action.

[9]

The Mead action was extraordinarily similar to the respondents action.
    It involved almost identical factual claims: the same teacher; the same school;
    the same mini-zoo; the same mode of luring and grooming in connection with the
    zoo; and a time frame that overlapped with that of the respondents
    allegations. The legal issues were also the same: Mead sought damages for negligence
    on the part of the appellant school board both directly and by way of vicarious
    liability.

[10]

P.
    Diane McDowell was counsel for the appellant in both the respondents action
    and the Mead action.

[11]

On
    May 31, 2012, Ms. McDowell attended a pre-trial in the Mead action. The
    pre-trial judge expressed his view on the key issues in the case, namely the
    liability of the appellant for Mr. Marsons actions and the quantum of damages.
    The pre-trial judge opined that there would be vicarious liability on the part
    of the appellant because of the zoo in the classroom, which provided the opportunity
    for Mr. Marson to abuse the student.

[12]

During
    the course of the pre-trial, the judge realized that he knew both the plaintiff
    and his family and had an association with them. Because of this, it was agreed
    that the pre-trial would not proceed any further.

(3)

Change of Counsel

[13]

Four
    months later, in October 2012, Ms. McDowell retired from the practice of law.
    She transferred ten or twelve files, including the respondents action and the
    Mead action, to S. Wayne Morris.

[14]

The
    files arrived in Mr. Morriss office from late October until the third week of
    November. A trial date for the respondents action had been set for January 7,
    2013. Mr. Morris was under time constraints to have the matter ready for trial
    immediately after the Christmas season. As a result, he focused on preparing
    the respondents action for trial. He did nothing with the Mead case other than
    formally opening the file on a computer system.

(4)

The Respondents Trial Begins

[15]

Jury
    selection began in the respondents trial on January 7, 2013. After the jury
    had been selected, Beth Olave, an adjuster with the appellants insurer,
    mentioned to Mr. Morris that she recognized the trial judge as the pre-trial judge
    in the Mead action and that the pre-trial had been discontinued. She did not
    say why the pre-trial was discontinued. Mr. Morris remembers the conversation
    as one in which Ms. Olave was making an observation that she recognized the
    trial judge.

[16]

Mr.
    Morris had no concerns about the trial judges involvement in another matter because
    he had faith that any issue involving a conflict would have been disclosed to
    counsel prior to trial at the trial management conference.

[17]

At
    the time, Mr. Morris was unaware of the similarities between the respondents
    action and the Mead action. He was also unaware of the trial judges
    association with the Mead family. He did not realize that the trial judge had
    conducted the Mead pre-trial, rendered an opinion and discontinued because of
    his association with the plaintiff and his family.

[18]

The
    respondents trial proceeded. On January 24, 2013, the jury rendered a verdict
    against the appellant.

(5)

The Fresh Evidence

[19]

In
    April 2013, Mr. Morris was preparing the Mead case for discovery. It was only
    then that Mr. Morris became aware that the trial judge in the respondents
    trial had rendered an opinion on the same issues while sitting as the pre-trial
    judge in an identical case where he knew that plaintiff and his family
    sufficiently well to disqualify himself. He testified that, had he known this
    prior to the respondents trial, he would have asked the trial judge to recuse
    himself.

C.

ISSUES

[20]

The
    issues to be addressed are:

1.       Is the fresh evidence admissible?

2.       Does the evidence disclose a reasonable apprehension
    of bias?

D.

ANALYSIS

(1)

Is the Fresh Evidence Admissible?

[21]

The
    principles governing the admissibility of fresh evidence on appeal are outlined
    in
R. v. Palmer
, [1980] 1 S.C.R. 759. The
Palmer
test
    requires the applicant to satisfy four criteria: (i) the evidence could not,
    through the exercise of due diligence, have been adduced at trial; (ii) the
    evidence must be relevant in that it bears on a decisive or potentially
    decisive issue; (iii) the evidence must be reasonably capable of belief; and
    (iv) the evidence must be such that, if believed, it may have affected the
    result at trial.

[22]

When
    the proposed fresh evidence raises issues connected to the validity of the
    process itself, different considerations apply. In
R. v. W.W and I.W.
(1995),
25 O.R. (3d) 161 (Ont. C.A.),
    Doherty J.A. said at para 18:

The
Palmer
criteria do not, however, apply to all
    situations where fresh evidence is offered on appeal. Those criteria reflect
    the balancing of competing considerations relevant to the interests of justice
    when fresh evidence is offered to attack a determination made at trial. The
    same criteria cannot necessarily be applied where, as here, the fresh evidence
    is offered for a different purpose. The material sought to be admitted here is
    not directed at a finding made at trial, but instead challenges the very
    validity of the trial process. The nature of this material and the purpose for
    which it is offered places it outside the
Palmer
paradigm:
R. v.
    McKellar
(1994), 34 C.R. (4th) 28 at p. 31 (Ont. C.A.);
R. v. Vottero
(12 June 1992), (Ont. C.A.) [unreported].

[23]

The
    fresh evidence sought to be introduced here deals with subsequently discovered
    facts that are directly related to the validity of the trial process. I would
    admit the fresh evidence.

(2)

Does the Evidence Disclose a Reasonable Apprehension of Bias?

(a)

The Applicable Law

[24]

There
    is a strong presumption of judicial impartiality and a heavy burden on a party
    who seeks to rebut this presumption.

[25]

Judicial
    impartiality has been called the key to our judicial process: see
Wewaykum
    Indian Band v. Canada,
[2003] 2 S.C.R.
    259
, at p. 288. Chief Justice Lamer referred to public confidence
    in the impartiality of the judiciary as essential to the effectiveness of the
    court system: see
R. v. Campbell,
[1997] 3 S.C.R. 3, at para 10. The
    presumption of impartiality anchors public confidence in the integrity of the
    administration of justice.

[26]

An
    allegation of bias engages the very foundation of our judicial system. It calls
    into question not simply the personal integrity of the judge, but the integrity
    of the entire administration of justice.

[27]

In
    order to rebut the presumption of impartiality, a test has been developed by
    the Supreme Court of Canada. It was first articulated by de Grandpré J. in his
    dissenting reasons in
Committee for Justice and Liberty v. National Energy
    Board
, [1978] 1 S.C.R. 369, at p. 394:

[T]he apprehension of bias must be a reasonable one held by
    reasonable and right minded persons, applying themselves to the question and
    obtaining thereon the required information.  [T]hat test is "what would
    an informed person, viewing the matter realistically and practically  and
    having thought the matter through  conclude. Would he think that it is more
    likely than not that [the judge], whether consciously or unconsciously, would
    not decide fairly."

[28]

The
    Supreme Court has repeatedly endorsed this test. In his reasons in
R. v. S.
    (R. D.)
, [1997] 3 S.C.R. 484, Cory J. explained, at para. 111, that the
    test set down by de Grandpré J. contains a two-fold objective element: not
    only must the person considering the alleged bias be reasonable, but the
    apprehension of bias itself must also be reasonable in the circumstances of the
    case.  Cory J. added, at para. 113, that:

[T]he threshold for a finding of real or perceived bias is
    high. It is a finding that must be carefully considered since it calls into
    question an element of judicial integrity. Indeed an allegation of reasonable
    apprehension of bias calls into question not simply the personal integrity of
    the judge, but the integrity of the entire administration of justice.

[29]

This
    two-fold objective element is based on reasonableness: the person considering
    the alleged bias must be reasonable and the apprehension of bias itself must
    also be reasonable. The reasonable person must be informed and know the
    relevant circumstances, including the traditions of integrity and impartiality
    on which the judicial system is based. A mere suspicion is not enough.

[30]

The
    determination is also fact-specific. In
Wewaykum,
the Supreme Court held
, at para. 77:

[T]his is an inquiry that remains highly fact-specific. In
Man
    OWar Station Ltd. v. Auckland City Council (Judgment No. 1)
, [2002] 3
    N.Z.L.R. 577, [2002] UKPC 28, at par. 11, Lord Steyn stated that This is a
    corner of the law in which the context, and the particular circumstances, are
    of supreme importance.  As a result, it cannot be addressed through peremptory
    rulesthere are no textbook instances.  Whether the facts, as established,
    point to financial or personal interest of the decision-maker;  present or past
    link with a party, counsel or judge; earlier participation or knowledge of the
    litigation; or expression of views and activities, they must be addressed
    carefully in light of the entire context.  There are no shortcuts.

[31]

This
    stringent test for a party alleging apprehension of bias is grounded in the
    need to preserve the integrity of the judicial system. It also recognizes the
    need to maintain the public confidence in the judicial system. The analysis
    contemplates a hypothetical observer who is informed of all the facts. It does
    not depend upon the views or conclusions of the litigant.

[32]

It
    has also been held that, in order to maintain public confidence in the
    administration of justice, the appearance of judicial impartiality is as
    important as the reality. In
Metropolitan Properties Co. (F.G.C.) Ltd. v.
    Lannon
, [1968] 3 All E.R. 304 (C.A.), at p. 310, Lord Denning M.R.
    stressed the importance of the appearance of judicial impartiality. He said:

[I]n considering whether there was a real likelihood of bias,
    the court does not look at the mind of the justice himself.... It does not look
    to see if there was a real likelihood that he would, or did, in fact favour one
    side at the expense of the other. The court looks at the impression which would
    be given to other people. Even if he was as impartial as could be,
    nevertheless, if right-minded persons would think that, in the circumstances,
    there was a real likelihood of bias on his part, then he should not sit. And if
    he does sit, his decision cannot stand.

[33]

This
    passage was cited with approval by Major J. in his dissenting reasons in
S.(R.
    D.),
at para. 11, and by this court in
Benedict v. Ontario
(2000),
    51 O.R. (3d) 147 (C.A.). In
Benedict
, the court added, at para. 20:

We note that while Lord Denning M.R. spoke in terms of a real
    likelihood rather than a reasonable apprehension, in
National Energy
    Board
de Grandpré J. took care to state that such variations in the
    expression used should not generally be treated as involving any substantive
    difference in the approach to be taken.  Reasonable apprehension, real
    likelihood, reasonable likelihood and reasonable suspicion amount to the
    same standard.

This reasoning accords with the decision of Lord Nolan
    in
R. v. Bow Street Metropolitan Stipendiary Magistrate et al.
, [1999]
    1 All E.R. 577 (H.L.), at p. 592:

[I]n any case where the impartiality of the judge is in
    question, the appearance of the matter is just as important as the reality.

The appearance of impartiality was emphasized in
Weywakum,
at para. 66:

[W]here disqualification is argued, the relevant inquiry is not
    whether there was
in fact
either conscious or unconscious bias on the
    part of the judge, but whether a reasonable person properly informed would apprehend
    that there was.

(b)

Application to the Facts

[34]

The
    facts and the sequence of events here are unique. The trial judge gave an
    opinion on a key issue of liability during a pre-trial in a related matter.  He
    withdrew from that pre-trial because he had an association with the plaintiff
    and his family. He then conducted a trial in a mirror-image matter and rendered
    a decision on the same key issue of liability. This decision, consistent with
    his earlier opinion, was favourable to the parties with whom he had an
    association. The trial judge felt sufficiently compromised by his association
    with the Mead family that he recused himself during a pre-trial when no binding
    decision would be rendered. He then rendered a decision, consistent with his
    opinion at the pre-trial, which favoured the family that he was associated with.

[35]

The
    respondent relies on Rule 50 of the
Rules of Civil Procedure
, R.R.O.
    1990, reg. 194 for the proposition that a pre-trial judge is not precluded from
    conducting the trial. Rule 50 was amended in January 2012 to expand the case
    management powers of the pre-trial judge and to remove the blanket prohibition
    against the pre-trial judge presiding at trial provided that all parties
    consent in writing. Rule 50 does not preclude a pre-trial judge from presiding
    at the trial of a related matter. Thus, there was no procedural impediment to
    the pre-trial judge in Mead presiding at the Respondents trial. While I accept
    this proposition, it ignores the issue. The issue here arises not because the
    trial judge presided at the pre-trial of a related action but rather as a
    result of a unique combination of events. Those events are: the pre-trial
    judges opinion on the matter; his association with a party; and his decision
    in an identical matter which might reasonably assist the party he had an
    association with.

[36]

The
    respondent further submits that the appellants counsel should have objected to
    the participation of the trial judge immediately after jury selection when he
    had been told about the trial judges participation in the Mead pre-trial. The
    appellant submits that his failure to immediately object disentitles him from
    raising the issue on appeal.

[37]

I
    do not accept this submission. There is a presumption of impartiality on the
    part of the judiciary and counsel was entitled to assume impartiality. Counsel testified
    that it did not occur to him that there was anything to object to. He was not
    aware of the facts which are now relied upon, in particular, he did not know of
    the opinions given by the trial judge in an identical matter from which he
    recused himself as a result of his association with the Meads. The facts he
    knew at the opening of trial would not support the serious allegation questioning
    the impartiality of the trial judge.

[38]

A
    voluntary and informed decision must be made whether to advance a bias claim
    before a party can be said to waive the right to do so: see
Canadian
    College of Business and Computers Inc. v. Ontario (Private Career Colleges Act,

Superintendent)
, 2010 ONCA 856, 272 O.A.C. 177, at para 51.

[39]

Consistent
    with the presumption of impartiality is the fact that there can be no duty to
    investigate possible grounds of bias if there is no reason to believe they
    exist: see G.S. Lester, Bias: How and When to Raise the Objection (1997) 3
    A.A.P. 49, at p. 50.

[40]

There
    is a high threshold required to rebut the presumption of impartiality.  There
    is also an imperative on the part of the administration of justice to uphold
    the appearance of impartiality.

[41]

The
    hypothetical reasonable person would be informed of the trial judges pre-trial
    opinion, his association with the plaintiffs, the discontinued pre-trial and
    the subsequent trial decision. In my view, this person viewing the matter
    realistically and practically would conclude that there was an apprehension of
    bias.

E.

DISPOSITION

[42]

I
    would allow the appeal and order a new trial, with costs payable to the appellant
    in the amount of $40,000 inclusive of disbursements and applicable taxes.

M.L. Benotto J.A.

I agree J.C. MacPherson
    J.A.

I agree David Watt
    J.A.

Released: July 02, 2014


COURT OF APPEAL FOR ONTARIO

CITATION: Marceau (Re),
    2014 ONCA 528

DATE: 20140707

DOCKET: C58180

Feldman, MacPherson and Cronk JJ.A.

IN THE MATTER OF: Brad M. Marceau

AN APPEAL UNDER PART XX.1 OF THE
CODE

Susan E. Fraser, for the appellant

Michael Perlin, for the respondent, The Attorney General
    for Ontario

Janice E. Blackburn, for the respondent, The Person in
    Charge of Thunder Bay Regional Health Sciences Centre

Heard: July 4, 2014

On appeal against the disposition of the Ontario Review
    Board dated November 26, 2013.

ENDORSEMENT

[1]

The sole issue on this appeal is whether the Ontario Review Board erred
    in law by finding that the appellant poses a significant threat to the safety
    of the public.

[2]

At the hearing held on November 18, 2013, Dr. Sheppard expressed the
    position of the treatment team as well as that of the hospital that the
    appellant is mentally ill, but does not pose a risk to the safety of the
    public. The hospital report stated in part:

... the treatment team is not persuaded that Mr. Marceau meets
    the
Winko
threshold for significant threat to public safety. In our
    view it cannot be said that, if absolutely discharged, Mr. Marceau would likely
    commit a serious criminal offence resulting in physical or psychological harm
    to a member of the public.

If absolutely discharged, in fact, Mr. Marceaus treatment
    would continue in exactly the way that it has over the course of the past year,
    that is, under the authority of the
Mental Health Act
. He has
    historically maintained a good relationship with the OTR Team, which provides
    ongoing services to Mr. Marceau, equivalent to those provided by an ACT Team,
    and who are very well acquainted with Mr. Marceau and his family, with Mr.
    Marceaus treatment needs including with respect to his comorbid issues, and
    with the elements of a treatment and rehabilitation plan which will be required
    in order to successfully reintegrate him into the community. It is our position
    that the OTR Team, with the utilization of the
Mental Health Act
if
    necessary, is quite capable of managing whatever risks may arise from Mr.
    Marceaus illness and, accordingly, that Mr. Marceau would not present a
    significant threat to public safety if absolutely discharged and re-engaged
    with the OTR Team as his primary service providers.

It is acknowledged that this young man does present some level
    of risk to public safety. When acutely unwell he can be agitated, irritable and
    defiant, and early in his current hospital stay he did require brief periods of
    locked seclusion until his condition started to stabilize. The circumstances of
    the index offences, also, would indicate some level of concern. Nevertheless
    Mr. Marceau does not have an adult history of criminal convictions. Despite the
    fact that he has remained quite floridly unwell for many months, and that he
    has continued to use marijuana episodically, his behaviour has been almost
    entirely non-aggressive. Since he has been receiving antipsychotic treatment,
    which he will clearly require indefinitely and which will be provided for him
    via substitute consent, he has in fact been easily manageable in hospital.
    Despite his lack of insight and his tendency to defy authority, there have been
    no reports of any sort of behavioural disturbances during the extended periods
    of time that Mr. Marceau has spent in the community, generally in the company
    of his family. While there is an element of risk, it is the position of the
    treatment team that whatever threat that Mr. Marceau does pose to public safety
    is not significant.

[3]

This opinion was not contradicted in the evidence before the Board. Dr.
    Sheppard and the appellants mother corrected an inaccuracy in the hospital
    report which said that the appellant had once assaulted his mother. In fact
    this had not occurred. Although the appellant, when his mental illness was
    manifesting itself floridly, could be physically and verbally aggressive, he
    had gone so far as to damage some property but he was not violent with people.

[4]

His only incident of such violence was the index offence. The
    circumstances of that event were described in the evidence. The appellant was
    in the hospital through the civil mental health system and went home without
    leave. His mother called the hospital and asked for the police to come and pick
    him up because she was afraid he would jump out of the car if she tried to
    drive him back.

[5]

When the police came, they insisted on handcuffing him, he resisted, at
    which point, according to his mother, they got him on the ground, kneed him,
    beat him with a club and a flashlight and punched him in the head. The family
    and neighbours were screaming for them to stop. In the scuffle one officer got
    kicked in the mouth and the appellant spit on another, although that was after
    they pushed his head into the dirt on the ground.

[6]

It was acknowledged by Dr. Sheppard at the hearing that these
    circumstances were somewhat unique.

[7]

The appellant was initially conditionally discharged but ended up back
    in hospital on May 13, 2013 under a Form 1 in the civil system because his
    continued drug use and relationship problems exacerbated his mental health
    problems. He has remained in hospital since that time. In January 2013, his
    treatment team had decided to wean him off his medication which turned out to
    be the wrong treatment decision.

[8]

At the time of the hearing, the appellant was not doing as well mentally
    as he was a year earlier, which was why the hospital wanted to retain him but
    only under the civil mental health system.

[9]

The Boards reasons for rejecting the evidence and opinions of the
    psychiatrist and the hospital are at the conclusion of its reasons as follows:

Having heard and considered all of the evidence and the
    submissions of all of the parties, the Board is of the view that the accused is
    a significant threat to the safety of the public. We find on all of the
    evidence that there is a foreseeable and substantial risk that the accused
    would commit a serious criminal offence, if discharged absolutely. We make this
    finding on the basis of the following evidence.

The accused is diagnosed with a major mental illness,
    Schizophrenia, Disorganized and Paranoid Features. This diagnosis is
    complicated by a diagnosis of Polysubstance Abuse. Substance abuse is a known
    risk factor in relation to relapse of a major mental disorder. The accused has
    used illicit substances in breach of his disposition over the course of the
    past year. He has tested not only positive for cannabinoids but also for
    cocaine which is associated with considerable risk of relapse.

The accused has a long history of anger management issues and
    immaturity. When psychotic, he is paranoid and has a history of requiring
    physical and chemical restraint in hospital. In 2006, the accused attempted to
    jump out of a moving vehicle when being brought to hospital. It is his current
    belief that the hospital is gassing him. The accused has a history of
    physically aggressive behaviour when ill. Instances of aggressive behaviour are
    documented on more than one occasion.

Of significance is the fact that the accused committed the
    index offences in the context of the enforcement of the
Mental Health Act
.
    It is our view that the type of offences committed by the accused when
    involuntary readmission is sought by officials causes harm within the
Winko
standard. Mr. Marceaus behaviour due to psychosis and anger potentially
    affects police officers, nurses, staff and co-patients. The Board does not have
    the jurisdiction to question the findings of not criminally responsible. We
    accept that the accused committed the physical elements of the index offences.
    Mr. Marceau is an individual found not criminally responsible 1.5 years ago,
    whose mental stability has deteriorated since his last hearing and whose risk
    of relapse is enhanced by his use of illicit substances. The Board is of the
    view that he meets the threshold of significant threat.

[10]

In
Winko v. British Columbia (Forensic Psychiatric Institute),
[1999] 2 S.C.R.
    625, at para. 57, the Supreme Court described the requirements of a significant
    threat to the public as follows:

The threat must also be significant, both in the sense that
    there must be a real risk of physical or psychological harm occurring to
    individuals in the community and in the sense that this potential harm must be
    serious. A minuscule risk of a grave harm will not suffice. Similarly, a high
    risk of trivial harm will not meet the threshold. Finally, the conduct or
    activity creating the harm must be criminal in nature
In short, Part XX.1 can only maintain its authority
    over an NCR accused where the court or Review Board concludes that the
    individual poses a significant risk of committing a serious criminal offence

[11]

In
    our view, the evidence relied on by the Board cannot meet the
Winko
test.
    The Board seemed to correlate the appellants drug use and the symptoms of his
    mental illness with risk to the public. This was speculative and not supported
    by the evidence. The evidence was that he is well supported by his treatment
    team and his family. His mother is committed to caring for him and making
    treatment decisions as long as necessary. He is compliant with the doctors and
    with his medication. Unfortunately he has a serious mental disorder. But that
    does not necessarily mean he is violent or is likely to commit a serious
    criminal offence.

[12]

The
    Board also relied on the index offence, but ignored the fact that the appellant
    had not been physically violent to anyone before or since, as well as the very
    unique circumstances of the offence.

[13]

In
    our view, the finding of substantial risk to the safety of the public was an
    unreasonable one and must be set aside.

[14]

As
    stated by the hospital, that does not mean that the appellant will necessarily be
    released from the control of the hospital. Recourse to the civil mental health
    system for his continued detention and treatment remains possible, as
    necessary.

[15]

The
    appeal is allowed and an order for an absolute discharge is substituted.

K. Feldman J.A.

J.C. MacPherson J.A.

E.A. Cronk J.A.