COURT OF APPEAL FOR ONTARIO

CITATION: Rumsam v. Pakes, 2019 ONCA 748

DATE: 20190924

DOCKET: C66544

Doherty, Harvison Young and
    Thorburn JJ.A.

BETWEEN

Rachel Rumsam

Plaintiff (Respondent)

and

Dr. Barry Pakes and Huronia
    Urgent Care Clinic

Defendants (Appellants)

Andrew Kalamut and Scott Robinson, for
    the appellants

Kristian Bonn, for the respondent

Heard: September 16, 2019

On appeal from the order of Justice Brian
    W. Abrams of the Superior Court of Justice, dated January 11, 2018.

Thorburn J.A.:

OVERVIEW

[1]

Dr. Barry Pakes and Huronia Urgent Care Clinic
    (Huronia) appeal from an order made on January 11, 2019. The motion judge
    granted Ms. Rachel Rumsams motion to add Dr. Caroline Kargel as a defendant in
    the underlying action on the ground that the claim against Dr. Kargel was not
    statute-barred. Dr. Pakes and Huronia claim the motion judge:

a.

failed to apply the correct test for
    discoverability under the
Limitation Act, 2002
, c. 24, Sched. B, s.
    5(1) which provides that a claim is discoverable when the plaintiff has or
ought to have
knowledge of the material
    facts of the claim, not when the plaintiff discovers potential liability; and

b.

erred in his application of the principle in
Sloan
    v. Ultramar Limited
, 2011 ONCA 91, 76 C.B.R. (5th) 153

that a
    plaintiff must exercise reasonable diligence to discover a claim after being
    advised of a triggering event.

FACTUAL BACKGROUND

[2]

On July 11, 2007, Ms. Rumsam attended Huronia
    for treatment of a wrist injury. Dr. Pakes assessed her wrist and ordered an
    x-ray.

[3]

Dr. Pakes reviewed the film and pointed out to
    Ms. Rumsam the indication of a possible hairline fracture of the scaphoid bone.
    He then discharged her with advice that she immobilize, rest, ice, and compress
    the wrist.

[4]

On July 16, 2007, Huronia received a mailed copy
    of the x-ray report prepared by a radiologist. The report confirmed a suspected
    displaced scaphoid fracture and recommended a follow up x-ray. In the bottom
    right hand corner, there is handwriting that says dx scaphoid # and
    underneath that notation, N/A. There is no signature. A physician at Huronia
    reviewed the report but Ms. Rumsam did not receive a phone call or letter that
    indicated that further follow up was required.

[5]

After the pain in her wrist worsened, Ms. Rumsam
    visited her family doctor who referred her to an orthopaedic surgeon. She had
    surgery in April 2008 and again in August 2008.

[6]

Ms. Rumsam reached the age of majority on June
    4, 2010. She commenced an action in negligence against Dr. Pakes and Huronia on
    May 3, 2012. She claimed that Dr. Pakes and Huronia failed to advise her that
    follow up medical consultation was required and failed to notify her of the
    x-ray which indicated that a follow up x-ray should be done, resulting in the
    need for further surgeries for which she sought damages.

[7]

On December 17, 2012, Huronia and Dr. Pakes
    filed the statement of defence, which alleged that:

The report [confirming the scaphoid fracture]
    was reviewed by a physician at the Clinic, who then attempted to contact the
    Plaintiff at the telephone number provided by the Plaintiff in order to advise her
    of the findings.

[8]

In response to a motion brought by Dr. Pakes and
    Huronia, Ms. Rumsam served a responding factum dated August 29, 2013. In the
    factum, Ms. Rumsam makes the following statement:

On July 12 [2007] (the following day),
a clinic physician other than Dr. Pake [
sic
]
placed a
    telephone call to Rachels home number to advise her about the x-ray findings
    and the radiologists recommendation for a follow up x-ray. [Emphasis added.]

[9]

During the examination for discovery of Dr.
    Pakes on August 7, 2014, the radiologists report was produced. Dr. Pakes
    interpreted the note dx scaphoid fracture N/A to indicate a diagnosis (dx)
    of scaphoid fracture, and that the call to the patient was not answered
    (N/A). He was not able to say who wrote the note. Counsel for Dr. Pakes gave
    an undertaking to advise who wrote the note.

[10]

On February 17, 2016, 18 months later, counsel
    for Dr. Pakes and Huronia complied with the undertaking, advising that Dr.
    Kargel wrote the note, except for the N/A.

[11]

On November 15, 2016, counsel for Dr. Pakes and
    Huronia advised Ms. Rumsams counsel that, contrary to Dr. Pakes earlier
    statement, there was no evidence that anyone had ever attempted to call Ms.
    Rumsam.

[12]

On January 18, 2017, Ms. Rumsam moved to add Dr.
    Kargel as a defendant on the basis that Dr. Kargel reviewed the x-ray report
    which indicated a potential scaphoid fracture, but she failed to advise and
    treat her, and this resulted in delayed treatment of the fracture making
    surgeries necessary.

[13]

Dr. Pakes and Huronia opposed the motion to add
    Dr. Kargel as a defendant, arguing that the claim against Dr. Kargel was
    statute-barred pursuant to the
Limitations Act
.

ANALYSIS AND CONCLUSION

A.

Relevant provisions of the
Limitations Act

[14]

The
Limitations Act
provides as
    follows:

4
Unless this Act provides otherwise, a proceeding shall not be
    commenced in respect of a claim after the second anniversary of the day on
    which the claim was discovered.

5
(1) A claim is discovered on the earlier of,

(a) the day on which the person with
    the claim first knew,

(i) that the injury, loss or
    damage had occurred,

(ii) that the injury, loss or
    damage was caused by or contributed to by an act or omission,

(iii) that the act or omission
    was that of the person against whom the claim is made, and

(iv) that, having regard to the
    nature of the injury, loss or damage, a proceeding would be an appropriate
    means to seek to remedy it; and

(b) the day on which a reasonable
    person with the abilities and in the circumstances of the person with the claim
    first ought to have known of the matters referred to in clause (a).

B.

The motion judges decision

[15]

The motion judge concluded that the claim
    against Dr. Kargel was not statute-barred.

[16]

At paragraph 70 of the ruling on motion, he correctly
    identified s. 5 of the
Limitations Act
as the relevant codification of
    discoverability and he recognized that the
Limitations Act
imposes a
    presumptive two-year limitation period during which a plaintiff may commence an
    action  a person with a claim is presumed to have known of that claim on the
    day the act or omission took place, unless the contrary is proved. (It is
    agreed that the presumptive limitation period did not begin to run until June
    4, 2010, when Ms. Rumsam reached the age of majority.)

[17]

He also recognized that a plaintiff has a
    positive obligation to exercise reasonable diligence in discovering the
    material facts upon which her cause of action is founded as set out in this
    courts decision in
Pepper v. Zellers

Inc.
(2006), 83 O.R.
    (3d) 648 (C.A.).

[18]

The motion judge held, however, that the
    reference in the statement of defence to the fact that [t]he report was
    reviewed by a physician at the Clinic was not sufficient to alert Ms. Rumsam
    to a claim against another doctor since Dr. Pakes was himself a physician at
    the Clinic and the appellants were collectively unable to answer the more
    important aspect of the notation: who was the author of N/A. The motion
    judge concluded that:

Query then how a reasonable person with the
    Plaintiffs abilities and in her circumstances ought to have discovered Dr.
    Kargels identity within the presumptive limitation period, when it took two
    physicians, who are presumably intimately aware of the documentary procedures,
    processes and staff at the Huronia Clinic, 23 months to answer only the most
    obvious aspect of the notation dx scaphoid fracture N/A: that she suffered a
    broken wrist.  Yet the same two physicians are unable to identify who it was
    that failed to communicate with the Plaintiff in respect of the report, if not
    Dr. Kargel.

[19]

He held that it was reasonable to conclude that Ms.
    Rumsam was unable to identify Dr. Kargel as the physician who wrote the
    handwritten note and thus, arguably failed to communicate with her until November
    15, 2016, when counsel for Dr. Pakes and Huronia complied with the undertaking,
    advising that no one from the clinic had called Ms. Rumsam. He therefore held
    that the claim against Dr. Kargel was not statute-barred.

C.

Analysis

[20]

The test to determine whether the limitation
    period has expired on a particular set of facts is a question of mixed fact and
    law which attracts a standard of palpable and overriding error:
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] S.C.R. 235, at para. 36.

[21]

Section 5(b) of the
Limitations Act
provides that a cause of action arises for the purposes of a limitation period
    when the material facts on which it is based have been discovered,
or ought to have been discovered
, by the plaintiff by
    the exercise of reasonable diligence (emphasis added):
Lawless v. Anderson
,
    2011 ONCA 102, 276 O.A.C. 75, at para. 22.

[22]

The identity and culpable acts of the wrongdoer
    must be known or knowable with reasonable diligence:
Mark v. Guelph (City)
,
    2010 ONSC 6034, 104 O.R. (3d) 471; and
Zurba v. Lakeridge Health Corp
.,
    2010 ONSC 318, 99 O.R. (3d) 596.

[23]

However, the law does not require that a
    prospective plaintiff know the exact extent or type of harm suffered, or the
    precise cause of the injury:
Brown v. Wahl
, 2015 ONCA 778, 128 O.R.
    (3d) 588, at para. 15.

[24]

Nor is it necessary to determine which of
    several persons is responsible. It is enough that there is a possible claim
    against them. In
Coutanche v. Napoleon Delicatessen
(2004), 72 O.R.
    (3d) 122 (C.A.), at para. 26, for example, Lane J. for the court held that:

As to the two drivers, Orsini and Palmer, it
    is clear that all the information about their identities and the statements
    made to the police, plus the latter's report, were readily available with any
    degree of diligence, and were actually obtained by solicitor Kirkland, by early
    1999.
It is not necessary to answer the question of how
    and why the deceased went to the highway and walked on it in order to decide if
    there was a cause of action against one or both of these drivers for running
    him down. Nor was it necessary to determine which driver did it
. It is
    highly likely that only a trial could answer that question.
Perfect certainty is not necessary. The reasonable person would
    have known by the receipt of the police information in early 1999, or at the
    latest by the time Mrs. Coutanche reviewed the police report in September 1999,
    that there was a possible claim against these drivers
. There is no room
    on the record before us for the application of discoverability to delay the
    commencement of the running of the limitation against the drivers for a
    sufficient period to bring the start of the limitation to February 22, 2000,
    two years before the commencement of the action. [Emphasis added.]

[25]

Moreover, in
Safai v. Bruce N. Huntley
    Contracting Ltd.
,
2010
    ONCA 545, 322 D.L.R. (4th) 1, leave to appeal to S.C.C. refused, [2010]
    S.C.C.A. No. 365, at para. 19, Armstrong J.A. for the court clarified that
    having the precise name of a defendant is not required as long as the name can
    be ascertained by exercising reasonable diligence:

On February 17, 2000, Ms. Safai knew that she
    had fallen and injured her ankle.
She knew that she
    likely had a claim for her injuries against the owner of the property.  As of
    the date of the accident, she was in a position to ascertain the name of the
    registered owner of the property
. Reasonable diligence on her part and
    on the part of her lawyer produced the name of the registered owner of the
    building in due course.
In my view, there is simply no
    reasonable basis in these circumstances to invoke the discoverability rule to
    postpone the commencement of the limitation period
. [Emphasis added.]

[26]

The due diligence requirement is not satisfied
    by waiting for someone else to advise who the correct defendant is:
Klein
    v. G4S Secure Solutions (Canada) Ltd
., 2016 ONSC 1930, at para. 23.

[27]

In this case, on August 29, 2013, Ms. Rumsam
    advised in writing that:

On July 12 [2007] (the following day),
a clinic physician other than Dr. Pake [
sic
]
placed a
    telephone call to Rachels home number to advise her about the x-ray findings
    and the radiologists recommendation for a follow up x-ray. [Emphasis added.]

[28]

As such, at least by that date, Ms. Rumsam knew
    that:

1.

There was a second clinic physician involved in
    her care;

2.

The second clinic physician knew about her x-ray
    findings;

3.

That physician did not inform her of the x-ray
    findings and the recommendation to undergo a second x-ray; and as a result

4.

She required two surgeries and suffered damages.

[29]

The only thing Ms. Rumsam did not know by August
    29, 2013, was the name of the second clinic physician.

[30]

As of August 29, 2013, Ms. Rumsam was obliged to
    exercise reasonable diligence to secure the name of the second doctor to
    satisfy the requirement in s. 5(b) of the
Limitations Act
that a
    cause of action arises for the purposes of a limitation period when the
    material facts on which it is based have been discovered,
or ought to have been discovered
, by the plaintiff by
    the exercise of reasonable diligence (emphasis added):
Lawless
, at
    para. 22.

[31]

Ms. Rumsam did not make any inquires to
    determine the author of the note or her involvement in Ms. Rumsams care from
    August 29, 2013, when the limitation period began, until Dr. Pakes examination
    for discovery on August 7, 2014.

[32]

In any event, there is no reason to extend the
    two-year limitation period beyond August 29, 2015, as Ms. Rumsam has failed to
    provide evidence that she would not have identified Dr. Kargel earlier had she
    exercised reasonable diligence after becoming aware of the information by
    August 29, 2013. On the contrary, Ms. Rumsam did receive the information that
    identified Dr. Kargel, albeit it took approximately 18 months once the request
    was made. Even the undertaking regarding who wrote the N/A portion of the
    note was fulfilled within 23 months.

D.

Summary of Conclusions

[33]

In conclusion:

1.

A claim must be brought within two years of a
    claim being discovered.

2.

A claim is discovered when the claimant first
    knew the injury occurred, that it was caused by an act or omission, that the
    act or omission was caused by the person against whom the claim is made, and
    that there was loss.

3.

The injury was sustained on July 11, 2007, so
    normally the limitation period would have expired on July 11, 2009.

4.

Given that Ms. Rumsam did not turn 18 until June
    4, 2010, the presumptive limitation period did not begin to run until that
    date.

5.

The limitation period would have expired on June
    4, 2012, but for the discoverability principle.

6.

By August 29, 2013 at the latest, Ms. Rumsam
    knew all of the material facts except the name of the second clinic physician
    in question.

7.

By August 29, 2013 at the latest, she was
    required to exercise reasonable diligence to get the name within the two-year
    period as she knew she likely had a claim against this person for her injuries,
    and August 29, 2013 was the day on which a reasonable person with the
    abilities and in the circumstances of the person with the claim first ought to
    have known of the matters referred to as set out in s. 5(1)(b) of the
Limitations
    Act
.

8.

The onus to prove reasonable diligence is on Ms.
    Rumsam.

9.

She failed to exercise reasonable diligence as
    no steps were taken for at least a year.

10.

As such, as the court held in
Safai
,
    there is no basis to extend the limitation period for more than two years as,
    from August 29, 2013, Ms. Rumsam knew of the likely claims and was in a
    position to ascertain the name by reasonable diligence.

[34]

There was a palpable and overriding error in the
    motion judges finding of mixed fact and law as:

a.

He did not address the fact that as of August
    29, 2013, in her own materials, Ms. Rumsam provided evidence that she had
    knowledge of the material facts of the claim other than the name of the second
    clinic doctor;

b.

He erred in his application of s. 5(b) of the
Limitations
    Act
, as he did not address the fact that Ms. Rumsam had an obligation to
    exercise reasonable diligence to obtain the name as of August 29, 2013 at the
    latest; and

c.

He did not address the fact that as of August
    29, 2013, Ms. Rumsam failed to exercise reasonable diligence to obtain Dr.
    Kargels name.

[35]

For these reasons, the appeal is granted. On the
    consent of both parties, costs of this appeal to Dr. Pakes and Huronia in the
    amount of $15,000.

Released: DD SEP 24 2019

Thorburn
    J.A.

I
    agree. Doherty J.A.

I
    agree. A. Harvison Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sammut v. Doheny, 2019 ONCA 693

DATE: 20190905

DOCKET: C65910

Paciocco, Harvison Young and Zarnett JJ.A.

BETWEEN

Luciano Sammut

Applicant (Appellant)

and

Allan James Doheny

Respondent

Gregory Sidlofsky and Peter Askew, for Luciano Sammut

Gosia Bawolska and Kara Denny, for Allan James Doheny

Heard and released orally: August 15, 2019

On appeal from the order of Justice Sandra Nishikawa of
    the Superior Court of Justice, dated August 21, 2018.

REASONS FOR DECISION

[1]

It is not contested that between December 1992 and December 2002 a fence
    ran between 300 Pacific Avenue and 298 Pacific Avenue in the City of Toronto.
    The fence was not on the lot line. It enclosed a small but now significant
    strip of land belonging to 298 Pacific Avenue on the 300 Pacific Avenue side of
    the fence. Ms. Ruta Cube, who grew up at 298 Pacific Avenue, always thought the
    fence was the lot line. A dispute has now arisen over ownership of this strip
    of land.  Relying on the fence and Ms. Cubes evidence, the current owner of
    300 Pacific Avenue, Luciano Sammut, brought an application for a declaration
    that he is entitled to ownership and exclusive use of the disputed strip of
    land. His claim is based on the adverse possession that he says existed during
    the relevant statutory period, December 1992 and December 2002.

[2]

Mr. Sammuts application was not successful. The application judge found
    that Mr. Sammut had not discharged his onus of proving adverse possession.
    Although the application judge was satisfied that actual possession of the
    strip of land by Mr. Sammuts predecessors in title was established, their
    intention to exclude the true owner was not demonstrated, nor had effective
    exclusion from the disputed strip of land been established. Mr. Sammut now
    appeals that ruling. We would dismiss his appeal.

[3]

We do not agree that the application judge misapplied the test for
    adverse possession. We accept the clear and indisputable fact that disputed
    land enclosed behind a fence can be strong evidence of an intention by the
    possessor to exclude the true owner, and that such evidence may give rise to
    the presumption that the possessor intended to exclude the true owner. However,
    as Mr. Sammut concedes, that presumption is not mandatory. It permits, but does
    not require, a judge to draw the inference of intention. The judge will make
    the ultimate determination of whether to do so on the whole of the evidence. In
    our view, the application judge was entitled to refrain from doing so. She was
    correct in noting that Ms. Cube did not own the land at the relevant time, or
    even know who put up the fence, and that Ms. Cube did not claim in her
    affidavit to have knowledge of the intentions of the owners throughout the
    relevant period. Absent any evidence from the owners at the time, the application
    judge was not persuaded. That was her decision to make.

[4]

In our view, the application judge made this decision without committing
    any errors of law or principle. We do not read the application judge as having
    stated inaccurate propositions of law relating to the kind of evidence that is
    required to succeed in an adverse possession claim. She was not saying, for
    example, that as a matter of law there must be evidence from predecessors in
    title to prove intention. Instead, she was observing accurately the difficulty
    that the absence of such evidence presents in adverse possession claims, and
    how such evidence
may
be necessary to prove intention. Nor was she
    citing
Penwest Development Corp. v. Youthdale Ltd.
, 46 R.P.R. (4
th
)
    124 (Ont. S.C.) as authority for a legal rule that it is not permissible to
    draw inferences from a fence without evidence of the circumstances surrounding
    the building of the fence. She cited the
Penwest
case as an
    illustration of how uncertainty about such circumstances can undermine the
    circumstantial force of the evidence on the issue of intention.

[5]

Nor do we accept that the application judge engaged in improper speculation
    by positing scenarios in which a fence would not signal an intention to
    exclude. It is natural and appropriate in considering whether a fact has been
    proven to consider alternative factual scenarios that have not been ruled out
    by the evidence.

[6]

Nor did the application judge err in concluding that she could not be
    satisfied that this was a case of mutual or unilateral mistake. She had no
    evidence from the parties on which she was compelled to draw that inference,
    and it was open to her not to.

[7]

It is not for us to interfere with the factual decision arrived at by
    the application judge. The appeal is dismissed. Costs are payable to Mr. Doheny
    in the amount of $9,876.91, inclusive of disbursements and HST.

David M. Paciocco J.A.
Harvison Young J.A.
B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sheikh (Re), 2019 ONCA 692

DATE: 20190904

DOCKET: C66548

Sharpe, van Rensburg and Thorburn JJ.A.

IN THE MATTER OF:  Andrew Sheikh

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti for the Appellant, Andrew Sheikh

Andrew Cappell for the Respondent, Her Majesty the Queen

Janice Blackburn for the Respondent, St. Josephs
    Healthcare Hamilton

Heard: September 3, 2019

On appeal from the disposition of the Ontario Review
    Board dated, September 13, 2018, with reasons dated January 28, 2019.

REASONS FOR DECISION

[1]

Andrew Sheikh was found not criminally responsible on account of mental
    disorder (NCR) on charges that included criminal harassment. He has been under
    the jurisdiction of the Ontario Review Board (the Board) since July 2013. He
    appeals from the disposition of the Board dated September 13, 2018 (reasons
    released January 28, 2019). The disposition provided for his conditional
    discharge on terms which included taking his psychiatric medication, reporting
    to the hospital once a month, abstaining absolutely from non-medical use of drugs
    or alcohol, and providing breath/urine samples.

[2]

The appellant also appeals the decision of the same date that his
    readmission to hospital on July 5, 2018 (the Restriction of Liberties) was
    warranted or represented the least restrictive measure in the circumstances.

[3]

The appellant asserts that he is not a significant threat to the safety
    of the public and that the Board should have granted him an absolute
    discharge.

[4]

The respondents, Her Majesty the Queen and St. Josephs Healthcare
    Hamilton (the Hospital) oppose the request for an absolute discharge. The respondents
    submit that the Boards decision to grant a conditional discharge was
    reasonable as, on the evidence before the Board, the appellant posed a
    significant threat to public safety.

[5]

The Respondent Hospital also seeks to introduce as fresh evidence, an
    affidavit of the appellants attending psychiatrist attaching the Hospitals
    report, prepared for his upcoming annual Board hearing which is scheduled for
    September 12, 2019. The fresh evidence speaks to the appellants conduct since
    the time of the Hearing.

[6]

The court may admit fresh evidence where:

a)

the evidence could not by due diligence have been adduced at first
    instance;

b)

the evidence is relevant in that it bears upon a decisive or potentially
    decisive issue in the trial,

c)

the evidence is credible, and

d)

the evidence, if believed, could reasonably when taken with the other
    evidence adduced, affect the outcome.

[7]

New evidence that was not available at the time of the first proceeding
    may be introduced on appeal if the evidence is necessary to deal fairly with
    the issues on appeal and to decline to admit the evidence could lead to a
    substantial injustice in the result:
R. v. Palmer
, [1980] 1 S.C.R. 759
    at p. 13;
Monteiro v Toronto Dominion Bank
, 20 E.T.R. (3d) 305 (Ont. S.C.)
    at para. 3; and
Visagie v. TVX Gold Inc
, (2000), 49 O.R. (3d) 198 (Ont.
    C.A.), at para, 53.

[8]

In this case,

a)

the new evidence could not have been brought at the Ontario Review Board
    hearing as the incidents at issue arose after the hearing on September 13,
    2018;

b)

the evidence is relevant as it relates to his risk to the public;

c)

the evidence is credible as it is evidence that emanates from his
    treating psychiatrist; and

d)

the evidence, if believed, could, when taken with the other evidence
    adduced on this appeal, affect the outcome.

[9]

The Respondents submit that this new evidence that has become available
    since the hearing, strengthens their assertion that the appellant is a
    significant threat to public safety. The appellant asserts that the new
    evidence does nothing to change the risks associated with the appellant or the justification
    of his Appeal seeking an absolute discharge.

[10]

For
    reasons that follow, we find that the Board applied the wrong test in finding
    that the appellant continues to pose a significant risk to public safety. The
    test is not whether the appellants behaviour
could
lead to
    decompensation and therefore the risk of serious harm, but whether there is
    evidence to support a positive finding that there
is
a significant
    threat to public safety.

[11]

However,
    the respondents have satisfied the test for the introduction of new evidence on
    Appeal. That new evidence raises a concern about the appellants possible
    decompensation and renewed focus on the victim of the index offence since the
    Boards decision was rendered.  We therefore allow the appeal and remit the
    matter back to the Board for reassessment of this and other evidence now
    available.

[12]

Lastly,
    we agree with the appellant that although the Board explained why the
    appellants continued detention in the Hospital was no longer necessary or
    appropriate, the Board offered no reasons to support its conclusion that the Restriction
    of Liberties was initially warranted. It is unclear why the appellant was told
    he was re-hospitalized because he was a suicide risk. Dr. Chauhan stated that
    he was not brought in on that basis. However, that issue is now moot as the appellant
    was released for community living.

EVIDENCE BEFORE THE BOARD

A.

NCR FINDING

[13]

In
    2013, the appellant, was found NCR on charges of criminal harassment, uttering
    a threat to cause bodily harm, failure to comply with a recognizance, and two
    counts of failing to comply with probation. He had been diagnosed with
    schizophrenia compounded by cannabis use and cocaine dependency.

B.

The Index Offences

[14]

The
    appellants index offences arose out of his fixation with a former high school
    classmate (RG), with whom he otherwise had little contact. The communications
    began in 2011 and continued into 2013, escalating to sexually explicit comments
    that were vulgar and threatened sexual assault on RG, and including an
    attendance at RGs home, where he left a gift for her, in breach of the terms
    of his recognizance prohibiting contact with RG. After he was declared NCR, the
    appellants disposition provided for detention in the General Forensic Unit at
    the Hospital. One of the terms provided for community living, which was
    implemented in May 2015.

C.

The Hospitals ReasonS FOR THE APPELLANTs  Readmission

[15]

In
    July 2018, the appellant was readmitted to the Hospital. This was precipitated
    by concerns about a Facebook post, which his attending psychiatrist, Dr.
    Rebecca Chauhan, interpreted as an indication of elevated risk to the
    community. The post reads as follows:

If I die tomorrow, will you guys blow this shit up for me? No
    cause st. joes will threaten you to keep your mouth shut by not even doing
    anything to you cause youre a sheep..so I to live in a dying world with no one
    giving a fucking shit.

[16]

When
    asked what he meant, the appellant responded, If I die, who would care.

D.

The Hospital Report and the Testimony at the Hearing

[17]

The
    Hospital prepared a report dated August 8, 2018 for both the annual review and
    the Restriction of Liberties hearing. Dr. Chauhan and the appellant testified
    before the Board.

[18]

Dr.
    Chauhan had diagnosed the appellant with schizophrenia and cannabis use
    disorder. She noted that when he was admitted to the Hospital in July 2018,
    there were concerns around his psychomotor agitation, not sleeping, extreme
    irritability, and argumentativeness. For the first week, he stayed up all night
    about once a week and on July 19, 2018, when he drank eight espressos, he began
    pacing the halls and loudly reciting profane lyrics.

[19]

Dr.
    Chauhan described the appellants insight into his mental illness as being
    variable. She noted that on July 10, 2018, two days after putting up the
    Facebook post, he wrote:

If I wanted to kill myself I would sign out my razor and break
    it open and   But I didnt. Ive done over 50 push ups a day hundreds of laps
    and 2 ab work outs a day  HOW AM I UNFIT FOR SOCIETY???

[20]

On
    July 28, 2018, the appellant tested positive for THC.

[21]

Dr.
    Chauhan was concerned that the 2018 posts were a re-emergence of psychosis that
    was linked to the index offence. She noted that:

[The appellant] Mr. Sheikh has struggled to remain abstinent
    from illicit substances [marijuana] and has recently tested positive while
    admitted to hospitalMr. Sheikh has poor insight into his need to take
    medication in the short-term to help him get out of hospital and move toward an
    absolute discharge.

[22]

The
    Hospital report concluded that,

Absent a disposition mandating him to report for treatment and
    abstain from illicit substances, there is little doubt, that Mr. Sheikh would
    stop taking his anti-psychotic medications and would return to regular use of
    cannabis.  In turn, Mr. Sheikhs psychotic symptoms would return and it is
    within the context of a relapse of his psychotic symptoms that Mr. Sheikh would
    most probably become verbally or physically threatening toward others.  Mr.
    Sheikh is likely to first demonstrate threatening behaviour through social
    media or his music and progress to more direct forms of verbal or physical
    aggression as he becomes increasingly unwell and disorganized.

[23]

When
    asked if a conditional discharge would be appropriate Dr. Chauhan said that:

My greatest concern with the conditional discharge is he is
    just recovering from a mild episode of psychosis.  It was caught early, hes
    back on track.  This will be a vulnerable period for himHis period of becoming
    unwell was quite rapid.

[24]

Dr.
    Chauhan testified that, although the appellant was not physically violent since
    he was declared NCR in 2013, the Hospital treatment team was of the unanimous
    opinion that, if released on an absolute discharge, he continued to pose a
    significant threat to the safety of the public.

THE BOARD DECISION

[25]

Four
    of the five Board members found that readmission in July 2018 was warranted,
    but that the continued restrictions on the appellants liberties through his
    detention in the Hospital were no longer warranted. They found that the appellant
    continues to be a significant threat to the safety of the public. They rejected
    the respondents request for a continuation of the existing disposition and
    ordered a conditional discharge with terms including compliance with
    psychiatric medication, reporting to the hospital once a month, and providing
    breath/urine samples.

[26]

The
    majority referred to Dr. Chauhans interpretation of the appellants 2018
    Facebook Post as a call to blow up the hospital notwithstanding the appellants
    assertions to the contrary and the plain meaning of the words.

[27]

The
    majority of the Board held that the appellant should receive a conditional
    discharge to live in the community under conditions set by Hospital staff. The
    majority relied on the uncontroverted expert evidence of Dr. Chauhan and the
    Hospital Report to conclude that:

without close supervision, Mr. Sheikh
    would likely become non-compliant with prescribed medications, which could lead
    to decompensation, use of substances and the re-emergence of behaviours similar
    to those that preceded the index offence
.  As a result, there is no air
    of reality to an Absolute Discharge. [Emphasis added.]

[28]

One
    member would have granted an absolute discharge on the basis that the appellant
    was no longer a threat to public safety. In her minority reasons, she accepted
    the appellants explanation of why he made the Facebook post and she did not
    interpret the Facebook message as threatening or as an indication of a
    deteriorating mental state, but rather as a reflection of what would happen if
    he died. She also found that there was never evidence that the Appellant
    presented a risk of serious physical harm. She noted that Dr. Chauhan failed
    to connect the appellants use of cannabis as a contributing factor in the
    index offence, or quite frankly as to how his cannabis use impacts his mental
    state. She concluded that there is an absence of a positive finding of
    significant threat, recognizing that there will always be some degree of risk.

[29]

The
    minority Board member noted that the Appellant was reintegrated into the
    community and had been working and responsible for his portion of the rent,
    food and car insurance.  He had lived,

three years without any contact with the victim of the index
    offence and had complied with his conditions, successfully reporting as
    directed. .Mr. Sheikh has been managing his risk to the community. Living in
    the community for a period of three years, without any incidents or evidence of
    unmanaged risk is a significant duration which allowed him to advance his
    education and skill set.  He made new friends and continued to work at the
    Colours Café located at the Hospital.  His work performance was successful, and
    he remained connected to the Hospital by choosing to continue working at the
    café.

[30]

She
    did not accept Dr. Chauhans assertion that the appellant engaged in
    physically threatening behaviour when admitted to Hospital in 2018, and that
    it required security personnel because there was no evidence to support the
    assertion.  Security personnel were not called to assist.

[31]

The
    minority also noted that there was no evidentiary foundation for Dr. Chauhans
    assertion that the appellants Facebook post meant he was going to blow up
    the Hospital as there is no evidence his behaviour would amount to physical
    aggression. The minority further held that,

the subject Facebook post does not have any qualities of the
    Facebook post which predicated the index offence. There is no evidence of
    sexually aggressive threats. It was not intended for a specific recipient. It
    was not aimed at the victim in any way.  Moreover, it does not speak to threat
    of suicide.

[32]

For
    these reasons, the minority,

does not accept that Mr. Sheikh presently exhibits severe
    symptoms of his mental illness.  The minority finds quite clearly that Mr.
    Sheikh no longer continues to pose a significant threat to the safety of the
    public to the degree of causing harm of a criminal nature to others should he
    be discharged at this point in his recovery.

[33]

She
    therefore concluded that he was entitled to an absolute discharge.

ANALYSIS AND CONCLUSION

[34]

An
    NCR accused is entitled to his liberty absent a reasonable finding that he
    constitutes a significant threat to the safety of the public:
Wall (Re)
,
    2017 ONCA 713, 417 D.L.R. (4th) 124. A significant threat is defined in s. 672.5401
    of the
Criminal Code
as a risk of serious physical or psychological
    harm to member of the public resulting from conduct that is criminal in nature
    but not necessarily violent. There must be a risk that the NCR accused will
    commit a
serious
criminal offence, and a minuscule
    risk of grave harm is not sufficient:
R. v. Winko
, [1999] 2 S.C.R. 625,
    at paras. 57, 69. The significant threat must be more than speculative and
    supported by evidence:
Winko
, at para. 57. That is, there must be both
    a likelihood of a risk materializing and the likelihood that serious harm will
    occur:
Re Carrick
, 2015 ONCA 866, 128 O.R. (3d) 209, at para. 16.

[35]

This
    court may interfere with the Boards disposition only where it concludes that
    (a) the disposition is unreasonable or cannot be supported by the evidence; (b)
    the order is based on a wrong decision on a question of law (unless no
    substantial wrong or miscarriage of justice has occurred); or (c) there was a
    miscarriage of justice:
Re Kassa
, 2019 ONCA 313, 154 W.C.B. (2d) 169 at
    para. 32, citing s. 672.78(1) of the
Criminal Code
;

and
R.
    v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31.

[36]

At
    the time of the hearing, the appellant had been under the Boards jurisdiction
    without incident for more than five years. During that time, he made
    considerable progress in managing his illness, he was adhering to Hospital
    rules, attended medical appointments, and there was no evidence he had not been
    taking his prescribed medication. There is also no evidence that at that time,
    he was taking cocaine, which he linked to the commission of the index offences.
    While Dr. Chauhan noted the Appellants use of cannabis, she did not articulate
    how this contributed to the deterioration of his mental state. It is apparent
    that the most significant indicator for Dr. Chauhan of the appellants risk was
    his Facebook post on July 14, 2018. While the Facebook post may well have
    indicated disorganized thoughts as part of the appellants decompensation, we
    find it difficult to accept Dr. Chauhans conclusion that the appellant was
    threatening to blow up the Hospital.

[37]

It
    is clear that the appellant suffers from mental illness and exhibited some
    agitation, irritability, and other symptoms when admitted to the Hospital in
    2018. We are also aware that there will always be some degree of risk.

[38]

We
    are cognizant however, that there must be a real risk of physical or
    psychological harm arising from criminal conduct. That standard is an onerous
    one that requires a careful assessment of the level of risk. The Boards concluded
    that without close supervision, the appellant would likely become noncompliant
    with the prescribed medication, which
could
lead
    to decompensation, use of substances and the re-emergence of behaviours similar
    to those that preceded the index offence (emphasis added). This is not a
    determination of the real risk of physical or psychological harm occurring as a
    result of the appellant engaging in criminal conduct if granted an absolute
    discharge:
Kassa
, at paras. 35-37.

[39]

On
    the basis of the evidence available at the time of the hearing, we are unable
    to conclude that the Board would have reached the same decision if it had
    applied the test articulated in
Winko
.

NEW EVIDENCE AND THE PROPER DISPOSITION OF THIS APPEAL

[40]

The
    respondent Hospital has prepared a further annual report for the purpose of the
    appellants annual hearing which is scheduled to take place on September 12,
    2019.

[41]

The
    respondent Hospital adduced new evidence about the appellants behaviour since
    the September 2018 Board hearing. The respondents assert that the fresh
    evidence confirms that the appellant remains a significant threat to public
    safety such that an absolute discharge would not be an appropriate disposition
    at this time. The appellant argues that the fresh evidence underscores that an
    absolute discharge is warranted, because none of the events that were predicted
    by the Hospital in concluding that he remained a significant threat to public
    safety have come to pass. The new evidence, consisting of the Hospital report
    for the upcoming annual review discloses, among other things: that the
    appellant on occasion has tested positive for medication he was not prescribed
    and negative for medicine he was prescribed; he advised that for approximately half
    the time he had been taking only half doses of his prescribed medication; and
    that the appellant had tested positive for cocaine on many occasions. In April
    2019, he was admitted to the Hospital as a voluntary patient but was placed on
    involuntary admission on April 23, 2019 due to his decompensated mental status,
    physical health, irritability, and drug use. And in July 2019, the appellant
    explained that the stage name he chose while creating his rap music was related
    to RG, the victim of the index offence.

[42]

This
    new evidence is concerning. It suggests that the appellant has begun using
    cocaine, a drug that the treatment team considers a risk, and that even the
    appellant associates with his commission of the index offences. The appellant
    has not been taking all of his medication, notwithstanding the assertions at
    his September 2018 hearing that he would continue to take his medications even
    if granted an absolute discharge. Perhaps most importantly, the appellant has,
    apparently for the first time in six years, referred to the victim of the index
    offences.

[43]

In
    the circumstances, although we have concluded that the Board applied the wrong
    test in determining that the appellant continues to pose a significant risk of
    harm, we are unable to grant the remedy that he is seeking, an absolute
    discharge. We are obliged to consider not only the evidence that was before the
    Board at the time of the September 2018 review, but also any reliable and
    relevant information available on appellate review:
Owen
, at para. 59.
    The new evidence concerning the Appellants behaviour is clearly relevant to
    the assessment of the threshold issue: whether he continues to pose a
    significant risk of harm, and because it was only recently available, it has
    not been tested through cross-examination. The matter is therefore remitted to
    the Board for reconsideration, to determine whether there is sufficient
    evidence to satisfy the Board that the Appellant now poses a significant threat
    to the safety of the public and if so, the appropriate disposition.

[44]

For
    these reasons, the fresh evidence is admitted, the appeal is granted, and the
    matter is remitted to the Board for reassessment, to determine whether there is
    sufficient evidence to satisfy the Board that the Appellant poses a significant
    threat to public safety.

Robert
    J. Sharpe J.A.

K.
    van Rensburg J.A.

Thorburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sim (Re), 2019 ONCA 719

DATE: 20190913

DOCKET: C66359

Pardu, Brown and Trotter JJ.A.

IN THE MATTER OF: Donovan Ray Sim

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Megan Petrie, for the respondent, Attorney
    General of Ontario

Marie-Pierre T. Pilon, for the respondent,
    the Person in Charge of the Royal Ottawa Health Care Group

Heard: September 6, 2019

On appeal against the disposition of the
    Ontario Review Board, dated November 8, 2018, with reasons dated December 19,
    2018.

REASONS FOR DECISION

OVERVIEW

[1]

Mr. Donovan Sim appeals from the November 8,
    2018 disposition of the Ontario Review Board (the Board) that continued his
    conditional discharge, with reduced conditions. He submits the Board erred in
    holding that he continues to pose a significant risk to the safety of the
    public. Mr. Sim asks this court to set aside the Boards disposition and grant
    an absolute discharge. In the alternative, he seeks a new hearing before a
    differently constituted Board panel.

[2]

For the reasons set out below, we allow the appeal
    and direct the Board to hold a new hearing before a differently constituted
    panel.

BACKGROUND FACTS

[3]

Mr. Sim is 49 years old.

[4]

He has a long history of mental illness; his
    first admission to a psychiatric facility was in 1999. At the time of the Board
    hearing, his diagnosis was: schizoaffective disorder  treatment resistant with
    residual symptoms including positive symptoms; polysubstance dependence, which
    was in remission in a controlled environment; antisocial personality
    disorder; and schizoid traits. At the time of the hearing he was taking several
    medications, including Clozapine.

[5]

Mr. Sim has a long history of substance abuse
    involving alcohol, cannabis, and methamphetamine. Some of his criminal conduct
    was associated with his addiction to methamphetamine. Prior to his first index
    offence in 2000, Mr. Sim had accumulated over 30 convictions, seven of them for
    assaultive behaviour.

[6]

In 2000, he was found not criminally responsible
    on account of mental disorder on a charge of theft under $5,000 involving a
    car. He was detained in a series of hospitals. In 2007, he left a hospital
    without authorization, decompensated and, upon his admission to CAMH in
    November 2007, seriously assaulted nursing staff. This led to a second NCR
    verdict in 2008.

[7]

From November 2007 until October 2009, Mr. Sim
    was detained at Oak Ridge. He was then transferred to the Brockville Mental
    Health Centre (Brockville). In August 2012, Mr. Sim went AWOL for several
    days; at the time of his return to Brockville he was labouring under
    significant delusions.

[8]

Thereafter, Mr. Sim was cooperative with his
    treatment team and compliant with his prescribed medication. In July 2014, he
    was discharged to reside in a 24-hour supervised group home. In September 2015,
    he moved to an 8-hour supervised residence. In September 2016, he moved into
    co-op shared accommodation, where he was living at the time of his 2018
    hearing.

[9]

In March 2017, Mr. Sim used cannabis with his
    apartment mate over a weekend. This was his first relapse into substance use after
    several years of abstinence. At the end of the weekend, Mr. Sim voluntarily
    went to the hospital and disclosed his use of cannabis. No changes were
    observed in his mental condition at that time.

[10]

In January 2018, Mr. Sim graduated from high
    school. According to the Boards reasons, during the review period Mr. Sim
    maintained his mental health stability and did not present with any evidence of
    psychosis.

RECENT BOARD DISPOSITIONS

2016

[11]

In its December 2016 disposition, the Board
    ordered Mr. Sim detained in the secure forensic unit of Brockville, with
    privileges that included living in approved outside accommodation.

2017

[12]

In its November 2017 disposition, the Board
    granted Mr. Sim a conditional discharge. In its reasons, the Board stated, at
    para. 50:

[Mr. Sim] has continued to make progress both
    in hospital and since his discharge into the community in July 2014. Living in
    the shared apartment setting now for over a year, he has remained well, despite
    one-time use of marijuana over three days in March 2017. Apart from that
    incident, the Board agrees with counsel when he submits that the accused has
    done everything required of him.

[13]

In assessing the issue of significant risk to
    the safety of the public, the Board noted that it was critical that Mr. Sim
    come to a more complete understanding of the harm that would result from
    resuming substance use.

2018

[14]

In its December 19, 2018 disposition, the Board
    continued Mr. Sims conditional discharge but removed one of the conditions
    contained in the 2017 disposition: to abstain absolutely from the non-medical
    use of alcohol or drugs or any other intoxicant.

[15]

The Board concluded that it had no difficulty
    in concluding that Mr. Sim continued to represent a significant risk to the
    community:

[Mr. Sim] suffers from a long-standing mental
    illness in which he stills lacks good insight. He has a long history of
    substance use which was a factor in some of the index offences and other
    assaultive behaviour in his significant criminal record.

Although Mr. Sim is doing well now, this is in
    the context of close monitoring of his condition and the imposition of
    conditions including the prohibition from using substances. The evidence before
    the Board is that should Mr. Sim use Cannabis, or other substances, there is a
    high likelihood that he would stop taking his medication. Until he started
    taking Clozapine, he had continued to present with psychosis. The fact that Mr.
    Sim used Cannabis last year and the fact that he does not recognize that
    substance use would have a significant impact on his mental illness raises
    significant concern. He has said that he does not believe that using Cannabis
    would change anything. He has also said that he might have a party and use
    Cannabis now that it is legal to do so.

The Board agrees with Dr. Ahmed that it will
    be crucial that Mr. Sim develop a good understanding of the negative
    consequences of substance use on his mental illness and that he internalizes
    his commitment to remaining abstinent. Removing the condition in the Board
    disposition prohibiting substance use could be a good way of determining if Mr.
    Sim will abstain from substances without such a condition.

The Board agrees that the presence, or
    absence, of insight is not the test to determine if significant risk continues
    to exist. On the other hand, the Board is convinced that unless Mr. Sim can
    develop an understanding that Cannabis use could lead to a decompensation of
    his mental illness and an increased risk to the community, he will continue to
    require support and monitoring of his condition. While AWOL in 2007, he used
    cannabis. This contributed to a serious mental deterioration that culminated in
    the assault on the male nurse at CAMH which caused serious physical injury. He
    should be able to recognize that substance use had been a factor in several
    incidents of assaultive behaviour including some of the index offences.

The Board is convinced that the maintenance of
    a conditional discharge remains necessary in this case.

ANALYSIS

[16]

Mr. Sim submits that the Boards disposition was
    unreasonable because it failed to conduct a proper assessment of whether he was
    a significant threat to the safety of the public. Instead, the Board focused
    on whether he possessed sufficient insight into the effect of cannabis use on
    his mental condition, letting that condition improperly dominate its analysis.

[17]

We accept Mr. Sims submission.

[18]

Under s. 672.54 of the
Criminal Code
,
    on an annual review the Board must inquire into and determine whether an NCR
    accused is a significant threat to the safety of the public. Where it
    determines he is not, the Board must direct an absolute discharge. The meaning
    of the phrase significant threat to the safety of the public is well settled.
    It was summarized in
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d)
    451, at para. 8:

The phrase refers to a foreseeable and
    substantial risk of physical or psychological harm to members of the public
    that is serious and beyond the trivial or annoying.  A very small risk of
    even grave harm will not suffice.  A high risk of relatively trivial harm
    will also not meet the substantial harm standard.  While the conduct must
    be criminal in nature, not all criminal conduct will suffice to establish a
    substantial risk.  There must be a risk that the NCR accused will commit a
    serious criminal offence.

[19]

In conducting its inquiry, the Board may have
    recourse to a broad range of evidence, including: the past and expected course
    of the NCR accuseds treatment, if any; the present state of the NCR accuseds
    medical condition; the NCR accuseds own plans for the future; the support
    services existing for the NCR accused in the community; and the assessments
    provided by experts who have examined the NCR accused:
Winko v. British
    Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para.
    62(5).

[20]

As part of its examination of the present state
    of the NCR accuseds medical condition, the Board is entitled to consider
    evidence concerning the accuseds understanding of or insight into his medical
    condition. As this court stated in
Woods (Re)
, 2019 ONCA 87, at para.
    17: Lack of insight has its place in the overall clinical picture.

[21]

However, evidence regarding an NCR accuseds
    insight must be assessed in the context of the entirety of the record before
    the Board. To use the language of
Woods
, evidence of insight should
    not dominate the significant threat analysis: at para. 17. Instead, it forms
    part of the broad range of evidence before the Board. The Board must
    sensitively evaluate
all
the relevant factors on
    an ongoing basis (emphasis added) and make, as best it can, an assessment of
    whether the NCR accused poses a significant threat to the safety of the
    public:
Winko
, at para. 59.

[22]

This court repeated the point recently in
Kalra
    (Re
), 2018 ONCA 833, at para. 52:

It bears stating that
    lack of insight is not of itself a basis to deny an absolute discharge
. As the Supreme Court instructs, the mentally ill are not
    inherently dangerous:
Winko
, at para. 35.
Whether
    an NCR accused has insight into his or her mental illness, and the extent of
    that insight, is only part of the analysis in determining if there is a
    significant threat to the safety of the public
. While insight is a
    treatment goal, it is one some persons living with mental illness may be unable
    to fully achieve. In some instances, particularly where the contemplated harm
    falls at the lower end of the spectrum, it may be unreasonable to require, as
    the Board did here, that an NCR accuseds insight into his or her illness be
    entrenched on his consciousness in order to obtain an absolute discharge. [Emphasis
    added.]

[23]

In the present case, the disposition reached by
    the Board was unreasonable for two reasons.

[24]

First, the Board lost sight of the key issue:
    Did the evidence, as a whole, demonstrate that Mr. Sim presented a foreseeable
    and substantial risk of physical or psychological harm to members of the public
    that is serious and beyond the trivial or annoying? Instead, the Board focused
    on the degree of Mr. Sims insight into his medical condition. Although in its
    reasons the Board expressly agreed that the presence, or absence, of insight
    is not the test to determine if significant risk continues to exist, a reading
    of its reasons leads to the conclusion that in fact it was the major focus of
    the Boards analysis, overshadowing the required consideration of the rest of
    the evidence relevant to the statutory inquiry of whether Mr. Sim posed a
    significant threat to the safety of the public.

[25]

There was considerable evidence relevant to the
    statutory test: the evidence of Mr. Sims continued progression; his
    increasingly independent living arrangements; his long-standing compliance with
    his medication regime; a dated history of violent conduct; his limited use of
    marijuana; the self-reporting of his March 2017 marijuana use; and the lack of
    any change in his medical condition stemming from that use. None of that
    evidence finds express treatment in the Boards analysis in the Conclusion and
    Disposition section of its reasons. At most, that evidence is subsumed in the
    Boards seven-word phrase: Although Mr. Sim is doing well now ... With
    respect, that does not constitute the depth of evidentiary analysis required by
Winko
to support a disposition that can be justified as a reasonable
    one.

[26]

The second reason why the Boards disposition is
    unreasonable also concerns the inadequacy of its evidentiary analysis. On the
    face of its reasons, the Board did not conduct an even-handed assessment of Mr.
    Sims evidence. The Boards disposition was driven primarily by its conclusion
    that Mr. Sim did not recognize that substance use would have a significant
    impact on his mental health. The Board stated: [Mr. Sim] has said that he does
    not believe that using Cannabis would change anything. He has also said that he
    might have a party and use Cannabis now that it is legal to do so.

[27]

That part of the Boards reasons was based on a
    statement attributed to Mr. Sim in the hospital record. However, the Board was
    selective in its use of that part of the hospital record. The Board failed to
    recite the complete statement attributed to Mr. Sim. The hospital record
    stated: With regards to Mr. Sims insight into cannabis use, however, he
    stated that cannabis is soon going to be legalI may just have one party at least
but its almost zero
 (emphasis added). The Board
    neglected to include the qualifier  but its almost zero  in its
    consideration of Mr. Sims statement.

[28]

As well, the analysis section of the Boards
    reasons failed to address how Mr. Sims direct evidence at the hearing about
    his insight factored into its determination. In his evidence-in-chief, Mr. Sim
    testified about his insight into his medical condition, stating that he did not
    intend to use cannabis if granted an absolute discharge. His counsel asked him
    why. Mr. Sim answered: Because it will make me sick again  I dont want to
    get sick; I hate it. Mr. Sims evidence continued:

Mr. Brodsky: And the last thing I wanted to
    ask you is, in terms of the  we heard Clozapine is something that youre taking
    for your psychiatric condition. The medication that youre taking for your
    psychiatric condition, whatever it is at the time, how long do you think you
    need to be taking that medication?

Mr. Sim: For the rest of my life.

Mr. Brodsky: Okay. Why?

Mr. Sim: Because Ill get sick.

[29]

Although the Board referred to Mr. Sims
    evidence in the early section of its reasons setting out the evidence given at
    the hearing, the Board made no use of it in its analysis section.

[30]

In the result, the Board agreed with Dr. Ahmed,
    Mr. Sims attending psychiatrist, that it would be crucial that Mr. Sim
    develop a good understanding of the negative consequences of substance use on
    his mental illness and that he internalizes his commitment to remaining
    abstinent. Yet, the Board did not explain why Mr. Sims evidence-in-chief did
    not display precisely such an understanding. Put another way, on the issue of
    Mr. Sims insight into his medical condition that played the determinative role
    in the Boards analysis  at least on the face of its reasons  the Board
    provided no explanation about why it preferred Dr. Ahmeds evidence over that
    of Mr. Sim.

[31]

Absent such an explanation, the Boards
    disposition, based as it was on Mr. Sims lack of insight, is not supported by
    the evidence:
Sheikh (Re)
, 2019 ONCA 692, at para. 35, citing s.
    672.78(1) of the
Criminal Code
.

[32]

The failure of the Board to deal expressly with
    the conflicting evidence on the critical issue of insight, when coupled with
    its losing sight of the statutory test, renders its decision unreasonable. The
    Board did not conduct the careful assessment of the level of risk required by
    the onerous standard set out in s. 672.5401 of the
Criminal Code
, the
    same deficiency in reasons identified last year in two decisions of this court:
Marchese (Re)
, 2018 ONCA 307, 359 C.C.C. (3d) 408, at para. 8; and
Hammoud
    (Re)
, 2018 ONCA 317, at para. 9.

DISPOSITION

[33]

For the reasons set out above, we allow the
    appeal, set aside the November 8, 2018 disposition, and remit the matter to the
    Board for a new hearing as soon as possible before a differently constituted
    panel to determine whether there was sufficient evidence for the review period
    to satisfy the Board that Mr. Sim posed a significant threat to public safety.

[34]

According to counsel, Mr. Sims next annual
    review is scheduled for October 7, 2019. The new hearing that we have directed
    should be heard either before or together with that scheduled annual review.

G.
    Pardu J.A.

David
    Brown J.A.

Gary
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Tarantino v. Galvano, 2019 ONCA 699

DATE: 20190906

DOCKET: C64144

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

BETWEEN

Tecla Tarantino and Rosa
    Pignatelli

Plaintiffs (Appellants)

and

Nellie Galvano also known as Leonarda Galvano

Defendant (Respondent)

Nicholas C. Tibollo, for the appellants

Cameron R.B. Fiske, for the respondent

Heard: September 3, 2019

On appeal from the
    judgment of Justice Freya Kristjanson of the Superior Court of Justice, dated July
    4, 2017, with reasons reported at 2017 ONSC 3535.

REASONS FOR DECISION

[1]

The appellants Tecla Tarantino and Rose Pignatelli are the
    granddaughters of the deceased, Rosa Galvano. The respondent Nellie Galvano is
    the deceaseds daughter. A second daughter, Giuseppina, who died in 2007, was
    Teclas and Roses mother.

[2]

All three of the parties (Tecla, Rosa and Nellie) were beneficiaries
    under Rosas will. Unfortunately, after Rosas death the parties were unable to
    agree on the interpretation of some of the terms of the will.

[3]

At the conclusion of a six-day trial, Kristjanson J. of the Superior
    Court of Justice decided,
inter alia
,
    at paras. 93, 114, 131 and 141
:

·

Nellies conveyance, exercising her power of attorney with
    respondent to Rosas property, of Rosas 80.39 per cent interest in the family
    home to herself was a nullity; and

·

Nellie was entitled to a payment of $273,039.54 from Rosas
    estate for Nellies personal care of Rosa from December 6, 2007 to Rosas death
    on February 20, 2012.

[4]

The appellants appeal from the second of these components of the trial
    judges decision. They do so on three bases.

[5]

First, the appellants contend that the trial judge erred by not deciding
    that the respondent had to pay occupation rent once the respondent, and her son
    Claudio, decided to continue living in the house after Rosas death. Rosas
    will provided that Nellie was entitled to stay in the house for six months
    after her death. The house was then to be sold, with Nellie having a right of
    first offer/first refusal. Nellie and Claudio did not leave the house after six
    months following Rosas death, nor did they put it up for sale. They continued
    to live in it, seven years after Rosas death. The appellants contend that Nellie
    and Claudio should pay occupation rent for this entire time and that the amount
    of occupation rent should be set off against the award in favour of Nellie for
    her long-time personal care of Rosa prior to her death.

[6]

We do not accept this submission. The core of the trial judges
    reasoning on this issue was:

[148] In November, 2014, the granddaughters sought and obtained
    an undertaking that Nellie would not sell the house or deal with the property
    until this litigation was completed. This, in effect, prevented the sale of the
    house. It would be wrong to have Nellie pay rent to now when she was prevented
    from selling the house by the granddaughters themselves. Importantly, Nellie
    was prevented from exercising her right to purchase the house under the Will by
    virtue of the undertaking, and under the Will, Nellie is beneficial owner of
    59.81% of the house. Given that the litigation between the parties left the
    Estate unable to deal with the house during the time period Nellie was in
    occupation, it would be unfair now to charge Nellie for "rent" that
    accrued during that time period and I do not so order. At the same time, given
    that she did have the benefit of occupancy in this period, the expenses incurred
    by Nellie such as property taxes and maintenance expenses will be borne by
    Nellie.

We agree with this reasoning. It reflects the trial
    judges approval of Nellies honest, but mistaken, belief in her legal rights,
    her sacrifice of her own interests for Rosas care, and the complex and
    challenging relationship between Nellie and her nieces both before and after
    Rosas death. We cannot say that the trial judge erred in declining to grant
    the appellants equitable relief.

[7]

Second, the appellants submit that the trial judge erred in her
    calculation of the occupancy costs relating to the house. Nellie and Claudio
    lived in the house with Rosa for many years before her death. During most of
    those years they shared occupancy costs. However, the trial judge determined
    that in the final five years of their shared life together, the occupancy costs
    of the house should be attributed entirely to Rosa because of her desperate
    health situation and the extreme burden this imposed on her caregivers,
    especially Nellie. Referring to an expert report commissioned by the appellants
    (the Mak Report), the trial judge said:

[94] Mak made an occupancy cost assumption, which I reject.
    In Maks evidence, all utilities are subject to an occupancy cost allocation
    (1/3 to Rosa, 2/3 to Nellie and Claudio). I find that Rosa required 24 hour a
    day care. Nellie and Claudio, and later Meth Garcia, lived in the house and
    provided care to Rosa 24 hours a day. In order to be cared for by a caregiver
    team, it was essential that the water tank held hot water, that the lights were
    turned on, and the home was heated. Since the decision was properly made to
    provide care to Rosa in her home, those costs are allocated to Rosa. In each
    case, I accept the expenses commencing after December 6, 2007, to the most recent
    bill following Rosas death on February 20, 2012. Therefore, I accept Mr. Maks
    calculations on Schedules 5 and 5.1 for the period December 17, 2007 to March
    12, 2012, except that no occupancy cost assumption is to be applied, and I find
    all the costs are Rosa-related.

[8]

The appellants say that this analysis and conclusion are wrong because
    there was no good reason for a change in the long-time, and mutually accepted,
    allocation of occupancy costs in the household.

[9]

We are not persuaded by this submission. The reality is that in late
    2007 Rosas health began a catastrophic descent and this descent lasted for
    more than five years, until her death in February 2012. This fundamentally
    changed the dynamic in the household and introduced a very different role for
    Nellie and Claudio as full-time caregivers. Accordingly, we agree with the
    trial judges ultimate conclusion on this issue:

[96] I attribute all of the occupancy costs in Mr. Maks
    schedules to the personal care of Rosa. Having accepted that Rosa's wish was to
    be looked after at home, and having accepted that in her capacity as attorney
    for personal care it was appropriate for Nellie to make arrangements for Rosa
    to be looked after in the home, those expenses are properly attributable to the
    care of Rosa.

[10]

Third,
    the appellants raise a very minor issue, namely, that Rosas estate is owed
    either $5,041 or $4,818 for income that has not been accounted for against
    expenses.

[11]

We
    do not accept this submission. On this minor issue, the trial judge did not fix
    a specific number to the relevant expenses. She said at para. 106: The income
    and expenses require adjustment, pursuant to my findings. The parties may
    request a case conference if they need to clarify the schedules and amounts.
    The appellants have not availed themselves of this route.

[12]

The
    appeal is dismissed. The respondent is entitled to her costs of the appeal
    fixed at $15,000, inclusive of HST and disbursements.

G.R. Strathy C.J.O.

J.C. MacPherson J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ting (Re), 2019 ONCA 768

DATE: 20190930

DOCKET: M50799 (C66547)

Brown
    J.A. (Motion Judge)

In the
    Matter of the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3, as Amended

And in
    the Matter of a Proceeding in the Hong Kong Special Administrative Region Re: James
    Henry Ting (in Bankruptcy)

Application
    of Cosimo Borrelli and Jacqueline Walsh of Borrelli Walsh Limited Under Section
    269 of the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3, as Amended

Robert Rastorp and Arash Jazayeri, for
    the moving party Andrew Henry Ting

Ilan Ishai, for the responding party
    Cosimo Borrelli and Jacqueline Walsh, the Foreign Representatives and trustees
    in bankruptcy of James Henry Ting

Heard: September 26, 2019

REASONS
    FOR DECISION

OVERVIEW

[1]

The moving party, Andrew Henry Ting, is the son of James Henry Ting, who
    has been adjudged bankrupt by a Hong Kong court. Earlier this year, a judge of
    the Commercial List enforced letters of request from the Hong Kong court and
    ordered Andrew to produce documents relating to his fathers bankruptcy estate
    and attend for examination. This court quashed an appeal from that order.
    Andrew has applied for leave to appeal to the Supreme Court of Canada from the
    order of this court. He now moves for a stay of the production and examination
    order pending the determination of his leave application.

BACKGROUND

[2]

James was adjudged bankrupt by order of the High
    Court of the Hong Special Administrative Region dated November 29, 2016 (the
    Bankruptcy Order).

[3]

The record strongly suggests that James did not
    appeal the Bankruptcy Order.

[4]

By order dated October 6, 2017, Conway J.,
    sitting on the Commercial List, granted an Initial Recognition Order pursuant
    to s. 269 of the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3
    (the
BIA
), recognizing the Hong Kong bankruptcy proceeding against
    James as a foreign main proceeding (the Initial Recognition Order).

[5]

James did not appeal the Initial Recognition
    Order, nor has he moved to set it aside on any basis.

[6]

On June 14, 2018, the Hong Kong court issued a
    letter of request seeking the assistance of the Ontario courts to order Andrew
    to produce certain documents relating to his fathers assets and affairs and to
    attend for examination. In August 2018, the trustees in bankruptcy of James
    estate, Cosimo Borrelli and Jacqueline Walsh (the Trustees), moved on the
    Commercial List for an order to enforce the letter of request.

[7]

Andrew opposed the order.

[8]

By order dated January 15, 2019, Penny J.
    recognized and enforced the letter of request, ordered Andrew to produce the stipulated
    documents, and required him to attend for examination (the January 15 Order).

[9]

On January 25, 2019 Andrew launched two
    challenges in this court to the January 15 Order. First, he filed a motion for
    leave to appeal under
BIA
s. 193(e). At the same time, he filed a
    notice of appeal that contended he could appeal as of right to this court
    pursuant to
BIA
s. 193(b) because the order or decision is likely to
    affect other cases of a similar nature in the bankruptcy proceedings.

[10]

By order dated May 30, 2019, a panel of this
    court dismissed Andrews motion for leave to appeal. Andrew was ordered to pay
    costs of $1,500. Although Andrew had not paid those costs as of the date of the
    hearing of this motion, his counsel undertook that the respondent would be paid
    within 48 hours.

[11]

By order dated June 21, 2019, a different panel
    of this court quashed Andrews appeal (the Order to Quash), writing:

No appeal as of right lies to this court under
    s. 193(b). Leave to appeal has been refused under s. 193(e). The motion to
    quash is granted. The appeal is quashed. Costs are fixed in the amount of $10,000
    all inclusive.

[12]

On September 18, 2019 Andrew filed with the
    Supreme Court of Canada his application for leave to appeal materials.

[13]

Andrew now moves for two forms of relief. First,
    he seeks leave to transcribe the digital audio recording of the June 21, 2019
    hearing before this court:
Practice
    Direction Concerning Civil Appeals at the Court of Appeal for Ontario, (March
    1, 2017),
at 17.3. Andrew wishes to file the transcript on his
    application for leave to appeal. At the hearing,
I
    granted Andrew leave to prepare a transcript of the hearing.

[14]

Second, Andrew
moves under s. 65.1(1) of the
Supreme Court Act
, R.S.C. 1985, c. S-26, for an order staying the January 15 Order and
    this courts Order to Quash, pending the determination of his application for
    leave to appeal.

GOVERNING PRINCIPLES

[15]

The test for granting a stay pending an
    application for leave to appeal to the Supreme Court of Canada is
    well-established. The moving party must demonstrate that: (i) there is a
    serious issue to be adjudicated on its proposed appeal, including that the
    appeal raises an issue of public or national importance; (ii) it will suffer
    irreparable harm if the stay is not granted; and (iii) the balance of
    convenience favours granting the stay. These three components are interrelated
    in that the overriding question is whether the moving party has shown that it
    is in the interests of justice that the court grant a stay:
Iroquois Falls
    Power Corporation v. Ontario Electricity Financial Corporation
, 2016 ONCA
    616, at paras. 14 and 15;
Livent Inc. v. Deloitte & Touche
, 2016
    ONCA 395, 131 O.R. (3d) 784, at para. 7.

ANALYSIS

Serious issue to be adjudicated

[16]

Andrew submits that his application for leave to
    appeal raises a serious issue of public importance that merits consideration by
    the Supreme Court of Canada. He argues that the Initial Recognition Order was
    obtained on an improper basis because the Trustees did not give James notice of
    their application to seek that order. It follows, Andrew contends, that the
    defective Initial Recognition Order could not provide a proper basis for Penny
    J. to make his January 15 Order enforcing the letters of request. As well, that
    defect taints this courts Order to Quash.

[17]

Central to Andrews argument is his contention
    that neither Penny J. nor this court gave proper consideration to
BIA
s. 284(1), which is found in Part XIII of the
BIA
dealing with
    Cross-Border Insolvencies, and states:

Nothing in this Part prevents the court, on the
    application of a foreign representative or any other interested person, from
    applying any legal or equitable rules governing the recognition of foreign
    insolvency orders and assistance to foreign representatives that are not
    inconsistent with the provisions of this Act.

[18]

Andrew
    contends that there is a legal or equitable rule that a person affected by an
    order must be given notice of the proceeding brought before a court to seek the
    order. James was not given notice of the application to seek the Initial
    Recognition Order as the Trustees did not serve him.

[19]

In their August 2017 affidavit in
    support of that application, the Trustees
stated they
    were unaware of the current whereabouts of [James] Ting. Andrew argues that
    statement was misleading. He points to a June 1, 2019 letter from the Trustees
    that demonstrates they knew about several addresses at which they could have
    attempted to serve James with the application for the Initial Recognition
    Order. As a result, Andrew submits, the Initial Recognition Order was not based
    on a proper foundation as it failed the basic Canadian tests of correctness and
    fairness. Andrew also argues that this court erred in failing to give proper
    consideration to the Trustees June 1, 2019 letter at the June motion to quash
    hearing.

[20]

In
    my assessment, the grounds for leave to appeal advanced by Andrew are very
    weak.

[21]

First,
    I have strong doubts that the ground of appeal articulated by Andrew amounts to
    a question of public or national importance. Although the orders he challenges
    were made in a proceeding under a federal statute, his complaint focuses on
    fact-specific aspects of the proceeding, in particular the adequacy of the
    notice given for the application seeking the Initial Recognition Order.

[22]

Second,
    while a party affected by a request for an order generally is entitled to
    notice through service of the originating documents, the court has the
    discretion to dispense with service:
Bankruptcy and
    Insolvency General Rules
, C.R.C., c. 368, r. 3; Ontario
Rules of Civil Procedure
, r. 16.04(1). Conway J., who
    granted the Initial Recognition Order, expressly dispensed with service: at
    para. 1.

[23]

Third,
    I agree with the conclusion of Penny J. that Andrews challenge to the
    procedural regularity of the Initial Recognition Order constitutes an
    impermissible collateral attack on that order.

[24]

Fourth,
    the conclusion of this court in its Order to Quash endorsement that no appeal
    as of right lies under
BIA
s. 193(b) in the
    circumstances of this case reflects the prevailing jurisprudence. As stated in
2403177 Ontario Inc. v. Bending Lake Iron Group Limited
,
    2016 ONCA 225,
396 D.L.R. (4th) 635,
at para. 32:

The jurisprudence under s. 193(b) of the
BIA
has consistently interpreted the section as meaning that a right of appeal will
    lie where the decision in question will likely affect another case raising the
    same or similar issues in the same bankruptcy proceedings. The cases have
    expressed different views on whether the decisions covered by s. 193(b) can
    only concern rights asserted against the bankrupt by parties other than the
    bankrupt, or whether the issue may concern rights asserted by multiple persons
    against the bankrupt, rather than one persons rights arising in multiple
    contexts. Regardless, s. 193(b) must concern real disputes likely to affect
    other cases raising the same or similar issues in the same bankruptcy or
    receivership proceedings.

[25]

Finally, I query whether it was open to Andrew
    to pursue an appeal as of right after this court had denied him leave to appeal
    under
BIA
s. 193(e).

[26]

These
    very significant weaknesses in Andrews grounds for leave to appeal weigh
    strongly against granting a stay order.

Irreparable harm

[27]

Andrew
    submits that if a stay is not granted, he will suffer irreparable harm of two
    sorts. First, he will be subjected to compelled examination and production
    pursuant to an order that he contends was improperly obtained. For all
    practical purposes, that would render his leave to appeal application moot.
    Second, Andrew notes that the Trustees have brought a motion to find Andrew in
    contempt of the January 15 Order, which is scheduled to be heard on October 4, 2019.
    Absent a stay, Andrew argues that his liberty interest would be placed at risk
    before the Supreme Court of Canada deals with his leave to appeal application.

[28]

I accept Andrews submission. In
The Queen
    v. O'Connor
, 2001 NSCA 47,
193 N.S.R. (2d) 8,
Cromwell J.A., sitting as a Chambers judge of the Nova Scotia Court of Appeal,
    recognized that irreparable harm can result from the wrongful release of
    information, in the event that a stay is not granted pending appeal, but the
    appeal later succeeds: at para. 14. As he stated, in part, at paras. 16 and 17:

[O]nce access to information is granted, it
    cannot be undone if the order for access is subsequently reversed on appeal.
    The harm is irreparable in the sense that a legal wrong has been committed
    which cannot be compensated or reversed. In some cases, the injury resulting
    from disclosure will be minimal, but that does not detract, in my view, from
    the proper characterization of the wrongful disclosure as constituting
    irreparable harm. As Cory and Sopinka, JJ. said in
RJR MacDonald
, [[1994]
    1 S.C.R. 311,] irreparable refers to the nature of the harm rather than its
    magnitude. The essence of the concept is a wrong which cannot be undone or
    cured. The unlawful disclosure of information, even where it does not injure
    anyone, is a wrong which cannot be undone or cured and is, therefore, capable
    of being irreparable for the purposes of a stay pending appeal.

[T]he disclosure of the contested information
    will generally render the effects of a successful appeal nugatory. There is
    ample authority for the proposition that where that is the result of the
    refusal of a stay pending appeal or judicial review, irreparable harm has been
    shown. [Citations omitted.]

See also:
White v. E.B.F.
    Manufacturing Ltd.
, 2005 NSCA 17,
229 N.S.R. (2d)
    375,
at para. 24.

[29]

In
    the present case, to refuse a stay would render Andrews appeal moot: he would
    have to produce documents to the Trustees and attend for examination, all the
    while challenging the validity of the order compelling him to do so. This
    prospect of irreparable harm weighs in favour of granting a stay. It is not
    adequately mitigated by the Trustees proffer of an undertaking to apply the deemed
    undertaking rule to the documents produced and the transcript of the
    examination.

Balance of convenience and the overall interests of justice

[30]

The
    Trustees point out that the amount the bankrupt, James, owes his creditors
    exceeds US$1 billion. They submit that the delay caused by granting a stay
    would frustrate their efforts to realize upon the bankrupts assets and
    decrease the likelihood that the bankrupts creditors are properly compensated.

[31]

The
    Supreme Court of Canada most likely will deal with Andrews leave application
    within the next four or five months. Given that the Initial Recognition Order
    was made almost two years ago, one could regard the passage of a further four
    or five months as not constituting an unduly long delay in the administration
    of this aspect of this bankrupts estate.

[32]

However,
    in considering the balance of convenience, I must take into account another
    perspective. On June 21, 2019, Andrew became subject to the full force of the
    obligations imposed by the January 15 Order. Andrew did not comply with the
    order, which required the production of documents within 14 days. Instead, he
    did nothing. He waited two and one-half months before initiating this stay
    motion it on September 6, 2019. As well, he did not commence his application
    for leave to appeal until towards the end of the 60-day appeal period (which
    excluded July). Those delays, combined with Andrews refusal to comply with the
    January 15 Order, lead me to concur with the observation made by McEwen J. in
    his September 12, 2019 endorsement that Andrew has moved too slowly in
    bringing his motion before the [Court of Appeal].

[33]

While
    Andrews dilatory conduct is not sufficient, in and of itself, to deny Andrew a
    stay, it does point to the need to find a proper balance between his request
    for further appellate consideration of his complaint about a defective
    enforcement process and the Trustees duties to move ahead with the
    administration of his bankrupt fathers estate. The need for such balance is
    especially acute given the very weak grounds for leave to appeal advanced by
    Andrew.

[34]

I
    conclude that such a balance can be achieved by granting a stay, but on terms
    which ensure that while Andrews appeal is not rendered moot, some effect is
    given to a valid request for assistance by the Hong Kong court. Consequently, I
    will grant a stay of the order of this court dated June 21, 2019 pending
    disposition of Andrews application for leave to appeal to the Supreme Court of
    Canada but, pursuant to s. 65.1(1) of the
Supreme Court
    Act
, I grant that stay on the following terms, which I deem
    appropriate:

(i)

Term 1: On
    or before Wednesday, October 9, 2019, Andrew shall file with the Commercial
    List Office in proceeding CV-17-581645 CL, in a sealed envelope:

a.

Copies of all documents specified in paras. 1 and 2 of Schedule 1 to the
    Letter of Request, which is attached to the January 15 Order as Schedule A; and

b.

A sworn or affirmed affidavit from Andrew deposing that he has made full
    production of all documents within his possession, custody or power specified
    in paras. 1 and 2 of Schedule 1 to the Letter of Request;

(ii)

Term 2: On or before
    Wednesday, October 9, 2019, Andrew, through his counsel of record, shall inform
    counsel for the Trustees that he has complied with the above Term 1;

(iii)

Term 3:
If
    Andrew does not comply with Terms 1 and 2 by 5 p.m. on Wednesday, October 9,
    2019, then this stay of the Order to Quash and January 15 Order shall expire
    and be of no further force or effect
; and

(iv)

Term 4: If Andrew complies
    with Terms 1 and 2 by 5 p.m. on Wednesday, October 9, 2019, then the sealed
    documents and affidavit filed with the Commercial List Office shall remain
    sealed until the disposition by the Supreme Court of Canada of Andrews application
    for leave to appeal. If the Supreme Court of Canada grants leave to appeal, the
    sealed documents and affidavit shall remain sealed until the disposition of
    that appeal. Upon the dismissal of the leave to appeal application or, if leave
    is granted, upon the disposition of the appeal, either party may apply to a
    judge of the Commercial List for the return or release of the documents in
    accordance with the disposition made by the Supreme Court of Canada of Andrews
    proceeding before that court.

DISPOSITION

[35]

For the reasons set out above, I grant Andrew
    leave to prepare a transcript of the June 21, 2019 hearing before this court.
    In addition, I grant Andrews motion for a stay but on the terms set out in
    para. 34 above.

[36]

Each party shall bear their own costs of this
    motion.

David
    Brown J.A.