COURT OF APPEAL
    FOR ONTARIO

CITATION: Breen v. FCT Insurance Company Ltd., 2019 ONCA 598

DATE: 20190712

DOCKET: C65634

Lauwers, Fairburn and Nordheimer JJ.A.

BETWEEN

John Bernard Breen

Plaintiff (Respondent)

and

FCT I
nsurance Company Ltd.

Defendant (Appellant)

Andrew Faith, Jeffrey Haylock and Emma Carver, for the
    appellant

David Morin and Peter Reinitzer, for the respondent

Heard: June 14, 2019

On appeal from the order of Justice Margaret Eberhard of
    the Superior Court of Justice, dated June 14, 2018, with reasons reported at 2018
    ONSC 3644.

Nordheimer J.A.:

[1]

The appellant, FCT Insurance Company Ltd., appeals from the judgment declaring
    FCT responsible for certain losses sustained by the respondent, John Breen, in
    relation to a property for which he had obtained title insurance with FCT.

Background

[2]

This case involves a cottage property located in the Muskoka
    area of Ontario in the Township of Lake of Bays. Construction of the cottage
    began in October 1989 under the authority of a building permit issued by the
    Township. During the cottages construction, the Townships Chief Building
    Official performed three inspections, on August 17, 1990 and June 3 and 12, 1991.
    He did not find any fault with the construction. In his last two reports, he
    wrote that construction had reached the stage at which the building was ready
    for drywall.

[3]

On January 28, 1992, the Townships Chief Building Official wrote to the
    owner of the cottage, stating that no inspection had been requested for over
    six months and that, if the owner did not reply to the letter by February 14,
    1992, the Township would assume the project was complete and close its files. Almost
    a year and a half later, on June 15, 1993, the Chief Building Official wrote to
    the owner again (the 1993 Letter), indicating that the Township considered
    construction to be complete, that the Township would advise the Assessment
    Commissioner to add the property to the tax roll, and that the Township had
    closed its file on the permit.

[4]

Mr. Breen purchased the property under power of sale in 1999. Before the
    purchase closed, the Breens conveyancing solicitor had written to Mrs. Breen
    (the intended purchaser at the time), on March 4, 1999, to advise of the
    results of a building department search. The conveyancing solicitor stated:

The Building Department for the Township of Lake of Bays have
    advised us as follows:

1.  A Building Permit for the
    cottage was issued in 1989.

2. Inspections with respect to the
    foundation, drainage and insulation were completed in June, 1991.

3. The Building Department sent a
    notice in 1992 to the owner indicating that a final inspection of the cottage
    was outstanding.

4. In 1996, the building Department
    lost its records in a fire. Due to the fire, no one knows whether the cottage
    ever passed its final inspection.

The Building Department does not appear to be concerned as to
    whether or not the cottage had a final inspection. I am inclined to leave things
    as is and not request that the Building Department conduct a final inspection
    of the cottage prior to closing. If you disagree with my suggestion, please
    call me.

[5]

The Breens accepted their conveyancing solicitors advice and did not
    request a final inspection. Before the March 15, 1999 closing, Mr. Breen, who had
    been substituted as the purchaser of the cottage for Mrs. Breen, obtained a
    title insurance policy (the Policy) from FCT for a premium of $347, again on
    the advice of the Breens conveyancing solicitor.

[6]

Approximately 10 years after acquiring the cottage, in 2011, the Breens
    decided to renovate the kitchen. In the course of preparing for the renovation,
    their contractor opened up a wall and identified violations under the
Building
    Code Act, 1992,
S.O. 1992, c. 23. An engineer was then retained. The
    engineers inspection identified several significant structural issues that
    need to be dealt with. The Breens were advised that the cost of repairing these
    issues might be prohibitive. Indeed, their contractor and the engineer advised
    that a complete rebuild will be an option youll need to consider. The
    engineer also warned the Breens not to occupy the cottage. The Breens heeded
    that advice and stopped using the cottage in 2012, about 13 years after its
    purchase. The cottage has not been used since.

[7]

On February 26, 2014, Mrs. Breen sent a notice of claim to FCT. On March
    3, 2014, FCT initially confirmed coverage, on the understanding that there was
    an open building permit on the Property, but it reserved the right to change
    its decision should further facts emerge. That occurred. On May 21, 2014, FCT denied
    coverage because it had learned that there was no open building permit, and
    that, instead, the Township has closed its file on the permit.

[8]

Two actions have been commenced resulting from these facts. The first
    action, which was commenced on February 18, 2014, is a claim by the Breens in
    negligence against the Township. The second action, commenced on March 17, 2015
    and giving rise to this appeal, is a claim by Mr. Breen against FCT under the
    Policy.

The Decision Below

[9]

The trial judge began her analysis by stating that any finding of
    coverage under the Policy turned on whether the principles enunciated by this
    court in
MacDonald v. Chicago Title Insurance Company of Canada
, 2015
    ONCA 842, 127 O.R. (3d) 663 applied. The trial judge then considered the terms
    of the Policy and how those terms compared to the terms of the title insurance
    policy that was at issue in
MacDonald
.

[10]

The
    trial judge found, like the situation in
MacDonald
, that there was no
    work order that Mr. Breen could have discovered when he purchased the cottage
    in 1999. The trial judge concluded that the defects in the cottage were latent
    defects. She then held, at para. 46:

It has taken the investigations in this law suit to uncover the
    inadequacy of the Building Permit process, and subsequent futility of
    inspection by a Building Inspector to detect design problems which must be
    designed and inspected by an engineer, and insufficient inspection to justify
    an assumption that the building was complete.

[11]

While
    recognizing that a finding of coverage in these circumstances might be an
    unexpected extension of what is understood to be a title defect, the trial
    judge considered the decision in
MacDonald
as binding on her. She
    interpreted
MacDonald
as instructing her to take a broad approach to
    the interpretation of the coverage provisions: at para. 47. The trial judge
    concluded that the differences in the defects between the two cases were ones
    of detail, not of kind: at para. 48. Relying on
MacDonald
, the trial
    judge found that the factual situation here fell within the coverage offered by
    the Policy for unmarketable title. The trial judge said, at para. 51:

I find that the structural defects which flow directly from the
    inadequacy of the Building Permit process, and subsequent futility of
    inspection by a Building Inspector to detect design problems which must be
    designed and inspected by an engineer, and insufficient inspection to justify
    an assumption that the building was complete, resulted in the dangerous
    condition of the property which has made the Plaintiff's title unmarketable.

[12]

The
    trial judge went on to consider the exclusions under the Policy and found that
    none of them applied to the situation in this case. In particular, she found
    that Exclusion #1  which excluded coverage for losses arising from the
    existence or violation of any law, by-law, order, code or government
    regulation, unless the violation or enforcement of such matters appeared in
    Public Records as at the policy date  did not apply because it was too broad
    and/or vague and consequently should be given a narrow interpretation. She also
    observed that this court had not said in
MacDonald
that such an
    exclusion could be applied to title risk of unmarketability: at paras. 64-69.

[13]

The
    trial judge also considered Exclusion #3, which excludes coverage for title
    risks actually known to the purchaser. The trial judge concluded that this
    exclusion did not apply because, while Mr. Breens solicitor knew about the
    1993 Letter, there was nothing that would have caused the solicitor to do any
    further investigation into the matter: at paras. 115-121.

[14]

Finally,
    the trial judge rejected FCTs argument that counsel for Mr. Breen had changed
    the basis for his claim during closing submissions. More specifically, FCT had submitted
    that the basis on which Mr. Breen sought relief in his closing submissions, and
    on which the trial judge found liability, was not pleaded in Mr. Breens amended
    statement of claim. In rejecting that argument, the trial judge found that FCT strategically
    wore blinders, that it was aware of the issues and simply chose not to address
    them through evidence: at paras. 84-106.

[15]

Consequently,
    the trial judge found that Mr. Breen was entitled to coverage under the Policy
    for the losses arising from the defects in the cottage.

Analysis

[16]

In
    my view, the trial judge erred in her conclusion regarding the Policy and
    whether it covered this situation.

[17]

The
    standard of review applicable to the interpretation of a standard form policy
    of insurance is correctness:
Ledcor Construction Ltd. v. Northbridge
    Indemnity Insurance Co.,
2016 SCC 37, [2016] 2 S.C.R. 23, at para. 4.
    Applying this standard of review, I find that the trial judge erred in failing to
    recognize significant distinctions between the facts in this case and those in
MacDonald
.

[18]

In
    my view, in applying the decision in
MacDonald
, one has to be careful
    to recognize what the court did, and did not, decide in that case. One also has
    to be cognizant of the specific facts that led to the conclusion that there was
    coverage under the title insurance policy in that case.

[19]

There
    are two fundamental differences between this case and
MacDonald
. First
    is the fact that Mr. Breen was on notice at the time of purchase of a potential
    problem with the building permit process and the inspections (or lack thereof)
    when the cottage was constructed. Central to the conclusion in
MacDonald
was the fact that there was no reason for the purchasers, or their conveyancing
    solicitor, to know that construction (more accurately demolition) had been
    undertaken without a building permit. Consequently, there was no reason for the
    conveyancing solicitor to make any inquiries in that regard.

[20]

Here,
    the conveyancing solicitor knew that the cottage had been constructed pursuant
    to a building permit issued by the Township. The conveyancing solicitor also
    knew that there had been some inspections of the construction but no evidence
    that a final inspection had been conducted. Indeed, the conveyancing solicitor
    advised Mrs. Breen that they could ask the Township to conduct a final
    inspection prior to completing the purchase, but the solicitor thought it
    better to let matters lie as they were.

[21]

The
    second distinguishing fact is that in
MacDonald
, had the conveyancing
    solicitor known of the demolition of load bearing walls and conducted a further
    investigation (i.e., an off-title search for a building permit), the
    solicitor would have discovered that no building permit existed. That would
    then have alerted the solicitor to the fact that the demolition was done
    illegally. Those are the critical facts that turned the matter into a title
    issue in
MacDonald.
As Hourigan J.A. said in
MacDonald
, at
    para. 74:

The dangerous condition of the property, therefore, flows
    directly from the failure of the previous owner to attempt to obtain the
    necessary municipal approval. That failure has made the appellants' title
    unmarketable within the meaning of clause 11 of the title policy.

[22]

In
    this case, however, the evidence is that, even if a final inspection had been
    conducted, that inspection would not have revealed the construction defects
    because those defects were hidden behind the walls of the cottage that were
    already constructed (and which had apparently already passed inspection).
    Therefore, had Mr. Breen insisted that the Township conduct a final inspection
    before the purchase was completed, that inspection would not have revealed the defects.
    The defects would not then be an issue regarding the marketability of the title,
    even under the broad meaning given to that term in
MacDonald
.

[23]

Further,
    the off-title search that Mr. Breens conveyancing solicitor did conduct revealed
    that there was a building permit for the construction of the cottage (unlike
    the situation in
MacDonald
). That off-title search not only would not have
    revealed the construction defects, but also would not have revealed any of the
    other deficiencies that Mr. Breen alleges were associated with the handling of
    the building permit by the Township, and the construction undertaken pursuant
    to that building permit.  The purpose of title insurance is to protect against
    what off-title searches would reveal  and obviate the need for exhaustive and
    costly off-title searching  not to protect against defects that would not be
    revealed by such searches.

[24]

On
    this point, it is also important to know that the Policy in this case draws a
    very clear distinction between situations where the land is unmarketable and
    where the title is unmarketable. Each of those situations is described in the Policy
    in terms of what is covered and what is not. The situation facing Mr. Breen in
    this case is much more akin to an issue with the marketability of the land than
    it is with the marketability of the title. I note that this same distinction
    was drawn by this court in
Fischer v. Stewart Title Guaranty Co.,
2014
    ONCA 798 in denying a claim under a title insurance policy. I would add that,
    if I assume that the situation here leads to the land being unmarketable, unfortunately
    for Mr. Breen, the cause of the unmarketability of the land is not one of the
    causes for which coverage is provided under the Policy.

[25]

For
    these reasons, in my view, the trial judge erred in applying
MacDonald
to this case and she erred in concluding that the situation here was covered by
    the unmarketability of title provision in the Policy.

[26]

Given
    that conclusion, it is not necessary to address the issue of whether either of
    the two exclusions adverted to by the trial judge apply. Nevertheless, I will
    address the exclusions briefly. It is unnecessary to get into an analysis of the
    wording of Exclusion #1 other than to note that the trial judges observation
    that the wording appears to very broad was one that was open to her. That fact,
    coupled with the fact that exclusion provisions are to be construed narrowly,
    would appear to pose an obstacle for FCTs attempted reliance on that
    exclusion. I must add, though, that the trial judge erred in drawing from
MacDonald
support for her conclusion that Exclusion #1 would not apply to this situation
    since the application of Exclusion #1 was not actually addressed in
MacDonald
.

[27]

It
    is difficult to see, however, how Exclusion #3 does not capture this situation,
    even if the coverage provisions of the Policy would otherwise cover it.
    Exclusion #3 expressly provides that no coverage is provided for title risks
    that are actually known to you, but not to us, on the Policy Date  unless
    they appear in the Public Records. Public Records are defined as records
    established and maintained under the
Registry Act
and
Land Titles
    Act
.

[28]

As
    will be seen from my analysis above, the title risk for which Mr. Breen claims
    coverage in this case  namely, the alleged failings by the Township in the
    building permit process  was known to him. Mr. Breens conveyancing solicitor
    expressly recognized the issue and provided advice on it. Further, the
    information that gives rise to that knowledge is not information coming from
    records established and maintained under either of the two statutes mentioned
    in the definition of Public Records.

[29]

Consequently,
    had I otherwise concluded that the defects in the construction of the cottage
    were caught by the provision providing coverage for unmarketable title, I would
    have found that the coverage was excluded by Exclusion #3.

[30]

Given
    my conclusions on this matter, it is not necessary to address the issue of whether
    the trial judge was correct in finding that the basis for liability was
    properly and adequately pleaded. I will say, though, that the trial judges apparent
    criticism of trial counsel on this point does not appear to be justified. There
    was an arguable basis for counsels concerns regarding the scope of the amended
    statement of claim.

Conclusion

[31]

The
    appeal is allowed, the judgment is set aside, and Mr. Breens claim is dismissed.
    FCT is entitled to its costs of the appeal fixed in the agreed amount of $25,000,
    inclusive of disbursements and HST. The panel was advised that counsel had
    worked out an agreement with respect to the costs of the action so I do not
    need to address those costs.

Released: IN July 12, 2019

I.V.B.
    Nordheimer J.A.

I agree.
    P. Lauwers J.A.

I agree. Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Browne v. Browne, 2019 ONCA 580

DATE: 20190708

DOCKET: C66654

Feldman, Hourigan and Brown JJ.A.

BETWEEN

Garry Browne

Appellant

and

Shawnna Browne

Respondent

Garry Browne, self-represented

Shawnna Browne, self-represented

Heard and released orally: July 5, 2019

On appeal from the
    order of Justice Sutherland of the Superior Court of Justice, sitting without a
    jury, dated February 7, 2019.

REASONS FOR DECISION

[1]

The parties are divorced. Pursuant to a final order dated March 9, 2017,
    the parties share custody of their two children with equal parenting time. The
    order also provided that the parties shall not remove the children from Ontario
    without written approval from the other party or a court order. The parties were
    not to unreasonably withhold their approval.

[2]

The respondent planned to take the children on a March break trip to
    Mexico to spend time with her parents, but the appellant did not approve. On
    January 22, 2019, the respondent brought a motion to permit her to take the
    children on the planned trip. The appellant opposed the motion.

[3]

The motion judge granted the respondents motion, finding it in the
    childrens best interests to have a vacation with their mother and
    grandparents. He also found the appellants position unreasonable and contrary
    to the terms of the order of March 9, 2017. The motion judge made an order
    dispensing with the appellants consent for the trip to Mexico, subject to
    terms imposing certain disclosure and timing obligations and requiring that any
    missed time with the appellant be made up.

[4]

The motion judge also made an order that the respondent, shall not
    remove the above named children from the country for a period greater than 14
    days without written consent of the Respondent [the appellant] or court order.
    This order represented a change in the status quo, as the respondent is now
    permitted to remove the children from Canada for up to 14 days without the
    appellants consent or a court order.

[5]

On appeal, the appellant submits that the motion judge was biased or
    unfair in his order, because he did not impose the same guidelines or
    restrictions on both parents, even though the parents share equal custody. He
    also complains that the motion judge gave the mother permission to travel with
    the children on his scheduled parenting time without his consent. The appellant
    requests that the motion judges order be modified to treat the parties
    equally, increase notice periods, and require that the parties not take a
    vacation on the other partys parenting time without obtaining consent. In the
    alternative, he seeks a return to the original order.

[6]

We decline to interfere with the order of the motion judge. The issue
    before him was the appellants refusal to consent to the respondents travel
    plans. The motion judge found that the appellant was acting unreasonably, a
    finding open to him on the record. In order to avoid this problem arising
    again, he made an order that would facilitate short trips that the respondent
    wished to take with the children in the future.

[7]

There was nothing unfair or biased in this order. The motion judge was
    trying to avoid costly and time-consuming motions every time the respondent
    wished to take the children out of the country. There was no evidence that the
    respondent had ever unreasonably withheld her consent to a trip that the
    appellant proposed to take with the children. Therefore, there was no reason
    for the motion judge to make a similar order regarding future trips the
    appellant takes with the children. The motion judge referred to access time
    in para. 5 of the order. The proper term is parenting time.

[8]

The appeal is dismissed. The appellant shall pay the respondent her
    costs of the appeal in the amount of $85.

K.
    Feldman J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599

DATE: 20190712

DOCKET: C65959

Lauwers, Fairburn and Nordheimer JJ.A.

BETWEEN

Sean Bruyea

Plaintiff (Appellant)

and

S
eamus ORegan,
    also known as Minister of Veteran Affairs, and the Attorney General of Canada

Defendants (Respondents)

Paul Champ, for the appellant

Robert MacKinnon and Sanam Goudarzi, for the respondents

Shahana Kar, for the Attorney General of Ontario (by
    written submissions)

Heard: June 13, 2019

On appeal from the order of Deputy Judge David Dwoskin of
    the Small Claims Court, dated August 28, 2018

Nordheimer J.A.:

[1]

Sean Bruyea appeals from the order granted by the motion judge that dismissed
    his claim pursuant to s. 137.1 of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43 (the
CJA
). Prior to hearing the appeal, the court
    invited the parties to address the issue whether a deputy judge of the Small Claims
    Court has jurisdiction to make an order under s. 137.1.

[2]

On the appeal, we heard submissions from the parties on the
    jurisdictional issue along with their submissions on the merits of the appeal. The
    parties requested the opportunity to file further written submissions on the
    jurisdictional issue and we acceded to that request. The court also invited the
    Attorney General of Ontario to make submissions on the jurisdictional issue. We
    have received and reviewed all of those written submissions. Both parties and
    the Attorney General of Ontario argue in favour of a conclusion that deputy
    judges do have jurisdiction to make an order under s. 137.1.

Background

[3]

The appellant is a disabled veteran of the Canadian Forces who receives
    pension benefits for injuries incurred during his service to Canada. Since his
    medical release from the Canadian Forces, he has become a freelance journalist,
    media commentator, and advocate for the lives and well-being of other disabled
    veterans and their families.

[4]

The respondent, Seamus ORegan, is a Member of Parliament and Cabinet
    Minister. At the time of the relevant events, he occupied the position of
    Minister of Veterans Affairs and Associate Minister of National Defence.

[5]

The appellant wrote an article that was published in The Hill Times on
    February 12, 2018. In the article, entitled Liberals plan for veterans, the
    numbers dont add up, the appellant analyzed and critiqued the new program in
    detail. In response to this article, Mr. ORegan published an article in The
    Hill Times, on February 26, 2018, in which he said that the appellant was
    stating mistruths about Canadas new Pension for Life program to suit
    [his] own agenda. As a result of the publication of this article, the
    appellant commenced an action for defamation in the Small Claims Court in Ottawa
    against Mr. ORegan and against the Attorney General of Canada as the body
    responsible for Veteran Affairs Canada. The appellant claimed damages in the
    amount of $25,000.

[6]

The respondents moved to dismiss the claim under s. 137.1 of the
CJA
.
    The deputy judge dismissed the appellants claim, holding that Mr. ORegans
    statements constituted expression relating to a matter of public interest and
    that the appellant had not advanced credible and compelling evidence that the
    claim had substantial merit or that the respondents had no valid defence in the
    proceeding.

[7]

The deputy judge also concluded that the appellant had adduced no
    evidence of harm and therefore the public interest in dismissal outweighed
    allowing the claim to proceed to an adjudication on the merits.

Jurisdiction

[8]

As I mentioned at the beginning of these reasons, prior to the hearing
    of the appeal, the court raised the issue whether a deputy judge of the Small
    Claims Court has jurisdiction to make an order under s. 137.1. For the reasons
    that follow, I conclude that they do not.

[9]

I begin with the structure of the Small Claims Court. The Small Claims
    Court is a branch of the Superior Court of Justice:
CJA
, s. 22.
    Section 24 of the
CJA
determines who presides over matters in the
    Small Claims Court. It reads, in part:

(1) A proceeding in the Small Claims Court shall be
    heard and determined by one judge of the Superior Court of Justice.

(2) Despite subsection (1), a proceeding in the Small
    Claims Court may also be heard and determined by,

(a) a provincial judge who was assigned to the
    Provincial Court (Civil Division) immediately before the 1st day of September,
    1990;

(b) a deputy judge appointed under section 32; or

(c) the Small Claims Court Administrative Judge
    appointed under section 87.2.

[10]

In
    practice, virtually all proceedings in the Small Claims Court are presided over
    by deputy judges. Deputy judges are lawyers who are appointed by a regional
    senior judge of the Superior Court of Justice, with the approval of the
    Attorney General, to act as a deputy judge of the Small Claims Court. Usually
    they are appointed for a term of three years:
CJA,
s. 32.

[11]

I
    now turn to the specific provision in the
CJA
with which this case is
    concerned. Section 137.1 was added to the
CJA
to address concerns
    arising from the use of litigation to interfere with freedom of expression. The
    section was added to the
CJA
to provide a pretrial procedure designed
    to quickly and inexpensively identify and dismiss those unmeritorious claims
    that unduly entrenched on an individual's right to freedom of expression on
    matters of public interest:
1704604 Ontario Ltd v. Pointes Protection
    Association
, 2018 ONCA 685, 142 OR (3d) 161, at para. 29. This was a new
    process to permit the summary dismissal of a proceeding that was not otherwise available
    to a party under the
CJA
or the
Rules of Civil Procedure
,
    R.R.O.1990, Reg. 194.

[12]

Of
    importance for the current issue is the wording of s. 137.1(3) that reads:

On motion by a person against whom a proceeding is brought, a
judge
shall, subject to subsection (4), dismiss the
    proceeding against the person if the person satisfies the
judge
that the proceeding arises from an expression made
    by the person that relates to a matter of public interest. [Emphasis added.]

Subsections 137.1(4), (6), (7), (8) and (9) also all
    refer to a judge.

[13]

The
    issue is whether the use of the word judge in s. 137.1 includes a deputy
    judge of the Small Claims Court. The word judge is not defined in the
CJA
nor is it defined in the
Rules of the Small Claims Court
, O/Reg.
    258/98. It is, however, defined in r. 1.03 of the
Rules of Civil Procedure
as: judge means a judge of the court.
[1]
The term court is defined as:

court means the court in which a proceeding is
    pending and, in the case of a proceeding in the Superior Court of Justice,
    includes,

(a) a master having jurisdiction to hear motions
    under Rule 37, and

(b) a case management master

[14]

There
    is a conscious effort made in the
CJA
and in the
Rules of Civil
    Procedure
to draw a distinction between what a court has jurisdiction to
    do and what a judge has jurisdiction to do. The primary purpose behind this
    distinction is that where the
CJA
or the
Rules of Civil Procedure
gives
    authority to the court to do something, a master or case management master has the
    same authority. If, however, the authority is expressly given to a judge, then
    only a judge may exercise that authority. This distinction is an important one.

[15]

There
    is no reason to believe that the Legislature would have chosen to adopt any
    different approach when it comes to deputy judges of the Small Claims Court. As
    s. 24(2) demonstrates, deputy judges of the Small Claims Court are specifically
    referred to as such in the
CJA
. Other sections of the
CJA
also make specific reference to deputy judges. For example, s. 80 stipulates
    that [e]very judge or officer of a court in Ontario, including a deputy judge
    of the Small Claims Court must take and sign a specific oath or affirmation
    before entering upon their duties. Similarly, s. 82 provides that deputy judges
    have the same immunity from liability as judges of the Superior Court of
    Justice. Further, s. 123 establishes time limits for a judge to give a decision
    after they retire and by s. 123(1.1) these same time limits are expressly made
    applicable to deputy judges.

[16]

Two
    points arise from the existence of these various sections of the
CJA
.
    First, it is clear that where the Legislature intends the term judge to
    include a deputy judge, it does so expressly. It follows that if the
    Legislature had intended that the term judge, whenever used in the
CJA
,
    would include deputy judges, then the express mention of deputy judges in these
    sections would have been unnecessary. Second, all of these sections of the
CJA
were in existence in 2015 when s. 137.1 of the
CJA
was passed and yet
    the Legislature chose not to expressly reference deputy judges in s. 137.1 as
    it had done in all of these other sections.

[17]

Further,
    if one was to accede to the suggestion that the use of the term judge in the
CJA
was intended to include deputy judges, then that result creates difficulties
    with respect to other sections of the
CJA
. One such section is s. 101(1)
    of the
CJA
which reads:

In the Superior Court of Justice, an interlocutory injunction
    or mandatory order may be granted or a receiver or receiver and manager may be
    appointed by an interlocutory order, where it appears to a
judge
of the court to be just or convenient to do so. [Emphasis
    added.]

[18]

Since
    the Small Claims Court is a branch of the Superior Court of Justice, if the term
    judge includes deputy judges, then s. 101(1) would give authority to deputy
    judges to grant injunctions or appoint receivers. To my knowledge, it has never
    been suggested that the Small Claims Court has ever had jurisdiction to grant
    interlocutory injunctions or to appoint receivers, nor am I aware of any case
    where the Small Claims Court has purported to exercise that jurisdiction. Indeed,
    in
936464 Ontario Ltd c.o.b. Plumbhouse Plumbing & Heating v. Mungo
    Bear Ltd.
(2003), 74 OR (3d) 45 (Div. Ct.), it was concluded that the
    Small Claims Court is not empowered to grant any other form of equitable
    relief, such as injunctions: at para. 29.

[19]

In
    response to these issues, the parties refer to the decisions of this court in
Ontario
    Deputy Judges Assn. v. Ontario
(2006), 80 O.R. (3d) 481 (C.A.) and
Grover
    v. Hodgins
, 2011 ONCA 72, 103 O.R. (3d) 721. In my view, neither of those
    decisions assist the parties. In the
Deputy Judges
case, this court
    said, at para. 27:

Even though Deputy Judges sit part-time, when sitting, they
    fully assume the judicial role. They are perceived as judges by the many
    litigants who turn to the Small Claims Court for the resolution of their
    disputes.

[20]

That
    statement does not assist in determining the proper meaning to be given to the
    term judge in s. 137.1. No one disputes that deputy judges assume a judicial
    role in presiding over cases in the Small Claims Court but that fact does not
    determine, or assist in determining, what their jurisdiction or statutory
    authority is. The Small Claims Court is a statutory court and it must find its
    jurisdiction in a statute. All of the parties accept that neither the Small
    Claims Court nor the deputy judges have any inherent jurisdiction. If either
    are to exercise any jurisdiction, it must be found in a statute, principally,
    the
CJA
.

[21]

In
    the
Grover
case, this court was dealing with the interpretation to be
    given to s. 96 of the
CJA
in order to determine whether the Small
    Claims Court has jurisdiction to grant equitable relief and, if so, to what
    extent. Section 96(3) reads:

Only the Court of Appeal and the Superior Court of
    Justice, exclusive of the Small Claims Court, may grant equitable relief, unless
    otherwise provided.

[22]

Based
    on the words unless otherwise provided that appear in s. 96(3), this court
    found that a narrow jurisdiction existed in the Small Claims Court to grant
    equitable relief as limited by s. 23 of the
CJA
, that is, for claims
    of a monetary payment under the limit of $25,000 or the return of personal
    property valued within that limit:
Grover
at para. 49. Again, that
    decision provides little assistance in arriving at the proper interpretation of
    judge in s. 137.1. I would note, though, that the court in
Grover
did conclude that the fact that the Small Claims Court had become part of the Superior
    Court of Justice did not alter the courts jurisdiction: at para. 44.

[23]

Finally,
    the parties also rely on the decision in
Stockey v. Peel Condominium Corp.
    No. 174
(1996), 30 O.R. (3d) 464 (Div. Ct.). In
Stockey
, Webber
    J., sitting as a single judge of the Divisional Court upheld, on appeal, the
    decision of a deputy judge to exercise authority under what was then s. 49(1)
    of the
Condominium Act
, R.S.O. 1990, c. C.26. Section 49(1) read:

Where a duty imposed by this Act, the declaration, the by-laws
    or the rules is not performed, the corporation, any owner, the bureau, or any
    person having a registered mortgage against a unit and common interest, may
    apply to the Ontario Court (General Division) for an order directing the
    performance of the duty.

[24]

The
    important distinguishing feature between the decision in
Stockey
and
    the case here is that s. 49(1) of the
Condominium Act
referred to the
    Ontario Court (General Division) not to a judge of that court. Had the section
    provided that a person could apply to a judge of the Ontario Court (General
    Division) then, in my view, a deputy judge of the Small Claims Court would not
    have been able to exercise authority under that section, and I expect that the
    appeal judge would have so concluded.

[25]

Two
    points raised by the Attorney General of Ontario, in his submissions, bear
    mention. One is the submission that [t]here is no principled reason why the
    Small Claims Court could hear a motion to strike a claim under r. 12.02 of the
Small Claims Court Rules
but not a motion to strike under s. 137.1. I
    do not agree. The
Rules of Civil Procedure
permit Masters and Case
    Management Masters to hear certain motions but restrict other motions to be
    heard only by judges. In this context, it is apparent that the Legislature has
    decided that some motions take on a significance for the parties where the
    result should only be determined by a judge. For example, only a judge may hear
    and determine a pre-trial motion under Rule 21 of the
Rules of Civil
    Procedure
, including dismissing actions that are frivolous, vexatious or
    an abuse of process. As I earlier noted, s. 137.1 provided a new mechanism to
    summarily dispose of a proceeding. It was open to the Legislature to decide
    that this new mechanism should only be employed by a judge.

[26]

The
    other point raised by the Attorney General of Ontario is the submission that unlike
    sections 96(3), 97, 101 and 140, the
CJA
does not expressly exclude section
    137.1(3) relief from the Small Claims Courts powers. Two problems arise from
    this submission. One is that we are not dealing here with the exclusion of
    powers. As earlier noted, the Small Claims Court must find its jurisdiction in a
    statute. Absent express statutory authority, the Small Claims court has no
    jurisdiction. The other is that not all of those sections expressly exclude
    relief from the Small Claims Court. Sections 101 and 140 do not do so, for
    example. And, contrary to the thrust of the Attorney Generals submission, the
    wording of s. 96(3) was expressly relied upon by this court in
Grover
to
    find jurisdiction in the Small Claims Court to grant equitable relief, albeit
    in very limited situations.

[27]

Lastly,
    all of the parties place great emphasis on the fact that the Small Claims Court
    is intended to provide for simpler and less expensive litigation. They argue
    that the powers of a deputy judge should be given broad and expansive
    interpretation to encourage access to justice. With respect, such policy
    arguments cannot override the plain words of the statute. Either deputy judges
    have been given the authority to provide certain relief, or they have not. It
    is not for the court to find authority where the Legislature has chosen not to
    clearly provide it. I would also note that, ironically, s. 137.1 is not a
    provision providing access. To the contrary, at least viewed from the
    perspective of the plaintiff, it is the very opposite. It is a provision that
    is intended, in proper circumstances, to prohibit access to the courts.

[28]

In
    the end result, it would have been open to the Legislature to expressly provide
    in s. 137.1 that deputy judges of the Small Claims Court could grant orders
    under that section. The Legislature chose not to do so in the same fashion that,
    in wording s. 137.1 as it did, it did not give that authority to masters or
    case management masters. For its own reasons, the Legislature clearly concluded
    that this new jurisdiction should only be exercised by a judge. It is not for
    this court to strain the language of the section to provide a power to deputy
    judges that the Legislature did not, itself, plainly choose to provide.

[29]

For
    these reasons, I conclude that deputy judges of the Small Claims Court do not
    have authority to grant orders under s. 137.1 of the
CJA
.

[30]

The
    parties asked, if we reached the conclusion that jurisdiction did not exist to
    grant the order, that this court make the determination of the merits of the s.
    137.1 motion. I would not accede to that request. It is not appropriate, as a
    matter of general application, for this court to engage in determining matters
    of first instance. Among other reasons, doing so has a direct and significant
    effect on appeal rights.

C
onclusion

[31]

The
    appeal is allowed, the order dismissing the action is set aside, and the matter
    is returned to the Small Claims Court, without prejudice to any fresh motion
    that might be brought before a judge. The appellant is entitled to his costs of
    the appeal in the agreed amount of $13,000 inclusive of disbursements and HST.

Released: IN July 12, 2019

I.V.B.
    Nordheimer J.A.

I agree.
    P. Lauwers J.A.

I agree. Fairburn J.A.

[1]

I note that by virtue of r. 1.03(2) of the
Rules of the
    Small Claims Court
where those rules do not cover a matter adequately, the
    court may have reference to the
Rules of Civil Procedure
.


COURT OF APPEAL FOR ONTARIO

CITATION: Buduchnist Credit Union Limited v.
    2321197 Ontario Inc., 2019 ONCA 588

DATE: 20190711

DOCKET: M50486 (C66503)

Feldman, Hourigan and Brown
    JJ.A.

BETWEEN

Buduchnist Credit Union Limited

Applicant

(Respondent/Moving
    Party)

and

2321197 Ontario Inc.,
Carlo
    DeMaria
, Sandra DeMaria, 232198 Ontario Inc., Sasi Mach Limited,
Vicar
    Homes Ltd
. and Trade Finance Capital Corp.

Respondents

(
Appellants/Responding Parties
)

Barabara L. Grossman, for the moving
    party/respondent

Andrew Winton and Philip Underwood, for
    the responding parties/appellants

Heard: July 5, 2019

REASONS FOR DECISION

I.        OVERVIEW

[1]

This is a motion by the respondent, Buduchnist
    Credit Union Limited (BCU), to quash the appeal filed by Carlo DeMaria and
    Vicar Homes Ltd. from the order of Penny J. dated January 17, 2019 (the
    Order). The Order appointed a receiver over two pieces of real property
    pursuant to s. 243(1) of the
Bankruptcy and
    Insolvency Act
, R.S.C. 1985, c. B-3, and s. 101 of
    the
Courts of Justice Act
, R.S.O., c. C.43.

[2]

The appellant, Carlo DeMaria, borrowed money for
    many years from
BCU,
both for his own use and the
    use of several of his companies, of which the appellant, Vicar Homes, is one.

[3]

In 2010, Mr. DeMaria and his wife granted a
    first mortgage on their Family Residence to BCU. In 2012, the DeMarias granted
    a second mortgage over the Family Residence. In April 2015, Mr. DeMaria gave a
    personal guarantee to BCU to secure, in part, the indebtedness of Vicar Homes
    under certain loan agreements with BCU.

[4]

In 2006, the DeMarias granted a charge against
    their Cottage to MCAP Mortgage Corporation, which later assigned the mortgage
    to BCU.

[5]

In November, 2018 the Credit Union issued the notice
    of application in this proceeding seeking the appointment of a receiver over
    five properties, owned by the DeMarias and/or certain DeMaria companies, over
    which the BCU has security, as well as judgment for the debts owed. On November
    13, 2018 a receiver was appointed over two of the properties.

[6]

The Order appointed a receiver over two more
    properties: the Family Residence and Cottage. The Order was in the form of the
    Commercial Lists Model Order for receivers appointed under the
BIA
and
CJA
, with some tweaks to reflect the specific circumstances.

[7]

The Order in respect of the Family Residence has
    been stayed for a short period of time pending the determination of a motion to
    set aside a
Mareva
injunction granted against Mr. DeMaria at the
    instance of another creditor.

[8]

On January 29, 2019, twelve days after the Order
    was made, the appellants filed a notice of appeal with this court, asking that
    the Order be set aside and the application to appoint a receiver over the
    Family Residence and Cottage be dismissed. The appellants did not seek leave to
    appeal. The appeal was perfected on March 4, 2019.

[9]

On May 24, 2019, BCU filed this motion seeking
    to quash the appeal on the basis that the appellants have no right of appeal to
    this court, they have not sought or obtained leave to appeal to this court and,
    in any event, they cannot meet the test for leave to appeal.

II.       THE
    APPLICABLE APPEAL ROUTES

[10]

Both s. 243(1) of the
BIA
and s. 101 of
    the
CJA
authorize a court to appoint a receiver when it is just or
    convenient to do so. In
Business Development Bank
    of Canada v. Astoria Organic Matters Ltd.
, 2019
    ONCA 269, 69 C.B.R. (6th) 13, Zarnett J.A. concluded, at paras. 66 and 67, that
    where an order is made pursuant to both s. 243 of the
BIA
and s. 101 of the
CJA
, the more restrictive appeal
    provisions in the
BIA
govern the rights of appeal and appeal routes.

[11]

In the present case, para. 1 of the Order
    expressly states that the appointment of the receiver is made pursuant to
BIA
s. 243(1) and
CJA
s. 101. The recitals to the Order
    state that the application is under both the
BIA
and the
CJA
. And the powers of the receiver to which the appellants object
    the power to take possession of and exercise control over the Family Residence and
    Cottage  are powers that
BIA
ss. 243(1)(a) and (b) expressly
    authorize a court to grant to a receiver. Accordingly, the right to appeal the
    Order and the appeal routes are those set out in the
BIA
.

III.      DOES
    AN APPEAL AS OF RIGHT FROM THE ORDER EXIST?

[12]

There is no appeal as of right under
BIA
ss. 193(a) or (c) from an order
    appointing a receiver:
Business Development Bank of
    Canada v. Pine Tree Resorts Inc.
, 2013 ONCA 282,
    115 O.R. (3d) 617, at para. 14.

[13]

The appellants argue they have an appeal as of
    right under
BIA
s.
    193(b): if the order or decision is likely to affect other cases of a similar
    nature in the bankruptcy proceedings. The jurisprudence has consistently
    interpreted s. 193(b) 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 or receivership proceedings:
2403177
    Ontario Inc. v. Bending Lake Iron Group Ltd.
, 2016
    ONCA 225, 396 D.L.R. (4th) 635, at para. 32.

[14]

Here, BCUs application for the appointment of a
    receiver concerns five residential properties. The application judges
    endorsement for an April 25, 2019 case conference records that a new
    receivership proceeding involving a property known as Stavebank is
    contemplated. That new proceeding is not the receivership proceeding in which
    the Order was made. Accordingly,
BIA
s. 193(b) does not apply.

[15]

As a result, the appellants require leave to
    appeal the Order under
BIA
s. 193(e).

IV.     SHOULD
    LEAVE TO APPEAL BE GRANTED?

[16]

Notwithstanding their technical non-compliance
    with
BIA
Rule 31(1)
    namely, not filing the appeal in the proper office strictly within the
    prescribed time  the appellants request that leave to appeal be granted, if
    leave is required. Given that the appellants had an intention to appeal and
    exceeded the filing time prescribed by the
BIA Rules
by only one day,
    we shall consider their alternative position that leave to appeal should be
    granted.

(a)

The guiding principles

[17]

The principles guiding the consideration of a
    request for leave to appeal under s. 193(e) were set out by Blair J.A. in
Pine Tree Resorts
where, at para. 29,
    he stated:

Beginning with the overriding proposition that
    the exercise of granting leave to appeal under s. 193(e) is discretionary and
    must be exercised in a flexible and contextual way, the following are the
    prevailing considerations in my view. The court will look to whether the
    proposed appeal,

a) raises an issue that is of general
    importance to the practice in bankruptcy/insolvency matters or to the
    administration of justice as a whole, and is one that this Court should
    therefore consider and address;

b) is
prima facie
meritorious, and

c) would unduly hinder the progress of the
    bankruptcy/insolvency proceedings.

(b)

Consideration of the factors

(1)

Issue of general importance

[18]

The proposed appeal does not raise an issue of
    general importance to the practice in insolvency matters or to the
    administration of justice as a whole. It concerns a very fact-specific dispute
    between two debtors and their creditor.

(2)

Is the appeal
prima facie
meritorious?

[19]

In their appeal factum, the appellants advance
    two main grounds of appeal in respect of the Order: (i) the application judge
    failed to consider BCUs conduct in engaging in an unauthorized transaction;
    and (ii) the application judges treatment of certain factors relevant to
    whether it was just and convenient to appoint a receiver was not appropriate.

The
    unauthorized transaction

[20]

First, the appellants submit that in granting
    the Order, the application judge failed to take into consideration conduct by
    BCU that disentitled it to the equitable relief of the appointment of a
    receiver.

[21]

In their appeal factum, the appellants
    acknowledge that the first mortgages on the Family Residence and Cottage fell
    into arrears in August 2018 and November 2018 respectively. Their main ground
    of appeal concerns the conduct of BCU in respect of the debt secured by the
    second mortgage on the Family Residence.

[22]

The second mortgage on the Family Residence
    secures the line of credit extended to Vicar Homes (the Vicar LOC). In
    opposing the appointment of a receiver over the Family Residence, the
    appellants took the position that in February and March 2017 BCU carried out a
    series of unauthorized transactions in respect of the Vicar LOC. Mr. DeMaria
    deposited funds into the account of a related company, Do You Know Inc. He
    transferred those funds to the Vicar LOC. The cheques deposited were returned
    NSF. As a result, BCU reversed the transactions, without Mr. DeMarias
    authorization, thereby increasing the amount due under the Vicar LOC.

[23]

In their appeal factum, the appellants contend
    that the reversal of the transactions constituted a breach of the Vicar LOC
    Loan Agreement and amounted to misconduct that deprived BCU of the ability to
    claim the equitable relief of the appointment of a receiver over the Family Residence.
    The second mortgage on the Family Residence secured the Vicar LOC but not the
    Do You Know account into which Mr. DeMaria initially deposited the NSF cheques.

[24]

The appellants submit that by failing to
    consider this breach, the application judge did not give any weight to this
    critical factor in the test for the appropriateness of the appointment of a
    receiver and in particular the issue of whether BCU had clean hands.

[25]

The reasons of the application judge disclose
    that he did consider this issue. He stated:

Before the cheques cleared, [DeMaria]
    instructed BCU to transfer the money from DYK to reduce the line of credit of
    Vicar. BCU did as instructed. The cheques bounced. BCU reversed the transfers,
    putting the Vicar LOC back where it was before the NSF cheque amounts were
    transferred from the DYK to the Vicar account.

I simply cannot agree that this was misconduct
    or motivated by a conflict of interest by BCU. No money was actually deposited
    to DYK. Therefore, the transfer of this money to reduce the Vicar LOC was
    really nothing more than an accounting error on the part of BCU. Had it waited
    for the cheques to clear, no funds would have been transferred and there would
    never have been a credit of $800,000 to the Vicar account. The problem arose,
    not from BCU misconduct, but from the fact that the cheques deposited to the
    DYK account were bad.

[26]

In respect of the Vicar LOC, the application judge also reviewed and
    considered whether the change in the amount outstanding under the Vicar LOC
    amounted to a material variation in the guaranteed obligations and whether the
    relevant lending and security documents permitted the variation. He concluded
    that the documents permitted an increase in the amount loaned to Vicar Homes.
    That said, the application judge made it clear that: This hearing, of course,
    is not a final ruling on the question. No doubt further evidence would be
    required in the event there are proceedings to enforce the guarantee.

The
    application judges treatment of other factors

[27]

Second, the appellants argue in their appeal
    factum that the application judge based his assessment on whether it would be
    just and convenient to appoint a receiver on two erroneous findings of fact:
    (i) the existence of competing creditor claims to the Family Residence and
    Cottage; and (ii) the appointment of the receiver would not be the high cost
    alternative.

[28]

As to the first finding of fact, the application
    judges reasons disclose that his reference to other creditors was made in his
    discussion of the earlier appointment of a receiver over two other properties
    and disputes involving other creditors over adequacy of security and priority
    issues. In those circumstances, the application judge concluded that it was
    critical to move matters under one roof so to speak.

[29]

As to the second finding of fact, the
    application judge expressed the view that given the existence of other
    receivership proceedings and added costs through private mortgage enforcement
    proceedings, it is not at all clear to me that extending the receivers powers
    to [the Family Residence and Cottage] as well is the high cost alternative.

[30]

On the face of his reasons, it is not apparent
    that the application judge made any palpable and overriding error. The findings,
    when read in context, were more in the nature of his assessment of relevant
    factors to take into account in considering whether to appoint a receiver.

[31]

When their grounds of appeal are considered
    together, it is far from clear that the appellants have demonstrated a
prima facie
meritorious appeal from the
    Order.

(3)

Effect of an appeal on the conduct of the
    receivership

[32]

Although the enforcement of the Order against
    the Family Residence has been stayed for a time, BCU contends that the receiver
    has been reluctant to freely exercise its powers under the Order to market and
    sell the Cottage while the appeal is pending.

(c)

Conclusion

[33]

From the materials before us, we conclude that:
    (i) an appeal would affect the conduct of the receivership proceedings, at
    least in respect to the Cottage; (ii) the appeal does not raise an issue of
    general importance; and (iii) the appellants have not demonstrated that their
    appeal is
prima facie
meritorious. In those circumstances, we do not grant leave to appeal the Order.

V.      DISPOSITION

[34]

For the reasons set out above, we grant the
    motion and quash the appeal on the basis that leave to appeal is required,
    which we decline to grant.

[35]

BCU seeks full indemnity costs of this motion
    and the appeal. Although the appellants perfected their appeal, BCU has not
    filed its responding materials. While the charges enable BCU to recover its
    costs of enforcement on an elevated basis, this court retains the discretion to
    determine the award of costs that would be fair and reasonable in the
    circumstances. We fix the fair and reasonable costs to which BCU is entitled at
    $20,000, inclusive of disbursements and applicable taxes.

K. Feldman J.A.

C.W. Hourigan J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Canada (Attorney General) v. Samuel, 2019 ONCA 555

DATE: 20190702

DOCKET: C66024

Sharpe, Brown and Roberts JJ.A.

BETWEEN

Attorney General of Canada

Respondent (Respondent)

and

Shawn Samuel

Applicant (Appellant)

J. Todd Sloan, for the appellant

Stewart Phillips and Ani Mamikon, for the respondent

Heard: June 18, 2019

On appeal
    from the order of Justice Mary E. Vallee of the Superior Court of Justice,
    dated August 21, 2018, with reasons reported at 2018 ONSC 4961, and from the
    costs order, dated November 2, 2018, with reasons reported at 2018 ONSC 6596.

Sharpe J.A.:

FACTS

[1]

The appellant was serving a lengthy sentence on five counts of
    robbery, unauthorized possession of a firearm, and possession of a weapon
    contrary to a prohibition order. He was released from Beaver Creek Institution
    on day parole in April 2016. While in the community, he completed six months of
    residential substance abuse treatment and, in November 2016, the Parole Board
    of Canada extended his day parole. The appellant was relocated to Ottawa where
    he resided in a halfway house and in January 2017 he secured employment.

[2]

The appellant was subject to conditions that required he report
    to the Community Residential Facility (CRF) where he resided. He was also
    required to comply with conditions not to associate with any person he knew or
    had reason to believe was involved in criminal activity. His CRF caseworker
    reported to his parole officer that he had concerns regarding who the appellant
    was associating with. His parole officer scheduled a disciplinary meeting.
    Following the meeting, the Parole Officer Supervisor issued a warrant of
    apprehension and suspension of the appellants day parole for the protection
    of society and the appellants case was referred to the Parole Board of
    Canada. The Parole Board conducted a hearing and revoked the appellants day
    parole because he presented an undue risk to society, in a decision dated
    April 20, 2017. The Appeal Division affirmed the Parole Boards revocation
    decision on September 11, 2017.

[3]

The appellant was re-incarcerated on the original sentence as a
    result of the revocation of his parole. He contends that he was detained within
    the meaning of s. 10 of the
Canadian
Charter of Rights and Freedoms
during the parole disciplinary meeting and denied the right to be informed of
    his right to counsel.

[4]

While the respondent filed a fresh evidence application to prove
    that, on March 7, 2019, while this appeal was pending, the appellant was
    released from prison on statutory release, the application for fresh evidence
    did not find its way to the appellants counsel. However, the appellants
    counsel concedes that the appellant has been released.

ISSUES

[5]

The appellant raises two issues on appeal to this court.

[6]

First, he submits that the application judge erred by refusing
habeas
    corpus
as the Superior Court was better placed to deal with his
Charter
arguments than the Parole Board, the Appeal Division and the Federal Court on
    judicial review.

[7]

Second, he argues that his
habeas corpus
application was
    criminal in nature and that the application judge erred by characterizing his
habeas
    corpus
application as being civil in nature and ordering costs. In the
    alternative, he submits that if his
habeas corpus
application was
    civil in nature, the costs awarded were excessive and amount to a denial of
    access to justice given his circumstances.

[8]

The respondent resists the appeal on the merits, but also asks us
    to dismiss it as moot.

ANALYSIS

1.

Mootness

[9]

It is common ground that as the appellant is no
    longer in detention, his appeal from the refusal of
habeas corpus
is
    moot.

[10]

It is also common ground that this court has
    jurisdiction to consider a moot appeal where the appeal raises a legal issue
    that, in the interests of justice, the court can and should resolve. Cases
    falling into this category typically raise points that are evasive of review in
    that they are sufficiently important, and they come before appellate courts as
    live issues so rarely, that the law needs to be clarified in the instant
    case:

Mission Institution v. Khela
, 2014 SCC 24, [2014] S.C.R.
    502, at para. 14.

[11]

We agree with the respondent that this is not
    such a case. The appellant concedes that the Superior Court should ordinarily
    decline to
entertain
habeas
    corpus
in the face of a complete, comprehensive and expert procedure for
    review and that the Parole Board hearing and appeal process constitutes such a
    process:
May v. Ferndale Institution
, 2005 SCC 82, [2005] 3 S.C.R. 809,
    at para. 44;
R. v. Graham
, 2011 ONCA 138, 275
    O.A.C. 200, at para. 16. The appellants submission that the application judge
    erred by refusing
habeas corpus
rests on the contention that, in the
    particular circumstances of this case and the nature of the
Charter
issues it raises, the Superior Court was better placed to review the Parole
    Boards decision on
habeas corpus
than the Federal Court by way of
    judicial review.

[12]

In our view, the appellants case is fact-specific
    and raises no legal point that is evasive of review and that should be
    clarified despite mootness. As he has now been released, it would serve no
    purpose for us to entertain the appeal.

[13]

Accordingly the appeal is dismissed as moot.

2.

Costs

[14]

The authority to award costs in
habeas corpus
proceedings depends on whether the matter is characterized as civil or criminal
    in nature.
In Re Storgoff
, [1945] S.C.R. 526 states that it is the
    nature and character of the proceeding in which
habeas corpus

is
    sought which determines whether it is a criminal matter.

[15]

Re Ange
, [1970] 3 O.R. 153 (C.A.) establishes the
    principle that there is no jurisdiction to award costs for
habeas corpus
in criminal matters. The issue in that case was the expiry date of concurrent
    and overlapping periods of imprisonment, requiring interpretation of the
Criminal
    Code
and the
Parole Act
.

This court found that the determination of the expiry date was a criminal
    matter and the court did not have jurisdiction to award costs.

[16]

On the other hand, it is well-established that
habeas corpus
proceedings arising from prison discipline and transfer decisions are
    characterized as civil in nature and that costs may therefore be awarded:
Oliver
    v. Attorney General (Canada)
, 2010 ONSC 6431. A
habeas corpus
application arising from prison disciplinary proceedings is considered a civil
    matter, because it deals with an inmates obligation to conduct himself in
    accordance with prison rules rather than calling him to account to society for
    a crime violating the public interest and because it relates to the
    administration of the lawful sentence by public authorities, rather than the
    legality of the original conviction or indictment:
R. v. Campbell
,
    2010 ONSC 6619, at para. 1

[17]

Similarly, in
Karafa v. The Attorney General of Canada
,
    2016 ONSC 2604, the court awarded costs in a
habeas corpus

application
    relating to an involuntary transfer to medium security.
Habeas corpus
matters where inmates seek release from segregation have been found to be civil
    matters:
Vukelich v. Mission Institution
, 2005 BCCA 75, 38 B.C.L.R.
    (4th) 132, at paras. 33-38. Transfer decisions between institutions and decisions
    about re-classifications are also considered to be civil in nature:
Ross v.
    Riverbend Institution (Warden)
, 2008 SKCA 19, 310 Sask. R. 9;

Hertrich
    v. Her Majesty the Queen
, 2010 ONSC 6334, at para. 3;
Olivier
.

[18]

The appellant submits that as the impugned decision resulted in
    re-incarceration on his criminal sentence and was motivated by a penal intent,
    it ought to be regarded as criminal in nature.

[19]

The respondent argues that parole revocation is an administrative
    decision governed by a comprehensive administrative scheme in the
Corrections and Conditional Release Act
, S.C.
    1992, c. 20 (
CCRA
)

and therefore
    is more akin to disciplinary proceedings than to a criminal proceeding. The
    respondent argues that
habeas corpus
should only be regarded as
    criminal in nature if it arises from proceedings directly related to the
    criminal trial process, including a challenge to the warrant of committal, and
    that anything related to the execution or administration of the sentence is
    properly regarded as civil in nature.

[20]

Counsel were unable to point to any case law on the question of
    whether a
habeas corpus
application challenging the revocation of
    parole is characterized as criminal or civil in nature. The respondent relies
    on
Lee v. Canada (Attorney General)
,
2018 ABQB 40, 403 C.R.R.
    (2d) 194, where the court struck out a confused application alleging that the
    applicants detention on a life sentence for murder had become unlawful because
    the Parole Board refused to consider his application for parole and because he
    had not committed any violent act while in prison. The court described his
    application as badly framed, gibberish and an abuse of process and ordered
    him to pay $2,000 costs.

[21]

Lee
is not binding on this court and in any event I do
    not regard it as determinative of the issue before us. It was not even clear
    that the application the court struck out could be considered a
habeas
    corpus

application. If it was, in fact, a
habeas corpus
application, the case did not involve the revocation of parole and it presented
    many other features crying out for a costs award that are not present here.

[22]

The respondents submission that this is a civil matter has to be
    assessed in the light of the language and purpose of the statutory scheme
that governed the decision the appellant seeks to challenge. Section
    135(1) of the
CCRA
provides for the suspension of parole and
    re-incarceration of the offender when an offender breaches a condition of
    parole or statutory release or whenit is necessary and reasonable to suspend
    the parole or statutory release in order to prevent a breach of any condition
    thereof or to protect society. Section 135(7) provides wherethe continued
    parole or statutory release of an offender would constitute an undue risk to
    society by reason of the offender reoffending, parole may be terminated or
    revoked. Where the offender is returned to custody by virtue of these
    provisions, the offender continues to serve the offenders sentence: s.
    135(10).

[23]

In my view, s. 135 indicates that parole revocation
    has a criminal law purpose and rationale, namely, the protection of society.
    The
reason given for the warrant of apprehension and suspension of the
    appellants day parole was the protection of society and the Parole Board
    revoked the appellants day parole release because he presented an undue risk
    to society. These stated reasons track the criminal rationale of s. 135. The
    appellant was not, as in the case of the prison discipline and transfer cases,
    subjected to an administrative sanction in order the maintain control within a
    prison, but rather ordered to continue to serve the sentence that the court
    had imposed in order to protect society.

[24]

In the prison discipline and prison transfer cases, the criminal
    law sentence serves as merely part of the background. It is the reason why the
    applicant is in the institution and subject to prison discipline. The sanction an
    applicant would challenge is an administrative order that is quite distinct
    from the sentence imposed by the criminal court.

[25]

In the case of parole revocation, the purpose of the challenged
    decision is the protection of society, not maintaining order within the
    institution, and the justification for the detention that is at issue on the
habeas
    corpus
application is the re-institution of the criminal sentence imposed
    by the court. In my view, such an application is properly characterized as
    being criminal rather than civil in nature.

[26]

I conclude, accordingly, that the application judge
    erred by characterizing this as a civil case and awarding costs.

DISPOSITON

[27]

I would dismiss the appeal against the refusal of
habeas
    corpus
as moot, dismiss the fresh evidence application as unnecessary but
    set aside the costs order.

Released: July 2, 2019 RJS
    Robert J. Sharpe J.A.

I agree. David Brown
    J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: Colucci v. Colucci, 2019 ONCA 561

DATE: 20190704

DOCKET: C66264

Brown, Roberts and
    Zarnett JJ.A.

BETWEEN

Lina Colucci

Applicant (Appellant)

and

Felice
    Colucci

Respondent (Respondent)

Surinder K.
    Multani
, for the appellant

Richard M. Gordner, for the respondent

Heard: April 26, 2019

On appeal from the order of Justice P.B. Hockin of the
    Superior Court of Justice, dated November 5, 2018, and from the costs order,
    dated December 17, 2018.

Roberts
    J.A.:

[1]

This appeal concerns a delinquent payor who was granted a retroactive reduction
    in his child support obligations that extended far into the past.

[2]

The appellant appeals from the order of the motion judge allowing the
    respondents request under s. 17(1) of the
Divorce Act
, R.S.C. 1985 c.
    3, to vary and retroactively reduce a 1996 child support order. The respondent
    seeks leave to cross-appeal from the costs order awarded to the appellant.

[3]

In my view, this case is governed by the principles articulated in
D.B.S.
    v. S.R.G.
, 2006 SCC 37,
    [2006] 2 S.C.R. 231
and
Gray v. Rizzi
, 2016 ONCA 152, 129 O.R.
    (3d) 201. The motion judge erred in failing to apply those principles and the
    appeal should be allowed.

A.

Background

[4]

The parties were married on October 1, 1983. They had two daughters, born
    respectively on March 27, 1988 and August 4, 1989. The parties separated on
    February 23, 1994 and were divorced on June 14, 1996.

[5]

The parties divorce judgment, dated May 13, 1996, provided for custody
    of the parties two daughters to the appellant and required the respondent to
    pay child support in the amount of $115 per week per child, so long as the daughters
    remained children of the marriage under the
Divorce Act
. At that
    point, their children were 8 and 6 years old.

[6]

The respondents child support obligations ended in 2012 when the
    daughters ceased to be children of the marriage. By 2012, both daughters had
    completed post-secondary education and were employed. As a result, from 2012
    forward, no further arrears accumulated apart from interest.

[7]

By 2012, the respondent had fallen into substantial arrears of child
    support. His taxable income was in decline from 1997 onwards. In April 1998,
    through counsel, he asked the appellant to consider a reduction of his child
    support obligations, which she refused. However, he did not commence a motion
    to change the order with respect to his child support obligations until
    November 17, 2016. He made few payments and the Family Responsibility Office
    was required to compel payment of the respondents support obligations.

[8]

From 2001 to 2016, the respondent resided first in the United States and
    then in Italy. During these years, there were significant periods of time in
    which no voluntary support payments were made; there were also significant
    periods of time in which there were no support payments from income diversion
    or other sources. The arrears accumulated and became substantial. The respondent
    left Canada without notifying the appellant and the Family Responsibility
    Office of his whereabouts and income during his absence. As of the date the respondents
    change motion was heard, the arrears with interest amounted to more than $170,000.

B.

Motion to change and order varying child support

[9]

In his November 17, 2016 notice of motion, the respondent sought the
    following order:

a) retroactively varying the
    child support set out in the divorce judgment dated May 13
th
, 1996,
    commencing May 1, 1997 (the coming into force of child support guidelines in
    accordance with s. 14(c) of the
Federal Child Support Guidelines
, SOR/
    97-175);

b) fixing the arrears of
    child support, if any, and determining the payments on those arrears in
    accordance with the respondents income. The respondent alleged that he was
    currently employed at minimum wage.

[10]

Relying
    on s. 14(c) of the
Federal Child Support Guidelines
, the motion judge,
    at paras. 10-13 of his reasons, found that the coming into force of the
Guidelines
on May 1, 1997, subsequent to the child support order in this case, constituted
    a change of circumstances, which permitted a variation order under s. 17(4)
    of the
Divorce Act
.

[11]

The
    motion judge determined at para. 15 that the respondent is entitled as of
    right to a variation and a calculation of support based on table amounts and
    his drop in income from employment. The motion judge, at para. 20, rejected as
    inapplicable the three-year rule suggested by
the
    Supreme Court in
D.B.S.
,
at para. 123, that it
    will usually be inappropriate to delve too far into the past and make a support
    award retroactive to a date more than three years before formal notice is given
.

[12]

Imputing
    income to the respondent at minimum wage or at his actual earned income, and
    following the table amounts of the
Guidelines
, the motion judge
    recalculated the arrears and reduced them to $41,642.

C.

Issues

[13]

The
    appellant submits the motion judge made the following three errors:

i.

He failed to apply the principles respecting retroactive support
    variations as articulated in

D.B.S.

and
Gray
; more
    specifically, the motion judge erred by failing to conduct a further inquiry,
    after accepting that the threshold for material change in circumstances had
    been met due to the coming into force of the Guidelines, as to whether it was
    appropriate to retroactively reduce the respondents child support obligations

far into the past.

ii.

He failed to apply the three-year rule, as set out in
D.B.S.
,
    and determine whether a retroactive support variation should be made for
    support amounts owing more than three years prior to the date of the
    respondents motion to vary.

iii.

He incorrectly imputed income to the respondent.

The respondent seeks leave to appeal costs, on the
    basis that the motion judge erred in principle by failing to apply the
    presumption in r. 24 of the
Family Law Rules
, O.Reg. 114/99, that a
    successful party is entitled to costs.

D.

Analysis

(1)

Governing principles:
D.B.S.
and
Gray

[14]

In
    my view, the motion judge erred in his approach to the retroactive child
    support variation requested by the respondent. As the appellant conceded and
    the respondent submitted, the motion judge was correct to find that the enactment
    of the
Guidelines
amounted to a change in circumstances that permitted
    the respondent to seek a variation:
Guidelines
, s. 14(c);

Marinangeli
    v.

Marinangeli

(2003), 66 O.R. (3d) 40. I agree that the
    threshold for variation has been met. However, the motion judge erred by
    continuing on to conclude that the respondent was entitled as of right to a
    retroactive reduction extending years into the past without any consideration
    of the principles relating to retroactive variation set out in
D.B.S.
and
Gray
, including the application of the three-year rule.

[15]

Specifically,
    the motion judge erred in distinguishing
D.B.S.
and failing to follow
Gray
.
    While
D.B.S.
involved an application for a retroactive increase in
    support, the factors articulated by the Supreme Court were intended to serve as
    general principles applicable, with appropriate adaptation, to retroactive
    support variations that would decrease the quantum of child support.  In
Gray
,
    this court adapted and applied
D.B.S.
to a motion, like here, to vary retroactively
    a child support order under s. 17 of the
Divorce Act
, on the basis
    that the payors income had decreased substantially.  In
Gray
, like in
    the case at bar, the motion judges order had the effect of respectively
    eliminating and reducing support arrears.

[16]

This
    court in
Gray
clarified the approach to be followed when the threshold
    for a retroactive variation of support had been met. Specifically, at paras. 44-
    54, the court made it abundantly clear that the four factors governing
    retroactive support orders identified in
D.B.S.
, subject to
    exceptional circumstances, should be adapted to apply to applications to
    decrease support retroactively in cases like the present:

i.

Whether there was a reasonable excuse as to why a variation in support
    was not sought earlier;

ii.

The conduct of the payor parent;

iii.

The circumstances of the child and;

iv.

Any hardship occasioned by a retroactive award.

[17]

Gray
rejected the notion that
D.B.S.
and its factors for analysis are
    inapplicable in cases of arrears, at para. 51:

[A]
payor who has let arrears
    accumulate has no claim to resist an
increase
in support on grounds of
    certainty and predictability. A delinquent payor cannot use the
    principle of predictability as a shield against paying the full amount of
    support to which his child is entitled.

In
    contrast, where a payor
seeks a retroactive decrease in support
,
    the
S. (D.B.)
factors  such as taking into account the
    circumstances of the child, the conduct of the payor parent, the hardship of a
    retroactive award, and the reason for delaying in seeking a variation in
    support  remain relevant. [Emphasis added.]

[18]

At
    paras. 45 and 61-62, the court also endorsed the general rules from
D.B.S.
that the date of effective notice should serve as the date to which the award
    should be retroactive and that it usually will be inappropriate to make a
    support award retroactive to a date more than three years before formal notice
    was given (the three-year rule).  While
D.B.S.
framed these rules in
    the context of giving certainty and predictability to the payor parent when the
    change is an increase sought by the recipient parent,
Gray
clarified
    that the same underlying principles apply when the change is sought by the
    payor parent:  see
D.B.S.
, at para. 123;
Gray
, at para. 61.

[19]

The
    court in

Gray
, at para. 60, adopted in its entirety Chappel
    J.s analysis in
Corcios v. Burgos
, 2011 ONSC 3326, and, in
    particular, her adaptation of the
D.B.S.
principles to a motion to
    change child support retroactively and effectively rescind arrears based on a
    payors reduced income.

[20]

First,
    at paras. 56-59 of
Gray
, the court identified the overarching
    considerations on a request to retroactively reduce child support, which I
    summarize as follows:

i.

The best interests of the child is the paramount issue. Parents cannot
    bargain away their childrens rights to support when they need it. Delinquency
    in paying support should not be incentivized.

ii.

There is a distinction to be made between (i) requests for a reduction
    of arrears based on a current inability to pay and (ii) arrears arising from a
    change in financial circumstances that affected the payors ability to make the
    support payments when they came due. A current inability to pay will generally
    not result in a reduction unless the payor can demonstrate on a balance of
    probabilities that he or she cannot and will not ever be able to pay the
    arrears. However, a change in circumstances while arrears were accumulating,
    which rendered the payor unable to make support payments for a significant
    period of time, may allow for a retroactive decrease in the amount of child
    support owed during that time and a reduction of the accumulated arrears.

[21]

Next,
    at para. 60 in
Gray
, the court set out the following key factors of
    the
Corcios/D.B.S.
analysis to guide a court in deciding whether to
    grant retroactive relief, the date of retroactivity, and the appropriate
    quantum of relief:

i.

The nature of the obligation to support, whether contractual, statutory
    or judicial;

ii.

The ongoing needs of the support recipient and the child;

iii.

Whether there is a reasonable excuse for the payors delay in applying
    for relief;

iv.

The ongoing financial capacity of the payor and, in particular, his or
    her ability to make payments towards the outstanding arrears;

v.

The conduct of the payor, including whether the payor has made any voluntary
    payments on account of arrears, whether he or she has cooperated with the
    support enforcement authorities, and whether he or she has complied with
    obligations and requests for financial disclosure from the support recipient;

vi.

Delay on the part of the support recipient, even a long delay, in
    enforcing the child support obligation does not, in and of itself, constitute a
    waiver of the right to claim arrears and;

vii.

Any hardship that may be occasioned by a retroactive order reducing
    arrears or rescinding arrears, or by an order requiring the payment of
    substantial arrears.

(2)

The motion judge erred by failing to apply these governing principles

[22]

The
    motion judge made no reference to
D.B.S.
(and none to
Gray
)
    other than to reject the application of the three-year rule, reasoning at
    para. 20: [t]his is not a retroactive support order but a case where arrears
    have accumulated and require adjustment. In any event, it would be wrong to
    limit the calculation in view of the respondents delinquency.

[23]

This
    was an erroneous approach and the motion judges reasons disclose a clear error
    in principle that justifies appellate intervention:
Gray
, at para. 18;

Hickey v. Hickey
, [1999] 2 S.C.R. 518, at paras. 11-12. While the
    motion judge correctly determined that the respondent met the threshold for a
    retroactive variation of the support order and was delinquent, he erred by
    failing to go on to consider whether and to what extent a variation order
    should be made in the light of the
D.B.S.
factors as adapted by this
    court in
Gray
.

[24]

Instead,
    the motion judge appears to have relied only on this courts decision in
Wright
    v. Zaver

(2002), 59 O.R. (3d) 26 (C.A.) and failed to consider how
    that decision and
D.B.S.
interact.

[25]

In
Wright
, this court determined that the enactment of the Ontario Child
    Support Guidelines (the Guidelines) in 1997 created a right to vary
    pre-existing child support orders to bring
prospective
support in line
    with the amount specified in the Guidelines.  The court further held that the discretion
    not to apply the Guidelines, again
prospectively
, was limited to the
    circumstances set out in s. 37 (2.3) and (2.5) of the
Family Law Act
.

[26]

The
    decision in
Wright

in no way determines that a request for
retroactive
support reductions, including requests to bring historical support in line with
    the Guidelines, will be automatic.   In such cases, the support amount provided
    for in the prior order or agreement will have formed a part of the recipient
    parents budget and the support recipient often will have undertaken financial
    obligations premised on the continuation of the support set out in the order.
    As such, the guiding principles relating to retroactive requests set out in
D.B.S.
and
Gray

clearly apply.

(3)

D.B.S.
and
Gray
applied

[27]

Given
    the motion judges errors, it falls to this court to carry out the appropriate
    analysis. Applying the
D.B.S.
factors as adapted by this court in
Gray
,
    I am of the view that the respondent is not entitled to a retroactive variation
    order more than three years from November 17, 2016, the date he commenced his motion.

[28]

Given
    the respondents failure to make full and accurate financial disclosure, I am
    unable to determine whether the facts of this case give rise to a current
    inability to pay arrears on his part or from a change in financial
    circumstances that affected his ability to make the support payments when they
    came due.  I agree with the appellants submission that the outcome is the same
    under either scenario because of the respondents delay and other blameworthy
    conduct.  As already noted, the conduct of the child support payor is one of
    the factors to consider when deciding whether to grant retroactive relief, the
    date of retroactivity, and the appropriate quantum of relief.

[29]

Particularly
    apposite is Chappel J.s statement in
Corcios
, at para. 55, stating [b]ehaviour
    that indicates wilful non-compliance with the terms of the order or failure to
    work cooperatively to address the child support issue is a factor that
    militates against even partial rescission of or reduction of arrears.

[30]

The
    respondent has been, at best, a recalcitrant payor who over 23 years has made
    few support payments, particularly when he disappeared and was out of the
    country for 15 years. The respondent was underemployed and left the appellant
    to carry alone the heavy responsibility of raising and supporting their two
    daughters. The respondent has placed a substantial financial burden on his
    familys shoulders. His daughters have accumulated considerable debt in their
    pursuit of post-secondary education. Any alleged hardship arising from the
    substantial arrears that the respondent has permitted to accumulate results
    from his own blameworthy conduct.

[31]

The
    respondent has not discharged his onus to explain his significant failure to
    make support payments and his extraordinary delay in proceeding with his
    application to vary, nor has he produced reliable evidence of his inability to
    pay while arrears were accumulating, particularly during the periods when he
    absconded without a trace to the United States and Italy, and was in receipt of
    a substantial inheritance from his mothers estate. The plain fact remains that
    even if the motion judges order should remain unaltered, the respondent still
    owes substantial arrears that he has failed to reduce.

[32]

Not
    only has he failed to honour his support obligations to his children, in the
    course of these proceedings, the respondent has continued to be in breach of
    the ongoing requirement to make full documentary and financial disclosure. Throughout
    his motion, the respondent misrepresented his inheritance from his mothers
    estate and failed to produce relevant and comprehensive financial documentation
    about his income and assets, which was only partially remedied by some financial
    disclosure made in 2018. This is simply unacceptable and, in my view, should
    have been fatal to the respondents motion to change. As Brown J.A. for this
    court underlined in
Gray
, at para. 31:

[T]he disclosure rules and the sanctions for non-compliance
    are the centrepiece of the Family Law Rules":
Shamli v. Shamli
,
    2004 CanLII 45956 (Ont. S.C.J.), at para. 88. As this court emphasized in
Roberts
    v. Roberts
, 2015 ONCA 450, at paras. 11-13:

The most basic obligation in family law is the duty
    to disclose financial information. This requirement is immediate and ongoing.

Failure to abide by this fundamental principle
    impedes the progress of the action, causes delay and generally acts to the
    disadvantage of the opposite party. It also impacts the administration of
    justice. Unnecessary judicial time is spent and the final adjudication is
    stalled.

Financial disclosure is automatic. It should not
    require court orders  let alone three  to obtain production. [Citations in
    original.]

[33]

I
    do not accept the respondents submission that his support obligations should
    be retroactively varied to April 1998 when he purported to give notice to the
    appellant that he sought to reduce his support obligations.

[34]

The
    respondent took no steps to further his request to reduce his support
    obligations between 1998 and his motion in 2016: he produced no proof of his
    changed financial circumstances, nor, after his initial request for a reduction
    in 1998, did he instigate any further negotiations, mediation or court proceedings.
    Given the appellants refusal of his request, it was incumbent on the
    respondent to initiate proceedings in a timely manner:
Templeton v. Nuttall
,
    2018 ONSC 815, at para. 52;
Corcios
, at para. 55(8). However, in the
    case at bar, the respondent unreasonably failed to do anything for 18 years. As
    a result, the effective date of notice should be November 17, 2016, the date he
    commenced his motion to change.

[35]

November
    17, 2016 as the effective date of notice does not affect the amount of the
    accumulated arrears to 2012 when the respondents support obligation ceased.
    Nor does it reduces the interest that has been accruing on the accumulated
    arrears from November 17, 2013 forward.

[36]

Accordingly,
    I would allow the appeal and order no reduction to the arrears owing by the
    respondent to the appellant.

[37]

Given
    my proposed disposition of this appeal, it is unnecessary to deal with the
    question of whether more income should have been imputed to the respondent, or with
    the cross-appeal.

E.

Disposition

[38]

I
    would allow the appeal and set aside para. 2 of the motion judges order. I
    would dismiss the cross-appeal.

[39]

The
    appellant is entitled to her partial indemnity costs of the appeal in the
    amount of $5,816. She seeks no variation of the costs awarded to her on the
    motion.

Released: DB July 4, 2019

L.B.
    Roberts J.A.

I
    agree. David Brown J.A.

I
    agree. B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Conway (Re), 2019 ONCA 583

DATE: 20190709

DOCKET: C66429

Doherty, MacPherson and Benotto JJ.A.

IN THE MATTER OF:  Martin Conway

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser, for Paul Conway

Craig Harper, for the Attorney General of Ontario

Janice Blackburn, for the person in charge, St.
    Josephs Healthcare Hamilton

Heard: July 5, 2019

On appeal against the disposition of the Ontario Review
    Board dated, December 3, 2018.

REASONS FOR DECISION

[1]

On September 28, 2018, the Hospital notified the
    Ontario Review Board that the appellants liberty had been restricted. A panel
    was convened to conduct a review.

[2]

The panel found the restriction was necessary,
    appropriate and the least restrictive and onerous given the significant threat
    that he posed.

[3]

Mr. Conway appeals on the basis that the Board
    erred in finding that he was a threat to the safety of the public. He also
    alleges procedural unfairness because the Board: (i) directed the hospital to
    arrange an independent assessment of his capacity without giving him advance
    notice; (ii) refused to issue a summons so that his counsel could review
    certain surveillance tapes; (iii) did not provide the names of staff who
    claimed they were traumatized by him; and (iv) refused to deal with his
Charter
claims.

Background

[4]

The appellant is now 66 years old. He has been
    under the
Criminal Code
forensic jurisdiction for 35 years. The index
    offence involved a brutal sexual assault on his aunt in 1983.

[5]

Since then, he has been detained at several
    forensic hospitals. His detention has been marked by unmanageable behaviour,
    sexually inappropriate conduct, outbursts leading to property damage and
    threats to staff. In January 2000 he was charged but not convicted of assault
    and uttering death threats.

[6]

The appellant denies he has a mental illness.

The Hearing

[7]

Dr. Chaimowitz testified that if the appellant
    was discharged, he may progress well for a short period of time but then the
    underlying psychopathology would emerge. This would lead to physical and
    sexually inappropriate conduct. Dr. Prat agreed. The clinical director of the
    programme testified about the traumatizing effect he has on staff.

[8]

The appellant sought an order requiring the
    hospital to produce the video surveillance tapes showing his interaction with
    the staff as well as the names of the staff who said they were traumatized. He
    also claimed his
Charter
rights had been violated.

[9]

After a careful review of the evidence, the
    Board concluded that little has changed over the years in relation to his risk
    to the public. This is demonstrated by the need to move him away from other
    patients. An absolute discharge under these circumstances is not available. Nor
    is a conditional discharge for he cannot live in community without structure
    and support.

[10]

The Board refused to issue a summons for the
    video, declined to provide names of staff and did not deal with the
Charter
argument since it was only raised in submissions.

Conclusion

[11]

We see no error in the Boards conclusion that
    the restriction on his liberties was justified. The evidence overwhelming
    supported the Boards conclusion that the appellant poses a continuing risk to
    the public. In particular:

·

His mental illness remains unacknowledged;

·

Although he has not hurt anyone physically, he
    has threatened Dr. Prat;

·

His conduct within the hospital has
    psychologically harmed staff;

·

Dr. Chaimowitz explained that his underlying
    untreated psychopathology would lead to conflict with members of the public;

·

The Clinical Director testified as to the
    traumatic effect on nursing, clinical and cleaning staff of his derogatory
    comments based on gender, race and culture.

[12]

The Boards findings were supported on the
    record and are entitled to deference.

[13]

We see no procedural unfairness arising from the evidentiary rulings
    made by the Board.

[14]

The video recordings were only marginally
    relevant if at all and would not have had any impact on the Boards conclusion.
    The appellant had written summaries of the evidence of the staff members and
    was able to cross-examine all the witnesses. Notably, no specific unfairness is
    raised as to what the videos would have shown that was not detailed in the
    summaries.

[15]

The names of the staff who were traumatized was
    not the issue, rather it was the substance of the verbal and physically
    aggressive conduct by the appellant  the details of which are set out in the
    Hospital Report. The Board has the discretion to allow hearsay evidence and
    routinely does so. To the extent that the allegations were delivered by way of
    hearsay, there was no procedural unfairness.

[16]

The Boards order (para 3(c)) required the
    hospital to arrange for an independent assessment with respect to the
    appellants capacity to consent to treatment. While the Boards supervisory
    role relating to medical treatment and progress entitles it to determine
    whether an assessment should take place, the Board is not entitled to delegate
    its responsibility with respect to the terms of the assessment. A hearing, on
    notice to the parties, should be conducted to determine the terms. (See:
Re
    LePage
2019 ONCA 363 at para 6).  Since no notice was provided para 3(c) of
    the order is struck.

[17]

The appellants
Charter
argument was
    raised for the first time in submissions. The submission related to his care in
    the hospital. He submitted that the hospital mandated that he go to the
    visitors lounge with staff during his daily room cleaning. If he refused, he
    was placed in seclusion which violated his s. 7 and 12 rights and were not
    saved under s. 1.

[18]

The Board found that it did not have the
    evidentiary base necessary to address the submission which should have been
    raised at the outset of the hearing. We agree with the Board. In the absence of
    notice to the parties and to the Board, it was not able to determine if the
    hospitals actions were
Charter
compliant.

[19]

For these reasons para 3 (c) of the Boards
    order is struck. The appeal is otherwise dismissed.

Doherty
    J.A.

J.C.
    MacPherson J.A.

M.L.
    Benotto J.A.