WARNING

This is a case under the
Child, Youth and Family
    Services Act, 2017
and subject to subsections 87(8) and 87(9) of this
    legislation.
These subsections and subsection 142(3) of
the
Child, Youth and Services Act, 2017
, which
deals with the
    consequences of failure to comply, read as follows:

87
(8)
Prohibition
    re identifying child
 No person shall publish or make public
    information that has the effect of identifying a child who is a witness at or a
    participant in a hearing or the subject of a proceeding, or the childs parent
    or foster parent or a member of the childs family.

(9)
Prohibition re identifying person charged
 The court may make an order prohibiting the publication of information
    that has the effect of identifying a person charged with an offence under this
    Part.

142
(3)
Offences re publication
 A
    person who contravenes subsection 87(8) or 134(11) (publication of identifying
    information) or an order prohibiting publication made under clause 87(7)(
c
)
    or subsection 87(9), and a director, officer or employee of a corporation who
    authorizes, permits or concurs in such a contravention by the corporation, is
    guilty of an offence and on conviction is liable to a fine of not more than
    $10,000 or to imprisonment for a term of not more than three years, or to both.

COURT OF APPEAL FOR ONTARIO

CITATION: AA v. BB, 2021 ONCA 147

DATE:  20210310

DOCKET: C64004

Lauwers, Brown and Roberts JJ.A.

BETWEEN

AA

Plaintiff (Appellant)

and

BB and CC

Defendants (Respondents)

AA, acting in person

BB, acting in person

CC, acting in person

Heard: January 20, 2021 by video conference

On appeal from the judgment and orders
    made by Justice J. Christopher Corkery of the Superior Court of Justice, dated June
    5, 2017, July 3, 2018,
December 12, 2018, December 16,
    2019, and June 1, 2020, with reasons reported at 2017 ONSC 3458, 2018 ONSC
    4173, 2018 ONSC 7490, 2019 ONSC 7318, and 2019 ONSC 3423
.

BROWN J.A.:

I.
OVERVIEW

[1]

The appellant, AA, and the respondent, CC, have
    two children. The respondent, BB, was a friend of CC. In April 2013, following AA
    and CCs separation, the local childrens aid society (the Society) received
    a report from an anonymous caller that she had witnessed AA abusing his
    children and partner. BB made the call. The report was false. AA commenced an
    action against BB and CC claiming damages for intentional infliction of
    emotional distress, conspiracy, slander, and libel.

[2]

AAs action focused on two events. First, the
    April 16, 2013 report that BB made to the Society, which AA alleged was false
    and made at the behest of CC. Second, the April 25, 2013 telephone interview of
    CC by an employee of the Society (the Interview Call) as part of an investigation
    of the initial report from BB, during which CC made several statements about
    AA.

[3]

The first trial of AAs claim took place in late
    2016, with the trial judges reasons released in June 2017: 2017 ONSC 3458 (the
    First Reasons). The trial judge granted AA judgment against BB for slander, awarding
    him $5,000 in general damages and $5,000 in punitive damages. However, the
    trial judge dismissed AAs claim against CC.

[4]

As a result of AAs discovery of fresh evidence
    regarding CCs role in BBs report to the Society, the trial judge re-opened
    the trial and heard further evidence in November and December 2017. The trial
    judge released reasons in July 2018: 2018 ONSC 4173 (the Second Reasons). At
    the re-opened trial, the trial judge found that CC and BB conspired together to
    have BB make the false report to the Society, which slandered AA: at paras. 70
    and 78. He granted judgment in favour of AA against CC and BB for $25,000,
    payable on a joint and several basis (the Judgment).

[5]

AA represented himself at the trials. He sought
    costs of approximately $120,000 (796.95 hours x $150/hour) and $2,500 for
    disbursements. The trial judge awarded AA no costs for his time and
    disbursements of only $1,000 (the Costs Order): 2018 ONSC 7490, at paras. 16-17.

[6]

In order to protect the identities of AA and
    CCs children, the trial judge ordered that letters be used for the parties
    names. However, the local sheriffs office was not prepared to enforce the Judgment
    in that form. To remove that obstacle to enforcement, the trial judge issued a
    subsequent order (the Naming Order) that continued the use of lettered names
    in the proceeding but directed that a new court file be opened for enforcement purposes.
    He stated, in 2019 ONSC 3423 (the Naming Reasons), at para. 14:

To address the plaintiffs difficulty in
    enforcing his judgment, an order shall be prepared and entered by the courts
    administration in accordance with Rule 59.03 of the Rules of Civil Procedure
    (Form 59B) using the full names of the parties and granting judgment in favour
    of the plaintiff in the amount of $25,000 against both defendants, jointly and
    severally. That judgment shall be placed in a new court file with a new court
    file number, containing no reference whatsoever to this file.

[7]

AA appeals the two trial judgments, the Costs Order,
    and the Naming Order. For the reasons set out below, I would allow the appeal of
    AAs claim for damages in respect of statements CC made during the Interview
    Call and his appeal of the Costs Order, in part, but dismiss the balance of the
    appeal.

II.       THE QUALIFIED PRIVILEGE ISSUE

The issue stated

[8]

As part of its investigation into BBs call, an
    employee of the Society, Ms. Cooper, sought to interview CC about the events
    surrounding BBs earlier report. Ms. Cooper conducted a telephone interview
    with CC on April 25, 2013, a little over one week after BB had made her report.
    The trial judge reviewed the evidence given at trial about the Interview Call
    at paras. 26 to 29 of the First Reasons. He wrote that Ms. Cooper testified, in
    part, that:

[CC] spoke about how AA was abusive and
    vindictive  CC told Ms. Cooper that at work she has talked about her
    frustration with AA and the court process and had sought advice from peers on
    how to manage the situation. She talked at work about the fact that [one of
    their children] broke her leg. She has talked at work about how AA is a
    terrible parent and an abusive person and that AA will spin a conspiracy theory
    so she will never see her children again.

[9]

At para. 28, the trial judge wrote that CC
    testified, in part, that:

In her evidence, CC acknowledged that she did
    talk at work about [one of their children] breaking her leg, she does seek
    advice from her co-workers but at no time has she used AAs name.

[10]

After reviewing the law on qualified privilege in
    his First Reasons, the trial judge was not satisfied that AA had made out a
    separate claim for slander against CC for the answers she gave to the Society
    when questioned. He found that CCs communications to the Society on that
    occasion were protected by qualified privilege, stating, at para. 68:

Communication with child welfare agencies
    responsible for protecting children in the course of their investigations is,
    in my view, but another classic example of an occasion of qualified privilege
    as referred to by the Court of Appeal in
Cusson v. Quan
. To find
    otherwise, would make it impossible for such public agencies to carry out their
    difficult but very necessary responsibility of protecting vulnerable children.
    I have no doubt that most interviews conducted in the course of such
    investigations will include statements that tend to lower anothers reputation
    in the eyes of a reasonable person. CC spoke to Ms. Cooper about AA on the
    promise from Ms. Cooper that she would not disclose what CC told her. This
    expectation was reasonable. Her discussion with Ms. Cooper was protected by
    qualified privilege, even if it included CC making admissions about what she
    said to others at work.

[11]

At the re-opened trial, the trial judge heard
    fresh evidence that led him to conclude that:

(1)

BB and CC acted in combination, by agreement or
    common design, to make a false report to the Society: Second Reasons, at para.
    70; and

(2)

CC was the source of the information BB reported
    to the Society: Second Reasons, at para. 71.

[12]

The trial judge awarded $25,000 in damages
    against both BB and CC in respect of BBs false reporting call, allocated as
    follows: (i) $10,000 for intentional infliction of emotional distress; (ii)
    $10,000 for slander; and (iii) $5,000 in punitive damages, in light of the malicious
    nature of the false referral: Second Reasons, at para. 83.

[13]

However, the trial judge maintained his
    dismissal of AAs claim against CC for statements made during the Interview
    Call. Using the identical language from his analysis in the First Reasons, the
    trial judge held that CCs statements to the Society were protected by
    qualified privilege: Second Reasons, at para. 80. Having made that finding, in
    his Second Reasons the trial judge did not go on to consider whether the
    qualified privilege was defeated by any malice on the part of CC.

[14]

AA submits that the trial judge made two errors
    in dismissing his claim against CC for the statements she made during the
    Interview Call with the Society: (i) finding that CCs statements were
    protected by qualified privilege despite an internal Society document about
    general service standards, which the trial judge refused to admit at trial, stating
    that communications to the Society are not privileged; and (ii) failing to
    consider AAs argument that any claim for qualified privilege was defeated by evidence
    that CC lied or misled the Society during the Interview Call.

The state of the appeal record

[15]

A person who makes a statement that is
    defamatory of another may assert, by way of defence to an action for defamation
    or slander, that the statement was made on an occasion of qualified privilege.
    A defamatory statement made on an occasion of qualified privilege does not
    attract liability:
RTC Engineering Consultants Ltd. v. Ontario
(2002),
    58 O.R. (3d) 726 (C.A.), at para. 14. Although the trial judge correctly stated
    the principles regarding the concept of qualified privilege in the law of
    defamation,
[1]
he did
    not clearly identify which statements made by CC during the Interview Call
    defamed AA.

[16]

The absence of such a finding creates problems
    for appellate review. The case AA advanced at trial alleged that, during the
    Interview Call, CC informed the Society employee that she had told people at
    her work that AA was a terrible and abusive parent. AA made that allegation in
    his statement of claim. Also, during his submissions at the first trial, AA identified
    as defamatory CCs statement to the Society that she had told co-workers that
    AA was a terrible and abusive parent.

[17]

The appeal record did not include the transcript
    of the evidence given by the Society employee at the first trial. When the
    panel inquired whether a transcript of that evidence had been prepared, the parties
    advised that one had not. In those circumstances, the panel accepted the audio
    recording of the testimony of the Society employee for review. The panel was
    able to evaluate the April 25, 2013 Case Note of the Interview Call prepared by
    the Society employee in the context of her testimony at the first trial.

[18]

While the Case Note is unclear whether CC
    reported that discussions at work included statements to co-workers that AA was
    a terrible and abusive parent, in her examination-in-chief the Society employee
    confirmed that CC had stated during the Interview Call that she had told
    co-workers that AA was an abusive parent and a terrible person. However, on cross-examination,
    the Society employee could not recall whether CC told her that CC had used AAs
    name when talking at work. In her evidence-in-chief at the first trial, CC denied
    giving AAs name to a co-worker in the context of any statement that would be
    defamatory of him.

[19]

In his reasons for the first trial (at para.
    27) and those for the second (at para. 36), the trial judge refers to the
    Society employees testimony that she could not recall if during the Interview
    Call CC said she had used AAs name with co-workers. However, the trial judge
    did not make any finding as to whether he considered that statement by CC to
    the Society employee as the defamatory statement that could attract the defence
    of qualified privilege.

[20]

The Case Note records several other statements
    made by CC during the Interview Call that were capable of defaming AA:

·

[CC] spoke of how [AA]
    is an abusive and vindictive man;

·

CC stated that the Society employee had fallen
    for AAs act;

·

CC talked about how [AA] is a terrible and
    abusive parent and that she feels he will spin a conspiracy theory and she will
    never see her children again
.

[21]

CC did admit during cross-examination at the
    second trial that the Case Note was an accurate reflection of the conversation
    she had with the Society employee.

[22]

The panel therefore is left in the position
    that: the trial judge considered AAs claim against CC for defamatory statements
    made during the Interview Call; the trial judge did not make a finding as to
    which statements made by CC during that call defamed AA; yet the trial judge
    concluded that the statements were protected by qualified privilege.

[23]

As unsatisfactory as that may be, and
    notwithstanding that the judgment under appeal is far less than $50,000,
[2]
given the length of time that has passed since the 2013 Interview
    Call and the fact that all parties are self-represented, it would not be in the
    interests of justice to remit this matter back to the trial judge. This is an
    appropriate case for this court to exercise its powers under s. 134 of the
Courts
    of Justice Act
(
CJA
), including by making any necessary
    findings of fact.

[24]

As to AAs defamation claim based on CCs
    statement to the Society employee that she had commented on AAs parenting to
    her co-workers, the conflicting evidence set out at para. 18 above, together
    with the absence of any evidence at trial from a co-worker of CC who was the
    recipient of any such statement, leads me to conclude that AA has not
    established, on a balance of probabilities, the element of identification
    essential to a defamation claim: Raymond E. Brown,
Brown on Defamation
,
    2nd ed. (Toronto: Thomson Reuters, 2020), at ch. 6.1. However, given CCs
    admission at trial that the Case Note accurately reflects the conversation she
    had with the Society employee during the Interview Call, I will proceed on the
    basis that CC told the Society employee that AA was an abusive and vindictive
    man and a terrible and abusive parent. Those statements certainly defamed
    AA. My analysis of the trial judges qualified privilege finding will treat
    these as the defamatory statements at issue in the Interview Call and will
    hereafter refer to them as the Defamatory Statements.

AAs first argument on qualified privilege

[25]

The appellant advances two arguments in support
    of his contention that the trial judge erred in finding that the Defamatory
    Statements CC made during the Interview Call were protected by qualified
    privilege.

[26]

First, AA argues that the trial judge erred by
    refusing to admit a Society document which he contends demonstrates that the
    Interview Call was not an occasion of qualified privilege. As described in AAs
    factum, the document stated, in part:

Communication between a worker and client are
    not recognized in Ontario as privileged, and as a result, Individuals and
    records may be subpoenaed by the Court. Information which clients have assumed
    would be held in strict confidence may have to be disclosed in the course of
    due legal process. Clients should, therefore, be advised of the limitations of
    the agency's ability to maintain confidentiality.

The trial judge ruled that he would
    not admit the document because it fell outside the scope of admissible evidence
    for the re-opened trial.

[27]

I see no error by the trial judge in refusing to
    admit the document. The document does not assist in determining whether the
    Interview Call was made on an occasion of qualified privilege. The references
    in the Society document to privilege are not references to the concept of
    qualified privilege in the law of defamation.

[28]

More relevant to the issue of whether the Defamatory
    Statements were made on an occasion of qualified privilege is s. 125 of the
Child,
    Youth and Family Services Act, 2017
, S.O. 2017, c. 14, Sched. 1 (
CYFSA
).
    That section sets out the obligation of a person to report information to a
    society where there are reasonable grounds to suspect that a child has suffered
    various kinds of harm. Section 125(10) creates a form of statutory qualified
    privilege:

This section applies although the information
    reported may be confidential or privileged, and
no action for making the report shall be instituted against a person
    who acts in accordance with this section unless the person acts maliciously or
    without reasonable grounds for the suspicion
. [Emphasis
    added.]

[29]

This statutory qualified privilege attaches to
    statements made in a complaint to a society, as well as to statements made by a
    person to the society in the course of an investigation:
W. (D.) v. White
,
    2001 CarswellOnt 5892 (S.C.), at paras. 85-92, affd (2004), 189 O.A.C. 256
    (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 486;
Nadejda Ryabikhina
    v. Stanislav (Stan) Savranskiy
, 2010 ONSC 3860, at paras. 24-25, affd
    2011 ONCA 219, leave to appeal to S.C.C. refused, 35927 (July 24, 2014);
Sullivan
    v. Draper-Sereda
, [2006] O.J. No. 4671 (Small Claims).

[30]

The statements made by CC to the Society were in
    response to the Societys request that she provide it with information as part
    of its investigation into BBs call. Given its obligation to ascertain the
    accuracy of reports made to it, the Society had an interest in receiving
    information from CC about the call and, on her part, CC had a duty, whether
    legal, social, or personal, to provide the Society with the requested
    information:
RTC Engineering Consultants
, at paras. 14-16.

[31]

Accordingly, the trial judge did not err in
    finding that CC made the statements to the Society on an occasion of qualified
    privilege.

AAs second argument on qualified privilege

[32]

As his second argument, AA submits, in effect,
    that the trial judge failed to determine whether CCs claim for qualified
    privilege was defeated by her malice.

[33]

In his discussion of the applicable legal
    principles, at para. 68 of the Second Reasons, the trial judge recognized that
    the defence of qualified privilege could be defeated by actual or express
    malice or if CCs statements exceeded the limits of the applicable duty or
    interest:
Korach v. Moore
(1991), 1 O.R. (3d) 275 (C.A.), at pp. 278-80,
    leave to appeal refused, [1991] S.C.C.A. No. 30;
Bent v. Platnick
,
    2020 SCC 23, 449 D.L.R. (4th) 45, at paras. 128 and 136. The limits of the
    privilege were explained by this court in
RTC Engineering Consultants
,
at para. 18:

Not everything said or written on an occasion
    of qualified privilege is protected. As is evident from the term qualified
    privilege itself and from the previous discussion, the privilege is not
    absolute. It may be lost in one of two ways.
First, it
    may be lost if the
dominant motive for making the
    statement was malice.
In this context malice means not just ill will
    towards another but any ulterior motive that conflicts with the interest or
    duty created by the occasion. And it includes recklessness. Both dishonesty and
    a reckless disregard for the truth may amount to malice.
Second,
    a privilege may be lost if the statement is not commensurate with the occasion,
    either because the statement is not germane and reasonably appropriate to the
    occasion or because the recipients of the statement have no interest in
    receiving it.
Put differently, to maintain privilege a defendant must
    communicate appropriate information to appropriate people. [Emphasis added.]

[34]

In considering whether malice by the maker of
    the statement defeats qualified privilege, the primary consideration is the
    state of mind of the maker at the time the words were published:
Brown, at ch. 16.2(2)
. The presence of an improper
    motive is the critical consideration. The privilege will be lost if it is
    shown that the statement was published for a collateral motive unrelated
    to the privileges purpose: Brown, at ch. 16.3(1). Accordingly, malice is
    essentially a question of good faith. The privileged occasion must be used
    for the purpose for which it is given; it must not be misused or abused by
    a defendant: Brown, at ch. 16.3(1).

[35]

In
RTC Engineering Consultants
, this
    court, at para. 18, identified some aspects of the factual inquiry when it
    stated that malice in the context of qualified privilege means not just ill
    will towards another but any ulterior motive that conflicts with the interest
    or duty created by the occasion. And it includes recklessness.

[36]

Unfortunately, the trial judges reasons on the
    issue of qualified privilege are brief and cryptic. He did not expressly make a
    finding about whether AA had proven CC made the Defamatory Statements with
    malice, thereby defeating the qualified privilege. However, given that he
    dismissed AAs claim in respect of the Defamatory Statements on the basis of
    qualified privilege, the following remarks made at para. 80 of his Second
    Reasons might appear to address that issue of whether CC made the statements with
    malice:

I have no doubt that
    most interviews conducted in the course of such investigations will include
    statements that tend to lower anothers reputation in the eyes of a reasonable
    person. CC spoke to Ms. Cooper about AA on the promise from Ms. Cooper that she
    would not disclose what CC told her. This expectation was reasonable
. Her discussion with Ms. Cooper was protected by qualified
    privilege, even if it included CC making admissions about what she said to
    others at work. [Emphasis added.]

[37]

In the highlighted portion of these remarks, I
    take the trial judge to be saying that interviews by Society employees
    conducted during an investigation into a report often will result in the
    interviewee making defamatory comments about the subject of the investigation. As
    CC was responding to inquiries made by the Society employee, her comments are
    not necessarily the product of malice, but the product of the candour needed to
    ensure that such interviews operate as an effective investigatory tool.

[38]

However, AA argues that, since the trial judge had
    found CC and BB combined to make a malicious initial referral to the Society, that
    malice would defeat any qualified privilege in respect of statements made by CC
    during the subsequent Interview Call. I do not accept that submission, as
    framed. The finding of malice in respect of the initial report does not
    automatically mean that malice was the dominant motive for CC making the statements
    over a week later during the Interview Call. The issue is whether, at the time
    of the Interview Call, malice was the dominant motive for CC making the
    Defamatory Statements:
RTC Engineering Consultants
, at para. 23.

[39]

The trial judge failed to make a finding as to
    whether CC made the Defamatory Statements with malice. That was an error. It
    therefore falls to this court to decide the issue.

[40]

Here, CC told the Society employee during the
    Interview Call that AA was an abusive and vindictive man and a terrible and
    abusive parent. CC made these statements during the Societys investigation
    into BBs serious allegations of abuse against AA. CC falsely denied knowing
    anything about the referral or its source. Yet, she used the occasion of the Interview
    Call to repeat, and therefore reinforce, allegations similar to those BB made
    in her false referral.

[41]

Given those circumstances, and against the
    background of the trial judges findings that the initial referral allegations were
    made with malice, it is not possible to characterize CCs Defamatory Statements
    during the Interview Call as simply an impulsively unreasonable or irrational
    emotional outburst. The preponderance of the evidence discloses that CC made
    the Defamatory Statements with malice, that is dishonestly or recklessly as to
    their truth, thereby defeating a defence of qualified privilege for CC.

[42]

Notwithstanding that finding of liability
    against CC, in my view any damages for CCs Defamatory Statements are nominal.
    CC made the Defamatory Statements only to the Society employee, whose files are
    sealed from general public view or access. As well, the Society closed its file
    regarding BBs referral because it concluded the allegations against AA were
    unverified and malicious. In these circumstances, I would assess AAs damages
    at $500.

[43]

Consequently, I would allow AAs appeal with
    respect to the dismissal of his claim for slander against CC in respect of the
    Interview Call. I would otherwise dismiss his appeal in respect of the trial
    judgments.

III.      APPEAL FROM THE COSTS ORDER

[44]

Leave to appeal a costs order will not be
    granted save in obvious cases where the party seeking leave persuades the court
    there are strong grounds upon which the appellate court could find that the
    judge erred in exercising his or her discretion:
Brad-Jay Investments Limited
    v. Village Developments Limited
(2006), 218 O.A.C. 315 (C.A.), at para. 21,
    leave to appeal refused, [2007] S.C.C.A. No. 92. An appellate court should set
    aside a costs award only if the trial judge has made an error in principle or
    the costs award is plainly wrong:
Hamilton v. Open Window Bakery Ltd.
,
    2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

[45]

AA submits that the trial judge erred in failing
    to award pre-litigation costs related to the work he undertook with respect to
    the Child and Family Services Review Board and
Norwich
application
    proceedings. I disagree. It was entirely within the trial judges discretion
    not to award those costs. I see no error in the exercise of his discretion.

[46]

AA next submits that the trial judge erred in
    failing to award him any costs for the time he spent on these proceedings. I do
    not accept this submission. In the present case, the trial judge identified and
    applied the correct principles of law, namely those stated in
Fong v. Chan
(1999), 46 O.R. (3d) 330 (C.A.). The trial judge held that AA failed to prove
    that he had to give up remunerative activity in order to perform work on this
    case that ordinarily would be done by a lawyer.

[47]

AA submits the trial judge erred in so finding.
    However, while in this proceeding AA testified that he had to take off work
    during his earlier family law trial, neither the transcript nor his cost
    submissions at the re-opened trial demonstrate that AA had to forego
    remunerative activity to work on this case. AAs statement, without more, that
    he had to work less than he otherwise would in order to focus on preparing
    paperwork and appearing in court is insufficient. Accordingly, I see no
    reversible error in the trial judge denying AA costs for work he conducted on
    this proceeding.

[48]

As to disbursements, the trial judge limited the
    award to $1,000 because AA had not filed a breakdown to support his request for
    $2,500 in disbursements. I have reviewed the cost outlines found at Tabs A and
    B of AAs July 29, 2018 cost submissions to the trial judge. While they do not
    break out costs and disbursements in a way typically seen in a cost outline
    prepared by a lawyer, to my eye a fair reading of AAs incurred disbursements
    would place them at $1,500.00. Accordingly, I would allow the appeal from the
    Costs Order to the extent of varying the disbursements awarded from $1,000 to $1,500.

IV.     APPEAL FROM THE NAMING ORDER

[49]

The trial judge invoked s. 87(8) of the
CYFSA
to order that the letters AA, BB, and CC be used instead of the parties initials
    in all judgments and endorsements related to the matter.

[50]

Section 87 of the
CYFSA
applies to
    hearings held under Part V of the Act dealing with child protection. Section 87(8)
    states that [n]o person shall publish or make public information that has the
    effect of identifying a child who is a witness at or a participant in a hearing
    or the subject of a proceeding, or the childs parent or foster parent or a
    member of the childs family.

[51]

AA submits that his civil action against BB and
    CC was not a hearing or proceeding under Part V of the
CFYSA
, so the
    trial judge erred by relying on s. 87(8) to grant the Naming Order.

[52]

Whether or not the trial judge possessed
    jurisdiction under
CFYSA
s. 87(8) to issue the Naming Order, he
    certainly possessed the jurisdiction through a combination of his inherent
    jurisdiction and s. 137(2) of the
CJA
[3]
:
    see
Sierra Club of Canada v. Canada (Minister of Finance)
, 2002 SCC 41,
    [2002] 2 S.C.R. 522;
Vancouver Sun (Re)
, 2004 SCC 43, [2004] 2 S.C.R.
    332. Although the trial judge did not refer to the principles set out in
Sierra
    Club
, at para. 53, and
Vancouver Sun
, at paras. 30-31
,
his
    Naming Reasons disclose that, in essence, he considered: (a) whether some
    restriction on the naming of the parties was necessary to prevent a serious
    risk to the welfare of AA and CCs children; and (b) whether the salutary
    effects of such a restriction would outweigh its deleterious effects. That
    analysis has been applied by Ontario courts to initialize or otherwise protect
    the identities of parties and their children in civil matrimonial litigation:
L.C.F.
    v. G.F.
, 2016 ONSC 6732, 86 R.F.L. (7th) 338, at paras. 17-18;
S.M. v.
    C.T.
, 2020 ONSC 4819, 46 R.F.L. (8th) 109, at paras. 27-28;
G.S. and
    K.S. v. Metroland Media Group et al.
, 2020 ONSC 5227, 46 R.F.L. (8th) 357,
    at paras. 43-44.

[53]

AA wants proper names used in all court orders
    and reasons in this proceeding so that he can inform professionals providing
    care for the children about the behaviour of BB and CC. The trial judge was
    concerned about such a possible use of proper names in court reasons, stating
    at para. 11 of his Naming Reasons:

Using actual names will always present a much
    higher risk of offending subsection 87(8) [of the
CYFSA
]. Once the
    names of the parties are revealed in a court decision, it will be difficult, if
    not impossible, for the court to know what additional facts included in the
    judgment may still point to or identify the persons protected by subsection
    87(8). Even the use of initials is potentially compromising, particularly where
    it can be discovered that the full names of the same parties have been used in
    another related proceeding.

[54]

That was a reasonable concern for the trial
    judge to have in the circumstances. It was also a reasonable basis upon which
    to exercise his discretion to use letters for the parties names in the court
    file but, in order to allow AA to enforce the Judgment, to use proper names in
    the public judgment in a separate, unconnected file. Finally, while AA certainly
    has a legitimate concern in protecting his reputation, this action did not
    involve defamatory statements that were widely published. BB and CC made their
    statements to employees of the Society. There was no evidence that those
    statements were re-published. The trial judge exercised his discretion in a
    balanced way, taking into account the interests of all parties, the children,
    and the public.

V.      DISPOSITION

[55]

For the reasons set out above, I would allow
    AAs appeal from the dismissal of his slander claim against CC in respect of
    statements she made during the Interview Call and order CC to pay AA damages of
    $500. I would also allow the appeal of the Costs Order to the extent of increasing
    the award of disbursements to AA to $1,500.00, payable by BB and CC on a joint
    and several basis. I would dismiss the appeal in all other respects.

[56]

AA is entitled to his reasonable disbursements
    for this appeal. AA may serve and file submissions (not to exceed three pages
    in length) regarding the disbursements he has incurred for this appeal within
    10 days of the release of these reasons. BB and CC may file responding
    submissions (not to exceed three pages in length) within 10 days of the receipt
    of AAs reasons.

[57]

I would not order any other costs of the appeal.

Released: March 10, 2021 P.L.

David
    Brown J.A.

I
    agree. P. Lauwers J.A.

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

[1]
2018 ONSC 4173, at paras. 67-68.

[2]

Courts of Justice Act
,
    R.S.O. 1990, c. C.43, s. 19(1)(a).

[3]

Section
    137(2) of the
CJA
provides: A court may order that any document filed
    in a civil proceeding before it be treated as confidential, sealed and not form
    part of the public record.


WARNING

This is a case under the
Child, Youth and Family
    Services Act, 2017
and subject to subsections 87(8) and 87(9) of this
    legislation.     These subsections and subsection 142(3) of the
Child, Youth and Services Act, 2017
, whic deals with the
    consequences of failure to comply, read as follows:

87
(8)
Prohibition re identifying
    child
 No person shall publish or make public information that has
    the effect of identifying a child who is a witness at or a participant in a
    hearing or the subject of a proceeding, or the childs parent or foster parent
    or a member of the childs family.

(9)
Prohibition
    re identifying person charged
 The court may make an order
    prohibiting the publication of information that has the effect of identifying a
    person charged with an offence under this Part.

142(3)
Offences
    re publication
 A person who contravenes subsection 87(8) or 134(11)
    (publication of identifying information) or an order prohibiting publication
    made under clause 87(7)(c) or subsection 87(9), and a director, officer or
    employee of a corporation who authorizes, permits or concurs in such a
    contravention by the corporation, is guilty of an offence and on conviction is
    liable to a fine of not more than $10,000 or to imprisonment for a term of not
    more than three years, or to bo
th.

COURT OF APPEAL FOR ONTARIO

CITATION: AA v. BB, 2021 ONCA 384

DATE:  20210602

DOCKET: C64004

Lauwers, Brown and Roberts JJ.A.

BETWEEN

AA

Plaintiff (Appellant)

and

BB and CC

Defendants (Respondents)

AA, acting in person

BB, acting in person

CC, acting in person

Heard: January 20, 2021 by video conference

On appeal from the judgment and orders made by Justice J.
    Christopher Corkery of the Superior Court of Justice, dated June 5, 2017, July
    3, 2018, December 12, 2018, December 16, 2019, and June 1, 2020, with reasons
    reported at 2017 ONSC 3458, 2018 ONSC 4173, 2018 ONSC 7490, 2019 ONSC 7318, and
    2019 ONSC 3423.

COSTS ENDORSEMENT

[1]

By reasons released March 10, 2021, we awarded AA his reasonable
    disbursements of the appeal. AA filed written submissions seeking disbursements
    of $1,382.75. CC filed an email submission advising that she had no issue with
    the amount sought. BB did not file any submissions.

[2]

Accordingly, AA is awarded his
    disbursements of the appeal in the amount of $1,382.75, inclusive of applicable
    taxes, payable by BB and CC on a joint and several basis.

P. Lauwers J.A.

David Brown J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: B.L. v. Pytyck, 2021 ONCA 67

DATE: 20210203

DOCKET: C68537

Lauwers, Hourigan and Brown
    JJ.A.

In the
    matter of an appeal from a decision of the

Consent
    and Capacity Board

Pursuant
    to the
Health Care Consent Act
,
1996
, S.O. 1996, c.
    2, Sched. A,

As
    amended

And in
    the matter of

B.L.

A
    patient at

Ontario
    Shores Centre for Mental Health Sciences

Whitby,
    Ontario

BETWEEN

B.L.

Applicant/Appellant (Appellant)

and

Dr. Jennifer Pytyck

Respondent (Respondent)

Ken J. Berger, for the appellant

Jessica R. Szabo, for the respondent

Heard: January 22, 2021 by video conference

On appeal from the order of Justice David
    L. Corbett of the Superior Court of Justice, dated June 16, 2020, with reasons
    reported at 2020 ONSC 3766, dismissing an appeal from the decision of the
    Consent and Capacity Board, dated August 14, 2019.

BROWN J.A.:

I.        OVERVIEW

[1]

By decision dated August 14, 2019, the Consent
    and Capacity Board (the Board) confirmed the finding of the appellant B.L.s
[1]
treating psychiatrist that he was incapable of consenting or
    refusing consent to treatment, specifically antipsychotic medications, both
    oral and injectable: 2019 CanLII 92439. B.L. appealed the Boards decision to
    the Superior Court of Justice; the appeal judge dismissed his appeal. B.L. now
    appeals to this court.

[2]

For the reasons set out below, I would dismiss the
    appeal.

II.       THE APPELLANTS CONDITION

[3]

B.L. is 37 years old. He has been diagnosed with
    schizophrenia. That diagnosis is not in dispute on this appeal.

[4]

In 2013, B.L. was admitted to the Ontario Shores
    Centre for Mental Health Sciences (Ontario Shores) under the jurisdiction of
    the Ontario Review Board after being found not criminally responsible for
    striking his father with a cricket bat. He remained at Ontario Shores until
    January 2017, when he was discharged to a group home. After a deterioration in
    his condition following a change in medication, B.L. was re-admitted to Ontario
    Shores in May 2017, where he remains today.

[5]

Twice in 2013 B.L. was found incapable of
    consenting to treatment with antipsychotic medication; both times the Board set
    aside the finding.

[6]

The respondent psychiatrist, Dr. Pytyck, has treated
    B.L. since 2015. At the August 2019 CCB hearing, Dr. Pytyck testified that B.L.
    is extremely high functioning when properly treated, but his condition
    deteriorates quickly without adequate antipsychotic medication.

[7]

From January 2017 to August 2018, B.L. changed the
    dose and type of his medication multiple times after discussing side effects
    and other concerns with Dr. Pytyck. B.L. has not taken any antipsychotic
    medication since August 2018.

[8]

Prior to the August 2019 Board hearing, B.L. had
    not taken prescribed medication for about one year. According to Dr. Pytyck, during
    that time B.L.s condition had deteriorated markedly: he exhibited social
    withdrawal, odd interpersonal behaviours, extreme sensitivity to light and
    sound, signs of paranoia, irritability, and disorganization of thought. In the
    month before the Board hearing, Dr. Pytyck noted a dramatic deterioration in
    B.L., including the emergence of delusional beliefs.
[2]
In her opinion, as of the time of the hearing, B.L. was quite
    overtly psychotic.

[9]

The appeal judge, at para. 20 of his reasons,
    summarized B.L.s testimony before the Board as follows:

In his testimony, [B.L.] presented as
    described by [Dr. Pytyck]: intelligent, focused on the legal test of capacity
    and in particular, with demonstrating that he had gone through the process of
    weighing risks and benefits of taking antipsychotic medication. He also
    testified in manner that corroborated [Dr. Pytycks] description of him as
    delusional. He believes that he is suffering because of UV rays, gamma rays,
    and lack of oxygen, and that his somatic complaints are real. He attributes
    these complaints to phenomenon such as climate change, and he believes that his
    antipsychotic medication makes these things worse. At most, in his view, the
    anti-psychotic medication masks the reality of these afflictions, leading him
    to fail to take steps to protect himself, thus afflicting him further.

[10]

At the Board hearing, Dr. Pytyck testified that for
    many years B.L. had conflated his somatic preoccupations with the side effects
    from his antipsychotic medication. In 2013 and 2014, when he was taking very
    low doses of antipsychotic medication, B.L. reported very high levels of
    somatic side effects. When adequately medicated, B.L. did not complain to the
    same degree.

[11]

On his part, B.L. denies that his somatic
    complaints are related to his mental illness. He denies that his medication can
    relieve him from his delusional suffering. Subjectively, he believes that he
    does suffer from physical complaints, that these complaints are worsened by his
    antipsychotic medication, but that one effect of the medication is to dull him
    mentally, so that he forgets about his complaints and then fails to protect
    himself against the negative effects of climate change.

III.      THE DECISION OF THE BOARD

[12]

Section 4(1) of the
Health Care Consent Act,
    1996
, S.O. 1996, c. 2, Sched. A (the Act), establishes a two-branch test
    for determining a persons capacity to consent to treatment. A person is
    capable with respect to a treatment if the person is able to:

(i)

Understand the information that is relevant to
    making a decision about the treatment; and

(ii)

Appreciate the reasonably foreseeable
    consequences of a decision or lack of decision.

[13]

Before the Board, there was no dispute that B.L.
    satisfied the first branch of the test. The issue was whether B.L. was able to
    appreciate the reasonably foreseeable consequences of a decision or lack of
    decision.

[14]

The Board acknowledged the proper approach to apply
    to the issue of B.L.s capacity to consent to treatment, stating, at pp. 12-13
    of its reasons:

In assessing the evidence and submissions of
    counsel, I was mindful of the court's caution, in
Starson v. Swayze
[2003]
    1 S.C.C. 722, that it is not the Board's function to interfere with a capable
    person's rational choices, however foolish. Capable people have the right to
    take risks and make decisions that may be considered unreasonable. The test is
    not whether the choice by the patient appears reasonable or wise, but whether
    the patient is capable of consenting, within the meaning of the statute.

Further, in
Starson
, the court cautioned
    that the Board must avoid the error of equating the presence of a mental
    disorder with incapacity. People suffering from mental disorders are vulnerable
    to interference with their personal autonomy and are at risk of having their
    decisions regarding treatment not being taken seriously.

Although a person need
    not agree with the doctor's diagnosis, nor even agree that he or she suffers
    from a mental condition, in order to be found capable, if it is demonstrated
    that he or she has a mental condition, the person must also be able to recognize
    the possibility that he or she is affected by that condition. In that regard,
    it was said in
Starson
that if
    the patient's condition results in him being unable to recognize that he is
    affected by its manifestations, he will be unable to apply the relevant
    information to his circumstances, and unable to appreciate the consequences of
    his decision
. [Emphasis added.]

[15]

In confirming Dr. Pytycks finding that B.L. was
    not capable of consenting to treatment, the Board made several key findings,
    including:

·

At the time of the hearing, B.L. suffered from a
    mental illness, namely schizophrenia: at pp. 7-8;

·

B.L. had been more than amply educated about
    his illness and the benefits and risks of medications: at p. 8;

·

Although B.L. was able to acknowledge that he
    had been diagnosed with schizophrenia, he was unable to appreciate that he was
    experiencing paranoia and delusions and that his symptoms were likely those of
    a psychotic illness: at pp. 13-14;

·

B.L. lacked the ability to appreciate that he
    was affected by symptoms of mental illness or, at a minimum, was unable to
    appreciate the extent to which his symptomatology governed his behaviour: at p.
    14;

·

B.L.'s paranoid delusions about UV rays, gamma
    rays, and carbon dioxide levels interfered with his ability to evaluate how the
    treatments being proposed would likely affect him. B.L. was making his
    decisions in the context of a belief that his fears about UV rays were
    warranted and not delusional. It was his view that the medication would not
    likely address these concerns and it was the very delusions from which he
    suffered which interfered with his ability to rationally weigh the potential
    benefits of the proposed treatment: at p. 14;

·

Although B.L. held an honest belief about the
    adverse effects of the medication, the sincerity of B.L.'s beliefs did not
    overcome the preponderance of evidence pointing to B.L.'s inability to
    appreciate the consequences of his treatment choices: at p. 14;

·

B.L. likely overestimated the side effects of
    the medications and likely conflated his somatic delusions and the adverse
    effects of the medication: at p. 15;

·

B.L.'s refusal to take the antipsychotic
    medication was not primarily because of its negative effects, but because of
    his inability to appreciate the connection between his thoughts and conduct and
    the return of his psychotic symptoms and the connection between medication
    adherence and improvement of symptoms: at p. 15;

·

B.L. was not able to appreciate that taking
    therapeutic doses of the medication had improved his condition to the extent
    that he had been able to leave the hospital and live in a group home for a
    while: at p. 15;

·

B.L.s decision to decline medication was
    dictated by the delusions from which he suffered: at p. 15;

·

B.L. was unable to consider medication as an
    option in the future, regardless of what he sometimes said, because, in B.L.'s
    view, he was not suffering from psychotic symptoms, and the measures he took to
    protect himself were a rational response to real, not delusional concerns: at p.
    15;

·

B.L.s evidence revealed a singular focus on the
    medications negative effects: at p. 16;

·

B.L. had not undertaken a cost/benefit analysis
    regarding the medication because he was unable to appreciate that his behaviour
    flowed from symptoms of a psychotic illness and that the illness was clouding
    his ability to recognize the benefits of medication: at p. 16; and

·

On the totality of the evidence, although B.L.
    apprehended the negative effects of treatment with antipsychotic medication, he
    was unable to appreciate its benefits. His symptomatology, including his
    paranoia and delusions, prevented him from having the ability to evaluate the
    relevant information as it applied to his own circumstances: at p. 16.

[16]

The Board concluded, at p. 17, that:

BL was unable to appreciate the correlation
    between his behaviour and psychotic symptoms, which the antipsychotics served
    to reduce. Absent an ability to make a connection between a mental disorder and
    its effects on him and an inability to connect his improvement to medication
    adherence, he did not have the ability to evaluate the information or to weigh
    the benefits of the proposed treatments against their risks. Consequently, in
    my opinion, it had been proven that BL was incapable to consent to treatment
    with respect to antipsychotics.

IV.     THE DECISION OF THE APPEAL JUDGE

[17]

In dismissing B.L.s appeal from the Boards
    decision, the appeal judge stated, at para. 33:

In my view the Board was correct in finding
    that a patient must be able to appreciate the objectively reasonable material
    risks and benefits of medication before that patient can perform a meaningful
    costs/benefits analysis. The Board reasonably applied this standard to the
    facts, as it found them to be, and concluded that [B.L.] does not have capacity
    to consent to antipsychotic medication.

V.      ISSUES ON APPEAL

[18]

B.L. submits that the Board misapplied the
    second branch of the capacity test in s. 4(1) of the Act to the facts of his
    case. B.L. contends that the evidence demonstrated that he actually appreciates
    the parameters of his treatment decision because he is cognizant of: the nature
    and purpose of the proposed treatment; the foreseeable benefits and risks of
    the treatment; the alternative courses of action; and the expected consequences
    of refusing treatment. While he may weigh or value the parameters differently
    than Dr. Pytyck, he has the ability to appreciate the decision he made.

[19]

B.L. further argues that his decision to refuse
    treatment was based on his understanding of environmental impacts on his own
    health, an understanding justified by scientific literature. In support of this
    submission, B.L. included in his book of authorities several publications from
    the World Health Organization (WHO) on various environmental issues. Dr.
    Pytyck objects to the inclusion of the articles on the grounds that: (i) they were
    not before the Board or the appeal judge; (ii) they are not relevant to a decisive
    issue on this appeal; and (iii) B.L. has not brought a proper motion for leave
    to file fresh evidence.

VI.     THE STANDARD OF REVIEW

[20]

When reviewing a decision of the Superior Court
    of Justice regarding the decision of an administrative tribunal, such as the
    Board, this court must determine the standard of review that applies to the
    tribunals decision, apply that standard to the decision of the tribunal, and determine
    if the appeal court applied the standard properly. In so doing, this court
    steps into the shoes of the Superior Court of Justice and focuses on the
    tribunals decision under review:
Agraira v. Canada (Minister of Public
    Safety and Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R. 559, at
    paras. 45-46;
Longueépée v. University of Waterloo
, 2020 ONCA 830, at
    paras. 47-48.

[21]

The Act provides a right of appeal from a
    decision of the Board to the Superior Court of Justice on questions of law or
    fact, or both: s. 80(1). As the appeal judge correctly observed, at para. 23:

Where there is a statutory right of appeal
    from an administrative decision, without a privative clause, the court
    scrutinizes the administrative decision on the basis of appellate standards of
    review. See:
Canada (Minister of Citizenship and Immigration) v. Vavilov
,
    2019 SCC 65, para. 37.

[22]

The Boards identification of the proper
    statutory test for capacity involves a question of law reviewable on the
    correctness standard. The Boards application of the statutory test for
    capacity to the evidence to determine whether a person is capable is a question
    of mixed fact and law, reviewable on the deferential standard of palpable and
    overriding error, absent an extricable question of law in the Boards analysis:
Starson

v. Swayze
, 2003 SCC 32, [2003] 1 S.C.R. 722, at para.
    84;
Gajewski v. Wilkie
, 2014 ONCA 897, 123 O.R. (3d) 481, at para. 33.

VII.    ANALYSIS

[23]

As I understand B.L.s position on this appeal,
    he submits that the Board erred in law by applying the wrong legal standard to
    its assessment of the evidence and, as well, that the Boards findings were
    based on a misapprehension of the evidence.

The alleged error of law

[24]

The appeal judge recorded, at para. 5, that B.L.
    had conceded the Board had applied the correct legal test when assessing his
    capacity to consent to treatment. However, on this appeal B.L.s counsel
    submits that the Board and appeal judge in fact applied the wrong legal test.
    As I understand the submission, B.L. argues that the Board incorrectly applied
    an objective standard of reasonableness, or a kind of best interests test,
    when assessing B.L.s ability to appreciate the reasonably foreseeable
    consequences of a decision to take or refuse medication, instead of determining
    the issue based solely on B.L.s subjective appreciation of the consequences.

[25]

I see no such error by the Board. With respect,
    B.L.s submissions overlook an important element of the legal test as
    articulated by the Supreme Court in
Starson
. As the Board pointed out
    in its reasons, at p. 13, in
Starson
the Supreme Court stated, at
    para. 79:

While a patient need not agree with a
    particular diagnosis, if it is demonstrated that he has a mental condition,
    the patient must be able to recognize the possibility that he is affected by
    that condition. Professor Weisstub comments on this requirement as follows:

Condition refers to the broader
    manifestations of the illness rather than the existence of a discrete
    diagnosable pathology. The word condition allows the requirement for
    understanding to focus on the objectively discernible manifestations of the
    illness rather than the interpretation that is made of these manifestations.

As a result, a patient is not required to
    describe his mental condition as an illness, or to otherwise characterize the
    condition in negative terms.
Nor is a patient required to
    agree with the attending physicians opinion regarding the cause of that
    condition. Nonetheless, if the patients condition results in him being unable
    to recognize that he is affected by its manifestations, he will be unable to
    apply the relevant information to his circumstances, and unable to appreciate
    the consequences of his decision
. [Emphasis added.]

[26]

Accordingly, the
Starson
test for
    capacity in respect of the ability to appreciate the reasonably foreseeable
    consequences of a decision or lack of decision includes a requirement to
    consider whether a persons condition results in an inability to recognize that
    he or she is affected by its manifestations, thereby rendering the person unable
    to apply the relevant information and appreciate the consequences of his or her
    decision. This aspect of the legal test has been repeated and applied by this
    court in several cases:
Giecewicz v. Hastings
, 2007 ONCA 890, 288
    D.L.R. (4th) 587, at paras. 18-21, leave to appeal refused, [2008] S.C.C.A. No.
    97;
DAlmeida v. Barron
, 2010 ONCA 564, 103 O.R. (3d) 250, at paras.
    24-26, leave to appeal to S.C.C. refused, (2011) 284 O.A.C. 400;
Gajewski,
at
    paras. 47-53; and
Murray v. Alatishe
, 2019 ONCA 596, at para. 20.

[27]

The Board applied the correct legal test, as is
    apparent from the portion of its reasons reproduced at para. 14 above.

The alleged misapprehension of the evidence

[28]

B.L. submits, in effect, that the Board
    misapprehended the evidence because it was not prepared to accept the way he
    balanced the costs and benefits of taking antipsychotic medication in his
    circumstances.

[29]

With respect, I cannot accept this submission.
    The record demonstrates that the Board understood the evidence and made no
    palpable and overriding error in applying the correct legal standard to that
    evidence.

[30]

The factual findings made by the Board,
    enumerated in para. 15 above, are fully supported by the evidentiary record.
    Its conclusion based on that evidence, reproduced at para. 16 above, displays
    no misapprehension of the evidence.

[31]

The WHO publications that B.L.s counsel asks
    this court to consider do not alter that conclusion. That most people have some
    concerns about the impact of environmental conditions on their health does not
    alter the Boards task, which is to assess B.L.s ability to appreciate the
    reasonably foreseeable consequences of a treatment decision in light of his
    mental illness, his capacity to understand the symptoms and effects of his
    mental illness, the benefits of medical treatment in B.L.s specific
    circumstances, and the risk of medical treatment in those circumstances. The
    record shows that is what the Board did.

[32]

Accordingly, I see no basis to interfere with
    the Boards decision.

VIII.   DISPOSITION

[33]

For the reasons set out
    above, I would dismiss B.L.s appeal.

Released: PL  FEB 03 2021

David
    Brown J.A.

I
    agree. P. Lauwers J.A.

I
    agree. C.W. Hourigan J.A.

[1]
At the appellants request, in these reasons his initials are used
    instead of his full name.

[2]
Details of the evidence can be found at pp. 6-7 of the Boards reasons: 2019
    CanLII 92439. A description of B.L.s behaviour at the Board hearing is found
    at p. 11 of those reasons.