COURT OF APPEAL FOR ONTARIO

CITATION: Kolosov v. Lowes Companies Inc., 2016 ONCA 973

DATE: 20161229

DOCKET: C62000

Gillese, MacFarland and Pepall JJ.A.

BETWEEN

Mikhail Kolosov, Andrei Kolosov also known as
    Andrei Kolosau, and Alena Kolasava

Plaintiffs (Appellants)

and

Lowes
    Companies Inc., Lowes Companies Canada, ULC, Andrew J. Fralick, Joseph Thomas
    Gerald Howard, Steven S. Boyle, Casey Findlay, Windsor Police Services Board,
    Gary Smith, Former Chief of Windsor Police Services, Detective Kevin McCann,
    Police Constable Steven Brnardic, Police Constable Jacqueline Khoury, Staff
    Sgt. Alan Brown,
Belleville Police Service Board
,
    Cory McMullan, Chief of Belleville Police Services, Constable Ron Kanyo,
    Constable Jeff Ling,
Detective Constable Paul Josefik
and Her Majesty the Queen in Right of the Province of Ontario as Represented by
    the Attorney General of Ontario

Defendants (Respondents)

Raymond G. Colautti, for the appellants

Wilfrid Menninga and Melissa Seal, for Belleville Police
    Service Board

Kristen Dearlove, for Windsor Police Services Board

Thomas D. Galligan, for Lowes Companies Inc. and Lowes
    Companies Canada

Heard:  December 12, 2016

On appeal from the judgment of Justice Gregory J. Verbeem
    of the Superior Court of Justice, dated March 24, 2016.

ENDORSEMENT

[1]

The appellants summarize their grounds of appeal into four points.

i.

The motion judge erred in granting summary judgment dismissing the
    action against the Belleville Police respondents. They argue that the facts and
    evidence disclose that the police, in the very early stages of the
    investigation, determined unreasonably that a charge  possession of stolen
    property knowing the same had been obtained by the commission of an indictable
    offence  should be laid against the appellants. The argument is essentially
    that the police did not have reasonable and probable grounds of the knowledge
    element of the offence when they arrested them.

ii.

The motion judge erred in concluding that the claims for the intentional
    torts of false arrest and false imprisonment were statute-barred.

iii.

Granting summary judgment was inappropriate in this case, in which there
    were multiple defendants, involving interlocking investigations and credibility
    findings. Such issues should only be determined at a trial.

iv.

The appellants seek leave to appeal the motion judges costs
    disposition. They do so, in this court, on the same basis argued before the
    motion judge  that an award of costs against them impedes their access to
    justice as they are parties of modest means; their case should be considered as
    one in the nature of public interest litigation; and finally that, at the least,
    the payment of any costs award should be deferred until the conclusion of the
    litigation to permit consideration of a
Bullock
or
Sanderson
order.

[2]

It is unnecessary to recite the facts for the purpose of this
    endorsement. The motion judge has set them out in detail in paras. 42-74 of his
    reasons.

First Ground
 No
    Reasonable and Probable Grounds to Arrest

[3]

This ground is largely in relation to the factual determinations made by
    the motion judge and his assessment of the evidence before him.

[4]

In his careful and detailed reasons, the motion judge considered the
    voluminous materials that had been filed on the motion.

[5]

The key issue that separates the parties is whether there were
    reasonable and probable grounds for the Belleville police to arrest the
    appellants. There is no dispute about the law  the arresting officer must
    subjectively have reasonable and probable grounds on which to base an arrest.
    In addition, those grounds must also be justifiable from an objective point of
    view  but the police need not demonstrate anything more:
R. v. Storrey
,
    [1990] 1 S.C.R. 241, at pp. 250-251. No dispute is taken with the motion
    judges articulation of the law.

[6]

Detective Constable Josefik testified that he had reasonable and
    probable grounds and he was not cross-examined on his belief. The motion judge,
    as he was entitled to do, accepted his evidence. The issue then fell to be
    determined whether his belief was objectively reasonable  the motion judge
    concluded that it was. The evidence on which he relied in coming to that
    conclusion is reviewed by him in detail in paras. 137-161 of his reasons and fully
    supports his conclusion.

[7]

The real essence of the appellants complaint relates to the evidence
    or from their perspective, lack of evidence  of the necessary
mens rea
for
    the offence charged  namely, the possession of property
knowing
it
    was obtained by an indictable offence.

[8]

The appellants admit they were in possession of fraudulently obtained
    goods  their explanation is that they were merely the dupes of the criminals
    who defrauded Lowes of merchandise, of significant value, by the use of stolen
    credit cards. They argue that the police never asked them for their explanation
    and laid the charge in the absence of that information.

[9]

In paras. 151-161 of his reasons, the motion judge specifically deals
    with the innocent explanation evidence and concludes:

[160] While DC Josefik fulfilled his duty to document and
    consider information about the plaintiffs explanation for their possession of
    the Lowes property, he was not obliged to unequivocally accept that
    explanation as true. Whether the explanation given by Mikhail and Andrei, if
    provided in evidence at trial, would be accepted as one which might reasonably
    be true, and if not, whether an inference of knowledge ought to be drawn on
    proof of recent possession, were issues for the trier of fact. DC Josefik was
    not required to determine those legal issues as part of his duty.

[161] As a result of the foregoing, I find that on the evidence
    available to him, DC Josefiks belief that there were sufficient grounds to
    charge the plaintiffs was reasonable and that he exercised his discretion as a
    police officer in a reasonable manner when charging Mikhail and Andrei with the
    offences set out in the information.

[10]

The appellants argument suggests that the police were obliged to accept
    their innocent explanation. That is simply not the law. As this court recently
    stated in
495793 Ontario Ltd. (Central Auto Parts) v. Barclay
,

2016
    ONCA 656, at paras. 50-52:

[50] The police are not required to establish a
prima facie
case for conviction before making an arrest. [Citations omitted.]

[51] The function of police is to investigate incidents which
    might be criminal, make a conscientious and informed decision as to whether
    charges should be laid and present the full facts to the prosecutor:
Wong
,
[1]
at para. 56. Although this requires, to some extent, the weighing of evidence
    in the course of investigation, police are not required to evaluate evidence to
    a legal standard or make legal judgments. That is the task of prosecutors,
    defence lawyers and judges:
Hill
,
[2]
at para. 50.

[52] Nor is a police officer required to exhaust all possible
    routes of investigation or inquiry, interview all potential witnesses prior to
    arrest, or to obtain the suspects version of events or otherwise establish
    there is no valid defence before being able to form reasonable and probable
    grounds:
Kellman v. Iverson
, 2012 ONSC 3244 (CanLII), 2012 O.J. No.
    2529, at para. 16;
Wong
, at para. 59.

Second Ground
 The Claims were Statute-Barred

[11]

The law in relation to the commencement of the limitation period for the
    intentional torts of false arrest and false imprisonment, and associated
Charter
breaches, is well settled. As Chiappetta J. noted in
Fournier-McGarry
    (Litigation Guardian of) v. Ontario
, 2013 ONSC 2581, at para. 16:

A claim for the common law torts of false arrest, false
    imprisonment and breach of
Charter
rights arising there-from
    crystallizes on the date of arrest (see,
Nicely v. Waterloo Regional Police
    Force
, [1991] O.J. No. 460 (Ont. Div. Ct.), para. 14;
Fern v. Root
,
    [2007] O.J. No. 397 (Ont. C.A.), para. 102).

[12]

The appellants offer no authority for their submission that their causes
    of action did not arise, and the limitation period did not begin to run, until
    they had received full police disclosure. Not having commenced this action
    until after the two-year period from the time of arrest had expired, their
    claims in this respect are statute-barred.

Third Ground
 Summary
    Judgment was Inappropriate

[13]

The motion judge began his analysis with a consideration of the law as
    it relates to summary judgment motions and was guided by the judgment of the
    Supreme Court of Canada in
Hryniak v. Mauldin
, 2014 SCC 7; [2014] 1
    S.C.R. 87. He concluded, at para. 34 of his reasons, that summary judgment is
    a fair and just process to determine the issues related to the Belleville
    defendants liability. He further concluded that the issues relating to the
    liability of the Belleville respondents were discrete and severable from the
    issues involving the liability of the other respondents.

[14]

He was alive to the appellants argument to the effect that the
    liability of the Belleville respondents was inextricably bound up with that
    of the other respondents  and he rejected that argument. He concluded, on the
    evidence before him, that it was reasonable for the Belleville respondents to
    rely on the information given to them, by the Lowes respondents and the
    Windsor police, as credible and accurate, in accordance with the subjective
    evidence given by DC Josefik and PC Kanyo  which was neither challenged nor
    contradicted by other evidence before him. He concluded, accordingly, that it
    was unnecessary to determine the liability of the others before deciding that
    of the Belleville respondents. The motion judge then summarized at paras. 36-41
    why, on the evidentiary record before him, a fair and just determination of the
    liability of the Belleville respondents could be made without the necessity of
    a full trial.

[15]

His conclusion in this respect is entitled to deference in this court
    and, in the language of
Hryniak
,
    at para. 81, it
should not be overturned absent palpable and
    overriding error. In our view, there is no error in the motion judges
    conclusion, let alone a palpable and overriding one.

Fourth Ground
(if leave be
    granted)  Costs

[16]

The appellants seek leave to appeal the motion judges decision on
    costs. The law is well-settled that the disposition of costs is a matter of
    discretion and, absent an error in principle or a decision that is clearly
    wrong, this court will not intervene.  In seeking leave, the appellants advance
    the same arguments as were made before the motion judge: that they are persons
    of modest means and any significant costs disposition will preclude them from
    continuing the litigation against the remaining respondents; that they should
    be considered public interest litigants analogous to
pro bono
litigants advancing a pressing and important public interest, in holding
    police services and operations accountable for misconduct; and finally that any
    costs order should be stayed until the litigation is finally completed in order
    that the appellants (in the event they are successful) might seek a
Sanderson
or
Bullock
order.

[17]

The motion judge considered each of these arguments and rejected them.
    He concluded that the appellants were not
pro bono
litigants, they
    were represented pursuant to a contingency fee arrangement. They were not
    public interest litigants because they do not seek any broad public law remedy
     they seek damages in excess of $2 million in relation to causes of action,
    all of which are personal to them.

[18]

Before the motion judge, the appellants did not meet the onus they bear
    to establish impecuniosity. Nor were they able to demonstrate why their action
    could not proceed against the remaining respondents, in the event of an adverse
    costs award  in view of: the nature of the contingency fee arrangement with
    their lawyer; the undertaking given by the Windsor respondents to not rely on
    any non-payment of costs to prevent the prosecution of this action; and the
    apparent agreement of the Lowes respondents with that position, although no
    undertaking was specifically given.

[19]

Finally, in paras. 30-37 of his reasons on costs, the motion judge
    explains, in detail, why he would not stay his costs order and we agree with
    those reasons. And as the motion judge noted, in view of the position taken by
    the remaining defendants on the quantum of costs, there was nothing to
    circumvent the discretion of the court determining the liability issues
    related to the remaining defendants to make a
Bullock
order with respect
    to the costs ordered herein.

[20]

As to the quantum, the motion judges award of costs was significantly less
    than that sought by the Belleville respondents. The costs award of $47,801.47
    was a modest one, on a partial indemnity scale, inclusive of disbursements,
    which covered the costs of the action, as well as the motion for summary
    judgment.  That is apparent when one considers: the nature of the litigation;
    the voluminous record that was assembled for this motion; the motions to strike
    parts of the appellants supporting affidavits; the production of documents;
    the lengthy examinations for discovery; as well as the two days required for
    the hearing of this motion. We have not been pointed to any error in principle
    and the motion judges reasons are well-supported on the record before him. We
    would not grant leave to appeal.

Disposition

[21]

In the result, both the appeal and the motion for leave to appeal are
    dismissed.

[22]

Costs of the appeal to the Belleville respondents fixed in the sum of $17,500;
    to the Lowes respondents in the sum of $2,000. The Windsor police respondents do
    not seek costs. All costs awarded are inclusive of disbursements and HST.

E.E.
    Gillese J.A.

J.
    MacFarland J.A.

S.E.
    Pepall J.A.

[1]

Wong v. Toronto Police Services Board
,
    [2009] O.J. No. 5067 (S.C.).

[2]

Hill v. Hamilton-Wentworth (Regional
    Municipality) Police Services Board
, 2007 SCC 41, [2007] 3 S.C.R. 129.


COURT OF APPEAL FOR ONTARIO

CITATION: Lehtiniemi v. Mattawan (Municipality), 2016 ONCA
    940

DATE: 20161215

DOCKET: C61534

Feldman, Lauwers and Miller JJ.A.

BETWEEN

Leo Lehtiniemi

Applicant

(Appellant)

and

The Corporation of the Municipality of Mattawan

Respondent

(Respondent in Appeal)

Paul A. Webber, Q.C., for the appellant

Michael M. Miller, for the respondent

Heard: November 15, 2016

On appeal from the judgment of Justice George T. Valin of
    the Superior Court of Justice, dated November 30, 2015, with reasons reported
    at 2015 ONSC 8133.

Lauwers J.A.:

[1]

The appellant owns Lot 34 in Concession 8 of the respondent municipality.
    He brought an application for a declaration that the laneway he built on his
    property is his own and not a public highway. The application judge dismissed
    his application. For the reasons set out below, I would dismiss the appeal.

A.

Factual Context

[2]

It is common ground that the appellants laneway begins at the north-westerly
    limit of Lot 34, aligned with Marion Road. The laneway immediately angles south
    of the north property line of Lot 34 and continues east to Lot 35 and beyond.

[3]

The Municipality asserts that the appellant built the laneway on top of
    an existing, though unmaintained, public road known as Marion Road, to which it
    holds title. The appellant disputes this assertion, on the basis that the old public
    road, now vanished, was actually built on the blind line between Concession 9
    and Concession 8, in a twenty foot corridor at the northern limit of his
    property. This corridor, and the old public road it is said to contain, is located
    north of his laneway. He argues that the laneway and the old public road are
    separate roads, and accordingly the laneway is not a public road, and he has
    title to it.

B.

The Issues

[4]

There is no dispute as to the applicable law. The appellant argues that
    the application judge made several errors of fact that together constitute
    palpable and overriding errors within the meaning of that expression set out in
Benhaim v. St-Germain
, 2016 SCC 48, at paras. 38-39. He asserts that
    the errors are obvious and go to the very core of the outcome of the case.

C.

The Appellants Challenges to the Evidence

[5]

The hearing before the application judge was entirely based on a paper
    record. Testimony was received by way of affidavit and the application judge
    looked at historical records, including survey notes and surveys.

[6]

The appellants theory is that the old public road is not located beneath
    his laneway, but north of his property. To succeed in this application he was
    obliged to prove this fact on the balance of probabilities.

[7]

The appellant asserts that the application judge made two significant
    and related errors in failing to so find. First, he failed to give proper
    weight to the survey prepared by O.L.S. Macdonnell registered April 7, 1972 as
    Plan NR-2238. Second, he unreasonably rejected the supporting evidence provided
    by forester Ron Magee.

(1)

The Macdonnell Survey

[8]

The Macdonnell survey identified 20 feet of a travelled road as being
    in Concession 9, and 20 feet as being in Concession 8, and ending at the border
    between Lot 33 and the appellants land in Lot 34. The note inscribed on the
    survey links back to much older surveys and states: Corner set at split of
    fences on C/L of travelled road at position or survey post by Bell O.L.S. and
    found and used by L.V. Rorke O.L.S.

[9]

O.L.S. Macdonnells survey was accompanied by a Report of Survey,
    which describes what he found on the site at the time. His survey accorded with
    the old field notes by L.V. Rorke, O.L.S., dated June 24, 1892. The Report
    states:

Mr. Rorke had done a survey for the Township of Mattawan for a
    road allowance. Traces of this old road can still be found and the line between
    Lots 32 and 33 runs up the road as built. When this road reached the point at
    the blind line marking the northwest corner at Lot 33, Concession 8, a circle
    was built around the corner so as not to disturb it, and the road was continued
    east along the blind line between Concessions 7 and 8, eventually coming back
    onto the present travelled road.

The parties agree that the Reports author meant to
    say between Concessions 8 and 9.

(2)

Forester Magees notes

[10]

Mr.
    Macdonells survey is supported by the notes of forester Ron Magee, dated
    February 18, 2015. Mr. Magee prepared a sketch and identified a fence line to
    the north of Marion Road that diverges from the laneway as it proceeds to the
    east. The sketch notes specifically that he measured the distances between the
    laneway edge and the fence line physically, not by way of GPS. However, the
    sketch also bears a note that this information was recorded using a handheld
    GPS with accuracy of 3 metres plus or minus on December 17, 2014.

(3)

The application judges alleged errors

[11]

Mr.
    Webber, counsel to the appellant, argues that O.L.S. Macdonnell undertook a
    full cadastral survey that was registered. It is, he submits, the best
    evidence of the existence of a road north of the appellants laneway that was
    not refuted by other evidence of similar quality. He asserts that the
    application judge misapprehended forester Magees evidence as to the foresters
    use of GPS technology. In particular, the application judge failed to notice
    that the fence line data was measured physically, not by GPS, and this makes
    all the difference. The application judge said, at para. 66 of his reasons:

[F]orester Magee concludes that there could have been a road
    immediately north of the Lehtiniemi laneway. However, the sketch he made to
    support that conclusion is not to scale. He used a GPS device to make the
    measurements shown on the sketch. His notes on the sketch indicate the accuracy
    of the measurements is plus or minus 3.5 metres. Since the measurements noted
    on the sketch range between 2 metres and 7 metres, the report offers little, if
    any assistance.

(4)

The application judges reasoning

[12]

The
    application judge did not accept the Macdonell survey for several reasons. First,
    he referred to the opinion of another surveyor retained by the applicant, Paul
    Goodridge of P.A. Blackburn Limited, explaining that the topography made
    Macdonells conclusion that the public road continued east along the blind
    line through Lot 34, without jogging south, unlikely, and to the survey by R.D.
    Miller O.L.S., dated April 10, 2012, which shows that Marion Road jogs to the
    south before the lot line between Lots 33 and 34 and does not jog back to the
    north at the line between Lots 34 and 35. He noted, at paras. 53, 54:

[I]n a letter to the applicant dated September 13, 1990,
    surveyor P.A. Blackburn opined that he did not agree with Plan NR-2238 by
    surveyor D.J. Macdonell that the northwest corner of Lot 34 Concession 8 was
    co-incident with the center line of a travelled road. He noted that, due to
    local topography, at a point about 150 feet west of the line between Lots 33
    and 34, the travelled road swings south missing the lot corner. The road
    returned to a straight line further to the east, but remained south of the line
    between Concessions 8 and 9. He noted that the location of a travelled road at
    the northwest corner of Lot 34 Concession 8 was highly improbable because, at
    that point, the land slopes steeply down a rocky incline making that location
    unsuitable for road construction.

The survey by R.D. Miller O.L.S. dated April 10, 2012 shows
    that Marion Road jogs to the south before the lot line between Lots 33 and 34
    and does not jog back to the north at the line between Lots 34 and 35. The
    survey is consistent with the evidence of surveyor Blackburn who noted a
    serious topographical impediment to the construction of a road along the blank
    line between Concessions 8 and 9 at the northwest corner of Lot 34 Concession
    8. For those reasons, I prefer the survey evidence and the evidence of surveyor
    Blackburn to the applicant's statement in paragraph 31 of his October 2015
    affidavit. It is more likely that Marion Road, as originally built, took a jog
    south in Lot 33 before continuing east when it was originally built.

[13]

The
    application judge noted, at para. 65, that he preferred the evidence of Goodridge
    (surveyor Blackburn), which, he said, discredits surveyor Macdonnells
    finding that the corner post delineating lots 33 and 34 was on the centre line
    of the travelled road.

[14]

It
    must be acknowledged, as Mr. Webber argues, that O.L.S. Goodridge did not
    perform a cadastral survey, but only provided an opinion. He points out that
    the situation would appear differently today than it would have decades ago
    when O.L.S. Macdonnell did the survey, and the older evidence is better.

[15]

Beyond
    the survey evidence, the application judge referred to the affidavit evidence
    of a number of elderly residents who swore that Marion Road went over the
    appellants land in the same alignment as the laneway. He obtained further
    support for this conclusion from the maps and aerial photographs in the record,
    the latter dating from 1948 until at least 1977. The application judge noted,
    at paras. 71, 72:

All the maps and aerial photographs forming part of the record
    in this case indicate there was only one road in that area. That is the road
    that was, and is, known as Marion Road.

It is clear from the evidence that I have accepted that Marion
    Road in the area of Lots 33 to 35 was not built along the Blank Line between
    Concessions 8 and 9, but rather was built slightly to the south of that line.
    The result is that the portion of Marion Road that passes through Lot 34
    Concession 8 is a trespass or forced road that crosses private property and to
    which the respondent does not have freehold title.

[16]

After
    reviewing the evidence, the application judge found, at para. 69, that the
    preponderance of evidence compels the conclusion that Marion Road, as
    constructed for the use of settlers in the early 1900s, crossed Lot 34
    Concession 8 in the same location that the applicant claims to have built his
    private road.

[17]

The
    application judge added other findings, at paras. 78-79:

I find that the public used Marion Road openly and without
    interruption from the time it was constructed in the early 1900s until after
    the applicant purchased Lot 34 Concession 8 in 1981. There is no evidence that
    any previous owner of Lot 34 Concession 8 interrupted the use of Marion Road by
    the public across that lot. There is no evidence of a contrary intention.

It is reasonable to infer from that lack of evidence of any
    interruption in the use of the road by the public that the predecessors in
    title of the applicant dedicated the land occupied by Marion Road in Lot 34
    Concession 8 as a public highway.

[18]

The
    application judges ultimate conclusion, at para. 81, was, On the evidence
    viewed as a whole, I find that there was dedication and acceptance of that
    portion of Marion Road that crosses the applicant's land.

[19]

In
    reaching this conclusion, the application judge applied the reasoning in
ONeil
    v. Harper
(1913), 28 O.L.R. 635 (C.A.), at p. 643, and
Sioux Lookout
    (Municipality) v. Canada (Attorney General)
2010 ONCA 867, 98 R.P.R. (4th)
    159, at para. 26, the latter explaining the common law doctrine of dedication
    and acceptance as a mechanism by which a passage over private land becomes a
    public highway in respect of which title is transferred from the owner to a
    municipality. The application judge went on to observe, at para. 83, that once
    a dedication is complete, neither the owners nor their successors in title can
    revoke it, citing
Gibbs v. Grand Bend (Village)
(1995), 26 O.R. (3d)
    644 (C.A.), at p. 680. I would find no reviewable error in the application
    judges reasoning.

D.

Disposition

[20]

Despite
    the able advocacy of Mr. Webber, I am not persuaded that the application judge
    made a palpable and overriding error of fact, or that he misapprehended the
    evidence. To the contrary, the application judges findings find ample root in
    the record.

[21]

Given
    this conclusion on the merits, there is no need to address the Municipalitys
    other argument, which was accepted by the application judge, that the appellant
    was bound by the decision of a Small Claims Court judge issued in 1993.

[22]

I
    would dismiss the appeal with costs payable by the appellant to the respondent
    in the amount of $15,000.00, all-inclusive, as agreed.

Released: K.F. December 15, 2016

P.D. Lauwers J.A.

I agree K. Feldman
    J.A.

I agree B.W. Miller
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Meridian Credit Union Limited v. Baig, 2016 ONCA
    942

DATE: 20161215

DOCKET
:
M46639

C59249

Strathy C.J.O., LaForme and Huscroft JJ.A.

BETWEEN

Meridian Credit Union Limited

Plaintiff (Respondent)

and

Ahmed Baig

Defendant (Appellant)

Milton A. Davis, for the
    appellant

J. Anthony Caldwell, for the respondent

Heard: In writing

Motion for reconsideration of a decision of this court,
    dated February 25, 2016, with reasons reported at 2016 ONCA 150, 394 D.L.R.
    (4th) 601, dismissing the appeal from the order of Justice Frederick L. Myers
    of the Superior Court of Justice, dated August 15, 2014, with reasons reported
    at 2014 ONSC 4717, 16 C.B.R. (6th) 291.

ENDORSEMENT

Introduction

[1]

On February 25, 2016, this court dismissed Baigs appeal and upheld the
    motion judges decision that held Baig liable for fraudulent misrepresentation
    in an amount to be determined by the Superior Court of Justice:
Meridian
    Credit Union Limited v. Baig
, 2016 ONCA 150, 394 D.L.R. (4th) 601. Some
    eleven months later, Baig seeks leave to re-open his appeal and have this court
    reconsider its decision.

[2]

Baig did not file an affidavit on this motion. However, the notice of
    motion explains that, on April 22, 2016, Baig applied for leave to appeal this
    courts decision to the Supreme Court of Canada. The notice then states that
    Baig has filed a motion for the Supreme Court to hold his leave application in
    abeyance pending this motions outcome. Baig does not explain when he formed
    the intention to ask this court to re-open his appeal here, rather than merely
    appeal this courts decision to the Supreme Court.  We note that the Supreme
    Court has granted Baigs request to hold his leave application in abeyance:
Baig
    v. Meridian Credit Union Limited
, [2016] S.C.C.A. No. 173. However, this
    development does not affect our opinion of this motion.

Issues

[3]

In his notice of motion to this court, Baig lists the grounds in support
    of his request to re-open the appeal by repeating some of the background of the
    case and specific reasons for this courts decision. In summary, there is one
    ground that we garner from the notice, namely, the reasons for this courts
    decision disclose a misapprehension or misapplication of a material piece of
    evidence. Or, as Baig puts it in paras. 35 and 36 of his factum:

In its reasons, the Court of Appeal concludes that the
    misrepresentations found in the closing documents caused the Receiver to seek
    and obtain court approval of the sale.

[I]t is not possible that the closing documents caused the
    Receiver to seek and obtain court approval of the sale.

[4]

Baig also raises two issues that, he claims, we must consider on this
    motion. First, can this motion proceed when Baig already has filed an
    application for leave to appeal to the Supreme Court of Canada? And second,
    should we permit Baig to re-open his appeal?

Discussion

[5]

We need not consider the first issue because Baig has failed to
    demonstrate an arguable basis for re-opening his appeal. We reach this
    conclusion for several reasons.

[6]

The first observation that we would make is that Baigs reliance on r.
    59.06 of the
Rules of Civil Procedure
is misplaced. Rule 59.06(1) addresses
    the jurisdiction of the court to amend an order where it contains an error
    arising from an accidental slip or omission or requires amendment in any
    particular on which the court did not adjudicate. Rule 59.06(2) allows a party
    to move for the court to modify or set aside an order under particular
    conditions; to suspend the operation of an order; to carry an order into
    operation; or to obtain relief other than that originally awarded. All of these
    grounds for re-opening an appeal concern
orders
,
    whereas Baig alleges errors in this courts
reasons
;
    no order has yet been taken out.

[7]

Nevertheless, generally speaking, there is no jurisdictional impediment
    to this court reconsidering its decision when no order has been taken out and
    entered:
Mujagic v. Kamps
, 2015 ONCA 360, 125 O.R. (3d) 715, at para.
    5. However, a party seeking to re-open an appeal after the appeal decision has
    been rendered faces a high hurdle:
Chuang v. Toyota Canada Inc
.,
    2016 ONCA 852, at para. 7. The court will re-open an appeal prior to the
    entering of the order sparingly and only where it is clearly in the interests
    of justice:
Mujagic
, at para. 12. Baig has not raised the kind of
    rare circumstance where the interests of justice would require us to
    withdraw our reasons and rehear the case on the merits:
Aviva Canada Inc.
    v. Pastore
, 2012 ONCA 887, 300 O.A.C. 355, at para. 9.

[8]

The arguments that Baig makes on this motion were advanced  in writing
    and in oral argument  and considered, both on the originating motion and on
    appeal. In both instances they were rejected. The losing partys disagreement
    with the courts reasons is not a rare circumstance in appellate litigation.
    As we have mentioned, Baig already has filed an application for leave to appeal
    to the Supreme Court of Canada. Such an application is the normal and proper
    recourse for a party who wishes to challenge this courts reasons.

Conclusion

[9]

For the reasons given, the motion is dismissed with costs to the
    respondent. If the parties cannot agree on the amount, they may make written
    submissions of three pages or less within 14 days of the release of these
    reasons.

G.R.
    Strathy C.J.O.

H.S. LaForme J.A.

"Grant Huscroft J.A."


WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH
    PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives from all
    or a part of a hearing; or

(c) prohibiting the publication of a report of the
    hearing or a specified part of the hearing,

where the court is of the opinion that the presence
    of the media representative or representatives or the publication of the
    report, as the case may be, would cause emotional harm to a child who is a
    witness at or a participant in the hearing or is the subject of the proceeding.

45(8)  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.

45(9)  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.

COURT OF APPEAL FOR ONTARIO

CITATION: N.L. v. R.R.M., 2016 ONCA 915

DATE: 20161205

DOCKET: C61823 & C62184

Weiler, Blair and van Rensburg JJ.A.

BETWEEN

N.L.

Applicant (Respondent on Appeal)

and

R.R.M.

Respondent (Appellant)

and

D.M. and M.M.

Children (Respondents on Appeal)

and

Chief of Police
Toronto Police Services

Third Party (Respondent on Appeal)

Gary S. Joseph, Elissa H. Gamus and Meghann P. Melito,
    for the appellant

Michael J. Polisuk, for the respondent N.L.

Jesse L. Mark and Emily Chan, for the respondents D.M.
    and M.M.

Sharon C. Wilmot, for the respondent Toronto Police
    Services

Heard: September 22, 2016

On appeal from the order of Justice Craig Perkins of the Superior
    Court of Justice, dated December 19, 2015, with reasons reported at 2016 ONSC
    809, 76 R.F. L. (7th) 428.

Weiler J.A.:

[1]The motions
    judge granted a motion to change a final custody order with respect to two
    boys, M.M. and D.M., born in 1997 and 1999 respectively. The appellant father
    appeals and asks this court to reinstate the prior final custody order granting
    him exclusive custody of D.M. He also appeals a related change order relieving
    the Toronto Police Services Board from enforcing the provisions of the custody
    order. By way of cross-appeal, the younger son, D.M., seeks a declaration that
    he has withdrawn from parental control and is therefore no longer a child of
    the marriage for whom a custody order can be made.

[2]For the
    reasons that follow, I would dismiss the appeal as well as the cross-appeal.

A.

Facts

[3]The
    appellant father and respondent mother were married in 1996. They initially
    separated in November 2005, but reconciled in August 2006. They separated
    finally in January 2012. The sons remained in the mothers primary care
    throughout the three years following the separation.

[4]The parties
    submitted their parenting and some economic issues to a senior family law
    specialist for mediation and arbitration. The arbitrator conducted a hearing in
    September and October 2014, which lasted 14 days, 12.5 of which were spent on
    parenting issues.

[5]The
    arbitrator found that each parent had been verbally aggressive and physically
    violent. Between 2005 and 2012, the father was charged with assault three
    times. He was acquitted on each charge. The mother was charged with assaulting
    the father in September 2012. She was convicted, but was successful on appeal.
    Although a new trial was ordered, the Crown elected not to proceed.

[6]The
    arbitrator found that the fathers relationship with his sons was seriously
    damaged by a campaign of parental alienation by the mother. Relying on
    uncontroverted evidence from clinical psychiatrist, Dr. Goldstein, and custody
    assessor, Barry Brown, that the price of the boys not seeing their father is
    too high, he concluded that the children deserved the opportunity to have a
    relationship with both their parents and extended families. Thus, in his award
    on January 16, 2015, the arbitrator awarded custody of the children to the
    father. The father was to take the boys to attend the Family Bridges Program,
[1]
an educational and experiential program which aims to resolve issues between
    parents and alienated children.

Although
    it was unclear whether the award would have the intended result, the arbitrator
    held, [I]t is my statutory duty as I see it, to take such steps as I feel are
    reasonable and necessary to give the relationships the best chance of success.
    Following the January 16, 2015 award, the arbitrator entertained further
    submissions on the detailed, operative terms that should be put into a further
    award governing the parenting arrangements during the Family Bridges Program,
    including no contact with the mother or any of her relatives. He released an award
    outlining these operative terms on February 11, 2015.

[7]On February
    17, 2015, Justice Goodman made an order on consent incorporating the terms of
    the arbitral award. The order by Justice Goodman provided that the father was
    to have sole custody of the parties two sons, M.M. and D.M. It also required
    the children to attend the Family Bridges Program with the father and ordered
    the Toronto Police Services, and other police forces to assist as required to
    enforce the provisions of the order and specifically to take all such action
    as is required to locate, apprehend and deliver the children to the
    Respondent.

[8]Neither
    party appealed or sought judicial review of the arbitrators awards.

[9]The January
    16, 2015 arbitral award directed the parties not to inform the children of the
    arbitrators decision. The February 11, 2015 arbitral award reiterated this
    requirement. On February 17, 2015, the children came to the arbitrators office
    and were informed of the decision. The father claimed the children did not
    appear surprised, while the mother denied she told the children the terms of
    the January 16 award. The father alleged that as D.M. was leaving the building
    with his father to head to the Family Bridges Program, M.M. said to his younger
    brother, Remember the plan and told him to hide until he turned 16. Neither
    of the sons denied this. The mother denied there was a plot to defeat the
    arbitral award.

[10]

On leaving the building, D.M. ran off and disappeared. He went to his
    brother, M.M.s apartment. His mother went there, picked him up, and drove him
    to a police station. D.M. told the police he did not want to return to the
    father, but the police turned him over to the father upon seeing the court
    order from that day.

[11]

The father and D.M. got in the car to travel to the Family Bridges
    Program. The motions judge noted the evidence was contradictory on this point,
    but D.M. got out of the car at a red light or when it slowed down for it. D.M.
    ran away and again went to his older brothers apartment. The mother saw him
    there and deposed that she told him to return to his father. D.M. refused to do
    so, saying he would rather live on the street and ran away again.

[12]

The father filed a missing person report with the Toronto and Durham
    police. D.M. called the police on February 20, 2015, saying he was not missing,
    did not wish to live with his father, and refused to give his contact
    information.

[13]

On February 23, 2015, the Chief of Police filed a motion to remove the
    police enforcement clause from the order.

[14]

Over the following months, the father received conflicting information
    from the two police forces about the investigation. The Toronto Police received
    an additional call from D.M. on April 22, 2015 and he met with police officers
    in person on May 6, 2015. The police made a note saying they were concerned for
    his safety if they enforced the custody order and closed their missing person
    investigation.

[15]

The mother brought a motion to change the custody order by awarding
    custody to her or, alternatively, that there be no custody order.

[16]

At the time of the motions judges change order in December 2015, M.M.
    was at university but resided with the mother when he was not in school. D.M.,
    age 16, lived alone in an apartment and was completing high school.

B.

Decision Below

[17]

With respect to the Chief of Polices motion, the motions judge noted
    that there were two technical procedural problems, but the case proceeded as if
    proper procedure had been followed. The motions judge found that the Chief had
    standing under either rule 14(1)-(2) or 25(19)(d) of the
Family Law Rules
,
    O. Reg. 114/99. The motions judge held that motions under those rules do not
    require a material change. The motions judge refused to deny the Chief a right
    of audience because of any reported improper actions or comments by individual
    members of the force.

[18]

The motions judge rejected the fathers arguments, made pursuant to the
Divorce
    Act
, R.S.C. 1985, c. 3 (2nd Supp.) and those invoking the Superior Courts
parens patriae
jurisdiction, in aid of his submission that the
    children were being unlawfully withheld. Instead, the motions judge concluded
    that the police enforcement clause should be removed from the order, noting
    that it was not in the childrens best interests to maintain a provision for
    physical compulsion as it was unlikely to work and would likely make it harder
    for the relationship between the father and sons to be repaired.

[19]

The motions judge next considered the parents motions for custody and
    access. He found that both sons were children of the marriage within the
    meaning of the
Divorce Act
at the time of the final custody order and held
    that, although the older son was now over 18, he might still qualify as a child
    of the marriage, at least for some purposes.

[20]

The motions judge discussed the issue of material change in
    circumstances, noting that this was a pre-requisite to the courts exercise of
    jurisdiction to change the custody and access terms of the February 17, 2015
    order.

[21]

He found that there were material changes, including:

·

The
    older son turned 18 and younger 16;

·

The
    father effectively abandoned his effort to secure custody or control of the
    older son;

·

The
    younger son physically resisted going into the fathers custody;

·

Almost
    one year has passed since the order was made and no contact had been restored between
    the sons and the father;

·

Both
    sons appeared before the court to assert they cannot be compelled to go to a
    reunification program, or to live where they do not want to live; and

·

Police
    were unwilling to enforce the order.

[22]

The motions judge also considered the issue of withdrawal from parental
    control. He noted that the sons stated that they wanted to establish their own
    lives, but did not show that they have set up homes of their own, struck out
    from the former family unit on a new path of associations, or made their own
    decisions about medical care. He further noted that the younger son lives in an
    apartment rented by the mother and the older son returns to the mothers home
    when he is not attending university courses. The motions judge concluded that
    the evidence did not establish that either of the sons had withdrawn from
    parental control and thus they remained children of the marriage.

[23]

Having found a change of circumstances, the motions judge held it was
    not in the childrens best interests to continue the existing custody order.
    Given the extent of acrimonious litigation between the parents he could not
    make an order for joint custody. The older son was 18 and a custody order was
    not needed for any purpose. The younger son was almost 17, had registered in
    school on his own, and did not need anyone to consent to health care on his
    behalf. Thus, for practical purposes he did not need a custody order either. The
    motions judge decided to make no custody order. At para. 150 of his reasons, he
    stated:

To be clear, my decision is that no person has custody or
    access rights over either of the sons under any statute or under any non statutory
    jurisdiction of the court. Each of the sons is his own master in that respect.

[24]

The motions judge further held that the parents did not have any right
    to secure information from providers of medical or educational services, or
    from each other. Access to information about each son was entirely within D.M.s
    and M.M.s own control.

C.

Issues

[25]

The major issues in this appeal can be characterized as follows:

1.

Did the motions judge err in finding a material change of circumstances?

2.

Did the motions judge err in changing the custody order from Justice
    Goodmans February 17, 2015 custody order?

3.

Should the children be ordered to attend the Family Bridges Program? Did
    the motions judge err in finding that the Family Bridges Program was a medical
    treatment under the
Health Care Consent Act, 1996,
S.O. 1996, c. 2
    that required the childrens consent?

4.

Did the motions judge err in removing the police enforcement clause from
    the order?

5.

Have the children withdrawn from parental control (raised on
    cross-appeal)?

D.

Analysis

(1)

The motions judge did not err in finding a material change of
    circumstances

[26]

A court cannot vary a custody or access order absent a change in the
    condition, means, needs or other circumstances of the child, as required by
    s. 17(5) of the
Divorce Act
.

[27]

The fathers preliminary argument is that the trial judge erred in not
    ordering a full hearing. Such a hearing was required to determine whether there
    had been a material change in circumstances, rather than relying on conflicting
    affidavit evidence.

[28]

It does not appear from the record that any party sought to question the
    other on their affidavit evidence. Moreover, there are no significant
    credibility findings required to be made. I would thus dismiss this preliminary
    argument.

[29]

The fathers first argument is that the trial judge erred in finding a
    change of circumstances. He submits that the change of circumstances found is
    not in accordance with the decision of the Supreme Court of Canada in
Gorden
    v. Goertz
, [1996] 2 S.C.R. 27, at paras. 10-13. That decision states that
    there are three components to a material change of circumstances: 1) a change
    in the condition, means, needs or circumstances of the child and/or or the
    ability of the parents to meet those needs; 2) the change must materially
    affect the child; and 3) the change was either not foreseen or could not have
    been reasonably contemplated by the judge who made the initial order.

[30]

The father submits that it was foreseeable that the children would age,
    and the other factors that the trial judge mentioned all go to the ongoing
    conflict between the father and D.M. It was foreseeable that D.M. would resist
    being in the custody of his father and going into the Family Bridges Program.
    There was no material change in circumstances as the relationship between the
    father and D.M. had not changed. The trial judge did not give sufficient weight
    to the arbitrators decision in finding that there had been a material change
    of circumstances. The arbitrator found that the relationship between the
    children and their father had been good at one time and that the Family Bridges
    reunification program was the last opportunity to salvage the relationship.
    There was evidence that it was not in the long term best interests of the
    children not to have a relationship with their father. Self-help is not to be
    encouraged. Enforcement of the consent court order embodying the arbitrators
    decision is essential to respect the rule of law.

[31]

The father seeks to isolate the individual factors found by the trial
    judge which, considered as a whole, amount to a change of circumstances. In
    considering whether there had been a change in the condition, means, needs and
    circumstances of the child, the trial judge was entitled to look at the
    intervening circumstance, namely that the younger son ran away and went
    underground. What the father seeks to have us do is take a different view of
    the evidence that was before the trial judge. While resistance to the consent
    custody order was foreseeable, what was not foreseen was the extreme resistance
    by D.M. He put his health and safety at risk in opposing the custody order and
    the evidence indicated he would continue to do so. The fact that D.M. was now
    over 16 meant that he had a greater capacity to frustrate the consent custody
    order. The trial judge did not err in holding that there had been a material change
    of circumstances.

(2)

The motions judge did not err in changing the custody order

[32]

The fathers second argument is that the trial judge erred in concluding
    that the risk to D.M. of continuing the custody order in his favour outweighed
    the impact on him if he did not develop a relationship with his father. He
    submits that parental alienation has been found to be akin to emotional abuse
    and is not in D.M.s long term best interests. It was an error for the trial
    judge to rule based on the wishes of D.M. because his voice is that of an
    alienated child, not an independent voice. The father submits that the best interests
    of D.M. require reinstatement of the final order.

[33]

In support of his submission, the father cites a number of decisions
    in which he argues the
court ignored the childs
    wishes because those wishes were irreparably tainted by the alleged parental alienation.
    See, for example,
L. (A.G.) v. D. (K.B.)
, 93 O.R. (3d) 409
    (C.J.), at paras. 143-149;
Pettenuzzo-Deschene v. Deschene
, 40 R.F.L. (6th) 381 (Ont. S.C.), at para. 55;
Tock
    v. Tock
,
[2006] O.J. No. 5324
(Ont. S.C.),
    at paras. 121-123;
O. (C.) v. O. (D.)
, 2010 ONSC 6328, at para.
    16;
Decaen v. Decaen
,

2013 ONCA 218, 303 O.A.C. 261, at
    paras. 42, 44-45.

[34]

The fathers submissions are in essence the same submissions he made
    before the motions judge. At para. 140 of his reasons, the motions judge gave
    his conclusions on this issue as follows:

The wishes of an alienated child may be warped and
    misconceived, but they are nonetheless real. The father says that the
    childrens wishes should be disregarded, because they are not truly the
    childrens own wishes. At this point, does that really matter? The expressed
    wishes are strong, consistent, and long lasting, and they have been acted on by
    the children in defiance of the authority of both parents, the arbitrator, the
    police, and this courts order. The fact is that the current custody order in
    favour of the father has not worked.

[35]

The motions judge acknowledged that the arbitrator accepted the expert
    evidence that the father had one last chance, in the form of the Family Bridges
    residential reunification program, to rebuild a relationship with his sons.
    That last chance opportunity had regrettably been missed. He was convinced that
    D.M. would go into hiding and drop out of school again if he renewed the
    custody order in favour of the father. It would not be in D.M.s best interests
    if his education and career options were disrupted. The motions judge also
    observed that the two sons were bonded to each other, the mother and her
    family. Were he to enforce the order the sons would have no family, not even
    each other (while following the Family Bridges Program). He was of the opinion
    that it was not in the childrens best interests to maintain these barriers any
    longer. The motions judge was also of the opinion that renewing the existing
    custody order would likely only serve to strengthen the childrens opposition
    to it.

[36]

I agree with the fathers submission that the jurisprudence indicates
    the wishes of the child and the best interests of the child are not necessarily
    synonymous. However, the motions judge referred to this existing jurisprudence
    as well as the jurisprudence that, as a practical matter, older children will
    make their own residential choice: see,
Supple v. Cashman
, 2014 ONSC
    3581, 45 R.F.L. (7th) 273 (S.C.), at para 17;
Ladisa v. Ladisa
(2005),
    11 R.F.L. (6th) 50 (Ont. C.A.), at para 17. The motions judge carefully
    considered the fathers submissions and gave cogent reasons for rejecting them,
    having regard to D.M.s best interests. In the absence of any palpable and
    overriding error in the exercise of his discretion, which has not been
    demonstrated, this court cannot intervene in the change of the custody order.

(3)

Disposition on remaining issues on appeal

[37]

My decision makes it unnecessary for me to consider the issue of whether
    D.M.s forced participation in the Family Bridges Program amounted to treatment
    and required his consent under the
Health Care Consent Act, 1996
.

[38]

As the fathers request to reinstate the original custody order in his
    favour with respect to D.M. has been dismissed, his appeal of the motion
    judges decision removing the enforcement clause in the custody order at the
    behest of the Chief of Polices must also fail.

[39]

The appeal is dismissed.

E.

The Cross-Appeal

(1)

The motions judges order effectively grants the relief requested

[40]

Both D.M. and M.M. seek an order that no person has custody or access
    rights over either of them as well as an order that no person may force them to
    attend or participate in the Family Bridges Program. The father did not appeal
    the motions judges order in respect of M.M. In dismissing the fathers appeal
    with respect to D.M., above, this court affirmed the motions judges order that
    no person has custody or access rights over him. It follows that no person has
    custody or access rights over D.M. or M.M. and neither can be forced to attend
    or participate in the Family Bridges Program. Thus, this requested relief has
    already in effect been granted.

(2)

No additional declaration on D.M.s withdrawal is required; the motions
    judges declaration stands

[41]

D.M. also seeks a declaration that he has withdrawn from parental
    control and has all of the statutory and common law rights of an independent
    minor.

[42]

Section 2(1) of the
Divorce Act
defines a child of the
    marriage. For ease of reference the relevant portion is as follows:

Child of the marriage means a child of two spouses or
    former spouses who, at the material time,

(a) is under the age of majority and who has not
    withdrawn from their charge

[43]

The motions judge held at para. 127 of his reasons that, There must be
    some credible evidence of withdrawal from or resistance to the authority of
    both parents. On the evidence before him, he was not persuaded that either of
    the sons had actually withdrawn from their parents charge or from parental
    control. He concluded that they remained children of the marriage.

[44]

The father submits that, as the motions judge held, a child cannot
    unilaterally withdraw from the control of one parent thereby removing the
    courts jurisdiction to make a custody order over him with respect to that
    parent. Nor can a child who is being supported by a parent be said to have
    withdrawn from that parents control. The fathers position is that D.M.
    remains a child of the marriage and the motions judge had to make a custody
    order. He says that he is the only person in whose favour a custody order can
    be made having regard to the mothers conduct in alienating D.M. from him.

[45]

I disagree that the motions judge was obliged to make a custody order.
    Section 16(1) of the
Divorce Act
provides:

A court of competent jurisdiction
may
, on application by either or both
    spouses or by any other person, make an order respecting the custody of or the
    access to, or the custody of and access to, any or all children of the
    marriage. [Emphasis added.]

[46]

Even assuming that D.M. continues to be a child of the marriage over
    whom the court has jurisdiction to make a custody order, s. 16 does not oblige
    the court to make an order. The use of the word may is indicative that the
    court has a discretion which it may or may not choose to exercise. The motions
    judge was entitled to exercise his discretion as he did and decline to make any
    order as to custody. Although such orders are rare, they do exist: see, for
    example,
McBride v. McBride,
2013 ONSC 938 (S.C.),
Sharpe v.
    Sharpe
, 14 R.F.L. 151 (Ont. S.C.).

[47]

After rescinding the custody order in favour of the father, the motions
    judge did not simply refuse to exercise any jurisdiction that he had. Paragraph
    2 of his December 19, 2015 order states:

There shall be no order respecting the custody of or access to
    M.M., born July 30, 1997, and M.D., born March 11, 1999 under any statute or
    any non-statutory jurisdiction of this court.

[48]

Thus, the presumptive custody provisions contained in s. 20 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12 that apply in the absence of a court
    order or separation agreement have been altered by the courts order. In this
    regard I note that s. 20 (7) of the
Childrens Law Reform

Act
states:

Any entitlement to custody or access or incidents of
    custody under this section is subject to alteration by an order of the court or
    by separation agreement.

[49]

D.M. agrees with the motion judges order insofar as it does not grant
    any person custody of or access to him. Nonetheless, he seeks, A declaration
    that D.M. has withdrawn from parental control and has all of the statutory and
    common law rights of an independent minor.

[50]

In support of his submission D.M. relies, in part, on the decision of
    Kiteley J. in
Glegg, Re
, 2016 ONSC 5292, granting similar declaratory
    relief. That decision is under appeal to this court and the reasons are yet to
    be released.

[51]

Insofar as declaratory relief is concerned, I note that the
    jurisprudence is to the effect that the Superior Courts jurisdiction to grant
    declaratory relief is not to be exercised in a vacuum; a court must have a
    reason to exercise its discretion to grant declaratory relief; where
    legislation exists dealing with the subject matter, the court should consider
    whether a legislative gap exists that would give rise to a jurisprudential
    reason for exercising the courts discretion to grant declaratory relief. See,
    for example,
Danso-Coffey v. Ontario
, 2010 ONCA 171, 99 O.R. (3d) 401,
    at paras. 30-32; Donald J. M. Brown, Q.C. & the Honourable John M. Evans,
Judicial
    Review of Administrative Action in Canada
, loose-leaf (2016-Rel. 3),
    (Toronto: Thomson Reuters Canada Ltd., 2013), at p. 1-77. A declaration can
    only be granted if it will have practical utility in settling a live
    controversy between the parties: see
Daniels v. Canada,
2016 SCC 12, 395
    D.L.R. (4th) 381, at para. 11,
Khadr v. Canada (Prime Minister)
, 2010
    SCC 3, [2010] 1 S.C.R. 44, at para. 46; Brown and Evans, at p. 1-73. None of
    this jurisprudence was the subject of submissions before us.

[52]

In any event, in my opinion, para. 2 of the motions judges order is a
    declaration. It is not the precise wording that D.M. seeks. However, D.M. has
    not shown that the motions judge erred in principle in exercising the inherent
    discretion of a Superior Court judge to make the declaratory order he did.
    Accordingly, I would dismiss the cross-appeal.

F.

Costs

[53]

No costs were ordered by the motions judge at first instance. In the
    event that this court held the motions judge wrongly exercised his discretion
    in not awarding costs, he would have awarded the mother costs of $12,500.

[54]

At the conclusion of this appeal, counsel advised the court of a wish to
    make submissions in writing once these reasons had been released. Accordingly,
    any party seeking costs shall serve costs submissions within ten days of the
    release of these reasons on the party from whom costs are sought. Responding
    submissions are to be served within a further ten days. There are to be no
    reply submissions. Submissions are limited to two pages not including a Bill of
    Costs on a partial indemnity scale which may be attached.

Released: R.A.B. December 5, 2016

K.M. Weiler J.A.

I agree R.A. Blair J.A.

I agree K. van Rensburg J.A.

[1]
The Family Bridges Program, or Family Bridges: A Workshop for Troubled and
    Alienated Parent-Child Relationships is an educational and experiential
    program which aims to resolve issues between parents and alienated children. According
    to the award of the arbitrator, Herschel Fogelman, dated February 11, 2015, in
    this particular case, the Program was meant to assist the children in adjusting
    to living with their father as the custodial parent.
The
    Program includes a workshop phase, generally lasting four days, with their
    protocol including an unstructured vacation following the workshop, generally
    five to seven days in duration.
There may be follow-up counseling with
    an Aftercare Specialist as designated by the Family Bridges team leaders.


COURT OF APPEAL FOR ONTARIO

CITATION: Nakra (Re), 2016 ONCA 925

DATE: 20161208

DOCKET: C62006

Feldman, Watt and Huscroft JJ.A.

IN THE MATTER OF: Aakash Nakra

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Gavin S. MacKenzie, for the Centre for Addiction and
    Mental Health

Craig Harper, for the Attorney General of Ontario

Heard: November 29, 2016

On appeal against the disposition of the Ontario Review
    Board dated March 29, 2016.

ENDORSEMENT

[1]

On August 13, 2014, the appellant, Aakash Nakra, was found Not
    Criminally Responsible by reason of mental disorder on charges of attempting to
    choke in the commission of an offence, assault with a weapon, aggravated
    assault, theft of a motor vehicle, failure to comply with a condition of
    judicial interim release, and mischief under $5,000. He has been subject to a
    detention order since that time.

[2]

The appellant appeals from the March 29, 2016 disposition of the Ontario
    Review Board, which ordered that he remain subject to a detention order with a
    provision allowing him to live in the community in approved accommodation with
    weekly reporting obligations.

[3]

The appellant submits that the Board erred in denying his request for a
    conditional discharge. In particular, the appellant submits that the Board
    erred in law by failing to conduct an individualized assessment of risk as
    required by the Supreme Court in
Winko v. British Columbia (Forensic Psychiatric
    Institute)
,
[1999] 2 S.C.R. 625.

[4]

We do not accept this argument.

[5]

The appellant conceded that he remains a significant threat to public
    safety and the issue was not contested before the Board. That being so, the
    Board was required to fashion a necessary and appropriate disposition
    pursuant to s. 672.54 of the
Criminal Code
.

[6]

The appellants psychiatrist, Dr. Darani, testified that the appellant
    could not be managed appropriately under a conditional discharge and that he
    required a managed transition into the community, including hospital-approved
    accommodation. She also testified that this was the normal progression that was
    followed by the team. This is part of the basis for the appellants submission
    that his particular circumstances were not considered. To the contrary, the
    fact that the team believed that its normal recommendation also applied to the
    appellant would be based on their expertise and experience, and does not
    undermine their consideration of his particular needs.

[7]

The Board accepted Dr. Daranis evidence and the evidence in the
    hospital report without reservation. It made no error in doing so. On a fair
    reading of the record, it cannot be said that there was a failure to respond to
    the appellants individual circumstances.

[8]

The appellant submits that the Boards decision is unreasonable, among
    other things because the Board gave no weight to the progress he made; ignored
    the wishes of his parents; failed to take a culturally competent view of his
    situation; and failed to take into account his young age.

[9]

We disagree. In our view, the Boards decision is amply supported on the
    record that was before it and is reasonable.

[10]

The
    Board found that the appellant had limited insight into his mental illness and
    the impact of substance abuse on his illness. He had used illicit substances
    and attempted to avoid detection by manipulating his urine testing.
    Furthermore, the Board found that the appellant minimized the offences he had
    committed against his father and refused anger management counselling. The
    Board considered the proposed conditional discharge unworkable, among other
    things because of concerns that the appellants parents could not manage the
    risk and the legal difficulty in returning the appellant to the hospital if he
    was not under a detention order.

[11]

Given
    the appellants violent index offences against his father and limited insight
    into his mental illness, the Boards decision not to conditionally discharge
    him to live in the family home cannot be said to be unreasonable.

[12]

The
    appellant has made progress since the index offence. He is undertaking online
    education and has been re-certified as a forklift operator. The appellants
    parents are supportive of his release and want to have him live in the family
    home again. These are all positive factors, but they do not undermine the
    reasonableness of the Boards decision that a detention order was the necessary
    and appropriate disposition at that time.

[13]

The
    appeal is dismissed.

K.
    Feldman J.A.

David
    Watt J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Olumide v. Ontario (Attorney General), 2016 ONCA
    941

DATE: 20161214

DOCKET: M47151 (C62798)

Cronk, Juriansz and van Rensburg JJ.A.

BETWEEN

Ade Olumide

Appellant/Moving Party

and

Her
    Majesty the Queen in Right of Ontario

as
    represented by the Attorney General of Ontario

Respondent/Respondent

Ade Olumide, acting in person

Domenic Polla, for the respondent

Heard:  December 12, 2016

ENDORSEMENT

[1]

The moving party, Ade Olumide, a self-represented litigant, moves to
    vary the order of Hourigan J.A. of this court dated November 2, 2016.  By that
    order, Hourigan J.A. declined: i) to direct the Deputy Registrar of this court
    to issue a notice of appeal from the order of Pollak J. of the Superior Court
    of Justice dated October 12, 2016; ii) to grant a declaration that a previous
    order of this court, dated September 25, 2015, did not operate to preclude Mr.
    Olumide from seeking to appeal the vexatious litigant order made against him by
    Dunphy J. of the Superior Court, dated October 17, 2016; and iii) to
    consolidate Mr. Olumides proposed appeal from Pollak J.s order with his
    pending appeal from Dunphy J.s order.

[2]

We conclude that the motion to vary must be dismissed.

[3]

The grounds advanced by Mr. Olumide in support of his motion relate to
    his continuing pursuit of declaratory relief regarding the constitutionality
    and proper interpretation of specific legislation.  Those issues have no
    bearing on the matters dealt with by Hourigan J.A.  Nor are they properly
    before this panel.  Simply put, Mr. Olumide has failed to identify any
    sustainable legal basis on which to vary or otherwise interfere with Hourigan
    J.A.s order.  None of the relief now sought by Mr. Olumide arises from or
    concerns the matters dealt with by Hourigan J.A.

[4]

Further, and in any event, we note that Hourigan J.A. dealt directly
    with the issues actually advanced in oral argument before him by Mr. Olumide
    namely, items ii) and iii) set out above.  We see no error in his reasoning or
    disposition of those issues.  Indeed, we agree with his rulings and his
    reasoning.

[5]

We also note that, contrary to this courts order dated September 25,
    2015 in court file M44527 (M43691), Mr. Olumide appears to have brought this
    motion against the Crown without leave of this court.  He was not entitled to
    do so.  On this ground, as well, this motion fails.

[6]

The motion to vary is therefore dismissed.  We make no order as to costs.

E.A. Cronk J.A.

R.G. Juriansz J.A.

K. van Rensburg J.A.