COURT OF APPEAL FOR ONTARIO

CITATION: Toure v. Canada (Public Safety & Emergency
    Preparedness), 2018 ONCA 681

DATE: 20180813

DOCKET: C64522

Doherty, LaForme and Hourigan JJ.A.

BETWEEN

Ebrahim Toure

Applicant (Appellant/

Respondent by way of
    cross-appeal)

and

The Minister of Public
    Safety & Emergency Preparedness
, Minister of Immigration, Refugees
    & Citizenship,
Attorney General of Canada

Respondents
    (Respondents/

Appellants by way of cross-appeal)

Jared Will and Jean Marie Vecina, for the appellant

Judy Michaely, Christopher Crighton and Susan Gans, for
    the respondents

Michael Dunn and Andrea Bolieiro, for the intervener,
    Attorney General of Ontario

Heard: May 23, 2018

On appeal from the judgment of Justice A.J. OMarra of
    the Superior Court of Justice, dated October 5, 2017, with reasons reported at 2017
    ONSC 5878, 53 Imm. L.R. (4th) 188.

H.S. LaForme J.A.:

INTRODUCTION

[1]

Ebrahim Toure
believed his
continued detention for immigration removal from Canada was unlawful
.
    He commenced an application for release from immigration detention pursuant to
    the
Habeas Corpus Act
,
R.S.O. 1990, c. H. 1

and ss. 7, 9, 10(c), 12 and 24(1) of the
Canadian
    Charter of Rights and Freedoms
. His
habeas corpus
application
was dismissed. Relief was, however, granted under s. 24(1) for a
    violation of his s. 12
Charter
rights. The
    application judge found that Mr. Toures detention in a maximum security jail
    was cruel and unusual and ordered his transfer to an immigration detention
    centre. Accordingly, Mr. Toure was removed from the maximum security provincial
    facility at
Central East Correctional Centre
(CECC)
    to the Toronto Immigration Holding Centre (IHC), pending future detention
    reviews and removal.

[2]

Mr. Toure appeals the application judges order
    dismissing his
habeas corpus

application. At
    the same time, the Minister of Public Safety and Emergency Preparedness and the
    Attorney General of Canada (the Minister) seek leave to appeal the application
    judges order granting Mr. Toure s. 24(1) relief for violating his s. 12
Charter
rights.

[3]

For the following reasons, I conclude that Mr.
    Toures appeal should be dismissed and the Ministers cross-appeal should be
    allowed.

BRIEF BACKGROUND

[4]

In June 2012, Mr. Toure, who claimed to be
    Guinean, had his immigration claim denied by the Immigration and Refugee Board
    under the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27 (
IRPA
). His
    application for judicial review was refused and he was placed on a conditional
    departure order with terms and conditions pending his removal from Canada. He
    failed to report for a required interview with the Canadian Border Security
    Agency (CBSA) resulting in his arrest and his detention at the IHC in February
    2013. Following a detention review in February 2013, he was found to be a
    flight risk and his continued detention was ordered.

[5]

Attempts were made by the CBSA to remove Mr.
    Toure to Guinea, however, Guinean authorities found that his Guinean birth
    certificate was fraudulent and refused him entry. He told Guinean authorities
    that he was not Guinean but had status in The Gambia through his father.
    Further, he was unable to speak or understand French, the official language of
    Guinea. On his return to Canada he continued to proclaim that his citizenship
    was Guinean.

[6]

Since his return to Canada in April 2013, and
    until the order under appeal, Mr. Toure had been detained in the CECC rather
    than the IHC. The CBSA claims he does not meet the criteria for detention in a
    lower risk facility; the only one in Ontario being the IHC. At the time of his
    appeal he has had more than 56 detention reviews; all have concluded that his
    continued detention is required because he poses a flight risk, specifically
    that he would not appear for removal.

ISSUES

[7]

On the appeal, Mr. Toure submits that the
    application judge erred in three respects: (1) he improperly applied the legal test
    at the jurisdictional stage; (2) he found there was a reasonable prospect of
    removal within a reasonable time; and (3) he sanctioned indefinite detention.

[8]

On the cross-appeal, the Minister submits the
    application judge committed the following errors: (1) he failed to properly
    identify and apply the legal test to decide whether Mr. Toures detention
    constituted a breach of s. 12 of the
Charter
;
    and (2) in factually concluding that the duration and conditions of Mr. Toures
    detention constituted a breach of s. 12.

(a)

Jurisdiction and Mootness

[9]

Before proceeding to discuss the main issues
    just identified, I will briefly dispose of two peripheral matters. First, this
    court was satisfied that these appeals were properly before us, rather than the
    Divisional Court as provided for in s. 8(1) of the
Habeas Corpus Act
. We agreed with the positions of the parties, namely: (i) the
    cross-appeal concerned the s. 24(1)
Charter
remedy that was granted to Mr. Toure for a breach of his s. 12
Charter
rights; and (ii) Mr. Toure sought relief under ss. 10(c) and 24(1)
    of the
Charter
, in addition to
habeas
    corpus
. Accordingly, s. 6(2) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43 provides this court the
    requisite jurisdiction to hear the appeals.

[10]

Second, Mr. Toure argues that the cross-appeal
    is moot as he is currently detained at the IHC rather than the CECC pursuant to
    the order under cross-appeal, and neither the Minister nor the Intervener seek
    an order that he be transferred out of the IHC. He submits that any decision on
    the cross-appeal will not resolve a live controversy affecting the rights of
    the parties.

[11]

We do not agree that the cross-appeal is clearly
    moot. And in any event, having regard to the factors identified in
Borowski
    v. Canada (A.G.)
, [1989] 1 S.C.R. 342, we conclude that
    it is appropriate to decide the matter. The interests of judicial economy would
    be better served by rendering a decision on the cross-appeal, the adversarial
    context remains and the cross-appeal was fully argued by all sides, and
    rendering a decision in these circumstances is consistent with the role of the
    judiciary.

I.        THE APPEAL

Issue 1:
Did the application judge err in applying the required test at the
    jurisdictional stage?

[12]

Habeas corpus
applications proceed in
    two stages. First, the applicant must show that he or she has been deprived of
    liberty and that there is a legitimate ground upon which to question the
    legality of the detention. If the applicant succeeds in meeting that threshold,
    the onus shifts to the authorities to show that the deprivation of liberty is
    lawful: see
Mission Institution v. Khela,
2014 SCC 24,
[2014] 1 S.C.R. 502, at para. 30
.

[13]

In Mr. Toures case, the issue for the
    application judge was whether Mr. Toures
habeas corpus
application was directed solely at his detention pending
    disposition of his immigration issues. A detention that is longer than is
    reasonably necessary to further the machinery of immigration control cannot be
    justified and continued detention will violate the detainees ss. 7 and 9
Charter
rights;
his continued detention
    would be unlawful:
Chaudhary v. Canada (Public Safety and Emergency
    Preparedness)
, 2015 ONCA 700, 127 O.R. (3d) 401, at para.
    81
. The two-stage process then proceeds in the following
    fashion.

[14]

First, in order that his
habeas corpus
application could be heard on the merits, Mr. Toure had the onus to
    show that reasonable and probable grounds existed for his complaint.
    Specifically, as his application alleged, his detention is unlawful because:
    (i) it has been exceptionally lengthy; and, (ii) his continued
detention
    is of uncertain duration.

[15]

Second, if Mr. Toure established his complaint,
    the Minister was required to satisfy the court that, despite its length and
    uncertain duration, the continued detention of Mr. Toure was still justified
    because it is reasonably necessary to further the machinery of immigration
    control:
Chaudhary,
at para. 81.
Thus,
    if there was no reasonable prospect that the detentions immigration related
    purposes would be achieved within a reasonable time, Mr. Toures continued
    detention would violate his
Charter
rights. What is a reasonable
    prospect of his removal within a reasonable time will depend on the
    circumstances.

(a)

The
    First Stage Conclusion

[16]

The application judge referenced the test
    described by this court in
Chaudhary
to
    determine at the first stage whether he should assume
habeas corpus
jurisdiction. He first found that Mr. Toures detention from the
    time he admitted he was Gambian  calculated at 21 months  was unduly lengthy.
    However, in his reasons under the heading uncertain duration, at para. 41, he
    described the issue as follows:

I agree with the respondent that the applicant
    does not satisfy the uncertain duration criteria simply by asserting that no
    scheduled date for removal has been set. The issue is whether removal will
    occur within a reasonable time. What will be considered reasonable will depend
    on the circumstances, which includes the applicants emerging cooperation with
    the removal process, the direct participation of the country to which he will
    be removed and satisfying its requirements to obtain the necessary travel
    documents.

He went on to state at para. 44:

It cannot be said that there is no reasonable
    prospect that some development is likely to occur that will provide the
    necessary documentation to permit the applicant to be removed, rendering his
    detention indeterminate.

[17]

And at para. 45 he concluded: the applicant has
    not satisfied the criteria that his detention, although lengthy, is of
    uncertain duration. In other words, he found that Mr. Toure had failed to
    raise a legitimate ground upon which to question the legality of his detention;
    there was no foundation to assume jurisdiction.

(b)

Submissions

[18]

Mr. Toure submits the application judge erred at
    this first stage in two respects. First, he contends the application judge
    erroneously asked whether Mr. Toures removal would occur in a reasonable time.
    He argues that the only question at this stage was whether the future length of
    detention was uncertain. The approach taken, he says, had the effect of
    shifting the onus on to Mr. Toure. It is the Minister, he says, once
    jurisdiction has been established, that must demonstrate that the detention is
    legal despite its length and uncertain duration  that there is a reasonable
    prospect that the detentions immigration-related purposes would be achieved
    within a reasonable time.

[19]

The second error, Mr. Toure argues, occurred
    when the application judge determined that he only had jurisdiction to hear the
    application if Mr. Toure established that his detention was both lengthy and of
    uncertain duration. In support of his submission that this is now wrong in law,
    he relies on this courts decision in
Ogiamien v. Ontario (Community
    Safety and Correctional Services)
, 2017 ONCA 839, [2017]
    O.J. No. 5702 (
Ogiamien #2)
, which was
    released subsequent to the decision under appeal.

[20]

I cannot accept either submission. My
    explanation for this will be set out below in reverse order.

(c)

Analysis

(i)

Extent of the Superior Courts Jurisdiction

[21]

The test set out in
Chaudhary
governing when the Superior Court can exercise its jurisdiction to
    hear an application by an immigration detainee is conjunctive.
Chaudhary
, at para. 81, makes it clear that, in the circumstances of that
    case, the detention complained of at the jurisdiction stage must be both very
    lengthy and of uncertain duration. This was affirmed in this courts recent
    decision in
Brown v. Canada (Public Safety)
,
    2018 ONCA 14, 420 D.L.R. (4th) 124, at para. 32.

[22]

Mr. Toure submits that jurisdiction of a
    Superior Court to hear
habeas corpus
applications brought by immigration detainees is not limited to cases of
    lengthy detentions of uncertain duration. He argues that, on his application,
    the application judge took an unnecessarily narrow view of his jurisdiction. He
    relies on
Ogiamien #2
in support.

[23]

I accept Mr. Toures general submission and his
    reliance on
Ogiamien #2
; the principle applied
    in
Chaudhary
is not restricted to the specific
    facts considered in that case. In
Ogiamien #2
,
    at para. 41, this court rejected the contention that
habeas corpus
will only be available in immigration matters in the case of
    lengthy detentions of uncertain duration. It went on in that same paragraph to
    explain that:

Chaudhary
rests on the general
    principle that the Superior Court retains its residual jurisdiction to
    entertain
habeas corpus
applications where the
IRPA
process of review under the supervision
    of the Federal Court is less advantageous than
habeas corpus
, and where releasing the applicant would not alter the immigration
    status of the applicant or amount to a collateral attack on an immigration
    decision. The principle applied by this court in
Chaudhary
is not restricted to the specific facts considered in that case.

[24]

However, I do not accept Mr. Toures submission
    that the application judge erred because he concluded that he could take
    jurisdiction only if the first part of the
Chaudhary
test was met. I say this for several reasons.

[25]

First,
Ogiamien #2
was released after the application judge rendered his decision in
    this matter. Second, the decision, while recognizing that there may be other
    exceptional circumstances where
habeas corpus
is available to an immigration detainee, maintains the
Chaudhary
test.

[26]

The question regarding any issue in immigration
habeas
    corpus
matters, other than in the case of lengthy
    detentions of uncertain duration, will be, whether there is a complete,
    comprehensive and expert alternative remedy that is as broad and advantageous
    as a
habeas corpus
application:
Chhina
    v. Canada (Public Safety and Emergency Preparedness)
, 2017
    ABCA 248, 56 Alta. L.R. (6th) 1, at para. 34. The application must not be a
    challenge to the detainees immigration status. Rather, it must address the
    question of whether the detention furthers the machinery of immigration
    control.

[27]

Third, and most significant, Mr. Toure
    specifically relied on the
Chaudhary
test in
    support of his application. He did not argue that the court had jurisdiction to
    hear his application because of other exceptional circumstances. The necessary
    question referenced in
Chhina

was neither
    raised by nor addressed by Mr. Toure, or consequently by the application judge,
    in his
habeas corpus
application. Any such
    arguments raised for the first time on appeal should not be considered.

(ii)

Shifting of the Onus

[28]

The question here is whether the application judges description
    of Mr. Toures onus at the jurisdiction stage as including, whether
removal will occur within a reasonable time had the effect of
    shifting the Ministers onus on to him. In my view, it did not.

[29]

Chaudhary
does not set a maximum length
    of detention; instead, it prescribes a fact-driven analysis in which there is a
    balancing of the statutory reasons for detention and the prospect of removal
    within a reasonably foreseeable timeframe against a detainees rights not to be
    detained arbitrarily or for indefinite periods:
Brown
, at para. 31. Further, this court noted in
Brown
at para. 32:

While the length of the detention is a
    critical factor in that analysis, the question of when it can be reasonably
    anticipated that the removal order will be executed is another important
    consideration. In that sense, it is principally a forward-looking test and not
    one where reasonable decisions are later made to appear as having been
    unreasonable with the benefit of hindsight.

[30]

Thus, in assessing uncertain duration, a
    reviewing body is to have regard for the facts of the case at the time of the application.
    This may involve consideration of whether there is a reasonable prospect that
    removal will be achieved within a reasonable time.

[31]

The application judge considered the relevant
    facts and concluded that Mr. Toures continued detention was not of uncertain
    duration. Rather, looking forward, he found it would be ended within a time
    that is reasonable in all the circumstances. In doing so, he did not improperly
    shift any onus.

Issue 2: Did the
    application judge err in finding that there was a reasonable prospect of
    removal within a reasonable time?

[32]

In deciding that Mr. Toure had not established
    that his detention was of uncertain duration, the application judge considered
    whether there was a reasonable prospect that his removal would be achieved
    within a reasonable time. He concluded that it would and briefly described why at
    para. 43:

[I]n this matter a breakthrough will occur
    as soon as the applicant confirms identifying information and provides truthful
    and accurate information about his history in Gambia, necessary to assist in
    securing his travel document, particularly when interviewed by the Gambian
    authorities, an interview which is pending.

[33]

Mr. Toure submits the application judge
    committed numerous errors in arriving at his ultimate finding. I do not agree.

(a)

Alleged
    Errors of Fact

[34]

It was open to the application judge to conclude
    that a breakthrough would occur with Mr. Toures cooperation. The application
    judge acknowledged Mr. Toures emerging cooperation with the removal process,
    accepted that there were steps Mr. Toure could take to assist the process, and
    concluded that a breakthrough could occur as soon as he did so. Mr. Toures own
    actions and assertions throughout make this more than unfounded speculation.

[35]

Mr. Toure cites
Ali v. Canada
    (Minister of Citizenship and Immigration)
,
2015 FC 1012, [2015] F.C.J.
    No. 1008 and
Canada (Minister of Citizenship and Immigration) v. Li
,
2009 FCA 85, [2010]
    2 F.C.R. 433 to argue that the application judge erred in relying on uncertain future
    events in the removal process. He submits that these uncertainties can be of no
    assistance. These cases are distinguishable on their facts. Further, they make
    clear that in assessing uncertain duration a reviewing body is to have regard
    to the actual facts of the case. In this case, the lack of certainty about the
    Gambian embassy interview, which Mr. Toure points to, is of less importance
    than Mr. Toures cooperation.

[36]

It is important to note that Mr. Toure is not being
    detained because of his failure to cooperate, as he claims. His detention is in
    fact because of concerns, based on his past conduct, of him failing to appear
    for proceedings involving his immigration issues when required to do so. His
    non-cooperation is but one factor - a significant one to be sure - in the
    CBSAs ongoing efforts to remove him from Canada.

[37]

Mr. Toure also complains that the application
    judge did not fairly consider his mental health, that he has no criminal
    charges, and that he is not a danger to the public. He argues that more
    importance was unfairly placed on his varying cooperation with the CBSA. The
    application judge did not err in his consideration of these issues given that he
    was deciding whether Mr. Toures detention was of uncertain duration. Mr.
    Toures complaints about these other factors are not relevant to this issue.

[38]

On a fair review of the record, there is a
    reasonable prospect that Mr. Toures current situation is going to
    change. More specifically, there is a reasonable prospect that some
    development is likely to occur that will provide the necessary documentation
    that would permit Mr. Toure to be removed. It seems clear that Mr. Toures
    detention is not likely to continue for an indeterminate period. His cooperation
    will undoubtedly expedite what needs to follow.

[39]

Finally, the application judge was not required
    to calculate precisely what would constitute a reasonable time. The onus was on
    Mr. Toure to demonstrate that his detention was of an uncertain duration. He
    failed to do so.

(b)

Procedural Fairness Regarding Disclosure

[40]

Contrary to the submissions of Mr. Toure, there
    was no breach of procedural fairness at his
habeas corpus
application regarding disclosure. I reach this conclusion for two
    reasons.

[41]

First, the fact that the application judge noted
    that Mr. Toure had not pursued juridical review or an adjournment regarding the
    Immigration Divisions refusal to grant further disclosure had nothing to do
    with his conclusion on disclosure, such as it was.

[42]

Second, Mr. Toure did not make a motion before
    the application judge for disclosure in his
habeas corpus
application. He had brought a previous unsuccessful motion before a
    different judge, which he did not appeal. Although Mr. Toures counsel did
    reference disclosure in his submissions on his
habeas corpus
application; he did not bring a second motion. Instead, at the
    conclusion of the oral evidence, Mr. Toures counsel handed the application
    judge a list of documents he felt should be disclosed. When asked whether he
    intended to pursue a motion with respect to these documents, counsel stated
    that he would only do so in the event the court concluded that [the Minister]
    may have met their burden in proving the legality of detention.

[43]

On this record, the disclosure issue is far from
    being an example of severe unfairness and a breach of fundamental justice, as
    Mr. Toure submits. There is no merit whatsoever in this submission.

Issue 3 - Did the application judge sanction
    indefinite detention?

[44]

Mr. Toure submits that the justification
    underpinning the application judges decision is that a detainees lack of
    active cooperation with removal proceedings will justify indefinite detention.
    He says that Mr. Toures detention, according to the application judge:

has been and will continue to be lawful for
    however long that he does not cooperate with removal efforts. In other words,
    indefinite detention is a just punishment for non-cooperation with deportation.

[45]

This interpretation of the application judges
    conclusion is a flawed reading of his reasons, in my view. When his reasons are
    read as a whole and fairly considered, they do not endorse indefinite detention
    in the immigration context based on non-cooperation alone. To the contrary,
    they clearly reveal that the application judge properly considered Mr. Toures
    lack of cooperation only as an important factor in his ongoing detention. As
    the Minister notes, it is a well-established principle that unexplained delay
    or lack of diligence should count against the offending party: see
Ali
    v. Canada (Attorney General)
, 2017 ONSC 2660, 137 O.R.
    (3d) 498, at para. 22. This does not convert the lack of cooperation into the
    reason for detention.

[46]

Non-cooperation is clearly a factor that may
    contribute to the length of someones detention. In Mr. Toures case, the
    application judge, while noting that his failure to cooperate in the past with
    the CBSA is a significant factor, also considered all the other facts of the
    case. This included a summary of the CBSA efforts to identify Mr. Toure, the
    failed attempt to remove him to Guinea, and his reason for continued detention,
    namely, he was found to be a flight risk.

[47]

Mr. Toure argues that his detention is contrary
    to international norms against indefinite detention. This submission is
    contrary to the jurisprudence and has not persuaded me that Mr. Toures
    detention runs afoul of Canadas international commitments. Canadas
    immigration detention system operates differently from the regimes in other
    nations, but it remains constitutionally compliant primarily because it
    provides an effective review process that meets the requirements of Canadian
    law:
Brown
, at paras. 37-38. Importantly, the
    constitutionality of the immigration detention scheme was simply not at issue
    below.

[48]

This submission is without merit.

[49]

In the result, I would dismiss the appeal.

II. THE CROSS-APPEAL

Section 12 of the
Charter

[50]

Mr. Toure argued that his detention in a maximum
    security provincial facility for an extended period of time constituted cruel
    and unusual punishment and was contrary to s. 12 of the
Charter
. He did not submit an affidavit or testify on the application
    hearing. His counsel submitted that no personal evidence was required for Mr.
    Toure to meet his low evidentiary burden on the
habeas corpus
application. It appears that this approach was not adjusted to take
    into account the more difficult task faced by Mr. Toure in seeking relief under
    s. 24(1) of the
Charter
for an infringement of
    s. 12.

[51]

Applicants must meet a low threshold at the
    jurisdictional stage of a
habeas corpus
application.
    They must demonstrate that they have been deprived of liberty, and that a
reasonable or probable ground exists for their complaint: see
Chaudhary
, at para. 81.
In other words, an applicant
    need only lead enough evidence to show there is a cause to doubt the legality
    of his detention: see
May v. Ferndale Institution
, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 71. Once this threshold is
    met, the
court can exercise its jurisdiction to hear
    the
habeas corpus
application, and the onus to
    prove the legality of the detention falls on the authorities.

[52]

In contrast, applicants seeking s. 24(1) relief
    for infringement of their s. 12 rights face a high bar: see
Ogiamien
    v. Ontario (Community Safety and Correctional Services)
,
    2017 ONCA 667, 416 D.L.R. (4th) 124 (
Ogiamien #1
), at para. 9. The burden is on the applicant to show, on a balance
    of probabilities, that s. 12 has been infringed: see
R. v. Collins
, [1987] 1 S.C.R. 265, at p. 277. As I discuss below, this requires
    demonstrating that the treatment is such that it would outrage the standards of
    decency, or that Canadians would find it abhorrent.

[53]

The difference in what an applicant must
    demonstrate on a
habeas corpus
application
    versus a s. 12 application seeking s. 24(1) relief is central to the outcome of
    this cross-appeal.

[54]

As I noted earlier, there are two alleged errors
    the Minister claims the application judge made in concluding that the duration
    and conditions of Mr. Toures detention constituted a breach of s. 12 of the
Charter
. The first is his identification and application of the legal test.
    The second is in regards to his findings of fact. I will discuss each of these
    submissions in turn.

(1)

The Test to Assess Cruel and Unusual Treatment

[55]

In conducting his s. 12
Charter
analysis, the application judge first referred to the Supreme
    Courts decision in
Charkaoui v. Canada (Citizenship and
    Immigration)
, 2007 SCC 9, [2007] 1 S.C.R. 350, which held
    that the immigration detention review scheme in the
IRPA
and its regulations does not violate s. 12. This is because, as
Charkaoui
states at para. 123, [
IRPA
]
    permits robust ongoing judicial review of the continued need for and justice of
    the detainee's detention pending deportation. However,
Charkaoui
also cautions that there is the possibility that at a certain
    point  a particular detention constitutes cruel and unusual treatment  and
    therefore infringes the
Charter
.

[56]

The application judge referred to the Supreme
    Courts decision in
Regina v. Smith
,
[1987] 1 S.C.R. 1045
for the
    framework for determining whether a detention constitutes cruel and unusual
    punishment. In particular, he relied on
Smith
at p. 1072 where Lamer J. described cruel and unusual punishment in the
    sentencing context as being grossly disproportionate to appropriate
    punishment and so excessively lengthy as to outrage standards of decency (the
    majority of the court agreed on this point). The application judge added to
    this that gross disproportionality is made out where the length of imprisonment
    is abhorrent or intolerable to society. This is consistent with
R.
    v. Morrissey
, 2000 SCC 39, [2000] 2 S.C.R. 90, at para.
    26, wherein Gonthier J., writing for the majority, equated grossly
    disproportionate punishment with punishment that Canadians would find
    abhorrent or intolerable.

[57]

The Minister and the Intervener argue that the
    application judge did not follow the framework endorsed in
Ogiamien
    #1
, at para. 10: (1) determine what treatment would have
    been appropriate, and (2) measure the actual treatment against this benchmark.
    While the application judge did not refer to or rely on this case in reaching
    his decision, I do not accept that his approach in his analysis amounts to an
    error.

[58]

As it was in
Ogiamien #1
, Mr. Toures case is about treatment and not punishment. In either
    case however, the test to establish a violation of s. 12 is the same. The words
    cruel and unusual colour each other and together express a standard or
    norm. That is, Mr. Toure is not required to establish each separately, and
    cruel and unusual is a high bar to meet:
Ogiamien #1
, at paras. 7-9.

[59]

Ogiamien #1
, in my view,

did
    not set out the specifically referenced two-step process as the only possible
    manner of assessing s. 12 claims. Indeed, the framework followed in
Ogiamien
    #1
was a recognition of the approach revealed in a
    statement in
Smith
, at p. 1072. That is, cruel
    and unusual punishment is grossly disproportionate to what would have been
    appropriate. I am satisfied that the application judge specifically followed
Smith
and the two-step approach implied by this statement.

[60]

I do not believe that
Ogiamien #1
should be read as finding the approach taken by the application
    judge improper or inconsistent with asking whether the treatment is grossly
    disproportionate to the treatment that can be justified and is so excessive as
    to outrage standards of decency.

(2)

The findings and determination of the application
    judge on s. 12

[61]

As expressed in
Ogiamien #1
at para. 54, a determination of whether treatment is cruel and
    unusual requires a focus on the effect of the conduct in question  does it
    give rise to cruel and unusual treatment?

[62]

In essence, the application judge accepted Mr.
    Toures general assertion that his treatment of being detained in the CECC
    rather than in a facility dedicated to immigration detention amounted to cruel
    and unusual treatment. More specifically, he accepted that given Mr. Toures flight
    risk concerns, the CBSA criteria for a lower security placement, and Mr.
    Toures personal circumstances, his detention in a maximum security facility
    in which prisoners are maintained on remand or to serve provincial reformatory
    periods of incarceration of less than two years, as opposed to the IHC, is so
    excessive to be considered abhorrent and intolerable to our society: paras. 75
    and 88. He made several findings to support this conclusion, which I will
    briefly describe below.

[63]

First, the application judge addressed the
    process of detaining an immigration detainee. He noted that the CBSA decides
    whether to direct the detainee to a provincial maximum security facility or a
    location with a lesser degree of security. He seems to accept Mr. Toures submission
    that this process falls short of providing any legal basis for making such a
    decision.

[64]

Second, the application judge noted that in Mr.
    Toures case there has been an ongoing process of review that has considered
    the issue of detention as
Charkaoui

requires.
    However, he also found that the place of his detention has not been considered
    on the reviews; [he] has also no means to challenge his placement in the much
    harsher conditions of provincial jail.

[65]

Third, the application judge noted that Mr. Toure
    has been detained for more than four years at the CECC. He then referred to a
    psychiatric assessment of Mr. Toure conducted on August 14, 2017, which
    revealed that he displayed symptoms of a dissociative state having intruding
    auditory and visual hallucinations.

[66]

Fourth, he noted that Mr. Toure is considered a
    flight risk by the Immigration Division, but that no assessment has been
    undertaken as to whether his imprisonment is the most minimally impairing and
    proportionate disposition to deal with his risk. According to the criteria set
    out in the CBSA National Risk Assessment for Detention Guide, he more qualifies
    for placement in a less secure environment than a provincial detention centre.

[67]

Finally, he concluded at para. 87 that while at
    the CECC Mr. Toure spent almost one and a half years in lockdown. Mr. Toure
    has spent more time in a maximum security facility than someone convicted of a
    serious crime of violence.

[68]

For these reasons, the application judge held,
    at para. 88, that:

The duration and conditions in which Mr. Toure
    has been kept has made his detention both cruel and unusual. The condition and
    duration of his detention is so excessive to be considered abhorrent and
    intolerable to our society. The applicants s. 12 rights have been breached as
    a result.

[69]

The application judge ordered that Mr. Toure be
    removed forthwith from the maximum security provincial facility to the IHC,
    pending future detention reviews and removal. The order does not preclude
    alternate forms of community-based control where considered appropriate and
    necessary to minimize flight risk pending removal.

(3)

Did Mr. Toure Meet the High Threshold to
    Establish a s. 12
Charter
Breach?

[70]

At the outset, it is long established that
Charter
applications should not be made in a factual vacuum. As has been
    repeatedly noted in these reasons, it is Mr. Toures onus to put forward a
    rigorous record to overcome the high threshold required to demonstrate a breach
    of s. 12 of the
Charter
. In my view, the
    evidence in this case falls far short of concluding that Mr. Toure has met this
    high bar of showing his treatment was cruel and unusual. The errors made by the
    application judge are largely linked to the lack of evidentiary foundation.

[71]

First, the application judge erred in finding
    that there is no legal basis for the process by which the CBSA makes decisions
    regarding an immigration detainees placement of detention. The general
    immigration detention policies and procedures were not the subject of the
    underlying application. As the application judge noted,
Charkaoui
found the review scheme in the
IRPA
and its regulations consistent with s. 12 of the
Charter
because it provides for meaningful ongoing review taking into
    account the context and circumstances of an individual case.

[72]

Mr. Toure had a mechanism to challenge his place
    of detention and to raise the conditions of the CECC with the CBSA. The
    jurisprudence supports this as did the Ministers evidence on the application.
    The application judge failed to properly consider this evidence, including that
    Mr. Toure had not asked the CBSA to transfer locations: see
Brown
, at para. 38. The location of detention is a proper issue for
    immigration detainees to raise with the CBSA. Particularly, if the location of
    their detention is not consistent with how they fit within the CBSAs own
    criteria. If this query is ignored, this decision is the proper subject of
    judicial review.

[73]

The evidence supports the decision to place Mr.
    Toure at the CECC, which was a discretionary decision reviewable by the Federal
    Court. While Mr. Toure met several criteria for placement in a lower security
    detention centre, he also met several criteria for placement in a more secure,
    maximum facility. Mr. Toure provided no evidence to the contrary.

[74]

Second, there is no evidence beyond the August
    14, 2017 psychiatric assessment and nothing from Mr. Toure as to how it impacts
    on him or how it assists in establishing his claimed s. 12
Charter
breach. Notably, the only time Mr. Toure has relied on the
    psychiatric assessment referenced by the application judge was at the hearing.

[75]

Finally, while I accept that the application
    judge miscalculated the time Mr. Toure spent in lockdown, I do not necessarily
    agree that this was a palpable and overriding error. However, the application
    judge did err in two material ways regarding the evidence of lockdowns: (i) he
    did not explain how the lockdowns, or any conditions, departed from the
    ordinary conditions of detention in a manner that was grossly disproportionate;
    and (ii) he failed to examine the actual effect of lockdowns on Mr. Toure: see
Ogiamien
    #1
, at paras. 10, 54, 62, 68.

[76]

The only evidence about the conditions of his detention at the CECC
    was the lockdown information. Mr. Toure provided virtually no evidence of how
    those conditions specifically affected him. There was no evidence whatsoever
    about:

1.
the particulars of the CECCs size, categories of inmates, or
    placement options, for example high risk, low risk, or those on remand; and,

2.
the CECCs daily living conditions such as the number of
    inmates in a holding cell, recreation options or socialization.

[77]

The application judges failure to determine how
    the lockdowns or conditions at the CECC rose to a level that was abhorrent or
    intolerable or so excessive as to outrage the standards of decency are fatal
    errors in Mr. Toures case.

[78]

Before concluding, I would make a final comment
    about the problems inherent in hearing
Charter
claims together with
habeas corpus
applications. As this court observed in
Brown
,
    at para. 20:

Because of the importance of the interests at stake,
habeas

corpus
is intended to be a
    manner of quickly resolving the issue of the lawfulness of a persons
    deprivation of liberty:
May v. Ferndale Institution
, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 69. Courts are to give
    priority to such applications as they are deemed to be urgent.

[79]

Habeas corpus
applications are intended
    to be quick and impose a low threshold on the applicant. The onus largely falls
    on the authorities to justify the legality of the detention at issue. This
    stands in stark contrast to
Charter
s. 12

applications in which the applicant
    must create an evidentiary foundation sufficient to meet the high bar required
    by such proceedings. The difference in thresholds to be met by the applicant
    makes it difficult to hear both
habeas corpus
and
Charter
claims together in an expeditious
    manner while also providing the necessary evidentiary foundation.

[80]

In Mr. Toures case, the application judges
    decision is internally inconsistent in that he found the detention to be lawful
    and that it ought to continue. However, he then relied on the duration of the
    detention to find a s. 12
Charter
breach. The
    urgency of the
habeas corpus
application was
    impacted by such an approach as was the approach to meeting the high bar
    imposed by s. 12.

DISPOSITION

[81]

For all the foregoing reasons, I would dismiss
    the appeal and grant the cross-appeal.

Released: DD AUG 13 2018

H.S. LaForme J.A.

I agree. Doherty J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Omoruyi, 2018 ONCA 722

DATE: 20180831

DOCKET: C64700

Watt, Huscroft and Fairburn JJ.A.

IN THE MATTER OF an appeal of a
    committal order pursuant to s. 49 of the
Extradition Act
, S.C. 1999,
    c. 18

AND IN THE MATTER OF an
    application for judicial review pursuant to s. 57 of the
Extradition Act
,
    S.C. 1999, c. 18

BETWEEN

Attorney General
    of Canada On Behalf Of

the United States
    of America

Respondent

and

Osayi Edison Omoruyi

Appellant

Raymond Boggs, for the appellant

Adrienne Rice, for the respondent

Heard and released orally: August 24, 2018

On appeal from the committal order of Justice Edward M.
    Morgan of the Superior Court of Justice, dated March 17, 2017, and on
    application for judicial review of the surrender order of the Minister of
    Justice, dated November 13, 2017.

REASONS FOR DECISION

[1]

The appellant appeals the order of a judge of the Superior Court of
    Justice committing him for surrender to the United States of America for
    prosecution on charges of conspiracy to commit wire fraud and mail fraud, and
    possession and transmission of counterfeit money orders. The domestic
    equivalent offence is possession of property obtained by crime. About eight
    months later, the Minister of Justice ordered the appellants surrender on the
    offences for which his extradition is sought.

[2]

The materials before the hearing judge consisted of the Record of the Case;
    a Supplemental Record of the Case; and an Agreed Statement of Fact. The
    evidence summarized in the materials filed on the committal hearing was largely
    circumstantial. It described a web of connections between a person alleged to
    be the appellant, various accomplices and the origin and destination of the
    funds generated by the scheme, an amount approaching $500,000 U.S. dollars.

[3]

As we understand the submissions advanced on behalf of the appellant, he
    says that the evidence adduced at the committal hearing fails to meet the
    standard of proof required in connection with two essential elements of the
    domestic equivalent offence of possession of property obtained by crime:

i.

that the appellant was a participant in the scheme (the identification
    issue); and

ii.

that the appellant knew of the criminal origins of the funds received
    (the knowledge issue).

[4]

We disagree.

The Identification Issue

[5]

On the identification issue, there was evidence that the recipient of
    the wired transfers in Nigeria was a person with the same name and same date of
    birth as the person who appeared before the hearing judge in the courtroom.
    Under s. 37(a) of the
Extradition Act,
SC 1999, c 18
, the fact that the name of the person before
    the court is
similar
to the name that is in the documents submitted by
    the extradition partner, and we would add, to the name of the person who
    retrieved proceeds of the fraud, is sufficient to satisfy the evidentiary threshold
    for identity.

[6]

In this case, the evidence goes beyond mere similarity of names. The names
    are accompanied by dates of birth. Both the names and the dates of birth are not
    merely similar: they are identical. The hearing judge was also entitled, under
    s. 37(b) of the
Extradition Act
, to consider, if he wished, the
    similarities between the physical characteristics of the person who appeared
    before him and the person depicted in the photographs included in the record of
    the case on the identification issue.

[7]

The hearing judge was entitled, indeed required, to consider the
    circumstantial evidence of identification as a whole to determine whether,
    considered in that way, it met the standard of proof required. He did so. He
    made no error in the standard he applied or in the conclusion he reached.

The Knowledge Issue

[8]

Turning to the issue of knowledge, we are equally satisfied that the
    hearing judge did not err in concluding that there was evidence upon which a
    reasonable jury, properly instructed, could find this element of the domestic
    equivalent offence proven beyond a reasonable doubt.

[9]

Considered in its totality, the evidence summarized in the material
    before the hearing judge would permit a reasonable jury, properly instructed,
    to conclude among other things, that:

i.

the funds Patricia Beavers received were obtained by fraud;

ii.

the subsequent transfers from Beavers to the appellant were proceeds of
    the fraud, some of which were retained by Beavers;

iii.

the appellant received direct transfers from one of the victims on the basis
    of false representations; and

iv.

the appellant and another recipient of funds, whom Beavers expressly
    identified as a participant in the fraud, retrieved their transfers from the
    same financial institution in Nigeria.

These inferences, available
    from the evidence summarized in the materials before the hearing judge, met the
    threshold requirement on what we have termed the knowledge issue.

[10]

The
    appeal from the decision of the hearing judge is dismissed.

[11]

The
    appellant has abandoned his application to review the decision of the Minister
    of Justice. That application is dismissed as abandoned.

David Watt J.A.

Grant Huscroft J.A.

Fairburn J.A.


COUR DAPPEL DE LONTARIO

RÉFÉRENCE: Bisumbule c. Conway, 2018 ONCA
    765

DATE: 20180919

DOSSIER: C64468

Les juges Rouleau, Pardu et
    Benotto

ENTRE

Octavie Tshiani Bisumbule

Appelant

et

Edward C. Conway

Intimé

Octavie Tshiani Bisumbule, pour
    lui-même

Edward C. Conway, pour lui-même

Date de laudience : le
    12 septembre 2018

Décision rendue séance
    tenante.

En appel de lordonnance de la juge M.
    OBonsawin de la Cour supérieure de justice, en date du 13 septembre 2017.

MOTIFS DE LA COUR

[1]

Lappelant interjette appel du jugement sommaire
    rejetant sa poursuite pour négligence. La juge de première instance a déterminé
    quil navait pas intenté sa poursuite pendant le délai de prescription prévu par
    la loi. Lappelant maintient que la juge a commis une erreur manifeste et
    dominante en acceptant la preuve de lintimé selon laquelle il avait avisé
    lappelant de lexistence de loffre de règlement et que lappelant avait
    autorisé le refus de cette offre. Lappelant souligne que les échanges de
    courriels et laffidavit auxquels la juge de première instance sest fiée pour
    conclure quil avait bel et bien connaissance de loffre ne mentionnent pas
    spécifiquement quune offre avait été faite et refusée.

[2]

Nous ne donnons pas raison à lappelant. Les
    échanges de courriels et laffidavit contiennent suffisamment de détails
    concernant la position de lappelant et le contenu de loffre de règlement proposée
    par la Société daide à lenfance pour étayer la conclusion de la juge.
    Spécifiquement, elle a conclu que lappelant avait connaissance de loffre et
    quil lavait rejetée.

[3]

Nous ne décelons aucune erreur de la part de la
    juge dans ses motifs et dans sa conclusion. Ainsi, sa conclusion était
    amplement justifiée compte tenu des circonstances.

[4]

En ce qui a trait à lappel des dépens, nous
    sommes davis que le montant accordé, dans les circonstances, était
    raisonnable. Il ny a donc aucune raison dintervenir.

[5]

Pour ces motifs, lappel est rejeté. Nous
    accordons des dépens de 15 000 $ à lintimé, somme qui comprend les
    débours et les taxes.

« Paul
    Rouleau j.c.a. »

« G.
    Pardu j.c.a. »

« M.L.
    Benotto j.c.a. »


COURT OF APPEAL FOR ONTARIO

CITATION: Capelet v. Brookfield Homes (Ontario) Limited, 2018
    ONCA 742

DATE: 20180911

DOCKET: C64799

Sharpe, van Rensburg and Brown JJ.A.

BETWEEN

Albert Capelet
, Luisa Capelet, Chiara Maria Capelet,

by her litigation guardian Luisa Capelet

and Stefan Antonio Capelet by his litigation guardian Luisa
    Capelet

Plaintiffs (
Appellant
)

and

Brookfield Homes (Ontario) Limited

Defendant (Respondent)

Jasdeep S. Bal and Daniel Perlin, for the appellant

Gabrielle K. Kramer and Andrew Baker, for the respondent

Heard: September 7, 2018

On appeal from the
    judgment of Justice Patrick J. Monahan of the Superior Court of Justice, dated December
    8, 2017, with reasons reported at 2017 ONSC 7283.

REASONS FOR DECISION

[1]

This is an appeal of a summary dismissal of a
    claim for damages.

[2]

The appellant purchased a home designed and
    constructed by the respondent in 1997. He discovered mould in the home in
    February 2002, which was caused by water leakage as a result of faulty
    construction. The mould was promptly remedied by the builder and shortly
    thereafter, the house was sold with no loss in value. The appellant started an
    action that was limited to claims for damages for his psychological and
    emotional injuries, physical illness, and for certain out-of-pocket expenses.
[1]

[3]

The motion judge dismissed the action. The sole issue
    on appeal is whether he erred in dismissing the claims for psychological and
    emotional injuries on the basis that they were too remote, and if so, whether
    the appellant is entitled to a trial on these claims.

[4]

The motion judge assumed for the purpose of the
    motion that the appellant had suffered considerable mental distress flowing
    from the discovery of mould at the property (at para. 25) and that his current
    emotional and psychiatric problems could be attributed in fact in whole or in
    part to the exposure to and discovery of the mould (at para. 28). The motion
    judge concluded, however, that the appellants claims for emotional or
    psychiatric injury were not a reasonably foreseeable consequence of faulty home
    construction by the respondent and were therefore not recoverable as a matter
    of law (at para. 32).

[5]

In coming to that conclusion, the motion judge
    applied the test from the Supreme Court of Canadas decision in
Mustapha
    v. Culligan of Canada Ltd.
, 2008 SCC 27, [2008] 2 S.C.R.
    114, that in cases where mental injury is claimed, it must be shown that a
    person of ordinary fortitude would suffer some type of mental injury in similar
    circumstances. The motion judge framed the issue as whether a person of
    ordinary fortitude would have reacted in the way the appellant did to the
    discovery of mould. The motion judge concluded that there was no evidence in
    the record supporting such a finding and considerable evidence supporting the
    opposite conclusion (at para. 25).

[6]

The motion judge referred in his analysis to the
    agreement of purchase and sale between the appellant and the respondent (the
    APS) and the contractual term limiting the purchasers right to recover for
    damage, loss or injury of any sort to the specific warranty provided under
    the Ontario New Home Warranty statutory regime. He concluded that it was not
    within the contemplation of the parties at the time they entered into the APS
    that the appellant would have a right to claim for emotional or psychiatric
    losses resulting from defects in construction of the home (at para. 30).

[7]

The appellant raises two grounds of appeal.

[8]

First, the appellant asserts that the motion
    judge ignored or rejected evidence that he was a person of ordinary fortitude,
    which was relevant to the determination of whether such injuries would be
    reasonably foreseeable. He says that, instead, the motion judge pointed to the
    absence of evidence from his expert Dr. Waisman on the specific issue, and that
    he wrongly characterized Dr. Waismans evidence as subjective.

[9]

Second, the appellant contends that the motion
    judge erred in concluding that his loss was not a foreseeable consequence of
    faulty home construction by referring to the limited warranty and exclusion
    language in the APS. He also relied on
Turczinski v. Dupont Heating
    & Air Conditioning Ltd.
(2004), 246 D.L.R. (4th) 95 (Ont.
    C.A.), leave to appeal refused, [2004] S.C.C.A. No. 581, which was a case
    involving the new home warranty system and a claim for breach of contract.

[10]

We do not give effect to either of these grounds
    of appeal.

[11]

The issue before the motion judge was whether
    the appellants damages were reasonably foreseeable or too remote. Since this
    was a claim for damages for psychological and emotional harm, the question
    confronting the judge was whether it was reasonably foreseeable that a person
    of ordinary fortitude would have suffered a serious injury of that type. The
    appellant had the onus of proof.

[12]

The appellant points to evidence of Dr. Waisman
    in cross-examination that he says the motion judge overlooked. At its highest
    this evidence confirms Dr. Waismans view that the appellant was functioning as
    a reasonably well-adjusted individual before the situation with the mould
    occurred. There was also evidence from Dr. Waisman, referred to by the motion
    judge, that there were certain pre-existing tendencies or behaviours that
    likely contributed to the difficulties the appellant experienced.

[13]

The motion judge considered all of the evidence
    and concluded that the appellant had not met his burden of proof. The issue was
    not whether the appellant himself was a person of ordinary fortitude, although
    this was relevant to the courts determination. On the evidence, the motion
    judge concluded, at para. 25, that the appellants reaction to the mould was
    highly unusual and the product of particular sensitivities on his part. In
    other words, the motion judge concluded that the reaction of the appellant to
    the presence of mould was not that of a person of ordinary fortitude. This
    conclusion was open to him on the evidence, which included the opinions of Dr.
    Waisman and the respondents forensic psychiatrist, Dr. Bloom.

[14]

As for the appellants second ground of appeal,
    again we see no error. In determining whether serious psychiatric or emotional
    injury would have been foreseeable to the respondent, the court had to consider
    the circumstances in which the negligence arose. It was relevant to refer to
    the APS and what the parties would have anticipated at the time the contract
    was entered into. Although this would have been determinative in a contract
    claim, there is no indication that the motion judge treated this part of his
    analysis as determinative of the negligence claim or the issue of remoteness of
    damages.

[15]

The motion judges decision does not rest on the
    proposition that all claims for damages for psychiatric and emotional injury from
    negligent home construction are foreclosed. His conclusion that the appellants
    damages were too remote was based on his considered analysis of the specific
    evidence that was before him on the motion and the conduct of the parties.

[16]

The appeal is therefore dismissed. Costs to the
    respondent are fixed at $15,000, inclusive of taxes and disbursements.

Robert J. Sharpe
    J.A.

K.
    van Rensburg J.A.

David
    Brown J.A.

[1]

As noted by the motion judge, after the claims of the other
    plaintiffs in the action were settled the appellant was the sole remaining
    plaintiff.


COURT OF APPEAL FOR ONTARIO

CITATION: Carrick (Re), 2018 ONCA 752

DATE: 20180917

DOCKET: C64982

MacPherson, Huscroft and Nordheimer JJ.A.

IN THE MATTER OF:  Quentin Carrick

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Rebecca Schwartz, for the respondent Attorney General of
    Ontario

Julie A. Zamprogna Ballès, for
    the respondent
Southwest Centre for Forensic Mental Health
    Care, St.

Josephs Health Care London

Heard: September 7, 2018

On appeal from the disposition of the Ontario Review
    Board, dated January 31, 2018.

Huscroft J.A.:

OVERVIEW

[1]

This
    is an appeal from the disposition of the Ontario Review Board (the Board),
    dated January 31, 2018. The Board found that Mr. Carrick (the appellant)
    continues to pose a significant threat to public safety and imposed a detention
    order that included a term permitting him to live in the community. Since the
    Boards order was made, the appellant has been living in the community for
    several months and is employed on a full-time basis.

[2]

The
    appellant argues that he does not pose a significant threat to the safety of
    the public and seeks an absolute discharge. In the alternative, the appellant
    seeks a conditional discharge.

[3]

I
    have concluded that the Boards decision that the appellant constitutes a
    significant threat is unreasonable. Accordingly, I would allow the appeal and
    order an absolute discharge.

BACKGROUND

[4]

The
    appellant is a 41-year-old man whose criminal record includes break and enter,
    theft, possession of property obtained by crime, dangerous driving, and
    assault. His last violent offence was robbery with violence in 2003  that is,
    several years before the index offence, which occurred in 2007. The index
    offence involved break and enter into a dwelling house, possession of property
    obtained by crime under $5,000, attempted theft over $5,000, and break and
    enter with intent.

[5]

The
    appellant has been detained by the Board since 2007. Dr. Ajay Prakash has been
    his most recent attending physician. Dr. Prakashs diagnosis of the appellant
    includes Substance Use Disorder, Psychosis NOS in remission, and Personality Disorder
    (Cluster B). The appellant is not presently receiving medication other than
    Seroquel, a sleeping aid.

THE EVIDENCE

(1)

The hospital report

[6]

The
    hospital report noted very slow but generally positive progress. Although the
    appellant suffered a relapse in September 2017 and was readmitted to hospital,
    the hospital noted his continued growth in terms of accepting responsibility
    for relapsing. The appellant attended Alcoholics Anonymous and earned 4 and
    6-month abstinence chips. He was subject to regular drug screening and tested
    positive on several occasions for benzodiazepines. However, Dr. Prakash, whose
    evidence is discussed below, testified that these screening results were due to
    medications received at the hospital, rather than illegal use. The appellant
    obtained full-time employment and has enjoyed mental stability with no signs or
    symptoms of psychosis.

[7]

The
    hospital report noted, further, that the appellant has insight into his
    addictions and a better understanding of the negative impact of substance use
    on his mental health. He has insight into his need for and the benefit of
    medication and is medication adherent. However, the appellants external supports
    are largely limited to those available as incidents of the hospitals
    relationship with him pursuant to the Boards order. If the appellants
    relationship with the hospital were terminated, he would no longer have a
    psychiatrist, a family doctor, or stable housing.

[8]

The
    treatment team concluded that the appellant continues to pose a significant
    threat of serious physical or psychological harm to the public based on the
    following evidence, which I quote from the hospital report:

1.

Mr. Carricks violence risk largely flows from his substance use
    disorder. Although he has made tremendous gains with his addiction recovery, he
    continues to relapse.

2.

Mr. Carricks relapses have led to criminal charges, violent behaviour
    and behavioural and emotional instability.

3.

Mr. Carricks ability to cope effectively with triggers of his addiction
    e.g. boredom, stress, loneliness, finances etc. remains limited, albeit
    improved from previous years.

4.

Mr. Carricks HCR assessment indicates a high risk to violently re-offend
    in anything less than a Detention disposition. Previous HCR assessments have
    indicated that [
sic
] same. Mr. Carrick is not being considered for an
    alternative disposition at this time. Without the structure of a disposition he
    remains at risk for disengagement and relapse of his substance use.  The
    clinical team continues to require the ability to approve Mr. Carricks
    accommodation and have the ability to return him to hospital quickly and
    safely; the strength of the Warrant is required.

(2)

The attending physicians evidence

[9]

Dr.
    Prakash testified before the Board and adopted the contents of the hospital report.
    He identified substance abuse as the appellants primary diagnosis. Dr. Prakash
    said the appellant has good insight into the index offence, his addiction and his
    need for treatment, as well as the impact of substance use on his health and
    risk level. Dr. Prakash agreed that the appellant is genuine in his attempt to
    avoid drugs and his desire to be free from addiction.

[10]

Dr. Prakash described
    the appellant as doing very well from the time of the index offence until now
    and showing general improvement overall. The rate of relapses has diminished,
    along with the severity of those relapses. Dr. Prakash added, however, that it
    was likely that the appellant would continue to use substances and that this
    use would lead to violent recidivism. He said that the appellant had engaged in
    criminal behaviour while under a detention order and that this behaviour had led
    to serious physical or psychological harm to members of the public. He cited as
    examples the appellant having supplied illicit substances to a vulnerable peer;
    his theft of a co-residents credit card; and his attempt to sell drugs to
    vulnerable peers at a group home.

[11]

Dr. Prakash reiterated
    that the appellant is doing quite well and has made large strides; he is
    progressing in the community and has a full-time job that he values. However, Dr.
    Prakash determined that the appellant is a moderate to high risk based on his
    most recent HCR-20 v3 test. In Dr. Prakashs view, the hospital requires a
    warrant of committal to mitigate the risk of violence because the
Mental
    Health Act
would not permit the appellant to be returned to the hospital
    as expeditiously as necessary in the event of a sudden relapse. Dr. Prakash
    testified that a longer history of improvement would be required before it
    would be sufficient for the appellant to agree to return to hospital as a
    condition of discharge.

[12]

Dr. Prakash said that
    his opinion as to the risk of the appellant acting out violently was informed
    by the examples he provided, along with the results of the HCR-20 v3 test and
    the opinion of the treatment team. He noted that the risk existed despite the
    absence of a violent episode since 2003. Dr. Prakash testified that the absence
    of violence was largely a result of intensive interventions by the forensic
    team, extensive supervision and external controls. If not for those controls
    and that level of supervision, Mr. Carrick would likely return to a state
    similar to the index offence and previous to that. Dr. Prakash rejected the
    suggestion that this was speculative, describing it as a clinical opinion
    based on expertise and with the test being on the balance.

THE BOARDS DECISION

[13]

The Boards analysis
    and conclusion are brief. I set them out in full:

The Board has considered the evidence of Dr. Prakash and the
    submission of the parties. The Board acknowledges Mr. Carrick has made
    significant gains during this reporting period, all of which have been
    articulated above. He has had a recent relapse which caused his return to
    hospital on a warrant. Mr. Carrick has made a significant effort to deal with
    his addiction and to remain sober. He has employment, lives independently and
    participates in programs. He nevertheless poses a significant risk of physical
    and psychological harm to safety of the public.

[14]

The Board went on to
    consider and reject the option of a conditional discharge:

The Board does acknowledge he has insight into his addiction
    and the medication necessary to assist him with his issues. He nevertheless
    still relapses and thus remains a risk. The Board unanimously agrees that he
    poses a risk that cannot be managed on a conditional discharge. It is necessary
    that the hospital have the ability to return him quickly to hospital if this is
    necessary, which can only be accomplished through a detention order
    disposition. The Board finds Mr. Carrick has not been cooperative to return to
    hospital voluntarily in the past. The board particularly notes that since 2014
    warrants have been used on four separate occasions. Further, the board
    acknowledges that while Mr. Carrick has made gains, he does relapse. The Board
    specifically finds Mr. Carrick has insight to his issues, but the addiction
    issue is chronic, resulting in relapses.

Thus, the Board is of the view that the Disposition as
    requested by the hospital is the most necessary and appropriate disposition
    having considered the need to protect the public and considering the needs of
    Mr. Carrick.

DISCUSSION

(1)

The Law

[15]

The Boards
    responsibility is governed by s. 672.54 of the
Criminal Code
, which
    provides:

When a court or Review Board makes a disposition...it shall,
    taking into account the safety of the public, which is the paramount
    consideration, the mental condition of the accused, the reintegration of the
    accused into society and the other needs of the accused, make one of the
    following dispositions that is necessary and appropriate in the circumstances:

(a)     where a verdict of not
    criminally responsible on account of mental disorder has been rendered in
    respect of the accused and, in the opinion of the court or Review Board, the
    accused is not a significant threat to the safety of the public, by order,
    direct that the accused be discharged absolutely...

[16]

I pause to emphasize
    the non-discretionary nature of the Boards responsibility. If the Board
    concludes that an NCR accused is not a significant threat to the safety of the
    public, it is required to discharge him or her absolutely. Put another way, an
    accused who does not pose a significant threat to the safety of the public is
    entitled to an absolute discharge.

(2)

Determining risk

[17]

How is the existence
    and nature of a threat to be determined? The law has been settled since the
    1999 decision of the Supreme Court of Canada in
Winko v. British Columbia
    (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625. Writing for the
    court, McLachlin J. stated at para. 57:

To engage these provisions of the
    Criminal Code, the threat posed must be more than speculative in nature; it
    must be supported by evidence. The threat must also be "significant",
    both in the sense that there must be a real risk of physical or psychological
    harm occurring to individuals in the community and in the sense that this
    potential harm must be serious. A minuscule risk of a grave harm will not
    suffice. Similarly, a high risk of trivial harm will not meet the threshold.
    Finally, the conduct or activity creating the harm must be criminal in nature.
    In short, Part XX.1 can only maintain its authority over an NCR accused where
    the court or Review Board concludes that the individual poses a significant
    risk of committing a serious criminal offence. If that finding of significant
    risk cannot be made, there is no power in Part XX.1 to maintain restraints on
    the NCR accused's liberty. [Citations omitted.]

[18]

McLachlin J.
    emphasized at para. 54 that an NCR accused bears no burden in Board or court
    proceedings:

The legal and evidentiary burden of establishing that the NCR
    accused poses a significant threat to public safety and thereby justifying a
    restrictive disposition always remains with the court or Review Board. If
    the court or Review Board is uncertain, Part XX.1 provides for resolution by
    way of default in favour of the liberty of the individual.

[19]

In a series of cases,
    this court has provided significant guidance on the question of risk. The
    following propositions are well established:

The burden on the Board is onerous;
the Board
    must be satisfied as to both the existence and gravity of the risk of physical
    or psychological harm posed by the appellant
:
Re
Carrick
,
    2015 ONCA 866, 128 O.R. (3d) 209, at para. 17;

Ongoing mental health issues are relevant considerations for
    the Board, but they are not determinative of risk:
R. v.
Ferguson
, 2010 ONCA 810, 271 O.A.C. 104, at paras. 1-3
;
Re Wall
, 2017 ONCA 713, 417 D.L.R. (4th) 124, at paras. 25, 29;

Although future risk is necessarily uncertain, mere speculation
    is an inadequate basis for establishing risk;
Carrick

(2015),
    at para. 17;

Diagnostic tests such as the
    HCR-20 v3 are relevant to but not determinative of risk. The results of these
    tests are relevant to the risk of reoffending, but not the seriousness or
    magnitude of that offending:
Re
Krivicic
, 2018 ONCA 535,
362 C.C.C. (3d) 490, at
    para. 60;

Absolute
    discharge may not and need not be in the best interests of an NCR accused:
Ferguson
,

at para. 45;
Wall
,
    at para. 30.

[20]

Finally, it is important to bear in mind that an NCR accused who
    does not constitute a significant threat to public safety is
entitled
to be
    discharged absolutely. Cursory consideration of the question of risk will not
    do where an individuals entitlement to liberty is at stake. The Boards
    reasons must clearly establish both the risk of harm  physical or
    psychological  and the serious criminal nature of that harm if its conclusion
    that an NCR accused constitutes a significant threat to public safety is to be
    upheld on the basis that it is reasonable.

(3)

The unreasonableness of the Boards decision

[21]

In my view, the
    Boards decision is unreasonable both because of what it says and what it fails
    to say. The Boards analysis on the question of significant risk is set out in
    this brief passage:

The Board has considered the evidence of Dr. Prakash and the
    submission of the parties. The Board acknowledges Mr. Carrick has made
    significant gains during this reporting period, all of which have been
    articulated above. He has had a recent relapse which caused his return to
    hospital on a warrant. Mr. Carrick has made a significant effort to deal with
    his addiction and to remain sober. He has employment, lives independently and
    participates in programs.

[22]

For the most part,
    these remarks are positive in nature. The only negative point is reference to a
    recent relapse that caused his return to hospital. Nothing in this passage is
    relevant to the question of risk. Yet the passage concludes with an assertion
    of risk of both physical and psychological harm:

He nevertheless poses a
    significant risk of physical and psychological harm to safety of the public.

[23]

No evidence of
    physical violence is cited, nor could there be. The appellant has not been
    violent since 2003  prior to the index offence in 2007, which did not involve
    violence. What, then, is the basis for concluding there is any risk, let alone a
significant
risk of physical
and
psychological harm?

[24]

Dr. Prakash acknowledged
    that the appellant has not been violent since 2003, but described this as
    largely the result of management and supervision. The difficulty with this
    evidence is that it is based on a counterfactual; we cannot know what would
    have happened in the absence of the management and supervision that was
    provided to the appellant.

[25]

In any event, Dr. Prakash's evidence does not address the legal requirement that the risk of violence be significant – not only criminal but serious in nature:
Re Medcof
, 2018 ONCA 299, at para. 26. The HCR-20 v3 test, on which Dr. Prakash appears to have relied for his opinion, addresses the likelihood of risk from a psychiatric perspective. It is not conclusive of threat for the purposes of s. 672.54, because the seriousness or magnitude of the apprehended criminal offence must also be considered, and Dr. Prakash does not do so:
Krivicic
, at para. 60. He simply expresses the opinion that the appellant's use of substances "would lead to violent recidivism.

[26]

The Boards conclusion concerning the risk of psychological harm is
    no less problematic. As
this court noted in the
    appellants 2015 appeal, the argument that the commission of non-violent
    offences would cause psychological harm has the potential to result in detention
    for an indefinite period.  It is an argument that must be rejected.

[27]

In this case, there is no evidence of psychological harm in any
    event. At the hearing of the appeal, Crown counsel fairly conceded that the
    appellants theft of a credit card and computer several years ago are insufficient
    to support a finding of a risk of psychological harm. She added only that it
    was quite possible that the appellants action in kicking in a door to steal
    the computer in 2011 could have caused psychological harm.

[28]

The most serious incident that appears to have been relied upon as
    support for the detention order occurred in 2016, when the appellant brought
    methamphetamine into the hospital. Dr. Prakash was asked whether the appellant
    selling/providing drugs to co-patients gave rise to a risk of harm, and he
    answered that it gave rise to a serious risk of psychological harm because it
    set back their mental health. But
this question was
    premised on a misstatement of what occurred. Although the appellant did bring
    drugs into the hospital in 2016, the Board did not find that he gave or sold
    the drugs to anyone else in the hospital.

[29]

In summary, there is no
    evidentiary basis to support the Boards conclusion that the appellant poses a
    significant risk of physical and psychological harm to public safety. The Boards
    decision to the contrary is essentially speculative.

[30]

Crown counsel candidly
    conceded that this case was not overwhelming. I agree.

[31]

The appellant has
    substance addictions. There is a real risk that he will relapse, and if he does
    so there is a real risk that he will commit criminal offences in order to feed
    his addictions. He has been progressing well under hospital supervision, and the
    continued supervision a detention order affords may well be in his best
    interests. But the question is not what is best for him; the question is what the
    law requires.

[32]

The law is clear that NCR
    accused can be detained only so long as they constitute a significant threat to
    public safety. They are entitled to be released, unconditionally, if they do
    not. There is no proviso to this; NCR accused cannot be detained because it is
    best for them, or because there is a risk that they may commit crimes. The
    Board can detain an NCR accused only if it reasonably concludes that he or she
    poses a significant threat to public safety. The Supreme Court emphasized in
Winko
that this means a real risk of serious physical or psychological harm to
    individuals in the community  a serious criminal offence.

[33]

The appellant has been
    detained for over a decade. He has not been violent since 2003, and is
    presently living and working in the community. He has not been cured of his addictions,
    but he may never be. That reality does not alter my conclusion that the Boards
    decision that he poses a significant threat to public safety is unreasonable
    and cannot stand.
[1]

[34]

I reiterate what I
    said earlier. The jurisdiction of the Board is non-discretionary. Unless the
    Board can reasonably conclude  in accordance with the approach mandated by
Winko
and the decisions of this court  that an NCR accused poses a significant threat
    to public safety, it must grant an absolute discharge. This narrow jurisdiction
    must be at the forefront of the Boards consideration of these reviews.

Conclusion

[35]

I would allow the
    appeal, set aside the decision of the Board, and order an absolute discharge
    pursuant to s. 672.78(3)(a).

Released: September 17, 2018

Grant Huscroft J.A.

I agree.  J.C. MacPherson J.A.

I agree. I.V.B. Nordheimer J.A.

[1]
In light of my conclusion, it is unnecessary to
    consider the appellants alternative argument, that he be granted a conditional
    discharge. However, for the benefit of future appeals, I would note that if a
    conditional discharge is sought, counsel should provide a list of conditions proposed
    for inclusion in the courts order. It would be most helpful to the court if
    that list were vetted with Crown counsel and counsel for the hospital prior to
    the hearing of the appeal, similar to the current practice when bail is sought
    pending appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: Chavdarova v. The Staffing Exchange Inc., 2018 ONCA
    744

DATE: 20180911

DOCKET: C65403

Rouleau, Pardu and Benotto JJ.A.

BETWEEN

Lyudmila Chavdarova (a.k.a.) Mila Chavdarova

Appellant/Plaintiff

and

The Staffing Exchange Inc., (a.k.a.) TSE Canada
    Inc.

Respondent/Defendant

Lyudmila Chavdarova, self-represented

M. Polvere, for the respondent

Heard: September 10, 2018

On appeal from the judgment of Justice Douglas K. Gray of
    the Superior Court of Justice, dated May 9, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The order appealed from is for an amount less than $50,000. Such an appeal
    lies to the Divisional Court pursuant to s. 19(1)(a) of the
Courts of
    Justice Act
. It is the amount awarded and not the amount that was claimed
    that determines jurisdiction: see
McGrath v. Woodrow
(2001), 52 OR
    (3d) 732 (C.A.) para. 16. As a result, the appeal is quashed. Costs to the
    respondent fixed in the amount of $2,500 inclusive of disbursements and
    applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Chiocchio v. Hamilton (City), 2018 ONCA 762

DATE: 20180919

DOCKET: C63174

Simmons, Huscroft and Miller JJ.A.

BETWEEN

Michael
    Chiocchio Sr. and Michael Chiocchio Jr. by his

Litigation Guardian
    Michael Chiocchio Sr.

Plaintiffs (Respondents)

and

Richard
    Ellis, Wendy Ellis and

The
    Corporation of the City of Hamilton

Defendants (
Appellant
)

Christopher I.R. Morrison and Joel Cormier, for the respondents

David Zuber and James Tausendfreund, for the appellant

Heard: June 18, 2018

On appeal from the judgment of Justice Antonio Skarica of
    the Superior Court of Justice, dated December 7, 2016, with reasons reported at
    2016 ONSC 7570, 4 M.V.R. 7th 55.

REASONS FOR DECISION

A.

introduction

[1]

Michael Chiocchio Sr. was rendered a quadriplegic following a motor
    vehicle accident that occurred on April 29, 2006, at the intersection of Brock
    Road and the 5th Concession West in a rural area of the City of Hamilton (the
    City).

[2]

The accident occurred when a westbound Buick sedan driven by Richard
    Ellis accelerated away from a stop sign on the 5th Concession West and T-boned
    the minivan northbound on Brock Road in which Mr. Chiocchio was a passenger. At
    the time of the accident, Mr. Ellis and his 10-year-old son (a backseat
    passenger in the car) were heading across Brock Road to the Flamborough
    Speedway, which was a short distance away on the 5th Concession West. Following
    the impact, the minivan rolled over and struck a pole.

[3]

Brock Road and the 5th Concession West are both two-lane roads. There
    was no stop sign governing the flow of northbound and southbound traffic on
    Brock Road. The posted speed limit on Brock Road was 80 kmph.

[4]

It is undisputed that the stop sign governing the flow of westbound
    traffic at the intersection was between 8.4 and 9.4
[1]
metres behind a faded stop line, painted in 2004, which in turn was between
    1.936 and 2.936 metres behind the easterly entrance to the intersection. (Put
    another way, the stop sign was between 10.336 and 12.336 metres from the east edge
    of Brock Road).

[5]

Counsel conceded that Mr. Ellis, the driver of the westbound vehicle,
    was negligent in entering the intersection when it was unsafe to do so.
    Although at trial Mr. Ellis claimed he stopped at a stop line, he could not
    recall where it was located and he made statements at the time of the accident
    that he stopped at the stop sign. The trial judge found that Mr. Ellis stopped
    at the stop sign, but then accelerated into the intersection without seeing the
    northbound vehicle, thus causing the collision. Mr. Ellis had no explanation
    for why he did not see the northbound vehicle.

[6]

Relying in part on expert testimony from Jason Young, a forensic
    engineer, the trial judge also found the Corporation of the City of Hamilton
    breached its duty to keep the roadway in a reasonable state of repair by
    failing to repaint a faded stop line that was no longer effective in guiding
    drivers concerning where to stop. He concluded the City was thus 50%
    responsible for the accident. On the trial judge's findings, had Mr. Ellis
    stopped at the faded stop line, which the trial judge accepted was his usual
    practice, he would have been able to see 270 metres south on Brock Road and the
    accident would never have happened.

[7]

The City raises several issues on appeal. In our view, its
    argument that, in finding non-repair, the trial judge misapplied the ordinary
    reasonable driver standard is dispositive and it is unnecessary that we address
    the remaining grounds of appeal.

B.

A municipalitys duty of repair and the ordinary reasonable driver
    standard

[8]

Section 44 of the
Municipal Act
, S.O. 2001, c. 25, requires a
    municipality to keep highways under its jurisdiction in a state of repair that
    is reasonable in the circumstances, including the character and location of the
    highway.
[2]

[9]

In

Fordham v. Dutton-Dunwich (Municipality)
, 2014 ONCA
    891, 70 M.V.R. 6, at paras. 28-29, Laskin J.A. described the ordinary
    reasonable driver standard, the standard of care which governs a municipalitys
    duty of highway repair. As described by Laskin J.A., a municipality is required
    to prevent or remedy conditions on its roads that create an unreasonable risk
    of harm for ordinary drivers exercising reasonable care. Ordinary reasonable
    drivers are not perfect; they make mistakes. However, a municipality's duty
    does not extend to remedying conditions that pose a risk of harm only because
    of negligent driving.

C.

relevant provisions of the highway traffic act

[10]

The
    obligations of a driver approaching a stop sign are delineated by the
Highway
    Traffic Act
, R.S.O. 1990, c H.8 (HTA). Under s. 136(1) of the HTA, where
    there is no stop line or crosswalk, a driver who approaches a stop sign at an
    intersection is required to stop her vehicle immediately before entering the
    intersection. Under s. 136(1)(b), a driver who approaches a stop sign at an
    intersection shall yield the right of way to traffic in the intersection or
    approaching the intersection on another highway so closely that to proceed
    would constitute an immediate hazard.

D.

the trial judges reasons

[11]

In
    his analysis of the non-repair issue, the trial judge recited the reasonable
    driver standard and acknowledged that an ordinary driver exercising reasonable
    care would be aware of s. 136 of the HTA.

[12]

However,
    based on certain evidence from Mr. Young, he concluded that, on the facts of
    this case, the safe zone (the green zone) for proceeding into the
    intersection could be anywhere from six to eight metres from the roadway. A driver
    stopped possibly as close as 7 metres from the edge of the roadway, but
    certainly 8.5 metres or more, would be in a danger zone (the red zone) and
    not have an adequate sight line. According to the trial judge, absent a proper
    stop line, a reasonable driver would not know how to judge where to stop:

Put simply, a person stopped eight
    metres back would be in the safe green zone but a person stopped 8.5 metres
    back would be in the dangerous red zone. How would an ordinary driver using reasonable
    care know how to make this judgment?

[13]

After
    noting that the faded stop line was no longer effective, in contravention of
    the guidelines set out in the Ontario Traffic Manual, and deprived drivers of
    an important guide as to where to stop, the trial judge re-iterated this point
    at para. 222 of his judgment:

Without a stop line, drivers had
    to exercise their judgment as to where to stop safely. An ordinary reasonable
    driver stopping eight metres back from the intersection was in the green zone
    of safety and could proceed into the intersection safely; the same ordinary
    reasonable driver stopping 8.5 metres back from the intersection was in the red
    zone of dangerousness and could not proceed into the intersection safely.

[14]

Based
    on the evidence of Mr. Young, the trial judge also noted that the Ontario
    Traffic Manual did not provide clear guidance on where drivers should stop in
    the absence of a stop line or crosswalk (the manual Mr. Young was actually
    referring to was the Ministry of Transportation Drivers Handbook). The text of
    the Manual states that the driver is to stop at the edge of the intersection
    while the accompanying diagram shows drivers stopped at stop signs just back
    from the intersection.

[15]

The
    trial judge therefore concluded that the City was negligent in failing to paint
    and maintain the stop line.

E.

discussion

[16]

The
    City argues that the trial judge erred in applying the ordinary reasonable
    driver standard.  The City contends that although the trial judge recognized
    that an ordinary reasonable driver would be aware of s. 136 of the HTA, he
    proceeded with his analysis on the erroneous premise that an ordinary
    reasonable driver would not comply with that section.

[17]

We
    do not accept this argument. As set out in
Fordham
, the ordinary reasonable
    driver standard is that of ordinary drivers exercising reasonable care who nevertheless
    sometimes make mistakes.

[18]

Nonetheless,
    in our view, the trial judge erred in applying the ordinary reasonable driver
    standard. Mr. Youngs red zone and green zone evidence was focused on
    sightlines for the intersection for northbound traffic. However, the question in
    this case was not whether an ordinary reasonable driver could be expected to
    know the exact length of the safe stopping distance in relation to northbound
    traffic (i.e., that if they stopped eight meters back from the intersection they
    would have adequate sightlines for northbound, traffic but if they stopped 8.5
    meters back they would not). Rather, the question was whether, in the absence
    of a stop line, the intersection posed an unreasonable risk of harm for
    ordinary drivers exercising reasonable care who sometimes make mistakes.

[19]

In
    our view, the trial judge erred by ignoring the fact that although drivers
    stopped at (or near) the stop sign would have had a 150-metre view of
    northbound traffic, their view of southbound traffic would be completely
    obscured by a house at the northeast corner of the intersection. The only clear
    evidence concerning southbound traffic was that, at the stop sign (where the
    trial judge found Mr. Ellis stopped), the sightline for southbound traffic was
    totally obscured by a house at the northeast corner of the intersection
    whereas, at the faded stop line, the southbound sightline was completely clear.
    There was no evidence at trial concerning what, if any, sightline of southbound
    traffic was available at, for example, the northeastern corner of the green
    zone. Ordinary reasonable drivers would not stop their cars in a location where
    their view of oncoming traffic from one direction would be completely obscured and
    then proceed into the intersection without stopping again. They would know to come
    closer to the intersection before stopping initially or before stopping again,
    in order to have a clear view of traffic from both directions.

[20]

In
Kennerley v. Norfolk (County)
(2005), 16 M.P.L.R. (4th)
    286
(Ont. S.C.), Killeen J. held, at para. 14, that it was an act
    of folly for a driver to stop 11.4 meters before an intersection without a
    stop line and proceed into that intersection without looking again.

[21]

Similarly,
    there can be no doubt that drivers who stop in a position where their view of
    one line of oncoming traffic is completely obscured  and do not stop again
    before entering the intersection  fall well below the standard of an ordinary reasonable
    driver and are negligent. They are not simply drivers exercising reasonable
    care who have made a mistake.

[22]

The
    only clear evidence in this case was that to gain a clear sightline of
    southbound traffic, drivers had to pull up to the vicinity of the faded stop
    line.

[23]

Contrary
    to the reasoning of the trial judge, the obligation of reasonable drivers was
    not to determine whether they should stop 8 or 8.5 meters back from the intersection,
    so they would have an adequate sightline of northbound traffic. Rather  and
    particularly considered in the context of the obligation under s. 136 of the
    HTA to stop
immediately
before entering the intersection  it was to
    stop at a point close enough to the intersection so they would at least have
    sightlines in both directions. Drivers who fail to comply with the rules of the
    road established under the HTA and who also act in a manner that is contrary to
    common sense cannot meet the ordinary reasonable driver standard. The trial
    judge erred in failing to recognize that and in failing to recognize that the
    evidence in this case did not fully address the sightlines for southbound
    traffic  a necessary component to applying the ordinary reasonable driver
    standard on the facts of this case.

[24]

The
    evidence before the trial judge did not support the conclusion that the
    intersection at issue posed an unreasonable risk of harm to ordinary reasonable
    drivers. As we have said, even if they did not stop immediately before entering
    the intersections as required by the HTA, such drivers would bring their
    vehicles to a stop, or stop again, within a zone in which they had sightlines
    in both directions.

[25]

At
    the conclusion of the appeal hearing, counsel informed us that a case involving
    an ostensibly similar non-repair issue, Smith v. Safranyos, 2018 ONCA 760,
    had recently been heard by this court. No request to have the cases heard
    together had been made. The panels have now independently rejected the Citys
    argument that a city could not be liable for non-repair for failing to paint or
    maintain a stop line where a driver failed to comply with s. 136 of the HTA.
    The decisions in these cases are otherwise dependent on the unique facts of
    each case and the findings in the courts below.

[26]

In
    the circumstances, the appeal is allowed, the trial judge's finding that the
    City failed to keep the roadway in a reasonable state of repair is set aside
    and the action as against the City is dismissed. Costs of the appeal are to the
    appellant in the amount of $15,000.

Janet Simmons J.A.

Grant Huscroft J.A.

B.W. Miller J.A.

Appendix A

Municipal Act
, S.O. 2001, c. 25

Maintenance

44(1) The municipality that has jurisdiction
    over a highway or bridge shall keep it in a state of repair that is reasonable
    in the circumstances, including the character and location of the highway or
    bridge.  2001, c. 25, s. 44 (1).

Liability

(2)
A municipality that
    defaults in complying with subsection (1) is, subject to the Negligence
    Act, liable for all damages any person sustains because of the default.
    2001, c. 25, s. 44 (2).

Defence

(3)
Despite
    subsection (2), a municipality is not liable for failing to keep a highway or
    bridge in a reasonable state of repair if,

(a) it did not know and
    could not reasonably have been expected to have known about the state of repair
    of the highway or bridge;

(b) it took reasonable
    steps to prevent the default from arising; or

(c) at the time the
    cause of action arose, minimum standards established under subsection (4)
    applied to the highway or bridge and to the alleged default and those standards
    have been met.  2001, c. 25, s. 44 (3)

Regulations

(4)
The Minister of Transportation
    may make regulations establishing minimum standards of repair for highways and
    bridges or any class of them.  2001, c. 25, s. 44 (4).

General
    or specific

(5)
The minimum
    standards may be general or specific in their application.  2001, c. 25,
    s. 44 (5).

Adoption
    by reference

(6)
A regulation made
    under subsection (4) may adopt by reference, in whole or in part, with such
    changes as the Minister of Transportation considers desirable, any code,
    standard or guideline, as it reads at the time the regulation is made or as it
    is amended from time to time, whether before or after the regulation is made.
    2001, c. 25, s. 44 (6).

(7)
Repealed:
    2002, c. 24, Sched. B,
s. 25
.

Untravelled
    portions of highway

(8)
No action shall
    be brought against a municipality for damages caused by,

(a) the presence,
    absence or insufficiency of any wall, fence, rail or barrier along or on any
    highway; or

(b) any construction,
    obstruction or erection, or any siting or arrangement of any earth, rock, tree
    or other material or object adjacent to or on any untravelled portion of a
    highway, whether or not an obstruction is created due to the construction, siting
    or arrangement.  2001, c. 25, s. 44 (8).

Sidewalks

(9)
Except in case of
    gross negligence, a municipality is not liable for a personal injury caused by
    snow or ice on a sidewalk.  2001, c. 25, s. 44 (9).

Notice

(10)
No action shall
    be brought for the recovery of damages under subsection (2) unless, within 10
    days after the occurrence of the injury, written notice of the claim and of the
    injury complained of, including the date, time and location of the occurrence,
    has been served upon or sent by registered mail to,

(a) the clerk of the
    municipality; or

(b) if the claim is
    against two or more municipalities jointly responsible for the repair of the
    highway or bridge, the clerk of each of the municipalities.  2001, c. 25,
    s. 44 (10); 2017, c. 10, Sched. 1,
s. 4
.

Exception

(11)
Failure to give
    notice is not a bar to the action in the case of the death of the injured
    person as a result of the injury.  2001, c. 25, s. 44 (11).

Highway Traffic Act
, R.S.O. 1990, c H.8

136
(1)
Every driver or street car operator approaching a
    stop sign at an intersection,

(a) shall stop his or
    her vehicle or street car at a marked stop line or, if none, then immediately
    before entering the nearest crosswalk or, if none, then immediately before
    entering the intersection; and

(b) shall yield the
    right of way to traffic in the intersection or approaching the intersection on
    another highway so closely that to proceed would constitute an immediate hazard
    and, having so yielded the right of way, may proceed.

[1]
This range was the result of differing measurements by different experts. Jason
    Young, the expert called by the plaintiffs to give opinion evidence concerning
    human factors and road design factors that play a role in collisions, testified
    that he measured the distance between the faded stop and a new stop line by
    photographic analysis as being between two to three metres. Another expert
    measured the same distance as four metres, which Mr. Young considered
    reasonable.

[2]
The full text of all relevant statutory provisions is reproduced in Appendix
    A of these reasons.