WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

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

45. (7)
The
court may make an order,

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

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

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

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

45.
    (8)
No person
    shall publish or make public information that has the effect of identifying a
    child who is a witness at or a participant in a hearing or the subject of a
    proceeding, or the childs parent or foster parent or a member of the childs
    family.

45.
    (9)

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

CITATION:
L.H. v. Catholic
          Children's Aid Society of Toronto, 2011 ONCA 385

DATE: 20110518

DOCKET: C52682

COURT OF APPEAL FOR ONTARIO

Armstrong, Juriansz and Watt JJ.A.

BETWEEN

L.H.

Respondent(Appellant)

and

Catholic Childrens Aid Society of Toronto

Applicant(Respondent)

and

M.H.

Respondent(Respondent)

L.H., acting in person

Carolyn Leach, for the Office of
          the Childrens lawyer

Chris Andrikakis, for the respondent
          Catholic Childrens Aid Society

M.H., acting in person

Heard: March 22, 2011

On appeal from the judgment of
          Justice Nancy J. Spies of the Superior Court of Justice dated August 26,
          2010.

Juriansz J.A.:

Introduction

[1]

L.H. appeals from the decision of Spies J. dated August
    26, 2010 that dismissed her appeal from the order of Brownstone J. of the
    Ontario Court of Justice dated February 1, 2010.

[2]

Justice Brownstone, on the application of the Catholic
    Childrens Aid Society of Toronto, (the Society) made an order that the
    appellants two children should remain in the custody of their father for six
    months, under the Societys supervision, and that the appellant should have
    supervised therapeutic access to the children in the presence of a mutually agreed
    upon psychologist. That order was set to expire in July 2010 but this appeal
    has kept it in force.

[3]

The principal ground of appeal is that Brownstone J.s order
    was made on the Societys motion for summary judgment rather than after a
viva voce
trial. The appellant claims
    she was entitled to a trial with
viva
    voce
evidence by virtue of this courts decision, made on August 21, 2009,
    relating to the original protection order made by Zuker J. on July 10, 2008.
    The order of Zuker J. was made after a trial of some 18 days. Zuker J. heard a
    number of witnesses, including, notably, Dr. Amin, who had conducted parenting
    capacity assessments and assessments of the children under s. 54 of the
Child and Family Services Act
, R.S.O.
    1990, c. C.11. Dr.
Amins
testimony was extremely adverse
    to the appellant. He diagnosed her as suffering from three psychiatric
    disorders and gave his opinion that removal of the children from the mothers
    custody was necessary to ensure they had a relationship with the father. Zuker
    J. accepted Dr. Amins evidence. The appellants appeal from
Zuker
J.s decision was dismissed by Paisley J. on January
    14, 2009.

[4]

When the matter came before this court on August 21,
    2009, the appellant sought to adduce fresh evidence undermining Dr. Amins evidence.
    At the hearing of the appeal, counsel for the Society advised this court that a
    status review hearing was impending and would, if the
court
    so directed, result
in a new trial in the Ontario Court of Justice at
    which the appellants fresh evidence could be considered.

[5]

This court disposed of the matter with the following endorsement:

Having heard argument and the submissions of counsel for the respondents
    that the status review hearing now under way will result in a new trial in the
    Ontario Provincial Court at which Ms. H. will be able to call the evidence she
    seeks to put before us, in our view, it is in the best interests of the
    children that the status review hearing proceed by way of a new trial that it
    be expedited and that it be before a judge other than Justice Zuker. The
status quo
is to remain in the meantime.
    We would therefore allow the appeal to this limited extent and so order.

[6]

After
    being remitted to the Ontario Court of Justice, the matter was called in Trial
    Assignment Court on October 22, 2009, but a trial date could not be obtained
    because of a more urgent child protection matter. The Society brought a summary
    judgment motion which was heard by Brownstone J. on January 27, 2010.
    Brownstone J. released his judgment on February 1, 2010.

Decision of the Family Court

[7]

Brownstone J. was well aware of the appellants
    position. He put it to counsel for the Society as follows:

[T]he Court of Appeal allowed the appeal in part because of some new
    evidence with respect to the Assessment by Doctor
Amin
.
    And, now there is more evidence, because we have the decision of the College as
    well. And, so they ordered a trial, an expedited trial, for the status review.
    And, that you, as counsel for the Society, in her view, undertook to them that
    this would likely go to trial. And, so a Summary Judgment Motion would be
    inappropriate, and contrary to the Order of the Court of Appeal, which has
    directed that there be a trial. Have I got that pretty much right?

[8]

In his
    reasons, Brownstone J. dealt at length with the impact of this courts
    endorsement of August 21, 2009. He decided to entertain the Societys summary
    judgment motion if it could meet the stringent test in Rule 16 of the
Family Law Rules
, O. Reg. 114/99. He
    noted that the definition of trial in Rule 2 of the
Family Law Rules
includes a hearing and that it was well
    established that a summary judgment motion constituted a hearing. As well, he
    considered it significant that the appellant had herself brought a summary
    judgment motion in the status review proceeding, where she sought an immediate
    order that the children be placed in her care forthwith.

[9]

Brownstone J. considered the fresh evidence adduced by
    the appellant. She had obtained her own psychiatric assessment by Dr. Srinvasan
    who did not find her to be suffering from any of the personality disorders or
    mental illnesses identified by Dr. Amin. She also tendered the report of Dr.
    Berry, a psychologist who critiqued the assessments of Dr. Amin. He severely
    criticized the methodology and analysis of Dr. Amin and the conclusions that
    Dr. Amin reached in his assessment of the appellants mental health. He also
    considered the decision of the Complaints Panel of the College of Psychologists
    of Ontario, which adjudicated the complaint filed by the appellant against Dr.
    Amin. He noted that the Complaints Panel found that Dr. Amin was neither biased
    nor unreasonable in the choice of tests that he had administered, that he was
    acting within the boundaries of his professional competence and did not display
    a lack of knowledge, skill or judgment, and that he met the minimum standards
    of his profession. However, the Panel did find that he may not have had sufficient
    evidence to support his diagnoses of certain personality disorders and issued a
    caution to him in the following terms:

Decisions such as these have a major impact on the lives of children and
    families, so any diagnosis made must be fully supported. The Panel suggests
    that Dr. Amin ensure that he not only has but also presents sufficient facts,
    including but not limited to the use of contemporary tests and assessments,
    contemporary diagnostic frameworks, and a broad range of collateral evidence,
    to support his diagnostic formulations. The Panel also suggests that Dr. Amin
    identify all sources of information, particularly in a high stakes situation
    such as the present case.

[10]

Based on the fresh evidence, Brownstone J. concluded definitively
    that the appellant may well have been unfairly and inaccurately labelled with
    several personality disorders and mental health diagnoses, in Dr. Amins
    assessment report that was adduced at the protection trial.

[11]

Brownstone J. then traced the history of the proceedings,
    made reference to the exorbitant demands upon the judges of the North Toronto
    Family Court to manage one of the highest family law caseload volumes in Canada
    and concluded that every reasonable effort was made to expedite the case in
    accordance with the direction of the Court of Appeal.

[12]

What is most pertinent in Brownstone J.s reasons for
    the present appeal is his consideration of the impact of the fresh evidence on
    his determination of the status review. He observed that while it was not his
    role to sit in appeal of Zuker J.s decision, it was indisputable that, even
    without an assessment report, [the appellants] behaviour of extreme parental
    alienation (described in great detail in the 140 page decision) certainly
    necessitated the protection finding and disposition that was made. He added
    that the appellants behaviour in the 17 months since the trial:

[H]as only served to confirm the
    fundamentally important finding made at trial, that she is a person who focuses
    only on her own needs and not those of her children. One does not need the
    labels and diagnoses wrongly applied to [her] by Dr.
Amin
to conclude without any hesitation that [she] has absolutely no insight into
    the consequences of her behavior on her childrens well-being.

[13]

Even though Brownstone J. concluded that Dr. Amins
    diagnoses and labeling of the appellant as suffering from personality disorders
    and mental illnesses were wrong, he found that the appellant had, by her own
    conduct in the 17 months since trial, made Dr.
Amins
report entirely irrelevant at this stage.

[14]

On the evidence before him, Brownstone J. found the
    following crucial facts that were not in dispute:

1)

The children had not seen their
    mother since February 5, 2009.

2)

The childrens position, as
    articulated by their lawyer, was that they are extremely reluctant to have
    contact with their mother.  J.N.Hu., who was 11 years old at the time, was
    adamantly refusing any contact whatsoever.  E.M.Hu., who was 8 years old
    at the time, was wary about having contact with his mother, and was requesting
    that any contact be in the presence of a psychologist.

3)

The children had done extremely well
    since going to live with their father on August 1, 2008.  They were happy,
    healthy, and doing very well at school.

4)

The mothers behaviour at access
    visits from August 2008 to February 5, 2009 was extremely problematic,
    characterized by her insistence on engaging the children in inappropriate
    discussions regarding their father, the litigation and the competence of the Society
    workers.

[15]

At the summary judgment motion the appellant did not
    present any evidence to contradict these crucial findings of fact. Rather, as
    Brownstone J. pointed out, the appellant was:

[F]
ixated
on being vindicated for the wrong
    that she perceives to have been done to her by Dr. Amin and by Justice Zukers
    reliance on his assessment report.  She is unwilling or unable to understand
    that Justice Zukers decision was based not only on the assessment report but
    on a great deal of other evidence describing her actual behaviour.  She is
    unwilling or unable to comprehend that, even if the trial decision was wrong
    and it certainly was not  we must all focus on the childrens needs now.
    We cannot turn back the clock.  We have to look at the current
    circumstances and address the childrens current needs.  Tragically, [the
    appellant] appears to be unwilling or unable to understand that her children
    have been estranged from her NOT because of her psychology, but because of her
    behaviour.

[16]

Brownstone J. concluded that there was no genuine issue
    for trial because there was no realistic possibility of an outcome other than that
    as sought by the Society. Consequently, he granted summary judgment.

Decision of the Superior Court

[17]

Spies J., in dismissing the appellants appeal of the
    order of Brownstone J., agreed with him that the use of the word trial by the
    Court of Appeal did not necessarily mean a trial with
viva voce
evidence. She pointed out that under the
Child and Family Services Act
(the
    Act) the court was required to hold a hearing, and that this court in
Catholic Childrens Aid Society of Toronto
    v. L.O
. (1997), 30 R.F.L. (4th) 16, at para.
7,
held that the Acts statutory requirements for a hearing can include a summary
    judgment motion. Spies J. also pointed out that Brownstone J. had admitted and
    considered all of the fresh evidence that the appellant tendered and had
    accepted her position that Dr. Amins diagnoses and labeling of her as
    suffering from personality disorders and mental illnesses were wrong.

Issues and Positions of the Parties

[18]

On appeal, the appellant advances the same argument she
    pressed in the courts below. She submits that both courts below erred by
    deciding that this courts endorsement of August 21, 2009 did not prevent the
    Society from bringing its summary judgment application. Specifically, she seeks
    a declaration that:

[T]he Order granted on August 21, 2009 was for a new trial (hence there
    were
triable
issues), the trial was to include
viva voce
evidence (witnesses were to
    be called and oral testimony given) and the new trial (not the Child
    Protection Application: Status Review) was to be expedited, or set down at the
    next Trial Assignment Court dateafter the appeal

[19]

She also claims that her rights under s. 7 of the
Canadian Charter of Rights and Freedoms
have
    been infringed and seeks damages.

[20]

The Society submits that the August 21, 2009 order of
    this court could not preclude its summary judgment application. The Office of
    the Childrens Lawyer representing the children supports the position of the
    Society and explained that the children wish to remain in their fathers care
    and wish to have the matter determined quickly. The respondent father submitted
    that the lengthy litigation was having a detrimental effect on the children,
    now nine and twelve years old.

Discussion

[21]

It seems to me that the appellant is seeking to revisit
    rather than implement the August 21, 2009 order of this court. It is important
    to note that the courts endorsement of August 21, 2009 did not set aside the
    order of
Zuker
J. By specifically leaving in place
    the
status quo
, the court left in
    place the protection order. The court allowed the appeal only to the limited
    extent that the appellant would be able to call the fresh evidence she sought
    to place before this court at the impending status review hearing, that the
    status review hearing proceed by way of a new trial before a different trial
    judge, and that it be expedited.

[22]

This courts August 21, 2009 order did not grant the
    appellant a new trial as to the legitimacy of the original protection order. It
    simply allowed her to tender her fresh evidence at the status review hearing.
    This court did not and could not clothe Brownstone J. with jurisdiction to
    review the legitimacy of the original protection order made by
Zuker
J. Justice Brownstones jurisdiction was to determine
    the continuing effect of the protection order. He decided that the protection
    order should remain in effect, even though he accepted the appellants position
    that Dr. Amins assessment report was baseless.

[23]

Moreover, this court on this appeal has no jurisdiction
    to grant the appellant a new trial as to whether the original protection order
    should have been made. What is before this court on appeal is Brownstone J.s
    order made on the status review hearing, which was upheld by Spies
J.
The appeal of the legitimacy of the original protection order
    was before this court in the appellants previous appeal on August 21, 2009. I repeat
    that in disposing of that appeal, this court did not set aside the protection
    order and remit to the Ontario Court of Justice the Societys application for a
    protection order. The court considered it in the best interests of the children
    to leave in place the
status quo
and
    allow the appeal to the limited extent that the appellant would be able to
    call her fresh evidence at the status review hearing, so that it could be
    assessed in the context of the continuing effect of the protection order.

[24]

Consequently, the only question on appeal that this
    court can now consider is whether the courts August 21, 2009 order required
    the status review hearing to proceed on the basis of
viva voce
evidence. That question turns on the meaning to be given
    to the word trial in the courts endorsement.

[25]

To establish that the word trial in the courts
    endorsement meant a trial with
viva voce
evidence, the appellant has filed the transcript of the digital audio recording
    of the hearing before the Court of Appeal on August 21, 2009. The audio
    recording is not part of the courts disposition and should never be treated as
    such. Reliance on the audio recording to interpret the courts reasons raises
    several difficulties. The Court of Appeal is a collegial court and a comment made
    by one member of the panel should not be taken to express the position of the
    court, let alone the final position of that member before deliberation and
    conference with the other judges and further reflection before the decision is
    rendered. While recourse may be had to the audio recording in circumstances
    such as this, extreme caution must be exercised in relying on it as the court
    speaks through its formal reasons.

[26]

That said
,
the audio recording
    was considered by Spies J., who found that it showed that the court anticipated
    the status review application would proceed by way of a
viva voce
hearing. I accept, for the sake of the analysis that that
    is so. That, however, is not determinative.

[27]

In the course of submissions, the court had been led to
    believe that arrangements would be made that the status review would proceed by
    way of a hearing with
viva voce
evidence. The president of the panel stated that the court was trying to be
    practical in a way that would advance ultimately the best interests of the
    children. I agree with the observation of Spies J. that:

It is clear from the
    exchange with counsel that although everyone anticipated that the status review
    application would proceed by way of a trial, the Courts overriding concern was
    that it was not the best forum to consider the fresh evidence the Mother was
    attempting to produce at the appeal, as the Court of Appeal deals with
    questions of law. The Courts decision was intended to allow the Mother to call
    this evidence before a Family Judge of the Ontario Court of Justice during the
    status review application that was still pending.

[28]

The
    formal endorsement of the court may reflect
the courts anticipation
    that
viva voce
evidence would be
    called, but it does not direct that
viva
    voce
evidence be called. Nor does the formal order preclude the application
    of the
Family Law Rules
and their
    definition of trial.

[29]

In my view, the courts order must be understood in the
    context of the
Family Law

Rules
and their definition of trial.
    As Spies J. pointed out, a trial includes a hearing and the appellant was
    accorded a hearing. I note also that rule 2(2) provides that the primary
    objective of the
Family Law Rules
is
    to enable the court to deal with cases justly, and rule 2(3) provides that [d]
ealing
with a case justly includes(c) dealing with the
    case in ways that are appropriate to its importance and complexity, and (d) giving
    appropriate court resources to the case while taking account of the need to
    give resources to other cases.

[30]

Upon being remitted to the Ontario Court of Justice,
    the matter was scheduled in Trial Assignment Court on October 22, 2009. A trial
    date was not available because more urgent matters had to be scheduled. Counsel
    for the Society then asked that the matter be set down for a summary judgment
    motion. The request of the Society was supported by counsel for the children as
    the children wanted the matter determined quickly. Before sending the matter down
    for summary judgment motion, the trial assignment judge noted in passing that the
    appellant had herself brought a motion for disposition without a trial.

[31]

On the summary judgment motion, the appellants fresh
    evidence was admitted. Brownstone J. carefully considered that evidence and
    found, without
viva voce
testimony,
    that Dr. Amins assessment report was baseless.

[32]

The appellant had the opportunity to introduce any
    other evidence that was relevant at the motion, but presented no evidence to
    counter the crucial facts found by Brownstone J. He found that there was no
    genuine issue of material fact that required a trial for resolution and ordered
    that the protection order remain in place for a further six months.

[33]

Spies J. found no error in Brownstone J.s conclusion that
    the protection order should remain in place. I see no basis to interfere and
    would dismiss the appeal.

[34]

I would go further. Even if the courts August 21, 2009
    order were read to direct a
viva voce
hearing
    I would dismiss the appeal for two reasons.

[35]

First, Brownstone J., in his thoughtful reasons, has
    given effect to the courts order of August 21, 2009. He carefully considered the
    appellants fresh evidence and left no doubt that he found Dr. Amins assessment
    report was baseless. At this point, no party takes the position that Dr. Amins
    assessment report should be accorded any weight whatsoever. Brownstone J. found
    that the other evidence called at the 18-day trial and described in
Zuker
J.s 140-page decision certainly necessitated the
    protection finding and disposition that was made. Hence, the appellants
    contest of Dr. Amins evidence has become moot. Nothing would be achieved by
    ordering another
viva voce
status
    review hearing to consider the appellants fresh evidence seeking to undermine Dr.
Amins
testimony. And, as I have explained, this
    court has no jurisdiction to order what the appellant really wants  i.e. a new
    trial to consider the legitimacy of the original protection order.

[36]

Second, the overriding consideration is the best
    interests of the children. The substantive question of the appropriate present arrangements
    for the childrens custody will be determined by way of a status review hearing
    that must be conducted upon the expiration of the order of Brownstone J. At
    that status review, evidence relating to the childrens present circumstances
    and needs would be relevant. The best interests of the children would not be
    served by litigation attempting to vindicate positions the parents had taken in
    the past.

[37]

I would conclude that even if the court had ordered a
viva voce
hearing, the failure to hold a
viva voce
hearing has not occasioned
    a miscarriage of justice.

[38]

For these reasons, I would dismiss the appeal. Costs
    were not sought.

R.G. Juriansz J.A.

I agree David Watt
    J.A.

Armstrong J.A. (Concurring in the
    result):

[39]

I have read the reasons for judgment of my colleague,
    Juriansz J.A. While I concur in the result, I take a different view of this
    courts order of August 21, 2009.

[40]

When the court made its order, it is clear that the
    court expected that the status hearing would proceed as a
viva voce
trial. For convenience, I repeat the courts endorsement
    here:

Having heard argument and the submissions of counsel
    for the respondents that the status review hearing now under way will result in
    a new trial in the Ontario Provincial Court at which Ms. H. will be able to
    call the evidence she seeks to put before us, in our view, it is in the best
    interests of the children that the status review hearing proceed by way of a
    new trial that it be expedited and that it be before a judge other than Justice
Zuker
. The
status
    quo
is to remain in the meantime.  We
    would therefore allow the appeal to this limited extent and so order.

[41]

All parties were in agreement with the approach set out
    in the endorsement. I am satisfied that the court did not have in mind that the
    outstanding evidentiary issues would be disposed of by way of a motion for
    summary judgment or that the definition of the word, trial, in the Family
    Court Rules could lead to something less than a
viva voce
hearing.

[42]

While I am concerned that the appellant did not get the
    kind of trial she was promised, I am, at the same time, satisfied that no
    injustice was done. As is pointed out by my colleague, the appellant succeeded
    in having the evidence of Dr.
Amin
rejected totally
    by the motion judge. The motion judge admitted and considered all of the fresh
    evidence put forward by the appellant.

[43]

I agree with my colleague that absolutely nothing would
    be achieved by ordering another
viva voce
status review to consider the appellants fresh evidence in order to undermine
    Dr.
Amins
evidence, which has already been found to
    be baseless.

[44]

I also agree that the best interests of the children do
    not lie in another court proceeding.

[45]

I would dismiss the appeal with costs.

R.P. Armstrong J.A.

RELEASED:  May 17,
    2011


CITATION:
Machacek
v. Ontario Cycling
          Association, 2011 ONCA 410

DATE: 20110527

DOCKET: C53180

COURT OF APPEAL FOR ONTARIO

MacPherson, Armstrong and Karakatsanis JJ.A.

BETWEEN

Paul Machacek and Susan Machacek

Appellants (Plaintiffs)

and

Ontario Cycling
          Association, Canadian Cycling Association, DOrnellas
          Racing Team a.k.a. DOrnellas Bike Shop Racing

Respondents (Defendants)

William  G. Scott and
          Brian A. Pickard, for the appellants

Aaron Postelnik, for the respondents

Heard: May 17, 2011

On appeal from the Order of Justice
          Leonard Ricchetti of the Superior Court of Justice dated December 21, 2010.

ENDORSEMENT

[1]

The appellants appeal the order of Ricchetti J.
    of the Superior Court of Justice dated December 21, 2010, which dismissed the
    appellants motion to set aside the registrars dismissal of their action for
    negligence arising from a bicycle accident.  The appellant, Paul Machacek, was seriously injured in the accident.  The accident occurred on June 15, 2002.  The Statement of Claim was issued on February
    20, 2003.

[2]

The action was dismissed for delay in setting
    the action down for trial by the local registrar on August 15, 2007 pursuant to
    rule 48.14 of the
Rules of Civil
    Procedure
.  Between the time of the
    commencement of the action and September 2006, pleadings were exchanged, some
    discovery sessions were held, a defence medical was completed and various
    documents were produced.

[3]

The lawyer for the appellants left his law firm prior
    to the issuance of the status notice and the registrars order under rule
    48.14.  The lawyer did not receive a copy
    of the status notice.  While he had filed
    a change of address with the post office, he had not bothered to serve a notice
    of change of solicitors under the rules.

[4]

The order dismissing the action came to the
    attention of the appellants lawyer sometime in early 2008.  On April 2, 2008, the appellants lawyer
    wrote to the lawyer for the respondents and asked for his consent to set aside
    the dismissal order.  The consent was
    refused.  The appellants lawyer did some
    work on a motion to set aside the dismissal in the summer of 2008.  Some efforts were made between
counsel
to agree on a date for the motion but nothing
    happened.

[5]

Between February 2008 and October 2008, the
    appellant, Paul Machacek, met with his lawyer six times and urged him to deal
    with the dismissal of the action.  He
    also had to resort to communicating with his lawyer by registered mail due to
    the failure of the lawyer to respond to his inquiries between meetings.  The appellant consulted with other lawyers
    who told him to stay with his current lawyer.

[6]

Eventually, in June 2009, the matter was
    reported to LawPRO, the Law Societys insurers.  On July 14, 2009, counsel for LawPRO (not Mr. Scott) wrote to counsel
    for the respondents requesting motion dates.  However, it was not until March of 2010 that counsel for LawPRO served
    the motion record to set aside the registrars order.  The motion was heard on December 8, 2010 and
    reasons were released on December 21, 2010.

[7]

Between September 2006 and April 2008, when the
    appellants lawyer says he was advised of the registrars dismissal order,
    nothing of any significance happened in the litigation, apart from the
    dismissal order.  Between April 2008 and
    the time that the matter was reported to LawPRO in June 2009, the lawyer for
    the appellants did almost nothing to get the appropriate motion before the
    court.  When counsel for LawPRO became
    involved, virtually nothing was done for another 10 months.

[8]

In our view, the delay in this case between
    September 2006 and March 2010 is inexcusable.

[9]

Virtually all of the delay between September
    2006 and March 2010 is attributable to the failure of counsel for the
    appellants to move the action along and take the appropriate steps to set aside
    the registrars order.  The observation
    made by Sharpe J.A. in
March
é
DAlimentation Denis Th
é
riault Lt
é
e
    v. Giant Tiger Stores Limited
, 2007 ONCA 695 at para. 31 applies to the
    case at bar:

the nature of the delay and the solicitors conduct
    in this case amount to more than that kind of lapse or inadvertent mistake that
    the legal system can countenance.  We
    should opt for a resolution that discourages this type of conduct which
    undermines the important value of having disputes resolved in a timely
    fashion.  The decision of the Master
    sends the right message and provides appropriate incentives to those involved
    in the civil justice system.

Sharpe J.A.s comments at para.
32 are
    also apt:

Moreover, excusing a delay of this
    magnitude and gravity risks undermining public confidence in the administration
    of justice.
Lawyers who fail to
    serve their clients threaten public confidence in the administration of
    justice.  The legal profession itself has
    recognized this danger: Commentary to rule 2.01 of the Law Society of Upper
    Canadas
Rules of Professional Conduct
states, A lawyer who is incompetent does the client a disservice, brings
    discredit to the profession, and
may
    bring the administration of justice into disrepute
.  [Emphasis added.]  There is a risk that the public would
    perceive disregarding the solicitors conduct in the circumstances of this case
    as the legal system protecting its own.  Excusing a delay of this kind would throw into question the willingness
    of the courts to live up to the stated goal of timely justice.

[10]

Counsel for the appellants, in his able
    argument, emphasized that the more significant consideration in the case at bar
    is that there is no evidence of actual prejudice as found by the motion
    judge.  While this is an important
    factor, it has to be balanced by a consideration of the finality principle.  In our view, the delay in this case and the
    conduct of counsel tips the balance towards the latter.  As Sharpe J.A. found in
Giant Tiger
reinstating the action at this point would undermine
    the finality principle while refusing to reinstate the action does not
    interfere with the need to ensure adequate remedies.  In respect to the latter comment, we note
    that the appellants are not left without a remedy as they still have recourse
    through an action in solicitors negligence.

[11]

In the result, the appeal is dismissed.  As agreed, the respondents shall have their
    costs fixed in the amount of $7,500 inclusive of disbursements and applicable
    taxes.

J.C.
    MacPherson J.A.

Robert
    P. Armstrong J.A.

Karakatsanis
    J.A.


CITATION:
Muskoka
Fuels v. Hassan Steel Fabricators Limited, 2011 ONCA 355

DATE: 20110506

DOCKET: C51518

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman and Juriansz JJ.A.

BETWEEN

Muskoka Fuels

Plaintiff (Respondent)

And

Hassan Steel Fabricators Limited

Defendant (Appellant)

Shannon Puddister and Louise Moher, for the appellant

David Zuber and Karim Hirani, for the respondent

Heard: February 1, 2011

On appeal from the judgment of
          Justice Susan E. Healey of the Superior Court of Justice dated December 11,
          2009, with reasons reported at 2009 CanLII 78887 (ON S.C.).

Juriansz J.A.:

[1]

The appellant, Hassan Steel, appeals from the judgment
    of Healey J. awarding the respondent damages of $71,589.34 plus interest and
    costs for negligence and breach of the implied warranty set out in s. 15(1) the
Sale of Goods Act
, R.S.O. 1990, c.
    S.1. The damages resulted from the containment and cleanup of diesel oil that
    leaked from a fuel oil tank manufactured by Hassan Steel and sold to the
    respondent, Muskoka Fuels.

[2]

The respondent, Muskoka Fuels, cross-appeals the costs
    award of Healey J. in which she held that each party should bear its own costs,
    given that the issue in the case was sufficiently novel and that there was a
    public interest component met by having the standard of care determined by a
    court.

[3]

I would dismiss the appeal and allow the cross-appeal.

Facts

[4]

Hassan Steel manufactured and sold to Muskoka Fuels a
    2000 L fuel storage tank. The fuel tank had a single wall 2.5 mm thick with an
    exterior coating and a bare metal interior. The expected life of a tank of this
    kind was at least ten years in service. The tank was approved by the
    Underwriters Laboratories of Canada, described by the trial judge as the
    provincial fuel tank certification body.

[5]

Muskoka Fuels took delivery of the tank in November
    1999 but did not put it into service until September 2001. In January 2002,
    less than five months later, diesel fuel leaked out through a
hole
approximately 3/16 of an inch in diameter located at the
    bottom of the tank. The leak caused damage totalling $71,589.34.

[6]

The hole in the tank was due to microbally
    induced/influenced internal corrosion process of unknown explanation. However,
    the trial judge excluded causes that might be attributable to
Muskoka
Fuels. She found,
inter alia
, that the tank did not fail due to improper maintenance,
    had not been damaged during or after installation by some external mechanism,
    had been properly installed and used only as intended.

[7]

Muskoka Fuels commenced an action in negligence in June
    2004. Five years later, in April 2009, the court granted it permission to amend
    its statement of claim to allege a breach of the implied warranties provided in
    the
Sale of Goods Act
, but left it
    open to the appellant to argue at trial that the claim was statute barred.

The Trial Decision

Limitations Defence

[8]

The trial judge found that the added claim was not
    barred by the
Limitations Act
, R.S.O.
    1990, c. L.15 governing this action. She found that the
Sale of Goods Act
claim in the amendment relied on the same facts
    as the respondents negligence claim. The amendment did not add any new
    material facts, but simply sought a different legal conclusion to be drawn from
    the set of facts already in the pleading.

[9]

The trial judge also found the appellant suffered no
    prejudice as a result of the amendment. Though the respondents expert had lost
    the tank, the respondent had been unable to prove there was any fault in the
    steel or fabrication of the tank, and the appellants own expert had been able
    to conclude that the hole was caused by internal corrosion without needing to
    analyze the composition of the steel used in the tanks construction.

Sale of Goods Act

[10]

The trial judge did not accept the respondents
    position that the defect in the tank was the
hole
itself.
    There was no evidence that the hole existed at the time of purchase. Instead, the
    trial judge found that the defect in the tank was the absence of a protective
    interior coating. Her legal analysis was based on this finding. She found that an
    implied condition as to merchantability pursuant to s. 15(2) of the
Sale of Goods Act
could not be made out
    because the respondent knew about the absence of a protective interior coating
    when it bought the tank. Section 15(2) provides:

Where goods are bought by
    description from a seller who deals in goods of that descriptionthere is an
    implied condition that the goods will be of merchantable quality, but if the
    buyer has examined the goods,
there is no implied condition as regards defects
    that such examination ought to have revealed
. [Emphasis added.]

[11]

The trial judge then turned to the application of s.
    15(1) that provides:

Where the buyer, expressly or by
    implication, makes known to the seller the particular purpose for which the
    goods are required so as to show that the buyer relies on the sellers skill or
    judgment, and the goods are of a description that it is in the course of the
    sellers business to supply (whether the seller is the manufacturer or not),
    there is an implied condition that the goods will be reasonably fit for such
    purpose, but in the case of a contract for the sale of a specified article
    under its patent or other trade name there is no implied condition as to its
    fitness for any particular purpose.

[12]

In determining whether there is an implied warranty as
    to fitness for a particular purpose, the trial judge set out the following
    three factors that have to be considered:

(1)

the course of the sellers business;

(2)

knowledge on the part of the
    seller of the purpose of the goods; and

(3)

reliance
on the sellers skill or judgment.

[13]

The trial judge held that the first two requirements were
    easily met in this case. The appellant was in the business of manufacturing and
    selling fuel tanks and it knew the purpose for which the tank would be employed.
    The trial judge found that the third requirement was met as well. She found
    that information about the phenomenon of internal corrosion was circulating
    within the industry. The information directly impacted the appellants business
    and the appellant should have been diligent enough to put itself in a position
    to acquire it. Accordingly, she found that s. 15(1) of the
Sale of Goods Act
had been met since the appellant warranted that
    the tank was fit for the purpose of storing fuel oil, and that warranty had
    been breached.

Negligence

[14]

The trial judge went on to make a ruling on the respondents
    claim in negligence in the hope that this judgment will find its way into the
    hands of the regulators of this industry given the potential for environmental
    harm if the specifications for such tanks are not changed to better guard
    against corrosion. She found that the standard of care to which this
    defendant and all like manufacturers must be held is to produce a tank which is
    capable both of containing fuel and withstanding the vagaries of corrosion for
    at least ten years. The appellant breached the standard of care by failing to
    provide an interior protective coating for the tank, which caused the
    respondents losses.

[15]

Accordingly, the trial judge granted judgment for the
    respondent.

Analysis

[16]

I would not interfere with the trial judges finding
    that the amendment to the respondents statement of claim to rely on the
Sale of Goods Act
did not raise a new
    cause of action. It simply pleaded an alternative basis of relief on the same
    facts already pled.

[17]

However, using a different analysis from that of the
    trial judge, I would conclude that s. 15(2) of the
Sale of Goods Act
has been breached in this case. I would not
    identify the lack of an interior protective coating in the tank as the defect. In
    my view, the finding that it was the defect was based on a misapprehension of
    the evidence. The tank as designed, without the interior protective coating,
    was approved by the regulatory authority and was capable of storing fuel for at
    least ten years without corrosion. The trial judge noted that [u]nrefuted
    testimony was heard from several witnesses for both the plaintiff and the
    defendant that the expected life of a tank of this kind was at least ten years
    in service. What is pertinent in my view is the fact, as the trial judge
noted,
that the expert witnesses were unable to identify
    what caused the internal corrosion that led to the tanks failure.

[18]

The Supreme Court of Canada has indicated that s. 15(2)
    of the
Sale of Goods Act
may apply in
    circumstances where the cause of the defect cannot be established. In
Schreiber Brothers Ltd. v. Currie Products
    Ltd.
, [1980] 2 S.C.R. 78, Laskin C.J., writing for the court, held that
    while the buyer bears the onus of proving the existence of a defect on a
    balance of probabilities, the actual cause of the defect need not be proven. In
    that case, the plaintiff roofing contractor purchased asphalt from the
    defendant, which was manufactured by a third party. The plaintiff installed a
    roof which then failed due to a previously unencountered type of blistering
    that could not be explained. The trial judge had allowed the plaintiffs claim
    for damages, concluding that on the balance of probabilities, there were no
    possible causes of the failure of the roof, other than a latent defect in the
    asphalt. The Court of Appeal set aside the trial judgment, holding that the plaintiff
    had failed to show that the defect existed when the asphalt left the
    manufacturers plant.

[19]

In restoring the trial judgment, the Supreme Court did
    not agree with the Court of Appeal that there must be a credible theory to
    account for the defect. Once other probable causes had been excluded, the
    court was left with the fact of a defect in respect of a product emanating
    from the [defendants]. Once the buyer proved that the defect of the asphalt
    was not attributable to anything that he did or failed to do, an inference
    could be drawn from the evidence as a whole that the defect existed at the time
    the product was delivered to him.

[20]

The circumstances of this case are much the same. The
    trial judge found that the tank was only used as intended, that it was properly
    installed, that it was not damaged during or after installation by some
    external mechanism, that it did not fail due to a problem with a weld and that
    it did not fail due to improper maintenance. The trial judge also noted that the
    evidence was inconclusive on the ultimate explanation for the internal
    corrosion that caused the tanks failure. The examination of the tank at the
    time of its purchase would not have revealed the unknown defect. As such, I
    conclude on the findings of the trial judge that the implied condition of
    merchantability under s. 15(2) of the
Sale
    of Goods Act
was breached.

[21]

On this analysis of the
Sale of Goods Act
, and not on the trial judges analyses of
    negligence and the
Sale of Goods Act
,
    I would dismiss the appeal.

[22]

Accordingly, there is no reason why costs at trial
    should not follow the event.  The cross
    appeal is allowed. The respondent is entitled to its partial indemnity costs to
    the date of its rule 49 offer to settle and substantial indemnity costs thereafter.

[23]

If the parties are unable to agree upon the costs of
    the trial and of these appeals, they may make submissions in writing to be
    exchanged and filed within 30 days of the date of this decision.

R.G. Juriansz J.A.

I agree M. Rosenberg
    J.A.

I agree K. Feldman
    J.A.

RELEASED: May 6, 2011


CITATION:
NewPoint Capital
          Partners Inc. v. Diena, 2011 ONCA 394

DATE:
          20110519

DOCKET: C53110

COURT OF APPEAL FOR ONTARIO

MacPherson, Armstrong and Karakatsanis JJ.A.

BETWEEN

NewPoint Capital Partners Inc.

Plaintiff (Respondent)

and

Daniel Diena, Emmanuel Diena
, Parkway Pharmacy
          Inc., Methadrug Clinic Limited, Union Medical Pharmacy Inc., and 68235
          Ontario Limited

Defendant (
Appellants
)

Jane Sirdevan, for the appellants

Peter W.G. Carey and Meagan J. Swan, for the respondent

Heard
: May 18, 2011

On appeal from the judgment of Justice P. Theodore Matlow of
          the Superior Court of Justice, dated December 6, 2010.

ENDORSEMENT

[1]

In a judgment dated December 6, 2010, Matlow J. granted
    partial summary judgment to the plaintiff NewPoint Capital Partners Inc. (NewPoint)
    against the personal defendants Daniel Diena and Emmanuel Diena. The judgment
    was for $249,547.49 relating to a financing fee provided for in a contract
    between the parties. The motion judge also held that the balance of the plaintiffs
    claim relating to a so-called work fee needed to proceed to trial. The
    appellants appeal from the partial summary judgment component of the decision.

[2]

The Diena brothers retained NewPoint to assist them in
    securing financing for the acquisition of pharmacy businesses. Article 4.1 of
    the contract provided for NewPoint to receive fees for its services:

4.1 Fees

During the period we [NewPoint] are retained by the
    Purchaser [the appellants], or within six months thereafter, or longer by
    reason of continuing bona fide negotiations subsequent to the six month period,
    NewPoint will be paid the following:

Immediately
    upon the closing of each Acquisition
the Purchaser agrees to pay NewPoint a
    success fee (Success Fee) equal to 1% of the aggregate purchase price of the
    acquired entity; plus

Immediately upon raising capital
    to fund ongoing acquisitions
, NewPoint will be paid a fee equal to 1%
    of  senior debt committed, 2% of
    subordinated debt committed, and 3% of equity committed. Additionally, NewPoint
    will be issued equity warrants of the Purchaser equal to 5% of the fully
    diluted equity of the Target, at an exercise price per share equal to the per
    share value implied by the equity raise. In the event that there is no equity
    raise at the time of raising the initial capital, the parties to this agreement
    will determine an equity value in good faith. The warrant will be subject to
    standard terms and conditions and will have a term of three years.

[Emphasis
    added.]

[3]

On two occasions after the contract was executed,
    NewPoint secured substantial financing for the Dienas. On both occasions, the
    transactions did not close for reasons connected to the Dienas, not the
    prospective sellers. On the second occasion, NewPoint sought payment of a fee
    pursuant to Article 4.1 of the contract. The motion judge granted summary
    judgment for $249,547.49.

[4]

The Diena brothers essential submission is that
    Article 4.1 is ambiguous. It is unclear whether a fee is to be paid once
    NewPoint secured financing from a third party for the Dienas or, alternatively,
    whether the fee was to be paid only if the acquisition of a pharmacy business
    by the Dienas actually closed. In light of this ambiguity, a trial, including
    evidence about the parties intentions and communications, was necessary.

[5]

We disagree. Although the motion judges reasons are
    inadequate and do not meet the
Sheppard
standard, in our view the language of Article 4.1 is clear. Article 4.1, read
    as a whole, and in the context of the entire agreement, contemplates that
    payment of fees to NewPoint would occur at two different points in time. The
    first paragraph of Article 4.1 begins with the words immediately upon the
    closing of each Acquisition. The second paragraph of the article commences
    with immediately upon raising capital to fund ongoing acquisitions. Both
    paragraphs then provide for fees calculated in different ways. NewPoints bill
    for a fee after the second failed transaction fits four-square into the second
    paragraph of the article; it was a fee sought after NewPoint had raised $23.5
    million financing for the Dienas and the fee was calculated in accordance with
    the formula in the second paragraph.

[6]

In short, the contractual wording is clear and supports
    the motion judges decision granting partial summary judgment.

[7]

The appeal is dismissed. NewPoint is entitled to its
    costs of the appeal fixed at $5,000, inclusive of disbursements and HST.

J. C. MacPherson J.A.

Rob P. Armstrong J.A.

Karakatsanis J.A.


CITATION:
Okolotowicz
(Re), 2011 ONCA 375

DATE: 20110512

DOCKET: C53069

COURT OF APPEAL FOR ONTARIO

Weiler, Gillese and LaForme JJ.A.

IN THE MATTER OF:
Zbigniew

Okolotowicz

Zbigniew

Okolotowicz
,
          appearing in person

Jill Presser, as
amicus
          curiae

John Patton, for the Attorney General

Jean D.
Buie
, for the Centre for
          Addiction and Mental Health

Heard and released orally:
May 9, 2011

On appeal against the disposition
          of the Ontario Review Board, dated September 13, 2010.

ENDORSEMENT

[1]

The appellant and amicus seek an absolute discharge,
    or alternately a conditional discharge, or alternately a new hearing with
    directions.  The focus of the argument
    was however whether the Board erred in not granting a conditional discharge.

[2]

Three issues are raised.  Those issues and our response to them are:

1)

Did the board err in finding
    that the appellant posed a significant threat to public safety?

[3]

The Boards decision was reasonable and is entitled to
    significant deference. The Boards conclusion was based on the appellants
    treating doctors opinion that the appellant posed an ongoing significant
    threat, given his criminal record of violence and alcohol-related offences, his
    history of mental illness, his limited insight into his medical problems,
    difficulties with assessing the speed of potential
decompensation
,
    and concerns that the appellant would not recognize the signs of his
decompensation
.

2)

In the absence of positive
    evidence, did the board err in concluding that detention was the least onerous
    least restrictive disposition?

[4]

The majority did not proceed in the absence of
    evidence.  It proceeded on the evidence
    of the appellants history which necessitated a cautious approach given the
    appellants recidivism, his mental illness, and his recent progress.

3)

Did the board err in failing to
    meaningfully consider a conditional discharge?

[5]

While the accused would consent to terms of medication
    compliance, that consent did not address with any certainty the relevant
    supervisory needs. Having regard to the Boards reasons as a whole, there was
    no need for the Board to specifically mention consent to medical treatment in
    its reasons. The Board was completely alive to the question of a detention
    order with conditions or a conditional discharge.  The majority of the Board held that because
    of the unknowns around the appellants potential
decompensation
,
    a conditional discharge could not sufficiently manage the risk that he
    posed.  This conclusion was
    reasonable.

[6]

Accordingly, the appeal is dismissed.

K.M. Weiler J.A.

E.E. Gillese
    J.A.

H.S.
LaForme
J.A.