COURT OF APPEAL FOR ONTARIO

CITATION: Carpenter v. Doull-MacDonald, 2018 ONCA 521

DATE: 20180606

DOCKET: C64854

MacPherson, LaForme and Roberts JJ.A.

BETWEEN

Carol Carpenter

(Appellant)
Applicant

and

Cynthia Doull-MacDonald

(Respondent)
Respondent

Robert Kalanda, for the appellant

Sarah Corman and Hilary Brown, for the respondent

Heard: June 5, 2018

On appeal from the order of Justice Paul Perell of the Superior Court
    of Justice dated December 19, 2017, with reasons reported at 2017 ONSC 7560.

REASONS FOR DECISION

[1]

The appellant appeals from the
    dismissal of her application for a declaration that she holds a permanent
    easement over part of the respondents property. At the conclusion of the
    hearing of the appeal, we dismissed the appeal with reasons to follow. These
    are those reasons.

[2]

The appellant and respondent own
    neighbouring houses, respectively at 11 and 15 Ferncroft Drive in Toronto. The
    appellant claims a right of easement over the passageway between the two houses
    that runs to the backyards of the properties. No easement is registered on
    title to 15 Ferncroft Drive. The appellant bases her claim on the historical
    use exercised by the former owner of 11 Ferncroft Drive over the respondents
    property in order to carry out cleaning and repairs. She submits that the
    application judge erred in determining that this historical use of the
    respondents property was not as of right but was instead granted by
    permission or licence from its former owner, and that the former owner had not acquiesced
    to such use by the appellants predecessor.

[3]

We do not accept this submission.

[4]

The application judge carefully
    reviewed and applied the correct legal principles, including that a
    prescriptive easement requires the use of the property over which the easement
    is claimed to be a claim of right which is continuous, uninterrupted, open and
    peaceful for a period of twenty years:  see s. 31 of the
Real
    Property Limitations Act
, R.S.O. 1990, c. L.15;
    and
Henderson v. Volk
, [
1982]
O.J. No. 3138
    (C.A.), at para. 12.  Moreover, the use or enjoyment of the easement must not
    be permissive but, instead, as if the claimant had the right to the easement:
1043 Bloor Inc. v. 1714104 Ontario Inc.
, 2013 ONCA 91, at para. 59.

[5]

The application judge concluded that
    the historical usage of the respondents property on which the appellant relies
    was only modest, infrequent, and intermittent, and was permitted by the
    extension of the former owners neighbourly good will to his fellow war veteran
    and neighbour of many years.  This conclusion was based on the application
    judges acceptance of the testimony given by the former owner of 15 Ferncroft
    Drive, William Tryon, who had lived at the property for almost 60 years.  Specifically,
    Mr. Tryon testified that the historical usage of his property consisted of the
    former owner of 11 Ferncroft Drive coming onto the passageway perhaps once or
    twice a year to clean eaves troughs or windows, or service air conditioning
    lines. As a result, the application judge found that the appellant had not met
    her evidentiary burden of establishing an easement as of right.

[6]

As noted by the application judge, the
    threshold for meeting the criteria for establishing an easement is high. It is
    well-established that courts should proceed cautiously before finding that an
    easement exists because of the burden it places on a landowners ownership
    interest without compensation. Moreover, it may discourage neighbourly
    accommodations and reward aggressive overreaching. (See:
Henderson
, at para. 21;
1043 Bloor Inc.
, at paras. 103-106.)

[7]

The application judges
    characterization of the occasional permissive historical usage of the
    respondents property was open to him on the record.  We see no error that
    would permit appellate intervention.

[8]

For these reasons, we dismiss the
    appeal.

[9]

The respondent is entitled to her partial
    indemnity costs of the appeal in the amount of $9,000.00, inclusive of
    disbursements and applicable taxes.

J.C. MacPherson J.A.

H.S. LaForme J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Collins (Re), 2018 ONCA 563

DATE: 20180621

DOCKET: C64471

Doherty, Epstein and Pepall JJ.A.

IN THE MATTER OF: Christopher J. Collins

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Avene Derwa, for the respondent

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

Heard: May 11, 2018

On appeal against the disposition of the Ontario Review
    Board dated Tuesday October 3, 2017.

Epstein J.A.:

[1]

The appellant has a long history of psychiatric illness. In 2005, at 22
    years of age, he committed a nonviolent offence during a psychotic episode. He has
    been under the supervision of the Ontario Review Board ever since.

[2]

He appeals the October 3, 2017 disposition of the Board that followed a
    combined restriction of liberty hearing and annual review hearing. The Board concluded
    that the appellant continued to constitute a significant threat to the safety
    of the public and ordered that he be transferred from the Centre for Addiction
    and Mental Health (CAMH) to St. Josephs Mental Health Care, on the general
    forensic unit.

[3]

The appellant raises two main grounds of appeal. First, he argues that the
    Boards conclusion that he remains a significant threat to the safety of the
    public was unreasonable. Second, he submits that the Board erred in failing to consider
    granting him a conditional discharge.

[4]

For the reasons that follow, I would allow the appeal. Although the
    Boards decision that the appellant continued to pose a significant threat to
    public safety was reasonable in the circumstances, in my view the Board erred
    in failing to consider whether the imposition of a conditional discharge was
    the least onerous and least restrictive disposition available. I would refer
    the matter back to the Board for a new hearing under s. 672.78(3) of the
Criminal
    Code

to consider whether a conditional discharge should be imposed
    in the circumstances.

Background

[5]

The appellants index offences occurred in May, 2005. He was observed
    thrusting a knife into the front door of his neighbours home. He then returned
    to his own home and was arrested.

[6]

The appellant was found not criminally responsible on account of mental
    disorder (NCR) on a charge of mischief over $5000 and possession of a weapon
    for a dangerous purpose. During the twelve years since he was declared NCR, the
    appellant has been detained at CAMH almost continuously, living in the
    community on only brief occasions.

[7]

On July 27, 2017, CAMH advised the Board that the appellant had been
    transferred from the general unit at CAMH to a secure unit. The Board convened
    on September 19, 2017 to hold both a restriction on liberty hearing and a
    review of the appellants disposition.

(1)

The appellants history prior to the NCR ruling

[8]

The appellant suffers from psychotic disorder unspecified, cannabis use
    disorder, anxiety disorder unspecified, and antisocial and Cluster C
    personality traits. He is now 34 years old.

[9]

He had a troubled upbringing; mental health professionals have been
    involved in his care from an early age. He was removed from the family home and
    placed in a group home in Grade 8. As a child, he was diagnosed with ADHD, bipolar
    disorder, and a thought disorder. He was prescribed antipsychotic medication.

[10]

In
    2004 the appellant was admitted to hospital as a result of a psychosis
    presentation. He was diagnosed with a mixed personality disorder and obsessive-compulsive
    disorder.

[11]

The
    appellant also has a criminal record pre-dating his index offences, involving convictions
    for assault and assault with a weapon.

(2)

The appellants conduct under the Boards jurisdiction

[12]

The
    appellant has almost continuously used cannabis while under the Boards
    jurisdiction. He has been caught using cannabis and bringing it into CAMH on
    several occasions, and has regularly tested positive for cannabis and synthetic
    cannabinoid products. The appellant often has difficulty following rules, and
    went AWOL in 2014 while in the community and again in 2015 while on an escorted
    pass.

[13]

The
    appellant has also had a number of incidents of violence since his index
    offence, including:

·

In 2010, while in the community, he was convicted of assaulting
    his father.

·

In 2012, he assaulted a security guard.

·

In 2014 and 2015 there were several incidents of agitation,
    involving furniture destruction and threats to staff and co-patients. During at
    least one of these occasions the appellant was intoxicated as a result of
    cannabis use.

·

In April, 2015, he pushed a co-patients head against the wall,
    kicked the nursing station board, threatened to assault staff, and punched
    walls.

·

In August, 2015 he was involved in a physical fight with a co-patient.
    They were throwing punches and wrestling on the ground when staff intervened.

·

In June, 2015 the appellant punched himself in the face.

·

In February, 2016 he motioned his fist and stated that he would
    knock out a psychiatrist. He was also verbally aggressive towards a co-patient,
    pushed a ping-pong table and yelled obscenities. He was placed in a seclusion
    room, where he punched the wall and mattress.

[14]

Notably,
    however, there was no evidence of any such incident occurring within more than
    two years leading up to the disposition under review.

(3)

The opinion of the treating psychiatrist

[15]

The
    Board heard evidence from Dr. Rootenberg, the appellants treating
    psychiatrist. Dr. Rootenberg testified that the decision to restrict the
    appellants liberty on July 19, 2017 was due to his escalating substance use
    and the clinical teams inability to control his substance use on a general
    forensic unit.

[16]

Dr.
    Rootenberg testified that his view was that the appellant represented a
    significant threat to the safety of the public. He based this on the
    appellants long history of violence, lack of insight, and poor impulse
    control. He also identified the appellants use of marijuana and synthetic
    cannabinoids as a major risk management concern  he noted that the appellant
    had recently tested positively for synthetic agents, which are more
    unpredictable than regular cannabis products and increased the likelihood of his
    becoming violent. Consistent with the Hospital Report prepared for the
    disposition, Dr. Rootenberg testified that the appellant has poor insight into
    his mental illness and his substance use.

[17]

The
    conclusion set out in the Hospital Report was that based on the appellants
    history of aggression, ongoing substance use, and limited insight, he remained
    a significant threat to the safety of the public. The appellants score on the Violence
    Risk Appraisal Guide test put him at a high risk of violent recidivism. The other
    actuarial risk test conducted by the hospital, the HCR-20 test, identified the
    appellant as being at a low-moderate risk of violently reoffending with his
    current supervision and structure, but that this would greatly increase if he
    were to receive an absolute discharge.

(4)

The Boards decision

[18]

The
    appellant requested an absolute discharge, or, alternatively, a conditional
    discharge. In the further alternative, the appellant argued that there was a
    treatment impasse at CAMH and that he should be transferred to St. Josephs.

[19]

The
    Board unanimously concluded that the appellant continued to constitute a
    significant threat to the safety of the public. It relied on Dr. Rootenbergs
    evidence that there was a real risk that the appellant would fall away from
    treatment and stop taking his medication if absolutely discharged. The Board
    noted the appellants long history of substance abuse with cannabis and
    synthetic cannabinoids, which impacts his mental health negatively and has
    triggered psychosis which on occasion has led to violence.

[20]

The
    Board did not consider whether a conditional discharge was an appropriate
    disposition.

[21]

The
    majority of the Board ordered that the appellant be detained on a general
    forensic unit with the opportunity for community living privileges, and that he
    be transferred to St. Josephs so that he could be given a fresh start and an
    opportunity to work with a new treatment team. A minority of the Board would
    have made a hybrid order, permitting the hospital to detain the appellant on
    the secure forensic unit and to transfer him to a general forensic unit and the
    community, should his treating psychiatrists determine that his mental state
    had improved.

[22]

The
    appellant has been moved to St. Josephs Health Centre, Hamilton since this disposition.

Issues

[23]

This
    appeal gives rise to two issues:

1.

Was the Boards conclusion that the appellant remained a significant
    threat to the safety of the public reasonable?

2.

Did the Board err in failing to consider whether to grant the appellant
    a conditional discharge?

analysis

(1)

Did the Board err in concluding the appellant was a significant threat
    to the public?

(a)

The significant threat requirement

[24]

The
    Board must order an absolute discharge if it concludes that an NCR accused does
    not pose a significant threat to the safety of the public:
Criminal Code
,
    s. 672.54(a).

[25]

The
    phrase significant threat to the safety of the public refers to a foreseeable
    and substantial risk of physical or psychological harm to members of the
    public. This risk must be serious, in the sense of going beyond the merely
    trivial or annoying:
Winko v. British Columbia (Forensic Psychiatric
    Institute)
, [1999] 2 S.C.R. 625
, at para. 62. As
    Doherty J.A. explained in
R. v. Ferguson
,
2010 ONCA 810, 271
    O.A.C. 104, at para. 8, [a] very small risk of even grave harm will not
    suffice. A high risk of relatively trivial harm will also not meet the
    substantial harm standard. While the conduct must be criminal in nature, not
    all criminal conduct will suffice to establish a substantial risk. There must
    be a risk that the NCR accused will commit a serious criminal offence.

(b)

The standard of review

[26]

This court reviews decisions of the Board on a
    reasonableness standard. The Boards membership has significant expertise in
    evaluating the medical and social factors associated with risk assessment:
Ferguson
, at para. 10. The Boards decisions are owed a high degree of
    deference in the light of the nature of the inquiries before the Board, the
    familiarity of the Board with the statutory regime and the specific NCR accused
    persons before the Board, as well as the difficulty in assessing whether a
    given individual poses a significant threat to public safety:
Winko
,
at para. 60. This decision is not
    amenable to strict proof  the Board is required to exercise its expert
    judgment based on its evaluation of the evidence:
Re Carrick
,
2015 ONCA 866, 128 O.R. (3d) 209, at
    para. 25.

[27]

As Doherty J.A. noted in
Ferguson
, this court on review does not decide whether the appellant poses a
    significant threat to the safety of the public; it only decides whether the
    Boards determination is reasonable. In performing that function, it asks only
    whether the Boards decision was unreasonable in the sense of not being
    supported by reasons that can bear even a somewhat probing examination:
R.
    v. Owen
, 2003 SCC 33, [2001] 1 S.C.R. 779, at para. 33.

(c)

Was the Boards decision that the appellant posed a significant threat to
    public safety reasonable?

[28]

The
    appellant argues that the Board erred in law in failing to grant him an
    absolute discharge. Specifically, the Board erred in concluding that the
    significant threat threshold had been met in the circumstances, relying on a
    dated history of violence involving relatively minor incidents. The Board also
    made unreasonable findings in: (i) concluding, based on the testimony of Dr.
    Rootenberg, that the appellant would fall away from treatment if granted an
    absolute discharge, despite the fact that the appellant had been compliant with
    treatment for many years; and (ii) relying on the appellants continued use of
    cannabis as evidence of a risk of psychosis, even though the appellant in the
    reporting period had not become psychotic despite using cannabis.

[29]

The
    Crown submits that the Boards finding that the appellant is a significant
    threat to the safety of the public discloses no error in the light of his
    mental disorders, lengthy history of violence, and legitimate concerns about
    his falling away from treatment if discharged.

[30]

I
    would not give effect to this ground of appeal.

[31]

The only evidence before the Board on whether
    the appellant would fall away from treatment if given an absolute discharge;
    namely, the Hospital Report and the testimony of Dr. Rootenberg, demonstrated
    that the appellant has limited insight into his mental illness. He regularly (although
    not always) denies that he has a mental illness, and disputes whether his
    medication is of any benefit to him. Although he may take his medication while
    under a detention order, on this record, it was reasonable for the Board to
    rely on the opinion of the appellants treatment team and conclude that he
    would likely stop taking anti-psychotic medication if no longer subject to
any

supervision.

[32]

The appellants counsel also conceded before the
    Board that the appellant has consistently used cannabis and synthetic
    cannabinoids while under the Boards jurisdiction and will continue do so if
    discharged absolutely. Although during the reporting period the appellant had
    not become psychotic while using cannabis, there was evidence before the Board
    that this had occurred previously, and that cannabis use generally impacted his
    mental state. That evidence, combined with the expert testimony that
    established the connection between cannabis and his psychosis, was sufficient to
    support the Boards conclusion that his use of cannabis increased his risk of
    psychosis.

[33]

The question before the Board, then, was whether
    the appellant constituted a significant risk of violent recidivism after taking
    into account: (i) his history of violent behavior; (ii) his likely failure to
    take anti-psychotic medication if absolutely discharged; (iii) his continued cannabis
    use; and (iv) the evaluations and risk assessment done by his treatment team.

[34]

In
    my view, it was reasonable for the Board to conclude that the appellant
    remained a significant threat to public safety. As Binnie J. said for the
    majority in
Owen
, at para. 33, this court should decline to intervene where
    the Boards decision could reasonably be the subject of disagreement between
    Board members. The Boards decision was grounded in the evidence and was within
    a range of acceptable and rational solutions:
Dunsmuir v. New Brunswick
,
    2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[35]

Dr.
    Rootenberg testified that the appellant has an established history of
    violence, which is triggered by perceived slights or real slights  not
    simply frustration because his liberty was being restricted, as the appellant
    contends. He concluded that the appellant met the significant threat threshold
    as a result of the appellants past history, his substance use, and  crucially
     his lack of insight. He testified that if absolutely discharged the appellant
    would not take his medication and would constitute a greater risk to the
    public, and that the appellant was a significant threat to public safety even
    if he did not take substances, based on his history of violence and problems
    with impulse control. The actuarial risk assessments performed by the hospital
    supported this conclusion.

[36]

The
    Hospital Report notes that the appellants risk of reoffending on an absolute
    discharge would result from non-adherence to his current psychopharmacological
    regiment in conjunction with substance use, which would lead to psychosis. His
    reoffending behavior would most likely involve family members as victims. The
    report notes that when psychotic, the appellant behaves in a dangerous and
    unpredictable fashion.

[37]

Although
    the appellants history of violence is relatively dated, it was far more recent
    and relevant than the violent conduct at issue in
Re Wall
, 2017 ONCA
    713, 417 D.L.R. (4th) 124,

pointed to by the appellant. It was not
    unreasonable for the Board to rely on the appellants history of violence as
    part of its expert determination:
Re Medcof
,
2018 ONCA 299,

at
    para. 55. Unlike
Re Pellett
,
2017 ONCA 753, 139 O.R. (3d) 651, upon
    which the appellant also relied, the appellants violence was not a one-off
    incident, but a pattern of behaviour.

[38]

Based
    on this analysis I would not give effect to this ground of appeal.

(2)

Did the Board err in failing to consider granting the appellant a conditional
    discharge?

[39]

However,
    in my view the Board erred by failing to consider whether a conditional
    discharge was the least onerous and least restrictive disposition available in
    the circumstances.

[40]

The appellant submits that the Board erred in
    failing to consider whether a discharge subject to conditions could manage his
    risk to the community.

[41]

The Crown attempts to justify the Boards
    failure to consider whether a conditional discharge was the least onerous and
    restrictive disposition consistent with public safety by submitting that there
    was no air of reality to a conditional discharge. In particular, the Crown
    argues that there was evidence that if the appellant was discharged he would
    need to reside in structured accommodation approved by the hospital, and it is
    well established law that a Review Board cannot order a conditional discharge if
    the hospital needs to approve the NCR accuseds accommodation.

(a)

The legal framework

[42]

After
    concluding that the appellant continued to represent a significant threat to
    public safety, the Board was required to impose the least onerous and least restrictive
    disposition in the circumstances:
Criminal Code
,
s. 672.54.

[43]

In
Winko
,
at para. 43,
the Supreme Court directed that
    an NCR offender is to be treated with dignity and accorded the maximum liberty
    compatible with Part XX.1's goals of public protection and fairness to the NCR
    accused. In my view, where the NCR accused requests a conditional discharge
    and there is an air of reality that such a disposition would be appropriate, the
    Board must consider granting an NCR accused a conditional discharge: see
R.
    v. Breitwieser
, 2009 ONCA 784, 99 O.R. (3d) 43.

[44]

In this case, in my view there was a sufficient air of reality to
    the appellants claim that a conditional discharge would be an appropriate
    disposition. It follows that it was incumbent upon the Board to consider whether
    a conditional discharge
was the least onerous and least restrictive
    disposition available in the circumstances.

[45]

The
    appellants lack of insight and probable failure to take anti-psychotic
    medication if absolutely discharged was a central reason for the Boards
    finding that the appellant was a significant threat to public safety. Absent
    this conclusion, given the appellants relatively dated history of acting out
    in a violent manner and the nature of the index offence, a conclusion that he
    represented a significant threat may have been unreasonable.

[46]

As
    noted above, the Board was required to consider whether the appellants risk to
    public safety was capable of being managed. The evidence disclosed that while
    in the hospital the appellant was compliant with his anti-psychotic medication.
    Dr. Rootenbergs concern was that the appellant would fall away from taking his
    medication absent
any

supervision. He did not testify about the
    possibility of ensuring the appellant remained compliant with his medication
    through the supervision inherent in a conditional discharge, or the risk the
    appellant would pose in the community if conditionally discharged.

[47]

At
    minimum, the Board was required to consider whether conditions could be crafted
    to adequately address medication compliance concerns and allow the appellant to
    be safely managed in the community. The failure to do so was an error: see
Re
    Baumann
, 2015 ONCA 603, 447 O.A.C. 199;
Re Tolias
, 2018 ONCA 215;
Re Runnals
, 2008 ONCA 93. Of course, compliance with medication
    treatment cannot be a condition of a discharge order absent an NCR accuseds
    consent:
Criminal Code
,
s. 672.55(1). However, in these
    circumstances the Board was required to canvass whether the appellant would
    have consented to such a condition:
Breitwieser
,
at para. 18;
R.
    v. Coles
,
2007 ONCA 806, at para. 4.

[48]

After
    properly engaging in this analysis and considering the factors outlined in s.
    672.54 of the
Criminal Code
, the Board may have gone on to reject the
    appellants request for a conditional discharge. But there was nonetheless an
    air of reality to the appellants request for a conditional discharge such
    that the Board was required to consider this disposition.

[49]

I
    would also reject the Crowns argument that there was no air of reality to a
    conditional discharge because the evidence before the Board indicated that the
    appellant required structured accommodation approved by the hospital. Although
    this proposition is correct in law  see, for example,
Re Boucher
,
2015
    ONCA 135,

at para. 6  the Board made no such factual finding in its
    reasons. The appellants apparent need for structured accommodation approved by
    the hospital was only a suggestion in the Hospital Report  it was not
    considered by the Board.

Disposition

[50]

In
    the result, I would allow the appeal and order that this matter return to the
    Review Board to consider whether a conditional discharge should be imposed in
    the circumstances.

Released: DD JUN 21 2018

Gloria Epstein J.A.

I agree. Doherty
    J.A.

I agree. S.E. Pepall
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Davies v. Davies Smith Developments Partnership,
    2018 ONCA 550

DATE: 20180615

DOCKET: C64009

Strathy C.J.O., Feldman and Brown JJ.A.

BETWEEN

Walter Davies
and
CityGate (WD) Management Corp.

Plaintiffs
(Appellants/Respondents in Cross-Appeal)

and

Davies Smith Developments
    Partnership
Nelson Reis and PM Construct Inc.

Defendant
(Respondent/Appellant in Cross-Appeal)

John E.F. Gibson and Paul Bates, for the appellants

Evan L. Tingley, for the respondent

Heard: June 11, 2018

On appeal from the judgment of Justice Peter J. Cavanagh of
    the Superior Court of Justice, dated June 19, 2017, with reasons reported at
    2017 ONSC 3796.

REASONS FOR DECISION

[1]

The appellant Walter Davies retired from a partnership that carried on a
    construction business. The partners signed an agreement in June 2005, which
    called for his equity and his share in the profits of various projects to be
    paid to him between June 2005 and June 2008. The agreement included a schedule
    of payments to be made and the dates on which they were to be made.

[2]

The payments were not made at the times set out in the schedule, because
    the respondent did not have sufficient funds to make them.

[3]

There were disagreements over the quantification of the appellants
    share of the profits. He commenced litigation in September 2012, some four
    years after the date the payments were to have been made.

[4]

The trial judge found that the appellants action was time-barred. His
    equity and share of the profits were due to him by June 2008. His claim was
    discovered, within the meaning of s. 5 of the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B, when he did not receive the payments. This was more
    than four years before the action was commenced.

[5]

The judge noted that the appellants claim was based entirely on the
    respondents breach of the June 2005 agreement. The statement of claim and the
    appellants evidence were consistent in asserting that the monies owing to him
    were to be paid by June 2008.

[6]

With knowledge that he had a cause of action against the respondent for
    breach of the agreement, instead of taking action to enforce payment, the
    appellant was content to receive draws against his share of the profits and to
    earn interest on the indebtedness.

[7]

The trial judge found as a fact that the appellant knew by July 2008
    that he had suffered injury, loss or damage; that the damage was caused by the
    failure of the respondent to make the payments set out in the agreement; and
    that it was legally appropriate for an action to be commenced. For his own
    reasons, he did not do so.

[8]

Accordingly, the trial judge dismissed the appellants action.

[9]

We dismiss the appeal, substantially for the thorough and compelling
    reasons of the trial judge. His interpretation of the agreement  finding that
    it called for payment by the end of June 2008  was based on the language of
    the agreement, interpreted in light of the factual matrix, and is entitled to
    deference. While it was agreed that the amounts set out in the agreement were
    estimates, the evidence does not support the appellants submission that the
    payment dates set out in the schedule to the agreement were simply estimated
    dates. The appellants own evidence is inconsistent with this assertion.

[10]

Nor
    has the appellant demonstrated a palpable and overriding error in the trial
    judges conclusion that the claim was discovered in July 2008.

[11]

In
    asserting that the limitation period had not expired, the appellant submits
    that: (a) the amount owing to the appellant was in dispute; (b) the profits
    could not be ascertained until the partnerships projects had been completed;
    (c) an action was not an appropriate means to remedy the appellants loss
    because he knew the partnership did not have funds; and (d) there had been
    forbearance or novation, making it inappropriate to commence an action. The
    appellant submits that the claim was not discovered until 2011, when he
    realized that the respondent had made improper charges to his capital account.

[12]

We
    agree with the respondent that the first two submissions confuse damage with
    damages. The appellant knew by the end of June 2008 that he had suffered
damage
, even though the amount of his
damages
was a matter of dispute and had not been
    quantified: see
Hamilton (City) v. Metcalfe & Mansfield Capital
    Corporation
, 2012 ONCA 156, 347 D.L.R. (4th) 657, at paras. 54 and 58.

[13]

The
    third submission that the respondent did not have the funds to pay, while
    perhaps explaining the appellants conduct, did not stop the limitation period
    from running. The appellants claim was fully ripened by July 2008. The word appropriate,
    as it appears in s. 5 of the
Limitations Act
, means legally
    appropriate. The appellant cannot rely on his own tactical reasons for
    delaying the commencement of legal proceedings: see
Markel Insurance
    Company of Canada v. ING Insurance Company of Canada
, 2012 ONCA 218, 348
    D.L.R. (4th) 744, at para. 34.

[14]

As
    to the fourth submission, the appellant claims there was a novation of the
    agreement, whereby he agreed to postpone his claim in exchange for receipt of
    draws and accrual of interest. In effect, the appellant argues that the
    agreement was amended. The answer to this submission is: (a) it was not
    pleaded; (b) because it was not pleaded, no evidence was adduced with respect
    to it; and (c) the issue was not argued in the court below. In any event, there
    is no evidence that the parties agreed to amend the agreement or to replace it with
    a new agreement. Nor is there any evidence to support the argument that the
    appellant agreed to forbear from commencing an action in a way that would have
    suspended the operation of the limitation period: see
Hamilton (City) v.
    Metcalfe & Mansfield
, at paras. 74 and 75.

[15]

For
    these reasons, the appeal is dismissed, with costs of $20,000, inclusive of
    disbursements and all applicable taxes. The cross-appeal is dismissed as moot.
    That said, it is our view that the cross-appeal had no merit, inasmuch as it
    challenged the trial judges factual findings without demonstrating palpable
    and overriding error in the assessment of the evidence. We therefore award
    costs of the cross-appeal to the appellants (respondents on the cross-appeal),
    in the amount of $10,000, all-inclusive. That amount may be set off against the
    costs awarded on the appeal.

G.R. Strathy C.J.O.

K. Feldman J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Dujardin v. Dujardin, 2018 ONCA 597

DATE: 20180629

DOCKET: C63016

Pepall, Brown and Trotter JJ.A.

BETWEEN

Loretta June Dujardin

Plaintiff (Appellant)

and

Noel Dujardin, Trustee of the Estate of Jacques
    Henry Dujardin

Defendant (Respondent)

Joseph J. Neal, for the appellant

Frederick E. Leitch, Q.C., for the respondent

Heard: March 27, 2018

On appeal from the judgment of Justice Alissa K. Mitchell
    of the Superior Court of Justice, dated November 9, 2016, with reasons reported
    at 2016 ONSC 6980.

Trotter J.A.
:

A.

introduction

[1]

This appeal concerns the validity of two wills executed by the late
    Jacques Henry Dujardin (Jack). Jack and his brother Noel jointly owned a farm
    property that had been in their family since 1958. In 2009, they executed
    mirror wills  personal and corporate  leaving their equal interests in the farm
    to each other.

[2]

When Jack died, he was married to Loretta June Dujardin (Loretta). He
    did not provide for her in his 2009 wills. However, he designated her as the
    sole beneficiary in a Registered Retirement Income Fund (RRIF), which was
    worth about $123,000 at the time of his death. Having been left nothing in the wills,
    Loretta challenged their validity. She contended that, as a result of chronic
    alcoholism, Jack lacked testamentary capacity. The trial judge dismissed
    Lorettas claim.

[3]

On appeal, Loretta argues that the wills should have been declared
    invalid, and that the trial judge erred in not allowing a doctor to provide
    expert testimony in support of her position. I would dismiss the appeal.

B.

General background

[4]

It is necessary to locate this dispute in the broader context of Jacks
    life, family history, and his relationship with his brother Noel.

[5]

Jack was born in Belgium in 1942. As a teenager, he immigrated to Canada
    with his parents and seven siblings in 1958. Until 1966, the family farmed
    tobacco on lands owned by others, and eventually on the land that is the
    subject matter of the corporate will in dispute. In 1967, Jacks parents bought
    this farmland and incorporated Dujardin Farming Limited.

[6]

Jacks mother died in 1980, and his father in 1983. Each of the siblings
    received a 12.5% interest in the farming corporation. Jack and Noel set about purchasing
    all of their siblings shares. The brothers lived on the farm together and ran
    the farming business as a true partnership. They shared the physical work,
    while Noel had a greater role in the financial aspects.

[7]

Jack met Loretta in 1982. They began a relationship in 1994 and she
    moved into the farmhouse late that year. Jack proposed marriage to Loretta in
    1997.

[8]

On February 27, 1998, after the brothers finally acquired all of the shares
    in the business, they executed mirror wills, leaving their entire estates to
    each other. This was before Jack married Loretta in 2000.
[1]
At the time, their lawyer was Douglas Gunn. He drafted the wills and provided
    legal services in relation to the farming business.

[9]

In August of 2006, when Jack and Noel met Mr. Gunn to deal with
    corporate matters, Mr. Gunn advised the brothers to reorganize their affairs by
    executing both corporate and personal wills. This would minimize probate fees.
    Mr. Gunn sent them draft wills on September 20, 2006. The brothers did not do
    anything with the wills for some time. On March 9, 2009, they attended at Mr.
    Gunns offices and executed the new wills. I will discuss this meeting in more
    detail below. As already noted, the brothers left their respective interests in
    the farm to each other.

[10]

The
    dispute in this case arises as a result of Jacks lifestyle and his related health
    problems. Jack had a difficult relationship with alcohol. The evidence
    established that, during the day, he was a productive worker. However, when he finished
    his work in the late afternoon, Jack would go into the Town of Aylmer to have a
    couple drinks. When he returned home, he drank into the night, until he fell
    asleep. Noel testified that Jack purchased 40 ounces of liquor each day.
    Despite his alcohol use, the evidence established that, around the time he
    executed his 2009 wills, Jack was able to function properly at work and in his
    business dealings. A parade of witnesses from the local farming community testified
    that, while they knew that Jack liked to drink, they noticed nothing wrong with
    his cognitive functioning.

[11]

In
    2007, at age 65, Jack suffered a heart attack and was hospitalized for two
    weeks. This was after attending Mr. Gunns office in 2006, but well before
    executing his 2009 wills. In the days following his heart attack, Jack was
    confused and not very communicative. He was on morphine at the time. However,
    those who visited him said that he soon came around and seemed more like
    himself.

[12]

The
    anchor for Lorettas attack on the wills is medical documentation from that
    hospitalization. In a discharge summary, Dr. Timothy Burns wrote:

The main problem was with cognitive dysfunction and confusion
    disorientation
thought to be
due to organic brain syndrome secondary to
    alcohol abuse. Over the next week or two his sensorium cleared somewhat.
    [Emphasis added.]

[13]

Other
    records confirmed Jacks improvement over the course of his hospital stay.
    Nevertheless, Dr. Burns wrote to the Ministry of Transportation suggesting that
    Jack should be tested before being permitted to drive. Dr. Burns saw Jack again
    in May of 2008 and noted no cognitive impairment as it related to his ability
    to drive. However, Jack was never able to reclaim his driving privileges.

[14]

After
    being released from hospital in 2007, Jack was abstemious for a time, but it
    would appear that he eventually returned to alcohol. He had another heart
    attack in 2010. Jack had a stroke and died on December 26, 2011.

C.

the trial

[15]

Leading
    up to the trial, Loretta was represented by counsel; by the time of trial, she
    was self-represented.

[16]

Early
    on in the proceedings, in 2012, Loretta filed a Notice of Objection to the
    issuance of a Certificate of Appointment of Estate Trustee, itemizing the
    following concerns: (a) the deceased lacked testamentary capacity, and (b) the 2009
    wills were not properly executed.

[17]

During
    the discovery process, when Loretta had counsel, it was clarified that undue
    influence was not in issue. Loretta confirmed this position at trial.
    Consequently, the trial proceeded on the issues of whether Jacks wills were
    properly executed and whether he lacked testamentary capacity.

[18]

At
    the beginning of the trial, counsel for Noel conceded that, because of Jacks
    chronic alcoholism, suspicious circumstances were present that cast the onus on
    his client to establish the validity of the wills. Accordingly, Noel, as the
    propounder of the wills, called his evidence first.

[19]

Loretta
    indicated her intention to call an expert witness, Dr. Martyn Judson, to
    testify that Jack lacked testamentary capacity due to organic brain syndrome.
    Counsel for Noel opposed the admission of this evidence and took the position
    that, if Dr. Judsons evidence were to be admitted, he would attempt to adduce the
    expert opinion of Dr. Maurice Hirst of Western University in reply.

[20]

The
    trial judge refused to admit Dr. Judsons evidence. Consequently, Noel did not
    attempt to lead expert evidence.

[21]

Based
    on the entirety of the evidence, the trial judge found that Jacks wills were
    properly executed, that he knew and approved of their contents, and that he had
    testamentary capacity at the time they were executed.

D.

issues on appeal

[22]

Loretta
    contends that the trial judge erred in ruling Dr. Judsons evidence inadmissible.
    She further argues that the trial judge erred in finding that: Jack knew and
    approved of the contents of his wills; Jack possessed testamentary capacity;
    and the wills were properly executed. On appeal, Loretta also attempts to
    introduce the new issue of whether the brothers lawyer, Mr. Gunn, received
    proper instructions to prepare the wills.

E.

analysis

(1)

The admissibility of Dr. Judsons evidence

[23]

Dr.
    Judson specializes in substance abuse treatment and addiction medicine. Prior
    to trial, Lorettas lawyer retained him to provide an opinion about Jacks
    testamentary capacity.

[24]

Dr.
    Judson never met Jack. His opinion was based on Jacks hospital records
    following his 2007 heart attack, and other documents associated with this
    litigation (including examination for discovery transcripts).

[25]

In
    his first of three reports, dated April 1, 2014, Dr. Judson briefly reviewed
    Jacks medical history, with emphasis on his hospitalizations. He noted
    references to organic brain syndrome in Jacks records and described the
    condition. Dr. Judson was of the opinion that Jack displayed a constellation of
    symptoms known as Wernicke-Korsakoff Syndrome. He concluded that, while Jack
    appeared to be significantly tolerant of alcohol and was able to function reasonably
    well physically, [n]evertheless, the influence of the Organic Brain Syndrome
definitely
would have impaired his comprehension and ability to understand the contents of
    any legal document which he signed in 2009 (emphasis added). Based on Jacks
    typical patterns of drinking, Dr. Judson suggested that Jack was either
    drinking or experiencing withdrawal when he attended Mr. Gunns office on March
    9, 2009. He offered the opinion that Jack lacked testamentary capacity,
    concluding:
In all probability
Mr. Dujardin did not appreciate the
    significance of statements made by him in his lawyers office or the
    responsibilities associated with so doing (emphasis added).

[26]

In
    response to Dr. Judsons first report, Mr. Gunn obtained an opinion from a
    capacity assessor, who opined that Dr. Judsons conclusions were, at best,
    speculative. On June 17, 2014, Dr. Judson responded to the opinion of the assessor,
    denying that his initial opinion was mere speculation. He wrote, [i]n fact
    it is speculation to consider Mr. Dujardin not to have been impaired. After
    recounting his qualifications to make such judgments, Dr. Judson concluded his
    second letter by saying:

In summary, it is therefore
possible
to state that the
likelihood
that Mr. Dujardin was cognitively impaired as a result of alcohol consumption
    is far greater than the probability that he was not. That is not speculation
    but instead an unfortunate reality. [Emphasis added.]

[27]

Dr.
    Judson wrote a third letter on November 10, 2015, this time responding to letters
    prepared by doctors who had examined Jack during his life, and an expert report
    written by Dr. Hirst on July 30, 2014. Dr. Hirsts report raised serious doubts
    about Dr. Judsons diagnosis. In response, Dr. Judsons opinion became far more
    tentative. Confronting the suggestion that Jack did not have Wernicke-Korsakoff
    Syndrome, he wrote:

Even if the support for the presence of the syndrome is weak,
there
    is still the possibility that Mr. Dujardin may have not fully comprehended the
    legal advice provided to him on March the 9
th
, 2009 because of
    cognitive impairment.

In summary, if it is accepted that Mr. Dujardin experienced
    alcohol induced confusion on occasions,
there is a degree of probability
that he did not fully comprehend the details of the will that he signed.
    [Emphasis added.]

[28]

Counsel
    for Noel objected to the admission of Dr. Judsons evidence on the basis that
    he purported to give an opinion on the ultimate issue in the case  Jacks
    testamentary capacity, a matter to be determined by the trial judge based on
    all of the evidence. In addition, referring to
R. v. Mohan
, [1994] 2
    S.C.R. 9, and
White Burgess Langille Inman v. Abbott and
    Haliburton Co
.
, 2015 SCC 23, [2015] 2 S.C.R. 182, he argued that
    the evidence was inadmissible because it was not necessary, and that its
    admission would not be worth the time and cost involved. As already noted, if
    Dr. Judson were allowed to testify, reply evidence was anticipated.

[29]

In
    an oral ruling in which she refused to admit Dr. Judsons evidence, the trial
    judge observed that his revised opinion became significantly diluted from his
    original opinion and merely raises the possibility that Mr. Dujardin may have
    been suffering from a cognitive impairment making him unable to fully
    comprehend the legal advice provided on March 9, 2009. Concluding that Dr.
    Judsons opinion did not assist her on the testamentary capacity issue, the
    trial judge ruled as follows:

In accordance with the principles developed by the Supreme
    Court in
Mohan
and
White Burgess
, I exercise my discretion as
    gatekeeper of the evidence and find the evidence of Dr. Judson, in its
    totality, to be inadmissible. His watered-down opinion provides such little, if
    any, assistance to the court that the time consumed with his testimony and the
    testimony of responding experts outweighs any possible benefit to the court.

[30]

I
    see no error in the trial judges conclusion that the evidence was inadmissible
    on a cost/benefit analysis, in terms of balancing relevance, reliability and
    necessityagainst the counterweights of consumption of time, prejudice and
    confusion:
R. v. J.-L.J
.
, 2000 SCC 51, [2000] 2 S.C.R. 600, at
    para. 47. See also
White Burgess
, at paras. 24 and 54.

[31]

It
    would have been easy for the trial judge to have simply admitted Dr. Judsons
    evidence, and any opinion called in reply, postponing an exacting analysis of
    this body of evidence until the end of the trial. However, the modern approach
    to expert evidence requires more of trial judges. In
R. v. Abbey
, 2017
    ONCA 640, 350 C.C.C. (3d) 102, Laskin J.A. said, at para. 53, No longer should
    expert evidence be routinely admitted with only its weight to be determined by
    the trier of fact.

[32]

Dr.
    Judsons initial opinion was a categorical assertion about Jacks incapacity,
    but after some pushback by those of a different view, he could only offer a
    most tentative, if not speculative, opinion. And this was just on paper. It is
    unlikely that cross-examination would have leavened Dr. Judsons opinion in a
    manner that would have helped Lorettas cause. The trial judge was entitled to
    conclude that his testimony would be of no value in resolving the critical
    issue of testamentary capacity.

[33]

This
    case was fought and decided on the evidence of those who knew, interacted with,
    or treated Jack, not on the basis of experts who had never met or examined the
    man, and who could only offer tentative views on the ultimate issue the trial
    judge had to decide. This is a familiar state of affairs. In Ian. M. Hull &
    Suzanna Popovic-Montag,
Macdonnell, Sheard and Hull on Probate Practice
,
    5th ed. (Toronto: Thomson Reuters, 2016), the authors observe, at p. 61, that
    the question of testamentary capacity is a practical one that, so far as
    evidence based on observation is concerned, may be answered by laypersons of
    good sense as well as doctors. See also
Re Davis Estate
, [1963] 2
    O.R. 666 (C.A.), at p. 674.

[34]

Ultimately,
    the trial judge was best placed to assess the potential value of Dr. Judsons
    evidence. Her conclusion is entitled to deference, especially given that it turned
    on her role as gatekeeper: see
R. v. R.D.
, 2014 ONCA 302, 120 O.R.
    (3d) 260,

at para. 51, citing
R. v. Abbey
, 2009 ONCA 624, 97
    O.R. (3d) 330, at para. 97,

and
R. v. D.D
.
, 2000 SCC 43,
    [2000] 2 S.C.R. 275, at para. 13, and
Bruff-Murphy v. Gunawardena
,
    2017 ONCA 502, 414 D.L.R. (4th) 65, at para. 41.

[35]

In
    oral argument, counsel for Loretta argued that, because she was
    self-represented, the evidence should have been received in any event,
    especially since she was cross-examined on some of Jacks medical records. I
    disagree.

[36]

First,
    in cross-examination, Lorettas opinion about Jacks mental functioning was
    tested by reference to the observations of the doctors who treated him. These
    documents had been assembled and submitted by Loretta as part of her case.
    There was no unfairness in this process.

[37]

Second,
    it is well-accepted that trial judges have special duties to self-represented
    litigants, in terms of acquainting them with courtroom procedure and the rules
    of evidence:
Davids v. Davids
(1999), 125 O.A.C. 375, at para. 36.

However,
    a trial judges duty to assist has limits. It does not entail bending the rules
    of evidence in an attempt to compensate for the lack of representation. The
    fair trial rights of opposing parties must be respected. As Brown J.A. said in
Sanzone
    v. Schechter
, 2016 ONCA 566, 402 D.L.R. (4th) 135, at para. 22: A
    defendant is entitled to expect that a claim of liability brought against it
    will be decided by the same rules of evidence and substantive law whether the
    plaintiff is represented by counsel or self-represented. Consequently, when
    dealing with expert opinion evidence, the gatekeeper function has no less of a role
    to play merely because one of the parties is self-represented.

[38]

In
    this case, the trial judge properly exercised her discretion. I would dismiss
    this ground of appeal.

(2)

Instructions to prepare the wills

[39]

Loretta
    argues that there was no evidence that Mr. Gunn obtained proper instructions to
    prepare Jacks wills. I would decline to address this issue in full because it
    was not listed in the Notice of Objection, nor did Loretta raise it with the
    trial judge when asked to confirm the issues to be determined at trial.

[40]

At
    trial, some of Lorettas questions and submissions touched on this matter, but
    it was not fully addressed. It would be unfair to Noel to consider this issue
    now on an inadequate record. However, I note in passing that, although the
    evidence was somewhat vague on this issue, the trial judge appeared to accept
    that Mr. Gunn received instructions to prepare the wills, even if he did not
    make a note of it. In any event, the brothers attended at his office 2 ½ years
    after the wills were prepared, willing to execute them. Thus, the record does
    not suggest that Mr. Gunn acted without instructions.

(3)

Validity of the wills

[41]

Loretta
    argues that the trial judge erred in finding that Jack had testamentary capacity,
    and in failing to specifically address Jacks knowledge and approval of the
    wills contents. In response, Noel contends that the trial judge did address
    knowledge and approval, along with testamentary capacity. He asserts that the
    trial judges findings are grounded in the evidence and admit of no palpable or
    overriding error.

[42]

Before
    evaluating these claims in more detail, I set out the framework for assessing
    the validity of a will. Ultimately, I conclude that the trial judge committed
    no palpable or overriding error in finding that Jack possessed testamentary
    capacity. I also find that, while the trial judge did not separately address the
    concepts of knowledge and approval, her findings about testamentary capacity also
    enveloped those concepts.

(i)

The framework

[43]

Instead
    of traveling back through the mists of time, drawing upon age-old common law authorities
    on testamentary capacity, I start with the recent decision of this court in
Neuberger
    v. York
, 2016 ONCA 191, 129 O.R. (3d) 721. In this decision, Gillese J.A.
    provides a helpful outline of what is required to prove a will, at para. 77:

Proving a will in solemn form requires the propounder of a will
    to prove, in open court upon notice to all parties having a financial interest
    in the estate, that the will was duly executed, the testator had testamentary
    capacity and that the testator had knowledge and approval of the contents of
    the will: R. Hull & I. Hull,
Macdonell, Sheard and Hull on Probate
    Practice
, 4th ed., (Toronto: Carswell, 1996), at p. 315.

See also Brian A. Schnurr,
Estate Litigation
,
    2d ed., vol. 1 (Toronto: Thomson Reuters, 2017), at pp. 2-1 to 2-6.

[44]

The
    propounder of a will has the onus of proving that it was properly executed, in
    accordance with the
Succession Law Reform Act
, R.S.O. 1990, c. S.26 (
SLRA
),
    and also that the testator knew and approved of its contents: see
Vout v.
    Hay
, [1995] 2 S.C.R. 876, at para. 19. Upon certain preconditions being
    met, the propounder benefits from a presumption of knowledge and approval, as
    well as testamentary capacity. As Sopinka J. explained, at para. 26:

Upon proof that the will was duly executed with the requisite
    formalities, and having been read over to or by a testator who appeared to
    understand it, it will generally be presumed that the testator knew and
    approved of the contents and had the necessary testamentary capacity.

[45]

This
    presumption is upended when there are suspicious circumstances (1) surrounding
    the preparation of the will, (2) calling into question the testators capacity,
    or (3) tending to show that the testators free will was compromised by coercion
    or fraud. As Sopinka J. said, at paras. 26-27:

Suspicious circumstances in any of the three categories to
    which I refer above will affect the burden of proof with respect to knowledge
    and approval. The burden with respect to testamentary capacity will be affected
    as well if the circumstances reflect on the mental capacity of the testator to
    make a will.

Where suspicious circumstances are present, then the
    presumption is spent and the propounder of the will reassumes the legal burden
    of proving knowledge and approval. In addition, if the suspicious circumstances
    relate to mental capacity, the propounder of the will reassumes the legal
    burden of establishing testamentary capacity.
Both of these issues must be
    proved in accordance with the civil standard. There is nothing mysterious about
    the role of suspicious circumstances in this respect. The presumption simply
    casts an evidentiary burden on those attacking the will. This burden can be
    satisfied by adducing or pointing to some evidence which, if accepted, would
    tend to negative knowledge and approval or testamentary capacity. In this
    event, the legal burden reverts to the propounder. [Emphasis added.]

[46]

Thus,
    where suspicious circumstances relate to the testators mental capacity, they
    have the effect of displacing both the presumption in favour of knowledge and
    approval and that in favour of testamentary capacity. The broad effect of the
    spent presumption is demonstrated in
Stekar v. Wilcox
, 2017 ONCA 1010,
    287 A.C.W.S. (2d) 199, where the trial judge found that there were suspicious
    circumstances surrounding the making of the challenged will, including that at
    that time, the deceased
was of
    questionable capacity due both to his historical and recent health issues and
    hospitalization (para. 6). This court held, at para. 8:

The trial judge held, correctly, that the
    [propounder] bore the burden of proving the Deceaseds testamentary
    capacity.  The presumption of testamentary capacity otherwise applicable
    was displaced by the suspicious circumstances regarding the preparation and
    execution of the 2012 Will.
It therefore fell to the [propounder], as
    a matter of law, to establish the Deceaseds testamentary capacity, as well as
    his knowledge and approval of the 2012 Will
: see for example,
Vout v.
    Hay
..
. [Emphasis
added.]

See also
Orfus Estate v. The Samuel and Bessie
    Orfus Family Foundation
, 2013 ONCA 225, 304 O.A.C. 349, at paras. 83-84;
    Schnurr at pp. 2-18 to 2-19.

[47]

In
    this case, counsel for Noel acknowledged the presence of suspicious
    circumstances, and those circumstances related to Jacks mental capacity. Consequently,
    the burden fell upon Noel, as the propounder of the wills, to establish that
    Jack knew and approved of their contents, and that he had testamentary
    capacity.

(ii)

Formal requirements satisfied

[48]

The
    trial judge properly addressed the formal requirements of the validity of the
    wills under s. 4 of the
SLRA
. In accordance with this section, there
    was ample evidence from Mr. Gunn, his law clerk Nancy Tuck, and Noel to support
    the conclusions that: (1) Jack signed his wills at the end of each document,
    (2) he signed them in the presence of two witnesses (Mr. Gunn and Ms. Tuck), and
    (3) the witnesses signed the wills in Jacks presence.

[49]

Mr.
    Gunn had known Jack and Noel since 1997. He drafted their 1998 wills, which
    were in substance the same as the 2009 wills. Mr. Gunn had been involved in the
    affairs of Dujardin Farms Limited, preparing annual corporate resolutions for
    the brothers to sign. According to Mr. Gunn and Ms. Tuck, the brothers came into
    the office in August of 2006 to sign annual corporate documents. Mr. Gunn
    recommended that they execute both personal and corporate wills, the latter
    dealing with shares in the corporation. Mr. Gunn recommended this course of
    action for tax purposes. The wills were drafted and sent to the brothers on
    September 20, 2006.

[50]

Mr.
    Gunn testified that, just like in the 1998 wills, neither Jack nor Noel wished
    to make provisions for anyone else. The brothers were very, very close to each
    other and they were not thinking far beyond the one benefitting the other, if
    one were to die.

[51]

When
    the brothers executed their wills on March 9, 2009, they had been in possession
    of the documents for two and a half years. On that day, Mr. Gunn read one each
    of the corporate and personal wills. He proceeded in this way because they were
    mirror wills. They were signed and witnessed immediately afterward.

[52]

Ms.
    Tuck did not believe that either of the brothers had any difficulty
    understanding her. She noticed nothing unusual about Jack. She did not think
    that he had been drinking that day. If Jack had been drinking, she would have
    been aware of it. As Ms. Tuck explained:

I have the best nose in town. I would smell it. You know, I
    constantly look at people. I watch for visual cues. I make sure people are
    listening to me. I speak slowly. I make sure people understand, especially
    something as important as that. So, I went from face to face making sure people
    were giving me eye contact and I do that with everybody.

[53]

On
    the day that the wills were executed, Mr. Gunn had no reason to believe that
    Jack had been drinking. He had never known Jack to attend his office after
    consuming alcohol. He had no problems communicating with Jack. He said, I
    always thought that he was completely with it. Moreover, the brothers were
    fully aware of the assets at their disposal, which were principally the shares
    in the farming business.

[54]

Mr.
    Gunn testified that when he drafted the wills in 2006, he knew that Jack was married.
    In a March 16, 2009 memo, Mr. Gunn recounted the meeting with the brothers on
    March 9, noting, They said they didnt have any children and neither of them
    were married, although Jack said that he was about half married at this time. I
    dont know exactly what that means.

[55]

Noel
    said that he drove himself and Jack to Mr. Gunns office on March 9, 2009. They
    dealt with corporate matters, as well as the wills. Jack did not have anything
    to drink before attending. Mr. Gunn read one set of the wills out to the two of
    them. Noel understood the contents of the wills. It was his impression that
    Jack understood what he was doing when he signed his own wills.

[56]

The
    trial judge found that the Noel, as propounder of the wills, had the onus of
    proving compliance with the
SLRA
. At para. 20, she said, The
    formalities have been proven and, therefore, it is presumed Jack knew of and
    approved the contents of the wills. There is no basis to disturb this finding,
    which rests on a very solid evidentiary foundation.

(iii)

Suspicious circumstances and the displaced presumption

[57]

As
    the trial commenced, counsel for Noel acknowledged the presence of suspicious
    circumstances. He said, There really is no question that [Jack] was a
    dedicated drinker and there is medical evidence which shows some effect of that
    on him at various times, and for the purposes of our procedure I accept that
    the proponent bears the obligation
to prove the will in its solemn form

    (emphasis added). During the ensuing colloquy with the trial judge, counsel
    seemed to agree that, in addition to bearing on testamentary capacity, he also
    faced the burden of proving knowledge and approval. This was later clarified in
    closing submissions, when counsel said, Im gonna start with due execution,
    knowledge and approval because that is something that we have to demonstrate on
    a balance of probabilities because my client bears the burden.

[58]

In
    her reasons, the trial judge addressed the presence of suspicious
    circumstances, both in terms of the evidence and counsels concession. As she
    said at para. 24, The onus now shifts to Noel as propounder of the wills to
    prove on a balance of probabilities that Jack had testamentary capacity on
    March 9, 2009.

[59]

I
    agree with counsel for Loretta that, on its face, this statement is incomplete.
Vout v. Hay
required that Noel establish testamentary capacity, in
    addition to knowledge and approval, all on a balance of probabilities. While
    the trial judge did not mention knowledge and approval in this passage, she
    addressed both of these requirements in her analysis of testamentary capacity.
    She specifically referred to knowledge and approval in her conclusions: see
    para. 44.

(iv)

Testamentary capacity, knowledge, and approval all proved

[60]

The
    trial judge commenced her analysis of testamentary capacity by setting out its
    constituent elements. Relying on
Lata v. Rush
, 2012 ONSC 4543, 219
    A.C.W.S. (3d) 1008, at para. 32, and
Royal Trust Corp. of Canada v.
    Saunders
, [2006] O.J. No. 2291 (S.C.), at para. 58, the trial judge stated,
    at para. 25:

Testamentary capacity is established where the testator:

1.

understands the
    nature and effect of the will;

2.

recollects the
    nature and extent of his or her property;

3.

understands the
    extent of what he or she is giving under the will;

4.

remembers the
    people he or she might be expected to benefit under his or her will; and

5.

understands the
    nature of the claims that may be made by persons he or she is excluding under
    the will.

The trial judge turned each of these elements into a
    question and answered all of them in the affirmative. She provided careful
    reasons. The evidence amply supported her conclusions.

[61]

The
    issues of knowledge and approval were addressed in the trial judges analysis
    under item 1. She found that Jack was aware that the corporation, in which he
    held an equal share with Noel
[2]
,
    owned the farmland on which they worked, and the farmhouse where they lived, for
    their entire adult lives. She found, at para. 26:

He understood the need to have a separate corporate will to
    avoid payment of probate tax. He understood that he and Noel were leaving the
    other their respective shares in the corporation and other assets because they
    were business partners. Understanding that Loretta would not benefit under the
    will, Jack took steps to provide for Loretta outside the will by setting up a
    RRIF.

[62]

The
    2009 wills must also be considered in their historical context. In 1998, the
    brothers had executed mirror wills to the same effect. As Mr. Gunn testified,
    at that time, the brothers were adamant about only benefiting each other in
    their wills. This intention persisted in 2006 when they discussed preparing their
    personal and corporate wills with Mr. Gunn.

[63]

On
    the evidence before the trial judge, there was a sound basis to satisfy the
    knowledge and approval requirements. Absent any palpable and overriding errors,
    and there are none, the trial judges findings cannot be disturbed.

[64]

I
    reach similar conclusions on the issue of testamentary capacity. I do not
    intend to comb through the trial judges reasons under each of the five
    questions she posed. The evidence supports her overall conclusion that, while
    Jack had his issues with alcohol, and his health suffered because of it, he was
    of sound mind when he executed his 2009 wills.

[65]

There
    was a proper basis to conclude that suspicious circumstances existed concerning
    Jacks state of mind. Jacks 2007 hospital stay supplied the evidentiary
    foundation needed to cast the burden on Noel. However, he overcame that burden.

[66]

Generally,
    the manner in which Jack disposed of his property made sense in the context of
    his life and familial relationships. As the trial judge said, at para. 31,
    Jack shared a lifelong partnership with Noel as friends, brothers and business
    partners. Noel, in turn, shared the same intention. Moreover, their 2009 wills
    were for all intents and purposes identical to their 1998 wills.

[67]

On
    the other side of the equation, there was an abundance of evidence that Jack
    did not share a close relationship with Loretta. The trial judge did not accept
    Lorettas testimonial protestations to the contrary. Nevertheless, Jack did
    provide for Loretta outside of the will, in the form of a RRIF. In the six
    months before Jacks death, Loretta received income from the farming
    corporation for what she claimed to be her consulting services. She also
    received a Canada Pension Plan death benefit and she receives monthly dependent
    income from CPP. As the trial judge said, at para. 35, The RRIF and other
    monies provided to Loretta for her direct or indirect benefit were an
    appropriate means by which to provide for Loretta as his spouse.

[68]

There
    is no doubt that Jack was in rough shape when he arrived at the hospital in the
    middle of his heart attack in 2007. He was in a great deal of pain. He was
    given morphine. He appeared confused for a time by friends and family, but he
    improved leading up to his discharge. This episode led Dr. Burns to posit the
    possibility of organic brain syndrome secondary to alcohol abuse.

[69]

However,
    this assertion must be examined carefully. The trial judge noted, at para. 43,
    that no formal diagnosis of this condition was ever made, nor was any formal
    testing performed. There was no autopsy. Moreover, Dr. Burns saw Jack on May 8,
    2008, and noted that he was alert and well oriented, with no evidence of
    cognitive impairment.

[70]

Most
    importantly, the trial judge found as a fact that there was no evidence of any
    cognitive impairment affecting Jacks capacity on the day that the wills were
    executed on March 9, 2009. This conclusion was well-supported by the evidence
    of Mr. Gunn, Ms. Tuck, and Noel. As the trial judge said, at para. 43:

At the time he executed his wills, the effects of the heart
    attack on Jacks cognitive abilities were more than a year and a half behind
    him and his death was more than two and a half years in front of him.

[71]

I
    acknowledge that the trial judge made one puzzling comment in this same
    paragraph, when she said, Chronic alcoholism, on its own, is not enough. Not
    all chronic alcoholics suffer from organic brain syndrome. The causal link does
    not exist on the evidence before me. There was no evidence to support this
    scientific observation. I am unclear of its source.
[3]
However, the finding was not critical to the trial judges ultimate conclusion
    about Jacks testamentary capacity, which was based on a plethora of evidence
    from those who were in Jacks life at the time he executed his wills. As Mr.
    Gunn said, Jack was always with it, just as he was on that day. Noel and Ms.
    Tuck were of the same view.

[72]

Lastly,
    the appellant points to the trial judges ultimate conclusions about capacity,
    knowledge, and approval and suggests that she did not observe the displaced
    presumption triggered by suspicious circumstances. I disagree. After reviewing
    all of the evidence, the trial judge said, at para. 44:

The medical evidence is insufficient to support a finding that
    Jack suffered from a debilitating mental condition preventing him from
    understanding and approving the contents of his wills and the claims which
    might be made against him.
In fact, there is ample evidence to support a
    finding that, on a balance of probabilities, Jack met the test for testamentary
    capacity and had knowledge of and approved the contents of the wills on March
    9, 2009 and so find thaton March 9, 2009 Jack Dujardin had testamentary
    capacity
. [Emphasis added.]

Read as a whole, this passage reflects a proper
    application of the burden.

[73]

I
    would dismiss this ground of appeal.

F.

conclusion and disposition

[74]

I
    would dismiss the appeal. In doing so, I repeat the observation made by trial
    judge. Even though Loretta will take nothing under Jacks wills, she may have
    entitlements to be determined under ss. 5(2) and 6(10) of the
Family Law
    Act
, R.S.O. 1990, c. F.3.

[75]

Lastly,
    at the conclusion of the hearing, counsel agreed upon the proper quantum of costs
    of the appeal, depending upon which side succeeded. On this basis, I would
    order costs to the respondent in the amount of $16,000, inclusive of
    disbursements and HST.

Released: SEP JUN 29 2018

G.T. Trotter J.A.

I agree. S.E. Pepall J.A.

I agree. David Brown J.A.

[1]

Jacks marriage to Loretta had the effect of revoking this
    will:
Succession Law Reform Act
, R.S.O. 1990, c. S.26, s. 16.

[2]

The trial judge noted in a footnote that
Noel testified that he held one additional share although the financial
    and corporate records for the corporation indicate the brothers owned the
    shares 50/50. Nothing turned on this issue.

[3]

It may have been in reference to
Lata v. Rush
, an
    authority the trial judge relied upon, in which Hainey J. said, at para. 30: Alcoholism
of sufficient extent and duration to cause brain damage
may affect
    testamentary capacity although even a habitual drunkard while not under the
    excitement of liquor is capable of making a valid will (emphasis added).


COURT OF APPEAL FOR ONTARIO

CITATION: Foisey v. Green Estate, 2018 ONCA 514

DATE: 20180601

DOCKET: C64798

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Darlene Mary Foisey,
    also known as Darline Mary Foisey, by her Litigation Guardian, The Public
    Guardian and Trustee

Respondent

and

Joyce Green, Estate Trustee for the Estate of
    William Joseph Green

Appellant

Brian N. Radnoff, for the appellant

Jordan Lester, for the respondent

Heard and released orally: May 30, 2018

On appeal from the
    order of Justice W. Danial Newton of the Superior Court of Justice, dated November
    29, 2017.

REASONS FOR DECISION

[1]

In our view, the order under appeal is interlocutory and this court
    lacks jurisdiction to entertain the proposed appeal.

[2]

In reaching this conclusion we have in mind what was said by a panel of
    this court in
Durbin v. Brant
, 2017 ONCA 463, at paras. 4-6.

[3]

The appeal to this court is quashed without prejudice to the appellants
    right to seek leave to appeal the order to the Divisional Court. Costs of $3500
    inclusive of disbursements and all applicable taxes payable to the respondent.

David
    Watt J.A.
Grant Huscroft J.A.
G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gibson (Re), 2018 ONCA 533

DATE: 20180608

DOCKET: C64526

Lauwers, Benotto and Miller JJ.A.

IN THE MATTER OF:  Matthew Gibson

AN APPEAL UNDER PART XX.1 OF THE
CODE

Stephen F. Gehl, for the appellant, Matthew Gibson

Catherine Weiler, for the respondent, Attorney General
    for Ontario

Heard: June 7, 2018

On appeal against the disposition of the Ontario Review
    Board dated, September 25, 2017, with reasons dated October 20, 2017.

REASONS FOR DECISION

[1]

The appellant appeals a disposition of the Ontario Review Board, in
    which the Board found the appellant to remain a significant threat to the
    safety of the public and ordered the appellant discharged subject to certain
    conditions, including monthly reporting. This most recent disposition
    discharged him from a number of more restrictive conditions. The appellant,
    however, seeks an absolute discharge.

[2]

For the reasons that follow, we do not agree that the Boards finding
    was unreasonable and we dismiss the appeal.

[3]

The appellant was convicted in 2005 of criminal harassment of his
    neighbours. He received a suspended sentence and probation order prohibiting
    contact. He breached the probation order within weeks, and was found not
    criminally responsible (NCR).

[4]

The appellant has been diagnosed with schizophrenia, and holds
    persecutory delusions. He has no insight into his illness, and if discharged
    absolutely intends to discontinue treatment and self-medicate with cannabis.

[5]

The appellant has progressed from initial detention in a maximum secure
    unit to minimum secure units to supervised community living in 2009.  Since
    2013, he has been subject to a conditional discharge, and has been re-admitted
    four times due to deterioration in his mental state and to cannabis use.

[6]

The evidence of his treating psychiatrist is that his persecutory
    delusions  which included a belief that he has been the victim of sexual
    assaults by neighbours, co-patients, strangers, and others  have persisted.
    When he is on medication and not using cannabis, his mental state is stable and
    his delusions are encased in the past. When his mental state deteriorates, his
    delusions expand to incorporate persons currently in his life, such as
    neighbours, patients and persons on his treatment team.

[7]

The appellant denies he has a mental illness, and has stated that he
    would discontinue medication immediately if granted an absolute discharge. A
    further problem is the appellants cannabis use, which clinicians have observed
    leads to a deterioration in the appellants mental status. The appellant has
    indicated that if discharged absolutely, he would self-medicate with cannabis.

[8]

Accordingly, the Board concluded that were the appellant to be discharged
    absolutely, he would likely discontinue medication and increase his use of
    cannabis. This would, the Board concluded, precipitate decompensation and an
    increased risk of threatening behaviour, a significant threat to the safety of
    the public.

[9]

The appellant argues that the Boards conclusion is not supported by
    evidence and therefore unreasonable. Mr. Gehl argues on behalf of the appellant
    that even though the appellant has been living in the community for nearly ten
    years, has used marijuana, and maintains persistent persecutory delusions, he
    nevertheless has not been violent since the index offence. This, he argues,
    means it is unreasonable to conclude that he presents a significant threat to
    the safety of the public.

[10]

We
    do not agree. The evidence before the Board is that the appellant intends to
    discontinue medication if he receives an absolute discharge. The appellant has
    not, since the index offence, been in a circumstance where he has completely
    ceased medication. On those occasions when, on his request, his medication has
    been reduced, his circle of persecutory delusions has widened, encompassing new
    people. It is not unreasonable for the Board to have concluded, on the evidence
    before it, that should the appellant be discharged absolutely, he would cease
    medication entirely, decompensate, and be at increased risk of engaging in
    threatening behaviour.

[11]

The
    Boards conclusion that the appellant remains a serious risk of harm to public
    safety, and that a conditional discharge is the least onerous disposition
    available to protect against that risk, is reasonable and entitled to
    deference.

DISPOSITION

[12]

The
    appeal is dismissed.

P. Lauwers J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Godfrey (Re), 2018 ONCA 577

DATE: 20180622

DOCKET: C64618

Hourigan, Pardu and Nordheimer JJ.A.

IN THE MATTER OF:  Duke Godfrey

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ken J. Berger, for the appellant

Catherine Weiler, for the Attorney General in right of
    Ontario

Gavin S. MacKenzie, for the person in Charge at the
    Centre for Addiction and Mental Health

Heard: June 21, 2018

On appeal from the disposition of the Ontario Review
    Board dated, October 27, 2017.

REASONS FOR
    DECISION

[1]

Mr. Godfrey appeals from the disposition of the
    Ontario Review Board (ORB or Board) dated October 27, 2017. The Board unanimously
    found a hybrid detention order was necessary and appropriate in the
    circumstances. It ordered that Mr. Godfrey be detained at the Secure Forensic
    Unit of the Centre for Addiction and Mental Health (CAMH), with discretion
    given to the person in charge to transfer him to the General Forensic Unit, or
    allow him to live in the community in approved accommodation.

[2]

CAMH requested a hybrid detention order on the
    basis of Mr. Godfreys current mental health condition, but acknowledged the
    possibility his condition could improve such that he could be transferred or
    discharged into the community. On behalf of Mr. Godfrey, his counsel advised
    that they supported the recommendation of CAMH. Although Mr. Godfrey and his
    counsel conceded at the hearing that he remained a significant threat to the
    safety of the public, and despite the fact that the Board proceeded on the
    basis of the joint submission, he now appeals on multiple grounds.

[3]

He argues that the Board erred in finding that
    he remained a significant threat, and erred in concluding that the disposition
    agreed to was necessary and appropriate. He argues further that the hearing was
    procedurally unfair and that the disposition is unreasonable on the evidence.
    We do not agree.

[4]

The index offences occurred in 2011. The
    appellant threatened others with a knife on several occasions. He suffers from
    paranoid schizophrenia, and was found not criminally responsible in 2012. Mr.
    Godfrey did well under the terms of a conditional discharge which allowed him
    to live in the community for many years, however in 2017 there was a pronounced
    deterioration in his condition, associated with failure to take his medication,
    and use of crack cocaine and marijuana. By letter, CAMH wrote to the Board
    requesting an early hearing and seeking a change in Mr. Godfreys disposition
    from a conditional discharge to a detention order.

[5]

His behavior in August and September 2017 was violent
    and threatening on several occasions. He had thrown a brick through the window
    of a community residence, and had broken a table on the porch of the same. He
    initially refused to attend at CAMH when asked to do so but voluntarily
    admitted himself to hospital in August for 23 days, and in September for 21
    days.

[6]

In October 2017, after learning of the date of his
    early ORB hearing, Mr. Godfrey went missing. He was twice placed on a Form 1
    under the
Mental Health Act
,
R.S.O.
    1990, c. M.7
but when he was brought to other hospitals by
    police, these were canceled. When he attended at CAMH, he presented as
    disorganized and paranoid and acknowledged experiencing auditory
    hallucinations. He admitted to using marijuana daily, and indicated that he did
    not believe he was under the Boards jurisdiction and that he no longer
    required medication. He abruptly left the meeting before he could be
    apprehended.

[7]

The day before his early ORB hearing, police
    brought him to the CAMH emergency department. He had followed a stranger off a
    streetcar and into a restaurant. The victim was so threatened by the appellants
    behavior that he locked himself in the restaurant bathroom. The appellant was
    yelling and accusing the stranger of being a rapist, and over 10-15 minutes,
    repeatedly tried to break into the bathroom. The appellant was delusional and showed
    poor insight into his condition.

[8]

Risk assessments suggest that Mr. Godfrey
    continues to represent a significant threat to the safety of the public. He has
    not since attended any further appointments with the clinical team at CAMH.

[9]

In their report to the Board, the clinical team
    noted the deterioration which had resulted in three admissions to hospital in
    the preceding three months, and concluded:

Given the pattern of decompensation, episodes
    of aggression in the community and Mr. Godfreys decline in insight and
    willingness to take medication, the clinical team believes that the risk can no
    longer be managed under the terms of the current conditional discharge.

The clinical team
    recommends that the necessary and appropriate disposition would be a detention
    order with privileges up to and including residing in the community in approved
    accommodation.

[10]

CAMH agreed, observing: [i]t is clear that the
    current conditional discharge, which relies on the mechanisms under the
Mental
    Health Act
to return Mr. Godfrey to hospital is no longer
    adequate to manage the risk that he poses.

[11]

The appellant argues that because he did so well
    for so long, the Board should not have made a detention order. He submits that
    although he has breached the conditions of his discharge in the past, the
    breaches were trivial and did not result in any risk to the public.
    Accordingly, he submits it cannot be said that he constitutes a significant
    threat, and that at the least, the conditional discharge should have been
    continued, perhaps with a condition that he take medication.

[12]

The Board was entitled to rely on the position
    expressed by the appellants counsel. (
R. v. Kelly
,
2015 ONCA 95). The
    Board reviewed the evidence and its conclusions were amply supported by the
    evidence. There is no basis to conclude that the decisions as to significant
    threat or disposition were unreasonable.

[13]

The appeal is accordingly dismissed.

C.W. Hourigan J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.