COURT OF APPEAL FOR ONTARIO

CITATION: Conway (Re), 2018 ONCA 139

DATE: 20180214

DOCKET: C63120

Rouleau, Watt and Brown JJ.A.

IN THE MATTER OF:  Paul Conway

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser and Sarah Harland-Logan, for the
    appellant, Paul Conway

Avene Derwa, for the respondent, Her Majesty the Queen
    (Ontario)

Janice Blackburn, for the respondent, the Person in
    Charge of the St. Josephs Healthcare Hamilton

Heard: January 12, 2018

On appeal against the disposition of the Ontario Review
    Board dated, November 14, 2016.

REASONS FOR DECISION

I.

OVERVIEW

[1]

The appellant, Paul Conway, appeals from the
    November 14, 2016 disposition (the Disposition) of the Ontario Review Board
    (the Board). The Disposition continued Mr. Conways detention at a General
    Forensic Unit of St. Josephs Healthcare Hamilton (the Hospital), as well as
    the set of conditions contained in its previous February 25, 2016 disposition
    (the February 2016 Disposition). The Board refused the Hospitals request to
    transfer Mr. Conway to another institution.

[2]

Mr. Conway does not take issue with the Boards
    finding that he remains a significant threat to the safety of the public, nor
    with its rejection of his request for an absolute or conditional discharge. Nor
    does he dispute the Boards continuation of the conditions contained in its
    February 2016 Disposition.

[3]

Instead, Mr. Conway raises two issues: (i) the
    Board erred in refusing to grant him a second adjournment of the review hearing
    and dismissing his document disclosure motion; and (ii) the Board erred in
    failing to find that the Hospitals March 2016 reduction of his privileges and
    subsequent implementation of a behaviour intervention plan infringed his rights
    under ss. 7 and 9 of the
Canadian Charter of Rights and Freedoms
.

[4]

For the reasons set out below, we dismiss his
    appeal.

II.

BACKGROUND FACTS

[5]

Mr. Conway has been detained under the Boards jurisdiction for over 30
    years. His history was summarized in this courts decision dismissing his
    appeal from the February 2016 Disposition:
Conway (Re)
, 2016 ONCA 918
    (
Conway
2016). We need not repeat it.

[6]

The hearing held by the Board in November 2016 was not an annual review.
    In its reasons for the February 2016 Disposition, the Board described Mr.
    Conway as a prodigiously difficult patient. It observed that the imminence of
    a Board hearing seemed to improve Mr. Conways behaviour, offering a measure of
    protection for Hospital staff and his co-patients. In the hope that
    improvements in his behaviour would continue, the Board ordered a six-month
    review of Mr. Conways detention. Originally scheduled for July 2016, the
    six-month review ultimately was heard in November 2016, which resulted in the
    Disposition under appeal.

[7]

Mr. Conways next review hearing currently is scheduled for April, 2018.

III.

FRESH EVIDENCE

[8]

Both Mr. Conway and the Hospital filed motions for leave to adduce fresh
    evidence. In his fresh evidence affidavit, Mr. Conway describes events on his
    unit from the date of the Disposition until August, 2017. In its affidavit, the
    Hospital describes: (i) the behaviour intervention plans in place at the time
    of the Disposition; (ii) some events involving Mr. Conway that took place on
    the unit in 2017; and (iii) the Hospitals community reintegration plan for Mr.
    Conway that it plans to place before the Board at the April 2018 annual review.

[9]

No objection was taken to the admission of the fresh evidence.
    Accordingly, given the more relaxed approach taken to fresh evidence about
    events taking place after the disposition under appeal, we grant leave to both
    parties to file their fresh evidence.

IV.

FIRST ISSUE: DID THE BOARD ERR IN REFUSING TO GRANT A SECOND ADJOURNMENT
    OF THE HEARING AND IN DISMISSING THE APPELLANTS PRODUCTION MOTION?

A.

The issue stated

[10]

The
    Board initially scheduled Mr. Conways six-month hearing for July 2016. Mr.
    Conway sought an adjournment so that he could retain counsel. The Board granted
    his request.

[11]

On
    November 8, 2016, the day before the re-scheduled hearing, Mr. Conway filed a
    motion seeking a further adjournment. The Board heard the adjournment motion
    the following day at the start of the hearing.

[12]

Mr.
    Conway submitted that adjourning the six-month review hearing until this court
    released its decision on his appeal from the February, 2016
disposition
[1]
would enable the
    Board to receive guidance on how the Hospital should perform periodic night
    checks without interrupting his sleep. As well, he sought disclosure from the
    Hospital of all documents in its possession that are not already in the
    clinical record relating to the exercise of the authority delegated by the
    Board to the Person-in-Charge. Mr. Conway contended that administrative
    documents involving directions to Hospital staff about his care should be
    produced prior to the hearing because he was entitled to know the basis upon
    which the Person-in-Charge was exercising his delegated authority.

[13]

The
    Board refused Mr. Conways requests for an adjournment and production. Mr.
    Conway submits the Board erred in so doing.

B.

Analysis

[14]

In
    explaining why it refused Mr. Conways request for a second adjournment, the
    Board stated:

The background to this request is important. The hospital has
    been asking for a transfer since October 2015, and the Board has yet to decide
    the issue. Mr. Conways annual hearing in January 2016 was adjourned, and in
    February 2016 the ORB panel decided against a transfer at that time but ordered
    a 6-month review. That review was scheduled for July 21, 2016 and adjourned so
    Mr. Conway could retain counsel. Since then, there have been multiple
    [Pre-Hearing Conferences (PHC)] and all parties, including [Mr. Conways
    counsel], confirmed their readiness to proceed at the final PHC on November 3,
    2016. Meantime, Mr. Conways appeal was scheduled for September 7
th
,
    but adjourned before being heard on September 30
th
.

Though the Board would prefer to have the OCAs reasons before
    conducting this hearing, there are other factors to consider. First, the
    hospital has been seeking a transfer for more than a year. Second, Mr. Conway
    has had limited privileges since early March 2016, and the hospital seeks a
    change in his disposition as well as transfer to another forensic hospital. In
    these circumstances, adjourning the matter does not serve the interests of
    either the hospital or Mr. Conway. A fresh disposition is necessary to achieve
    closure on the events of recent months and determine whether Mr. Conway will
    remain at St. Josephs, transfer to Southwest Centre, or be granted a form of
    discharge, as he asks. It is also worth noting that the February 2016 hearing
    was marked as peremptory; an adjournment was granted in July on condition that
    the next hearing date would be peremptory; and the PHC Report recorded the
    understanding of the parties that the date for this hearing was peremptory
    (November 1, 2016). Should it be necessary, a hearing can be called and a new
    Board empanelled to deal with any matters arising from the OCAs decision. To
    assume inconsistency between the OCA and the outcome at this hearing is
    speculative and does not warrant an adjournment.

[15]

The
    Boards reasons disclose it reasonably exercised its discretion in refusing Mr.
    Conways second adjournment request. As required by the framework set down by this
    court in
Conway 2016
, at para. 23, the Board balanced the interests of
    Mr. Conway and the Hospital, considered its statutory mandate to hold timely
    hearings  in this case a six-month review  and assessed the fairness to Mr.
    Conway of going ahead with the hearing. As well, the Board addressed Mr.
    Conways concern about his outstanding appeal from the February 2016
    Disposition by indicating it would be open to convening a new panel after this
    court released its reasons, should the need arise. Consequently, we see no
    error in the Boards refusal of the adjournment request.

The production request

[16]

The
    Board also dismissed Mr. Conways motion for the pre-hearing disclosure of
    Hospital administrative documents and correspondence, stating:

Mr. Conway is mistrustful of the hospital and is concerned that
    his clinical file lacks transparency on issues concerning his care since the
    last ORB hearing. The Board decided against a disclosure order for four
    reasons. First, when the issue was raised at the PHC, [Hospital counsel]
    undertook to determine whether an administrative file existed, and [Mr.
    Conways counsel] accepted his advice that there is no such file Second, apart
    from the Progress Note and Dr. Chaimowitzs July 22 email to the ORB, there are
    scant grounds for concluding that relevant evidence exists and requires an
    order to disclose. Third, the Board is mindful that the hearing not be treated
    as a dispute between Mr. Conway and hospital administration; the analogy to
Stinchcombe
is less relevant for that reason. And, as [Crown counsel] indicated, the Board
    can seek further evidence (though it does not have the same role on Charter
    claims;
R. v. Starz
(2015), 125 O.R. (3d) 663, para. 122). Fourth, a
    disclosure order would require an adjournment, which the Board is reluctant to
    grant.

[17]

This was not the first time Mr. Conway had
    sought an order requiring production of all documents in a hospitals possession,
    including emails relating to his care. Mr. Conway advanced a similar request at
    his 2011 review hearing. The Board rejected the request. This court found no
    error in the Boards refusal, holding that Mr. Conway had received extensive
    disclosure of records relating to his care, including a complete package of
    hospital progress notes, and could not identify any document that might assist
    at the hearing:
Conway (Re)
, 2012 ONCA 519, 11 O.R. (3d) 605, at para.
    11.

[18]

The same result holds true on this appeal. The
    Boards pre-hearing conference process canvassed at some length whether
    documents sought by Mr. Conway existed. We see nothing unreasonable in the
    Boards finding that there were scant grounds to conclude relevant evidence
    existed in addition to the extensive disclosure already made to Mr. Conway.
    Further, the Board recognized its review proceedings are inquisitorial in
    nature, as a result of which it could take steps to obtain evidence should it
    become aware of gaps in relevant information.

[19]

Mr. Conway advances a further argument based on
    ss. 672.51(1) and (2) of the
Criminal Code
. Those
    sections require the Board to provide copies to all parties of disclosure
    information, which includes written information before the  Review Board
    about the accused that is relevant to making or reviewing a disposition. One
    of the issues before the Board at the November hearing concerned the fairness
    and lawfulness of the Hospitals March 2016 reduction of Mr. Conways
    privileges. Mr. Conway submits, on the authority of a footnote comment in
M.L.C.
    v. Ontario (Review Board)
, 2010 ONCA 843, at para. 33, fn. 2, that any
    direction by a hospital to change a patients liberty within the envelope of existing
    disposition conditions is deemed by s. 672.56(1) to be a disposition made by
    the Board. It therefore follows, according to Mr. Conway, that any written
    information concerning such a change constitutes disposition information
    within the meaning of s. 672.51(1), which must be disclosed to the NCR accused
    prior to a review hearing.

[20]

It is unnecessary to offer any definitive view
    on this submission. As s. 672.51(1) makes clear, disposition information
    means the assessment report and any other written information before the court
    of Review Board about the accused that is
relevant
to making or reviewing a disposition. [Emphasis added] Prior to
    the hearing, Mr. Conway received an extensive Hospital Record, which contained
    information about the reduction of privileges issue in both the Nursing Report
    and the Clinical Risk Assessment. Requests for additional disclosure were
    canvassed during the numerous Pre-Hearing Conferences. The Board concluded that
    apart from the Progress Note and Dr. Chaimowitzs July 22 email to the ORB,
    there were scant grounds for concluding that relevant evidence exists and
    requires an order to disclose.  Mr. Conway has not offered any evidence-based
    reason to call into question the reasonableness of the Boards conclusion that no
    other relevant evidence existed.

[21]

In those circumstances, the Board did not err in
    refusing to order further disclosure. Nor do we see any unfairness resulting
    from the Boards refusal of Mr. Conways production request.

Summary

[22]

We
    see no reversible errors in the Boards refusals of Mr. Conways adjournment
    and production requests. The Boards decisions were based on reasonable
    considerations of proper factors to ensure a fair hearing.

V.

THE BOARDS REFUSAL TO FIND ALLEGED
CHARTER
VIOLATIONS

A.

Background

[23]

Mr.
    Conway filed with the Board a Notice of Constitutional Question in which he asked
    the Board to find that the Hospital had infringed his rights under ss. 7, 8, 9
    and 15 of the
Charter
by reason of the following conduct: (i) putting
    his privileges on hold on March 10, 2016; (ii) requiring him to remain outside
    his room while cleaned by staff; and (iii) assigning two staff members to
    escort him to move around the Hospital.

[24]

By
    way of background, in early 2016 Mr. Conway was detained on the General
    Forensic Unit. He was exercising Level 4 privileges  indirectly supervised
    hospital and grounds privileges and indirectly supervised community privileges
    in designated areas. He was using indirectly supervised community passes for a
    few hours at a time, several times a week.

[25]

On
    March 10, 2016, the Hospital withdrew his privileges upon learning of incidents
    involving Mr. Conways aggressive conduct toward cleaning staff, both at the
    Hospital and in the community. As a result, Mr. Conway was restricted to the
    unit.

[26]

Escorted
    hospital grounds (Level 2) privileges were offered to Mr. Conway by early
    April, 2016, but he refused to leave his unit for five months following the
    withdrawal of privileges. In August, 2016, Mr. Conway finally started to use
    the Level 2 privileges.

[27]

After
    the March 2016 incidents, the Hospital put in place a plan for interactions
    between Mr. Conway and his care team. At the hearing it was called a care
    plan; the Hospitals fresh evidence describes it as a behavior intervention
    plan. The plan includes a requirement that two staff escort Mr. Conway when he
    leaves his room and be present for all communications with staff. A separate
    plan for the daily cleaning of Mr. Conways room requires him to remain in the
    visitors lounge while staff clean his room.

[28]

In
    his Notice of Constitutional Question, Mr. Conway advanced a two-pronged
Charter
argument. First, he contended the Hospitals March 2016 withdrawal of his Level
    4 privileges violated his s. 7 rights because the withdrawal lacked due
    process, consisting of the Hospitals failure to (i) inform him of the reason
    for the withdrawal, (ii) afford him an opportunity to respond to the
    allegations made against him, and (iii) report the withdrawal to the Board as a
    significant increase of the restrictions on his liberty pursuant to s.
    672.56(2) of the
Criminal Code.

[29]

Second,
    Mr. Conway argued the Hospitals care or behavior intervention plan infringed
    his ss. 7 and 9
Charter
rights by (i) requiring a 2:1 staff escort
    ratio, (ii) implementing a zero tolerance policy towards his misconduct, and
    (iii) requiring his absence from his room during its cleaning.

B.

The Boards reasons

[30]

The
    Board is entitled to decide constitutional questions, including
Charter
questions, which arise in the course of its proceedings:
R. v. Conway
,
    2010 SCC 22, [2010] 1 S.C.R. 765, at para. 84. It has the power to make
    findings as to whether an appellants
Charter
rights have been
    breached:
Starz (Re)
, 2015 ONCA 318, at para. 104.

[31]

The
    Board considered the allegations particularized in Mr. Conways Notice of
    Constitutional Question. It was not prepared to find that the withdrawal of Mr.
    Conways privileges was a significant increase of the restrictions on his
    liberty within the meaning of s. 672.56(2). The Board went on to find that the
    Hospital did not violate Mr. Conways
Charter
rights stating, at
    paras. 93 and 94:

The Board finds that the hospital did not violate standards of
    fairness and that Mr. Conway is not entitled to a remedy. The panel observes
    that the hospitals zero tolerance policy was harsh, and notes that the
    hospital could have been more transparent with Mr. Conway about the
    investigation and its outcome. Whether doing so might have promoted a positive
    therapeutic response or improvement in Mr. Conways behavior is difficult to
    know; throughout this period Mr. Conway refused to meet with his psychiatrist,
    Dr. Prat, and refused to leave the unit for almost 5 months, until August. And
    more recently, the hospital could have reviewed the 2:1 staff escort
    requirement once Mr. Conways behavior became more acceptable, in September and
    October. Even so and in all the circumstances, the Board finds it difficult to
    fault the hospital for the steps it took in dealing with Mr. Conways escalated
    behavior, harsh as those steps were.

Otherwise, Ms. Fraser abandoned her claim under s. 8 of the
    Charter, and the Board does not comment further on ss. 9 and 15 of the Charter,
    except to state that the evidence at the hearing does not support a finding of
    race discrimination  either direct or systemic in nature  against Mr. Conway.

C.

Analysis

[32]

Mr.
    Conway submits that in reaching those conclusions, the Board fettered its
    discretion such that it erred in law. He contends the Board declined to
    exercise its oversight function to ensure the Hospital treated him fairly.

[33]

We
    do not agree.

The alleged lack of due process

[34]

The
    record does not support Mr. Conways submission that the Hospital failed to
    inform him of the reason for the withdrawal of his privileges or afford him an
    opportunity to discuss the allegations. Dr. Prat, the treating psychiatrist,
    and a staff member, Ms. O'Connell, met with Mr. Conway to inform him that complaints
    from the housekeeping staff had led to the withdrawal of his privileges. They
    told him the allegations were being investigated and he should be patient.
    Initially, Mr. Conway was calm. However, after a few days his behaviour became
    significantly disruptive, threatening, and out of control. For the next five
    months, Mr. Conway rebuffed efforts by Dr. Prat to discuss the issue and how he
    could restore his privileges.

[35]

Mr.
    Conway also contends the withdrawal of his privileges lacked due process because
    the Hospital did not give a restriction of liberty notice to the Board. Sections
    672.56(2) and 672.81(2.1) of the
Criminal Code
are procedural
    provisions. Where a significant increase in the restrictions on a NCR accuseds
    liberty occurs and remains in force for more than seven days, a hospital must
    give notice to the Board: s. 672.56(2)(b). The Board then is required to hold
    as soon as practicable a hearing to review the decision that significantly
    increased the restrictions on liberty: s. 672.81(2.1). Combined, the sections
    provide a mechanism by which to obtain a timely Board review of any significant
    increase of liberty restrictions.

[36]

The
    procedural history of this proceeding makes it unnecessary to decide the
    appellants submission that the Board erred in finding that the March 2016
    withdrawal of privileges did not amount to a significant increase of the
    restrictions on Mr. Conways liberty within the meaning of s. 672.56(2). Assuming,
    without deciding, that the Hospital should have notified the Board about the
    withdrawal of Mr. Conways privileges in March 2016, for two reasons we see no
    resulting prejudice to Mr. Conway in the specific circumstances of this case.

[37]

First,
    the issue of the Hospitals reduction of Mr. Conways privileges was fully
    argued before the Board at the November hearing. Both the Hospital and Mr.
    Conway called evidence on the issue. The Board considered that evidence,
    together with the parties submissions, and addressed the issue in its reasons.

[38]

Second,
    it must be recalled that the November hearing originally was scheduled to be
    held in July 2016, only a few months after the reduction of privileges. It was
    adjourned at Mr. Conways request.

[39]

When
    those circumstances are considered, we are not persuaded that Mr. Conway
    suffered any procedural or substantive prejudice from the timing of the Boards
    ultimate consideration of the reduction of privileges issue at the November
    hearing.

The Hospitals care plan

[40]

Turning
    to Mr. Conways allegations concerning the Hospitals care plan, in our view it
    was reasonable for the Board to conclude that the Hospitals staff escort, zero
    tolerance, and room cleaning policies did not violate Mr. Conways ss. 7 and 9
Charter
rights. The Boards conclusion was amply supported by the evidence about the difficulties
    some Hospital staff were encountering in managing Mr. Conways aggressive
    outbursts and behaviour, the impact of such conduct on other patients and
    staff, and Mr. Conways selective compliance with directions from some staff
    but not from others. As well, it was implicit in the Boards reasons that the
    Hospitals care plan amounted to the least onerous and least restrictive means
    by which to manage Mr. Conway in the circumstances. We see no basis on which to
    interfere with the Boards decision on this issue.

Seclusion in the management plan

[41]

Mr.
    Conway also submits the inclusion of potential seclusion in the Hospitals behaviour
    intervention plan violated his
Charter
rights. Mr. Conway did not
    advance this argument before the Board; he raises it for the first time on
    appeal. We accept the submissions of the Hospital and Ontario that in those
    circumstances it would not be appropriate for this court to consider his
    submission.

VI.

DISPOSITION

[42]

For
    the reasons set out above, we dismiss Mr. Conways appeal from the Boards
    November 14, 2016 Disposition.

Paul
    Rouleau J.A.
David Watt J.A.
David Brown J.A.

[1]
This courts decision was released on December 6, 2016, several weeks after the
    Boards hearing concluded.


COURT OF APPEAL FOR
    ONTARIO

CITATION:
Dewan v. Burdet,
    2018 ONCA 195

DATE: 20180228

DOCKET: C62853

Hourigan, Roberts and
    Fairburn JJ.A.

BETWEEN

Patrick Dewan, Domicile Developments Inc., 1436984 Ontario
    Ltd.,

Amira Gabriel, 1496055 Ontario Inc., 117490 Canada
    Ltd.,

the Estate of Sheila Eberts, 2201894 Ontario Inc.,

BBG Equity
    Management Corporation and Powell Grifiths

Plaintiffs and Defendants by Counterclaim/

Respondents in appeal/Appellants in cross-appeal

and

Claude-Alain Burdet, in Trust, Claude-Alain Burdet,

Enterprises Ted Rubac Inc. and 1443957 Ontario Inc.

Defendants and Plaintiffs by Counterclaim/

Appellants

and

Carleton
    Condominium Corporation No. 396

Defendant/

Respondent in cross-appeal

Claude-Alain Burdet, for the
    appellants

Kenneth Radnoff, Q.C. and
    Jonathan Collings, for the respondents

Gary Boyd, for the defendant/respondent,
    Carleton Condominium Corporation No. 396

Heard: February 15,
    2018

On appeal from the judgment of
    Justice Paul B. Kane of the Superior Court of Justice, dated August 8, 2016,
    with reasons reported at 2016 ONSC 4917, and from the cost order, dated February
    2, 2017.

REASONS FOR DECISION

[1]

This case is one of a
    series of legal proceedings regarding the management of Carleton Condominium
    Corporation No. 396 (CCC396).

A.

background

[2]

Following a 35-day
    trial, the trial judge released reasons for decision that were in excess of 200
    pages. After exhaustively reviewing the complex factual background and
    considering the parties legal arguments, he ordered, among other things, the
    following relief:

(a) An order that the
    respondents/appellants in the cross-appeal (the minority owners) owe CCC396
    common expense arrears plus interest in the amounts specified in the reasons,
    which amounts shall be paid forthwith;

(b) A declaration that the
    appellant/respondent by cross-appeal, Claude-Alain Burdet, oppressed the
    minority owners;

(c) An order that CCC396 is
    terminated as a condominium corporation pursuant to s. 128 of the
Condominium
    Act, 1998
, S.O. 1998, c. 19, or, alternatively, pursuant to s. 135 of that Act;

(d) An order that Mr. Burdets claim
    for services rendered to CCC396 in 2001 is granted in the amount of $20,000,
    plus interest;

(e) An order granting the claims of
    the appellant/respondent by cross-appeal, Enterprises Ted Rubac Inc. (ETRE),
    against CCC396 for amounts owing under certain promissory notes in the total
    amount of $50,000, plus interest, and dismissing ETREs claims under other
    promissory notes; and

(f) An order dismissing all other claims in the counterclaim.

[3]

Mr. Burdet,
    Claude-Alain Burdet in Trust, and ETRE (collectively the appellants) raise a
    number of grounds of appeal, which will be considered below. The minority
    owners cross-appeal the trial judges order regarding the timing of the payment
    of their arrears. All parties, save CCC396, seek leave to appeal the cost order.
    For the reasons that follow, we dismiss the appeal, grant the minority owners
    leave to appeal the cost order, allow their cross-appeal with respect to costs,
    and dismiss the balance of the cross-appeal.

B.

Analysis

(i)

Appeal

[4]

The appellants submit
    that the trial judge erred in declaring that Mr. Burdet acted in a manner that
    was oppressive to the minority owners interests. There is no merit in this
    submission. The evidence of oppressive conduct on the part of Mr. Burdet is
    detailed, effectively unchallenged, and overwhelmingly compelling. It includes
    a long history of self-dealing, lack of financial disclosure, charging CCC396
    legal fees for personal matters, failing to declare conflicts, refusing to
    produce records despite being court-ordered to do so, and implementing an
    invalid by-law.

[5]

As noted above, the
    trial judge declared that Mr. Burdet oppressed the minority owners. He also
    found Mr. Burdet personally liable, along with ETRE and Claude-Alain Burdet in
    Trust, for the minority owners costs. Mr. Burdet submits that the trial judge
    erred in finding him personally liable. We disagree.

[6]

The very recent
    decision of the Supreme Court of Canada in
Wilson v. Alharayeri
, 2017 SCC 39, [2017] 1 S.C.R. 1037 is
    instructive. There the court found that
determining
    a directors personal liability under an oppression remedy requires a two‑pronged
    approach. First, the oppressive conduct must be properly attributable to the
    director because of his or her implication in the oppression. Second, imposing
    personal liability must be fit in all the circumstances see paras. 47-57.

[7]

We recognize that
Wilson
was decided under the
Canada Business
    Corporations Act
, R.S.C. 1985, c. C-44 (
CBCA
).
    However, the holding in
Wilson
is apt
    in the
Condominium Act
context. Like
    the oppression remedy provision in s. 241(3) of the
CBCA
,

s. 135(3) of the
Condominium Act
grants a judge broad discretion in crafting an appropriate
    remedy.
That subsection permits a judge to make any order the judge
    deems proper and lists two non-exhaustive examples. In
Wilson
, the
    Supreme Court noted that one of the remedial examples listed in s. 241(3) of
    the
CBCA
contemplated an order compensating an aggrieved person
    without specifying against whom such an order may lie: see para. 29. Similarly,
    s. 135(3)(b) of the
Condominium Act

contemplates an order
    requiring the payment of compensation without further specification. As the
Condominium
    Act

itself does not indicate when it would be proper to hold a
    director personally liable for oppression, guidance can be sought from
Wilson
.

[8]

Where, as here, it is clear that a
    director is the motivating force behind the oppressive conduct, he or she
    should be held personally liable. To hold otherwise in the present case would
    result in the oppressed minority owners being denied their costs or making
    CCC396 liable for those costs. The latter result would be particularly inequitable,
    as it would perpetuate Mr. Burdets practice of having CCC396 pay the legal
    costs associated with defending his oppressive conduct.

[9]

The appellants submit
    that the trial judge erred in terminating CCC396. We disagree. The trial judge
    was well aware that a termination order was a remedy of last resort. However,
    there was an ample record to support that order in this case. Indeed, it is
    difficult to imagine a more dysfunctional condominium corporation. It is clear
    from the evidence, including from the independent court-appointed property manager,
    that the corporation could not continue. In these circumstances, termination
    was the most just and equitable order. It was consistent with the scheme and
    intent of the
Condominium Act
, was in the best interests of all owners, and protected against
    unfairness to the minority owners.

[10]

The appellants submit
    that the oppression claims and other related relief are statute-barred. This
    submission is based on the argument that these claims were raised for the first
    time in the statement of claim. That is incorrect. The impugned claims were
    asserted in an application in 2001 and were not statute-barred at that time.
    The application was later converted by court order to an action. The claims
    asserted in the statement of claim are essentially the same as those made in
    the application. We therefore conclude that they are not statute-barred.

[11]

We see no error in the
    trial judges conclusion that the appellants did not satisfy their onus of
    establishing that the minority owners acted in an oppressive manner, either by
    reason of their non-payment of arrears or their conduct in this litigation.

[12]

The trial judges
    decision to dismiss the balance of the counterclaim was well-grounded in the
    evidence and free of legal error. We note that Mr. Burdet elected not to
    testify in support of the claims made in the counterclaim.

(ii)

Cross-Appeal: Payment of Arrears

[13]

With respect to the
    cross-appeal, the minority owners acknowledged the existence and quantum of the
    common expense arrears owing to CCC396. However, they submit that the trial
    judge erred in ordering that the arrears be paid forthwith and not after Mr.
    Burdet has paid his arrears.

[14]

The trial judge had
    discretion to determine when the arrears should be paid. We see no basis for
    appellate interference with the exercise of that discretion. CCC396 is in dire
    need of funds and there is no reason why it should be forced to wait to collect
    the arrears that the minority owners admit to be owing.

(iii)

Costs

[15]

We see no error in
    principle in the cost order made against the appellants. Accordingly, we
    decline to grant leave to appeal the cost order made against those parties.

[16]

We grant the minority
    owners leave to appeal the cost order made against them because we are of the
    view that the trial judge erred in principle in making that order.

[17]

Pursuant to s. 85 of
    the
Condominium Act
,
    where an owner defaults on an obligation to contribute to the common expenses
    payable, a condominium corporation has a lien, a
gainst the owners unit and its appurtenant
    common interest for the unpaid amount together with all interest owing and all
    reasonable legal costs and reasonable expenses incurred by the corporation in
    connection with the collection or attempted collection of the unpaid amount.

[18]

At
    trial, the minority owners conceded that they owed arrears and agreed to pay
    same. Consequently, very little trial time was dedicated to the issue of collecting
    the arrears. In his cost endorsement, the trial judge recognized that the
    lengthy trial largely related to other issues, not the determination of this
    common expense arrears award against the Plaintiffs.

[19]

We
    are of the view that the trial judge erred in principle in awarding costs that
    were disproportionate to the cost of collecting the common expense arrears. He
    should not have ordered the minority owners to pay legal costs unrelated to the
    collection of arrears. We therefore set aside the cost award made against the
    minority owners. In its place, we order that the minority owners are liable for
    20 percent of CCC396s costs below. We further order that
the appellants, as the unsuccessful
    parties at trial,
are jointly and severally liable for 80 percent of CCC396s costs below.
    We fix CCC396s all-inclusive costs of the proceedings below at $220,000.

C.

Disposition

[20]

For the foregoing
    reasons, we dismiss the appeal, grant the minority owners leave to appeal the cost
    order, allow their cross-appeal with respect to costs, and dismiss the balance
    of the cross-appeal.

[21]

The appellants are
    jointly and severally liable for the minority owners costs of the appeal and
    cross-appeal, which we fix in the all-inclusive amount of $25,000. CCC396s
    costs of the appeal and cross-appeal, in the all-inclusive amount of $15,000,
    shall be borne 50 percent by the appellants jointly and severally, and 50
    percent by the minority owners.

C.W. Hourigan J.A.

L.B. Roberts J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fawcett v. Fawcett, 2018 ONCA 150

DATE: 20180215

DOCKET: C62808

Rouleau, Trotter and Paciocco JJ.A.

BETWEEN

Charlene Victoria Fawcett

Applicant (Appellant)

and

Timothy Robert Fawcett

Respondent
    (Respondent)

Adam Pantel, for the appellant

John F. Black, for the respondent

Heard: November 14, 2017

On appeal from the judgment of Justice Timothy Minnema of
    the Superior Court of Justice, dated August 23, 2016, with reasons reported at
    2016 ONSC 5331.

Trotter J.A.
:

A.

introduction

[1]

This appeal deals with the division of a federal pension as family
    property under the
Family Law Act
, R.S.O. 1990, c. F.3 (the
FLA
).

[2]

The appellant has a Canadian Forces pension, provided by the
Canadian
    Forces Superannuation Act
, R.S.C. 1985, c. C-17 (the
CFSA
). The
    parties agreed that the commuted value of the pension was $747,200. The pension
    has matured and is in pay, meaning that the appellant receives monthly payments.

[3]

To satisfy an equalization payment of $313,002, the trial judge ordered
    that an application be made to the pension administrator of the Canadian Forces
    pension to transfer this amount to the respondent. The appellant would have
    preferred to pay the respondent on a monthly basis by having her pension
    payments split at source. The respondent wanted an immediate lump-sum transfer.
    The trial judge held that the
Pension Benefits Division Act
, S.C.
    1992, c. 46, Sch. II (the
PBDA
), under which the
CFSA

pension
    is administered, only allows for a lump-sum division.

[4]

As explained below, I agree with the trial judges interpretation of the
PBDA
 it contains no provision that would enable the pension administrator
    to divide monthly payments. Moreover, the trial judges order was not precluded
    by the pension division provisions of the
FLA
. I would dismiss the
    appeal.

B.

the facts

(1)

The Parties

[5]

The parties are both in their 50s. They cohabited for three years
    before marrying in 1994. They separated in July of 2013. They have three
    children who were ages 21, 19, and 17 at the time of trial.

[6]

The appellant was the primary income-earner during the marriage. She
    joined the Canadian Forces before she married the respondent. She retired in
    2008 and started drawing her Canadian Forces pension. The appellant now enjoys
    success as a financial planner/advisor with the Royal Bank of Canada. She has
    pensions from the Royal Bank Pension Plan and RBC Dominion Securities Pension
    Plan, but they have yet to mature.

[7]

During the relationship, the respondent qualified as a teacher. He
    became a substitute teacher in 2005, and then a permanent, full-time teacher in
    2011.

(2)

Proceedings at Trial

[8]

The parties were able to settle many of the issues arising from the
    breakdown of their marriage. They went to trial to resolve questions of child
    support, special expenses, and property issues. This appeal is only concerned
    with the division of the appellants Canadian Forces pension.

[9]

In ascertaining the value of this pension, the parties relied upon a
    letter sent to the appellant by National Defence. This letter, dated August 28,
    2014, is significant because it also highlights the restrictions placed upon
    the administrator of the
CFSA
pension. As the letter states:

Below you will find the financial information you requested
    under Section 13(2) of the Pension Benefits Division Act (PBDA), with respect
    to your pension entitlement under the Canadian Forces Superannuation Act.

Mr. Tim Fawcett would receive approximately $373,600.00 as a
    result of the division of your pension for the cohabitation period of 14 May
    1994 to 24 July 2013.
This one-time lump sum payment
must
be
    deposited into his locked-in RRSP account.
There would be a corresponding
    reduction to your pension of approximately $1,145.56 per month. For the
    cohabitation period of 14 May 1994 to 8 March 2014 the approximate amount is
    $374,900.00. The corresponding reduction to your pension is 1,149.67 per month.
    When indexed, the increase to your pension would be based on the amount
    remaining after the reduction,
which is for life.
[Emphasis in original.]

[10]

The
    trial judge heard evidence from an actuary, Guy Martel. Mr. Martel prepared a
    report on the family law value of the appellants other pension benefits. He
    also provided an opinion on the appropriate tax rate to be applied to discount
    the appellants Canadian Forces pension.

[11]

During
    his testimony, Mr. Martel was asked about the administration of the Canadian
    Forces pension. He explained the differences between a division of
CFSA
pension benefits and pensions governed by provincial legislation. Mr. Martel
    testified that the
PBDA
only allows for a lump-sum division. As he
    said:

The Canadian Forces pension that falls under the
Pension
    Benefits Division Act
, that would also cover the
Public Service
    Superannuation Act
, [the]
RCMP Superannuation Act
, the Members of
    Parliament Retirement Allowance  those, those plans under the [
PBDA
],
the only option basically is to transfer a lump-sum amount up to 50 percent
    of the maximum transferable amount, regardless of whether  the separation is
    before or after retirement
. [Emphasis added.]

[12]

In
    follow up questions, Mr. Martel confirmed that the only way to divide the
CFSA
pension is through a lump-sum transfer, and if the parties wished to do things
    differently, the Forces will [be] unable to persist [
sic
] in that.
    As discussed below, the trial judge interpreted the applicable legislation the
    same way.

[13]

The appellant argued that the
FLA

determines how her Canadian Forces pension should be treated
    as family property. Because her pension is in pay, s. 10.1(5) of the
FLA
precludes a lump-sum division; she could only be ordered to split
    her monthly pension payments. The appellant argued that the
Pension
    Benefits Standards Act, 1985
, R.S.C. 1985, c. 32 (2nd
    Supp.) allowed for the division of her monthly pension payments. The trial
    judge disagreed.

[14]

The appellant made the alternative submission
    that, if the trial judge were to order a lump-sum transfer, he should exercise
    his discretion under s. 9(1)(c) of the
FLA
to
    delay payment for 10 years, based on a claim of hardship. The trial judge
    flatly rejected this request, at para. 15:

However, her counsel did not explain how or
    why the immediate lump sum payment would create hardship. Not only did she not
    address it, but it is hard to understand the basic argument given that her lead
    position was to split the income stream at source.
The pension income that
    the applicant is currently receiving would be similarly reduced in both
    scenarios.
Further, the applicants counsel did not provide any plan or
    proposal; she simply made the argument without detail or thought as to how it
    would work. Specifically she did not address how the respondent would be fairly
    compensated for such a delay.
My sense was that rather than wanting to avoid
    hardship, which was not established, the applicant was seeking to gain an
    advantage for herself at the respondents expense. I decline to make that
    order.
[Emphasis added.]

[15]

The
    trial judge ordered the appellant to make an equalization payment of $313,002
    by way of a PBDA transfer from her Canadian Forces pension, which is the
    $281,224 equalization payment grossed-up for taxes by 11.3 percent.

C.

analysis

(1)

Introduction

[16]

At
    trial and on appeal, counsel focused their submissions on whether the administrator
    of the Canadian Forces pension could be ordered to split monthly payments at
    source. I agree with the trial judge that the
PBDA
, in conjunction
    with related federal statutes, does not enable a judge to order the
    administrator to split monthly payments for the purposes of dividing family
    property.

[17]

I
    disagree with the appellants submission that s. 10.1(5) of the
FLA
precluded
    the trial judge from ordering a lump-sum division because her pension was in pay.
    I would not interpret s. 10.1 of the
FLA
in this manner.

(2)

Federal Pension Legislation

[18]

There
    are numerous statutes that create and govern the administration of federal
    pensions. The appellants Canadian Forces pension entitlement derives from the
CFSA
;
    however, it does not determine how the pension is dealt with as family or
    matrimonial property.

[19]

The
PBDA
governs the division of
CFSA
pensions, as well as pensions
    granted under many other federal statutes.
[1]
By virtue of s. 3 of the
PBDA
, Parliament has signalled the primacy of
    this Act:

3
In the event of any inconsistency between this
    Act and the regulations made under this Act
and any other law
, this Act
    and the regulations shall prevail to the extent of the inconsistency. [Emphasis
    added.]

The respondent contends that the section trumps all provincial
    law, including the
FLA
. I disagree. Section 3 merely prioritizes the
PBDA
over other federal enactments. Conflicts between provincial and federal
    legislation must be resolved by the federal paramountcy doctrine. However, the
    issue on this appeal may be resolved without resort to this doctrine.

[20]

As
    discussed below, the relationship between the
PBDA
and the
FLA
is not seamless. Nevertheless, courts must strive to interpret related federal
    and provincial enactments in a harmonious manner. As Ruth Sullivan observes in
Statutory
    Interpretation
, 3rd ed. (Toronto: Irwin Law, 2016), at p. 184, the
    Supreme Court of Canada has shown a strong inclination to harmonize the
    legislation of federal, provincial and territorial jurisdictions dealing with
    the same subject matter in a number of areas, including matrimonial property
    rights. By way of example, she refers to
Clarke v. Clarke
, [1990] 2
    S.C.R. 795, a leading matrimonial property case, in which the Court read the
CFSA
and the
Matrimonial Property Act
, S.N.S. 1980, c. 9 harmoniously,
    thereby avoiding a conflict and the need to invoke the paramountcy doctrine. In
Quebec (Attorney General) v. Canada (Human Resources and Social
    Development)
, 2011 SCC 60, [2011] 3 S.C.R. 635, Deschamps J. referred
    favourably to
Clarke
and said, at para. 22: A federal provision that
    appears to be prohibitive may, upon consideration of its legislative purpose,
    prove to be compatible with a permissive provision. See also
Alberta
    (Attorney General) v. Moloney
, 2015 SCC 51, [2015] 3 S.C.R. 327, at para.
    26. Employing the same approach, the
FLA
and the
PBDA
may be
    interpreted harmoniously in this case.

[21]

The
PBDA
only provides for a lump-sum division of a members pension,
    whether the pension is in pay or not. A division is triggered by an application
    under s. 4, which provides:

4 (1)
A member of a pension plan or a spouse,
    former spouse or former common-law partner of a member may, in the
    circumstances described in subsection (2), apply to the Minister to divide the
    members pension benefits between the member and the spouse, former spouse or
    former common-law partner.

(2)
The circumstances in which an application may
    be made are:

(a)
where a court in
    Canada of competent jurisdiction, in proceedings in relation to divorce,
    annulment of marriage or separation, makes an order that provides for the
    pension benefits to be divided between the member and the spouse, former spouse
    or former common-law partner.

[22]

The
    manner in which the pension is divided is addressed in s. 8. It does not
    facilitate a simple cash payment to the non-member spouse; it provides for a
    one-time transfer of funds into locked-in financial instruments. As s. 8
    provides:

8

(1)
A
division
of pension
    benefits
shall be
effected by

(a)
subject to subsection (4),
transferring an
    amount representing fifty per cent of the value of the pension benefits
that have accrued to the member of the pension plan during the period subject
    to division, as determined in accordance with the regulations, to the spouse,
    former spouse or former common-law partner, if that pension plan is a
    retirement compensation arrangement, or, in any other case, to

(i)
a pension plan
    selected by the spouse, former spouse or former common-law partner that is
    registered under the
Income Tax Act
, if that pension plan so
    permits,

(ii)
a retirement
    savings plan or fund for the spouse, former spouse or former common-law partner
    that is of the prescribed kind, or

(iii)
a financial
    institution authorized to sell immediate or deferred life annuities of the
    prescribed kind, for the purchase from that financial institution of such an
    annuity for the spouse, former spouse or former common-law partner;
and

(b)

adjusting, in accordance with the
    regulations, the pension benefits that have accrued to the member of the
    pension plan under that pension plan
, notwithstanding the provisions of
    that pension plan or the Act under which it is established or by which it is
    provided.
[2]
[Emphasis added.]

[23]

The
    trial judges conclusion that s. 8 only provides for lump-sum divisions is
    borne out by the plain language of the provision. It is in accord with the
    National Defence letter in para. 9, above. It is consistent with Mr. Martels
    understanding of the
PBDA
. Moreover, this feature of the
PBDA
has long been recognized: see Ontario Law Reform Commission,
Report on
    Pensions as Family Property: Valuation and Division
(Toronto: Ontario Law
    Reform Commission, 1995), at pp. 62, 171-172; Thomas G. Anderson, Q.C., Pension
    Basics for Family Lawyers Part II: Canadian Models for
    Dividing Pensions When a Relationship Ends (2007) 26 Can. Fam. L.Q.
    91, at pp. 114, 118-119; and
R. v. Francis
, 2017 SKQB 28, 31 C.C.P.B.
    (2nd) 242, at paras. 25 and 30.

[24]

The
    appellant submits that the
Garnishment, Attachment and Pension Diversion
    Act
, R.S.C. 1985, c. G-2 (the
GAPDA
) permits pension payments
    to be split at source as family or matrimonial property. I disagree. This Act
    only applies to the enforcement of support orders.

[25]

Section
    90 of the
CFSA
incorporates the operation of the
GAPDA
:

Diversion of payments to satisfy financial support order

90(1)
When any court in Canada of competent jurisdiction
    has made an order requiring a recipient to pay financial support,
amounts
    payable
under Part I, I.1 or III to that recipient are subject to being
    diverted to the person named in the order in accordance with Part II of the
Garnishment,
    Attachment and Pension Diversion Act
. [Emphasis added.]

Part II of the
GAPDA

is titled,
    Diversion of Pension Benefits to Satisfy Financial Support Orders. Section 31
    clarifies the limited scope of this Part of the Act:

31
This Part applies
only
in respect of the
enforcement
    of financial support

orders
against pension benefits payable
    pursuant to the superannuation Acts and like enactments referred to in the
    schedule. [Emphasis added.]

[26]

A
    financial support order is defined in s. 32(1) in the following way:

financial support order
means, subject to
    subsection (2), an order or judgment for maintenance, alimony or support,
    including an order or judgment for arrears of payments, made pursuant to the
Divorce
    Act
or pursuant to the laws of a province relating to family financial
    support or the enforcement of family financial support.
[3]

Near identical provisions were considered in
Clarke
.
    Writing for the Court, Wilson J. held, at p. 832, that a financial support
    order does not encompass matrimonial property.

[27]

To
    conclude, federal legislation does not clothe the
PBDA
administrator
    with the power to split pension payments as a method of dividing family
    property. Consequently, the administrator cannot be ordered to do so. Parliament
    could create such a power. It has chosen not to. Indeed, in the recent case of
Francis
,
    the federal Crown successfully argued that there is no jurisdiction to order
    the administrator to divide pension payments as family property under the
PBDA
.
    I agree with the analysis in that decision.

(3)

Provincial Legislation

[28]

Part
    I of the
FLA
addresses issues of family property. Section 5 creates a
prima
    facie
entitlement to an equal division of net family property. Section 9
    empowers a court to order equalization payments, and to make collateral orders to
    secure their performance.

[29]

The
    interest of one spouse in anothers pension benefits has long been recognized
    as a matter of matrimonial or family property: see
Clarke
, at p. 824. In
    2009, the
FLA

was amended (s. 2009, c. 11) to create specific
    rules, contained in s. 10.1, about the division of pension entitlements.
    Subsections 10.1(3), (4), and (5) provide:

(3)
An order made under section 9 or 10
may
provide for the immediate transfer of a lump sum out of a pension plan but,
except
    as permitted under subsection (5)
, not for any other division of a spouses
    interest in the plan.

(4)
In determining whether to order the immediate
    transfer of a lump sum out of a pension plan and in determining the amount to
    be transferred, the court may consider the following matters and such other
    matters as the court considers appropriate:

1. The nature of the assets
    available to each spouse at the time of the hearing.

2. The proportion of a spouses net
    family property that consists of the imputed value, for family law purposes, of
    his or her interest in the pension plan.

3. The liquidity of the lump sum in
    the hands of the spouse to whom it would be transferred.

4. Any contingent tax liabilities
    in respect of the lump sum that would be transferred.

5. The resources available to each
    spouse to meet his or her needs in retirement and the desirability of
    maintaining those resources.

(5)
If payment of the first instalment of a spouses
    pension under a pension plan is due on or before the valuation date, an order
    made under section 9 or 10
may
provide for the division of pension
    payments
but not for any other division of the spouses interest in the plan.
[Emphasis added.]

[30]

The
    appellant argues that the combined operation of ss. (3) and (5) precludes a lump-sum
    division when a pension is in pay. Some cases support this interpretation (see,
    for example,
Jovanovic v. Jovanovic
, 2013 ONSC 7132, [2014] W.D.F.L.
    461, at para. 40). However, I would not read these provisions so restrictively,
    especially without clear statutory language that prohibits a lump-sum transfer when
    a pension is in pay.

[31]

Subsection
    10.1(3) creates a general power to order an immediate lump-sum division. The
    availability of this permissive option is guided by the non-exhaustive criteria
    in s. (4). Subsection (5) addresses pensions in pay. In these circumstances, a
    judge
may
make an order for the division of pension payments, but not
    for
any other
division of the spouses interest in the plan (emphasis
    added). I do not read this section as prohibiting a lump-sum transfer for a
    pension in pay. Instead, s. 10.1(5) simply provides courts with another option
     division of payments. However, just like s. 10.1(3), s. 10.1(5) only allows a
    judge to order one form of division  lump-sum or pension payments  not both,
    and not any other form of division of the interest.

[32]

The
    combined operation of ss. 10.1(3) and (5) leads to the following options.
    Before a pension is in pay, only a lump-sum division is available. This makes
    sense because there is no monthly payment stream to divide. Once a pension is
    in pay, a judge may choose between the two options, depending on all of the
    circumstances of the case. Whether or not a pension is in pay, the factors set
    out in s. 10.1(4) provide guidance.

[33]

The
    appellants restrictive interpretation of s. 10.1 potentially compromises an
    important goal of the
FLA
 to achieve a division of assets that is fair
    to both parties. In
Best v. Best
, [1999] 2 S.C.R. 868, Major J. said, at
    para. 109: The choice of a method for settlement of the equalization
    obligation is highly contextual and fact-based. A payment method that is
    preferable in one case might be grossly unjust in another. The interpretation
    favoured by the appellant would undermine this approach by precluding resort to
    an option (a lump-sum payment) that may be critical in achieving a fair and
    just division of property.

[34]

A
    broader interpretation s. 10.1(5) of the
FLA
is more compatible with
    the
PBDA
. Returning to the paramountcy jurisprudence, Gascon J. said
    in
Moloney
, at para. 27: It is presumed that Parliament intends its
    laws to co-exist with provincial laws. This presumption must also apply in
    reverse, and with at least equal force  it is presumed that the province
    intends its laws to co-exist with federal laws. I am unable to find that the
    Legislature intended to undermine or limit the operation of the
PBDA
.

[35]

When
    Ontario amended the
FLA

in 2009 to create s. 10.1, it would
    surely have known that the
PBDA
only provides for a lump-sum division:
    see Ontario Law Reform Commission,
Report on Pensions as Family Property
,
    at pp. 62, 171-172. See also, Law Commission of Ontario,
Division of Pensions
    Upon Marriage Breakdown  Final Report
(Toronto: Law Commission of
    Ontario, 2008). As noted in para. 18 above, the
PBDA
applies to
    pensions created by many federal statutes, no doubt affecting the pensions of
    countless Ontarians. I would avoid an interpretation of the
FLA
that
    frustrates the
PBDA
. A broader interpretation of s. 10.1(5) advances
    the goals of the
FLA
, while achieving harmony with federal pension
    legislation.

[36]

This
    is not say that it will always be appropriate to order a lump-sum division of a
    pension in pay. It will depend on the nature of the underlying pension
    legislation, the application of the criteria listed in s. 10.1(4) of the
FLA
,
    and such other matters as the court considers appropriate to achieve a just
    result in the case: see
VanderWal v. VanderWal
, 2015 ONSC 384, 54
    R.F.L. (7th) 410, at para. 9.

(4)

Application to This Case

[37]

The
    trial judge did not err in ordering a lump-sum transfer of the appellants
    pension. This method of division involves little downside to the appellant. She
    does not have to find the money or arrange financing to satisfy the equalization
    payment: see
Boston v. Boston
, 2001 SCC 43, [2001] 2 S.C.R. 413, at
    paras. 51 and 60. The pension is divided at source. Moreover, as the trial judge
    recognized, a lump-sum division puts the appellant in the same monthly position
    had her pension payments been split at source.

[38]

On
    the other hand, under the
PBDA
, the respondent will benefit from an
    immediate, one-time transfer of the property to which he is entitled: see
Symmons
    v. Symmons
, 2012 ONCA 747, 298 O.A.C. 224, at paras. 37-39. This, in turn,
    will better facilitate a clean break between the parties, avoiding the
    potential for future disputes: see
Clarke
, at p. 836; and
Best
,
    at paras. 109 and 111.

[39]

As
    the trial judge observed, the appellant is not interested in this arrangement;
    she seemed intent on putting the respondent at a disadvantage. To a certain
    extent, this posture continues on appeal. In the circumstances, an order that requires
    the appellant to pay the respondent each month is a recipe for conflict and
    more litigation. This is avoided by the trial judges order.

D.

disposition

[40]

The
    trial judge did not err in the manner in which he interpreted applicable
    provincial and federal legislation. The order that he made was both available
    to him under the law and appropriate in the circumstances. Accordingly, I would
    dismiss the appeal and order costs to the respondent in amount of $10,000,
    inclusive of disbursements and HST.

Released: PR FEB 15 2018

G.T. Trotter J.A.

I agree. Paul Rouleau J.A.

I agree. David M. Paciocco J.A.

[1]
Section 2 of the
PBDA
defines a pension plan for the purposes of the
    Act. In addition to the
CFSA,
the
PBDA
governs the division of
    pensions established under the following statutes: (i) the
Public Service
    Superannuation Act
, R.S.C. 1985, c. P-36 (which provides for persons
    employed in the public service); (ii) the
Defence Services Pension
    Continuation Act
, R.S.C. 1970, c. D-3 (which provides for certain persons
    enrolled as members of the Regular Forces before the 1st day of April 1946);
    (iii) the
Royal Canadian Mounted Police Superannuation Act
, R.S.C. 1985,
    c. R-11 (which provides for members of the Royal Canadian Mounted Police);
    (iv) the
Royal Canadian Mounted Police Pension Continuation Act
, R.S.C.
    1970, c. R-10 (which provides for certain persons appointed as members of the
    Royal Canadian Mounted Police before the 1st day of March 1949); (v) the
Diplomatic
    Service (Special) Superannuation Act
, R.S.C. 1985, c. D-2 (which provides
    for senior appointees of the Department of Foreign Affairs, Trade and
    Development serving outside Canada); (vi) the
Lieutenant Governors
    Superannuation Act
, R.S.C. 1985, c. L-8 (which provides for Lieutenant
    Governors); (vii) the
Governor Generals Act
, R.S.C. 1985, c. G-9 (which
    provides for the Governor General); (viii) the
Members of Parliament
    Retiring Allowances Act
, R.S.C. 1985, c. M-5 (which includes provisions for
    a pension plan or retirement compensation arrangement to persons who have
    served as Members of Parliament); and (ix) the
Special Retirement
    Arrangements Act
, S.C. 1992, c. 46, Sch. I (which provides for a special
    pension plan or retirement compensation arrangement to any person or class
    of persons designated by order of the Governor in Council, on the
    recommendation of the President of the Treasury Board).

[2]

Subsection (4) provides for lump-sum transfers of less than
    fifty percent.

[3]
Subsection (2) is irrelevant to the issues on
    appeal; it deals with orders that fail to sufficiently specify the dollar
    amounts at stake.