COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Children's Lawyer) v. Ontario (Information
    and Privacy Commissioner), 2018 ONCA 559

DATE: 20180618

DOCKET: C63765

Rouleau, Benotto and Roberts JJ.A.

BETWEEN

Childrens Lawyer for Ontario

Applicant (Appellant)

and

Information and Privacy Commissioner/Ontario and
    the Ministry of the Attorney General for Ontario, and John Doe, Requester

Respondents (Respondents)

Ian Ross and Sheena Scott, for the appellant, Childrens
    Lawyer for Ontario

Sara Blake and Sarah Kromkamp, for the respondent,
    Attorney General for Ontario

Linda Rothstein and Jodi Martin, for the respondent,
    Information and Privacy Commissioner of Ontario

Jesse Mark and Mary Birdsell, for the intervener,
    Justice for Children and Youth

Heard: December 1, 2017

On appeal from the order of the Divisional Court
    (Justices Katherine E. Swinton, Carolyn J. Horkins and Michael G. Emery), dated
    February 2, 2017, with reasons reported at 2017 ONSC 642, dismissing an
    application for judicial review from an order of the Information and Privacy
    Commissioner of Ontario, dated August 7, 2015.

Benotto J.A.:

OVERVIEW

[1]

Are a child-clients litigation records with the Childrens Lawyer for
    Ontario subject to a fathers freedom of information access request? The answer
    turns on whether the records are in the custody or under the control of the Ministry
    of the Attorney General for Ontario (MAG) for purposes of the
Freedom of
    Information and Protection of Privacy Act
, R.S.O. 1990, c. F.31 (
FIPPA
).

[2]

The Assistant Information and Privacy Commissioner of Ontario (the Adjudicator
    and the IPC) determined they were and ordered that MAG respond to the
    fathers request. The Divisional Court upheld the Adjudicators order on
    judicial review.
[1]
The Childrens Lawyer appeals. MAG and Justice for Children and Youth,
[2]
an intervener, support the Childrens Lawyers position.

[3]

I have concluded that the Adjudicators decision should be reviewed for
    correctness and that it cannot stand. The issue on appeal involves matters of
    central importance to the administration of justice and is outside the
    Adjudicators specialized expertise. As I will explain, the Adjudicators
    decision is based on a fundamental misunderstanding of the role and function of
    the Childrens Lawyer, her relationship to MAG, and her duty to provide
    children with the heightened protection the law mandates. This decision is not
    in the best interests of children.

[4]

For the reasons that follow, I would allow the appeal.

STATUTORY PROVISIONS

[5]

Before addressing the facts and decisions below, it is helpful to
    summarize the various statutes that inform the appeal. The following are
    relevant: (i)
FIPPA
 which governs access to information; (ii)
the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43 (the
CJA
)  which provides for the appointment
    of the Childrens Lawyer; and (iii) several other statutory provisions  which
    establish the functions of the Childrens Lawyer.

(1)

FIPPA

[6]

FIPPA
has two purposes: to provide access to information and to
    protect individuals privacy as it relates to that information. These are set
    out in s. 1:

1 The purposes of this Act are,

(a)
to provide a right of access to
    information under the control of institutions
in accordance with the
    principles that,

(i) information
    should be available to the public,

(ii) necessary
    exemptions from the right of access should be limited and specific, and

(iii) decisions on
    the disclosure of government information should be reviewed independently of
    government; and

(b) to protect the
    privacy of individuals with respect to personal information about themselves
    held by institutions and to provide individuals with a right of access to that
    information. [Emphasis added.]

[7]

Under s. 10(1), every person has a right to access records or part of
    records in the custody or under the control of an institution, subject to
    certain exemptions:

10(1)  [E]very person has a right of access to a record or a
    part of a record
in the custody or under the control of an institution
unless,

(a) The record or the part of the record falls within one of
    the exemptions under sections 12 to 22; or

(b) The head is of the opinion on
    reasonable grounds that the request for access is frivolous or vexatious.
    [Emphasis added.]

[8]

Pursuant to s. 2(1) institution includes a ministry of the Government
    of Ontario. MAG is captured by this definition.

[9]

The exemptions under ss. 12-22, and their exceptions, relate to various
    matters. Of note, s. 19 creates an exemption for records that are subject to
    solicitor-client privilege:

19 A head may refuse to disclose a record,

(a) that is subject to solicitor-client
    privilege;

(b) that was prepared by or for Crown counsel for
    use in giving legal advice or in contemplation of or for use in litigation; or

(c) that was
    prepared by or for counsel employed or retained by an educational institution
    or a hospital for use in giving legal advice or in contemplation of or for use
    in litigation.

(2)

The
CJA

[10]

Part
    VI of the
CJA
 under the heading Judges and Officers  provides for
    the appointment of the Childrens Lawyer by the Lieutenant Governor in Council:

Childrens Lawyer

89
(1) The Lieutenant Governor in Council, on the recommendation of the
    Attorney General, may appoint a Childrens Lawyer for Ontario.

[11]

Subsections 89(3)-(3.1) set out the Childrens Lawyers duties:

(3) Where required to do so by an Act or the
    rules of court, the Childrens Lawyer shall act as litigation guardian of a
    minor or other person who is a party to a proceeding.

(3.1) At the request
    of a court, the Childrens Lawyer may act as the legal representative of a
    minor or other person who is not a party to a proceeding.

[12]

Under s. 112, the Childrens Lawyer may also cause investigations to be
    made, report to the court, and make recommendations to the court in custody and
    access matters.

(3)

Other statutes

[13]

In
    addition to providing legal representation to children in custody and access
    disputes, the Childrens Lawyer:

·

Provides legal representation to children in child protection
    proceedings, alternative dispute resolution proceedings, and secure treatment
    and health emergency matters pursuant to ss. 78(3), 78(5), 17(3), 161(6) and
    171(8) of the
Child, Youth and Family Services Act, 2017
, S.O. 2017,
    c. 14, Sched. 1 (
CYFSA
);

·

Provides independent legal advice to children as well as minor
    parents consenting to adoption pursuant to ss. 180(6), 180(7) and 180(11) of
    the
CYFSA
, and rr. 34(11) and 34(11.1) of the
Family Law Rules
,
    O. Reg. 114/99;

·

Acts as the litigation guardian for minors in all applications
    for guardianship of a childs property; and

·

Is the head of the Office of the Childrens Lawyer (OCL). The
    OCL has one function: to support the Childrens Lawyer in fulfilling her
    independent statutory duties and functions.

[14]

Against
    this statutory backdrop, I turn to the facts underlying this appeal.

FACTS

[15]

Two
    children were the subject of a custody and access dispute between their
    parents. In 2008, when the children were nine and eleven years old, McCartney
    J. appointed the Childrens Lawyer and requested that she conduct an
    investigation, report and make recommendations pursuant to s. 112(1) of the
CJA
.
    The Childrens Lawyer determined that she would provide legal representation to
    the children pursuant to s. 89(3.1) of the
CJA
. She also
assigned a clinical investigator
    to assist counsel.

[16]

In
    May, 2010 Warkentin J. made a final order terminating the fathers access to
    the children as well as all forms of verbal communication. In 2012, the father
    brought a motion to change. Coats J. referred the matter, again, to the Childrens
    Lawyer. The Childrens Lawyer decided to provide legal representation to the
    children, this time without the assistance of a clinical investigator.

[17]

On
    January 23, 2014 the father requested access to information from MAG pursuant
    to
FIPPA
. He sought records in the Childrens Lawyers litigation
    files, including:

·

Privileged and non-privileged reports relating to the children;

·

All documents filed with the court, including settlement reports,
    medical reports, psychological and educational reports, filed conversations and
    notes, and transcripts;

·

All notes and information relating to the duties of the lawyers
    acting for the Childrens Lawyer, including notes, court documents, and
    assessments; and

·

Social worker notes.

DECISIONS BELOW

(1)

MAG denies the fathers request

[18]

The
    Childrens Lawyer took the position that
FIPPA
does not apply to
    private litigation files involving her provision of services to children.

She
    emphasized that her office is an independent office within MAG, appointed by
    the Lieutenant Governor in Council under s. 89 of the
CJA
; she
represents the independent legal
    interests of children and does not act on behalf of MAG or the Crown. She determined
    that since the records the father requested were prepared or collected in the
    course of her independent legal representation of the children, they are not
    within MAGs custody or under its control.

[19]

Given
    the Childrens Lawyers position, MAG advised the father that it does not have custody
    or control of the records and
FIPPA
does not apply.

(2)

The appeal to the IPC

[20]

The
    father appealed MAGs decision to the IPC. The Adjudicator determined that the sole
    issue before her was whether MAG has custody or control of the requested
    records. She noted that resolving this issue did not necessarily mean the
    father would be provided access to the records  even when records are in the
    custody or control of an institution, they may be excluded under one of
FIPPA
s
    exemptions or may be subject to an overriding confidentiality provision enacted
    in another statute.

[21]

The
    Adjudicator concluded that the records at issue are in MAGs custody or
    control. She identified two overriding considerations leading to this
    conclusion: the undisputed fact that the [Childrens Lawyer] is a branch of
    [MAG]; and that the records at issue were generated in the course of the [Childrens
    Lawyer] fulfilling its core mandate.

[22]

The
    Adjudicator rejected the submission that the Childrens Lawyer is distinct from
    MAG. She noted that the Childrens Lawyer operates as a branch within the
    formal structure of MAG, is accountable to MAG for the expenditure of public
    funds, records related to such expenditures are subject to
FIPPA
, and the Childrens Lawyer
has no
    separate administrative structure from MAG.

[23]

The
    Adjudicator similarly rejected the Childrens Lawyers submission that while she
    is part of MAG with respect to some records for the purposes of
FIPPA
,
    she is not part of MAG with respect to others. The Adjudicator stated:

The result urged by the
    [Childrens Lawyer] would treat some of its records as excluded from [
FIPPA
]
    when it is engaged in certain functions, while other records would be subject
    to [
FIPPA
]. While [
FIPPA
] itself provides for such a result,
    through the exclusion of some categories of records, the [Childrens Lawyers]
    submissions would, in effect, amount to an indirect recognition of an
    additional exclusion which has not been explicitly legislated.

[24]

The
    Adjudicator further rejected the submission that the Childrens Lawyers
    fiduciary duties to her child clients are incompatible with access rights under
FIPPA
. She determined that confidentiality concerns could be addressed
    by the exemptions under
FIPPA
,
    including s. 19 relating to solicitor-client privilege
. She
    similarly determined that subjecting the Childrens Lawyers litigation files
    to access requests did not give rise to an intolerable conflict as urged by
    the Childrens Lawyer. She noted that the Childrens Lawyer is authorized by
    the Attorney General to respond to access requests and has been doing so since
    1998. Yet, no conflicts between the Childrens Lawyer, her child clients, or
    MAG appear to have impeded this task to date.

[25]

Finally,
    the Adjudicator assessed the factors typically applied to determine whether records
    are in the custody or control of an institution. She held that since the
    Childrens Lawyer is a branch of MAG, it would be redundant to ask whether the
    [Childrens Lawyer] could reasonably be expected to obtain the records at
    issue. Instead she determined that the Childrens Lawyer has the right to the
    files; the records were created in carrying out activities central to the
    Childrens Lawyers mandate; and the Childrens Lawyer has the authority to
    regulate the use of its records, subject to its fiduciary and legal obligations
    to its child clients. She concluded that the records were therefore in MAGs
    custody or under its control.

[26]

The
    Adjudicator ordered MAG to issue an access decision to the father, which could be
    made by the Childrens Lawyer.

(3)

The Divisional Courts decision

[27]

The
    Childrens Lawyer, supported by MAG, applied to the Divisional Court for a
    judicial review of the Adjudicators order. The Divisional Court identified
    reasonableness as the appropriate standard of review and held that the
    Adjudicators decision was reasonable. It noted that even if the standard of
    correctness applied, the decision was also correct.

[28]

The
    Divisional Court rejected the submission that compliance with the Adjudicators
    order threatened the Childrens Lawyers ability to safeguard either solicitor-client
    privilege or her clients confidentiality. It endorsed the Adjudicators conclusion
    that the Childrens Lawyers confidentiality concerns could be addressed
    through the
FIPPA
exemptions, noting that solicitor-client privilege
    is a specified ground for refusing disclosure under s. 19 of
FIPPA
.

[29]

The
    Divisional Court similarly rejected the Childrens Lawyers submission that
    compliance with the Adjudicators order gives rise to an intolerable conflict
    of interest. It held it was reasonable for the Adjudicator to rely on the
    absence of any examples of conflicts over the two decades during which the
    Childrens Lawyer has made access decisions.

[30]

Ultimately,
    the Divisional Court concluded that the Adjudicators decision was consistent
    with the text and scheme of
FIPPA
. It held that it was reasonable for
    her to consider the application of s. 10(1) of
FIPPA
in relation to
    the childrens records; she reasonably considered the custody and control
    factors; and her interpretation promotes the purpose of access to information.

ISSUES

[31]

This
    appeal raises two issues:

1. Did the
    Divisional Court identify the appropriate standard of review?

2. Did the
    Divisional Court err in upholding the Adjudicators determination that the Childrens
    Lawyers records are in MAGs custody or control?

ANALYSIS

1.

Standard
    of review

(i)

Overview

[32]

The
    parties did not agree on the applicable standard of review before the
    Divisional Court and they continue to disagree on appeal. The Childrens Lawyer
    and MAG submit that the Divisional Court should have selected and applied
    correctness; the IPC maintains that the Divisional Court correctly selected
    reasonableness.

[33]

When
    considering an appeal from a judicial review, this court must determine whether
    the Divisional Court identified the appropriate standard of review and applied
    it correctly. This requires this court to step into the Divisional Courts
    shoes and focus on the administrative decision:
Agraira v. Canada (Public
    Safety and Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R. 559, at
    paras. 45-47.

[34]

Identifying
    the appropriate standard of review is a two-step process.
At the
    first stage, courts ascertain whether the jurisprudence has already determined
    in a satisfactory manner the degree of deference to be accorded with regard to
    a particular category of question:
Dunsmuir v. New Brunswick
,
    2008 SCC 9, [2008] 1 S.C.R. 190, at para. 62; and
Agraira
, at para.
    48.

[35]

If
    it has, the inquiry ends there. However, where the first stage is
unfruitful or if the relevant precedents appear to be inconsistent
    with recent developments in the common law principles of judicial review,
    courts must perform a full analysis in order to determine what the applicable
    standard is:
Agraira
,
at para. 48; and
Dunsmuir
, at para. 62. That
    is the case here.

[36]

I
    conclude that the Divisional Court erred in selecting reasonableness as the
    standard of review. As I will explain, the jurisprudence on
    jurisdiction-limiting questions may well have evolved. However, the inquiry does
    not end there. In my view, on a full analysis to determine the applicable
    standard, the appropriate standard remains correctness. The interpretation of custody
    or control of records under s. 10(1) of
FIPPA
as it applies to the Childrens
    Lawyer is a matter of central importance to the legal system as a whole and is
    also outside the decision-makers specialized expertise.

(ii)

Correctness
    is the appropriate standard

[37]

The
    Childrens Lawyer and MAG submit that jurisprudence has already determined that
    correctness applies to the interpretation of custody or control of records
    under s. 10(1) of
FIPPA
. They rely on this courts decision in
Walmsley
    v. Ontario (Attorney General)
(1997), 34 O.R. (3d) 611 (C.A.).

[38]

Walmsley
involved a request for access to records relating to the appointment of a
    provincial court judge. The records at issue were in the personal possession of
    individual members of the Judicial Appointments Advisory Committee. This court
    held that correctness applied to its review of the IPCs determination that MAG
    had control over these records, since s. 10(1) of
FIPPA
was
    jurisdiction limiting and did not require a specialized expertise to interpret.
    Goudge J.A. explained, at p. 618:

[Section 10(1)] is a jurisdiction
    limiting one in the sense that records under the control of an institution are
    subject to the workings of the Act. Records not under the control of an
    institution are not so subject and are beyond the jurisdiction of the
    Commissioner or his designee. Moreover, the test found in s. 10(1), namely custody
    or control, is not one requiring a specialized expertise to interpret. By
    contrast, once records are found to be in the control of the institution, the
    applicability of the many legislated exemptions would clearly call on the
    particular expertise of the Commissioner. Finally, the legislation has not seen
    fit to clothe the Commissioner with the protection of any privative clause.

[39]

The
    Childrens Lawyer and MAG also rely on
City of Ottawa v. Ontario
, 2010
    ONSC 6835, 272 O.A.C. 162 (Div. Ct.), at para. 20, leave to appeal to ONCA
    refused, March 30, 2011 (M39605); and
Ontario (Ministry of the Attorney
    General) v. Ontario (Information and Privacy Commissioner)
, 2011 ONSC 172,
    104 O.R. (3d) 588 (Div. Ct.), at paras. 22-24 (
MAG v. IPC
). In both
    decisions, the Divisional Court  relying on
Walmsley
 applied
    correctness to judicial reviews of the IPCs interpretation of in the custody
    or under the control.

[40]

The
    IPC submits that this analysis no longer applies and that true questions of
    jurisdiction are rare. It relies on
Alberta (Information and Privacy
    Commissioner) v. Alberta Teachers Association
, 2011 SCC 61, [2011] 3
    S.C.R. 654, in which the Supreme Court recognized a presumption of reasonableness
    where a court is reviewing a tribunals interpretation or application of its
    home statute, and that true questions of jurisdiction are narrow and
    exceptional: at para. 39. The IPC emphasizes that true questions of
    jurisdiction are now limited to whether or not the tribunal had the authority
    to make the inquiry:
Quebec (Attorney General) v. Guérin
, 2017 SCC
    42, [2017] 2 S.C.R. 3, at para. 32.

[41]

The
    Divisional Court accepted the IPCs position, stating, at para. 39:

I appreciate that the Court of
    Appeal in
Walmsley
described s. 10 as a jurisdiction-limiting
    provision and acknowledge that this was followed in two subsequent decisions.
    However, these decisions are inconsistent with the specific direction in
Dunsmuir
that has been repeated and clarified in more recent appellate jurisprudence. This
    jurisprudence supports my conclusion that s. 10 does not raise a true question
    of jurisdiction that would require a correctness standard of review.

[42]

I
    agree with the Divisional Court that, to the extent they rely on the
    jurisdictional nature of s. 10(1),
Walmsley
and the cases that
    followed are not in line with recent developments in the common law. In my
    view, however, this analysis does not determine the issue here. I say this for
    two reasons.

[43]

First,
    the jurisdictional nature of s. 10(1) was not the only basis earlier decisions
    identified for applying correctness.
Walmsley
,
City of Ottawa
and
MAG v. IPC
all determined that the test for custody or control was
    outside the specialized expertise of the decision-maker. Moreover, in
City
    of Ottawa
the Divisional Court determined that whether freedom of
    information legislation applied to documents in question  in that case
    government employees personal workplace emails  was a legal question of
    broad significance for thousands of individuals across the province, going well
    beyond the interests of the particular parties before the court: at para. 20.

[44]

These
    aspects of these decisions have not been changed by subsequent jurisprudence.
Walmsley
,
City of Ottawa
and
MAG v. IPC
have, therefore, satisfactorily
    determined that correctness applies in this case.

[45]

Second,
    even if these decisions have not satisfactorily determined the standard of
    review, the nature of the question at issue attracts correctness under the
    second stage of the standard of review analysis.

[46]

The
    unique role of the Childrens Lawyer is fundamental to the proper functioning
    of the legal system. It is thus reviewable on the standard of correctness as
    per
Dunsmuir
,

at para 60:

[C]ourts must also continue to
    substitute their own view of the correct answer where the question at issue is
    one of general law that is both of central importance to the legal system as a
    whole and outside the adjudicators specialized area of expertise. Because of
    their impact on the administration of justice as a whole, such questions
    require uniform and consistent answers. [Citation omitted.]

[47]

Matters
    fundamental to the functioning of our legal system remain subject to a
    correctness standard of review post-
Dunsmuir
.
In
Alberta (Information and Privacy
    Commissioner) v. University of Calgary
, 2016 SCC 53, [2016] 2 SCR 555 (
Alberta
    v. UC
), the majority of the Supreme Court applied correctness to the
    interpretation of freedom of information legislation where it might impact
    solicitor-client privilege.
Alberta v. UC
involved a judicial review
    of a decision pursuant to Albertas
Freedom of Information and Protection
    of Privacy Act
, R.S.A. 2000, c. F-25 (
FOIPP
). The central issue
    was whether
FOIPP
allowed the Information and Privacy Commissioner of
    Alberta (the Commissioner) and her delegates to review documents over which
    solicitor-client privilege is claimed.

[48]

Coté
    J., writing for the majority, held that whether
FOIPP
allows
    solicitor-client privilege to be set aside is a question of central importance
    to the legal system as a whole. She explained, at para. 20:

As this Court said
    in
Blood Tribe
, solicitor-client privilege is
fundamental
    to the proper functioning of our legal system
 (para. 9). It is also a
    privilege that has acquired constitutional dimensions as both a principle of
    fundamental justice and a part of a clients fundamental right to privacy.

[Citations omitted. Emphasis added.]

[49]

She
    emphasized, at para. 26, that the importance of solicitor-client privilege to
our justice system cannot be overstated. It is a legal privilege
concerned with the protection of a relationship that has a
    central importance to the legal system as a whole

    (emphasis added).

[50]

Coté
    J. also held that the issue was outside the Commissioners specialized area of
    expertise. She stated, at para. 22:
[T]here is nothing to
    suggest that the Commissioner has particular expertise with respect to
    solicitor-client privilege, an issue which has traditionally been adjudicated
    by courts.

[51]

Coté
    J.s comments in
Alberta v. UC
aptly apply to this case. The
    protection of the relationship between the Childrens Lawyer and her child
    clients is of central importance to the legal system as a whole. It is a relationship
    based on confidentiality that extends beyond solicitor-client privilege and
    requires a
heightened
degree of protection by the courts. As I will
    explain, the
United Nations Convention on the Rights of the Child
,
    Can. T.S. 1992 No. 3 (the
Convention
), to which Canada is a
    signatory, requires that children be afforded special safeguards, care and legal
    protection by the courts on all matters involving their best interests,
    including privacy.

[52]

Like
    solicitor-client privilege, the confidential relationship between the
    Childrens Lawyer and children is
fundamental to the proper
    functioning of our legal system and the protection of that relationship has a
    central importance to the legal system as a whole.

[53]

In
    summary, the role of the Childrens Lawyer is fundamental to the proper
    functioning of our system of justice; the issue is outside the Adjudicators
    specialized area of expertise; and the standard of correctness with respect to
    the protection of a relationship that has central importance to the legal
    system has already been adjudicated. Therefore, correctness is the appropriate
    standard.

2.

Was
    the Adjudicator correct that the Childrens Lawyers records are in MAGs
    custody or control correct?

(i)

Overview

[54]

A
    court undertaking a correctness review will undertake its own analysis of the
    question and decide whether it agrees with the determination of the decision
    maker. If it does not, the court will substitute its own view and provide the
    correct answer:
Dunsmuir
, at para. 50.

[55]

In
    applying this standard, I begin by situating the issue on appeal within a
    context, namely: the best interests of the child; the voice of the child; the
    confidential role of the Childrens Lawyer; the childs privacy interests; the
    fact that confidentiality is broader than solicitor-client privilege; and the
    fact that the records belong to the child. I then apply the context to the
    relationship between the Childrens Lawyer and MAG to demonstrate that with
    respect to her core functions of representing children, the Childrens Lawyer
    cannot be a branch of MAG as determined by the Adjudicator.

[56]

I
    determine that the Adjudicator
started
from the assumption that the
    Childrens Lawyer is a branch or part of MAG, and thus MAG had custody or
    control of the records. In so doing, she failed to give appropriate weight to
    the Childrens Lawyers role and responsibilities. She did not address the
    impact of her decision on the best interests of the child who is entitled to
    heightened protections within the law. Nor did she consider the importance of
    the relationship on the administration of justice.

[57]

I
    conclude that, given the relevant context, the Childrens Lawyer does and must
    operate separately and distinctly from MAG. When representing children, her
    office is therefore not a branch of MAG. The Adjudicator was required to
    analyze whether records held by the Childrens Lawyer  as not part of an
    institution under
FIPPA
 are in MAGs custody or control. She failed
    to do so. Upon undertaking this analysis, I determine that MAG does not have
    custody or control of the requested records.

(ii)

The
    context

Best interests of the child

[58]

Whenever
    a child is affected by a court or government process, the primary consideration
    must be the childs best interests. This regularly cited principle has been
    enshrined in the
Convention
. Article 3.1 provides:

In all actions concerning
    children, whether undertaken by public or private social welfare institutions,
    courts of law, administrative authorities or legislative bodies, the best
    interests of the child shall be a primary consideration.

[59]

In
A.C. B. v. R. B.
, 2010 ONCA 714, 104 O.R. (3d) 368, Weiler J.A.
    speaking for a five-member panel of this court, at paras. 12-14, confirmed that
    the values reflected in the
Convention
can help to inform the
    contextual approach to statutory interpretation and judicial review.

[60]

In
    my view, the statutes at issue in this appeal, including
FIPPA
itself,
    must be viewed through this lens and interpreted in a way that gives primacy to
    the best interests of the child. The Adjudicator, and the Divisional Court on
    judicial review, failed to consider the best interests of the child  who is at
    the center of the issue before this court now. The results of the Adjudicators
    order would impact the childs voice in the judicial system and the childs
    privacy rights. Further, the family law courts would lose the benefit of
    important information provided by children, affecting decisions for families
    throughout the province.

[61]

A
    correct interpretation of the relevant statutory provisions at issue requires
    close attention to the interests and needs of children.

The voice of the child

[62]

A
    classic family law custody dispute gave rise to the Childrens Lawyers
    involvement in this case. Over the past several years, courts have taken great
    initiative to seek out and consider the views and preferences of the child.
    Professors Birnbaum and Bala explain:

The movement towards child
    inclusion in decision-making in education, medical treatment, and various areas
    of the law, including separation and divorce, has grown over the last decade.
    Studies have explored childrens rights as citizens, childrens perspectives on
    family relationships and what is a family, and childrens attitudes about parental
    separation and participation in the decision-making process about
    post-separation parenting. Research clearly suggests that childrens inclusion
    in the post-separation decision-making process is important to the promotion of
    their well-being. [Footnotes omitted.]
[3]

[63]

Indeed,
    art. 12 of the
Convention
requires that:

States Parties shall assure to the
    child who is capable of forming his or her own views the right to express those
    views freely in all matters affecting the child, the views of the child being given
    due weight in accordance with the age and maturity of the child.

For this purpose, the child shall
    in particular be provided the opportunity to be heard in any judicial and
    administrative proceedings affecting the child, either directly, or through a
    representative or an appropriate body, in a manner consistent with the
    procedural rules of national law.

[64]

Children
    are among the most vulnerable members of society. Courts, administrative
    authorities and legislative bodies have a duty to recognize, advance and
    protect their interests. When children are the subject of a custody dispute or
    child protection proceedings, they are at their most vulnerable. Exposure to
    conflict has been called the single most damaging factor for children in the
    face of divorce: per Backhouse J., in
Graham v. Bruto
, [2007] O.J.
    No. 656 (S.C.), at para. 65, affd 2008 ONCA 260.

[65]

It
    has always been a challenge for family law courts to find a way for children to
    express their views without exposing them to further trauma or causing more
    damage to the family. Those who work in the family law system are all too aware
    that children remain part of the family long after a judicial decision is
    reached. The process of determining the childs true wishes and preferences
    requires delicacy, for to undertake the process without expertise may further
    hurt the child and fracture family relationships.

[66]

The
    Childrens Lawyer has been recognized as a model for addressing this challenge.
    The Honourable Donna J. Martinson and Caterina E. Tempesta, wrote that:

In Canada, the most expansive
    child representation program is offered by the Office of the Childrens
    Lawyer[it] may serve as a model for other jurisdictions in promoting access to
    justice for children by ensuring that their views are heard in court processes.
[4]

[67]

In
    this case, the judges involved in the underlying custody dispute sought the
    Childrens Lawyers involvement in the matter.

The Childrens Lawyers role: a confidential relationship with the child

[68]

The
    Childrens Lawyer is an independent statutory office holder appointed by
    Cabinet through the Lieutenant Governor. She derives her independent powers,
    duties and responsibilities through statute, common law and orders of the
    court.

[69]

Her
    fiduciary duties to the child require undivided loyalty, good faith and
    attention to the childs interests, to the exclusion of other interests,
    including the interests of the childs parents, the interest of the Crown and
    the interests of MAG. As stated by Abella J., as she then was, in
Re W.
(1980),

27 O.R. (2d) 314 (Prov. Ct.), at p. 317, the Childrens Lawyer
    has an obligation to ensure that the views expressed by the child are freely
    given without duress.

[70]

The
    Childrens Lawyer not only represents the childs interests; she provides a
    safe, effective way for the childs voice to be heard. For her to do this, she
    must provide a promise of confidentiality. Children must be able to disclose
    feelings and facts to the Childrens Lawyer that cannot or will not be communicated
    to parents. Childrens interests can be averse to that of their parents. Feelings
    of guilt and betrayal that may influence a child require a safe person to speak
    to.

[71]

It
    is difficult enough for children to be the subject of litigation. For their voices
    to be heard, they must be guaranteed confidentiality when they say, please,
    dont tell my mom, or please, dont tell my dad.

[72]

To
    allow a disgruntled parent to obtain confidential records belonging to the
    child would undermine the Childrens Lawyers promise of confidentiality,
    inhibit the information she could obtain and sabotage her in the exercise of
    her duties. This would, in turn, impact proceedings before the court by
    depriving it of the childs voice and cause damage to the child who would no
    longer be meaningfully represented. Finally, disclosure to a parent could cause
    further trauma and stress to the child, who may have divided loyalties, exposing
    the child to retribution and making the child the problem in the litigation.

The childs privacy interests

[73]

The
    child has significant privacy interests in the information disclosed to the
    Childrens Lawyer. The childs privacy rights, as with her other rights, are
    entitled to more, not less protection.

[74]

The
    preamble to the
Convention
directs that special safeguards and care,
    including legal protection, be afforded to children. The preamble states:

Bearing in mind that, as indicated
    in the Declaration of the Rights of the Child, the child, by reason of his
    physical and mental immaturity,
needs special safeguards and care, including
    appropriate legal protection
, before as well as after birth[.] [Emphasis
    added.]

[75]

These special safeguards include [t]o have his or her privacy fully
    respected at all stages of the proceedings:
Convention
, art.
    40(2)(b)(vii).

[76]

As
    explained above, to allow a parent to have access to a childs records would
    negatively impact the childs privacy interests.

Confidentiality is broader than solicitor-client privilege

[77]

The
    Adjudicator concluded that the Childrens Lawyers
confidentiality
    concerns  can be addressed by exemptions under the applicable access to
    information legislation.
In doing so, she conflated solicitor-client
    privilege with confidentiality. The former is caught by the exemption at s. 19
    of
FIPPA
, the latter is not. And yet, it is the latter that gives rise
    to the most sensitive information about the child, and which is deserving of
    special protection.

[78]

Information
    may be confidential without being privileged. As the British Columbia Court of
    Appeal explained in
British Columbia (Securities Commission) v. B.D.S
.,
    2003 BCCA 244, 13 B.C.L.R. (4th) 107, at para 45:

There is no doubt that lawyers are
    under an obligation to keep confidential all documents and other communications
    made to them by their clients, but not all such communications are subject to
    solicitor-client privilege and a claim of privilege does not convert non-privileged
    documents into privileged documents.

[79]

The
    Childrens Lawyer gathers information from and about her child clients in
    numerous ways: with assistance from social workers; through therapists, school
    teachers; and so on. This information is necessary for the Childrens Lawyer to
    properly represent the child. It is crucial in order for the childs voice to
    be heard.

[80]

As
    Mesbur J. explained in
Catholic Childrens Aid Society of Toronto v. S.S.B.
,
2013 ONSC 4560, 35 R.F.L. (7th) 178, at
    para. 21:

When [the Childrens Lawyer] takes
    a position on behalf of a child, childs counsel will ascertain the childs
    views and preferences. In doing so, it will consider the independence, strength
    and consistency of the child's views and preferences; the circumstances
    surrounding those views and preferences, and all other relevant evidence about
    the childs interests. It is in this context the [Childrens Lawyer] relies on
    a clinical investigator to assist counsel in determining those views and
    preferences so that it can advocate a position on behalf of the child.
    Essentially, the clinical investigator assists counsel in ascertaining its clients
    reasonable instructions; that is, the position to be taken on behalf of the
    child. [Footnote omitted.]

[81]

While
    some records may be subject to the solicitor-client exemption, others may not. These
    include the childs views expressed to teachers, counsellors, therapists, friends,
    and parents of friends. Yet, the Childrens Lawyers duty of confidentiality
    applies to all records.

The records belong to the child

[82]

The
    records in question here belong to the child.

[83]

The
    decisions below were incorrect to rely on
Ontario (Childrens Lawyer) v. Ontario
    (Information and Privacy Commissioner)
(2003),
66 O.R. (3d) 692 (Div. Ct.) (
Childrens Lawyer
), affd
    (2005), 75 O.R. (3d) 309 (C.A.). In that case, the Divisional Court considered a
    judicial review from a request by an adult whom the Childrens Lawyer
    represented as a child for her files held by the Childrens Lawyer. Oddly, the
    request was made pursuant to
FIPPA
,
rather than as a request from a client for her own files. The Divisional Court upheld
    an IPC decision ordering the Childrens Lawyer to disclose most of the requested
    documents. The Childrens Lawyer appealed only with respect to whether the IPC
    had standing before the Divisional Court. This court dismissed the appeal, but
    Goudge J.A. commented as follows, at para. 5:

Upon reaching
    majority and apparently dissatisfied with her representation, Jane Doe
    requested a copy of her complete files. The Childrens Lawyer, whose office
    operates as a branch of the Ministry of the Attorney General, treated this as a
    request for information under
FIPPA

rather than
    as a request from a client for her file. However reasonable it might be to
    analyze the interests at stake in this framework, this was not raised as an
    issue before us, and I will say nothing more about it.

[84]

The
    issue of whether the Childrens Lawyer is a branch of MAG was not argued before,
    or addressed by either court. Nor was the issue of whether the files belonged
    to the client and thus the application was unnecessary. For these reasons,
Childrens
    Lawyer
does not determine the issue here: whether a third party can have
    access to a childs records through
FIPPA
.

[85]

Interestingly,
    in
Childrens Lawyer
,

the Divisional Court refers to the fiduciary duties the Childrens Lawyer owed
    the child. At para. 83, the court endorses the IPCs description of the
    fiduciary nature of the Childrens Lawyer as follows:

The [Childrens Lawyer] meets the
    criteria for the imposition of fiduciary duties, apart from doing so on the
    basis of the solicitor and client relationship. It has the classic indicia of
    a fiduciary relationship: the scope for the exercise of discretion or power;
    the opportunity to exercise that power unilaterally so as to affect the minors
    legal or practical interests; a peculiar vulnerability due to the minority
    status of the client; and an expectation that the [Childrens Lawyer] will be
    concerned with the minors interests and not its own.

[86]

Here
    the Adjudicator dismissed the Childrens Lawyers submission as to the child
    clients ownership of the files. She found:
[T]his argument
    overreaches. This conclusion is flawed for two reasons.

[87]

First, it ignores the heightened privacy rights of children. As the
    Supreme Court observed in
A.B. v. Bragg Communications Inc.
,
    2012 SCC 46, [2012] 2 S.C.R. 567, at para 17
:

Recognition of the
inherent
vulnerability of children has consistent and deep roots in Canadian law. This
    results in protection for young peoples privacy under [various statutes], not
    to mention international protections such as the
Convention on the Rights
    of the Child
The law attributes the heightened vulnerability based on
    chronology, not temperament [.] [Emphasis in original.]

[88]

The
    only way that the role of the Childrens Lawyer differs from that of a
    conventional solicitor-client relationship is that the child is entitled to a
heightened
protection of confidentiality as mandated by
    the
Convention.
As stated by Mesbur J. in
S.S.B.
,
at para. 32:

A child-clients
    right to a confidential relationship with counsel must be guarded with more
    vigilance than that accorded to an adult client, not with less.

[89]

Second, it is premised on the erroneous notion that children cannot
    represent themselves in court.
The Adjudicator stated:

The existence of the [Childrens
    Lawyer] is premised in part on the fact that children cannot represent
    themselves or retain counsel without a litigation guardian, as they are under
    the legal disability of childhood.

[90]

She continued:

Even with respect to child
    protection cases, the role of the Childrens Lawyer as legal representative  differs
    from a conventional solicitor-client relationship[.]

[91]

This
    premise is wrong. Children can represent themselves without a litigation
    guardian and do so regularly in family proceedings. They are not always under a
    legal disability. For example, the
Childrens Law Reform Act
, R.S.O.
    1990, c. C. 12, specifically provides, at s. 63(1), that [a] minor who is a
    parent may make an application under this Part [Custody, Access and
    Guardianship] without a next friend and may respond without a litigation
    guardian.

[92]

Against
    this context, I turn to the question of whether MAG has custody or control of
    the records of the Childrens Lawyer.

(iii)

Applying
    the context to custody or control

The Childrens Lawyer is separate and distinct from MAG

[93]

In
    my view, the Adjudicator erred when she started from the assumption that the Childrens
    Lawyer was a branch of MAG. She stated:

There is no dispute that [
FIPPA
]

applies to institutions, which are defined
    to include provincial ministries. The overriding considerations in this case
    are:

 the undisputed fact
    that the [Childrens Lawyer] is a branch of the ministry and

 all of the records
    at issue were generated in the course of the [Childrens Lawyer] fulfilling its
    core mandate.

Despite these
    considerations, a consistent theme of the [Childrens Lawyers] submissions is
    an effort to differentiate the [Childrens Lawyer], together with its mandate
    as a branch within [MAG], from [MAG] itself. For the reasons set out below, I
    find this approach flawed.

[94]

It is not undisputed that the Childrens Lawyer is a branch of MAG.
The
    Adjudicator based her determination on the
Childrens Lawyer
decision.
    However, as discussed, that issue was not argued or addressed in
Childrens
    Lawyer
for it was irrelevant to the outcome of the case.

[95]

By
    starting from the assumption that the Childrens Lawyer is a branch of MAG, the
    Adjudicator did not take into account the context in which the Childrens
    Lawyer must operate, separate and distinct from MAG. Instead, she used the
    concept of a branch to cloak MAG with control over the Childrens Lawyer.

[96]

Although
    MAG is an institution within the meaning of s. 2(1) of
FIPPA
, bodies
    that may be administratively structured under MAG are not automatically subject
    to
FIPPA
. An organizations administrative structure is not
    determinative of custody or control; a contextual analysis is required. In
Walmsley
,
this court explained that a
    determination of care or control depends on an examination of all aspects of
    the relationship between [here the Childrens Lawyer] and [MAG] that are
    relevant to control over the documents: at p. 619.

[97]

An
    examination of the relationship between the Childrens Lawyer and MAG relevant
    to custody or control over the documents discloses that  for her core
    functions regarding children  the Childrens Lawyer is not a branch of MAG.

[98]

The
    Childrens Lawyer represents the child. She is not a government agent. Her
    functions and promise of confidentiality are not conferred on MAG.

[99]

While
    the Childrens Lawyer is administratively structured under and has a funding
    relationship with MAG, they are not connected with respect to her core
    functions: there is no statutory relationship between the two entities; she
    does not receive direction from MAG; she does not report to MAG; and her
    fiduciary duties are to her child clients, not to MAG.

[100]

The Childrens
    Lawyers fiduciary duties to her child clients require undivided loyalty, good
    faith and attention to the childs interests, to the exclusion of other
    interests, including the interests of the childs parents, the interest of the
    Crown and the interests of MAG. The independence of the Childrens Lawyer is
    particularly significant when she must act contrary to the interests of MAG or
    the Crown. Her child clients could have an action against the Crown, could have
    a constitutional question before the court, or could be a defendant in an
    action brought by the Crown.

[101]

When
    representing children, the Childrens Lawyer operates separate and apart from
    MAG, does not take direction or obtain input from MAG, does not provide MAG
    with access to records relating to children and MAG does not have authority to
    request them. The Childrens Lawyer is solely responsible for record keeping in
    relation to her clients without any direction from MAG.

[102]

Thus, the Childrens
    Lawyer is not a branch of MAG for the purposes of the childrens records. Again,
    an organizations administrative structure is not determinative of custody or
    control for purposes of
FIPPA
.

[103]

In
Fontaine v. Canada (Attorney
    General)
,

2016
    ONCA 241, 130 O.R. (3d) 1, affd 2017 SCC 47, 414 D.L.R. (4th) 577, this court
    affirmed that the existence of an administrative relationship between two
    government entities does not necessarily make them one for the purposes of
    access to information legislation.
Fontaine
concerned the fate of
    records generated by the Indian Residential Schools Agreement and the
    Independent Assessment Process (the IAP), which were operated within
    Aboriginal Affairs and Northern Development Canada (AANDC). Strathy C.J.O. commented
    on the nature of the records, at para. 179:

Were the head of AANDC to receive
    an access to information request  it would have no reasonable legal or
    practical expectation that it could obtain copies of such IAP Documents from
    the Secretariat  That may not be the case for documents of a different nature,
    such as those relating to funding, auditing, and human resources - documents
    for which AANDC would have a much stronger claim for control.

[104]

The court
    ultimately concluded that the Secretariat of the IAP, an autonomous branch of
    AANDC, retains possession of the documents provided to and generated by the
    IAP: at para. 174. It held that IAP documents in the Secretariats possession
    are simply not under the control of AANDC: at para. 180.

[105]

The Divisional
    Court distinguished
Fontaine
on the basis that the Secretariat had
    decision-making functions, akin to that of a court. That fact, in my view, does
    not alter the rule that an administrative relationship does not determine
    custody or control.

[106]

Other cases have
    similarly held that an administrative relationship with a designated
    institution does not amount to custody or control for freedom of information
    legislation
. For example, the following
    have been held not be in an institutions custody or control
:

a) Records of the members of the
    Judicial Appointments Advisory Committee, which was set up by the Attorney
    General;
[5]

b) Personal emails of a city
    employee on his government email account;
[6]
and

c) Records held within Ministers offices under their
    respective Ministries, except in defined circumstances.
[7]

The records are not within MAGs custody or control

[107]

Since the Childrens
    Lawyer is not part of MAG, and is thus not an institution, an analysis is
    required to determine whether the records are under MAGs custody or control.

[108]

In
Minister
    of National Defence
the Supreme Court articulated a two-part test for whether
    records held by bodies that are not part of an institution are under the
    institutions control and thus subject to freedom of information requests:

1.       Do the contents of a document
    relate to a departmental matter?

2.       Could
    the government institution reasonably expect to obtain a copy of the document
    upon request?

[109]

Charron J. noted,
    at paras. 55-56:

Step one of the test acts as a
    useful screening device. It asks whether the record relates to a departmental
    matter. If it does not, that indeed ends the inquiry.

Under step two,
all
relevant factors must be considered in order to determine whether the government
    institution could reasonably expect to obtain a copy upon request. [Emphasis in
    original.]

[110]

The
    Adjudicator referred to the two-part test from
Minister of National Defence
,
    but determined that: Accepting that the [Childrens Lawyer] is a branch of
    [MAG], it would be redundant to ask whether the [Childrens Lawyer] could
    reasonably be expected to obtain the records at issue.

[111]

The
    Adjudicators reasoning is flawed for several reasons. First, it is circular,
    for it starts from the premise that the Childrens Lawyer is part of MAG when
    the object of the exercise is to determine whether MAG has custody or control
    of the records of another organization. Second, it analyzes whether the Childrens
    Lawyer has control of the records, when what is required under the test is that
    MAG has control. There was no issue but that the Childrens Lawyer had control.

[112]

Once the relevant
    test is applied to the childs records with the Childrens Lawyer, it is clear
    that MAG does not have control of the records:

Step one: Do the contents of
    the requested records relate to a departmental matter
?

The answer must be no. MAG plays no
    part in the records of the Childrens Lawyer. The records do not relate to a
    departmental matter; MAG has nothing to do with the Childrens Lawyers work.

Step two: Could MAG reasonably
    expect to obtain a copy of the records upon request?

Again the answer  for the reasons
    set out above  is no. Neither MAG officials nor the Attorney General could
    reasonably expect to obtain a copy of the requested records.

[113]

The Divisional
    Court in
City of Ottawa
, at para.
    30,
cited approvingly ten questions former Commissioner Sidney
    Linden outlined in IPC
Order 120
to be asked when determining whether an institution has custody or control of
    records. Although the Adjudicator referred to some of these questions, she
    failed to situate her analysis within the context of the Childrens Lawyers
    work. I address these ten questions and provide answers based on the context I
    have set out:

1) Was the record
    created by an officer or employee of the institution?

[114]

Here, the records at issue were created by legal agents of the
    Children
s Lawyer
(who is appointed by the court pursuant
    to the
CJA
to exercise independent statutory
    functions) while providing legal representation to children. The records were
    not created for or on behalf of MAG. The Childrens Lawyers role precludes it
    from acting in the interest of MAG or the Crown in these matters.

2) What use did the
    creator intend to make of the record?

[115]

The records were intended solely for use in litigation on behalf of
    child clients in custody and access proceedings as ordered by the court. The
    records were not created for MAGs use or on behalf of the Crown.

3) Does the
    institution have possession of the record?

[116]

MAG does not have possession of the records. They are exclusively
    held by the Childrens Lawyer in her legal file.

4) If the
    institution does not have possession of the record, is it being held by an
    officer or employee of the institution for the purposes of his or her duties as
    an officer or employee?

[117]

The records are being held by the Childrens Lawyer for the purposes
    of her independent statutory, legal and fiduciary duties to children, and not
    as an agent of MAG.

5) Does the institution
    have a right to possession of the record?

[118]

MAG has no statutory or other right to possess the records. The Childrens
    Lawyer does not allow MAG officials to access or possess these records. Allowing
    MAG to have access to, or possession of, the records would violate the
    Childrens Lawyers duty to maintain the confidentiality of her child clients
    records.

6) Does the content of the
    record relate to the institutions mandate and functions?

[119]

The contents do not relate to MAGs mandate or functions. The
    contents of the records relate to the Children
s Lawyer
s
    independent statutory functions in providing legal representation to children
    in custody and access proceedings. The records relate to litigation where the Childrens
    Lawyer is acting, at the request of the court, independently from MAG in
    representing child clients who are subjects of custody and access proceedings.
    These functions are statutorily conferred exclusively on the Childrens Lawyer,
    and not on MAG or the Attorney General.

7) Does the institution
    have the authority to regulate the records use?

[120]

MAG has no authority to regulate the use of the records. The
    regulation of the use of these records is within the exclusive authority of the
    Children
s Lawyer in accordance with her professional obligations to her
    child clients. The Children
s Lawyer uses these records for
    the sole purpose of representing the interests of her child clients.

8) To what extent has
    the record been relied upon by the institution?

[121]

MAG has never relied on, or had possession of, these records. The
    records have only been relied on by the Childrens Lawyer in order to represent
    the interests of its child clients in litigation.

9) How closely has the record
    been integrated with the other records held by the institution?

[122]

These records have never been integrated with MAG records. The
    Childrens Lawyers files related to legal services provided to children are
    kept separately from any MAG records. No official or employee outside of the Childrens
    Lawyer has access to these records.

10) Does the institution
    have the authority to dispose of the record?

[123]

The records are maintained and disposed of in accordance with a
    records policy established by the Childrens Lawyer in 2006. The Childrens
    Lawyer does not obtain MAG approval or direction related to its child client
    records or on its internal policies related to these files.

[124]

The IPC alleges that because in the past MAG has forwarded
FIPPA
requests relating to the Childrens Lawyer records to the Childrens
    Lawyer for response, it must continue to do so. First, past practice is not
    determinative. As stated by Charron J. in
Minister of National
    Defense
,

at para. 56:

[A]ny expectation to
    obtain a copy of the record cannot be based on past practices and prevalent
    expectations that bear no relationship on the nature and contents of the
    record, [or] on the actual legal relationship between the government
    institution and the record holder

[125]

Second, the evolving nature of the functions of the Childrens Lawyer with
    respect to advancing childrens interests and the voice of the child,
    particularly in light of the
Convention
,
requires new scrutiny.

The Adjudicators order does not promote the purposes of FIPPA

[126]

The IPC submits
    that the Adjudicators order is consistent with the purpose and the scheme of
FIPPA
.
    I do not agree.

[127]

The purposes of
FIPPA
include providing access to government information and protecting the
    privacy of individuals with respect to personal information about themselves.
    Subjecting the Childrens Lawyers records to this regime does not accomplish
    either goal. Childrens records do not contain information that could be
    described as government information, nor do they contain any information that
    would advance the goals of government accountability and transparency.

[128]

On the contrary, providing third parties with access to a childs
    records would seriously undermine the Childrens Lawyer in her role as advocate
    for the child. It would also sabotage the childs heightened privacy rights,
    eviscerate the work of the Childrens Lawyer and seriously limit the courts
    ability to fully address the childs best interests.

[129]

One of the most
    significant developments in family litigation affecting children is the
    recognition that the child has a voice. The Adjudicators decision would muzzle
    that voice, undermine the court process and go against the best interests of
    the child.

CONCLUSION

[130]

For these
    reasons, I would allow the appeal and quash the Adjudicators order. In
    accordance with the parties agreement, I would not order costs.

Released: PR JUN 18 2018

M.L. Benotto J.A.

I agree. Paul Rouleau
    J.A.

I agree. L.B. Roberts
    J.A.

[1]
The Divisional Court applied a reasonableness standard of review and indicated
    that  in any event  the decision was correct.

[2]
Justice for Children and Youth is a legal clinic funded by Legal Aid Ontario
    with a mission of advancing the rights, interests and dignity of children and
    youth. It was granted intervener status based on its expertise regarding child
    representation and the privacy rights of children.

[3]
Rachel Birnbaum and Nicholas Bala, Views of the Child Reports: The Ontario
    Pilot Project  Research Findings and Recommendations (Paper for presentation,
    delivered in Toronto, June 21, 2017)

[4]
The Honourable Donna J. Martinson and Caterina E. Tempesta, Legal
    Representation for Children in Family Law Cases: A Rights-Based Approach,
    CLEBC and CBABC Joint Conference, Access to Justice For Children, Child Rights
    in Action, May 2017, Vancouver B.C.

[5]

Walmsley
,

at pp. 615-16 & 618-19.

[6]

City of Ottawa
, at paras. 29-31.

[7]

Canada (Information Commissioner) v. Canada (Minister of National Defence)
,
    2011 SCC 25, [2011] 2 S.C.R. 306, at paras. 27, 28, 41 & 43.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Finance) v. Traders General Insurance
    (Aviva Traders), 2018 ONCA 565

DATE: 20180621

DOCKET: C62983

Feldman, MacPherson and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen in Right of Ontario as
    Represented by the Minister of Finance, Pursuant to the provisions of the
Motor
    Vehicle Claims Act

Plaintiff (Respondent)

and

Traders General Insurance operating as Aviva
    Traders

Defendant (Appellant)

Eric K. Grossman, for the appellant

Harold W. Sterling and Todd M. Wasserman, for the
    respondent

Heard: November 9, 2017

On appeal from the judgment of Justice Mary A. Sanderson
    of the Superior Court of Justice, dated October 27, 2016, with reasons reported
    at 2016 ONSC 6663.

Feldman J.A.:

[1]

This action arose out of a catastrophic car accident involving a 1991
    Hyundai owned by Peter Leonard. The accident occurred a couple of weeks after
    the appellant insurer purported to terminate its policy of insurance on the
    vehicle. The driver, a friend of Peter Leonards son, was killed. The
    passenger, another friend, was seriously injured, claimed statutory accident
    benefits, and also sued Peter Leonard for damages. The appellant insurer did
    not defend the action on behalf of Peter Leonard, because it had cancelled the owners
    policy insuring the Hyundai for non-payment of premiums before the accident
    occurred.

[2]

After Peter Leonard settled the action for $234,574.33, the passenger
    assigned the judgment to the respondent, representing the Motor Vehicle Accident
    Claims Fund. The Fund paid the amount of the judgment to the passenger and
    began to obtain re-imbursement from Peter Leonard. The Fund also sued the
    appellant insurer in this action for restitution based on unjust enrichment,
    claiming that the appellant insurer had not effectively terminated its policy, that
    the policy remained in force at the date of the accident and that it should
    have responded to the passengers claim.

[3]

The termination issue arose because the owners policy was obtained not
    by Peter Leonard, but by Anne Leonard, his wife, and it was Anne Leonard who
    was named as the insured on the policy, although she did not own the vehicle.
    The appellant sent the termination notice to the named insured, Anne Leonard,
    and not to Peter Leonard, the owner of the vehicle.

[4]

The trial judge found that the
Insurance Act
, R.S.O. 1990, c. I.8
, required that the
    notice of termination be sent to the insured, that the insured was the owner
    of the vehicle, and, therefore, by sending the notice only to Anne Leonard, the
    appellant did not effectively terminate the policy, which remained in force at
    the date of the accident.

[5]

The trial judge also found that the respondent was entitled to bring a claim
    for restitution. As a result, there was no limitation issue.

[6]

I agree with the trial judge that the respondent Fund is entitled to
    obtain reimbursement in this action from the appellant insurer for the amount
    of the judgment it paid to the injured passenger. For the reasons that follow,
    I would dismiss the appeal.

Background Facts

[7]

In 1999, Anne Leonard purchased automobile insurance from GAN Canada
    Insurance. In the Leonard family, she was the one who dealt with financial
    matters, and, as a school bus driver, she could obtain a group rate on
    automobile insurance. Anne Leonard contacted GAN by telephone, and spoke with a
    representative, Brian Down, who issued her an Owners Policy for two
    vehicles. However, Anne Leonards husband, Peter Leonard, was actually the
    registered owner of the two insured vehicles.

[8]

Neither Anne Leonard nor Mr. Down had any specific recollection of the
    call. Mr. Down maintained that he would have asked Anne Leonard whether she was
    the owner of the vehicle, and that she must have said she was the owner, or
    else he would not have issued the policy. His notes, taken contemporaneously to
    the call, do not suggest that he asked Anne Leonard about ownership. They
    indicate that she provided drivers licence numbers and driving histories for
    herself, her husband and their son, as well as the VIN numbers for the vehicles
    and information about who would be driving each vehicle. GAN did not obtain a written
    application, as required by ss. 232(1) and 232(2) of the
Insurance Act
,
    from Anne Leonard.

[9]

A few weeks later, Anne Leonard called and spoke to someone else at GAN,
    and substituted the 1991 Hyundai that was later in the accident for one of the
    originally-insured vehicles.

[10]

Anne
    Leonard testified that she knew her husband was the owner of the vehicles, but
    that Mr. Down did not ask who the owner was, and that, had she been asked, she
    would have answered truthfully. GAN was later acquired by the appellant. The appellant
    renewed the policy, with Anne Leonard as the sole named insured.

[11]

When
    the appellant was unable to withdraw premium amounts from Anne Leonards bank
    account in September 2001, it sent a notice of termination for failure to pay
    premiums dated September 21, 2001 by registered mail addressed to Anne Leonard.
    Anne Leonard did not tell her husband that the car insurance on his vehicles
    had been cancelled. The appellant later sent her a small refund of $12.94 by
    cheque dated October 10, 2011, which she cashed.

[12]

On
    November 10, 2001, the Leonards son, John, was out with friends. He allowed
    his friend, Mark Apollinaro, to drive his fathers 1991 Hyundai. Unfortunately,
    Mr. Apollinaro lost control of the vehicle, causing a serious accident. Mr. Apollinaro
    was killed, while another friend, Dragan Bogdanovic, was severely injured in
    the accident. Mr. Bogdanovic, then a first-year University of Toronto student,
    did not have his own automobile insurance or access to family coverage. The
    only possibility for him to recover accident benefits was through insurance taken
    out on the Hyundai, or, if there was no coverage, through the Fund.

[13]

Mr.
    Bogdanovic applied to the Fund for statutory accident benefits in December,
    2001 and eventually received $1,680,304.57. The appellants liability to
    reimburse the Fund for that amount is not a direct issue in this action.

[14]

On
    February 12, 2002, Mr. Bogdanovics counsel wrote to the appellant notifying it
    that he intended to start an action against Peter Leonard as owner of the Hyundai.
    The appellant replied on February 25, 2002 that the policy was no longer in
    force because, on September 21, 2001, it had sent Anne Leonard a notice of termination
    of the policy due to non-payment, and on October 10, 2001, it had issued a
    refund cheque in the sum of $12.94 to Anne Leonard, which she cashed.

[15]

Around
    March 6, 2002, when the adjusters for the Fund commenced a priority dispute, the
    appellant was advised that Mr. Bogdanovic had made a claim to the Fund for
    accident benefits. Around March 25, 2002, the appellant wrote to the Fund to
    advise that it was unable to accept Mr. Bogdanovics claim, asserting that the
    policy for the Hyundai had been cancelled effective October, 2001.

[16]

On
    June 20, 2002, Mr. Bogdanovic brought an action against Mr. Apollinaros estate
    and Peter Leonard as owner of the Hyundai. The action was eventually resolved
    by the Fund, without any involvement or input from the appellant, on the basis
    that Mr. Bogdanovic was entitled to recover from the Estate of Mr. Apollinaro
    and from Peter Leonard. On March 27, 2003, judgment in the amount of $234,574.33
    was granted to Mr. Bogdanovic.

[17]

On
    April 28, 2003, Mr. Bogdanovic assigned the judgment in favour of the Fund. The
    assignment was required under s. 9 of the
Motor Vehicle Accident Claims Act
,
    R.S.O. 1990, c. M.41. By letter dated April 29, 2003, Mr. Bogdanovic applied to
    the Fund for payment of the judgment under s. 7 of the
Motor Vehicle
    Accident Claims Act
, and on or about May 23, 2003, the Fund paid him $234,574.33,
    as it was required to do under the Act. As of the date of trial, the Fund had
    collected $47,500.00 from Peter Leonard as the registered owner of the Hyundai
    and as a judgment debtor.

[18]

The
    Fund issued the statement of claim in this action on December 11, 2008, some
    5.5 years after Mr. Bogdanovic obtained the judgment against Peter Leonard and
    assigned the judgment to it.

[19]

The
    appellant defended the action, mainly by arguing that GAN was justified in
    failing to include Peter Leonard as a named insured on the policy and not
    sending him a notice of termination, because the GAN representative had asked
    Anne Leonard about ownership of the vehicles to be insured and she advised
    erroneously that she was the owner. Therefore, when GAN issued the policy, it
    was not required to verify that incorrect information.

[20]

During
    the trial, the appellant sought an adjournment to interview other insurance
    providers so that it could introduce similar fact evidence, including
    underwriting files from three other insurance companies and searches from Autoplus
    and the Ministry of Transportation.

[21]

This evidence indicated that Anne Leonard was the named insured on other
    motor vehicle policies obtained after the policy in issue in this action, but was
    not the owner of the insured vehicles. The appellant sought to show that this
    evidence demonstrated a pattern of behaviour from which the trial judge should infer
    that Anne Leonard must have advised the GAN representative that she was the
    owner of the vehicles she was seeking to insure.

Findings made by the trial judge

[22]

The
    trial judge accepted Anne Leonards evidence that had she been asked by GAN,
    she would have told the representative that her husband was the owner of the
    vehicles to be insured, and based on the notes and records produced from GANs
    files, the representative did not ask about ownership. The trial judge
    therefore found that Anne Leonard did not misrepresent that she was the owner
    of the vehicles, and that it was GAN that made the error by issuing the policy
    naming Anne Leonard as the insured.

[23]

Section
    232 of the
Insurance Act
requires an insurer to provide an application
    form to a proposed insured for completion. That form requires the name of the
    owner of the car. The trial judge found that no such form was sent to Anne
    Leonard and no written application was completed and submitted by her. The appellant
    objected that it was not given sufficient notice to retain all of its records
    from that time, but the trial judge rejected that objection, finding that the appellant
    knew of the accident within a few months, and was put on early notice that the
    Fund would be looking to it for reimbursement, on the basis that the policy had
    not been effectively cancelled before the accident. The appellant was therefore
    on notice that it should retain any relevant documentation, if it existed, and
    should have done so.

[24]

Based
    on the record, the trial judge concluded that GAN never sent Anne Leonard an
    application and that it failed in its statutory obligation to obtain written
    information from her regarding the ownership of the vehicle to be insured.

[25]

Statutory
    condition 11(1) of O. Reg. 777/93 provides the method for an insurer to
    terminate a policy, while s. 12(1) of the
Compulsory Automobile Insurance
    Act
,
R.S.O. 1990, c. C.25,
    lists the circumstances that allow an insurer to do so, including non-payment
    of premiums. Statutory condition 11(1) provides:

Subject to section 12 of the
Compulsory Automobile
    Insurance Act
and sections 237 and 238 of the
Insurance Act
, this
    contract may be terminated by the insurer giving to the insured fifteen days'
    notice of termination by registered mail or five days' written notice of
    termination personally delivered.

[26]

At
    trial, the appellant conceded that if GAN knew or should have known that Peter
    Leonard was the registered owner of the vehicles insured under the policy, then
    the appellant was required to give him notice of termination of the policy.
    Having found that GAN should have known that Peter Leonard was the registered
    owner of the Hyundai, the trial judge found that under statutory condition
    11(1), the appellant could not validly cancel the policy unless it gave Peter
    Leonard, as the insured under an owners policy, 15 days notice, which it did
    not do. Therefore, the policy remained in effect at the date of the accident
    and should have responded to the claim made against Peter Leonard.

[27]

Finally,
    the trial judge rejected the argument that the Fund was precluded from bringing
    an action for restitution by the
Motor Vehicle Accident Claims Fund

Act
.
    She found that no provision of that Act, either expressly or by implication, removed
    the right of the Fund, like any other litigant, to bring an action in
    restitution, in this case against the appellant for its failure to pay under the
    policy. Further, it was just and equitable for the appellant to repay to the
    Fund the full amount it paid to Mr. Bogdanovic in respect of his judgment
    against Peter Leonard, particularly as the Fund undertook to the court that it
    would reimburse Peter Leonard for the amounts he paid to the Fund in
    satisfaction of the Bogdanovic judgment.

[28]

As
    a result, the trial judge granted judgment to the Fund in the amount of
    $234,574.33 plus prejudgment interest from March 23, 2003.

[29]

In
    supplementary reasons, the trial judge explained why she did not admit the
    proposed similar fact evidence regarding Anne Leonard obtaining other insurance
    policies in her name for vehicles registered to her husband.

[30]

The
    proposed evidence was that, after the accident, other insurers had issued
    policies to Anne Leonard as the named insured for vehicles owned by Peter
    Leonard. Although the appellant conceded that this evidence did not show a
    misrepresentation by Anne Leonard, the appellant sought to use it to ask the
    court to infer that, because Anne Leonard had been named as insured in
    subsequent owners policies, she must have misrepresented to those insurers
    that she was the owner of the vehicles.

[31]

The trial judge found that the probative value and relevance of the
    proposed evidence was limited and was outweighed by its prejudicial effect. The
    evidence was not specific enough to draw the inferences or conclusions the
    appellant sought, particularly as it was unclear what questions other insurers
    had asked Anne Leonard regarding ownership and what answers she had given.
    Further, as the request to obtain this evidence was made mid-trial, the trial
    judge concluded that it did not warrant any further delay in the proceeding.

Issues on the Appeal

[32]

This
    appeal engages the following four issues:

1.

Did the trial judge err in law by finding that the notice of termination
    was ineffective because it was not sent to the actual owner of the insured
    vehicle, when it was sent to the named insured?

2.

Did the trial judge err by refusing to admit the proposed similar fact
    evidence?

3.

Was the Fund required to bring its action under s. 258(1) of the
Insurance
    Act
, and if so, is the action-statute barred because it was brought years
    after the expiry of the one-year limitation period in s. 258(2)?

4.

Did the trial judge err in law by granting the Fund judgment based on
    unjust enrichment, rather than requiring it to bring its claim under s. 258(1)
    of the
Insurance Act
?

Analysis

Issue 1: Did the
    trial judge err in law by finding that the notice of termination was
    ineffective because it was not sent to the actual owner of the insured vehicle,
    when it was sent to the named insured?

[33]

The
    appellants theory of the case at trial was that Anne Leonard misrepresented
    herself as the owner of the insured vehicle and that the insurers, GAN and
    later Traders, were entitled to rely on her misrepresentations. That theory
    failed because the trial judge found that Anne Leonard made no such
    misrepresentation, and that the GAN representative, Brian Down, never asked who
    the owner of the vehicle was. Nor did GAN obtain a written application for
    insurance, which would have asked Anne Leonard to identify the registered owner
    of the vehicle to be insured.

[34]

On
    appeal, the appellant frames the argument on the basis that the trial judge
    erred by requiring insurers to investigate representations made by an applicant
    for an owners policy  in this case, Anne Leonard  to verify information
    regarding the ownership of vehicles insured by the policy.

[35]

The
    appellant conceded at trial that if GAN, and later Traders, knew or should have
    known that Peter Leonard was the registered owner of the insured vehicle, then
    it was required to send the notice of termination to him. Because the trial
    judge found that Anne Leonard made no misrepresentation, that GAN should have
    known that Peter Leonard was the owner and that it issued the policy naming
    Anne Leonard as the insured in error, therefore the appellants concession was
    determinative of the ineffectiveness of the termination. It is therefore
    unclear on what basis the appellant now seeks to argue on the appeal that neither
    it nor GAN had a duty to inquire into the accuracy of any ownership information
    provided by Anne Leonard.

[36]

Subsection
    233(3) of the
Insurance Act
governs when an automobile insurer may
    rely on a representation by an applicant for insurance. It provides:

No statement of the applicant shall be used in defence of a
    claim under the contract unless it is contained in the signed written
    application therefor or, where no signed written application is made, in the
    purported application, or part thereof, that is embodied in, endorsed upon or
    attached to the policy.

[37]

In
    this case, there was no written application. Therefore, there was no written or
    oral misrepresentation by Anne Leonard. There is therefore no basis for the
    appellant to raise misrepresentation as a ground of appeal, subject only to the
    challenge to the evidentiary ruling on similar fact evidence that I address
    below.

[38]

The
    appellant also submits that it was entitled to cancel the policy by sending the
    termination notice to Anne Leonard as the named insured under the policy. For
    this submission, the appellant refers to s. 236 of the
Insurance Act
,
    which prescribes that where an insurer does not intend to renew a policy, it
    must give the named insured 30 days notice.

[39]

However,
    in this case, the appellant purported to cancel an existing policy for non-payment
    of premiums, relying on statutory condition 11(1), which requires the notice to
    be given to the insured. O. Reg. 777/93 provides for the statutory conditions
    that must be in all policies of automobile insurance. In that regulation,
    insured is defined as follows:

In these statutory conditions, unless the context otherwise
    requires, the word insured means a person insured by this contract, whether
    named or not.

[40]

The
    policy that the appellant purported to terminate is an owners policy, which is
    defined in s. 1 of the
Insurance Act
as:

A motor vehicle liability policy insuring a person in respect of
    the ownership, use or occupation of an automobile
owned by that person
and within the description or definition thereof in the policy. [Emphasis
    added.]

[41]

It
    was never an issue in this case that before the purported termination, the
    policy was valid insurance that insured Peter Leonard as the owner of the
    insured vehicle.

[42]

Therefore,
    because the policy at issue was valid, and because it was an owners policy,
    the insured under that policy was Peter Leonard, the owner of the vehicles
    insured by the policy.

[43]

To summarize, the only issue was whether the notice of termination had
    the effect of terminating that policy. The notice was only sent to Anne Leonard,
    who was not the insured for the 1991 Hyundai vehicle because she did not own
    it. Because the notice of termination was not sent to the insured, as required
    by statutory condition 11(1), it was not effective to terminate the policy, and
    the trial judge made no error in so holding.

Issue 2: Did the
    trial judge err by refusing to admit the proposed similar fact evidence?

[44]

Whether
    to admit similar fact evidence is based on an analysis of its relevance and a
    balancing of its probative value against its prejudicial effect and is a
    discretionary decision, which is owed significant deference on appeal:
R.
    v. Harvey
, 57 O.R. (3d) 296, at paras. 43-44, affd 2002 SCC 80, [2002] 4
    S.C.R. 311.

[45]

Relevance
    is the most basic and important criterion for the admission of potentially
    prejudicial evidence such as similar fact evidence. The trial judge found the proposed
    evidence, which suggested that after obtaining the policy in this case other
    policies were issued to Anne Leonard for non-owned vehicles, to be minimally
    relevant to the factual issue she was asked to determine: whether Anne Leonard
    misrepresented to Brian Down that she was the owner of the vehicles to be
    insured. The trial judge similarly found it not to be probative of the question
    to be decided. She explained that when she first granted the appellant an
    adjournment mid-trial to investigate the issue, she believed the proposed
    evidence related to insurance applications that pre-dated the one in issue.
    However, they all occurred after the policy in this case. Most significantly,
    there was again no evidence of any misrepresentation by Anne Leonard. It
    follows that even had the trial judge admitted the evidence, she would not have
    found it helpful.

[46]

Finally,
    the trial judge also included in her reasoning the fact that a further delay
    was required by the appellant to continue to investigate, and she exercised her
    judicial role to manage the process as part of her reason to refuse any further
    adjournment that would have been required in order to receive the proposed
    evidence.

[47]

I see no basis for interfering with the trial judges exercise of her
    discretion.

Issue 3: Was the
    Fund required to bring its action under s. 258(1) of the
Insurance Act
,
    and if so, is the action statute-barred because it was brought years after the
    expiry of the one-year limitation period in s. 258(2)?

[48]

In
    oral argument, the appellant appropriately abandoned its initial reliance on
    the limitation period contained in statutory condition 9(4) in O. Reg. 777/93,
    which applies to claims for damage to the automobile.

[49]

The
    appellant submits, however, that having obtained an assignment of the
    passengers judgment against the owner of the vehicle, Peter Leonard, the Fund was
    obliged to bring its action against his insurer, Traders, under s. 258(1) of
    the
Insurance Act
, and further that the one-year limitation period provided
    in s. 258(2) bars any such claim.

[50]

Subsection
    258(1) provides:

Any person who has a claim against an insured for
    which indemnity is provided by a contract evidenced by a motor vehicle liability
    policy, even if such person is not a party to the contract, may, upon
    recovering a judgment therefor in any province or territory of Canada against
    the insured, have the insurance money payable under the contract applied in or
    towards satisfaction of the person's judgment and of any other judgments or
    claims against the insured covered by the contract and may, on the person's own
    behalf and on behalf of all persons having such judgments or claims, maintain
    an action against the insurer to have the insurance money so applied.

[51]

Prior
    to its repeal in 2004, s. 258(2) provided:

No action shall be brought against an insurer under
    subsection (1) after the expiration of one year from the final determination of
    the action against the insured, including appeals if any.

[52]

The
    appellant argues that Mr. Bogdanovic could have sued the appellant insurer
    under s. 258(1) and would have been bound by the limitation in s. 258(2).
    Because the Fund took an assignment of the Bogdanovic judgment, the appellant argues
    that the Fund stood in the shoes of the assignor and had to bring its action
    within the same time limit. It argues further that the Fund was therefore precluded
    from bringing its claim as an action for unjust enrichment.

[53]

The
    validity of this submission turns on whether it was mandatory for the Fund to
    make its claim under s. 258(1). That question turns on whether the Crown on
    behalf of the Fund was bound by the provisions of the
Insurance Act
at
    the relevant time, or whether it had Crown immunity.

[54]

Section
    11 of the
Interpretation Act
, R.S.O. 1990, c. I.11, which was in force
    until July 2007, provided that specific words were required for an act to bind
    the Crown:

No Act affects the rights of Her Majesty, Her heirs
    or successors, unless it is expressly stated therein that Her Majesty is bound
    thereby.

[55]

Section
    71 of the
Legislation Act, 2006
, S.O. 2006, c. 21, Sch. F, which
    replaced the
Interpretation Act
, continues this provision:

No Act or regulation binds Her Majesty or affects Her
    Majestys rights or prerogatives unless it expressly states an intention to do
    so.

[56]

These
    provisions constitute the codification of the common law principle of Crown
    immunity. In
Canada (Attorney General) v. Thouin
, 2017 SCC 46, [2017]
    2 S.C.R. 184, the Supreme Court stated at para. 20, following
Friends of
    the Oldman River Society v. Canada (Minister of Transport)
, [1992] 1
    S.C.R. 3, that the equivalent section in the federal
Interpretation Act
, R.S.C. 1985, c. I
‑
21,
is treated as a starting point for
    the immunity analysis, so that where there are no express words in an Act
    making it applicable to the Crown, it  remains to be decided whether the
    Crown is bound by necessary implication.

[57]

There
    was no express provision in the
Insurance Act
that bound the Crown in
    2003, when Mr. Bogdanovic obtained judgment against Peter Leonard and assigned
    that judgment to the Fund, or in 2008, when this action was commenced.

[58]

Nor
    was the Crown bound by necessary implication. The only reference to the Crown
    in the 2003 Act was s. 101(5), which describes when certain returns of insurers
    become a debt owing to the Crown. The Act was also amended in May 2008 to
    include in s. 1 the definition of entity as including the Crown. However, the
    references to entity in the Act are discrete and involve provisions dealing
    with corporate law rules and investment rules for various entities operating in
    the insurance context.

[59]

There
    were also a number of sections that refer to the Fund, specifically: ss. 268(2),
    268.0.1(2), and 267.12(2)(b). These bind the Fund specifically in the
    particular circumstances described in those sections. Paragraph 267.12(2)(b)
    sets out how to calculate the insurance coverage entitlements of lessors. Subsections
    268(2) and 268.0.1(2) both allow for recovery of statutory accident benefits
    from the Fund in certain circumstances. None of these provisions relate or
    apply to s. 258.

[60]

Traders
    nonetheless relies on
Allstate v. Motor Vehicle Accident Claims Fund
,
    2007 ONCA 61, 84 O.R. (3d) 401, to argue that the Fund is deemed to be an
    insurer for the purposes of the whole of the
Insurance Act
, and that
    therefore the Fund was obliged to bring its claim by relying on s. 258.

[61]

Traders
    reliance on
Allstate
is misplaced. In
Allstate
, this court held
    at para. 37 that, [l]iterally, of course, the Fund is not an insurer.
    However, because s. 6 of the
Motor Vehicle Accident Claims Act
deems
    any reference to insurer in the Statutory Accident Benefits Schedule to be a
    reference to the Fund, the court concluded that Fund is considered an insurer for
    the purpose of resolving disputes over the payment of accident benefits. The
    court did not conclude that the Fund is considered an insurer for the whole of
    the
Insurance Act
.

[62]

As
    there was nothing in the
Insurance Act
in 2003 or 2008 that either
    expressly or by necessary implication made the Act bind the Crown, except in
    specific provisions, the Crown enjoys immunity and was not bound to use s. 258
    of the Act to bring its claim against Traders.

[63]

Having
    said that, the Crown was not precluded from bringing a claim under s. 258(1),
    and had it chosen to do so, it would have been obliged to bring its claim
    within the one-year limitation provided in s. 258(2)
[1]
.
    As Ruth Sullivan explains in
Sullivan on the Construction of Statutes
,
    6th ed. (Toronto: LexisNexis Canada, 2014), this is the benefit/burden
    exception to Crown immunity: if the Crown chooses to take the benefit of a
    statutory provision, it must also accept any conditions that are imposed.

[64]

In this case, the Fund did not pursue an action using s. 258(1): it did
    not invoke that provision, and therefore was not caught by the corresponding
    burden imposed by s. 258(2). Instead, the Fund brought its claim as an action
    for unjust enrichment. It was entitled to do so, as it was not bound either
    expressly or by necessary implication to assert a cause of action under s.
    258(1).

Issue 4: Did the
    trial judge err in law by granting the Fund judgment based on unjust
    enrichment, rather than requiring it to bring its claim under s. 258(1) of the
Insurance
    Act
?

[65]

The
    trial judge found that the appellant was unjustly enriched because its policy
    was in force at the time of the accident and it should have responded to the
    claim against Peter Leonard, its insured, and the Fund was correspondingly
    deprived by paying the judgment. This finding is not challenged on appeal.
    Traders does not suggest that there was any juristic reason for it not to pay
    if its cancellation of the policy was ineffective; as the trial judge pointed
    out, Traders was contractually obligated to pay the Bogdanovic judgment under
    Peter Leonards policy. Further, the finding of unjust enrichment is supported
    by the record. Therefore, there is no reason to interfere with the trial
    judges conclusion that Traders was unjustly enriched at the expense of the
    Fund.

[66]

However,
    the appellant argued at trial, and argues again on appeal, that the trial judge
    was not entitled to exercise discretion to award a restitutionary remedy when a
    statutory remedy was available, relying on
Royal Insurance Co. of Canada v.
    Aguiar

(1984), 48 OR (2d) 705 (C.A.). This argument is ill-conceived
    for three reasons.

[67]

First,
    while the effect of making a finding of unjust enrichment was to grant the Fund
    restitution from the appellant, in so doing, the trial judge was not exercising
    discretion to award an equitable remedy instead of a legal remedy for a cause
    of action where alternative remedies were available. She was granting the
    ordinary form of relief for a claim in unjust enrichment: Peter D. Maddaugh and
    John D. McCamus,
The Law of Restitution
, loose-leaf ed. (Toronto: Thomson
    Reuters Canada Limited, 2017), at pp. 3-7, 3-8 and 4-10; and
Kerr v.
    Baranow
,
2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 46-47.
    Paragraph 1 of the judgment makes no reference to restitution  it merely
    grants judgment in the amount of $234,574.33.

[68]

In
Apotex Inc. v. Eli Lilly and Company
, 2015 ONCA 305, 334 O.A.C. 99, at
    paras. 52-54, I addressed the difference between substantive and remedial restitution:
    the former recognizes unjust enrichment as a stand-alone cause of action, while
    the latter occurs where a party seeks a disgorgement of profit as a remedy for
    an independent legal wrong, such as a tort or breach of contract. Although
    remedial restitution for an independent legal wrong is an exceptional remedy
    that should not be invoked unless other available remedies are inadequate (see
Apotex
,
    at para. 56), here the Fund did not plead an independent legal wrong and seek a
    restitutionary remedy in relation to that legal wrong. Rather, it pleaded
    substantive restitution as a stand-alone cause of action and the trial judge
    found that the Funds claim in unjust enrichment was made out. In these circumstances,
    the trial judge did not err in restoring to the Fund the monetary amount that
    it was deprived of by Traders corresponding unjust enrichment.

[69]

Second,
    the appellants first argument was that the Crown was obliged to bring its
    action using s. 258. That argument failed because of Crown immunity in respect
    of the
Insurance Act
(except for the specific sections already
    discussed). If the Crown were to be precluded from bringing its claim in unjust
    enrichment because of the availability of a claim under s. 258, the effect
    would be to undermine the Crowns immunity from having to bring a claim under s.
    258.

[70]

Third,
    in
Aguiar
, similar to this case, an insurer (not the Fund) paid its
    insured under the uninsured motorist provision, then sought reimbursement from
    the uninsured driver. As a subrogated claim, the insurers action was out of
    time and statute barred. The insurer then argued that it could claim
    restitution from the uninsured driver not only as a subrogated claim, but on
    the basis that its payment discharged the liability of the uninsured driver. On
    that formulation, the action was not statute barred. The court held that that
    argument could not succeed because in fact, the payment did not discharge that
    liability. However, contrary to the submission of the appellant, this court did
    not suggest that the appellant would not be able to bring its claim on the
    alternative basis and avoid the limitation problem, had the facts been found in
    its favour.

Conclusion

[71]

I
    agree with the trial judge that the Fund was entitled to claim unjust
    enrichment rather than bring its claim under s. 258 of the
Insurance Act
.

[72]

I
    would therefore dismiss the appeal with costs fixed in the amount of $30,000
    inclusive of disbursements and HST.

Released: K.F. June 21, 2018

K. Feldman J.A.

I agree. J.C. MacPherson
    J.A.

I agree. Grant Huscroft J.A.

[1]
See
Grenier v. Canadian General Insurance Co.
(1999), 43 O.R. (3d) 715
    (C.A.), for a discussion of when the limitation period commences under that
    section.