COURT OF APPEAL FOR ONTARIO

CITATION: Brown v. Canada (Public Safety), 2018 ONCA 14

DATE: 20180111

DOCKET: C63077

Simmons, Rouleau and Brown JJ.A.

BETWEEN

Alvin John Brown

Applicant (Appellant)

and

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

Respondents (Respondents)

Jean Marie Vecina and Jared Will, for the appellant

Bernard Assan, Martin Anderson and Mélissa Mathieu, for
    the respondents

Heard: October 19, 2017

On appeal from the judgment of Justice Alfred J. OMarra
    of the Superior Court of Justice, dated December 9, 2016, with reasons reported
    at 2016 ONSC 7760, 273 A.C.W.S. (3d) 524.

Rouleau J.A.:

A.

OVERVIEW

[1]

Prior to being deported to Jamaica, the appellant, Mr. Brown, was
    detained for the purpose of removal in a maximum security institution for five
    years. He brought a
habeas corpus
application and sought damages under
    s. 24(1) of the
Canadian Charter of Rights and Freedoms
as a remedy
    for the breach of his ss. 7, 9 and 12
Charter
rights
. Because he was deported before
    the application was decided, the
habeas corpus
portion of the application
    was dismissed as moot. He nonetheless proceeded with the
Charter
damages
    aspect of the application maintaining that, prior to being deported, the
    detention he suffered was cruel, unusual, arbitrary and indefinite. His
    application for
Charter
damages was dismissed. He appeals that
    dismissal, arguing that the application judge erred.

[2]

Mr. Brown maintains that the application judge failed to properly interpret
    and apply this courts decision in
Chaudhary v. Canada (Public Safety and
    Emergency Preparedness)
, 2015 ONCA 700, 127 O.R. (3d) 401. Had he done so,
    he would have found that the detention had become indefinite and arbitrary in
    contravention of ss. 7 and 9 of the
Charter
after 18 months of
    detention. Further, the application judge ought to have found that he was
    subjected to cruel and unusual treatment contrary to s. 12 of the
Charter
because
    of the effect of the detentions length and conditions. I would dismiss the
    appeal for the reasons that follow.

B.

FACTS

[3]

Mr. Brown, a Jamaican citizen, arrived in Canada in 1983 at the age of eight
    years old. He became a permanent resident in 1984. Between 1999 and 2010, he
    amassed 18 convictions, some of them for violent offences. He has previously been
    addicted to crack cocaine and alcohol. It is alleged that he suffers from
    schizophrenia. In 2005, his permanent residency was terminated and a removal order
    from Canada was issued because of serious criminality.

[4]

In January 2011, at the conclusion of the criminal sentence he was
    serving, Mr. Brown was detained by the Canada Border Services Agency for the
    purpose of executing the removal order. On March 16, 2011, he was released on
    terms and conditions. On September 8, 2011, Mr. Brown was once again detained after
    the CBSA found that he had breached his bail conditions. The detention was
    considered necessary as he was found to be a danger to the public and a flight
    risk.

[5]

Over the next five years, his detention in a maximum security prison was
    renewed every 30 days by the Immigration Division of the Immigration and
    Refugee Board. Those renewals were based on the fact that Mr. Brown continued to
    be a flight risk, a danger to the public, and that the Minister was exercising due
    diligence in its efforts to obtain the documents required for effecting the removal
    to Jamaica.

[6]

In January 2012, the Immigration Appeal Division dismissed Mr. Browns
    appeal of his removal order. In February 2012, five months after the start of the
    detention, an application was made for a travel document from the Jamaican
    consulate. The CBSA advised the consulate that Mr. Brown had lost his passport
    and birth certificate. Although the CBSA knew a birth certificate was to be
    included with the travel document request, it provided a copy of Mr. Browns
    expired Jamaican passport in the hope that it would suffice.

[7]

In June 2012, the consulate advised that the application had been lost. The
    Immigration Division noted that regular talks were being held with the Jamaican
    consulate during this period to obtain travel documents. The CBSA sent a new
    application in September 2012. Between then and August 2013, numerous requests
    for a status update were made by the CBSA to the consulate. In August 2013, the
    consulate advised the CBSA that Mr. Browns application had been sent to
    Jamaica for processing. From October 2013 to October 2014, the consulate
    awaited confirmation of Mr. Browns nationality.

[8]

After a request by the CBSA in February 2015, a Jamaican consular
    official interviewed Mr. Brown to verify his nationality. In March 2015, the
    CBSA learned that the interview did not satisfy the consulate of his
    nationality. Another interview was conducted in June 2015 by a CBSA officer to
    obtain more information.

[9]

In August 2015, the consulate advised that they were not convinced that Mr. Brown
    was Jamaican due to the lack of a birth certificate. While there was a
    reference to Mr. Brown having been adopted in the CBSAs file, it was not clear
    until the fall of 2015 what significance, if any, this would play in the
    Jamaican authorities confirmation of his nationality. In October 2015, the CBSA
    made additional inquiries of the Jamaican Registrar General regarding his
    adoption papers. As a result of those inquiries, his Jamaican nationality could
    be confirmed to the consulates satisfaction on November 20, 2015. A removal
    date was set for January 21, 2016. The CBSA arranged for pending criminal
    charges against Mr. Brown to be stayed to allow the removal to proceed.

[10]

In
    January 2016, the Jamaican consulate raised concerns about Mr. Browns mental
    health issues, which further delayed the removal. In February 2016, CBSA
    officials in Ottawa became involved with the Ministry of Health in Jamaica.
    Assistance was sought from the Jamaican authorities and a CBSA liaison officer
    met with local authorities in Kingston, Jamaica in May 2016. In June 2016,
    Jamaican authorities confirmed that Mr. Browns mental health condition could
    be accommodated.

[11]

The
    Jamaican Ministry of Health requested further documentation, which was made
    available to them in mid-July 2016. In August 2016, more information was sought
    by the consulate, which was provided by the CBSA. On September 7, 2016, Mr. Brown
    was removed to Jamaica after a travel document was issued.

C.

DECISION BELOW

[12]

In
    July 2016, Mr. Brown filed his combined
habeas corpus
and
Charter
application. On August 30 and 31, 2016 the court heard the evidence and
    adjourned for submissions a week later. Mr. Brown, who was no longer contesting
    his removal, was removed from Canada on September 7, 2016 rendering the
habeas
    corpus
aspect of the application moot. However, Mr. Brown continued
    his
Charter
claim, seeking a declaration that the detention was
    unlawful and in violation of ss. 7, 9, and 12 of the
Charter
. He also
    sought an award for
Charter
damages in the amount of $1,500 per day.

[13]

The
    application judge held that there had been no violation of due process under
    s. 7. Mr. Browns case was reviewed every 30 days through a process that has
    been recognized as procedurally fair. The statutory basis for the detention was
    also subject to oversight by the Federal Court. Additionally, multiple factors
    warranted Mr. Browns detention. As a result, the deprivation of liberty
    was in compliance with the principles of fundamental justice and justified in
    the circumstances.

[14]

Section
    9 of the
Charter
had also been respected because the legislative
    criterion for detention had been met. Mr. Browns detention was for the valid
    purpose of removal. He could not be removed earlier because Jamaica had to
    issue a travel document.

[15]

The
    application judge then held that Mr. Brown did not suffer cruel and unusual
    punishment. He received adequate care during detention, and his treatment while
    awaiting removal did not violate s. 12. Although the detention was lengthy, it
    was proportionate in light of the facts and the underlying purpose of detention.
    Mr. Brown was detained pursuant to a lawful process and could only be deported
    after Jamaica satisfied itself that he was a Jamaican national. Further, most
    of the delay was caused by the Jamaican authorities, not lack of diligence by
    the CBSA.

D.

ISSUES

[16]

Before
    dealing with the merits of the appeal, I will address the respondents
    submission that:

1) the procedure adopted by Mr. Brown in the Superior
    Court was inappropriate and the resulting record was inadequate to properly
    dispose of the claims.

[17]

Next,
    I will deal with Mr. Browns arguments that the application judge:

2) erred in finding that there was no breach of ss. 7
    and 9 of the
Charter
;

3) erred in finding that there was no breach of s. 12
    of the
Charter
; and

4) ought to have made an award of damages as an
    appropriate and just remedy for the breaches.

E.

ANALYSIS

(1)

Procedure adopted

[18]

In
    his application, Mr. Brown sought both
habeas corpus
as well as damages
    pursuant to s. 24(1) of the
Charter
. Because Mr. Brown had been
    deported before the court could rule on the request for
habeas corpus
,
    that part of the proceeding was moot. Over the objection of the respondents,
    the
Charter
damages portion of the application was nonetheless heard
    on the merits.

[19]

Although
    I acknowledge that superior courts have broad discretion as to the scheduling
    of proceedings, they should not combine the hearing of both a
habeas

corpus
application and a
Charter
damages application, as was done here.

[20]

Because of the importance of the interests at stake,
habeas

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

[21]

If, as here, a
habeas

corpus
application is allowed to be joined with a claim for
Charter
damages,
    it distorts what is otherwise intended to be an expeditious process. It
    inevitably results in significant delays to the hearing of the
habeas

corpus
application and gives the
Charter
damages claim a higher priority for
    hearing than it would otherwise receive.

[22]

The
    application judge was facing a set of circumstances where the applicant had
    been removed and practicality was a factor. However, if the matter of
Charter
damages is pressed to an early hearing, the record required for the proper
    hearing and disposition of the issue risks being incomplete and unsatisfactory.
    In my view, this was the case here.

[23]

Although
    I agree with the respondents that the record is inadequate to decide whether
    damages would have been an appropriate remedy for a breach, it was sufficient
    to allow the application judge to rule on whether
Charter
breaches had
    occurred. Therefore, I should not be taken as faulting the application judge in
    this case. He was presented with the hybrid application and
habeas

corpus
was rendered moot after two days of hearings because Mr. Brown had been removed
    from Canada. He considered it appropriate and expedient to simply proceed with
    the
Charter
claim on the record he had. As a result, I would not
    interfere with the application judges decision to proceed and rule on the
Charter
damages portion of the application.

[24]

I
    turn now to the issues on appeal.

(2)

Sections 7 and 9 of the
Charter

[25]

Sections
    7 and 9 of the
Charter
provide the following guarantees:

7. Everyone has the right to life,
    liberty and security of the person and the right not to be deprived thereof
    except in accordance with the principles of fundamental justice.

9.
    Everyone has the right not to be arbitrarily detained or imprisoned.

[26]

Mr. Brown submits that the application judge erred in failing to find
    that his five year detention contravened both ss. 7 and 9 of the
Charter
.

[27]

In his view, the application judges reasons show he erred by limiting his
    analysis to whether there had been a violation of the due process guarantee in
    s. 7 of the
Charter
.

He also erred in concluding that, because detention was for the
    valid purpose of removal, no breach of s. 9 occurred. He argues that the court
    ought to have separately focused on the arbitrary and indefinite nature of the
    detention. Had the court done so and applied the principles set out in
Chaudhary
, it would have concluded that, after 18 months of detention, it had
    become illegal as there was no reasonable prospect that the detentions
    immigration-related purposes will be achieved within a reasonable time:
Chaudhary
,

at para. 81.

[28]

As further support for this submission, Mr. Brown referred to how other
    countries deal with lengthy detentions for purpose of removal. The
    jurisprudence he tendered from these jurisdictions ought to have led the court
    to conclude that in accordance with international norms, a maximum period of
    detention for removal purposes should be enforced by the courts in Canada. He proposes
    that an 18 month maximum should be adopted.

[29]

In my view, the application judge did not err in his analysis of the ss.
    7 and 9 issues. After considering all of the evidence, the application judge concluded
    that the detention had not become unlawful. The Immigration Division had made
    the fact-driven determination that Mr. Brown constituted a flight risk as well
    as a danger to the public. These determinations are entitled to deference. Pursuant
    to the
Immigration and Refugee Protection Act
, S.C.
    2001, c. 27, there is a statutory process for continuous and regular reviews by
    the Immigration Division every 30 days in a quasi-judicial process recognized
    by the courts as being procedurally fair. There are also provisions for
    oversight by the Federal Court.

[30]

Contrary to Mr. Browns submission, the application judge did not stop
    his analysis there. Pursuant to
Chaudhary,
he recognized
    that he was to consider whether the detention had become illegal and breached Mr.
    Browns
Charter
rights because of its length and
    prospect for removal. It is apparent from reading the application judges reasons
    as a whole that he accepted the respondents argument that, despite delays and
    unanticipated problems that resulted in the lengthy detention, it had not
    become illegal because there was a reasonable prospect of the removal being
    effected throughout the process.

[31]

I disagree with Mr. Browns submission that
Chaudhary
sets a maximum length of detention. It prescribes a fact-driven
    analysis in which there is a balancing of the statutory reasons for detention
    and the prospect of removal within a reasonably foreseeable timeframe against a
    detainees rights not to be detained arbitrarily or for indefinite periods.

[32]

As explained in
Chaudhary
,

at para. 82, a detention in the immigration
    context will become arbitrary and therefore illegal when, because of its length
    and uncertain duration, it is no longer reasonably necessary to further the
    machinery of immigration control. While the length of the detention is a critical
    factor in that analysis, the question of when it can be reasonably anticipated
    that the removal order will be executed is another important consideration. In
    that sense, it is principally a forward looking test and not one where
    reasonable decisions are later made to appear as having been unreasonable with
    the benefit of hindsight.

[33]

Mr. Brown also argues that the application judge made a palpable and
    overriding error in finding that the CBSA acted reasonably in submitting his application
    for a travel document to the Jamaican consulate without first having sought out
    the documents relating to his adoption or having obtained a new birth
    certificate. He also maintains that the application judge should have found
    that additional unnecessary delay was incurred because of the CBSAs failure to
    inform the Jamaican authorities of his mental condition until after his
    Jamaican nationality was confirmed. In his submission, the delays resulting
    from the CBSAs unreasonable conduct rendered the detention illegal.

[34]

I disagree. The application judge made the factual determination that there
    was no lack of diligence on the part of the CBSA in trying to effect Mr.
    Browns removal. It was open to him to make this finding based on the record
    before him. He examined the fact that the CBSA submitted the request for travel
    documents to the Jamaican authorities without including a birth certificate and
    without having pursued the issue of Mr. Browns adoption. The application
    judge accepted that the CBSA believed, in good faith, that the expired passport
    would be sufficient to confirm Mr. Browns citizenship in light of the fact that
    he had reported having lost his birth certificate. As the application judge explained,
    the Jamaican consulate forwarded those documents and sent on the application to
    Jamaica for processing. For a period of time, it appeared as though Mr. Browns
    nationality would be confirmed by means other than the filing of a birth
    certificate. Ultimately, the Jamaican authorities determined that this
    documentation, together with the interview of Mr. Brown, was not sufficient to
    confirm the nationality. It is only then that the CBSA adopted the alternative
    approach of seeking to obtain adoption records as a means of confirming Mr.
    Browns nationality. Thereafter, the Jamaican authorities accepted that he was
    a Jamaican national. The issuance of travel documents would follow.

[35]

There is nothing unreasonable in the CBSA waiting until
    Mr. Browns nationality is confirmed before engaging in discussions with
    the receiving authority as to the appropriate arrangements needed to support
    him on arrival. The CBSA authorities followed their normal procedure in dealing
    with this concern. In this case, an additional short delay followed to ensure
    that appropriate arrangements could be made to support Mr. Brown upon his
    arrival in Jamaica given his mental condition. The application judge noted this
    additional delay but nonetheless found no
Charter
breach. I would not, therefore, interfere with the application judges finding that
    the CBSAs conduct was reasonable.

[36]

In summary, the reasons disclose that the application judge carefully
    reviewed the history of Mr. Browns detention and the reasonableness of each
    step taken by the CBSA to effect his removal. Although the CBSA encountered a
    number of problems and the delays were significant, these were largely caused
    by the Jamaican authorities. The application judge nonetheless concluded that despite
    the length of the delay his detention was for the valid purpose of removal
    which continued to exist until his actual removal in September 2016. This
    factual determination was made by the application judge while applying the
    correct legal principles. This determination is entitled to deference and I would
    therefore dismiss this ground of appeal.

[37]

I also consider that there is no basis on this record to conclude that international
    law and principles somehow stand for the proposition that any detention
    exceeding 18 months is to be considered illegal. In support of this submission,
    Mr. Brown simply references a selection of court and tribunal decisions, as
    well as legislation and directives from various jurisdictions. These suggest
    that lengthy detention for the purpose of removal in these jurisdictions is
    limited or restricted either by law or by the courts. Mr. Brown did not,
    however, lead any expert evidence that would provide a context and explain how
    the immigration regimes operate in those various jurisdictions. Specifically, it
    is unclear as to whether and how the length of the detention is in fact
    limited. Nor are we informed as to how those regimes protect detainee rights and
    how they compare to the protections in place in Canada.

[38]

From the information that is in the record, it is clear that Canadas
IRPA
operates quite differently from the regimes in place in the United
    States, the United Kingdom, and the European Union. As noted by the application
    judge, the
IRPA
meets the standards for a
    constitutionally compliant detention review scheme. As noted by the Supreme
    Court of Canada, the Canadian regime, despite the fact that it may lead to lengthy
    and indeterminate detention, provides an effective review process that meets
    the requirements of Canadian law:
Charkaoui
, 2007 SCC 9, [2007] 1 S.C.R. 350,
at paras. 105 and 124 to 127.

[39]

I turn now to the s. 12 issue.

(3)

Section 12 of the
Charter

[40]

Section 12 of the
Charter
reads as
    follows:

Everyone has the right not to be
    subjected to any cruel and unusual treatment or punishment.

[41]

Mr. Brown argues that because of its length of five years, his
    detention in a maximum security institution constituted cruel and unusual
    punishment. He also argues that in the circumstances of this case, his
    detention is grossly disproportionate to its removal purpose. Further, the
    conditions of detention including the medical care he received for his mental
    health issues exacerbate the
Charter
breach.

[42]

I disagree. As I have explained, the application judges determination
    that the Immigration Division process for review of Mr. Browns detention was
    fair and lawful ought not to be disturbed. Nor should his findings that there
    had been no lack of diligence on the part of the CBSA in effecting Mr. Browns
    removal and that the delays, although lengthy, were largely beyond their
    control. The application judge also considered and rejected Mr. Browns
    submission that he did not receive adequate treatment of his mental health
    issues while in detention. These findings are well supported by the record.

[43]

Mr. Brown takes issue with the application judges rejection of the expert
    evidence of two psychologists he tendered. These experts opined that he
    received inadequate treatment of his mental health issues while in detention. The
    respondents did not tender responding expert evidence by a psychologist
    challenging the opinion expressed by Mr. Browns experts. In his submission, the
    application judge could not reject his uncontradicted expert opinions in the
    absence of persuasive reasons to do so.

[44]

In my view, the application judge did not err in rejecting Mr. Browns
    expert evidence. The reasons he gave for rejecting it are adequate. As noted by
    the application judge, there were substantial shortcomings in Mr. Browns
    experts assessment of his treatment and condition. This contrasted with the
    explicit contents of the institutional medical records.

[45]

The application judge was entitled to rely on the institutions medical
    records and the testimony of Mr. Lee, the health care manager at the Toronto
    East Detention Center, and to prefer this evidence to that of Mr. Browns
    experts. Those experts reported a very different picture than what was painted
    by the institutions records. The records also contradicted Mr. Browns testimony
    as to the treatment received. He maintained for example that while in
    detention, he had limited access to a physician and had no access to a
    psychiatrist. However, the records disclosed not only that Mr. Brown had
    several sessions with a physician but also with a psychiatrist. The records also
    show that the psychiatrist changed Mr. Browns antipsychotic medication at
    his request and that he was allowed to see doctors by following the process in
    place where he was detained.

[46]

Mr. Brown has not established that the application judge misapprehended
    any of the evidence in reaching his conclusion that he received proper
    treatment. There is simply no basis to interfere with that factual finding.

[47]

I reject Mr. Browns submission that the application judge erred in his
    application of the relevant law to the facts of this case. Specifically, he submits
    that the application judge did not give adequate weight to the combined effect
    of the detentions length, the psychological stress of not knowing when it
    would end, and the difficult conditions of detention. The reasons show that the
    application judge did not misapprehend or ignore relevant facts. He was well
    acquainted with the circumstances of Mr. Browns detention and of his medical
    condition. It is not up to this court to reweigh all of the evidence.

[48]

Mr. Brown has not demonstrated that the application judge committed a
    palpable and overriding error in his assessment of the facts or in his
    application of the law. The application judge was familiar with the relevant
    jurisprudence. He cited
R. v. Lloyd
, 2016 SCC 13,
    [2016] 1 S.C.R. 130, and correctly applied the gross disproportionality test
    that is to be used when a s. 12 breach is alleged. After considering the
    length and conditions of detention as well as Mr. Browns mental health, he
    concluded that the treatment received was not so excessive as to outrage our
    standards of decency: see
R. v. Nur
, 2015 SCC 15,
    [2015] 1 S.C.R. 773, at para. 39, and
Charkaoui
,

at para. 96.
    Whether detention is cruel and unusual depends on the specific circumstances of
    each individual case, which were properly assessed by the application judge in
    this case. As a result, I see no basis to interfere with his conclusion that
    there was no violation of s. 12 of the
Charter
.

(4)

Charter
damages

[49]

I need not determine the issue of damages under s. 24(1) of the
Charter
,

given the
    conclusion I have reached that there has been no
Charter
breach. However, because the parties have fully argued the issue of
    whether we ought to make an award of damages, I will address it briefly.

[50]

In effect, the approach taken by Mr. Brown is premised on the assumption
    that if a court grants the remedy of
habeas corpus

applying the principles outlined in
Chaudhary
, it will have determined that the detention has become illegal in violation
    of some or all of a detainees ss. 7, 9, and 12 rights. The court should then go
    on and determine specifically when that illegality initially arose. Following
    that determination, it would award
Charter

damages
    from that day forward up to the date the detention ended, either as a result of
    a
habeas corpus
order or removal, as here. As
    explained earlier, Mr. Brown submits that 18 months should be set as the
    outside limit of any detention after which
Charter
damages would necessarily arise.

[51]

Such an approach contemplates
habeas corpus
applications being routinely joined to a parallel
Charter
application, as here. The court will be asked to determine not only
    whether
habeas corpus
should be granted, but also
    the period or periods of illegal detention. The court will then be called upon
    to assess and award damages for the period or periods of illegal detention. In
    this case, Mr. Brown argues that the period of illegal detention is three
    and a half years. The length of this period is the result of a calculation
    where a court determined maximum detention of 18 months is deducted from the five
    year detention.

[52]

In my view,
Charter
damage claims cannot
    be joined to
habeas corpus
applications. As I
    have explained earlier
habeas corpus
is intended
    to be an expeditious process to determine whether a restriction on liberty of a
    person is legal at a given point in time. It is not, nor should it become, a potentially
    complex and protracted process in which entitlement to s. 24(1) damages is
    determined.

[53]

Second, the
Chaudhary
test is forward
    looking. It assesses whether a
habeas corpus
application can be entertained by the Superior Court. It is concerned with the
    detainees current status and whether the detention is illegal. The
habeas
    corpus
application is not concerned with precisely when the
    detention may have become illegal.

[54]

Finally, a finding that a detention has become illegal and that the
    detainee should be released does not answer the question of whether a detainee
    is entitled to
Charter
damages even assuming it
    were found that the detention had been illegal for some time. Specifically, it does
    not consider what effect, if any, is to be given to the fact that the persons
    detention was legally authorized by a constitutionally valid statute,
the
IRPA
,
up to
    the point where
habeas corpus
is granted and the
    persons release is ordered. As explained in
Vancouver (City) v.
    Ward
, 2010 SCC 27, [2010] 2 S.C.R. 28, issues such as
    whether the rule of law may be undermined might come into play. Where state
    conduct was pursuant to a valid statute, it may be inappropriate to award
    damages unless the state conduct meets a minimum threshold of gravity:
Ward
, at para. 39.

[55]

Those are significant and difficult issues that, because of the courts
    finding that the detention was not illegal, were not addressed by the
    application judge. Further, due in part to the compressed nature of the
    proceeding below, this court would have been unable to assess whether a
Charter
damage award was an appropriate remedy had it found a breach. The
    record is simply inadequate.

[56]

In conclusion, therefore, if
Charter
damages
    are to be sought for an alleged illegal detention by the Immigration Division,
    they are to be sought through standalone
Charter
applications or by way of action, and not as part of a
habeas corpus
application. Proceeding in that fashion will not interfere with the
    proper and expeditious processing of the
habeas corpus
application and will allow the parties to compile a proper and complete
    record and squarely address the legal issues raised by the claim for
Charter
damages.

F.

CONCLUSION

[57]

For these reasons, I would dismiss the appeal.

[58]

If the parties cannot agree on the issue of costs, I would ask the
    respondents to submit brief submissions not exceeding five pages within 15 days
    of the release of this decision and Mr. Brown to file a response not exceeding
    five pages within 10 days thereafter.

Paul Rouleau J.A.

I agree Janet
    Simmons J.A.

I agree David Brown
    J.A.

Released: January 11, 2018


COURT OF APPEAL FOR ONTARIO

CITATION: DAC Group (Holdings) Limited v. Fuego Digital Media
    Inc., 2018 ONCA 43

DATE: 20180122

DOCKET: M48702 & M48703 (M48686)

Benotto J.A. (In Chambers)

BETWEEN

DAC Group (Holdings) Limited

Applicant/Responding Party

and

Fuego Digital Media Inc.

Respondent/Moving Party

Kevin Higgins,
    self-represented, appearing for the Moving Party

Lawrence Theall and Melissa
    Wright, for the Responding Party

Heard: January 18, 2018

REASONS FOR DECISION

[1]

Is an order granting a conditional stay of enforcement of an arbitration
    award final or interlocutory? The resolution of this issue establishes
    jurisdiction.

[2]

For the reasons that follow, I conclude that the order is interlocutory
    and jurisdiction lies with the Divisional Court.

Background

[3]

The parties to this motion attended arbitration concerning the ownership
    of certain software. The arbitrator declared that the respondent (DAC) owned
    the software, provided for injunctive relief, and ordered costs of over $1.5
    million.

[4]

Fuego Digital Media Inc.  (Fuego) commenced an application under s. 46
    of the
Arbitration Act, 1991
S.O. 1991, c.17 to set aside parts of the
    award. The application is scheduled to be heard in April, 2018.

[5]

The application judge stayed the award pending final determination
    saying this:

The Court exercises its discretion under section 50(5) and
    50(8) of the
Arbitration Act
to stay enforcement of the final award
    and cost pending the disposition of Fuegos application on the condition that
    Fuego pay DAC the sum of $25,000 on the 15
th
day of each and every
    month commencing on January 15, 2018 until such time as the application to be
    heard in April 2018 is dealt with.

Discussion

[6]

I have concluded that the order is interlocutory.

[7]

First, the merits of Fuegos application remain to be determined. The
    longstanding dicta in
Hendrickson
v.
Kallio
,

[1932] O.R. 675 applies here. There, Middleton J. A. said, at p. 678:

The interlocutory order from which there is no appeal is an
    order which does not determine the real matter in dispute between the parties
    the very subject matter of the litigation, but only some matter collateral. It
    may be final in the sense that it determines the very question raised by the application,
    but it is interlocutory if the merits of the case remain to be determined.

[8]

Second, the award is under s. 50(5) of the
Arbitration Act
which confirms that a final order has yet to be made. That section provides:

Pending proceeding

(5) If the period for commencing an appeal,
    application to set the award aside or application for a declaration of
    invalidity has not yet elapsed, or if such a proceeding is pending, the court
    may,

(a) enforce the award; or

(b) order, on such conditions as are just, that
    enforcement of the award is stayed until the period has elapsed without such a
    proceeding being commenced, or until the pending proceeding is finally disposed
    of.

[9]

This matter is pending and remains before the court for a final
    determination under s. 50(3) of the
Arbitration Act
.

Disposition

[10]

This
    matter is within the jurisdiction of the Divisional Court. No Notice of Appeal
    has been filed in this court so there is no file to be transferred. The
    companion motions brought on behalf of Fuego to have Mr. Higgins represent the
    company and for a stay are dismissed since this court does not have
    jurisdiction over the appeal. Likewise, I am not prepared to make an order
    regarding time limits with respect to matters in the Divisional Court.

[11]

Fuego
    shall pay DAC its costs of the motion fixed in the amount of $1500 inclusive of
    disbursements and HST.

M.L. Benotto J.A.