COURT OF APPEAL FOR ONTARIO

CITATION: Tamminga v. Tamminga, 2014 ONCA 478

DATE: 20140618

DOCKET: C57444

Juriansz, Tulloch and Strathy JJ.A.

BETWEEN

Karen Tamminga

Plaintiff (Appellant)

and

William Tamminga
,
Tamminga Farms Ltd
.
    and State Farm Mutual Automobile Insurance Company

Defendants (
Respondents
)

John J. Adair, for the appellant

Rahool P. Agarwal and Guy White, for the respondents

Heard: May 2, 2014

On appeal from the order of Justice Lois B. Roberts of
    the Superior Court of Justice, dated July 8, 2013, with reasons reported at
    [2013] O.J. No. 4515.

Strathy J.A.:

Introduction

[1]

An Ontario resident was injured when she fell off a truck in Alberta.
    She commenced an action in the Ontario Superior Court of Justice against the
    owner
and operator of the truck, who lives in Alberta, and a corporate co-owner of
    the truck, which is registered and carries on business in Alberta. She also
    sued her Ontario automobile insurer. The issue is whether her insurance
    contract is a sufficient presumptive connecting factor under
Club Resorts
    Ltd. v. Van Breda
, 2012 SCC 17, [2012] 1 S.C.R. 572 to give this court
    jurisdiction over the non-resident defendants. For the reasons that follow, I
    conclude that it is not and would dismiss this appeal from the motion judges
    order staying the action against those defendants.

The facts

[2]

The appellant, Karen Tamminga, lives in Ontario. She was injured in
    Alberta while a passenger on a truck operated by her relative, the respondent William
    Tamminga. Mr. Tamminga and his company, the respondent Tamminga Farms Inc.,
    owned the truck. Mr. Tamminga is an Alberta resident and Tamminga Farms carries
    on business exclusively in Alberta.

[3]

The appellant had surgery in Alberta after the accident and returned to
    Ontario where she had additional treatments.

[4]

Several months after the accident, the appellant commenced an action against
    the respondents in the Superior Court of Justice. She sued State Farm in the
    same action, claiming uninsured or underinsured coverage under her standard
    automobile policy.
[1]
In response, the respondents brought a motion to stay the proceeding based on absence
    of jurisdiction or, alternatively,
forum non conveniens
. The appellant
    subsequently amended her pleading to include a claim against State Farm for
    statutory accident benefits.

The motion judges reasons

[5]

The motion judge granted the respondents motion and stayed the
    proceeding against them. She concluded the court lacked jurisdiction
simpliciter
over the respondents. The appellants residence in Ontario and the damages she suffered
    in Ontario were not presumptive connecting factors under
Van Breda
. Nor
    was the fact that the respondents might be proper parties to the claim against
    State Farm.

[6]

The motion judge rejected the appellants submission that the arrangement
    she made with Mr. Tamminga to visit him on his farm was a contractual
    connecting factor. Nor was her insurance contract with State Farm a contract
    connected with the dispute between the appellant and the respondents. The
    respondents were not parties to the insurance contract and the appellant had a
    direct right of action against State Farm without having to join the respondents.

[7]

Having found the appellant had not discharged the burden of identifying
    a presumptive connecting factor, the motion judge stayed the action. Although
    not required to address the
forum conveniens

issue, she found
    that Alberta was, in any event, the convenient forum.

[8]

I will begin by summarizing the
Van Breda

decision.

Van Breda

[9]

Van Breda

is the leading authority on jurisdiction over
    non-resident tortfeasors and torts occurring outside Ontario. There, the
    Supreme Court of Canada set out a framework for the assumption of jurisdiction
    in tort cases that was intended to address the need for certainty and
    predictability. It identified a list of connecting factors that would permit
    the court to presumptively assume jurisdiction.

[10]

Justice
    LeBel, who gave the judgment on behalf of the Supreme Court, identified the
    following as presumptive connecting factors in tort cases, at para. 90:

(a) the
    defendant is domiciled or resident in the province;

(b) the
    defendant carries on business in the province;

(c) the tort
    was committed in the province; and

(d) a
    contract connected with the dispute was made in the province.

[11]

LeBel
    J. also identified certain factors that are
not

presumptively
    connecting. The presence of the plaintiff in the jurisdiction is
not
a
    presumptive connecting factor: para. 86. Nor is the fact that damages were
    sustained in the jurisdiction: para. 89. Nor is the combined effect of a number
    of non-connecting factors: para. 93.

[12]

Where
    a presumptive connecting factor is established, the burden shifts to the
    defendant to show the connection between the subject matter of the litigation
    and the forum is weak. Justice LeBel suggested that in the case of a contractual
    connecting factor, the presumption of jurisdiction can be rebutted by showing
    that the contract has little or nothing to do with the subject matter of the
    litigation: para. 96.

[13]

If
    jurisdiction is established, the inquiry turns to
forum conveniens
.

[14]

Justice
    LeBel noted that the list of presumptive connecting factors is not necessarily
    complete. Over time, new factors may be identified that would give presumptive
    jurisdiction. In identifying such factors, the court will look to the degree of
    similarity between the connecting factor and the established factors, and the
    treatment of the proposed connecting factor in the case law, in statute law and
    in private international law and other legal systems: para. 91. The new
    presumptive connecting factor must point to a relationship between the subject
    matter of the litigation and the forum such that it would be reasonable to
    expect that the defendant would be called to answer legal proceedings in that
    forum: para. 92. The strength of the relationship can be assessed using the
    values of order, fairness and comity.

[15]

Justice
    LeBel summarized the new approach at para. 100 as follows:

To recap, to meet the common law
    real and substantial connection test, the party arguing that the court should
    assume jurisdiction has the burden of identifying a presumptive connecting
    factor that links the subject matter of the litigation to the forum. In these
    reasons, I have listed some presumptive connecting factors for tort claims.
    This list is not exhaustive, however, and courts may, over time, identify
    additional presumptive factors. The presumption of jurisdiction that arises
    where a recognized presumptive connecting factor - whether listed or new -
    exists is not irrebuttable. The burden of rebutting it rests on the party challenging
    the assumption of jurisdiction. If the court concludes that it lacks
    jurisdiction because none of the presumptive connecting factors exist or
    because the presumption of jurisdiction that flows from one of those factors
    has been rebutted, it must dismiss or stay the action, subject to the possible
    application of the forum of necessity doctrine, which I need not address in
    these reasons. If jurisdiction is established, the claim may proceed, subject
    to the court's discretion to stay the proceedings on the basis of the doctrine
    of
forum non conveniens
.

[16]

The
    facts of
Van Breda

give some guidance about the role of a
    contract connected with the dispute as a connecting factor. Ms. Van Breda
    sustained catastrophic injuries while at a resort in Cuba, allegedly as a
    result of the negligence of the resort operator, Club Resorts. Although she and
    her spouse were Ontario residents, they moved to Alberta after the accident and
    then to British Columbia, where most of her damages and pain and suffering
    occurred. Club Resorts was incorporated in the Cayman Islands. There was little
    evidence of factual connections to Ontario and LeBel J. did not accept that
    Club Resorts advertising in Ontario gave rise to a connection.

[17]

However,
    Ms. Van Bredas spouse, Mr. Berg, was a professional squash player and had a
    contractual relationship with a travel agency that recruited squash and tennis
    professionals for Club Resorts. Mr. Berg was to give lessons to guests at the
    resort in exchange for free room and board for himself and Ms. Van Breda. Thus,
    LeBel J. found at para. 116 that Ontario had jurisdiction because [a] contract
    was entered into in Ontario and a relationship was thus created in Ontario
    between Mr. Berg, Club Resorts and Ms. Van Breda, who was brought within the
    scope of this relationship by the terms of the contract.  He added at para.
    117 that [T]he events that gave rise to the claim flowed from the relationship
    created by the contract. The contract was a presumptive connecting factor that
    entitled the court to assume jurisdiction over the out-of-province defendant.

The parties positions on appeal

[18]

The
    appellant acknowledges that, absent her insurance contract with State Farm,
Van

Breda

does not support jurisdiction in this case. She does not suggest
    that there is any basis for the recognition of a new presumptive connecting
    factor.

[19]

The
    appellant submits the motion judge erred in finding that State Farms insurance
    policy was not a contract connected with the dispute and thus a presumptive
    connecting factor under
Van Breda
.
She submits that the
    threshold to establish a presumptive connecting factor is a low one. Relying on
    the facts of
Van Breda

itself, she submits that the defendant need
    not be a party to the contract. Moreover, the strength of the connection between
    the contract and the dispute is a factor to be considered at the second stage
    of the
Van Breda
analysis, when the defendant may rebut the
    connection, and not the first stage. She says that, having established the
    presumptive connecting factor, the onus was on the respondents to show that the
    connection was a weak one. The respondents failed to discharge their burden and
    the action should have been permitted to proceed in Ontario.

[20]

The
    respondents submit the motion judge correctly found that the appellants
    insurance contract was not connected to the dispute so as to bring them under
    Ontarios jurisdiction. Unlike
Van Breda
, where the plaintiffs injury
    occurred in the context of performance of the contract, the insurance contract
    in this case had nothing to do with the events giving rise to the tort claim.
    The insurance contract only became pertinent
after
the tort had
    occurred. The appellant could pursue her direct right of action against State
    Farm in Ontario without any need to involve the respondents. Even if the
    contract were somehow connected to the tort claim, the speculative and
    contingent nature of the claim against State Farm would make it a weak and
    hypothetical connection.

Analysis

[21]

This
    court considered the contractual connecting factor in
Export Packers Co. v.
    SPI International Transportation,
2012 ONCA 481. The plaintiff, a dealer in
    food products, had purchased a shipment of pork in Quebec and stored it
    temporarily in a warehouse used by the vendor and operated by a Quebec company
    called EDN. The plaintiff then sold the pork to a Florida company and contracted
    with the defendant, SPI, to arrange for the transportation of the pork from EDNs
    warehouse to Florida. SPI, in turn, engaged an Ontario company to actually
    truck the cargo. Unfortunately, EDN mistakenly released the cargo to a
    fraudster, who absconded with it.

[22]

The
    plaintiff sued SPI in Ontario and SPI in turn brought third party proceedings
    against EDN, asserting that it negligently released the cargo to the fraudster
    without obtaining proper identification.

[23]

This
    court affirmed the motion judges dismissal of the claim against EDN on the
    basis of lack of jurisdiction. The appellant had argued that there were several
    contracts connected with the dispute. This court noted, however, that the
    contracts in question had no connection with the proposed third party:

The three contracts relied upon by
    the appellant relate to arrangements between the owner, the broker and the
    proposed carrier of the cargo. They have no connection to EDN other than they
    anticipate that the cargo would be picked up at EDN's warehouse in Quebec. The
    dispute in issue between SPI and EDN relates solely to the alleged negligence
    of EDN in releasing the cargo. The contracts relied upon do not address the
    issue of release of the cargo by EDN as storer. That dispute will be resolved
    according to the laws of Quebec. (para. 14)

[24]

This
    court concluded, at para. 16, that there was no contract sufficiently
    connected to the dispute to raise a presumption of a real and substantial
    connection to Ontario. Moreover, the contract between EDN and its customer, the
    company that had sold the pork to the plaintiff, was expressly subject to the
    law and jurisdiction of Quebec.

[25]

In
    comparison with
Export Packers Co.
, the contract in the present case is
    even further removed from the events giving rise to the dispute. An automobile
    insurance contract anticipates accidents generally, but the tortfeasor will
    not be identifiable in advance. Unlike the contract in
Van Breda
,
    there is nothing that connects the appellants insurance contract to the
    respondents. They are not parties to or beneficiaries of the contract. The
    appellant was not visiting the farm in Alberta for any reason related to the
    contract. The connection between the insurance policy and the dispute only
    arises in the aftermath of the tort and its application is conditional on the
    outcome of the appellants claim against the tortfeasors.

[26]

In
    a word, there is no nexus between the insurance contract and the respondents.

[27]

This
    conclusion is consistent with the decision of this court in
Gajraj v.
    DeBernardo
(2002), 60 O.R. (3d) 68 (C.A.), one of the
Muscutt

companion
    cases. There, Sharpe J.A., writing for the court, held that the inclusion of a
    claim against the plaintiffs automobile insurer did not serve to bootstrap
    jurisdiction over the non-resident defendants:

In my view, on the facts of this case, the claim against
    Allstate does not fortify the case for assuming jurisdiction against the New
    York defendants. At this stage of the proceedings, the claim against Allstate
    is entirely speculative in nature. Counsel for the plaintiffs conceded that
    joining Allstate was a purely precautionary measure and that the plaintiffs do
    not at present know whether or not the New York defendants have adequate
    insurance coverage. It seems to me that this situation is very different from
    the situation in
McNichol Estate v. Woldnik

(2001), 150 O.A.C. 68
.
    In
McNichol
, the core of the plaintiff's claim was against the domestic
    defendants and adding the foreign defendant was necessary to avoid a
    multiplicity of proceedings. By contrast, here the core of the claim is against
    the New York defendants and the claim against the Ontario defendant is entirely
    secondary and contingent. Jurisdiction over claims against extra-provincial
    defendants should not be bootstrapped by such a secondary and contingent claim
    against a provincial defendant. (para. 20)

[28]

It
    is also consistent with the prevailing line of authority in the Ontario Superior
    Court of Justice. In three recent cases of Ontario residents involved in

automobile accidents in the state of New York, judges
    of that court have held that the plaintiffs insurance policy is not a
    contract connected with the dispute:
Misyura v. Walton
, 2012 ONSC 5397;

Paraie v. Cangemi
,
2012 ONSC 6341;
Mitchell v. Jeckovich
,
2013 ONSC 7494
.
In both
Misyura
and
Paraie,
the court
    was influenced by the speculative and contingent nature of claims for uninsured
    and underinsured coverage, as discussed in
Gajraj
.

[29]

An
    exception is
Cesario v. Gondek
, 2012 ONSC 4563, relied upon by the
    appellant, but distinguished by the motion judge on the basis that the
    plaintiffs had been in two accidents, there were joint tortfeasors allegedly
    responsible for the plaintiffs damages and those damages were considered
    inseparable. She noted that the presence of the plaintiffs insurer in Ontario
    was not a factor that entered into the determination. The case was clearly
    distinguishable, for those reasons.

[30]

I
    conclude, therefore, that the motion judge correctly stayed the action against
    the respondents.

[31]

Both
    parties also made submissions on the issue of
forum conveniens
. As I
    would dismiss the appeal on the jurisdictional ground, it is unnecessary to
    deal with this issue.

Disposition

[32]

For
    these reasons, I would dismiss the appeal. The respondents are entitled to
    their costs fixed at $7500, inclusive of disbursements and all applicable
    taxes.

Released: June 18, 2014 (M.T.)                    G.R.
    Strathy J.A.

I
    agree R.G. Juriansz J.A.

I
    agree M. Tulloch J.A.

[1]
The respondents have not provided any information concerning their insurance
    coverage, if any. Accordingly, it is uncertain whether State Farm will be
    required to provide uninsured or underinsured coverage.


COURT OF APPEAL FOR ONTARIO

CITATION: Uride Management Services Limited v. Reist, 2014
    ONCA 456 DATE: 20140609

DOCKET: C58142

Laskin, Rouleau and Epstein JJ.A.

BETWEEN

Uride Management Services Limited, Sidron
    Investments Corp. and Gordelli Management Ltd.

Plaintiffs (Respondents)

and

Christine Elizabeth Reist

Defendant (Appellant)

Ron Reist, acting as agent for the appellant

W. Deley, for the respondents

Heard: June 5, 2014

On appeal from the judgment of Justice Sloan of the Superior
    Court of Justice, dated December 18, 2013.

APPEAL BOOK ENDORSEMENT

[1]

On consent, the appeal is dismissed on condition that the order for
    possession not be enforced until July 1, 2014.  In all the circumstances, the
    respondents shall have costs of $7500, inclusive of disbursements and
    applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: White v. Gicas, 2014 ONCA 490

DATE: 20140625

DOCKET: C56898

Blair, Watt and Pepall JJ.A.

In the Estate
    of Constantine Gicas, deceased

BETWEEN

Vivi
    White (as Estate Trustee with a Will of the Estate of

Constantine
    Gicas, and in her personal capacity) and Elena

Floros
    (in her personal capacity)

Applicants (Appellants)

and

John Gicas

Respondent

Sean Dewart and Margaret E. Rintoul, counsel for the
    appellants

Reginald M. McLean and Patrick J. Morrissey, counsel for
    the respondent

Heard: January 24, 2014

On appeal from the judgment of Justice J.M. Spence of the
    Superior Court of Justice, dated March 13, 2013.

Watt J.A.:

[1]

Two ingredients combine to create a trust. The first  declaration of a
    trust  requires three certainties: certainty of intention; certainty of
    subject-matter; and certainty of objects. The second  constitution of the
    trust  requires transfer of title to the trust property to the trustee.

[2]

Vivi White and Elena Floros are nieces of Constantine Gicas, secondary
    beneficiaries of the Constantine Gicas Family Trust, and remainder
    beneficiaries under the will of Constantine Gicas. Vivi White is also the
    Estate Trustee with a Will of the Estate of Constantine Gicas.

[3]

On an application by Ms. White, as Estate Trustee, and by Ms. White and
    Ms. Floros as remainder beneficiaries under Constantine Gicas will, a judge of
    the Superior Court of Justice concluded that James Gicas had validly created
    the Constantine Gicas Family Trust. The primary beneficiary of that Trust,
    Constantine Gicas, died on September 19, 2007.

[4]

Vivi White and Elena Floros appeal the decision of the application judge
    declaring valid the Constantine Gicas Family Trust. They say that the Trust was
    neither validly declared nor properly constituted. If their main appeal (which
    I will refer to here as the substantive appeal) fails, they seek leave to
    appeal the costs awarded against them personally by the application judge.

[5]

These reasons explain why I have concluded that the application judge
    was correct in finding that the Constantine Gicas Family Trust had been validly
    created and why I would dismiss the appeal from that finding. These reasons
    explain further why I would grant the appellants leave to appeal the costs
    award made against them personally, set aside that award, and order that the
    costs awarded at trial and on this appeal be paid out of the Estate.

THE BACKGROUND FACTS

[6]

A brief sketch of the principals, as well as their relationships, will
    provide an adequate backdrop for the discussions that follow.

The Gicas Family

[7]

James Gicas, the family patriarch, died in 2005. He had three children:
    John, Cynthia and Constantine, who was also known as Dino.

[8]

Cynthia Gicas married Harry Floros. The couple had two children: Elena
    (Floros) and Vivi (White). Cynthia died in 1994.

[9]

Constantine died in 2007. He lived with Marlene Popov. Constantine and
    Marlene had no children.

[10]

John
    Gicas is the only surviving child of James Gicas. He has no relationship with
    his nieces, Elena and Vivi.

The Family Companies

[11]

James
    Gicas and members of his family had interests in several companies. Shares in
    some of those companies were to become the principal assets in the Constantine
    Gicas Family Trust.

[12]

Dutch
    Masters Doughnuts Limited, a Gicas family company, was sold between 1992 and
    1994. The proceeds were divided equally among James children  John, Cynthia
    (and her husband, Harry Floros) and Constantine. Each reinvested their share of
    the proceeds in a new company, Cliff Investments, incorporated on March 2,
    1995. The shareholdings of John and Constantine were equal, those of Cynthia
    somewhat less. Cynthia and the other siblings held the shares through a holding
    company. Cynthia died on March 5, 1994. Her shares were then held by her
    children, Vivi White and Elena Floros, and Cynthias husband, Harry.

[13]

Cliff
    Investments is an umbrella corporation that appears to own a commercial
    property on Overlea Boulevard in Toronto as trustee for the three holding
    companies. Income from the property is allocated among the holding companies as
    rental income, not as dividends declared by Cliff Investments. The record does
    not disclose the existence of any trust or joint venture agreement.

[14]

466369
    Ontario Limited (466) was incorporated on January 7, 1981. Its principal asset
    is a mall located on Warden Avenue in Toronto. James and each of his children
    held an equivalent number of shares in the company. On October 31, 1991 the
    share register records a transfer of Constantines shares to John, Cynthia and
    David Black, a solicitor, as joint tenants. Neither of Constantines share
    certificates are endorsed to reflect the transfer described in the minute book.
    The evidence does not disclose any cancellation of the share certificates.

[15]

Milissa
    Holdings was incorporated in 1973 to acquire its principal asset, some valuable
    farmland near Stouffville Ontario. Starting in early 1998, Constantine was one
    of the three officers of the company. The others included Constantines
    brother, John, and his sister, Cynthia.

[16]

On
    incorporation, the shareholders of Milissa Holdings were James Gicas (75
    shares) and Cynthia/Harry (25 shares). On October 7, 1991 a signed directors
    resolution transferred 33.34 of James shares to Constantine. There were three
    other (purported) transfers: an unsigned directors resolution of the same date
    transferring a further 33.34 of James shares to John Gicas, Cynthia Floros
    and David Black, as joint tenants; a signed resolution of March 5, 1994
    transferring these shares to John Gicas, estate of Cynthia Floros and David
    Black, as joint tenants; and a transfer of 8.32 shares by James to the
    appellants on June 10, 1997. Rental income from Milissa is distributed equally
    among Constantine, Cynthia/Harry and John.

[17]

Constantine
    incorporated Cynthcon as a holding company on February 3, 1995. A single share
    was issued to the Constantine Gicas Family Trust. The principal asset of
    Cynthcon is about one-third of the equity in Cliff Investments.

The Memorandum of Agreement

[18]

On
    October 31, 1991 James Gicas signed a Memorandum of Agreement recording the
    previous establishment of the Constantine Gicas Family Trust. James signed as
    the settlor. John Gicas, Cynthia Floros and David Bruce Black signed as
    trustees. The primary beneficiaries were Constantine Gicas and his children,
    grandchildren or other issue. The secondary beneficiaries were John Gicas,
    Cynthia Floros, their children, grandchildren or other issue or a registered
    charity.

[19]

The
    trustees acknowledged previous receipt of several assets, all of them common
    shares in various companies including Milissa Holdings. The Trust is
    discretionary with no beneficiary entitled to receive any distribution from the
    Trust Fund. The trustees agreed to keep the necessary books, records and
    accounts to reflect the transactions of the Trust.

The Declaration of Constantine
    Gicas

[20]

John
    Gicas produced a Declaration apparently witnessed by the solicitor Black on the
    same day as the Trust Agreement. In the Declaration, Constantine says that
    shares in various Gicas family companies had been informally held in trust for
    him. He recites that it has been James Gicas intention that all shares in the
    family companies be held in trust for him (Constantine), rather than through
    direct ownership. Specific mention is made of 50 shares in 466 inadvertently
    issued in Constantines name rather than in trust for him. At James request,
    Constantine purports to transfer the shares from himself to the Constantine
    Gicas Family Trust.

[21]

Constantines
    shares in 466 had been issued to him in 1981, about ten years before the
    Memorandum of Agreement was signed. His shares were transferred to John Gicas,
    Cynthia Floros and David Black, as joint tenants.

The Wills of James Gicas

[22]

James
    Gicas executed a will on June 13, 1994 over two and one-half years after the
    Memorandum of Agreement. James appointed his sons, John and Constantine, as his
    executors and trustees, and made specific property bequests to John and to the
    appellants. The residue of the Estate was to be divided equally among John,
    Constantine and the appellants.

[23]

Neither
    this will nor a codicil executed about nine months later, both of which were
    witnessed by solicitor Black, contain any reference to or mention of the
    Constantine Gicas Family Trust.

[24]

James
    Gicas executed a further will on February 17, 2005. He appointed John Gicas as
    the sole executor and trustee unless John predeceased him or became unable or
    unwilling to serve as executor in which case Constantine was to become the
    executor. In this will, the residue of his Estate was to be divided equally
    between John and Constantine. The will was witnessed by a different solicitor.

[25]

The
    will of James Gicas executed on February 17, 2005 contains no reference to the
    Constantine Gicas Family Trust.

The Will of Constantine Gicas

[26]

Constantine
    Gicas executed a will on October 10, 2006. The principal beneficiaries were
    Marlene Popov, a woman with whom Constantine Gicas was living when he died, and
    his nieces, the appellants. Among other bequests, Constantine Gicas transferred
    his interest in Cliff Investments, as well as his shares in 466 and Milissa
    Holdings, to his beneficiaries.

[27]

The
    will of Constantine Gicas contains no reference to the Constantine Gicas Family
    Trust.

The Estate Litigation

[28]

Litigation
    began on two fronts over the Estate of Constantine Gigas. His brother, John,
    and his (Johns) children, filed a Notice of Objection to prevent the issuance
    of a Certificate of Appointment of an Estate Trustee with a Will. Marlene Popov
    sought additional benefits from the Estate.

The Settlement

[29]

Mediation
    resulted in a settlement of the estate litigation. When the settlement was
    completed, Marlene Popovs litigation against the Estate would be dismissed
    without costs and the Notice of Objection filed by John Gicas and his children
    would be vacated. The value Marlene Popov received under the settlement
    exceeded her entitlement under the will, if the shares in the companies were
    assets of the Estate (in other words, if there were a trust), by over $800,000.

The Trust and Taxes

[30]

From
    its alleged creation, the Constantine Gicas Family Trust never filed a tax
    return. Constantine Gicas paid no tax on the disposition of his shares of 466
    or of Milissa Holdings to the trust. His T-I return recorded Constantine Gicas
    shares in 466, Cynthcon and Milissa Holdings as assets of his Estate. Before he
    died, Constantine Gicas received rental income directly from Milissa, and
    dividend income from 466. Cynthcon was allocated one-third of the income
    generated through Cliff Investments. Constantine Gicas received this money
    directly. Cynthcon reported receipt of the money to tax authorities. Cynthcon
    paid dividends directly to Constantine Gicas.

The Decision of the Application Judge

[31]

The
    application judge was satisfied that the Memorandum of Agreement met the
    requirements for declaration of a trust: the certainties of intention,
    subject-matter and object.

[32]

The
    application judge observed that, on its face, the Memorandum disclosed the
    intention of the settlor to create a trust for the benefit of the primary
    beneficiary, his son Constantine, and the secondary beneficiaries, his other
    two children.

[33]

The
    application judge was satisfied that the Memorandum clearly identified the
    subject-matter of the Trust: shares in listed family companies. Even if Milissa
    Holdings shares were beyond the power of the settlor to transfer to the Trust,
    Dino acknowledged that Milissa was an asset of the Trust. His erroneous
    reference to the number of shares in 466 to be transferred was not a problem.

[34]

The
    application judge concluded that paragraph 2 of the Memorandum established
    certainty of objects by naming primary and secondary beneficiaries.

[35]

The
    application judge was further satisfied that the Trust had been properly
    constituted by the transfer of its subject-matter. The shares of Milissa are
    expressly included in article 1 of the Memorandum. The Declaration of
    Constantine Gicas, executed contemporaneously with the Memorandum, transferred
all
his shares in 466 to the Trust. A resolution of Cynthcon, signed by Constantine
    Gicas, issued a share of Cynthcon to the Trust. The shareholder loans arise
    from income paid to shareholders of 466. And the shareholder of 466 is the
    Trust.

THE SUBSTANTIVE APPEAL

[36]

On
    the substantive appeal, the appellants have raised two issues. The second issue
    is only reached in the event of an affirmative answer to the first. The issues
    may be cast as two questions:

i.

Was the Constantine Gicas Family Trust validly created?

ii.

Were the shares of 466 and Cynthcon assets of the Trust?

Issue #1: Was the Constantine Gicas Family Trust Validly
    Created?

[37]

For
    a trust to be validly created, it must be properly declared and constituted.
    Declaration of a trust requires certainty of intention, subject-matter, and
    objects. Constitution of a trust requires transfer of title to the trust
    property to the trustee. The parties divide on whether the Constantine Gicas
    Family Trust was validly created.

The Positions of the Parties

[38]

The
    appellants take the position that the Constantine Gicas Family Trust was
    neither validly declared nor validly constituted.

[39]

As
    far as declaration of a trust is concerned, Mr. Dewart submits for the
    appellants that the application judge erred in concluding that the three
    certainties necessary for a valid declaration of trust had been established.
    The conclusions were flawed by a combination of factors including misapprehensions
    of the evidence, a preference of form over substance, and a failure to look
    beyond the Memorandum of Agreement to consider all the circumstances before
    reaching conclusions about any of the certainties.

[40]

With
    respect to the declaration of a trust, Mr. McLean contends for the respondent
    that the application judge considered not only the trust document, but also the
    surrounding circumstances in reaching his conclusion that the three certainties
    essential to a valid declaration of trust had been established. The application
    judge did not misapprehend any evidence in reaching his conclusion or fall into
    any legal errors.

[41]

Mr.
    McLean says the purpose underlying the creation of the trust was clear:
    Constantine Gicas was behaving irrationally. The trust was necessary to
    preserve his equity and to ensure that he and his siblings shared equally. The
    assets of the trust were defined in the Memorandum which also governed
    accretions. The objects were identified, the intention clear and certain.

[42]

On
    the issue of constitution of the trust, Mr. Dewart says that even if there were
    a valid declaration of trust, no trust was created because the trust was not
    properly constituted.

[43]

Mr.
    Dewart points out that the shares that were the assets of trust were either not
    owned by the settlor, or not properly transferred to the trust. A transfer of
    shares to John Gicas, Cynthia Floros or her estate, and the solicitor Black,
    as joint tenants, is not a proper transfer of the assets to the trustees.

[44]

Further,
    Mr. Dewart contends, several other factors demonstrate that the trust was never
    properly constituted. The deceaseds will, prepared by the same law firm as the
    Memorandum of Agreement, makes no mention of the trust and provides for
    disposition of the shares of Constantine Gicas in a manner that would only be
    possible if he was the legal owner of the shares. The documents required to
    transfer the assets to the trust were not properly executed. The settlement
    with Marlene Popov far exceeded her entitlement under the will of Constantine
    Gicas if the trust had been validly created. The trust filed no tax returns.
    The trustees never met. Income was distributed directly to Constantine Gicas,
    not through the trust.

[45]

With
    respect to the constitution of the trust, Mr. McLean says for the respondent
    that what happened after the trust was declared amounted to proper constitution
    of the trust. In the result, he urges, the Constantine Gicas Family Trust was
    validly created.

[46]

Mr.
    McLean regards the failure of the trust to file tax returns and the minor
    inconsistencies in the corporate documentation, such as required signatures on
    share transfers, as matters of form, not of substance. He contends that the
    trust property was properly alienated to be held by the trustees for the benefit
    of the designated beneficiaries.

Discussion

[47]

I
    would not give effect to this ground of appeal. As I will explain, I am
    satisfied that the application judge correctly concluded that the Memorandum of
    Agreement satisfied not only the three certainties required for the valid
    declaration of a trust, but also established that the Trust was properly
    constituted.

[48]

On
    its face, the Memorandum of Agreement satisfies the three certainties required
    for a valid declaration of a trust.

[49]

As
    to certainty of intention, the preamble of the document entitled Constantine
    Gicas Family Trust records the prior establishment of the Trust and the
    agreement of the parties, the settlor and trustees, to confirm and clarify the
    terms and conditions of the Trust. The intention of the settlor to create the
    Trust, as well of the trustees to administer it, could scarcely be plainer.

[50]

Second,
    the Memorandum of Agreement discloses certainty of subject-matter. The assets
    of the Trust  shares in various companies  are specifically described in
    article 1 of the Memorandum. The article expressly permits expansion of the
    assets to include any further sums which they [the trustees] shall receive
    from time to time and any accretions or additions thereto.

[51]

Third,
    the Memorandum of Agreement satisfies the certainty of objects required as it
    identifies the objects of the Trust. The primary beneficiaries are Constantine
    Gicas and anyone who is a child, grandchild or other issue of Constantine
    Gicas. The secondary beneficiaries are John Gicas, Cynthia Floros and their
    children, grandchildren or other issue, or a registered charity. That the
    subject-matter of the Trust does not have to be distributed in equal portions,
    rather is left to the discretion of the trustees, is of no moment.

[52]

Likewise,
    on its face, the Memorandum of Agreement establishes constitution of the Trust.
    The trustees acknowledge that they have received and are currently holding as
    assets of the Trust the assets listed in article 1 of the Memorandum. They also
    acknowledge that any future sums they receive and any accretions or additions
    are assets of the Trust and constitute the Trust Fund.

Issue #2: Were the Shares of 466 and Cynthcon Assets of the
    Trust?

[53]

The
    Memorandum of Agreement does not refer to any shares of 466 or of Cynthcon as
    assets of the Trust. The parties take different views of the effect of this
    omission.

The Positions of the Parties

[54]

For
    the appellants, Mr. Dewart says that the failure to list the shares of 466 and
    Cynthcon as assets of the Trust means that they are not included as part of the
    Trust Fund as defined in article 1 of the Memorandum. It follows that these
    shares are assets of the Estate of Constantine Gicas.

[55]

For
    the respondent, Mr. McLean takes a contrary position. He submits that in his
    contemporaneous Declaration, Constantine Gicas transferred all his shares in
    466 to the Trust. As for Cynthcon, Constantine Gicas, as the sole director of
    Cynthcon, signed a resolution issuing one share to the Trust. It follows, Mr.
    McLean says, that the shares of 466 and Cynthcon form part of the Trust Fund
    which permits accretions and additions.

Discussion

[56]

I
    would not give effect to this claim of error. In my respectful view, the
    application judge reached the correct conclusion and made no error in the path
    he followed to get there.

[57]

No
    issue arises concerning the assets identified in the Memorandum as having been
    transferred to the Trust by the settlor, among them shares in Milissa. The
    omission of any reference to shares in 466 and Cynthcon, at first light at
    least, would appear to support their exclusion from the assets of the Trust.

[58]

But
    there is more. As the application judge noted, in a contemporaneous
    Declaration, Constantine Gicas transferred
all
his shares in 466 to
    the Trust. That Constantine may have been mistaken about the precise number of
    shares he owned is of no moment. Read as a whole, the Declaration makes it
    clear that he is transferring the shares he held in 466 to the Trust.

[59]

Further,
    in connection with Cynthcon, Constantine Gicas issued a share of Cynthcon to
    the Trust as its sole director, by resolution. This made that share an asset of
    the Trust.

[60]

The
    Memorandum of Agreement does not limit the assets of the Trust to those
    specific shares listed as part of article 1. The article expressly permits further
    sums that the trustees may receive from time to time, as well as accretions
    and additions. The additional assets need not be contributed by the settlor.

[61]

In
    their original Application, the appellants also sought an order that all
    shareholder loans due to the Estate from 466 and Cynthcon vest in the
    appellants personally as the remainder beneficiaries of the Estate of
    Constantine Gicas.

[62]

As
    the application judge correctly decided, the shareholder loans arise from
    income attributed to a shareholder but not paid out. The shareholder is the Trust,
    not the Estate.

[63]

For
    these reasons, I would dismiss the appeal on the substantive issues raised by
    the appellants.

THE COSTS APPEAL

[64]

On
    the costs appeal, the issue is whether the application was necessary for the proper
    administration of the Estate of Constantine Gicas and thus whether the costs
    should properly be borne by the Estate and not the appellants personally.

[65]

The
    appellants seek leave to appeal the costs order made against them by the
    application judge. They recognize that in order to obtain leave to appeal a
    costs order they must demonstrate strong grounds upon which this court could
    find that the application judge erred in the exercise of his discretion:
Sawdon Estate v. Sawdon
, 2014 ONCA 101, at para. 77. Appellate courts
    should set aside a costs award only if the judge at first instance has made an
    error in principle or if the costs award is plainly wrong:
Hamilton v. Open
    Window Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27; and
Sawdon
    Estate
, at para. 77.

The Reasons of the Application
    Judge

[66]

The
    costs endorsement of the application judge is in these terms:

Costs to the respondent on the partial indemnity scale of $20
    000 for fees, plus HST, plus disbursements and HST as per the Bill of Costs,
    payable within 30 days.

The disbursements claimed, including HST, were
    $2,393.25.

Discussion

[67]

I
    would grant leave to appeal the costs order made against the appellants
    personally. I have reached this conclusion for two reasons.

[68]

First,
    the application judge gave no reasons for his costs award. The absence of
    reasons precludes meaningful appellate review and leaves the appellants without
    an explanation as to why they were ordered to pay costs personally.

[69]

Second,
    and related to the absence of reasons, we cannot determine whether the
    application judge applied the proper approach to an award of costs in estate
    litigation.

[70]

The
    modern approach to the award of costs in estate litigation is exemplified by
    the decision of this court in
McDougald Estate v. Gooderham
(2005),
    255 D.L.R. (4
th
) 435 (Ont. C.A.), at paras. 78-80. The approach
    begins from a premise that estate litigation operates subject to the general
    civil litigation costs regime except in those limited cases in which public
    policy considerations mandate a different result:
Sawdon Estate
, at
    para. 84.

[71]

In
    estate litigation, there are two predominant public policy considerations at
    play:

i.

The need to give effect to valid wills that reflect the intention of
    competent testators; and

ii.

The need to ensure that estates are properly administered.

In practical terms, the demise of the testator leaves
    recourse to the courts as the only viable method of rectifying any difficulties
    or ambiguities created by the testator and of ensuring that the estate is
    properly administered:
Sawdon Estate
, at para. 85.

[72]

It
    logically follows that where the problems giving rise to the litigation were
    caused by the testator, it is appropriate that the testator, through his or her
    estate, bear reasonable costs associated with their resolution. Indeed, to
    saddle the estate trustees personally with legal costs in such situations might
    well discourage them from initiating reasonably necessary legal proceedings to
    ensure due administration of the estate:
Sawdon Estate
, at para. 86.

[73]

In
    the present case, the problems that underpinned the original application
    brought by the Estate Trustee were created by the conduct of the testator,
    Constantine Gicas. It was unclear from what occurred whether certain assets
    were governed by the Trust or fell outside it. It fell to Ms. White, as the
    Estate Trustee, to administer the Estate of Constantine Gicas. To do so she
    needed to know the extent of the assets with which she was dealing. Constantine
    Gicas could provide no assistance on this issue. Ms. Whites recourse to the
    courts was a reasonably necessary step for her to take as Estate Trustee. The
    Estate should be responsible for her costs of the application and of the
    appeal.

CONCLUSION

[74]

For
    these reasons, I would allow the appeal in part. I would amend paragraph 2 of
    the Judgment below to provide that the costs award made against the Estate
    Trustee personally on the application be paid out of the Estate of Constantine
    Gicas. The respondent is entitled to his costs of the appeal, which the parties
    agree should be fixed at $17,500.00 inclusive of disbursements and all
    applicable taxes. Those costs should also be payable out of the Estate of
    Constantine Gicas.

Released: June 25, 2014 (R.A.B.)                           David
    Watt J.A.

I
    agree R.A. Blair J.A.

I
    agree S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Whiteside v. Celestica International Inc., 2014
    ONCA 499

DATE: 20140626

DOCKET: C56676

Blair, Watt and Lauwers JJ.A.

BETWEEN

Jim Whiteside
, Jason Wright, Steve Wilson
    and
3077187 Canada Ltd.

Plaintiffs (Appellants)

and

Celestica International Inc.

Defendants (Respondents)

Peter N. Mantas, for the appellants

R. Seumas M. Woods and Dustin Kenall, for the respondent

Heard: January 20, 2014

COSTS ENDORSEMENT

[1]

On May 23, 2014, the Court released it reasons in this matter, allowing
    the appeal and directing a new trial on certain issues. On the issue of costs,
    the Court provided that, if the parties were unable to agree, they could make
    brief written submissions. They could not agree and have done so. This is our
    decision as to costs, having reviewed their brief written submissions.

[2]

The appellants argue that, although a new trial was ordered on certain
    issues, they were nonetheless substantially successful on the appeal. They
    claim a total of $52,994.52 on a partial indemnity basis, inclusive of taxes
    and disbursements. The respondent argues that the appellants were not
    substantially successful, that success was divided, and that the appellants
    should be awarded an all-inclusive sum of $25,000 or about one-half of their
    claim. The respondent submits, in any event, that the amount claimed by the
    appellants is excessive having regard to the nature of the appeal.

[3]

We agree with the appellants that they were substantially successful on
    the appeal. The Court ruled in their favour (a) in concluding that the total
    NEC Project EBIAT was to be included in the calculation of the Total EBIAT, and
    therefore credited towards the Earn-Out Payments, and (b) in setting aside the
    trial judges finding that even if the total NEC Project EBIAT were included in
    the calculation of the Total EBIAT, the thresholds necessary to trigger the Earn-Out
    Payments had not been met. The calculations flowing from those conclusions were
    referred to a new trial, but the two issues on which the appellants succeeded
    were what was necessary to cut the Gordian knot for the purposes of those
    calculations.

[4]

We are satisfied that some reduction is in order to recognize the
    divided success, but not to the extent sought by the respondent.

[5]

Nor are we persuaded that the amount claimed by the appellants is unreasonable.
    This was a complex commercial case involving considerable preparation. The
    amounts in issue are significant for the appellants.

[6]

We order that the appellants are entitled to their costs of the appeal,
    fixed in the amount of $45,000 all-inclusive. It is an amount that is fair and
    reasonable for the respondent to have expected to pay:
Boucher v. Public
    Accountants Council (Ontario)
(2004), 71 O.R (3d) 291.

[7]

Both parties agree that the costs of the first trial should be left to
    the discretion of the judge hearing the new trial. Accordingly, the trial
    judges decision on costs dated February 25, 2014 is set aside and those costs
    are remitted to the judge hearing the new trial for determination.

R.A. Blair J.A.

David Watt J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Winter v. Royal Trust Company, 2014 ONCA 473

DATE: 20140616

DOCKET: C57430

Laskin, Rouleau and Epstein JJ.A.

BETWEEN

Kerry J.D. Winter,
    Jeffrey A. Barkin, Paul T. Barkin and Julia Winter, personal representative of
    Dana C. Winter, deceased

Plaintiffs (Appellants)

and

The Royal Trust Company and Royal Trust
    Corporation of Canada

Defendants (Respondents)

Gregory M. Sidlofsky, for the appellant Jeffrey Barkin

Justin R. Fogarty and Pavle Masic, for the appellants
    Kerry J.D. Winter, Paul T. Barkin and Julia Winter

Laura K. Fric and Gillian S.G. Scott, for the respondents

Heard: June 6, 2014

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated June 26, 2013.

ENDORSEMENT

[1]

The appellants argue three grounds of appeal:

(1)

the motion judge erred in his
    interpretation of the option agreement;

(2)

the motion judge erred in holding
    that Royal Trust could not be liable for breach of fiduciary duty or negligence
    on the grounds that; and

(a)

Royal Trust failed to draft or negotiate a better option agreement, and

(b)

by its delay in producing the documents pertaining to the option
    agreement, Royal Trust prevented the appellants from proving their claims.

(3)

it was neither fair nor just to
    decide this case without a trial.

[2]

We did not call on the respondents. We do not agree with any of the
    three grounds of appeal advanced by the appellants. The motion judge gave thorough
    reasons for granting summary judgment dismissing the appellants claims. We
    agree with his reasons and his disposition of the motion.

[3]

On the first ground of appeal, the appellants contend that the
    definition of purchased business is broad enough to encompass Apotex. We do
    not accept that contention. As the motion judge found, the definition of
    purchased business in the asset sale agreement  a definition that is
    incorporated into the option agreement  is unambiguous. It does not apply to
    Apotex, a company Sherman started two years after he sold all of Empires
    business to ICN. The motion judge correctly found that after that sale to ICN,
    the option agreement, by its terms, was null and void.

[4]

On the second ground of appeal, the appellants accept that Royal Trust
    acted prudently in the sale of the assets of the estate, and indeed sold the
    assets to the highest bidder, who was Sherman. They submit, however, that Royal
    Trust was negligent or in breach of its fiduciary duties in not obtaining
    better option terms for the children. That submission is at odds with the
    evidence that the motion judge accepted, as he was entitled to do, that Sherman
    would not agree to different terms. The key findings of the motion judge, at
    paras. 123-24 of his reasons, are supported by the evidence and not tainted by
    palpable and overriding error.

[5]

Further, nothing in the record before us supports the suggestion that
    the appellants were prejudiced by the delay in producing the documents pertaining
    to the option agreement. The evidence before the motion judge established that
    Royal Trust acted prudently in the sale of the assets to Sherman. The option
    agreement entered into as part of the sale is unambiguous and the conditions
    for its performance had lapsed upon the sale to ICN in 1972. There is simply no
    evidence to support the submission that Royal Trusts delay in producing the
    documents somehow prevented the appellants from pursuing their claims or that
    the delay otherwise prejudiced them.

[6]

On the third ground of appeal, this was an entirely appropriate case for
    summary judgment. As the Supreme Court of Canada said in
Hryniak v. Mauldin
,
    2014 SCC 7, at para. 60, even if some of the claims against some of the
    parties will proceed to trial, in appropriate circumstances the resolution of
    an important claim against a key party could significantly advance access to
    justice, and be the most proportionate, timely and cost effective approach.
    That is the case with the claims at issue here.

[7]

We agree with Royal Trust that the resolution of the royalty claims,
    which the motion judge left for trial, will not lead to inconsistent results. The
    resolution of those claims does not depend on the definition of purchased
    business or on the interpretation of the option agreement.

[8]

The appeal is dismissed with costs fixed in the amount of $20,000
    inclusive of disbursements and applicable taxes.

John Laskin J.A.

Paul Rouleau J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Asco Construction Ltd. v. Epoxy Solutions Inc.,
    2014 ONCA 535

DATE: 20140708

DOCKET: C58200

Sharpe, Simmons and Benotto JJ.A.

BETWEEN

Asco Construction Ltd.

Plaintiff/Respondent

and

Epoxy Solutions Inc.

Defendant/Appellant

Angela Assuras, for the appellant

Stéphane Bond, for the respondent

Heard and released orally: June 27, 2014

On appeal from the judgment of the Divisional Court (Justices
    MacDougall, Valin and Rady) dated June 12, 2013.

ENDORSEMENT

[1]

The respondent is a contractor who had been hired by the City of
    Kingston to renovate the Grand Theatre.

[2]

The appellant was the successful bidder for the epoxy flooring. The
    appellants bid was based on a sketch provided by the respondent in accordance
    with the tender process. The sketch depicted the elevations of the theatre.
    After the bid was accepted, but before commencing its work, the appellant
    retained a surveyor to confirm the elevations. The elevations were found to be
    inaccurate. The appellant sought an increase in the contract price. The
    respondent refused and asked that the work be done in accordance with the
    contract insisting that any adjustment to the price could be made later. The
    appellant refused to do the work without an assurance that the contract price
    would be adjusted and the respondent sued for breach of contract and damages.
    The appellant counter-claimed for loss of profits.

[3]

The appellant was successful at trial. The key findings of the trial
    judge were:

a)

The error was the fault of the respondent;

b)

The appellant gave the respondent adequate information about the
    inaccuracy of the sketch and the increased costs that would result;

c)

The respondent insisted that the appellant proceed with the work without
    adequate assurance that the appellant would be compensated for the extra work.

[4]

The respondents claim for damages for breach of contract was dismissed.
    The appellant was awarded damages for the loss of the profit it would have
    received had the contract been fulfilled.

[5]

The respondent appealed to the Divisional Court. The Divisional Court
    did not disturb the trial judges findings of fact. However, the Divisional
    Court on its own initiative determined that the doctrine of common mistake
    applied and rendered the contract void. The appeal was allowed.

[6]

The issue of common mistake was not pleaded or argued at any stage. The
    parties became aware of this theory for the first time when the decision of the
    Divisional Court was released.

[7]

For the following reasons, the appeal is allowed.

[8]

It is established law that the court should not decide matters on
    grounds which were not advanced by the parties: see
Rodaro v. Royal Bank of
    Canada,
(2002) 59 OR 74 (Ont. C.A.),
    at para 61
. The issue of common mistake was not pleaded, no
    evidence was led on the point and no argument was made. The Divisional Court
    did not provide either party with the opportunity to address this issue.

[9]

In any event, the Divisional Court erred in law in applying the doctrine
    of common mistake for the following reasons:

(a) It was found
    as fact by the trial judge and accepted by the Divisional Court that the
    mistake was the fault of the respondent. A party at fault cannot rely on its
    own mistake to avoid a contract: See
Miller Paving Ltd. v. B. Gottardo
    Construction Ltd.,
2007 ONCA 422, 86
    O.R. (3d) 161.

(b)
We agree with the appellant that
    tender documents represent an implied representation to compliant bidders that
    the work described in the tender documents could be built as described. Those
    bidders are entitled to rely upon the accuracy of design information prepared
    by the owner or its engineers. A bidder does not have to duplicate design and
    analysis prior to submitting a bid: See
Edgeworth Construction Ltd. v. N.D.
    Lea & Associates Ltd.,
[1993] 3
    S.C.R. 206.

[10]

Moreover,
    by asserting its claim for damages against the appellant, the respondent
    elected to affirm the contract and thereby disentitle itself from relying on
    the doctrine of common mistake.

[11]

Accordingly,
    the appeal is allowed. The decision of the Divisional Court is set aside and
    the trial judgment is restored.

[12]

The
    appellant is entitled to its costs on this appeal, the motion for leave to
    appeal and the proceedings before the Divisional Court in the total amount, for
    all proceedings, fixed at $35,000 inclusive of disbursements and applicable
    taxes.

Robert J. Sharpe J.A.

Janet Simmons J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Biron v. Aviva Insurance Company, 2014 ONCA 558

DATE: 20140721

DOCKET: C58173

Hoy A.C.J.O., Gillese and Lauwers JJ.A.

BETWEEN

Cristian Biron

Appellant

and

Aviva Insurance Company and Sylvia M. Robin

Respondents

Cristian Biron, appearing in person

Kieran C. Dickson, for the respondents

Heard: July 18, 2014

On appeal from the order of Justice Jane A. Milanetti of
    the Superior Court of Justice, dated December 12, 2013.

ENDORSEMENT

[1]

The motion judge dismissed the appellants claim on the grounds that it
    is an abuse of process, and that it discloses no cause of action. The appeal is
    from that decision and the motion judges costs award.

[2]

The appellant was involved in a motor vehicle accident with a person
    insured by the respondent, Aviva. Aviva appointed the respondent, Sylvia M.
    Robin to represent its insured at the small claims court action brought by the
    appellant to recover damages of $550. The small claims court action was
    dismissed.

[3]

The appellant took great offence at the trial tactics taken by Ms.
    Robin, and sued her for, as the motion judge expressed it:

a number of intentional torts, including breach of duty,
    non-compliance with the rules of the Small Claims Court, intrusion of privacy,
    infliction of mental distress. These are serious allegations without the
    pleading of material facts.

[4]

The thrust of Mr. Birons complaint is that Ms. Robin gave notice of an
    intention to rely on information that he claims was embarrassing and
    irrelevant. It turned out that the information and the document containing it
    were not relied on by the defence at the small claims court trial, but he
    claims that he was harmed nonetheless and that the mere prospect prevented him from
    pursuing his claim effectively.

[5]

The motion judge found that this action amounts to an impermissible
    collateral attack on a decision of the small claims court. She observed that if
    the appellant had concerns about breaches of the small claims court rules, or
    the admissibility of documents, then he should have raised those issues in that
    court. (He conceded in argument that he had a copy of the offending report well
    before the small claims court hearing.)

[6]

The motion judge held that the appellants claim was blocked by the legal
    principle that, in litigation, opposing counsel owes no duty of care to the
    opposing party. This proposition is well known and was expressed by
    Karakatsanis J., as she then was, in
Admassu v. Pantel
, 2009 CarswellOnt
    4047, at para. 5:

I am satisfied that it is plain and obvious that the pleading
    discloses no cause of action. Opposing counsel owes no general duty of care to
    the opposite party. As the court of appeal held in
Diamond Drilling
    Contracting Ltd. v. MacDearmid
, CanLII 24444, at para. 3, to hold
    otherwise would place solicitors in an untenable conflict between their duty to
    their client and their need to protect themselves against their clients
    adversary.

[7]

In view of what the motion judge considered to be the appellants abuse
    of process and his serious allegations against a lawyer who was doing her job
    advocating on behalf of her client, she fixed costs in the amount of $5,000.00,
    on a partial indemnity basis.

[8]

We see no error in the motion judges approach or in her conclusion that
    the action was an abuse of process, an impermissible collateral attack on the
    decision of another court, and disclosed no cause of action. We agree with her
    that Ms. Robin owed no duty to the appellant as a matter of law, and dismiss
    the appeal on the merits.

[9]

No issue of principle is engaged by the motion judges costs award,
    which is an exercise of her discretion. Leave to appeal costs is denied.

[10]

Costs
    on the appeal are set at $3,500.00, all inclusive.

Alexandra Hoy A.C.J.O.

E.E. Gillese J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Boone v. Ontario (Community Safety and

Correctional Services), 2014 ONCA 515

DATE: 20140703

DOCKET: C58393

MacPherson, Blair and Pepall JJ.A.

BETWEEN

Steven Boone

Appellant

and

Ministry of Community Safety and Correctional
    Services

and

Her Majesty the Queen

Respondents

Paul Champ and Christine
    Johnson, for the appellant

Brian G. Whitehead and
    Melanie Goren for the respondents

Heard: April 25, 2014

On appeal from the judgment of Justice Robert J. Smith of
    the Superior Court of Justice, dated January 16, 2014, with reasons reported at
    2014 ONSC 370.

R.A. Blair J.A.:

OVERVIEW

[1]

Habeas Corpus
is one of the
    oldest writs in the land.  Dating back in its present form to the mid-fifteenth
    and sixteenth centuries, it permits the court to require the Crown to bring a
    detained person before it to determine whether the deprivation of that persons
    liberty is unlawful.  If it is, the detention must be set aside.  Known as the
    Great Writ,
habeas corpus
has been
    entrenched in s. 10(1) of the
Canadian Charter of Rights and Freedoms
.

[2]

In recent years,
habeas
    corpus
has become a remedy frequently sought in
    superior courts by inmates seeking to challenge internal prison decisions,
    including decisions relating to the terms of their placement within the
    institution.  The Supreme Court of Canada has affirmed that the writ may be
    used to release a person from a particular form of detention although the
    person will lawfully remain under some other restraint of liberty:
R.
    v. Miller
, [1985] 2 S.C.R. 613, at p. 638.  Transfer
    to solitary confinement  a serious deprivation of liberty and security of the
    person  is often the target of such a challenge.

[3]

The appellant has been segregated
    in solitary confinement at the Ottawa-Carleton Detention Centre (OCDC) for more
    than a year.  There has been a growing recognition over the last half-century that
    solitary confinement is a very severe form of incarceration, and one that has a
    lasting psychological impact on prisoners.
[1]

[4]

The appellant is an HIV-positive
    inmate with a predisposition towards having sexual relations with other male
    prisoners  sometimes without their knowledge of his condition, and sometimes with
    it.  On this application, the Superintendent of OCDC takes the position that the
    appellants confinement in administrative segregation is necessary both for the
    protection of other inmates and for his own protection as well.  The Superintendent
    has offered the appellant certain alternatives, however, designed to permit the
    appellant to mix with the prison population during the day but to be confined in
    a cell alone at night.

[5]

The appellant disputes that
    position.  He seeks an order returning him to be housed with the general inmate
    population, and with a cellmate, as was the case before the transfer.  He has even
    requested specific cellmates.  He has rejected the Superintendents proposed
    alternatives.

[6]

After a hearing and a careful
    review of the evidence, Justice Robert J. Smith held that, although there had
    been a failure to comply fully with the principles of procedural fairness in
    certain aspects of the transfer process, the appellants detention in solitary
    confinement was not unlawful.  He therefore dismissed the application for
habeas
    corpus
.  The appellant seeks to have that
    decision set aside and an order granted allowing the application principally on
    the basis that, once having found a breach of procedural fairness  regardless
    of the nature of the breach  the application judge had no discretion to refuse
    to issue the writ.

[7]

For the reasons that follow
,
I would dismiss the appeal.  However, in my
    view, any of the alternatives proposed by the Superintendent was reasonable.
    Which of the alternatives is best suited to the situation  or whether there is
    another alternative that will achieve the same purpose  is for the prison
    authorities to determine, following proper procedures.

FACTS

[8]

The appellant has been convicted
    of very serious offences: attempted murder, aggravated sexual assault, and
    several related offences relating to circumstances where he knowingly had
    unprotected sex without disclosing his HIV-positive status with the intent to
    inflict his victims with HIV.  It is said that he knowingly sought out partners
    for that purpose.  He is presently the subject of a long-term offender
    application.

[9]

In the meantime, he has been
    incarcerated on remand at the OCDC since May 2010 awaiting his sentencing
    hearing.  OCDC is a maximum security institution.  The appellant was initially
    housed in Pod C, a protective custody wing where he was allowed day room
    privileges and had a cell mate (M.D.) for approximately 12 hours per day.  This
    form of accommodation ended, however, when OCDC officials discovered a letter
    from the appellant to M.D. confirming that they were engaging in sexual
    relations.  At the same time, rumours were circulating in the institution that
    the appellant was engaged sexually with other inmates as well.  He was
    transferred to administrative segregation on May 29, 2013.  There, he remains
    to the present time.

[10]

There were differing versions of
    what the appellant was told at the time of his transfer, and thereafter, and of
    the opportunities he had to respond to the transfer.

The Institutions Position

[11]

The Deputy Superintendent charged
    with the transfer, Mr. Nolet, testified that he spoke with the appellant on the
    day following the transfer and explained to him the reasons for it.  The transfer
    was for the safety of both the appellant and the other inmates, having regard
    to the appellants sexual relations with his cellmate and the rumours of the
    appellants sexual relations with other inmates.  Mr. Nolet also said that he had
    listened to the appellants side of the story.

[12]

Mr. Nolet filled out a
    Segregation Decision/Review form where he indicated the reasons for the appellants
    segregation as [o]wn protection/security.  He testified that, by security,
    he meant the security of both the appellant and the other inmates.  He also
    said that he reviewed the circumstances of the appellant every five days, as
    required by the regulations, and completed segregation review forms for each of
    those reviews.  He also testified that he met with the appellant, and discussed
    the appellants concerns, regularly during his twice-a-week tours of the
    segregation area.  The appellant knew well from Mr. Nolet and others the
    reasons why he was in segregation, the case he had to meet, and his right to
    make submissions.

[13]

In support of Mr. Nolets
    testimony, the Crown also points to correspondence between the appellant and
    others indicating that he understood why he was in segregation and that he had
    the right to make submissions.  For example, the appellant wrote to another
    inmate, saying: Im stuck in this pod because of the shit that happened
    between [M.D.] and I.  He wrote many letters to the institution requesting
    cellmates (in some cases, specific cellmates in addition to M.D.) or asking to
    be returned to Pod C where he would have a cellmate.  These submissions were
    made orally as well.

[14]

The appellants situation was
    also reviewed with senior managers at the Detention Centre during weekly
    segregation meetings.  Thirty-day reviews, as required by Ministry policy, were
    also completed as required.

The Appellants Position

[15]

The appellant tells a different story.
    He says that he was never provided with a reason for his initial placement in
    segregation or with any other meaningful explanation thereafter.  Nor was he
    given a chance to respond to his situation.

[16]

The appellant attacks Mr. Nolets
    evidence, arguing that it does not clearly show that the appellant had been
    told the reasons for his transfer or that he had a fair opportunity to
    respond.  He also argues that the evidence did not support a transfer to
    administrative segregation on the basis of his relationship with M.D., since
    that relationship was consensual, or on the basis that he had had sexual
    relations with other inmates (with the exception of one incident in which he
    was forced by another inmate to have oral sex with a third inmate), or on the
    basis that his security or that of other inmates was in jeopardy.

[17]

The appellant does acknowledge
    that he made requests to have a cellmate in segregation and that he asked to be
    returned to Pod C with a cellmate.  In some cases he asked that M.D. be placed
    in the cell with him, saying that they were in love and wished to marry.
[2]
In other cases, he asked to be placed with inmates he had met in adjoining
    cells in segregation.  He testified that he always advised these individuals of
    his HIV-positive status.

[18]

In addition, the appellant
    attacks the Segregation Decision/Review form which Mr. Nolet completed in
    relation to his initial transfer.  It was dated May 29, 2013, the date of the
    transfer, and completed as of that date, but Mr. Nolet did not meet with the
    appellant until the following day.

The Offers to Accommodate the
    Appellant

[19]

OCDC made several offers to the
    appellant that would have released him from segregation, placed him in
    alternative accommodations, and allowed him to socialize with other inmates,
    but without a cellmate.  The proposals were:

(i)  to transfer
    the appellant to a different Wing at OCDC, where he would have access to the
    day room, but be alone at night in his cell;

(ii)  to transfer
    him to the health care unit at OCDC, where he would have the company of other
    inmates;

(iii)  to transfer
    him to the Chatham jail, where he would have day room access but sleep alone in
    a cell at night; or

(iv)  to allow him
    to participate in chaplaincy programs and school programs with other inmates.

[20]

The appellant rejected all of
    these offers.  He wants either to have a cellmate while in segregation or to be
    placed back in Pod C where he will have a cellmate.

ANALYSIS

[21]

As noted above, solitary
    confinement (or segregation) for a prolonged period of time can have damaging
    psychological effects on an inmate and calls for the imposition of safeguards
    and limits to the resort to such punishment: see the Vantour Report, at pp.
    16-17.
[3]
It was in response to these kinds of concerns that the Legislature enacted the
    procedural requirements for placing and holding inmates in solitary confinement
    that are now found in Regulation 778 of the
Ministry of Correctional
    Services Act
, R.R.O. 1990, Reg. 778.  These
    Regulations include the requirements for five-day reviews by the Superintendent
    and 30-day reports to the Minister.

[22]

There can be no doubt, therefore,
    that confining the appellant to administrative segregation for more than a year
    constitutes a very serious deprivation of his liberty and security interests.
    Given that there are alternatives available, it seems to me that the
    appellants continued confinement in segregation should cease.

[23]

On the other hand, the
    application judge found that if the [appellant] is placed with a cellmate
    there is a very high risk that [he] would manipulate the cellmate into having
    sexual intercourse and a high risk that this cellmate would contact [
sic
] HIV putting any such cellmate in a dangerous
    situation if placed with the applicant.  Given that finding  amply supported
    in the record  the appellant cannot be returned to a situation where he would
    have a cellmate again.

[24]

Therein lies the dilemma in these
    proceedings.

The Application Judges Decision

[25]

The Superintendent of OCDC
    acknowledged that placing the appellant in administrative segregation amounted
    to a deprivation of liberty.  As a result, the application judge properly
    concluded that the onus shifted to the detaining authority to establish the
    lawfulness of the appellants continued detention in segregation.

[26]

The application judge found that
    the Superintendent had reasonable grounds to believe that the appellant was
    engaging in sexual activities with other inmates while detained in the general
    inmate population: Mr. Nolet was aware that the applicant had engaged in
    unprotected sex with M.D., had heard rumours that he had engaged in sexual
    activities with other inmates (although those allegations could not be
    verified), and was also aware that the appellant had requested and received
    condoms and lubricant on four occasions.

[27]

With respect to the appellants
    allegations of procedural unfairness, the application judge found that, while
    the procedures followed did not fully comply with the principles of natural
    justice and with procedural fairness in some respects, the transfer procedure,
    overall, was not procedurally unfair, and the detention of the appellant in
    administrative segregation was not unlawful.  He therefore refused to issue the
    writ of
habeas corpus
.

[28]

In this regard, the application
    judge accepted Mr. Nolets evidence that he had advised the appellant at the
    time of the initial transfer that he was being segregated pending an
    investigation into his sexual activities with other inmates, including M.D.;
    that Mr. Nolet had spoken to the appellant on a regular basis during his
    regular twice-weekly walk-arounds; and that Mr. Nolet had investigated and
    responded to the appellants requests for various specific cellmates.  These
    findings were open to him on the record.

[29]

The application judge found,
    nonetheless, that the procedure adopted by the Deputy Superintendent did not
    fully comply with the principles of natural justice and procedural fairness in
    three specific ways:

(i)  The Segregation Decision
    Review form should not have been completed before Mr. Nolet had met with the
    appellant and heard his submissions;

(ii) The appellant should have been
    given an opportunity to make oral or written submissions on his continued
    segregation at every five-day review, and a summary of his submissions should
    have been recorded on the form or attached as a schedule; and

(iii)  The appellant should have been
    provided with clearer and more detailed reasons for his continued segregation,
    including references to the applicable statutory provisions.

[30]

In spite of these failings, however,
    the application judge was satisfied that the administrative segregation of the
    appellant was lawful and necessary to ensure the safety of other inmates and,
    in particular, any cellmate placed with the appellant.  His reasons for
    arriving at this conclusion may be summarized as follows:

(i)

The appellant was fully aware of the reason he was being kept in
    segregation;

(ii)

The appellant had rejected reasonable proposals by the Superintendent
    that would have removed the psychological harm of being alone in segregation
    while ensuring the safety of other inmates;

(iii)

The appellants requests to be given a cellmate were reasonably refused
    by the Superintendent;

(iv)

The Superintendent would have been aware of the findings made in an
    earlier decision by Warkentin J. that the appellant bragged about his ability
    to manipulate young men into having unprotected sex with him and to infect
    others with HIV by lying to them and that he had actively sought out individuals
    for that purpose; and

(v)

If the appellant were placed with a cellmate, there was a very high risk
    that he would manipulate that cellmate into having sexual intercourse with him
    and a high risk that this cellmate would contract HIV, thus putting any
    cellmate in a dangerous position.

[31]

The appellant contests these
    findings, but, in my view, they were open to the application judge on the
    record, and there is no basis for interfering with them.

The Grounds of Appeal

[32]

The appellant raises two
    principal grounds of appeal.  First, he argues that, having found a breach of
    procedural fairness, the application judge erred in assuming he had a residual
    discretion to deny a
habeas corpus
remedy.  Secondly, he submits that the application judge erred in finding that
    the appellant posed a valid safety and security concern, a finding that was
    important in the application judges decision to refuse to grant the remedy.

[33]

There is ample evidence to
    support the application judges findings regarding the safety and security
    concerns raised by the appellants situation, however, and I do not think
    anything further needs to be said about the second ground of appeal.  I will
    therefore confine my analysis to the first ground of appeal.

The Statutory and Regulatory Framework

[34]

The operation of provincial
    correctional institutions is governed by the Regulation under the
Ministry
    of Correctional Services Act
.  Under s. 2(1) of
    Regulation 778, the Superintendent of the correctional institution is
    responsible for the management of the institution and for the care, health,
    discipline, safety and custody of the inmates under the Superintendents
    authority.  This undoubtedly includes the ability to determine the terms according
    to which the inmates under his or her authority will be housed.  Section 3 of
    the Regulation allows the Superintendents duties to be delegated to a
    designated person  in his case, the Deputy Superintendent, Mr. Nolet  and
    grants the Superintendent or designate the power to place an inmate in
    segregation.

[35]

In this case, Mr. Nolet exercised
    the authority provided under s. 34(1) of the Regulation in order to place the
    appellant in administrative segregation.  Section 34(1) permits the
    Superintendent to do so if, amongst other things,

a)

in the opinion of the
    Superintendent, the inmate is in need of protection;

b)

in the opinion of the
    Superintendent, the inmate must be segregated to protect the security of the
    institution or the safety of other inmates.

[36]

The obligations resting on the
    Superintendent when such a step is taken are set out in the remainder of s.
    34.  The Superintendent must conduct a preliminary review of the inmates case
    within twenty-four hours after the inmate has been placed in segregation, and
    if of the opinion that the continued segregation of the inmate is not
    warranted, shall release the inmate from segregation: s. 34(2).  The
    circumstances of each segregated inmate are to be reviewed at least once in
    every five-day period to determine whether the continued segregation is
    warranted: s. 34(3).  The segregated inmate is entitled, as far as possible, to
    the same benefits and privileges as if the inmate were not placed in
    segregation: s. 34(4).  And, where the inmate is placed in segregation for a
    continuous period of thirty days, the Superintendent must report to the
    Minister the reasons for the continued segregation: s. 34(5).

[37]

There is also a Special
    Management Inmates Policy put in place by the Ministry.  It provides that, when
    an inmate is placed in segregation, the inmate is to be advised of the reasons,
    status, and duration of the segregation and of any changes to those
    conditions.  A Segregation Decision/Review form is to be prepared.  The inmate
    is also to be advised of his or her right to make a submission to the
    Superintendent in writing or in person within five days of being segregated,
    and the inmates decision is to be documented on the review form.  In addition,
    the Policy states that, when an inmate has been in segregation for a continuous
    period of 30 days, the Regional Director will review the reasons for the
    continued segregation in the Superintendents review form to determine whether
    the continued detention is supported.  Before that review form is completed and
    sent to the Regional Director, the inmate is to be provided an opportunity to
    make a written submission or have an interview with the Superintendent or
    designate.

[38]

As noted, the application judge
    found that the Deputy Superintendent had failed to comply fully with these
    requirements in the three ways outlined above.

Did the Application Judge Err In Assuming He Had
    A Residual Discretion To Deny A
Habeas Corpus
Remedy, Having Found There
    Was A Breach Of Procedural Fairness?

[39]

The appellant submits that, once
    the application judge concluded there were breaches of procedural fairness, he
    had no discretion to refuse to grant the
habeas corpus
remedy and was obliged to order that the appellant
    be returned to and placed in Pod C with a cellmate, as he was before his
    transfer to segregation.

[40]

In contrast, the Ministry argues
    that not all breaches of procedural fairness necessarily require the writ to
    issue. Here, the breaches of procedural fairness identified by the application
    judge were minor and technical in nature. It was open to the application judge to
    hold that these breaches did not render the detention unlawful since he found that
    the appellant was fully aware of the reason he was being kept in segregation,
    and that he had been given the opportunity to respond to his situation.

[41]

In my view, the appellants
    blanket assertion that, once a breach of procedural fairness is found to have
    occurred,
habeas corpus
must be granted
    to return him to Pod C with a cellmate, is too broad.  The application judge
    held that there were aspects of the transfer process that did not fully comply
    with the principles of procedural fairness, but he found that the detention
    itself was not procedurally unfair.  Instead, he concluded that, on all of the
    evidence, and in spite of the procedural missteps, the detention was not
    unlawful and declined to issue the writ.  This decision was reasonable and
    based on an ample evidentiary foundation.  I would not interfere with it.

Habeas Corpus

[42]

To be successful, an applicant
    for
habeas corpus
must show (a) a
    deprivation of liberty and (b) that the deprivation of liberty was unlawful:
May
    v. Ferndale Institution
, [2005] 3 S.C.R. 809,
    at para. 74; and
Mission Institute v. Khela
,
    2014 SCC 24, at para. 30.  Between these points, there are other considerations
    in play, however.

[43]

First, once a deprivation of
    liberty has been shown, and the applicant has raised a legitimate ground on
    which to question its validity, the onus shifts to the Crown to show that the
    deprivation was lawful.  Secondly, where a deprivation of liberty has occurred,
    and a legitimate ground to question its validity has been raised, the hearing
    judge must proceed to a hearing; there is no discretion to do otherwise.
    Finally, the hearing judge retains a residual discretion at this second stage
    of the proceedings to decide, after reviewing the record, whether to discharge
    the applicant: see
Khela
, at paras. 30
    and 78.

[44]

These considerations bear on the
    appellants contention that, once the application judge found breaches of
    procedural fairness, he had no discretion to refuse to grant the writ of
habeas
    corpus
.  The appellant is mistaken in his
    characterization of the writ in this way, in my view.

[45]

It is true that
habeas
    corpus
is a remedy that issues as of right (
ex
    debito justitiae
) once the unlawful nature of
    the detention is established.  It cannot be denied because another, equally
    effective remedy  such as judicial review  exists.  That was the issue
    debated in
May
and
Khela
.  As LeBel J. affirmed in
Khela
, however, the non-discretionary nature of the writ
    relates to whether the applicant has raised a legitimate basis for questioning
    the legality of the detention, not to the ultimate determination of whether, on
    the whole of the record, the unlawful nature of the detention is established.
    There remains a residual discretion in this regard.  At paras. 77 and 78, he
    said:

First, the traditional onuses associated with the writ will
    remain unchanged.  Once the inmate has demonstrated that there was a
    deprivation of liberty
and casts doubt on the reasonableness of the deprivation
,
    the onus shifts to the respondent authorities to prove that the transfer was
    reasonable in light of all the circumstances.

Second, the writ remains non-discretionary as far as the
    decision to review the case is concerned.
If the applicant raises a
    legitimate doubt as to the reasonableness of the detention, the provincial
    superior court judge is required to examine the substance of the decision and
    determine whether the evidence presented by the detaining authorities is
    reliable and supports their decision.  Unlike the Federal Court in the context
    of an application for judicial review, a provincial superior court hearing a
habeas
    corpus
application has no inherent discretion to refuse to review the case
    (see Farbey, Sharpe and Atrill, at pp. 52-56).
[4]

However, a residual discretion will come into play at the second stage of
    the
habeas corpus
proceeding, at which the judge, after reviewing the
    record, must decide whether to discharge the applicant
.

[Emphasis
    added.]

[46]

Where there has been a denial of
    the right to a fair hearing, the administrative decision will always be
    unlawful.  However, not all procedural breaches will necessarily result in
    procedural unfairness and the denial of the right to a fair hearing: see
Khela
, at para. 90;
Canadian College of Business
    and Computers Inc. v. Ontario (Private Career Colleges Act, Superintendent)
, 2010 ONCA 856, at paras. 65-67; and
Uniboard
    Surfaces Inc. v. Kronotex Fussboden GmbH and Co. KG (F.C.A.)
, 2006 FCA 398, [2007] 4 F.C.R. 101, at para. 24.

Habeas Corpus
in the
    Context of This Case

[47]

That was the question facing the
    application judge, and it was open to him, after embarking on the
habeas
    corpus
hearing, to consider whether, on the
    record as a whole, the appellants detention in segregation was lawful, in
    spite of the procedural flaws that he found to have existed.

[48]

I accept that the appellant was
    entitled to be provided with clear reasons for his detention.  Although, at the
    end of the day, the application judge was satisfied that the appellant knew the
    reasons for his detention, the finding that he was detained without having been
    given clear reasons for his continued segregation was sufficient to raise a
    legitimate ground upon which to question the legality of the deprivation:
Khela
, at para. 86.  On the
Khela
analysis, the next stage was to determine  based on
    the record  what was to happen in terms of the discharge.

[49]

The application judge embarked on
    that exercise, and the thrust of his reasons for concluding that the
    appellants detention in administrative segregation was not unlawful can be
    summarized as follows.  There were some procedural flaws in connection with the
    segregation process, but, at the end of the day, the appellant was fully
    aware of the reasons for his continued detention in segregation.  He had opportunities
     and, on many occasions, took advantage of those opportunities, both orally
    and in writing  to make submissions to the prison authorities about it.  In
    spite of the flaws, therefore, the overall process of placing and keeping the
    appellant in administrative segregation was not procedurally unfair.  In
    addition, the Superintendents decision was reasonable, given the information
    he had.  Accordingly, the placement of the appellant in administrative
    segregation was not unlawful, and the writ of
habeas corpus
could not issue.

[50]

I see no flaw in this overall
    approach.  Indeed, for the following reasons, I would place even less emphasis
    on the factors identified by the application judge as procedural flaws than he
    did.

[51]

As outlined above, at para. 29,
    the application judges view that there had been a failure to comply fully with
    the principles of procedural fairness was based primarily on his view that (i)
    the Segregation Decision Review form should not have been completed before Mr.
    Nolet heard the appellants submissions; (ii) the appellant should have been
    given a chance to make submissions at every five-day review, and a summary of
    those submissions should have been recorded; and (iii) the appellant should
    have received clearer, more detailed, and statutorily-qualified reasons for his
    continued segregation.

[52]

The first of these identified
    concerns is inconsequential.  While Mr. Nolet should not have completed the
    Segregation Decision/Review form before meeting with the appellant, the record
    establishes that its contents reflect what occurred.

[53]

The second is not a procedural
    flaw, in my opinion.  Nothing in either the Regulations or the Policy provides
    an inmate with the right to make submissions either orally or in writing in
    connection with the every five-day review.  As noted above, the Policy requires
    that the Superintendent or the Superintendents designate review the
    detention every five days; that the inmate be advised of the reason, status,
    and duration of the segregation and any changes to those conditions; that the
    inmate be advised of the right to make submissions within five days of being
    segregated; and that the inmates decision be documented on the review form.
    Where the inmate is segregated for 30 days or more, the Regional Directors
    review is triggered, and the inmate is entitled either to make written
    submissions or to have an interview with the Superintendent or Deputy
    Superintendent.  On the record, these all occurred in substance here.

[54]

Prisons are not administrative
    tribunals and, although inmates are entitled to the benefits of natural justice
    and administrative fairness, to impose on prison officials the full panoply of
    requirements for what is, in effect, an administrative hearing every five days
    is not realistic, notwithstanding the severe impact of administrative
    segregation on an inmate.

[55]

The third identified criticism
    does, indeed, reflect a procedural fairness concern.  Nonetheless, the record
    shows that Mr. Nolet, and even the Superintendent, Mr. Last, were in continuing
    contact with the appellant; that there were regular interviews with him; and
    that he presented the administration with a constant stream of written and oral
    statements protesting his segregation and demanding that he be provided with a
    cellmate of choice.  In addition, he was advised of the reasons for his
    continued detention by Dr. Ward, a forensic psychiatrist who has been working
    with the appellant during his incarceration at OCDC.

[56]

The principles of natural justice
    require that a person subject to administrative detention be advised of the
    reasons for that detention and be given an opportunity to be heard in response
    to that case: see
May
, at para. 92.  At
    the end of the day, the application judge was satisfied that these requirements
    had been met because the appellant was fully aware of the reasons for his
    continued segregation and had been given  and had taken advantage of  the
    opportunity to respond. This was sufficient to outweigh the concern that the
    reasons provided could have been accompanied with more detail and made clearer.

[57]

Despite the procedural flaws that
    may have existed, the appellant was not denied a fair hearing.

[58]

I would not give effect to this
    ground of appeal.

Disposition

[59]

For the foregoing reasons, the
    appeal must be dismissed and the decision of the application judge not to issue
    the writ of
habeas corpus
upheld.

[60]

Like the application judge,
    however, I am satisfied that the offers made to the appellant to try to
    accommodate his concerns were entirely reasonable.  The application judge
    concluded his reasons by stating that the Superintendent was ordered to
    continue to offer the proposals made to the applicant until he is sentenced and
    transferred to a prison.  I see no reason why the Superintendent is limited to
    [continuing] to offer the alternatives.  The Superintendents
    responsibilities for managing the institution include the care, discipline,
    safety, and custody of the inmates: Regulation 778, s. 2(1).  In my view, the
    manner in which inmates are housed falls within those responsibilities and may be
    imposed on the inmates, provided proper procedures are followed, should the
    Superintendent be so advised.

R.A. Blair J.A.

I agree J.C.
    MacPherson J.A.

I agree S.E. Pepall
    J.A.

Released: July 03, 2014

[1]
James A. Vantour,
Report of the Study Group on Dissociation
(Solicitor-General
    of Canada: Ottawa, 1975), at pp. 16-17 (the Vantour Report).

[2]
A number of the written pleas submitted to the Superintendent concluded with
    the admonition: Love is not a crime, when you are doing time.

[3]
See also:

The Honourable Louise Arbour,
Commission of Inquiry into
    certain events at the Prison for Women in Kingston
(Ottawa: Public Works
    and Government Services Canada, 1996),

at pp. 100-101; The Sub-Committee
    on the Penitentiary System in Canada, Standing Committee on Justice and Legal
    Affairs,
Report to Parliament
(Second Session of the Thirtieth
    Parliament, 1976-1977), at p. 87; United Nations General Assembly, Special
    Rapporteur on Torture,
Interim report of the Special Rapporteur of the Human
    Rights Council on torture and other cruel, inhuman or degrading treatment or
    punishment
, U.N. Doc.

A/66/268,

(2011), at para. 76
.

[4]
Judith Farbey, Robert J. Sharpe, and Simon Atrill,
The Law of Habeas Corpus
,
    3d. ed. (New York: Oxford University Press, 2011).