COURT OF APPEAL FOR ONTARIO

CITATION: Bruff-Murphy v. Gunawardena, 2017 ONCA 502

DATE: 20170616

DOCKET: C61576

Lauwers, Hourigan and Benotto JJ.A.

BETWEEN

Callum
    Bruff-Murphy and Hope Bruff-McArthur

by their
    Litigation Guardian Liese Bruff-McArthur,

Liese
    Bruff-McArthur personally, and Richard McArthur

Plaintiffs (Appellants)

and

Neloni Gunawardena

Defendant (Respondent)

Geoffrey D.E. Adair, for the appellants

Daniel I. Reisler and Jessica L. Kuredjian, for the
    respondent

Heard: May 15, 2017

On appeal from the judgment of Justice Paul B. Kane of
    the Superior Court of Justice, sitting with a jury, dated August 22, 2016.

Hourigan J.A.:

A.

INTRODUCTION

[1]

The law regarding expert witnesses has evolved considerably over the
    last 20 years. Gone are the days when an expert served as a hired gun or
    advocate for the party that retained her. Today, expert witnesses are required
    to be independent, and their function is to provide the trier of fact with
    expert opinion evidence that is fair, objective and non-partisan.

[2]

The role of the trial judge in relation to expert witnesses has also
    evolved. Appellate courts have repeatedly instructed trial judges that they
    serve as gatekeepers when it comes to the admissibility of expert opinion
    evidence. They are required to carefully scrutinize, among other things, an
    expert witnesss training and professional experience, along with the necessity
    of their testimony in assisting the trier of fact, before the expert is
    qualified to give evidence in our courts. This gatekeeper role is especially
    important in cases, such as this one, where there is a jury who may
    inappropriately defer to the experts opinion rather than evaluate the expert
    evidence on their own.

[3]

In the present case, the trial judge qualified an expert to testify on
    behalf of the defence despite some very serious reservations about the experts
    methodology and independence. It became apparent to the trial judge during the
    experts testimony that he crossed the line from an objective witness to an
    advocate for the defence. Despite his concerns, the trial judge did nothing to
    exclude the opinion evidence or alert the jury about the problems with the
    experts testimony.

[4]

On appeal, the appellants advance several arguments to the effect that
    trial fairness was breached, such that a new trial is necessitated. All of these
    arguments focus on the impugned expert.

[5]

In my view, the appeal must be allowed and a new trial ordered. I reach
    this conclusion because the trial judge failed to properly discharge his
    gatekeeper duty at the qualification stage. Had he done so, he would have
    concluded that the risks of permitting the expert to testify far outweighed any
    potential benefit from the proposed testimony.

[6]

In addition, the trial judges concerns about the experts testimony
    were substantially correct; the witness crossed the boundary of acceptable
    conduct and descended into the fray as a partisan advocate. In these
    circumstances, the trial judge was required to fulfill his ongoing gatekeeper
    function and exclude in whole or in part the experts unacceptable testimony.
    Instead, the trial judge did nothing, resulting in trial fairness being
    irreparably compromised.

B.

BACKGROUND FACTS

(1)

The Trial

[7]

The appellant, Liese Bruff-McArthur, was hit from behind by the
    respondent while stopped in her motor vehicle. She alleged that as a
    consequence of the accident she has suffered multiple soft tissue damages in
    her neck, lower back and right shoulder. Ms. Bruff-McArthur also alleged that
    the accident has left her in an apparent chronic pain condition with attendant
    anxiety and depression. She says that she is unable to work and that her
    enjoyment of life has been substantially diminished.

[8]

Ms. Bruff-McArthur commenced an action against the respondent, who
    admitted liability. The sole issue in the 23-day jury trial was what damages,
    if any, she suffered.

[9]

In support of her case, Ms. Bruff-McArthur called a number of physicians
    who had either treated or examined her, two of whom were retained by insurers
    to conduct independent medical examinations. The consensus among these
    witnesses was that she suffered in the manner complained of and that the cause
    of her suffering was the motor vehicle accident.

[10]

The
    defence called two witnesses, both of them medical expert witnesses who had
    been retained by the defence to conduct independent medical examinations. The
    first, Dr. Gianni Maistrelli, an orthopedic specialist, testified that he found
    nothing wrong with Ms. Bruff-McArthur from a musculosketal standpoint. This
    conclusion was not surprising given that she was complaining of soft tissue
    injuries.

(2)

Dr. Bails Evidence

[11]

The
    other defence expert witness was Dr. Monte Bail, a psychiatrist. Counsel for Ms.
    Bruff-McArthur objected to his testifying on two grounds.

[12]

First,
    she argued that his report was essentially an attack on Ms. Bruff-McArthurs
    credibility. Counsel pointed to numerous instances in the report where Dr. Bail
    commented on discrepancies between the information Ms. Bruff-McArthur provided
    in her interview with him and what he later found in her medical records. Dr.
    Bail never put those alleged inconsistencies to Ms. Bruff-McArthur. Counsel
    sought an order that excluded the parts of Dr. Bails report that did not meet
    the test in
Browne v. Dunn
(1893), 6 R. 67 (H.L.), and an order that Dr.
    Bail not be permitted to testify regarding his views on her credibility.

[13]

Second,
    Ms. Bruff-McArthur argued that Dr. Bail was biased. In support of this argument,
    counsel submitted that she should be permitted to cross-examine Dr. Bail on
    findings made in another court case and two arbitrations to the effect that he
    was not an independent witness. The trial judge ruled, relying on
R. v.
    Karaibrahimovic
, 2002 ABCA 102, 2 Alta. L.R. (4th) 213,
R. v. Ghorvei
,
    (1999) 46 O.R. (3d) 63 (C.A.) and
Desbiens v. Mordini
,

2004

CanLII 41166 (Ont. S.C.) that Dr. Bail could not be cross-examined on
    prior court rulings or arbitration decisions where his testimony was rejected
    or his objectivity as a witness had been questioned.

[14]

The
    trial judge then put to counsel for Ms. Bruff-McArthur that there remained the
    issue of whether Dr. Bail had sufficient professional objectivity to provide
    independent evidence and he asked her if she wished to cross-examine Dr. Bail
    on this issue as part of a
voir dire
. Counsel declined that offer and
    elected instead to cross-examine Dr. Bail on the issue as part of her
    cross-examination in the trial proper.
[1]

[15]

The
    trial judge then proceeded to rule that Dr. Bail could not testify on certain sections
    of his report. The relevant sections were primarily where Dr. Bail was critical
    of the reliability of the conclusions reached by other doctors examining Ms.
    Bruff-McArthur. The trial judge also made clear that he did not want Dr. Bail
    testifying about Ms. Bluff-McArthurs credibility.

[16]

Dr.
    Bail testified in chief that his methodology was not to review any of a subjects
    medical records before meeting with them. Consistent with this methodology, after
    the examination of Ms. Bruff-McArthur, which took just over an hour, Dr. Bail
    spent 10 to 12 hours reviewing her medical records, looking for discrepancies
    between what she told him in the meeting and what was in the records. These
    discrepancies formed the largest portion of his report.

[17]

In
    summary, Dr. Bail testified that in his opinion: Ms. Bruff-McArthur did not
    develop any psychiatric disorders or limitations as a result of the accident;
    required no psychotherapy or psychotropic medication in relation to the
    accident; her pre-accident psychiatric profile was not exacerbated by the
    accident; and she did not require housekeeping or attendant care as a result of
    any psychiatric condition.

(3)

The Verdict

[18]

Dr.
    Bail was the last witness to testify at trial. After closing submissions, the
    trial judge gave his charge to the jury. The charge was previously subject to a
    pre-charge conference and it was provided to the parties in advance of being
    presented to the juries. No objection was made to the charge and no special
    instruction regarding Dr. Bails testimony was requested.

[19]

As
    part of his charge, the trial judge reviewed very briefly Dr. Bails testimony.
    He did not instruct the jury regarding the duty of expert witnesses. Nor did he
    raise any concerns with respect to the substance of Dr. Bails testimony or his
    independence.

[20]

After
    the jury retired to consider their verdict, defence counsel brought a Threshold
    Motion, arguing that Ms. Bruff-McArthur did not met the threshold in s. 267.4(12)
    of the
Insurance Act
, R.S.O. 1990, c. I.8, of suffering a permanent
    serious impairment of an important physical, mental, or psychological function.

[21]

Following
    completion of the motion, the jury returned with a verdict assessing general
    damages at $23,500 and rejecting all other heads of damages, including special
    damages, future care costs and past and future income loss.

(4)

Threshold Motion Ruling

[22]

Approximately
    one month later, the trial judge released his reasons on the Threshold Motion:
    see 2016 ONSC 7, [2016] I.L.R. I-5835. He concluded that Ms. Bruff-McArthurs
    claim for general damages met the threshold in s. 267.4(12) of the
Insurance
    Act
. In reaching that conclusion, the trial judge analyzed the evidence
    adduced at trial, including the evidence of Dr. Bail.

[23]

I
    note parenthetically the respondents submission that this court should not
    rely on the ruling on the Threshold Motion because it was released after the
    jurys verdict. In what follows, I will only reference the ruling on the
    Threshold Motion to gain insight into the trial judges concerns with Dr.
    Bails testimony and to understand the trial judges reasons for permitting Dr.
    Bail to testify. When it comes to determining whether the trial judges
    concerns were justified or misplaced, I will conduct my own review of the
    record.

[24]

In
    his ruling, the trial judge stated at para. 58 that during the trial he
    permitted Dr. Bail to testify because of the [v]
ery
    high threshold before a court may exclude expert testimony for bias established
    by the Supreme Court in
White Burgess Langille Inman v. Abbott
    and Haliburton Co.,
2015 SCC 23, [2015] 2
    S.C.R. 182, at paras. 48-49
.

[25]

The
    trial judges analysis of Dr. Bails evidence was highly critical and included
    the following observations:

·

The vast portion of
    his testimony in chief consisted of Dr. Bail telling the jury about prior
    medical notations and how they contradict what Ms. Bruff-McArthur allegedly
    told him in his interview (para. 68).

·

The only semi-psychiatric element of
    Dr. Bails report was entitled Mental Status Examination, which consumed one
    half a page of the 20 page report (para. 69).

·

In order to be fair
    and objective, Dr. Bail should have asked the plaintiff why her verbal
    reporting of her prior medical condition was so vastly different from her prior
    medical records. Dr. Bail could not do that because his methodology in
    conducting independent medical examinations was to not read such medical
    records before the interview (para. 70).

·

Dr. Bail testified that he discarded
    any notes he may have made during his interview of
Ms. Bruff-McArthur
as to what she allegedly told him. His only
    record of her comments was contained in his report dictated after he
    interviewed
Ms. Bruff-McArthur
and after
    his subsequent lengthy review of her medical records (para. 73).

·

Dr. Bail was making up
    evidence as he testified to support his conclusions adverse to Ms.
    Bruff-McArthur (para. 108).

·

The vast majority of Dr.
    Bails report and testimony in chief was not of a psychiatric nature but was
    presented under the guise of expert medical testimony and the common
    presumption that a member of the medical profession will be objective and tell
    the truth (para. 122).

[26]

The
    trial judge found that Dr. Bail was not a credible witness and did not honour
    his obligation and written undertaking to be fair, objective and non-partisan
    pursuant to r. 4.1.01 of the
Rules of Civil Procedure, R.R.O. 1990, Reg.
    194. He
summarized Dr. Bails evidence as follows, at paras. 123-125:

The vast majority of Dr. Bails testimony to the jury amounted
    to nothing other than the following:

(a) The plaintiff did not tell me the truth in my interview;

(b) Here are all the instances I found in my 10 to 12 hour
    review of her medical records which prove that she did not tell me the truth;

(c) If I as a psychiatrist cannot believe her; how can
    you?

The primary purpose of R. 4.1.01 is to prohibit and prevent
    such testimony in the guise of an expert. Dr. Bail undertook and thereby
    promised to not do what he did in front of this jury.

I will not qualify witnesses as experts in the future whose
    reports present an approach similar to that of Dr. Bail in this
    case.

C.      ISSUES

[27]

This
    appeal raises the following issues:

·

Did the trial judge err in not permitting Ms. Bruff-McArthur to
    cross-examine Dr. Bail on prior court and arbitral findings made against him?

·

Did the trial judge err in qualifying Dr. Bail as an expert
    and/or in not intervening or taking steps to exclude Dr. Bails testimony?

·

Did the respondent violate the rule in
Browne v. Dunn
?

[28]

As
    I will discuss in the analysis section of my reasons, I have concluded that the
    trial judge did not err in ruling that Dr. Bail could not be cross-examined
    regarding prior court and arbitral findings made against him. However, the
    trial judge did err in permitting Dr. Bail to testify and in failing to exclude
    in whole or in part Dr. Bails testimony and, consequently, a new trial is
    required. Given this finding, it is unnecessary to consider the
Browne v.
    Dunn
argument.

D.

ANALYSIS

(1)

The Scope of Dr. Bails Cross-Examination

[29]

Counsel
    for Ms. Bruff-McArthur sought to cross-examine Dr. Bail on three previous
    comments regarding his testimony in other cases, indicating that he had:

·

Become an advocate for the party calling him as a witness, which
    is not the role of an expert
: see
Morrison v. Greig
, [2007] O.J.
    No. 225 (S.C.),
at
paras. 47-48;

·

Appropriated the role of advocate of the insurer rather than an
    impartial witness, took a partisan approach and focused on inconsistencies in
    the information given by claimant, such that his credibility was seriously
    weakened and should be disregarded: see
Gabremichael v. Zurich Insurance
    Co.
, [1999] O.F.S.C.I.D. No. 198, at paras. 31-33; and

·

Presented as a notably partisan witness: see

Sohi
    v. ING Insurance Co. of Canada
, [2004] O.F.S.C.D. No. 106, at para. 38.

[30]

Ms.
    Bruff-McArthur submits that the trial judge erred in denying her the right to
    cross-examine Dr. Bail on these findings because the trial judge failed to draw
    a distinction between prior comments rejecting the evidence of the witness and
    prior findings of discreditable conduct, namely the failure of Dr. Bail to
    abide by his oath as an expert.

[31]

I
    do not accept this argument. In my view, the prior comments made about Dr. Bail
    do not amount to a finding of discreditable conduct. Rather, they are the opinions
    of a judge and two arbitrators regarding the reliability of his testimony in particular
    cases. This is analogous to the situation in
Ghorvei
, where a witnesss
    credibility had been attacked in previous proceedings. Charron J.A. (as she
    then was) held at para. 31 that those credibility findings from the previous
    proceedings were not proper material for cross-examination:

In my view, it is not proper to
    cross-examine a witness on the fact that his or her testimony has been rejected
    or disbelieved in a prior case. That fact, in and of itself, does not
    constitute discreditable conduct. I do not think it would be useful to allow
    cross-examination of a witness on what is, in essence, no more than an opinion
    on the credibility of unrelated testimony given by this witness in the context
    of another case. The triers of fact who would witness this cross-examination
    would not be able to assess the value of that opinion and the effect, if any,
    on the witness's credibility without also being provided with the factual
    foundation for the opinion.

See also
R.
    v. Boyne
, 2012 SKCA 124, 405 Sask.R. 163,
    at paras. 48-51, leave to appeal refused, [2013] S.C.C.A. No. 54.

[32]

In
    the present case, the comments of the judge and arbitrators about Mr. Bails
    testimony in the previous cases would have been of no assistance to the jury
    without an understanding of their factual foundation. That necessary context
    would only have served to divert the jury from the task at hand and convert the
    trial into an inquiry regarding the reliability of Dr. Bails testimony in the three
    other proceedings. Thus, in my view, the trial judge did not err in prohibiting
    this line of cross-examination.

(2)

The Trial Judges Gatekeeper Role with Respect to Expert Opinion
    Evidence

(1)

Qualification Stage

[33]

Ms.
    Bruff-McArthur submits that the trial judge should have exercised his
    gatekeeper function to exclude Dr. Bail from testifying on the grounds that his
    methodology was unfair; he was biased; he was engaged in an exercise to destroy
    her credibility; and his prospective evidence would amount to a violation of the
    rule in
Browne v. Dunn
. In the alternative, she argues that the trial
    judge erred in not instructing the jury that they should disregard Dr. Bails
    testimony.

[34]

In
White Burgess
, a decision released shortly before the judgment under
    appeal, the Supreme Court of Canada provided clarity and guidance regarding
    challenges to experts on the basis of bias and lack of independence. Cromwell
    J., writing for the court, stated at para. 19 that the basic structure for the
    law relating to the admissibility of expert evidence has two main components.

[35]

The
    first component requires the court to consider the four traditional threshold
    requirements for the admissibility of the evidence established in
R. v.
    Mohan
, [1994] 2 SCR 9: (i) relevance; (ii) necessity in assisting the
    trier of fact; (iii) absence of an exclusionary rule; and (iv) the need for the
    expert to be properly qualified.

[36]

The
    second component is a discretionary gatekeeping step where the judge
    balances the potential risks and benefits of admitting the evidence in order to
    decide whether the potential benefits justify the risks: para. 24. It is a
    cost-benefit analysis under which the court must determine whether the expert
    evidence should be admitted because its probative value outweighs its
    prejudicial effect.

[37]

The
    analysis under the second component is best thought of as a specific
    application of the courts general residual discretion to exclude evidence
    whose prejudicial effect exceeds its probative value:
R. v. Bingley
,
    2017 SCC 12, 407 D.L.R. (4th) 384, at para. 16. As Charron J.A. wrote in
R.
    v. K. (A.)
(1999), 45 O.R. (3d) 641 (C.A.), at para. 76, application for
    leave quashed, [2000] S.C.C.A. No. 16: The balancing process which lies at the
    core of the determination of the admissibility of this kind of evidence is not
    unique to expert opinion evidence. It essentially underlies all our rules of
    evidence. In
White Burgess
, Cromwell J. referenced
Mohan
and
    made the same point at paras. 19 and 20:

Mohan

also underlined the important role
    of trial judges in assessing whether otherwise admissible expert evidence
    should be excluded because its probative value was overborne by its prejudicial
    effect  a residual discretion to exclude evidence based on a cost-benefit
    analysis: p. 21.

The reasons in

Mohan

engaged
    in a cost-benefit analysis with respect to particular elements of the four
    threshold requirements, but they also noted that the cost-benefit analysis
    could be an aspect of exercising the overall discretion to exclude evidence
    whose probative value does not justify its admission in light of its
    potentially prejudicial effects: p. 21.

[38]

Cromwell
    J. further explained that lack of independence or impartiality on the part of
    an expert witness goes to the admissibility of the witnesss testimony, not
    just to its weight: para. 40. Specifically, in the governing framework for
    admissibility, the court should consider an experts potential bias when
    determining whether the expert is properly qualified at the initial threshold
    inquiry: para. 53.

[39]

However,
    he added that bias should also be considered when the court exercises its
    gatekeeping exclusionary discretion, writing at para. 54:

Finding that expert evidence meets the basic threshold does not
    end the inquiry. Consistent with the structure of the analysis developed
    following

Mohan

which
    I have discussed earlier,
the judge must still take concerns about the
    experts independence and impartiality into account in weighing the evidence at
    the gatekeeping stage
. At this point, relevance, necessity, reliability and
    absence of bias can helpfully be seen as part of a sliding scale where a basic
    level must first be achieved in order to meet the admissibility threshold and
    thereafter continue to play a role in weighing the overall competing considerations
    in admitting the evidence. At the end of the day, the judge must be satisfied
    that the potential helpfulness of the evidence is not outweighed by the risk of
    the dangers materializing that are associated with expert evidence. [Emphasis
    added.]

In the overview of his discussion of the admissibility
    of expert opinion evidence, he instructed at para. 34 that:

[A] proposed experts independence and impartiality go to
    admissibility and not simply to weight and there is a threshold admissibility
    requirement in relation to this duty. Once that threshold is met,
remaining
    concerns about the experts compliance with his or her duty should be
    considered as part of the overall cost-benefit analysis which the judge
    conducts to carry out his or her gatekeeping role
. [Emphasis added.]

[40]

In
    the present case, the trial judge cited
White Burgess
and appears to
    have relied upon Cromwell J.s statement that in the threshold inquiry it would
    be quite rare for a proposed experts evidence to be ruled inadmissible. As
    Cromwell J. noted at para. 49, all that needs to be established at that stage
    is whether the expert is able and willing to carry out his or her primary duty
    to the court. The trial judge concluded that Dr. Bail met this rather low
    threshold requirement.

[41]

That
    was a discretionary decision, which is entitled to deference from this court:
R.
    v. Shafia
, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 248. Another judge
    might well have concluded that Dr. Bail failed to meet even this low threshold
    test. I do not need to decide whether the trial judge erred on this point,
    however, because he clearly erred in principle in failing to proceed to the
    next step of the analysis  consideration of the cost-benefit analysis in Dr.
    Bails testimony. The trial judge did not reference this second component of
    his discretionary gatekeeper role. To the contrary, he appears to have believed
    that he was obliged to qualify Dr. Bail once he concluded that the witness met
    the initial
Mohan
threshold. There is, therefore, no decision to defer
    to and it falls to this court to conduct the second part of the analysis.

[42]

In
    my view, on a proper balancing, the potential risks of admitting Dr. Bails
    evidence far outweighed the potential benefit of the testimony. It was evident
    from a review of Dr. Bails report that there was a high probability that he
    would prove to be a troublesome expert witness, one who was intent on
    advocating for the defence and unwilling to properly fulfill his duties to the
    court.

[43]

The
    first red flag was Dr. Bails methodology. There is a real risk of unfairness
    in engaging in a hunt for discrepancies between what a plaintiff says during a
    short interview and what medical records dating back several years reveal. This
    unfairness is exacerbated when the expert denies the plaintiff the opportunity
    to explain the apparent discrepancies. As anyone with the slightest experience
    with litigation would attest to, oftentimes what appears to be an inconsistency
    in witnesss evidence is not an inconsistency at all. Oftentimes all that is
    required is a simple explanation to resolve what appears to be a conflict in
    what a witness said on two different occasions. Ms. Bruff-McArthur was not
    given an opportunity to offer such an explanation.

[44]

A
    related concern is that the vast bulk of the content in Dr. Bails report was
    the recitation of perceived inconsistencies between what Ms. Bruff-McArthur
    said in the independent medical examination and what the medical records
    revealed. In conducting that analysis, Dr. Bail was not bringing to bear any
    medical expertise. This was work that is routinely done by trial lawyers and
    law students or clerks in preparation for a cross-examination. Thus, the
    benefit of the evidence was very low, while the potential mischief was very
    high, especially given that none of these inconsistencies were put to Ms.
    Bruff-McArthur.

[45]

It
    was also clear from the report that Dr. Bail was coming dangerously close to usurping
    the role of the jury in assessing Ms. Bruff-McArthurs credibility. In the Summary
    and Conclusions section of his report he opines:

It is my opinion that if Ms. Bruff-McArthur was being
    forthright, this pattern of discrepancies and inconsistencies should not exist.
    I am therefore of the opinion that Ms. Bruff-McArthur has not been forthright
    with respect to her accident related claims and her provided medical and
    psychological history, and that the history which she has been providing over
    time since the accident cannot be relied upon. It is evident that Ms.
    Bruff-McArthur has serious credibility issues regarding her accident related
    claims.

In the penultimate paragraph of his report, he states:
    lack of reliability, credibility and validity are factors in this case.

[46]

Next,
    the whole tone of the report was a reliable predictor of Dr. Bails testimony.
    He goes out of his way to make points that are meant to damage Ms.
    Bruff-McArthurs case. For example, he opines on the views of several
    physicians who examined Ms. Bruff-McArthur, concluding that she misled them.
    Dr. Bail speculates that one of her therapists may have been improperly holding
    herself out as a qualified psychologist. He criticizes a psychiatrist who
    treated Ms. Bruff-McArthur, Dr. Arora, because they discussed personal family
    things, such as her daughters potty training and her sons school problems
    when psychotherapy was requested and paid solely in relation to treating accident
    related claims. Dr. Bail notes that Ms. Bruff-McArthur and Dr. Arora discussed
    the notions of karma and reincarnation. He chastises Dr. Arora for introducing personal
    religious beliefs in a therapy session. I note that there is no evidence that
    these topics reflect Dr. Aroras personal beliefs.

[47]

I
    could go on with further examples, but the point is that in his report Dr. Bail
    goes beyond a mere lack of independence and appears to have adopted the role of
    advocate for the defence. Given the paucity of psychiatric analysis in the
    report versus the high degree of potential prejudice in wrongly swaying the
    jury, a cost-benefit analysis would have invariably lead to the conclusion that
    Dr. Bail should have been excluded from testifying.

[48]

To
    be fair to the trial judge, he attempted to ameliorate these concerns by
    specifically instructing the witness not to testify regarding certain issues,
    such as his criticism of other doctors. However, as the trial judge essentially
    acknowledged in his Threshold Motion ruling, had he undertaken the cost-benefit
    analysis he would not have permitted Dr. Bail to testify.

(2)

During the Experts Testimony

[49]

As
    we know, the trial judge permitted Dr. Bail to testify and determined that Dr.
    Bail crossed the line of acceptable expert evidence. In order to analyze his
    response to this situation, it is first necessary to consider whether the trial
    judges concerns regarding Dr. Bails testimony were well founded. Assuming
    that they were, the next issue is what the trial judge should have done in the
    circumstances.

(1)

Did Dr. Bails Testimony Indicate Lack of Impartiality?

[50]

I
    have had the opportunity to consider in detail Dr. Bails evidence and I concur
    with the trial judge that it is most troubling. For present purposes, it is unnecessary
    to recount his testimony in full. Instead, I will focus on some of the more
    concerning aspects of his testimony.

[51]

First,
    I repeat my concern regarding his methodology. It was fundamentally unfair to Ms.
    Bruff-McArthur not to give her an opportunity to explain the alleged
    inconsistencies in the information she provided. As mentioned above, there is a
    real concern that Dr. Bail was usurping the role of the trier of fact in determining
    the issue of Ms. Bruff-McArthurs credibility. Despite that concern, I am
    willing to acknowledge that in a case such as this, where the existence and
    extent of the alleged injuries are not easily determined, consideration of the
    plaintiffs veracity is a necessary part of an independent medical examination.
    However, if Dr. Bail were serious about probing this issue, he would not have
    adopted this methodology. He would have reviewed the inconsistencies with Ms.
    Bruff-McArthur.

[52]

Second,
    and equally troubling, is that to the extent that Dr. Bail referred to the
    scientific testing conducted, he torqued the results so that they produced
    results that supported his conclusion. For example, he testified that Ms.
    Bruff-McArthur was administered a test where she was instructed to count
    backwards from 100 by 7s. He noted that she provided a few incorrect answers in
    her count. Dr. Bail considered this to be an inconsistency because she was able
    to get some of the count right but also made mistakes. For Dr. Bail,
    inconsistencies meant that the subject was not being truthful about her condition.

[53]

Dr.
    Bail then testified that in cases where a subject mathematically just doesnt
    have it together, he asks them to recite the months of the year in reverse
    order. Apparently, Ms. Bruff-McArthur did very well on this test, answering
    correctly and quickly. Dr. Bail testified that that this result was also an
    inconsistency because she did so well on that test and so poorly on the 7s
    test. So, despite the fact that Dr. Bail testified that he administers the
    month test as a check for those who are not mathematically inclined, he calls
    into question her credibility for doing well on the month test and faring poorly
    on the 7s test.

[54]

Dr.
    Bail went on to administer another mathematical test, requiring her to
    calculate how many $1.50 magazines could be purchased with $10. Ms.
    Bruff-McArthur did not do well on this test and Dr. Bail considered this to be
    an inconsistency. The other logical conclusion, that Ms. Bruff-McArthur was
    consistently weak in performing math exercises, seems not to have crossed his
    mind.

[55]

In
    short, the tests were deliberately interpreted to fit a theory of mendacity.
    Unless she got every question on every test correct, she was inconsistent and,
    in Dr. Bails opinion, inconsistency equated to an untruthful subject.

[56]

A
    third concern relates to a subtle point that demonstrates Dr. Bails
    fundamental misconception of his role. He questioned Ms. Bruff-McArthur
    regarding her physical limitations. It is, of course, perfectly appropriate for
    a psychiatrist conducting an independent medical examination to ask questions
    about a subjects physical injuries and resultant limitations. That information
    could provide useful context for the examination. However, Dr. Bail was quite
    open about the fact that he asked the questions for an entirely different
    purpose. He testified that he asked about physical limitations so that he could
    compare those answers to any future surveillance evidence he may receive. This
    is consistent with how Dr. Bail regarded the purpose of his review of the
    medical records. There is a troubling pattern that suggests that he understands
    his primary role to be to expose inconsistencies and not to provide a truly
    independent assessment of Ms. Bruff-McArthurs psychiatric condition.

[57]

Fourth,
    when Dr. Bail was cross-examined about his emphasis on perceived
    inconsistencies, he denied ignoring those parts of the medial records that did
    not fit his diagnosis. He explained their absence from his report on the basis that
    you cant put everything in your report. Later in his cross-examination, Dr.
    Bail stated, Im interested in the things that dont corroborate, not the things
    that do corroborate. Again, this testimony makes plain Dr. Bails lack of
    awareness of the need to be impartial as an expert witness.

[58]

Before
    turning to what the trial judge should have done in face of this testimony, I
    wish to correct one of his findings. The trial judge stated in his reasons on
    the Threshold Motion that Dr. Bail did not have any notes of his examination of
    Ms. Bruff-McArthur. Based on this observation, he concluded that Dr. Bail was
    making his testimony up as he went along to support his position.

[59]

That
    is not accurate. Dr. Bail did have notes. Indeed, the trial judge ruled that he
    could refer to them as he testified. It is not a fair conclusion that Dr. Bail
    was making up his testimony. Having reviewed his evidence carefully, I am of
    the view that there is no basis to conclude that Dr. Bail was anything but
    truthful in his testimony. I have concerns regarding Dr. Bails independence
    and his methodology; I do not have any concerns about his veracity.

(2)

What Should the Trial Judge Have Done in this Case?

[60]

Under
    the
White Burgess
framework, and in most other leading cases on the admissibility
    of expert evidence, the issue of admissibility is decided at the time the
    evidence is proffered and the expert witnesss qualification is requested by a
    party. To the extent that this is possible, it should be the norm:
R. v.
    J.-L.J.
, 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28.

[61]

In
    the present case, however, the trial judge appears to have assumed that, once
    Dr. Bail was qualified as an expert, his gatekeeper role was at an end. The
    trial judge erred in law in reaching that conclusion.

[62]

A
    trial judge in a civil jury case qualifying an expert has a difficult task. She
    must make a decision based on an expert report that will, in most cases, never
    be seen by the jury. While the report provides a roadmap of the anticipated
    testimony and specific limits may be placed on certain areas of testimony, the
    trial judge obviously cannot predict with certainty the nature or content of
    the experts testimony.

[63]

Where,
    as here, the experts eventual testimony removes any doubt about her
    independence, the trial judge must not act as if she were
functus
. The
    trial judge must continue to exercise her gatekeeper function. After all, the
    concerns about the impact of a non-independent expert witness on the jury have
    not been eliminated. To the contrary, they have come to fruition. At that
    stage, when the trial judge recognizes the acute risk to trial fairness, she
    must take action.

[64]

Charron
    J.A. made this point in
K. (A.)
, writing as follows at para. 73:

In some cases it may be possible to rule on the admissibility
    of the proposed evidence on the basis of counsels submissions
    alone. However it may at times prove necessary to hold a
voir
    dire
in order to properly consider all relevant factors. Where the
    trial is before a jury and the question of admissibility cannot be clearly
    determined in a summary fashion, it may indeed be prudent to scrutinize the
    evidence during the course of a
voir dire
before admitting
    it.
While in some cases the ruling can be made early in the proceedings, in
    other cases, it may be only later in the trial that the value of the proposed
    evidence can be properly assessed.
For example, in this case, it was only
    after the main Crown witnesses had testified and the defence strategy became
    apparent that the determination of the admissibility of the expert evidence
    could properly be made. [Emphasis added and footnote omitted.]

And in a later decision in
R. v. Ranger
(2003),
    67 O.R. (3d) 1 (C.A.), at para. 63, Charron J.A. stated:

[The dangers of expert opinion evidence] must be considered in
    the balancing process that forms part of the test for admissibility. Further,
the
    trial judges gatekeeper function does not end with the ruling on admissibility
.
    The expert evidence must be carefully constrained in its presentation with a
    view to minimizing the associated dangers so that, in the end result, the judge
    is still satisfied that the probative value of the evidence exceeds its
    prejudicial effect and is properly admissible. [Emphasis added.]

[65]

As mentioned above, the cost-benefit analysis under the second
    component of the framework for admitting expert evidence is a specific
    application of the courts general residual discretion to exclude evidence
    whose prejudicial effect is greater than its probative value. This general residual
    discretion is always available to the court, not just when determining whether
    to admit an item of evidence, but after the admission stage if the evidences
    prejudicial effect is only revealed in the course of its presentation to the
    trier of fact.

[66]

An instructive discussion is found
in
R.
    v. White
,
2011 SCC 13,
[2011] 1
    S.C.R. 433,
a case that
dealt with the admissibility of
    post-offence conduct in criminal matters.
A
majority
of the Supreme Court stated
at para. 50:

Otherwise admissible evidence may still be removed from
    consideration by the jury on the basis that it is more prejudicial than
    probative. This may be achieved by refusing to admit the evidence at trial.
It
    can also happen that the disproportionately prejudicial nature of a certain
    item of evidence only becomes apparent in light of the evidence as a whole.
The trial judge may then instruct the jury in his charge that they may not
    consider a certain item of evidence in their deliberations. [Emphasis added.]

The discussion from
White
makes clear that
    the courts residual discretion to exclude prejudicial evidence is an ongoing
    one that continues throughout a trial. It may be invoked if prejudice manifests
    after initially admitting the evidence. Thus, because the second component of
    the framework for admitting expert evidence is an application of this residual
    discretion, the court has residual discretion to exclude expert evidence even
    after admitting it, if later in the trial prejudice emerges that was not
    apparent at the time of admission.

[67]

Given
    this ongoing gatekeeper discretion, the question remains of what, as a
    practical matter, the trial judge could or should have done in this case. His first
    option would have been to advise counsel that he was going to give either a
    mid-trial or final instruction that Dr. Bails testimony would be excluded in
    whole or in part from the evidence. Had he taken that route, he would have
    received submissions from counsel in the absence of the jury and proceeded as
    he saw fit. Alternately, he could have asked for submissions from counsel on a
    mistrial, again in the absence of the jury, and ruled accordingly. In the event
    that he had to interrupt Dr. Bails testimony mid-trial, he would have had to
    consider carefully how best to minimize the potential prejudicial effect of the
    interruption from the respondents perspective.

[68]

The
    point is that the trial judge was not powerless and should have taken action.
    The dangers of admitting expert evidence suggest a need for a trial judge to
    exercise prudence in excluding the testimony of an expert who lacks
    impartiality before those dangers manifest.

[69]

I
    am mindful that counsel for Ms. Bruff-McArthur did not seek an instruction regarding
    Dr. Bails evidence. The law is generally that the failure to object to a civil
    jury charge is fatal to a request for a re-trial on appeal based on
    misdirection or non-direction. However, this rule is subject to the exception
    that where the misdirection or non-direction resulted in a
substantial wrong or miscarriage of justice, it may warrant
    a new trial:
Pietkewicz v. Sault Ste. Marie District Roman Catholic
    Separate School Board
(2004), 71 O.R. (3d) 83
    (C.A.), at paras. 22-28; and
Briscoe Estate v. Canadian Premiere
    Life Insurance Co.
, 2012 ONCA 854, 113 O.R. (3d)
    161, at paras. 70-71
.
In my view, the admission of Dr. Bails testimony
    resulted in a miscarriage of justice.

[70]

I
    would go further and state that, given the importance of a trial judges on-going
    gatekeeper role, the absence of an objection or the lack of a request for a
    specific instruction does not impair a trial judges ability to exercise her
    residual discretion to exclude evidence whose probative value is outweighed by its
    prejudicial effect.

[71]

The
    respondent submits that even if this court concludes that Dr. Bails testimony
    should have been excluded, there is no basis to order a new trial because he
    was just one of many witnesses and his testimony likely did not have a significant
    impact on the jurys verdict.

[72]

It
    is impossible to gauge with any certainty the impact of Dr. Bails testimony. The
    fact that he was one of only two witnesses to testify for the defence suggests
    that his testimony may well have been an important factor in the jurys
    analysis of the case. In any event, a focus on the inability to measure the
    precise prejudice caused by the testimony misses the point entirely, which is
    that there has been a miscarriage of justice in this case. This court has a
    responsibility to protect the integrity of the justice system. This is not a no
    harm, no foul situation.  No doubt, another trial will be costly and time
    consuming, but it is necessary because the defence proffered the evidence of a
    wholly unsuitable expert witness.

D.      DISPOSITION

[73]

I
    would grant the appeal, set aside the judgment below, and order a new trial. I
    would award the appellants their costs of the appeal in the amount of $22,000,
    inclusive of fees, disbursements and applicable taxes.

[74]

The
    parties may make written submissions on the issue of the costs of the first
    trial.

C.W. Hourigan J.A.

I agree. P. Lauwers
    J.A.

I agree M.L.
    Benotto J.A.

[1]
On appeal, the appellants are represented by different counsel than the counsel
    they were represented by at trial.


>

COURT OF APPEAL FOR ONTARIO

CITATION: Childs v. Childs, 2017 ONCA 516

DATE: 20170620

DOCKET: C61581 and C62716

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Michael Childs and Andrew Childs

Applicants

(Respondents)

and

Peter Childs
,
Caroline
    Childs
and the Public Guardian and Trustee

Respondents (Appellants)

AND BETWEEN

Peter Childs and
Caroline Childs

Applicants

(Appellant)

-and-

Michael Childs, Andrew Childs, Eileen Vera Childs
    and the Ontario Public Guardian and Trustee

Respondents

(Respondents)

Peter Childs and Caroline Childs, in person

Michael Childs and Andrew Childs, in person

Alexandra V. Mayeski, for BMO Trust Company

Debra Stephens and Kaylie Handler, for the intervener
    Wendy Griesdorf

Richard Coutinho, for the Public Guardian and Trustee

Heard: May 4, 2017

On appeal from the decision of Justice Gary W. Tranmer of
    the Superior Court of Justice, dated June 25, 2015, and the judgment dated December
    16, 2015, with reasons reported at 2015 ONSC 4036 and at 2015 ONSC 6616.

By the Court:

[1]

Eileen Vera Childs (Mrs. Childs) is 90 years
    of age and has Alzheimers disease.  These two appeals are the culmination of
    protracted litigation by her four children, who disagree about her care.

BACKGROUND

[2]

Mrs. Childs was born on September 15, 1926.  She
    is currently 90 years of age and has Alzheimers disease.  She has four
    children:  Peter Childs, Caroline Childs, Michael Childs, and Andrew Childs.
    For ease of reference, we will refer to each of the children by his or her first
    name.

[3]

The four children do not agree on how their mother
    should be cared for.  Generally speaking, Peter and Caroline are on one side of
    the dispute and Michael and Andrew are on the other side.

The Applications

[4]

Two proceedings were commenced in the court
    below (the Applications).

[5]

Michael and Andrew brought an application in
    which they sought, among other things: a declaration of Mrs. Childs
    incapacity; a revocation of existing powers of attorney in favour of all four
    children; and, their appointment as guardians of their mothers personal care
    and property.  The named respondents were Peter, Caroline, and the Public
    Guardian and Trustee (the PGT).

[6]

Peter and Caroline responded with an application
    in which they sought to have Peter appointed as guardian of Mrs. Childs
    property and Caroline as her guardian for personal care.  In addition, they
    sought the appointment of counsel for their mother under s. 3 of the
Substitute
    Decisions Act
, 1992,
S.O.
    1992, c. 30 (the SDA).

[7]

An order was made requiring the PGT to arrange
    for legal representation for Mrs. Childs under s. 3 of the SDA.  Pursuant to
    that order, Ms. Wendy Griesdorf was appointed as s. 3 counsel to represent Mrs.
    Childs (Section 3 Counsel).

[8]

The Applications were heard together on June 18, 2015.  Prior to the
    oral hearing of the Applications, almost all of the issues had been resolved on
    consent.  The only outstanding matter in dispute (aside from costs of the
    litigation) was how much Caroline should be paid for her care of Mrs. Childs.
    There were two aspects to this matter: should Caroline be compensated for the
    care she had provided to her mother from June 2011 to October 2013 and from
    April 23, 2015 to the date of the hearing; and, how much should Caroline be
    paid on an ongoing basis for providing that care?  At the hearing, Caroline
    sought $133,000 for the care that she had provided from June 2011 to October
    2013 and $170.22 per day for the care that she had provided from April 23, 2015
    to the date of the hearing. She also sought $53,620 in annual compensation for
    caring for her mother going forward.

[9]

The applications judge released his reasons for decision on June 25,
    2015 (the Applications Decision).  In the Applications Decision:

·

Mrs. Childs was
    found incapable in terms of management of personal care and property,

·

Her deemed
    capable wishes were as set out in Section 3 Counsels submissions,

·

Caroline was
    appointed guardian of personal care for Mrs. Childs,

·

BMO Trust Company
    (BMO) was appointed guardian of property for Mrs. Childs and ordered to pass
    accounts every two years,

·

Michael was
    appointed as Mrs. Childs litigation guardian,

·

Caroline was to
    be paid $25,000 for the care that she had provided for her mother between June 2011
    and October 2013 and the two months preceding the hearing of the Applications,
    and

·

Caroline was to
    be paid compensation of $500 per month going forward.

A Motion to Vary Is Brought

[10]

Five
    days after the Applications Decision was released, in a letter dated June 30,
    2015 (the June 2015 Letter), Carolines counsel advised the parties that
    Caroline was in the process of arranging for professional care for Mrs. Childs
    on a full-time basis.  In the June 2015 Letter, Carolines counsel asserted
    that full-time professional care was being arranged in accordance with the
    terms of the Applications Decision, with Caroline as the supervisor of the
    personal care plan, rather than as the primary caregiver.  The June 2015 Letter
    also stated that given the low amount of compensation provided for Caroline in
    the Applications Decision, Caroline would seek outside full-time employment.

[11]

Section
    3 Counsel brought a motion under r. 59.06(2)(a) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, seeking an order to set aside or vary
    Carolines appointment as guardian of Mrs. Childs personal care on the ground
    of new facts arising after the Applications Decision, namely, the June 2015
    Letter.  In the motion, she asserted that Carolines proposal in the June 2015
    Letter was inconsistent with the guardianship plan previously filed. In
    particular, Section 3 Counsel noted that Caroline was now maintaining that she would
    no longer provide such basic necessities for her mother as housekeeping,
    laundry, meal preparation or general property maintenance.

[12]

On
    August 21, 2015, the applications judge gave an oral ruling (the Vary Motion
    Ruling) that the contents of the June 2015 Letter fell within r. 59.06(2)(a) as
    demonstrating facts arising or discovered after the Applications Decision was
    released and, consequently, the vary motion could proceed.

Costs of the Applications

[13]

Before
    the return of the vary motion, in reasons dated September 17, 2015, the
    applications judge released his costs decision in respect of the Applications. The
    corresponding order was dated September 18, 2015 (the Costs Order).

[14]

Section
    3 Counsel had sought costs of the Applications of $55,351. Michael and Andrew
    consented to this amount being paid from Mrs. Childs assets. Caroline and
    Peter asserted that the costs were excessive and should be reduced by 75%.
    They also alleged misconduct by Section 3 Counsel.

[15]

Both
    sets of children also sought their own costs.

[16]

The
    applications judge noted that all of the issues had been resolved before the
    hearing of the Applications with the exception of Carolines compensation for
    her care of Mrs. Childs and that it was Peter and Carolines decision to
    litigate that issue.

[17]

He
    ordered Peter and Caroline to pay Section 3 Counsel $16,770 in costs, with the
    balance of Section 3 Counsels costs to be paid from Mrs. Childs assets.  He
    also ordered them to pay Michael and Andrew costs of $4522.  Michael and Andrew
    were to bear the balance of their costs personally.  Costs of the PGT were to
    be paid from Mrs. Childs estate.  Peter and Caroline were to bear their own
    costs.

The Vary Motion is Heard and Decided

[18]

The
    vary motion was heard over four days in October and November 2015.

[19]

On
    November 13, 2015, the applications judge delivered reasons in which he ruled
    inadmissible certain evidence that Peter and Caroline had adduced on the vary
    motion, including affidavit evidence about the conduct of Section 3 Counsel as
    well as paragraphs from Caroline and Peters affidavits relating to settlement
    discussions.

[20]

He
    released reasons for judgment on the vary motion dated December 16, 2015 (the
    Vary Motion Decision).

[21]

In
    the Vary Motion Decision, the applications judge rejected Caroline and Peters
    assertion that the June 2015 Letter was simply their attempt to implement the
    Applications Decision.  He found that Caroline and Peters actions had caused
    the litigation to escalate. He varied the Applications Decision by ordering that
    Michael and Caroline were to be joint guardians of Mrs. Childs personal care
    in accordance with a guardianship plan filed by Michael. He reluctantly
    increased Carolines compensation going forward to $50,000 per year, after
    Michael agreed to it and Section 3 Counsel acknowledged that it was required,
    given the situation.

[22]

As
    the parties had not yet taken out an order based on the Applications Decision,
    the applications judge also set out terms for assisting in the settlement of an
    order which took into account both the Applications Decision and the Vary
    Motion Decision.  This led to a judgment dated December 16, 2015 (the
    Judgment).

Costs of the Vary Motion

[23]

On
    April 5, 2016, the applications judge delivered a decision on the costs of the
    vary motion (the Vary Motion Costs Order).  He found that the vary motion was
    necessitated by the actions of Caroline and Peter, who leveraged their
    mothers health and best interests to manipulate a more favourable result to
    Caroline than that which he had ordered in the Applications Decision.

[24]

The
    essential aspects of the Vary Motion Costs Order are:

·

the parties
    consented to an award of $1500 costs to the PGT to be paid from Mrs. Childs
    estate,

·

costs were
    awarded to Section 3 Counsel in the amount claimed of $102,641.29 plus $1238.35
    disbursements, such costs to be paid from Mrs. Childs assets,

·

the costs of Section
    3 Counsel of $16,770 provided for in the Costs Order, which were to have been
    paid by Peter and Caroline, were ordered to be paid from Mrs. Childs assets,

·

50% of the total
    costs payable to Section 3 Counsel were to be set off against Peter and
    Carolines inheritances from their mothers estate,

·

costs in the
    amount of $26,459.20 plus HST were ordered in favour of BMO, to be paid from
    Mrs. Childs assets,

·

50% of the total
    costs payable to BMO were to be set off against Peter and Carolines
    inheritances from Mrs. Childs estate,

·

Michael and
    Andrews costs were fixed at $72,614.98,

·

50% of Michael
    and Andrews costs were to be paid from Mrs. Childs assets and set off against
    Caroline and Peters inheritances, and

·

Caroline and
    Peter were ordered to bear their own costs.

Motion to Compel the Passing of
    Accounts

[25]

On
    November 10, 2016, Peter, supported by Caroline, brought a motion to compel a
    passing of accounts by BMO and Section 3 Counsel (the Passing of Accounts
    Motion).

[26]

In
    an endorsement dated November 10, 2016, the motion judge dismissed the Passing
    of Accounts Motion. He noted that BMO was already subject to the Applications
    Decision, which required it to pass accounts every two years.  He also noted
    that the Applications Decision was under appeal and found that the Passing of
    Accounts motion was a collateral attack on it.

[27]

He
    awarded costs of the motion to BMO ($6200), to Section 3 Counsel ($5000), and
    to Michael, as the litigation guardian ($2000). The costs were ordered to be
    paid out of Mrs. Childs estate, to be set off against Peters expected
    inheritance.

Orders of Feldman
    J.A. made on February 25, 2016

[28]

Feldman J.A. heard two motions in these
    proceedings on February 25, 2017.  Two appeals had been brought:  C62716 and
    C61581.  She ordered appeal C62716, which had been brought to the Divisional
    Court, transferred to this court.  She ordered it to be consolidated with
    C61581 and the two appeals heard together.

[29]

She also granted Section 3 Counsels motion in
    which she asked to be relieved of her role in this court.

The Motions on March
    28, 2017

[30]

Prior to the hearing of the appeals, five more motions were brought
    to this court relating to these appeals.  P
eter and Caroline moved for leave to appeal (1) the Costs Order, (2) the Vary
    Motion Ruling, and (3) the Vary Motion Costs Order.  Peter moved for leave to
    appeal (4) the decision rendered in the Passing of Accounts Motion.  Section 3
    Counsel moved for (5) leave to intervene on the appeals.

[31]

The motions were heard by Simmons J.A. on March
    28, 2017.  Her reasons were released on April 4, 2017 (the Simmons Decision).

[32]

In the first motion,
    Peter and Caroline sought to appeal the Costs Order (which decided costs of the
    Applications).
Simmons J
.A. granted leave to appeal the Costs
    Order only on the issue of Peter and Carolines personal liability for such
    costs and not on the quantum of the costs awarded.  Simmons J.A. also deemed
    struck all submissions and evidence in Peter and Carolines appeals
    documentation relating to the quantum of costs awarded to Section 3 Counsel and
    BMO and to any submissions and evidence not made or filed in the court below.

[33]

In the second motion, Peter and Caroline sought
    an extension of time to appeal the Vary Motion Ruling. Simmons J.A. concluded
    that this motion concerned an appeal from a final order and that permitting the
    appeal would not be redundant in relation to the pending appeals before this
    court.  Although there was no clear evidence that Peter and Caroline had formed
    an intention to appeal the Vary Motion Ruling within the appeal period,
    Caroline had raised issues concerning its propriety in her notice of appeal of
    the Judgment, thereby notifying the other parties within the relevant time
    period.  Simmons J.A. therefore granted the second motion.

[34]

In the third motion,
    Caroline sought leave to appeal the Vary Motion Costs Order. Simmons J.A.
    explained that Caroline should have made this request in a supplementary or
    amended notice of appeal in relation to the appeal of the Judgment, but to
    disregard the request for that reason would be overly technical and contrary to
    r. 1.04 of the
Rules of Civil Procedure
. That provision requires courts to construe the
Rules
to secure the just, most expeditious and
    least expensive determination of every civil proceeding on its merits.
    Therefore, Simmons J.A. granted leave but again precluded a challenge to the
    quantum of costs awarded.

[35]

At the oral hearing of the motions
    on March 28, 2017, Peter withdrew his request, in the fourth motion, for an
    order compelling a passing of accounts by BMO.  However, he pursued the motion
    in respect of Section 3 Counsel.

[36]

Simmons J.A. dismissed
    the fourth motion, noting that Peter had not pointed to any authority
    permitting the granting of this relief.

[37]

In the fifth motion,
    Section 3 Counsel requested leave to intervene on the appeals.  After acknowledging
    that granting such leave is rare in private lawsuits, Simmons J.A. nonetheless
    granted leave.  She did so because Peter and Caroline, in advancing their
    appeals, were making serious allegations concerning Section 3 Counsels conduct,
    which impugned Section 3 Counsels reputation and integrity.  Further, Peter
    and Caroline relied on those allegations in support of other aspects of their
    appeals and separation of the various allegations might prove to be impractical.
    In the circumstances, Simmons J.A. held that Section 3 Counsel was entitled to
    participate in the appeals to protect her reputational interests.

The Review Motion

[38]

Peter and Caroline moved to set aside or vary
    the Simmons Decision so that:

1.

on the
appeals, they could argue the quantum of the costs awarded to Section 3 Counsel
    and BMO;

2.

the panel hearing the
    appeals would have before it the materials that the Simmons  Decision ordered
    excluded; and

3.

Section 3 Counsels status as intervener on the appeal would be revoked
    and she would be declared a party.

[39]

The panel of this Court hearing the appeals
    ordered that the review motion was to be heard in conjunction with the appeals.

The Review Motion
    Decided

[40]

The review motion was argued at the outset of
    the hearing of the appeals.  After hearing argument, the panel advised the
    parties that the review motion was dismissed for reasons to follow.  These are
    the promised reasons.

[41]

A review of a decision by a single judge of this
    court is a review for error, not a hearing
de novo
. The panel found no error in the Simmons Decision.  Accordingly,
    there is no basis on which to interfere with it.

[42]

First, Peter and Caroline argue that, on these
    appeals, they should be allowed to argue the quantum of costs awarded to Section
    3 Counsel and to BMO in the proceedings below. An award of costs is a discretionary
    matter entitled to significant deference by appellate courts.  Such awards
    should be set aside on appeal only if the first instance judge 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.  We see no error in principle in the quantum of costs
    awarded nor can we conclude that they are plainly wrong.  Accordingly, there is
    no basis for interfering with the Simmons Decision precluding Peter and
    Caroline from arguing the quantum of costs awarded in favour of Section 3
    Counsel and BMO.

[43]

Second, there is no basis for interfering with
    the Simmons Decision deeming struck certain parts of the materials that Peter
    and Caroline filed on these appeals.  Those materials related to (1) the quantum
    of costs awarded to Section 3 Counsel and BMO, and (2) evidence that had not
    been filed in the court below.

[44]

As we have explained, the Simmons Decision
    refusing leave to appeal the quantum of costs awarded stands.  Consequently, those
    parts of Peter and Carolines documentation relating to the quantum of costs below
    are not relevant to a matter in issue on the appeals.  For that reason alone,
    there is no basis on which to interfere with the Simmons Decision deeming those
    materials struck.

[45]

As for the documentation that refers to submissions
    and evidence not before the court below, the general rule is that such
    materials are inadmissible on appeal.  Simmons J.A. made no error in adhering
    to the general rule.

[46]

Third, there is no basis on which to interfere
    with the Simmons Decision to permit Section 3 Counsel to intervene on the
    appeal.  That decision was the exercise of Simmons J.A.s discretion and is
    entitled to deference on review by this panel.  Furthermore, Section 3
    Counsels case for intervention was compelling, given the allegations that
    Peter and Caroline make against her in these appeals.

THE ISSUES ON THE APPEALS

[47]

After allowing for the fact that some of the
    issues raised in the two appeals are the same and others are overlapping, the
    issues on the appeals can be summarized as follows.

C62716 (transferred from Divisional Court with file number
    15-DC-2138)

[48]

In
    appeal C62716, Peter and Caroline appeal the Applications Decision.  On this
    appeal, their primary challenges are to: BMOs appointment as guardian of Mrs.
    Childs property; Michaels appointment as Mrs. Childs litigation guardian; and,
    the application judges award of compensation to Caroline for past personal
    care services. They also assert that there is a reasonable apprehension of bias
    on the part of the applications judge. Further, they challenge various factual
    findings made by the applications judge.

C61581

[49]

Appeal
    C61581 is Carolines appeal of the Judgment.  In it, Caroline: challenges her
    joint appointment with Michael to serve as guardians for Mrs. Childs personal
    care and asks for her appointment as sole guardian; seeks a declaration or
    order regarding Section 3 Counsels role as stated in paras. 70 and 93 of the
    Judgment; asserts that the applications judge erred in hearing the vary motion;
    and, asserts that the applications judge erred in finding that Section 3
    Counsel had acted commendably throughout.

ANALYSIS

[50]

In our view, there is no merit to these appeals.
    They are the culmination of unnecessarily protracted litigation that has
    depleted Mrs. Childs estate, wreaked havoc on the emotional and financial
    health of all concerned, wrongfully maligned Section 3 Counsel, and wrongfully
    impugned the applications judge.  It is past time for the litigation over Mrs.
    Childs to end.

[51]

Appellate courts do not rehear or retry
    cases without a clear statutory mandate  they review for error:
H.L.
    v. Canada (Attorney General)
, 2005 SCC 25, [2005] 1
    S.C.R. 401, at para. 52.  The nature of the review undertaken by this court
    depends upon the nature of the issue in dispute and the relevant standard of
    review.

[52]

Many of the arguments made on both appeals are
    essentially challenges to the factual findings of the applications judge.  Such
    findings are subject to the palpable and overriding error standard of review.
    A palpable error is one that is obvious, plain to hear or see. An
    overriding error is an error that is sufficiently significant to vitiate the
    challenged finding of fact. Where the challenged finding of fact is based on a
    constellation of findings, the conclusion that one or more of those findings is
    founded on a palpable error does not automatically mean that the error is
    also overriding:
Waxman v. Waxman
(2004),
    186 O.A.C. 201 (C.A.), at paras. 296-297.

[53]

Because the appeals are largely based on
    challenges to factual findings, Peter and Caroline bear a heavy onus.  However,
    four claims that are advanced on the appeals arguably also raise questions of mixed
    fact and law and, therefore, may be subject to a somewhat less deferential
    standard of review.  These issues are: (1) BMOs appointment as guardian of
    Mrs. Childs property; (2) Carolines claim for increased compensation for past
    personal care services that she provided her mother; (3) whether the
    applications judge erred in hearing the vary motion; and, (4) whether there is
    a reasonable apprehension of bias on the part of the applications judge.  We will
    begin by considering these four claims.

(1)

BMOs Appointment as Guardian of Property

[54]

On this ground of appeal, Caroline
    and Peter assert that they did not consent to BMOs appointment as guardian of
    property.

[55]

This ground of appeal cannot succeed.
    BMO was appointed as the guardian of Mrs. Childs property on consent of all of
    the parties.  At the time they consented, Peter and Caroline were represented
    by counsel.  In effect, on this ground of appeal, Peter and Caroline seek to
    appeal their own consent.

[56]

For this ground of appeal to succeed,
    Peter and Caroline would have to point to a palpable and overriding error in
    the application judges finding that they consented to BMOs appointment and
    their consent was full and informed.  They have pointed to no such error.

[57]

Furthermore, an appeal from a
    consent order requires leave of the court to which the appeal is to be taken:
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, s.
    133(a).  Leave to appeal was not sought from this court, so this panel must
    begin by considering whether leave should be granted.  We have concluded that
    it should not.

[58]

Consent orders have their
    foundation in contract.  There is great judicial resistance to granting leave
    to appeal consent orders.  Leave should not be granted where the issue relates
    to the validity of the consent unless there is evidence before the court on the
    leave application that demonstrates an arguable case that at the time the
    consent was given, the party could not or did not consent.  Such evidence may relate
    to factors that might undermine the enforceability of contracts, such as fraud,
    duress and undue influence:
Ruffudeen-Coutts v. Coutts
, 2012 ONCA 65, 348 D.L.R. (4th) 64, at
    paras. 59-64.

[59]

Caroline and Peters
    central argument on this ground is that Section 3 Counsel coerced them into
    accepting BMO as property guardian by insisting that she would not advocate for
    removal of Mrs. Childs from Andrews residence until Peter and Caroline
    consented to the appointment. Assuming that to be the case, it does not constitute
    evidence of fraud, duress or undue influence such that leave should be granted.

(2)

Carolines Claim for Increased Compensation for
    Past Care Services

[60]

Carolines claim for increased compensation for
    past personal care services appears to be based on unjust enrichment.  This
    claim may arise from the application judges reference to
Peter v.
    Beblow
, [1993] 1 S.C.R. 980, at p. 984, in the
    Applications Decision.  In that decision, the applications judge
did not

accept that Caroline had any arguable claim in unjust enrichment. He merely
    cited
Peter v. Beblow

as authority empowering
    him to make an equitable resolution of this particular dispute.

[61]

The claim in unjust enrichment fails for the
    simple reason that the applications judge found that Caroline had gratuitously provided
    the care in question for her mother and, indeed, was willing to continue to do
    so.  This finding has compelling support in the record, as discussed in more
    detail below.

[62]

At this point, it is sufficient to note that on June
    17, 2015  one day before the hearing of the Applications  Section 3 Counsel wrote
    to counsel for Caroline to determine whether Caroline was reconsidering her
    guardianship plan proposing that she live in [Mrs. Childs house] if the
    compensation is set lower than she expects. In her responding letter, counsel
    for Caroline wrote: In response to your question, there is no connection
    between the level of compensation that Caroline is requesting and the offer to
    live [in Mrs. Childs house].

[63]

The argument that an offer to live in Mrs.
    Childs house did not amount to an offer to provide Mrs. Childs with personal
    care does not satisfy the palpable and overriding error standard.

[64]

Therefore, this ground of appeal fails.

(3)

No Error in the Hearing of the Vary Motion

[65]

This ground of appeal relates to the
    availability of the r. 59.06(2)(a) motion based on the June 2015 Letter.
    Caroline and Peter submit that, in hearing and deciding the vary motion, the
    applications judge exceeded the scope of such motions, essentially rehearing a
    case he had already heard.

[66]

We see no error in the applications judges
    determination that the vary motion fell within the scope of r. 59.06(2)(a).  The
    applications judge determined that the matter fell within the scope of r.
    59.06(2)(a) because Caroline had clearly indicated to all parties, prior to and
    throughout the proceedings, that she would continue to live with and care for
    her mother in her mothers home on a full-time basis, whether or not her claims
    for compensation for such care were granted by the court.  The applications
    judge had relied on those representations in making the Applications Decision.
    Carolines intentions, as revealed in the June 2015 Letter, stood in direct contrast
    with those representations.  In the June 2015 Letter, Caroline contemplated
    arranging full-time, 24/7 professional caregivers for her mother while she
    sought outside employment.

[67]

A full and fair reading of the Applications
    Decision shows that, when setting the amount of Carolines compensation, the
    applications judge based it on a finding that Caroline would continue to
    provide personal, unpaid care to her mother.  The following excerpts from the
    Applications Decision demonstrate this.

[32]

In considering this issue, important
    factors include that the care and services performed by Caroline did benefit
    her mother and were in her mother's best interests. She did not act with the
    expectation of being compensated nor was she motivated by the compensation
    possibility.  She would have done the same, compensation or not. Eileen
    Childs is lucky to have her daughter to help her remain in her own home because
    otherwise she could not.  Eileen Childs has significant liquid assets.
     However, her in-home care needs will increase and become significant and
    the cost of the proper facility will be significant.  These expenses are
    in her future in all likelihood.  I have also considered that Peter and
    Michael both thought compensation was appropriate.

[38] The care provided by Caroline to this point in time is of
    priceless value to her mother. One really cannot place a dollar figure on it.
    Even if it enhanced Eileen Childs life for one day or one hour, the value is
    beyond measure.

[42] It is fair and reasonable from the perspective of Eileen
    Childs best interests that Caroline be paid the sum of $25,000 in recognition
    of her efforts, which to some extent two of the three brothers have
    acknowledged. This is for her personal care services for the 2½ years between
    2011 and 2013 and for the past two months since the order of Justice McLean.

[43] This is in Eileens best interests to end this dispute
    between her children.

[44]
Caroline should
    not have brought this claim to court to litigate against her family, but she
    should not have had to do so either. The $150,000 incurred by this family for
    legal fees could have been more constructively utilized within the family. The
    litigation also took a toll on all concerned emotionally. We have heard
    submissions that Eileen is upset by this family feud.

[68]

Given the application judges reliance on Carolines representation
    that she would continue to provide her mother with personal care  with or
    without payment  the statement in the June 2015 Letter that Caroline planned
    to pursue full-time employment outside of the home met the requirements of r.
    59.06(2)(a).

[69]

Caroline and Peter focus on paragraph 46 of the
    Applications Decision for an interpretation that would allow Caroline to cease
    providing much personal care for Mrs. Childs.  On their interpretation, the
    Applications Decision made Caroline the guardian of Mrs. Childs personal care
    and ordered that others were to actually provide Mrs. Childs with most of her personal
    care.

[70]

Paragraph 46 must be read in the context of paragraph
    45 (as well as the balance of the reasons).  Therefore, paragraphs 45 and 46
    are set out now.

[45] With respect to the
    compensation for Caroline as guardian of the personal care of Eileen Childs,
    that is a distinct issue from the direct caregiving that has taken place to
    date.

[46] Going forward as guardian of her mothers personal care,
    Carolines role is as the manager of personal care rather than the primary care
    attendant. There are sufficient assets available to permit proper homecare to
    be provided for Eileen Childs in her home. Caroline will have to manage
    accessing the proper services and care givers and she should do so to provide
    fully for the best interests of her mother.

[71]

Caroline
    and Peters interpretation might be plausible if paragraph 46 were read in isolation.
    However, when the Applications Decision is read as a whole, it is clear that the
    applications judge meant that the compensation that Caroline was to receive going
    forward was for the services she provided as the guardian of her mothers
    personal care, but while Caroline continued to live in her mothers home she
    was to provide personal care for her mother without compensation.

[72]

For
    these reasons, this ground of appeal also fails.

(4)

No Reasonable Apprehension of Judicial
    Bias

[73]

Peter
    and Carolines allegation of judicial bias rests on the applications judge
    having: (1) given an early indication of his view on the vary motion before
    formally deciding that r. 59.06(2)(a) applied; (2) made an evidentiary ruling
    to exclude some allegations by Caroline and Peter against Section 3 Counsel
    from consideration on the vary motion; (3) rejected Peter and Carolines assertion
    that they had not properly consented to BMOs appointment as guardian for
    property; (4) been gratuitously critical of their submissions and overly
    deferential toward Section 3 Counsel; and (5) allegedly met in private with
    Section 3 Counsel.

[74]

There
    is a strong presumption of judicial integrity. A party who alleges a reasonable
    apprehension of judicial bias must provide the court with cogent evidence that
    an informed person, viewing the matter realistically and practically and
    having thought the matter through would conclude that the judges impugned
    conduct would cause a reasonable apprehension of bias:
R. v. R.D.S.
,
    [1997] 3 S.C.R. 484, at paras. 111-117.

[75]

Caroline
    and Peter have not provided such cogent evidence to this court.  In our view,
    their submissions on this ground of appeal, considered alone and in
    combination, do not rise to the requisite level.

[76]

With
    respect to the first allegation, we observe that a judge is entitled to offer a
    tentative view on a matter such as the one in question.  It is clear from his
    Vary Motion Ruling that the applications judge kept an open mind and decided
    jurisdiction based on the relevant legal principles and the evidence before
    him, which included the evidence led on the Applications.

[77]

The
    applications judge was entitled to exclude some of the allegations made by
    Caroline and Peter against Section 3 Counsel from consideration on the vary motion.
    Therefore, there is nothing in the second allegation.

[78]

We
    have already considered and rejected the submission relating to BMOs
    appointment as Mrs. Childs guardian of property.  As Peter and Caroline
    consented to BMOs appointment, there is nothing in their submission that the
    applications judges refusal to accept their arguments in that regard
    demonstrates a reasonable apprehension of bias.

[79]

The
    fourth allegation does not hold up to scrutiny. Given the about-face between Carolines
    position on the Applications and that expressed in the June 2015 Letter five
    days after the Applications Decisions release, as well as the applications
    judges findings in the various costs decisions, the applications judges
    criticisms of Caroline and Peter appear well-founded.  They do not displace the
    presumption of judicial integrity.

[80]

We
    flatly reject the fifth allegation  that there was a secret meeting between
    the applications judge and Section 3 Counsel  because, while Peter and
    Caroline make the accusation, they have provided no evidentiary support for
    it.

[81]

Therefore,
    this ground of appeal must also fail.

(5)

The Remaining Grounds of Appeal

[82]

As previously explained, the remaining
    grounds of appeal are all based on challenges to the applications judges
    findings of fact.  They can be summarized as follows.  Caroline and Peter: (a) challenge
    Michaels appointment as litigation guardian and his appointment (jointly with
    Caroline) as guardian for personal care; (b) complain about Section 3 Counsels
    conduct and the applications judges deferential attitude towards her; and (c)
    seek to set aside the costs orders insofar as those orders require Peter and
    Caroline to personally pay certain of the costs awards.  Each of these grounds
    of appeal can be dealt with summarily.

a.
    Michaels Appointment as Mrs. Childs Litigation Guardian and Jointly with
    Caroline as Guardian of Mrs. Childs Personal Care

[83]

In respect of Michaels
    appointment as litigation guardian, the applications judge accepted Section 3
    Counsels recommendation when he appointed Michael, rather than Peter, to fill
    this role. Section 3 Counsel, as Mrs. Childs representative, was well-positioned
    to determine which of Mrs. Childs children was best equipped to serve as Mrs.
    Childs litigation guardian.

[84]

Furthermore, in making the
    appointment, the applications judge exercised a discretionary power and, thus,
    the decision warrants deference by this court.  The allegations against Michael
    on which Caroline and Peter rely do not qualify as palpable and overriding
    errors.

[85]

There is no basis on which to
    interfere with the applications judges order appointing Michael as Mrs.
    Childs litigation guardian.

[86]

The applications judge noted at
    para. 82 of the Vary Motion Decision that Caroline had consented to sharing with
    Michael the role of guardian for Mrs. Childs personal care. We explained
    above, when discussing BMOs appointment as guardian of Mrs. Childs property,
    the law governing an attempt to set aside a court order based on consent.  For
    similar reasons, had leave to appeal this consent order been sought, we would
    not have granted it.

[87]

Accordingly, this ground of appeal
    fails.

b.
    Section 3 Counsels Conduct and the Applications Judges Attitude
    Towards Her

[88]

Peter and Caroline make a number
    of allegations about Section 3 Counsels conduct during this litigation.  These
    allegations can be summarized as follows: (i) Section 3 Counsels communications
    with Mrs. Childs for instructions were insufficient; (ii) Section 3 Counsel was
    partisan, favouring Michael and Andrew over Caroline and Peter; (iii) Section
    3 Counsel misrepresented information to the applications judge; (iv) Section 3
    Counsel neglected to investigate allegations by Caroline that Andrew had abused
    Mrs. Childs while Mrs. Childs was living in Andrews home; (v) Section 3
    Counsel acted with excessive zeal; (vi) there was an allegedly improper
    relationship between Section 3 Counsel and BMO; and (vii) in pursuit of her own
    pecuniary interest, Section 3 Counsel was the driving force behind this
    litigation.

[89]

Section 3 Counsel makes two
    submissions in response.  First, she says that to respond to these allegations she
    would have to divulge privileged discussions which she had with her client,
    Mrs. Child, contrary to her professional obligations.  This she will not do.
    Second, she notes that, in his evidentiary ruling dated November 13, 2015, the
    applications judge struck those parts of Caroline and Peters affidavits in
    which they impugned Section 3 Counsels conduct. As Section 3 Counsel notes,
    Peter and Caroline never appealed this ruling.  Therefore, they ought not to be
    allowed to raise it here.

[90]

We accept both submissions of Section
    3 Counsel.  Therefore, Caroline and Peters allegations against Section 3
    Counsel are not properly before this court and ought not to be entertained.

[91]

We would go further, however, and
    state that we categorically reject the suggestion that Section 3 Counsel failed
    in her duties in any way.  There is nothing in the record that remotely
    supports these allegations against Section 3 Counsel and we denounce them.

[92]

We also categorically reject the
    suggestion that the applications judge displayed a deferential attitude towards
    Section 3 Counsel.

[93]

On the record, both Section 3
    Counsel and the applications judge discharged their professional obligations
    well and with patience, dignity and integrity.

[94]

In terms of the sufficiency of
    Section 3 Counsels communication with Mrs. Childs, we note that Section 3
    Counsel met with Mrs. Childs three times to discuss the guardianship
    applications and to obtain Mrs. Childs instructions.  On the record, it is
    plain that it was as a result of Section 3 Counsel thereafter negotiating with
    all parties that, with the exception of the amount of Carolines compensation,
    all matters on the Applications went on consent.  In the circumstances of this
    case, that is nothing short of extraordinary.  It is also consistent with Mrs.
    Childs instructions that she wanted the litigation to end.

[95]

In response to the allegation that
    Section 3 Counsel had a bias in favour of Andrew and Michael, the evidence that
    Peter and Caroline seek to rely on is largely inadmissible.  In any event, it shows
    only that Section 3 Counsel acted as a zealous advocate for her client, Mrs.
    Childs.  It does not show her to be overly zealous.  Section 3 Counsel is to be
    commended for her efforts  not pilloried.

[96]

Of the many instances of alleged misrepresentations
    to the court, we will speak only to that concerning Section 3 Counsels conduct
    on the vary motion.  Peter and Carolines position on this is untenable.  All those
    at the vary motion, other than Caroline and Peters counsel, agreed that the
    June 2015 Letter was inconsistent with the guardianship plan that Caroline had
    presented on the Applications and that was the finding of the applications
    judge. The other alleged misrepresentations are nothing more than a difference
    of opinion on certain matters.

[97]

The
    allegation that Section 3 Counsel neglected to investigate Carolines suspicion
    that Andrew had abused Mrs. Childs cannot stand.  The record shows that Section
    3 Counsel explained to the applications judge that none of the other
    professionals who had met with Mrs. Childs privately had heard of such allegations.

[98]

The
    allegation of an improper relationship between Section 3 Counsel and BMO
    reflects another attempt by Caroline and Peter to circumvent an order to which
    they consented. The record demonstrates that Section 3 Counsel initially proposed
    that Michael engage BMO as guardian of property, but that Peter and Caroline
    asked Section 3 Counsel to undertake that task instead. Furthermore, as Section
    3 Counsel points out, she had no personal or banking relationship with BMO. She
    engaged BMO on the parties consent and in compliance with Mrs. Childs
    expressed preference that a bank manage her money.

[99]

There
    is absolutely no merit to the allegation that Section 3 Counsel prolonged the
    litigation in service of her own pecuniary interest. Section 3 Counsel
    demonstrated her commitment to protecting Mrs. Childs interests at all steps
    of the proceedings including by initiating settlement discussions, negotiating
    consent orders wherever possible, and attempting to resolve concerns raised by the
    June 2015 Letter without recourse to the courts.

[100]

This ground of
    appeal is flatly rejected.

c. The Costs Orders

[101]

It will be recalled that as a
    result of the Simmons Decision, upheld on the review motion, Caroline and Peter
    may not challenge the quantum awarded in the various costs orders below.  Thus,
    this ground of appeal relates solely to whether the applications judge erred in
    ordering Peter and Caroline to personally pay certain of the costs.

[102]

This ground of appeal rests on
    Peter and Carolines contention that they were substantially successful in the
    proceedings below because they succeeded in having Mrs. Childs remain in her
    own home, as she wished, rather than be moved into an elder care facility.

[103]

Even if Peter and Carolines view of
    what occurred in these proceedings is correct, it does not amount to a reason
    to interfere with the costs decisions below.  In the Applications Decision, the
    applications judge made findings of fact that fully warrant costs being ordered
    against Peter and Caroline personally.  It will be recalled that he found that
    all issues  other than costs  had been resolved prior to the oral hearing of
    the Applications with the exception of Carolines compensation and that Caroline
    and Peter were the ones who had caused litigation of that issue.  When deciding
    costs of the vary motion, the applications judge found that it was Caroline and
    Peters actions that had caused the motion to be brought and that they had
    leveraged their mothers health and best interests to manipulate a more
    favourable financial result for Caroline than he had ordered in the
    Applications Decision.

[104]

As we explained above, an appellate court is to accord
    a high degree of deference to first instance costs awards:
Open
    Window Bakery Ltd.
, at para. 27.  In the
    circumstances of this case, we see no error in principle in the applications
    judges decision to require Peter and Caroline to pay certain costs personally
    nor are the orders plainly wrong.

DISPOSITION

[105]

For these reasons, the review motion and both of the appeals are
    dismissed.  If the parties are unable to agree on the matter of costs, they may
    make written submissions on the same, limited to four pages, such submissions
    to be filed with the court within fourteen days of the release of these
    reasons.

Released: E.E.G. June 20, 2017

Eileen E.
    Gillese J.A.

Grant
    Huscroft J.A.

Gary T. Trotter J.A.