COURT OF APPEAL FOR ONTARIO

CITATION: IAP Claimant H-15019 v.
    Wallbridge, 2020 ONCA 270

DATE: 20200428

DOCKET: C66737

Simmons, Pepall and Trotter
    JJ.A.

BETWEEN

IAP Claimant H-15019

Respondent (Plaintiff)

and

P. James Wallbridge
, Lindsy McNicoll,
Wallbridge, Wallbridge

and
    The Attorney General of Canada

Appellants
(Defendants)

Geoffrey D.E. Adair, Q.C., for the
    appellants

W. Cory Wanless, for the respondents

Catherine A. Coughlan, for the Attorney
    General of Canada

Heard : February 4, 2020

On appeal
    from the order of Justice Robbie D. Gordon of the Superior Court of Justice,
    dated March 13, 2019.

REASONS FOR DECISION

[1]

The main issue on appeal is whether the motion
    judge erred in dismissing a motion brought by the appellant lawyers under r.
    21.01(3)(d) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, to
    dismiss the respondent's action against them as frivolous and vexatious and an
    abuse of process. On the motion, the appellants asserted that the respondents action
    was barred by a release and cause of action bar contained in a settlement agreement
    approval order. The motion judge found that the respondents action is not
    barred and dismissed the motion. For the reasons that follow, we dismiss the
    appeal.

Background

[2]

The respondent is a member of Fort Albany First
    Nation and a survivor of St. Anne's Indian Residential School. He is also a
    class member of one of the Indian Residential Schools Survivors Class Actions
    that was settled subject to court approval in May 2006 by the Indian
    Residential Schools Settlement Agreement (the IRSSA). The IRSSA was approved by
    court order dated December 15, 2006 (the Settlement Approval Order). Among
    other things, the IRSSA established the Independent Assessment Process (IAP) as
    a modified adjudicative process for addressing claims and awarding compensation
    arising from physical, sexual or psychological abuse suffered by Indian
    Residential School survivors:
Fontaine v. Canada (Attorney General)
,
    2017 ONSC 2487, at para. 57.

[3]

The respondent retained the appellant lawyers in
    2009 to bring an IAP claim on his behalf. His initial claim was dismissed, as
    was a subsequent review, because his evidence was found not sufficiently
    reliable to meet the burden of proof. Eventually, the respondent retained a new
    lawyer who obtained a new hearing that resulted in a July 18, 2017 award
    granting the respondent significant compensation for what was found to be repeated
    serious abuse.

[4]

On August 31, 2017 the respondent commenced an
    action against the appellants, another lawyer, and The Attorney General of Canada
    (Canada) for psychological harm he claims he suffered, not because of his
    mistreatment at St. Anne's, but rather as the result of:  being
    disbelieved, the initial dismissals of his IAP claim and review, and having to
    undergo a further hearing. As against the lawyers, the respondents action is
    based on breach of contract, breach of fiduciary duty and negligence. As
    against Canada, the respondents action alleges breaches of Canadas
    obligations under the IRSSA, the Settlement Approval Order and related orders
    to disclose documents and compile reports relating to St. Annes prior to his
    initial IAP hearing and review that were relevant to his IAP claim.

[5]

The Settlement Approval Order contained a
    release and cause of action bar in favour of the Indian Residential Schools
    Class action defendants and other released organizations (collectively the
    Class Action Defendants). Under paragraph 15 of the Settlement Order, Indian
    Residential Schools Class Action class members (the Class Members) released the
    Class Action Defendants, including Canada, from claims in relation to an
    Indian Residential School or the operation generally of Indian Residential
    Schools (the paragraph 15 release).

[6]

Paragraph 19 of the Settlement Order barred Class
    Members from commencing proceedings that might give rise to claims for
    contribution and indemnity or similar relief against Class Action Defendants in
    relation to the released claims (the paragraph 19 cause of action bar).

[7]

Relying on the paragraph 15 release and the paragraph
    19 cause of action bar, the appellants moved to have the respondents action
    against them dismissed as frivolous and vexatious and an abuse of process. As
    of the date of the motion, the appellants had not sought contribution or
    indemnity from Canada. However, pleadings had not closed and the appellants
    relied on the language of the paragraph 19 cause of action bar precluding
    proceedings against any person who might claim contribution and indemnity
    against the Class Action Defendants.

[8]

In a motion heard the same day, Canada moved to
    have the action dismissed as an abuse of process based on the paragraph 15
    release (the Canada motion).
[1]
In addition, Canada argued that the issues in the action against it had already
    been litigated as part of the respondents IAP proceeding. In the alternative,
    Canada asked that the action against it be stayed pending application to the
    Eastern Administrative Judge under the Court Administration Protocol to the
    Settlement Order. Canada asserted that under the terms of the Settlement Order,
    the respondent required leave to commence the action and, in any event, the
    action had to be initiated by a Request for Directions as it involved
    implementation or enforcement of the IRSSA.

[9]

In separate reasons released on the respective
    motions, the motion judge determined that the respondents action against
    Canada is not barred by the paragraph 15 release. However, in his reasons on
    the Canada motion, he stayed the respondents action against Canada pending
    further order of the Eastern Administrative Judge. The motion judge found the
    action against Canada involved implementation and enforcement of the IRSSA and
    therefore should have been initiated by a Request for Directions.

[10]

In his reasons on the appellants motion, the
    motion judge also found  that the respondents claim against the appellants is
    not barred by the paragraph 19 cause of action bar and dismissed the
    appellants motion for a dismissal of the action as against them.

[11]

The appellants appeal from the motion judges
    order dismissing their motion. Canada has not appealed from the motion judges
    order made on the Canada motion, nor has the formal order relating to its
    motion been taken out. Although counsel for Canada appeared at the oral hearing
    of this appeal and responded to questions from the panel, Canada did not file a
    factum and took the position it was not a party to the appeal.

The Paragraph 15 Release and Paragraph 19
    Cause of Action Bar

[12]

As paragraphs 15 and 19 of the Settlement
    Approval Order are central to the issue on appeal, we set them out in full. The
    paragraph 15 release reads as follows:

THIS COURT ORDERS
    AND DECLARES that, subject to the provisions of the Agreement, and in
    particular, section 4.06 thereof,
each Class Member
and his or her
    heirs, personal representatives and assigns or their past and present agents,
    representatives, executors, administrators, predecessors, successors,
    transferees and assigns,
have released and shall be conclusively deemed to
    have fully, finally and forever released the Defendants
and the Other
    Released Church Organizations and each of their respective past and present
    parents, subsidiaries and related or affiliated entities and their respective
    employees, agents, officers, directors, shareholders, partners, principals,
    members, attorneys, insurers, subrogees, representatives, executors,
    administrators, predecessor, successors, heirs, transferees and assigns
from
    any and all actions, causes of action, common law and statutory liabilities,
    contracts, claims and demands of every nature or kind available, asserted or
    which could have been asserted whether known or unknown including for damages,
    contribution, indemnity, costs, expenses and interest which they ever had, now
    have or may have hereafter have [
sic
], directly or indirectly or any way
    relating to or arising directly or indirectly
by way of any subrogated or
    assigned right or otherwise
in relation to an Indian Residential School or
    the operation generally of Indian Residential Schools
and
this release
    includes any such claim made or that could have been made in any proceeding
    including the Class Actions
and including claims that belong to the Class
    Member personally, whether asserted directly by the Class member or by any
    other person, group or legal entity on behalf of or as a representative for the
    Class Member. [Emphasis added.]

[13]

The paragraph 19 cause of action bar reads as
    follows:

THIS COURT ORDERS
    AND DECLARES that
each Class Member
and each of his or her respective
    heirs, executors, administrators, personal representatives, agents, subrogees,
    insurers, successors and assigns
shall not make any claim or take any
    proceeding against any person or corporation, including the Crown, in
    connection with or related to the claims released pursuant to paragraph 15 of
    this judgment, who might claim or take a proceeding against the Defendants
or Other Released Church Organizations, in any manner or forum,
for
    contribution or indemnity or any other relief at common law or in equity or
    under any other federal, provincial or territorial statute or the applicable rules
    of court
. A Class Member who makes any claim or takes any proceeding that
    is subject to this paragraph shall immediately discontinue such claim or
    proceeding and this paragraph shall operate conclusively as a bar to any such
    action or proceeding.

The Motion Judges Reasons on the Appellants
    Motion

[14]

In his reasons on the appellants motion, the
    motion judge found that it is clear from the nature of the allegations against
    [the appellants] and Canada that [the appellants] might claim contribution or
    indemnity from Canada. However, he concluded that the respondents action was
    not barred by the Settlement Approval Order essentially for two reasons.

[15]

First, although the language of the paragraph 15
    release was broad and general, in the motion judges view, causes of action and
    damages were treated differently. While the release specifically included
    future damages, it did not include causes of action arising in the future. He
    said:

The release at paragraph 15 of the Approval
    Order, when speaking to causes of action, provides for the release of any and
    all actions, causes of action
asserted or which could have been asserted
whether known or unknown and this release includes any such claim
made or
    that could have been made
in any proceedings. It does not specifically
    include causes of action arising in the future.

This is to be
    contrasted with the release provisions pertaining to damages, which provide for
    the release of damageswhich they ever had, now have or may hereafter have,
    directly or indirectly. [Emphasis in the original.]

[16]

Thus, he concluded that the wording of the
    paragraph 15 release does not include causes of action which arise after the
    effective date of the release even if in some way related to an Indian
    Residential School or the operation generally of Indian Residential Schools.

[17]

Second, the motion judge held that even if he
    was incorrect in his interpretation of the language of paragraphs 15 and 19, a
    release of claims for solicitor negligence in the prosecution of IAP claims could
    not reasonably have been within the contemplation of the parties when the IRSSA
    was made. In reaching this conclusion the motion judge adopted language from
    the respondents factum:

It is
    inconceivable that in 2006, in the context of settling a class action brought
    by Indian Residential survivors against those who established and operated
    Indian Residential Schools  for the various abuses and harms suffered by the
    survivors when they were students at these schools [the parties] intended to
    draft a release that provides total and blanket immunity to future IAP claimant
    lawyers for malpractice claims that would deprive survivors from their right to
    sue their IAP lawyers

The Appellants Position on Appeal

[18]

On appeal, the appellants acknowledge that the motion
    judge correctly set out the principles that apply to the interpretation of a
    release. Nonetheless they assert he made extricable errors of law and a
    palpable and overriding error of fact in his interpretation.

[19]

First, the appellants say the motion judge erred
    by failing to consider the words of paragraph 15 in the context of the factual
    matrix, namely, the IRSSA, which led to the Settlement Approval Order.

[20]

The appellants point to several provisions of
    the IRSSA, which they say make it clear that the parties intended to release
    the Class Action Defendants not only from existing causes of action, but also
    from any causes of action arising in the future in any way arising in relation
    to an Indian Residential School or the operation of Indian Residential Schools,
    whether directly or indirectly. This, they say, clearly evidences an intent to
    release the respondents claim against Canada.

[21]

For example, the appellants point to the following
    language in the preamble of the IRSSA which they say patently contemplates a
    release of future causes of action:

the Parties
    agree that all actions, causes of action
,
    liabilities, claims and demands whatsoever
of every nature or kind
for
    damages, contribution, indemnity, costs, expenses and interest
which any
    Class Member  ever had, now has or may hereafter have arising in relation to
    an Indian Residential School or the operation of Indian Residential Schools
    will be finally settled
and the Releasees will have no further liability
    except as set out in this Agreement. [Emphasis added.]

[22]

Similarly, Article 4.06 (d) reads as follows:

4.06 Approval orders will be sought:

(d) ordering and
declaring
    that  all class members  have released each of the defendants  from any and
    all actions they have, may have had or in the future may acquire
against
    any of the defendants
arising in relation to
an Indian Residential
    School or the operation of Indian Residential Schools. [Emphasis added.]

[23]

Further, Article 11.01(1)(a) stipulates:

11.01(1) The Approval Orders will declare that
    in the case of Class members

Each Class
    Member  has fully, finally and forever released
each of the Releasees f
rom any and all actions, causes of action
claims and demands
of every nature or kind available, asserted or which
    could have been asserted whether known or unknown
including for damages,
    contribution, indemnity, costs, expenses and interest
which any Class Member
     ever had, now has, or may hereafter have
, directly or indirectly arising
    from or in any way relating to  an Indian Residential School or the operation
    of Indian Residential Schools  [Emphasis added.]

[24]

By failing to consider these provisions when
    interpreting the paragraph 15 release, the appellants say the motion judge
    committed an extricable error of law.

[25]

Second, the appellants say the motion judge erred
    in failing to consider the whole of the wording of paragraph 15 when
    interpreting it. In particular, they say the motion judge erred in failing to
    take account of the words contribution and indemnity in paragraph 15. Those
    words they say make it clear that the future claims intended to be released by
    the phrase "including for damages, contribution, indemnity  which they
    ever had, now have or may have hereafter have [
sic
] were not limited to
    claims for damages. Rather they modified the earlier phrase "cause of
    action". Read as a whole, the wording of the release makes it clear that
    post-agreement causes of action against Canada, such as the respondents claim
    against Canada, were intended to be released.

[26]

Finally, the appellants argue that the motion
    judge erred in considering whether a solicitors negligence claim was within
    the contemplation of the parties when the Settlement Approval Order was made.
    As the paragraph 19 cause of action bar is derivative of the paragraph 15
    release, they say the only relevant claim for consideration is the claim
    against Canada. In relation to that claim, they argue that the Settlement
    Approval Order implemented the IRSSA, which documented a complex settlement
    that unequivocally released all claims, including claims arising post-IRSSA,
    whether arising directly or indirectly out of Indian Residential Schools  all
    in exchange for a comprehensive compensation process funded by Canada.

[27]

Particularly in light of the oversight levels,
    such as the Request for Directions process that resulted in an order for Canada
    to produce documents, the appellants say there is no basis for concluding that
    a breach of duty or slip by Canada in performing its obligations under the
    IRSSA was not within the contemplation of the parties. In any event, what was
    within the contemplation of the parties must turn on the language of the IRSSA
    and Settlement Approval Order within the context of the factual matrix. Here
    they say there is no basis for concluding the claim against Canada was not
    within the contemplation of the parties.

Discussion

[28]

As we have said, the appellants acknowledge that
    the motion judge correctly set out the principles applicable to interpreting a
    release. The motion judge relied on this courts decision in
Biancaniello v.
    DMCT LLP
, 2017 ONCA 386, 138 O.R. (3d) 210, to summarize those principles.

[29]

As acknowledged by this court, the guiding
    principle was set out in
London and South Western Railway v. Blackmore
(1870), L.R. 4 H.L. 610: The general words in a release are limited always to
    the thing or those things which were specifically in the contemplation of the
    parties at the time the release was given.

[30]

In
Biancaniello
, this court set out five
    principles for determining what was in the contemplation of the parties when
    interpreting a broadly worded release:

1.

One looks first to the language of the release
    to find its meaning.

2.

Parties may use language that releases every
    claim that arises, including unknown claims. However, courts will require clear
    language to infer that a party intended to release claims of which it was
    unaware.

3.

General language in a release will be limited to
    the thing or things that were specifically in the contemplation of the parties
    when the release was given.

4.

When a release is given as part of the
    settlement of a claim, the parties want to wipe the slate clean between them.

5.

One can look at the circumstances surrounding the giving of the
    release to determine what was specially in the contemplation of the parties.

[31]

In his related reasons on the Canada motion, apart
    from his conclusion that the paragraph 15 release did not release claims for
    factual situations that had not yet occurred, the motion judge gave one further
    reason for saying the respondents claim against Canada was not barred by the
    paragraph 15 release.

[32]

At para. 22 of his reasons on the Canada motion,
    the motion judge opined that it could not have been the intention of the
    parties to release Canada from obligations it was assuming under the IRSSA. He
    said:

Even if I am
    incorrect in this interpretation of the release provisions,
it is my view
    that the release of all claims relating to compliance by Canada of its
    obligations under the IRSSA could not reasonably have been in the contemplation
    of the parties
. Surely,
claimants cannot, by the same agreement that
    imposes obligations on Canada, be taken to have released it from those very
    obligations
. [Emphasis added.]

[33]

We agree with the motions judge that compliance
    by Canada of its obligations under the IRSSA would not be encompassed by the
    release. This conclusion is dispositive of this appeal.

[34]

For ease of reference, we repeat the central
    language of the paragraph 15 release:

THIS COURT ORDERS AND DECLARES that, subject to the provisions of
    the Agreement, and in particular, section 4.06 thereof,
each Class Member
and his or her heirs, personal representatives and assigns
have released
    and shall be conclusively deemed to have fully, finally and forever released
    the Defendants

from any and all actions, causes of action,
common
    law and statutory liabilities, contracts, claims and demands of every nature or
    kind available,
asserted or which could have been asserted whether known or
    unknown
including for damages, contribution, indemnity, costs, expenses and
    interest
which they ever had, now have or may have hereafter have [
sic
],
    directly or indirectly or any way relating to or arising directly or indirectly
by way of any subrogated or assigned right or otherwise
in relation to an
    Indian Residential School or the operation generally of Indian Residential
    Schools
and this release includes any such claim made or that could have
    been made in any proceeding including the Class Actions

[35]

The language is undoubtedly broad. That said,
    the key concept is that the claims released are those arising directly or
    indirectly  in relation to an Indian Residential School or the operation
    generally of Indian Residential Schools. Here the respondents claim against
    Canada is not a claim in relation to an Indian Residential School or the
    operation of Indian Residential Schools, either directly or indirectly. Rather,
    it is a claim for psychological harm suffered by the respondent because his
    evidence was adjudged insufficiently reliable to meet the burden of proof in an
    alternative adjudicative process as a result of Canadas alleged failure to satisfy
    its disclosure obligations under the IRSSA.

[36]

As the motion judge said, it cannot have been
    within the reasonable contemplation of the parties that Class Members would
    give up any rights they could have arising from Canadas failure to fulfill its
    obligations under the IRSSA or the Settlement Approval Order.

[37]

Based on the foregoing reasons, we conclude that
    the respondents claim against Canada is not barred by the paragraph 15
    release, and, as a corollary to that conclusion, that the respondents claim
    against the appellants is not barred by the paragraph 19 cause of action bar.

[38]

During the appeal hearing, the panel raised questions
    about the motion judges finding in the Canada motion that the respondents
    claim against Canada is not barred by the paragraph 15 release, in particular, whether
    that finding is final for the purpose of the respondents action against Canada,
    and the impact, if any, of that finding and Canadas failure to appeal that
    finding on this appeal.

[39]

The parties did not agree on whether that
    finding is final for the purpose of the respondents action against Canada.
    Assuming the finding is final, we have reached the same conclusion as the
    motion judge in any event. Even if the finding is not final, as a party to the
    same proceeding, Canada attended but chose not to seek the right to participate
    in this appeal.

[40]

Finally, we note that the parties did not
    address whether the absence of privity of contract would prevent the appellants
    from relying on the release and cause of action bar:
Van Patter v.
    Tillsonburg District Memorial Hospital
(1999), 45 O.R. (3d) 223 (C.A.);
Owen
    v. Zosky
, [2000] O.J. 4838 (C.A.);
Fraser River Pile & Dredge Ltd.
    v. Can-Dive Services Ltd.
, [1999] 3 S.C.R. 108. Nothing in these reasons
    should be taken as commenting on that issue. Nor of course do we comment on the
    merits of the respondents action against the appellants or Canada.

Disposition

[41]

Based on the foregoing reasons, the appeal is
    dismissed with costs to the respondent on a partial indemnity scale in the
    agreed upon amount of $10,000 inclusive of disbursements and applicable taxes.

Janet
    Simmons J.A.

S.E.
    Pepall J.A.

Gary
    Trotter J.A.

[1]

The respondent filed a copy of the motion judges reasons on
    the Canada motion in a respondents compendium. However, the Canada motion
    record was not before us and we have discerned the relief sought based only on
    the motion judges reasons.


COURT OF APPEAL FOR ONTARIO

CITATION: Leitch v. Novac, 2020 ONCA 257

DATE: 20200417

DOCKET: C66681

Lauwers, Hourigan and Thorburn
    JJ.A.

BETWEEN

Jennifer Ann Leitch

Applicant (Appellant)

and

Anthony Charles James Novac,
    Michael Novac, Nelly Novac, Sonco Group Inc., The Novac 2011 Family Trust, The
    Novac Family Trust (2013)
, John McClure and David
    Tam

Respondents (
Respondents
)

Linda Rothstein, Dan Rosenbluth, Ilana
    Zylberman Dembo, Sheila Gibb and Stephanie Romano, for the appellant

Avra Rosen and Kelly Eckert, for the
    respondent, Anthony Novac

Bryan Smith, Lindsey Love-Forester and
    Cynthia Kuehl, for the respondents, Michael Novac, Nelly Novac, Sonco Group
    Inc., The Novac 2011 Family Trust and The Novac Family Trust (2013)

Heard: February 26, 2020

On appeal from the summary judgment order
    of Justice Cory A. Gilmore of the Superior Court of Justice, dated January 31,
    2019, reported at 2019 ONSC 794, the costs award dated March 7, 2019, reported
    at 2019 ONSC 1534, and the order for security for costs and preservation of
    assets dated April 30, 2019, reported at 2019 ONSC 1541.

Hourigan J.A.:

I.

Overview

[1]

The appellant, Jennifer Leitch, commenced an
    application seeking a divorce and corollary relief from her husband, the
    respondent, Anthony Novac. She later amended her application to seek damages in
    conspiracy from Anthony
[1]
,
    his father Michael Novac, his mother Nelly Novac, certain family trusts, and a
    related corporation, Sonco Group Inc. (Sonco). Jennifer alleged that the respondents
    had conspired to keep money out of Anthonys hands specifically for the purpose
    of reducing her family law entitlements.

[2]

The respondents to the conspiracy claim (apart
    from Anthony) brought a motion for partial summary judgment. In her responding
    motion, Jennifer requested summary judgment on the conspiracy claim declaring
    the existence of the conspiracy and that damages be assessed at trial. The
    hearing lasted nine days. Partial summary judgment was granted, dismissing
    Jennifers conspiracy claim as not raising a genuine issue requiring trial. The
    motion judge concluded that while the appellant could not succeed in her
    conspiracy claim, she could still pursue at trial a claim to impute additional income
    to Anthony for the purpose of determining support.

[3]

Jennifer appeals from the order granting partial
    summary judgment, as well as the costs award and an order for security for
    costs and the preservation of assets.

[4]

These reasons explain why I would allow the
    appeal. In summary, the motion judge erred in law by bifurcating the issues and
    in her analysis of the tort of conspiracy. She also made a palpable and
    overriding error of fact about critical evidence that Jennifer relied on in support
    of her conspiracy claim and did not advert to other important evidence in her
    analysis.

[5]

The motion judges costs orders, including the order
    for security for costs and related relief, result from her partial summary
    judgment order and accordingly cannot stand.

II.

Facts

(a)

Background

[6]

This is a factually complex case with multiple
    allegations. Recognizing that I would order a trial and it will be for the
    trial judge to make factual findings, the following very brief factual summary
    is offered to provide context for the issues to be determined on the appeal.

[7]

Jennifer and Anthony cohabited for 17 years. They
    married on May 10, 1997, and separated on September 29, 2012. They have 15-year-old
    twins. Jennifer was a litigator for nine years of the marriage. After Anthony
    sold an on-line gaming platform for $11.5 million, Jennifer left litigation to
    pursue a graduate legal education. She then began to teach law part-time at
    Osgoode Hall and the University of Toronto. Since then, her annual income has
    typically been less than $30,000.

[8]

Anthony is an entrepreneur who has been working
    in the casino and gaming industry for over 20 years. He has experience managing
    casinos and casino resorts. From 2009 to date, Anthony has done paid work for
    Sonco and its related corporations. Michael incorporated Sonco and it holds various
    real estate and gaming businesses. Anthony occupies senior positions with Sonco
    and other related entities.

[9]

By the time the parties separated, their wealth
    had been significantly depleted. Jennifer sold the matrimonial home, which she
    owned, and she retained the net sale proceeds from the house in the amount of
    $1,066,361.

[10]

As the matrimonial litigation unfolded, Anthony
    disclosed an income of $120,000 per year plus $5,000 per year for director
    fees. Jennifers position was that Anthony had undisclosed additional income or
    an undisclosed ownership interest in the casino business.

(b)

Alleged Conspiracies

[11]

Jennifer alleged six separate tortious
    conspiracies. On the appeal, she focuses her submissions on the alleged conspiracy
    related to the management of the River Cree Casino. The background of that
    project is as follows.

[12]

In 2013, Michael was approached to manage the
    River Cree Casino in Alberta. The River Cree Casino is owned by the Enoch Cree
    Nation. Michael incorporated Sonco Gaming Management Inc. and, with Anthony's
    assistance, entered into a five-year contract with River Cree Casino. Michael
    and Anthony had an informal oral agreement that Anthony would be the project manager
    and receive 40% of the management fees that were to be paid to Sonco Gaming
    Management Inc. over the life of the contract. In 2015, the Enoch Cree Nation
    decided to buy out the contract and manage the casino itself. It paid Sonco
    $5.75 million as part of the transaction (the buyout).

[13]

There are two disputed events that Jennifer
    alleges are at the heart of the River Cree Casino conspiracy.

[14]

The first is Michaels decision to keep all of
    the proceeds from the buyout. The buyout price represented the net present
    value of Sonco Gaming Management Inc.s fees. Jennifer argues that, had the
    contract been carried out, Anthony would have received 40% of those fees.
    However, Anthony apparently received none of the proceeds of the buyout.
    Jennifers position is that Anthony had equal control over this project with
    his father and was integral in negotiating and structuring the buyout.

[15]

Jennifer asserts that Anthony should have been
    paid at least 40% of the buyout. She pleads that the respondents conspired to
    temporarily divert Anthonys share of the proceeds so that she would receive
    less in support payments. Three documents are critical to this theory.

[16]

The first two documents are memos to file
    drafted by Soncos external accountant, Keith MacIntyre. Both memos were dated
    June 22, 2015, and are marked DRAFT, with the reference line Sonco Alta Sale.
    They were copied to MacIntyres partner at Grant Thornton LLP, John Roy.

[17]

Memo #1 lists steps. Number eight is this:

8. Michael Novac takes his tax free proceeds
    and lends to Antony [
sic
] his portion as a loan that will be forgiven when
    Anthonys divorce is final.

[18]

Seven more steps are listed under the heading Alta
    and Estate. Numbers six and seven are as follows:

6.  Michael Novac takes his tax free proceeds
    and lends to Antony [
sic
] his portion as a loan that will be forgiven
    when Anthony's divorce is final;

This reduces Michael Novacs estate tax.

7. Michael Novac takes his tax free proceeds
    and lends to Antony [
sic
] his portion as a loan that will be forgiven
    when Anthonys divorce is final;

[19]

Memo #2 is similar to the second part of Memo #1,
    with a few changes and additions. It was addressed to the Chief Financial
    Officer of Sonco, Richard Landzatt, and copied to Michael Novac. Numbers four
    and five read as follows:

4. Michael Novac takes his tax free proceeds
    and lends to Antony [
sic
] his portion as a loan that will be forgiven
    when Anthonys divorce is final;

This reduces Michael Novacs estate tax;

This keeps income out of Anthonys hands;

5.  Michael Novac takes his tax free proceeds
    and lends to Antony [
sic
] his portion as a loan that will be forgiven
    when Anthonys divorce is final;

Again this prevents income from being shown in
    Anthonys hands.

[20]

The third critical document regarding this
    alleged conspiracy is an email from Landzatt to MacIntyre and Kelsi Campbell, a
    colleague of MacIntyres. It is dated August 18, 2015, which was shortly after
    the closing of the buyout on August 14, 2015 (the August 18 Email). In that
    email, Landzatt states:

So based on this model the complete after tax
    cash flow, both corporate and personal, will be $5,030,772? This will be the
    cash available personally for distribution between Michael and Anthony?

They want to move some of the money now and I
    want to be certain that they have all the tax amounts set aside so they dont
    spend/invest it.

[21]

The second part of the alleged River Cree Casino
    conspiracy is Anthony's decision to conceal management fees owing to him for the
    month of May 2015. In June 2015, Anthony directed Sonco employees not to
    distribute the May 2015 management fees due to him under his agreement with
    Michael. Anthony delayed disclosing the May 2015 fees as income to Jennifer.
    She did not discover the existence of these undisclosed fees until over two
    years later.

[22]

Jennifer alleges that Anthonys failure to
    disclose his income was compounded by a series of misleading or inaccurate
    disclosures by Anthony, Michael, and Sonco. Anthony concedes that he directed
    Sonco employees to hold back his May 2015 payment. However, he asserts that he
    did not conspire with any party to hide this income.

III.

Decision below

[23]

The motion judge held that the conspiracy claim
    was appropriate for partial summary judgment. In addition to the extensive
    record before her, there had been five days of cross-examination on Michael and
    Anthony's evidence. She found that all parties have put their best foot
    forward and that summary judgment would allow streamlining of the remaining
    issues for trial.

[24]

The motion judge then set out the elements of
    the tort of conspiracy and referred to
Frame v. Smith
,

[1987] 2
    S.C.R. 99, in which the Supreme Court ruled that the tort did not apply in the
    context of custody or access claims. She went on to state that the same policy concerns
    from
Frame
applied to the support context and that the comprehensive
    legislation and guidelines contained in the
Divorce Act
,
R.S.C., 1985, c. 3 (2nd Supp.),

Family Law Act
, R.S.O. 1990, c. F.3,
Federal

Child Support Guidelines
,
SOR/97-175, and the Spousal Support Advisory Guidelines applied and provided a comprehensive
    code for dealing with support issues relating to both spouses and children.

[25]

Ultimately, the motion judge concluded that
    there was no unlawful conspiracy on the facts of the case and made the
    following findings:

a.

There is no evidence of an agreement;

b.

Inaccurate representations by Anthony about his income were not made
    in concert with Michael;

c.

The steps taken by Michael were not intended either actually or
    foreseeably to harm Jennifer; and

d.

None of the actions of Michael or Anthony were wrong at law.

[26]

The motion judge also concluded that Jennifer is
    unable to establish damages, at para. 313:

While Anthony is a trustee of the 2013 Trust,
    Jennifer is unable to establish that this entitled him to any portion of the
    River Cree buyout proceeds.  Notwithstanding the two memos drafted by [Keith
    MacIntyre], there is insufficient evidence to show that any steps were taken
    with the intent of harming Jennifer.  In fact, there is evidence that advice
    which might have been interpreted as an agreement to keep money away from
    Jennifer was never acted upon nor was it even considered by Michael.  Michael
    decided to retain the proceeds, as it was his company that entered into the
    agreement with the Nation.  He had the right to act in that manner.

[27]

Regarding costs, the motion judge awarded $300,000
    to Anthony for the costs of the summary judgment motion and the variation
    motion he brought to reduce his support payments, of which half would be
    enforceable as fees related to the payment/collection of support. She also
    awarded $40,000 in costs to Anthony to offset a costs award made against him for
    a November 2017 disclosure motion. The motion judge awarded $900,000 to the
    remaining respondents for the costs of the summary judgment motion.

[28]

After the motion judge released her ruling on
    the summary judgment motion, but before she issued her decision on costs,
    Anthony brought a motion for a preservation and non-dissipation order under ss.
    12 and 40 of the
Family Law Act
. The remaining respondents also
    brought a motion for security for costs seeking an order that Jennifer preserve
    her assets. The motion judge released her ruling on these motions one day after
    she released her decision on costs, granting an order that Jennifer preserve
    all of her assets as security for costs. This order effectively freezes all of
    Jennifers assets. In so ruling, the motion judge relied on rule 24(13)(2) of
    the
Family Law Rules
, R.S.O. 1990, c. C.43, which allows an order for
    security for costs if [a] party has an order against the other party for costs
    that remains unpaid, in the same case or another case.

IV.

analysis

1.

Did the motion judge err in law in awarding
    partial summary judgment?

[29]

Partial summary judgment is reserved for issues
    that may appropriately be bifurcated without creating a material risk of
    inconsistent outcomes, and that may be dealt with expeditiously and
    cost-effectively: see
Butera v. Chown, Ciarns LLP
, 2017 ONCA 783, 137
    O.R. (3d) 561, at paras. 27-34.

[30]

The motion judges analysis of this cases
    suitability for summary judgment spans four short paragraphs. That analysis opens
    with the statement, Not much needs to be said on whether this case is suitable
    for summary judgment. She then refers to the extensive documentary evidence as
    well as the oral evidence of Anthony and Michael and states, There is more
    than enough material on which the court may rely in order to make findings of
    fact and credibility. The motion judge also comments that dealing with the
    conspiracy claim by summary judgment will allow for a streamlining of any
    remaining issues for trial, clear the way for settlement of issues put on hold until
    determination of the conspiracy issue, and would support the policy and principles
    articulated in
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, as
    well as rule 2(3) of the
Family Law Rules
, of saving expense and time
    and dealing with cases fairly and justly and in a manner appropriate to their
    complexity and importance.

[31]

At no point does the motion judge engage with
    the question of whether bifurcating the issues is appropriate. Specifically,
    the reasons are conspicuously silent as to whether there is an inherent risk
    here of inconsistent findings. I appreciate that the parties both took the
    position before her that partial summary judgment was appropriate. However, the
    motion judge was still required to turn her mind to the possibility of a
    material risk of inconsistent outcomes.

[32]

Jennifer asserts that the risk of inconsistent
    outcomes here is genuine because the factual footprint of the conspiracy claim
    is substantially the same as the support issues that remain for trial. Her submission
    is that, by finding that Michael had the right to allocate to himself the
    entire proceeds of the buyout, but also that it was open to a trial judge to
    impute to Anthony part of those proceeds as a remedy for the artificiality of
    Michaels allocation to himself, the motion judge created a material risk of
    inconsistent results.

[33]

I agree with that submission.

[34]

For Jennifer to convince a court that it is
    appropriate to attribute or impute additional income to Anthony, she would need
    evidence of Sonco's earnings as well as proof that Anthony had indirectly
    received some of it, would have received a portion of it but for the divorce,
    and/or would be receiving it in the future. All of this was precisely what
    Jennifer alleged the respondents were complicit in concealing from her.
    Notably, despite Jennifers requests, Anthony did not disclose Soncos business
    records when requested as part of the family law proceedings. It was only after
    Michael and Sonco were named in her conspiracy claim that she received the
    information that could form the basis of an assertion that additional income
    should be attributed to Anthony.

[35]

Section 18(1) of the
Federal

Child
    Support Guidelines
provides:

Where a spouse is a shareholder,
    director or officer of a corporation and the court is of the opinion that the amount
    of the spouses annual income as determined under section 16 [the Total
    income in the T1 General form issued by the Canada Revenue Agency] does not
    fairly reflect all the money available to the spouse for the payment of child
    support, the court may consider the  situations described in section 17
    [Pattern of income] and determine the spouses annual income to include

(a)     All or part of the
    pre-tax income of the corporation, and of any corporation that is related to
    that corporation, for the most recent taxation year; or

(b)     An amount commensurate
    with the services that the spouse provides to the corporation, provided that
    the amount does not exceed the corporations pre-tax income.

[36]

Attribution of income under s. 18 of the
Federal

Child Support Guidelines
can depend on the degree of control exercised
    by the spouse over a corporation. Corporate income attribution may be
    appropriate even where the spouse does not control the corporation but where,
    for example, control is held by a cooperative relative, and there is a past
    practice of the spouse receiving compensation: see
Potzus v Potzus
,
    2017 SKCA 15, at paras.19, 56. Thus, the very same evidence brought in support
    of the conspiracy allegation would be relevant to a request to attribute additional
    income for support purposes.

[37]

The motion judge mentions several times that it
    will be open to Jennifer to ask the trial judge to attribute or impute more
    income to Anthony than he has declared. This is no more clearly stated than at
    para. 287 of her reasons:

While I agree that the buyout proceeds could
    be characterized as a lump sum of income derived from a future stream of
    payments, and that therefore Anthony may be entitled to a portion of it,
    conspiracy is too blunt an instrument to use to get at this for support
    purposes.  A trial judge may well find that a portion of the buyout proceeds
    should be characterized as income for support purposes and that income would
    form part of the retroactive calculation of support.  The
Family Law Rules
and the
Child Support Guidelines
have plenty of tools for the court to
    choose from to achieve those ends.

[38]

For Anthony to be entitled to a portion of the
    buyout directly contradicts the motion judges conclusion earlier in para. 287 on
    the conspiracy claim that Anthony had no ownership interest in the buyout
    contract. It also directly contradicts her conclusion at para. 313, already mentioned
    above, that, Michael decided to retain the proceeds, as it was his company
    that entered into the agreement with the Nation. He had the right to act in
    that manner.

[39]

The evidence about Anthonys interest in Sonco
    should have been considered alongside Jennifers claims for support. The risk
    of inconsistent findings actually materialized in the motion judges own
    inconsistent statements relating to the conspiracy claim and her assertions
    about avenues that remained open to Jennifer in her family law litigation.

[40]

In short, this was not an appropriate case for
    partial summary judgment. The motion judge erred in law by failing to consider
    the substantial risk of inconsistent outcomes before bifurcating the
    proceeding.

2.

Did the motion judge err in law in her analysis
    of the tort of conspiracy?

[41]

The motion judge articulated a concern about the
    far-reaching implications of extending the tort of conspiracy where family
    members are involved. She worried that if the damages Jennifer requested were
    permitted, policy concerns would arise about claims for damages in every case
    where a payor spouse, in conjunction with a new spouse/relative/business
    partner, did not fully disclose income, unreasonably deducted expenses, or
    received income in the form of cash or goods. Her concern was that conspiracy
    claims would become the new norm. She concluded that, given the existing
    mechanisms for recovery, damages for conspiracy would effectively be a form of
    punitive damages. According to the motion judge, any concerns about bad faith
    conduct can be remedied by imputing income to the payor for the purposes of calculating
    support obligations or through costs awards.

[42]

In rejecting the availability of the tort of
    conspiracy in the family law context, the motion judge was clearly motivated by
    the view that the family law statutory scheme creates a complete code for addressing
    all issues related to support and that there are sound policy reasons not to
    permit additional tort claims. In my view, it is not accurate to say, as the
    respondent does, that the trial judges analysis of the availability of the
    tort was
obiter
. In fact, it obviously motivated her analysis of
    whether the tort had been established. Despite her stated acceptance that the
    case law does not preclude the application of the tort of conspiracy in family
    cases, her approach was that all claims should be determined under the family
    law regime and this approach imbued her analysis of whether the tort had been
    established.

[43]

While the motion judge found that the tort had
    not been established on the facts even apart from any policy considerations, one
    of two reasons she provided for her conclusion that the facts of this case are
    not ripe for its application was her concern about the far-reaching
    implications of extending the tort of conspiracy where family members are
    involved. The motion judges statement that conspiracy is too blunt an
    instrument to use to get at [the buyout proceeds] for support purposes
    suggests that she went beyond a mere finding that the test for conspiracy could
    not be satisfied on these facts.

[44]

As the Supreme Court suggested in
Leskun v.
    Leskun
, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34, nondisclosure is
    the cancer of family law. This is an apt metaphor. Nondisclosure metastasizes
    and impacts all participants in the family law process. Lawyers for recipients
    cannot adequately advise their clients, while lawyers for payors become
    unwitting participants in a fraud on the court. Judges cannot correctly guide
    the parties to a fair resolution at family law conferences and cannot make a
    proper decision at trial. Payees are forced to accept an arbitrary amount of
    support unilaterally determined by the payor. Children must make do with less.
    All this to avoid legal obligations, which have been calculated to be a fair
    quantification of the payor's required financial contribution. In sum,
    nondisclosure is antithetical to the policy animating the family law regime and
    to the processes that have been carefully designed to achieve those policy
    goals.

[45]

There is a related malady that often works
    hand-in-hand with nondisclosure to deny justice in family law proceedings. The
    problem is what I will call invisible litigants. These are family members or
    friends of a family law litigant who insert themselves into the litigation
    process. They go beyond providing emotional support during a difficult time to
    become active participants in the litigation. Usually their intentions are
    good, and their interference makes no difference in the ultimate result.
    However, sometimes they introduce or reinforce a win-at-all-costs litigation
    mentality. These invisible litigants are willing to break both the spirit and letter
    of the family law legislation to achieve their desired result, including by
    facilitating the deliberate hiding of assets or income.

[46]

If we were to accept the analysis of the motion
    judge, co-conspirators who engage in such behaviour could do so with impunity.
    Contrary to the observation of the motion judge, conspiracy is not a blunt
    instrument to respond to this misconduct. It is a valuable tool in the
    judicial toolbox to ensure fairness in the process and achieve justice. If the
    tort of conspiracy is not available, then co-conspirators have no skin in the
    game. Their participation in hiding income or assets is a no-risk proposition.
    If their conduct is exposed, all that happens is that the payor will be forced
    to pay what is appropriately owing. If there is to be deterrence, there must be
    consequences for co-conspirators who are prepared to facilitate nondisclosure.

[47]

There is a further practical reason for
    permitting the use of the tort of conspiracy in family law claims. Where income
    or assets have been hidden with the assistance of a co-conspirator, often the
    family law litigant will be effectively judgment-proof. That, after all, is the
    whole purpose of the conspiracy. In those circumstances, the imputation of
    income or the inclusion of hidden assets into the net family property
    calculation will be a futile exercise, as the recipient cannot collect on what
    is owing. A judgment against a co-conspirator will often be the only means by
    which a recipient will be able to satisfy a judgment.

[48]

The motion judge also erred in law in finding
    that a damage claim in conspiracy would effectively be a form of punitive
    damages because the appellant would already have an imputation remedy under
    the family law framework. It would appear that the motion judges concern was
    that permitting multiple claims would necessarily result in double recovery.
    This concern is based on a misunderstanding of the law of damages.

[49]

Overlapping remedies arising out of the same
    loss are always subject to the limiting principle of double recovery. However,
    the risk of double recovery does not arise simply because there are two damages
    awards extant. It is only where a damages award is satisfied that the principle
    of double recovery operates to prevent recovery beyond the damages suffered:
    see
SFC Litigation Trust v. Chan
, 2019 ONCA 525, 147 O.R. (3d) 145, at
    para, 133. There was no risk of overcompensation on the facts of this case.

[50]

As noted, it is my view that this case should
    proceed to trial, and there is no reason why a claim in conspiracy cannot be
    asserted. It will be for the trial judge to decide if the appellant has
    established her claim on a balance of probabilities. That said, it is essential
    to clarify a further misconception of the law of conspiracy advanced by counsel
    for Michael that appears to have found favour with the motion judge.

[51]

Michaels lawyer argues that the tort was not
    established because there was no evidence that the parties acted on the alleged
    agreement. By that submission, he means that there was no evidence that any
    money flowed from Michael to Anthony. It will, of course, be up to the trial
    judge to determine on a full record what Michael did with the funds. However,
    to be clear, a transfer of funds by loan, gift, or otherwise, is not the only
    way that the alleged co-conspirators could have acted in furtherance of the
    conspiracy. If the trial judge is satisfied that Anthony had an entitlement to
    funds and that a co-conspirator withheld the transfer of funds to him as part
    of a conspiracy with the understanding that he would receive the money at some
    future date, the withholding of the funds may itself be an act in furtherance
    of the conspiracy. It is not necessary to establish more than an acted-upon
    conspiracy to conceal Anthonys entitlement.

3.

Did the motion judge make a palpable and
    overriding error of fact and fail to advert to important evidence?

[52]

The palpable and overriding error of fact made
    by the motion judge concerned the August 18 Email. The motion judges analysis
    of that document was limited to the following, at para. 180:
He [Michael] denied any awareness of an
    email from Kelsi Campbell to RL [Landzatt] advising that the closing was upcoming,
    and money would be available to Michael and Anthony. He does not know who Kelsi
    Campbell is.

[53]

The email was not sent from Campbell to Landzatt,
    but from Landzatt to Campbell and MacIntyre. Nor could it have concerned the
    upcoming closing, as the email was sent days after the closing. At first
    glance, this may not seem like a significant error. However, this mistake
    coloured the motion judges analysis of this critical piece of evidence.
    Arguably, the email is consistent with Memo #1 and Memo #2 and suggests that,
    at the very least, there was an agreement that Anthony had an entitlement to a
    portion of the buyout proceeds. By misdescribing the August 18 Email as a communication
    from Campbell to Landzatt, the motion judge effectively minimized its
    importance. Implicit in her analysis was that Michael should not be expected to
    be aware of what an external accountant, who was unknown to him, had to say
    about the distribution of the buyout proceeds.

[54]

Had the motion judge correctly analyzed the
    August 18 Email, she would have had to consider why it appeared that Soncos
    CFO was suggesting immediately after the closing of the buyout that Anthony had
    an entitlement to a portion of the proceeds. She also would have been required
    to decide whether she should draw an adverse inference from the failure of
    Sonco to tender Landzatt as a witness.

[55]

This error was compounded by her failure to analyze
    in her reasons a later email, sent from Landzatt to MacIntyre and copied to Campbell,
    dated November 18, 2015, that included the following:

He's not using the house but we are hopeful it
    will sell sometime soon. I'll discuss the option with Michael but there are
    plans to take money out of the corp in 2016 to lend Anthony....so if we
    dividend out the entire amount this year and sell the house next year, there
    will still be an ability to reduce funds withdrawn next year. So maybe best to
    do it for 2015 as tax rates may go up?

[56]

This email is at least suggestive of an ongoing intention
    among the alleged co-conspirators to divert funds to Anthony. The motion judge
    was obliged to consider this significant piece of evidence in her reasons.

4.

Should the costs orders stand?

[57]

Given my conclusion that a new trial is needed,
    it is unnecessary to consider whether the motion judge erred in her costs award,
    or in ordering security for costs and making a preservation order. Those orders
    should be set aside. I would remit to the trial judge the issue of costs for the
    first trial.

[58]

Nothing in these reasons should be considered an
    approbation of the quantum of costs awarded or of the motion judges ancillary
    costs orders. There are aspects of these orders that are troubling. In
    particular, it is concerning that in making the order for security for costs
    and preservation of assets, the motion judge did not consider the justice of
    the case and whether Jennifer would be able to pursue her claims, including those
    on behalf of her children, in light of the order made.

[59]

As stated in
Yaiguaje v. Chevron Corporation
, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 23, in a
    discussion of orders for security for costs
,
Courts
must be vigilant to ensure an order
    that is designed to be protective in nature is not used as a litigation tactic
    to prevent a case from being heard on its merits. In considering an order for
    security for costs, the correct approach is for the court to consider the
    justness of the order holistically, examining all the circumstances of the case
    and guided by the overriding interests of justice to determine whether it is
    just that the order be
made: see
Yaiguaje
, at para. 25
.

V.

Disposition

[60]

I would allow the appeal, set aside the order
    granting partial summary judgment, and order that the case proceed to trial
    before a different judge of the Superior Court. In making that order, I would
    reserve the costs below to the trial judge.

[61]

As the appellant was entirely successful on this
    appeal, she is entitled to her costs of the appeal payable by the respondents
    on a joint and several basis. I would fix the amount of those appeal costs, in
    accordance with the agreement of the parties, in the all-inclusive amount of
    $50,000.

Released: P.L. April 17, 2020

C.W. Hourigan J.A.

I agree. P. Lauwers J.A.

I agree. Thorburn J.A.

[1]
For ease of reference, the parties will be referred to by their
    first names.


COURT OF APPEAL FOR ONTARIO

CITATION: Lum v. College of Physiotherapists
    of Ontario, 2020 ONCA 271

DATE: 20200429

DOCKET: M50951 and M51145 (M50815)

Gillese, Brown and Huscroft
    JJ.A.

BETWEEN

Lo-Ming Lum

Plaintiff (Moving Party)

and

College of Physiotherapists of Ontario, College
    of Physical Therapists of British Columbia, Unity Health Toronto as successor
    to St. Joseph's Health Centre,
St. Joseph's Health Centre (Toronto)
,
    Attorney General of Canada, The Honourable Harjit Singh
Sajian
Sajjan
    and The Honourable Judy Foote

Defendants (Responding parties)

Lo-Ming Lum, acting in person

Joanna Birenbaum, for the responding
    party College of Physiotherapists of Ontario

Kate Deakon, for the responding party Unity
    Health Toronto

Elizabeth Ackman and Sean McGarry, for
    the responding party College of Physical Therapists of British Columbia

Heard in writing

REASONS FOR DECISION

[1]

Ms. Lum brings two motions to this court. They
    arise within the context of an action that Ms. Lum brought against the defendants
    in April 2018 for harm she allegedly suffered as a result of whistleblowing
    (the Action).

BACKGROUND IN BRIEF

[2]

The defendants brought motions asking that the Action
    be dismissed. Justice Dunphy heard the motions. He found that the statement of
    claim was frivolous and vexatious. By order dated August 13, 2019, Dunphy J.
    granted the motions and dismissed the Action, without leave to amend (Justice
    Dunphys Order). Justice Dunphys Order also ordered costs against Ms. Lum and
    barred her from bringing any further proceedings against the defendants without
    leave of a judge of the Superior Court of Justice.

[3]

In the fall of 2019, Ms. Lum attempted to appeal
    Justice Dunphys Order to the Divisional Court. By endorsement dated September
    11, 2019, Corbett J. ordered that Ms. Lum bring a motion, on notice to the
    parties, for leave of the court to commence an appeal.

[4]

Instead, Ms. Lum filed a motion in the
    Divisional Court seeking to set aside Corbett J.s order of September 11, 2019.

[5]

By Notice of Motion dated September 16, 2019,
    Ms. Lum sought leave to appeal to this court from the order of Corbett J. dated
    September 11, 2019.

[6]

On September 27, 2019, Ms. Lum wrote to the
    Divisional Court requesting that the September 11, 2019 order of Corbett J. be
    revised. Justice Corbett reviewed Ms. Lums submissions and signed the revised
    order, as she had requested. A copy of the order was issued and entered on September
    30, 2019.

[7]

On October 1, 2019, Ms. Lum wrote to the
    Divisional Court asking to appear before it and make oral submissions to amend
    the order of Corbett J. dated September 11, 2019. The court refused to book an
    appearance before Corbett J., and directed that she file her concerns in
    writing.

[8]

By endorsement dated October 2, 2019, Corbett J.
    ruled that, as he had signed Ms. Lums draft order and it had been issued and
    entered by the Divisional Court (on September 30, 2019), the matter was settled.
    Accordingly, he refused to entertain the motion.

[9]

On October 23, 2019, Ms. Lum brought a motion in
    this court asking for an order to set aside or vary the order of September 11,
    2019. In an order dated October 23, 2019 (the Order), Tulloch J.A. dismissed
    the motion, as the proper forum for Ms. Lums motion was a panel of the
    Divisional Court.

[10]

Ms. Lum then brought the two motions now before the
    court (the Motions). In the first of the two Motions, Ms. Lum asks that the
    Order be set aside. In the second, she asks for an order dispensing with the
    requirement to file a copy of an order made by Corbett J. dated September 11,
    2019, in her materials seeking leave to appeal that order. Alternatively, she asks
    that the September 11, 2019 order be amended and she be granted an extension of
    time to file the materials seeking leave to appeal against it.

[11]

The College of Physiotherapists of Ontario prepared
    and filed a single responding factum on the Motions, on behalf of the College
    of Physical Therapists of British Columbia, Unity Health Toronto, and itself
    (the Respondents). In the current pandemic, it had been unable to reach
    counsel for the Attorney General of Canada and so could not submit a joint
    response on behalf of all the defendants to the Action.

[12]

The Respondents oppose the Motions and ask that
    they be dismissed with costs against Ms. Lum. They contend that the motions
    that Ms. Lum has brought in this court are yet another attempt by Ms. Lum to
    circumvent Justice Dunphys Order, which requires that she obtain leave of the
    Superior Court of Justice before she may take any further proceedings in that
    court in respect of the defendants. The Respondents further ask that this Court
    issue an order, pursuant to Rule 2.1 of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, requiring Ms. Lum to obtain leave of a single judge of this Court
    before she may take any further proceedings in respect of the defendants in
    this Court.

[13]

The Motions were scheduled to be heard on April
    16, 2020. Due to the pandemic and the physical closure of the Court, the
    parties were offered the opportunity to have the Motions heard in writing. It
    was Ms. Lums strong preference that the Motions be heard in writing. The Respondents
    consented and the Motions were set down to be heard in writing on April 21,
    2020.

[14]

Shortly before the in-writing hearing of the
    Motions, Ms. Lum sent further correspondence to the hearing panel dated April 15,
    2020. In the correspondence, Ms. Lum sets out details of her complaints of
    improper treatment by the Divisional Court and this court. We have reviewed
    that correspondence, as well as the documentation filed by the parties on the
    Motions.

ANALYSIS

[15]

The issue raised by the first of the two Motions
    is whether Tulloch J.A. erred in determining that the correct appeal route for Ms.
    Lum was to a panel of the Divisional Court and not to this court. Justice
    Tulloch made no error. The jurisprudence makes it clear that an appeal from, or
    review of, a single judge of the Divisional Court lies to a panel of the
    Divisional Court: see, for example,
Bernard Property Maintenance v. Taylor
,
    2019 ONCA 830. As Tulloch J.A. explained in his reasons for decision, he was
    without jurisdiction to hear Ms. Lums motion. Accordingly, the first Motion is
    dismissed.

[16]

In the second of the two Motions, Ms. Lum seeks
    to have this court hear an appeal of the order dated September 11, 2019. As an
    interlocutory order, an appeal from that order lies to the Divisional Court,
    not this court. For that reason, the second Motion is dismissed.

[17]

In light of the history of this proceeding, Ms.
    Lums apparent disregard for Justice Dunphys Order, and the procedural motions
    wrongly brought to this court, we are of the view that an order pursuant to
    Rule 2.1 of the
Rules of Civil Procedure
is warranted.

DISPOSITION

[18]

Accordingly, the Motions are dismissed with
    costs to the College of Physiotherapists of Ontario, fixed at $1,000, all
    inclusive. Further, an order shall go, pursuant to Rules 2.1 and 37.16 of the
Rules
    of Civil Procedure
, requiring Ms. Lum to obtain leave of a single judge of
    the Court of Appeal before she may take any further steps or proceedings
    related to this action in this Court.

E.E. Gillese
    J.A.

David Brown
    J.A.

Grant Huscroft
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Nguyen (Re), 2020 ONCA 247

DATE: 20200408

DOCKET: C67178

Watt, Fairburn and Zarnett JJ.A.

IN THE MATTER OF: Hung Van Nguyen

AN APPEAL UNDER PART XX.1 OF THE
CODE

Paul Calarco, for the appellant

Michael S. Dunn, for the respondent, the
    Attorney General of Ontario

Kendra Naidoo, for the respondent, the
    Person in Charge of the Centre for Addiction and Mental Health

Heard: March 12, 2020

On appeal from the disposition of the
    Ontario Review Board, dated May 27, 2019, with reasons dated June 13, 2019.

REASONS FOR DECISION

OVERVIEW

[1]

The appellant, Hung Van Nguyen, has been
    detained at the Centre for Addiction and Mental Health (CAMH) in Toronto
    since 2012. After a hearing on May 14, 2019, the Ontario Review Board (the Board)
    ordered that the appellant continue to be detained at CAMH, subject to certain
    conditions. In making that disposition, the Board rejected the parties joint
    submission that the appellant be transferred from CAMH to the High Secure
    Provincial Forensic Programs at Waypoint Centre for Mental Health (Waypoint)
    in Penetanguishene.

[2]

The appellant argues that the Board erred in two
    respects and that its disposition therefore cannot stand. First, he submits
    that the Board failed to give notice that it was contemplating rejecting the
    joint submission, and thus breached its duty of procedural fairness. Second, he
    submits that the decision of the Board not to give effect to the requested
    transfer was unreasonable.

[3]

For the reasons that follow, we dismiss the
    appeal.

BACKGROUND

[4]

In January 2012, the appellant was admitted to
    Waypoint. In March 2012, he was found not criminally responsible on account of
    mental disorder (NCR) on a charge of committing an indecent act. In November
    2012, he was transferred from Waypoint to a general forensic unit at CAMH.

[5]

In October 2013, the appellant was found NCR on
    a charge of invitation to sexual touching. In December 2013, the appellant was
    transferred to a secure unit at CAMH. He remained detained at the Secure
    Forensic Unit at CAMH at the time of the Boards hearing.

[6]

The appellant suffers from schizophrenia, which is
    treatment-resistant and complicated by substance abuse, medication nonadherence,
    and a personality disorder. He exhibits symptoms of psychosis and has limited
    insight into his mental illness. He has a history of violence and inappropriate
    behaviour towards others. He requires close supervision and medication
    monitoring, as he decompensates rapidly if he abuses substances or is medication
    noncompliant.

[7]

In the four years leading up to the May 2019
    Board hearing, there were three occasions on which the appellant absconded while
    on passes; on the last two of these occasions, he tested positive for cannabis
    use after returning to CAMH. There was no report of violence on any of these
    occasions.

[8]

Following these events, the appellant was
    determined to be a high risk for elopement and needed to be escorted by
    security to appointments on CAMH grounds. From November 2017 to the time of the
    Boards hearing, he was not granted any off-unit passes, meaning that he was
    essentially confined to his unit. This was a source of frustration for the
    appellant, who asked on a number of occasions to be transferred to other
    facilities, including Waypoint.

THE BOARD HEARING

[9]

The Boards hearing was to review the disposition
    under which the appellant was detained at CAMH. At the hearing, the parties
    made a joint submission. They agreed that the appellant continues to represent
    a significant threat to the safety of the public and should continue to be
    detained. CAMH recommended that the conditions of the existing disposition
    continue with one change: the appellant should be transferred to the high
    secure program at Waypoint. The reason articulated was that Waypoint, unlike
    CAMH, has a secure perimeter, which would allow granting the appellant
    privileges to be outside of his unit but within Waypoints secure perimeter.
    The Crown and the appellant agreed with the CAMH recommendation.

[10]

The Board noted the joint submission, but indicated
    it wished to hear the evidence. Accordingly, the appellants attending
    psychiatrist, Dr. Walton, testified. In addition, hospital reports from CAMH
    and a letter from the Director of Waypoints Forensic Assessment Program regarding
    the requested transfer (the Waypoint Letter) were entered as Exhibits.

[11]

The Waypoint Letter commented specifically on
    CAMHs view that a transfer to Waypoint could afford [the appellant] more
    liberal off-unit privileges within the confines of a secure perimeter. It
    explained the risk assessments that are made before Waypoint allows a patient
    to access services and amenities within the high secure perimeter. The author
    of the letter opined:

Given Mr. Nguyens
    history and risk factors, I expect that he would not experience independent
    off-unit access to the common areas contained within our high secure perimeter.
    Instead, once his risk is assessed to be low enough for him to leave his unit,
    he would need to be escorted or accompanied to the common and centralized areas
    of our facility.

[12]

The letter also pointed out the limited
    resources that Waypoint had to assess and manage risk at the community
    interface that exists when a patient is re-integrating into the community[W]e
    do not have the resources to provide discretionary privileges beyond our high
    secure perimeter with the minimal exception of staff escorted (at a 2:1 minimum
    staff to patient ratio) hospital grounds walks, should such discretionary
    privileges be included in a patients disposition.

[13]

The Board members asked Dr. Walton questions,
    including questions about the Waypoint Letter and the concerns it raised about
    the appellant getting access to the secure perimeter area. There were also
    questions about the therapeutic relationship that the appellant appeared to
    have with a behavioural therapist at CAMH and whether that would continue at
    Waypoint. Dr. Walton was also asked about other facilities in Ontario with
    secure perimeters and whether the appellant had any reason to prefer Waypoint
    to them.

THE BOARD DECISION

[14]

The Board agreed with the first part of the
    joint submissionthat the appellant continued to represent a significant threat
    to the safety of the public and that a detention order, with the existing conditions,
    was therefore justified. However, the Board rejected the second part of the
    joint submission involving a transfer to Waypoint. It found that the transfer
    to a high secure facility was not necessary or appropriate in all the
    circumstances. The Board provided several interrelated reasons for this
    conclusion.

[15]

First, the Board noted that, although the
    appellant had absconded three times while at CAMH, he had been off-unit on
    passes at other times and did not abscond. In the Boards view, there was a
    prospect of limited passes off-unit with security and further engagement on
    the unit and work with [the behavioural therapist that] may result in more
    privileges for Mr. Nyugen as his intrusive behaviour diminishes. It noted that
    no inquiry had been made as to whether Waypoint would have a behavioural
    therapist available for the appellant.

[16]

Second, the Board discounted the prospect that
    the appellants lack of engagement in programs at CAMH might increase if his
    request for a transfer were met. It noted Dr. Waltons evidence that his
    challenges may continue wherever he was transferred. The Board also highlighted
    that, while at CAMH, the appellant had participated in several recreational
    activities and attended three social events, displaying some progress. There
    had also been no incidents of inappropriate touching since January 2019.

[17]

Third, while the Board noted CAMHs view that a
    transfer would allow the appellant more liberal off-unit privileges within a
    secure perimeter, it found that the appellant would not be granted such
    privileges any time soon given the content of the Waypoint Letter. Specifically,
    the Board stated that it cannot conclude that Mr. Nguyen could have more
    off-unit privileges at Waypoint.

[18]

Finally, the Board was not prepared to find that
    a move from CAMH, a medium secure facility, to Waypoint, a high secure facility,
    would be the least onerous and least restrictive disposition in the
    circumstances. This was especially so given that other medium secure facilities
    with secure perimeters had not been explored as transfer options.

ANALYSIS

Rejection of the
    Joint Submission

[19]

A joint submission is beneficial to the Boards
    process. It can narrow the issues, reduce the time and expense of hearings, and
    minimize inconvenience to witnesses. It can also temper adversarial positions
    to the benefit of the person whose disposition is under consideration. Nevertheless,
    the Board is inquisitorial in its approach, and has the authority and duty to
    reject a joint submission that does not meet the requirements of s. 672.54 of
    the
Criminal Code
, R.S.C. 1985, c. C-46:
Re Benjamin,
2016
    ONCA 118, 345 O.A.C. 210, at paras. 19-20.

[20]

Where the Board considers that it might reject a
    joint submission, it must provide notice in order to give procedural fairness
    to the parties, especially to the person subject to the Boards disposition.
    The form of the notice may vary. For example, it may be given expressly by a
    statement that the Board is considering rejecting the joint submission and
    inviting additional evidence or submissions. This statement may be made during
    the hearing or after the Board has taken the matter under deliberation. Or it may
    be given implicitly, by Board members asking questions during the hearing that are
    significantly probing about the core elements of the joint submission:
Re
    Benjamin
, at para. 22. Ultimately, whether appropriate notice has been
    given is a contextual issue, the test being whether the method followed
    satisfied the objective of allowing the person subject to the Boards
    disposition to present evidence and argument relevant to the Boards decision:
Benjamin
,
    at paras. 22-23;
Re Osawe,
2015 ONCA 280, 125 O.R. (3d) 428, at paras.
    73-74.

[21]

In this case, the Board did not give an express
    notice that it was considering rejecting the joint submission. However, it also
    gave no indication that it was satisfied with it. During the hearing, Board members
    asked questions about the core plank of the joint submissionthe proposed
    transfer to Waypoint. These included questions about the statements in the Waypoint
    Letter concerning whether, and when, the appellant might enjoy off-unit
    privileges within Waypoints secure perimeter; the existence and availability
    of such privileges were the key advantage ascribed to the proposed transfer. Beyond
    that, there were also questions about another effect of the proposed transferthe
    end of the appellants relationship with the behavioural therapist at CAMH and
    whether anything similar would be available to the appellant at Waypoint.

[22]

In our view, taken as a whole, the questions
    asked were significantly probing about the core elements of the joint
    submission so as to provide the required notice that the joint submission may
    be rejected. The fact that more than one Board member picked up the same topic
    for questioning adds important contextual support for this conclusion. The
    recurring themes in the questions show not only that Board members had initial concerns
    about the joint submission, but that they maintained those concerns even after initial
    answers were proffered.

[23]

The appellant argues that, in determining
    whether the asking of questions conveys notice that the joint submission might
    be rejected, consideration must be given not only to the questions but also to
    the answers. We agree that the answers form part of the context; but we do not
    agree that consideration of them detracts from what the questions conveyed
    concerning the fate of the joint submission. Dr. Walton gave thoughtful answers
    to the Board members questions. However, Dr. Walton had no experience at
    Waypoint or direct familiarity with the way it performed risk assessments. The
    Board was not required to accept her views about the likelihood of the appellant
    receiving off-unit passes there and the Board was entitled to form its own
    views based on the Waypoint Letter. Nor was the Board required to accept her suggestion
    that behavioural therapy would be available to the appellant at Waypoint equivalent
    to that at CAMH, as she had acquired no information on that topic.

[24]

Nothing in the Board members reactions to Dr.
    Waltons answers suggested that Dr. Walton had allayed their concerns; the
    revisiting of certain subjects by more than one Board member would, if
    anything, suggest that the concerns were not allayed.

[25]

The implicit notice that the Board provided through
    its questioning satisfied the objective of allowing a meaningful opportunity to
    present evidence and argument relevant to the Boards disposition. While it is
    undoubtedly preferable for a Board, when considering the rejection of a joint
    submission, to give express notice and an express opportunity to lead more
    evidence and make additional submissions, here the Board did not err by failing
    to do so. The parties were well placed, in listening to the Boards questions
    and evaluating the answers Dr. Walton was able to give, to determine whether
    more evidence should be led and/or whether any specific submissions should be
    made to better ensure acceptance of the joint submission.

[26]

The Board did not fail in its duty of procedural
    fairness. We reject this ground of appeal.

The
    Unreasonableness Ground of Appeal

[27]

The appellant, supported by CAMH, also argues
    that the Boards disposition, to the extent that it fails to give effect to the
    requested transfer to Waypoint, is unreasonable. The appellant submits that the
    Board misapprehended the evidence about when the appellant had been off the
    unit at CAMH, and the evidence in the Waypoint Letter about when off-unit
    access would occur there. The appellant also submits that the Board unreasonably
    rejected evidence suggestive of a treatment impasse at CAMH that had a prospect
    of being overcome at Waypoint.

[28]

This court may allow an appeal against a
    disposition of the Board where the disposition is unreasonable or cannot be
    supported by the evidence:
Criminal Code
, s. 672.78(1)(a). A
    reasonable decision is one where the Boards reasoning process and the
    outcome reflects an internally coherent and rational chain of analysisthat is
    justified in relation to the facts and law:
Canada (Minister of
    Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, at paras. 83, 85;
Re
    Ahmadzai
, 2020 ONCA 169, at paras. 12-13. A proper appreciation of the
    evidence is related to whether the resulting decision is reasonable, as [t]he reasonableness
    of a decision may be jeopardized where the decision maker has fundamentally
    misapprehended or failed to account for the evidence before it:
Vavilov
,
    at para. 126;
Re Ahmadzai
, at para. 23.

[29]

In our view, the Boards decision was not
    unreasonable. The Board did not misapprehend the evidence about when the
    appellant had been off the unit at CAMH, nor the statement in the Waypoint Letter
    about what needed to occur before off-unit access would be allowed there. The
    Boards decision accounted for the evidence before it. The Boards critical finding,
    that off-unit access at Waypoint would not be allowed any time soon, was
    available to it on the record.

[30]

There was no evidence of a treatment impasse at
    CAMH in the sense of there being an absence of treatment, a complete refusal to
    engage with the treatment team, or treatment of no effect on the management of
    the appellants mental health issues:
Re Abeje
, 2019 ONCA 734, at para.
    30. The Boards finding that there had been some progress with the behavioural
    therapist at CAMH was not contrary to the evidence. For example, there was
    evidence that interaction with the behavioural therapist had recently resulted
    in the appellant meeting certain goals relating to hygiene and a reduction of
    inappropriate touching. This progress was appropriately contrasted by the Board
    with the lack of evidence that anything similar would be available at Waypoint,
    and was appropriately assessed by the Board in light of Dr. Waltons statement
    that the appellants motivation to engage in treatment might not be better even
    if he moved to Waypoint.

[31]

The Boards disposition is internally coherent
    and reflects a rational chain of analysis justified in light of the facts and
    law. We reject this ground of appeal.

CONCLUSION

[32]

For the above reasons, the appeal is dismissed.

David Watt J.A.

Fairburn J.A.

B. Zarnett J.A.