WARNING

The child in this case is the subject of proceedings under the
Child,
    Youth and Family Services Act, 2017
. This judgment is subject to
    subsections 87(8) and 87(9) of this legislation.
These subsections and subsection 142(3) of
the
Child, Youth and Services Act, 2017
, which
deals with the consequences of
    failure to comply, read as follows:

87
(8)
Prohibition re
    identifying child
 No person shall publish or make public information
    that has the effect of identifying a child who is a witness at or a participant
    in a hearing or the subject of a proceeding, or the childs parent or foster
    parent or a member of the childs family.

(9)
Prohibition re
    identifying person charged
 The court may make an order prohibiting
    the publication of information that has the effect of identifying a person
    charged with an offence under this Part.

142
(3)
Offences re publication
 A
    person who contravenes subsection 87(8) or 134(11) (publication of identifying
    information) or an order prohibiting publication made under clause 87(7)(
c
)
    or subsection 87(9), and a director, officer or employee of a corporation who
    authorizes, permits or concurs in such a contravention by the corporation, is
    guilty of an offence and on conviction is liable to a fine of not more than
    $10,000 or to imprisonment for a term of not more than three years, or to both.

COURT OF APPEAL FOR ONTARIO

CITATION: A.M. v. C.H., 2019 ONCA 764

DATE: 20190930

DOCKET: C66170

Pardu, Paciocco and Zarnett
    JJ.A.

BETWEEN

A.M.

Applicant (Respondent)

and

C.H.

Respondent (Appellant)

John Phillips and Julia Tremain, for
    the appellant

Brian Ludmer, for the respondent

Catherine Bellinger and Suzanne Stern, for the
    Office of the Childrens Lawyer

Heard: August 14, 2019

On appeal from the judgment of Justice Paul
    W. Nicholson of the Superior Court of Justice, dated October 30, 2018 with
    reasons reported at 2018 ONSC 6472.

Pardu J.A.:

[1]

B., a 14-year-old boy, had been showing
    increasing resistance to visits with his father. The trial judge concluded that
    the mother systematically and successfully poisoned the childs relationship with
    his father. The mother was clearly uninterested in participating in therapy with
    a view to encouraging the child to reconcile with his father.

[2]

The trial judge concluded that the childs long-term
    best interests favoured a reversal of custody and a suspension of access,
    intended to be time-limited, to the mother and her allies, in the hopes that
    the father and son could achieve some rapprochement. Accordingly, by judgment
    dated October 30, 2018, the trial judge ordered an immediate custody reversal
    and prohibited contact between the child and his mother and siblings for six months,
    with custody and access to be reviewed at the end of the six-month period,
    subject to certain conditions. In his reasons on motion dated January 18, 2019,
    the trial judge further ordered no contact between the child and the mothers
    extended family.

Issues

[3]

None of the parties dispute the trial judges
    factual findings. However, the mother, the appellant, and the Office of the
    Childrens Lawyer (OCL), advocating for the boys wishes, argue the trial
    judges order (contained in the October 30, 2018 decision) be set aside because:

1.

The trial judge improperly applied the best interests of the child
    test by:

a)

Failing
    to consider the potentially catastrophic consequences of separating the child
    from his mother;

b)

Overemphasizing the mothers bad conduct; and

c)

Failing to give effect to the childs wishes.

2.

The trial judge erred in imposing a reversal of custody because:

a)

The
    mother could not have anticipated it would have been ordered;

b)

There was no expert evidence about the likely effects of such a
    remedy on the child; and

c)

There was no therapeutic support in place to guide the transition.

3.

The trial judge improperly delegated decision-making
    power, because he made review of custody and access provisions contingent on
    reports from therapists and whether the child had meaningfully engaged in
    therapy.

4.

The trial judge erred in ordering the child to
    participate in reconciliation therapy without his consent to treatment, as
    contemplated by the
Health Care Consent Act
,
1996
, S.O. 1996,
    c. 2, Sched. A (
HCCA
).

[4]

These are issues of mixed fact and law. Absent
    palpable and overriding error, this court should not intervene. Specifically, as
    this court has reiterated many times, an appeal court must not retry a custody
    case. Instead, this court must approach the appeal with considerable respect
    for the task facing a trial judge in difficult family law cases, especially
    those involving custody and access issues:
C.S. v. M.S.,
2010
    ONCA 196, 262 O.A.C. 225, at para. 4.
As stated in
Van de
    Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13:

Custody and access decisions are inherently
    exercises in discretion. Case by case consideration of the unique circumstances
    of each child is the hallmark of the process. This discretion vested in the
    trial judge enables a balanced evaluation of the best interests of the child
    and permits courts to respond to the spectrum of factors which can both
    positively and negatively affect a child.

[5]

The trial judge has not made any palpable or
    overriding errors. His reasons are thorough, cogent, and owed considerable
    deference. Accordingly, I would not give effect to any of the mother or OCLs
    arguments and would dismiss the appeal.

Family history and factual
    findings

[6]

Since there is no contest about the trial
    judges factual findings, I summarize the family history relying on those
    findings.

[7]

The parties married on April 25, 1998, separated
    June 28, 2014, and divorced on April 24, 2017. There are three children of the
    marriage. B. is the youngest child and the only child subject to these
    proceedings.

[8]

In the summer of 2014, the mother unilaterally
    and surreptitiously moved the childrens residence to Guelph from Toronto. She
    was ordered to return the childrens residence to Toronto and did so on
    September 1, 2014. The same order awarded the father access on Sundays from
    9:00 a.m. to 9:00 p.m. and on Wednesday evenings.

[9]

The parties resolved their financial issues by
    order of September 14, 2016.

[10]

By October 2016, the fathers access was reduced
    to 45-60 minutes on Sundays when the children would have breakfast with him at
    a donut shop.

[11]

The child has consistently stated that he does
    not enjoy the visits and does not want them to continue. He refused to engage
    with his father in any meaningful way during the visits.

[12]

The mothers efforts to eliminate the father
    from the childrens lives began well before separation, as the trial judge
    noted:

[26] The Applicant Father testified that in
    the years prior to separation, starting in 2010, the Respondent Mother began
    criticizing the Applicant Father in front of the children for not making enough
    money. In front of the children she also said he could not wash dishes or fold
    laundry properly. The situation worsened in 2012, when the maternal grandmother
    started to spend two to four days per week at the family home. She joined in
    the criticism of the Applicant Fathers inadequacies in providing for the
    family or helping with household duties in front of the children. The incessant
    nattering often ended with the Applicant Father and Respondent Mother engaging
    in yelling and screaming at each other. The Applicant Father testified that he
    would often end these arguments by leaving the matrimonial home. When he
    returned, the Respondent Mother had locked the door and he had to plead for 15
    minutes with the children to let him in. This was a humiliating experience for
    him.

[27] Starting in 2012, the Respondent Mother
    prohibited the Applicant Father from driving the children to school. The
    Respondent Mother and children would often visit the Respondent Mothers family
    farm for stretches of time without the applicant Father. The Respondent Mother
    and the children began to impose rules on the Applicant Father in the home. He
    was not permitted to eat with them at the table. He was not permitted to sit in
    the family room with the children as they watched television. The children told
    him to leave and the Respondent Mother did not intervene. He was not permitted
    to drive the children to their doctors appointments. He was not permitted to
    wish the children goodnight. He was not permitted to enter the youngest child, [B.]s,
    room.

[28] The Respondent Mother, according to the
    Applicant Fathers evidence, told him in these years prior to the separation
    that the children did not like him and did not need him.

[13]

The social worker retained to convey the childs
    wishes reported that the mothers strongly negative feelings towards the father
    had contributed to the childs wish to discontinue visits with his father. The
    mother transmitted verbal and non-verbal communication to the children that
    revealed her disdain for the father and her disapproval of his parenting. Similarly,
    the trial judge found that mother was averse to the father playing any role in
    the childs life:

[163] The Respondent Mother does not hide the
    fact that she sees no benefit to the child having a relationship with the Applicant
    Father. She moved the child away in an effort to limit that relationship. She
    has poisoned the child against the Applicant Father. She admits that she cannot
    co-parent with the Applicant Father.

[14]

The trial judge also found that the child showed
    behaviour suggesting that the mother had influenced the childs resistance to a
    relationship with the father:

·

Views of parents one-sided, all good or all bad;
    idealizes one parent and devalues the other: [the child] is unable to
    articulate any good memories of time with his father and/or good qualities of
    his father.

·

Vicious vilification of target parent; campaign
    of hatred: [the child] expresses hatred openly toward his father.

·

Trivial, false and irrational reasons to justify
    hatred: [the child]s hatred is based on allegations that are without merit.
    There is no evidence to corroborate allegations of extensive physical abuse, or
    of bad driving, or of an infested Matrimonial Home.

·

Reactions and perceptions unjustified or
    disproportionate to parents behaviours: [the child]s insistence on short
    visits at a library and refusal to attend at the Matrimonial Home are
    irrational and unjustified.

·

No guilt or ambivalence regarding malicious
    treatment, hatred, et cetera: [the child] believes he is justified in holding
    onto his hatred toward his father.

·

A stronger, but not necessarily healthy,
    psychological bond with alienating parent than with rejected parent: [the child]
    has no bond with his father. He is closer to his mother, but is showing signs
    of an unhealthy attachment, becoming violent toward his mother.

·

Denial of hope for reconciliation; no
    acknowledgement of desire for reconciliation: [the child] clearly articulated
    to several witnesses that he had no desire to participate in any counselling
    with a view to reconciliation.

[15]

He later concluded that the mother had displayed
    behaviour tending to undermine the childs relationship with his father:

[170] Regarding the alienating parent
    behaviours, I find that the Respondent Mother displays the following:

·

Allows and insists that child makes decisions
    about contact.

·

Sets few limits or is rigid about routines,
    rules and expectations.

·

Refuses to speak directly to parent; refuses to
    be in same room or close proximity; does not let target parent come to door to
    pick up child.

·

No concern for missed visits with other parent.

·

Makes statements and then denies what was said.

·

Body language and non-verbal communication
    reveals lack of interest, disdain and disapproval.

·

Rejected parent is discouraged or refused
    permission to attend school events and activities.

·

Does not believe that child has any need for
    relationship with other parent.

·

Portrays other parent as dangerous, may
    inconsistently act fearful of other parent in front of child.

·

Exaggerates negative attributes of other parent,
    and omits anything positive.

·

Delusional false statements repeated to child;
    distorts history and other parents participation in the childs life; claims
    other parent has totally changed since separation.

·

Projection of own thoughts, feelings and
    behaviours onto the other parent.

·

Does not correct childs rude, defiant and/or
    omnipotent behavior directed towards the other parent, but would never permit
    child to do this with others.

·

Convinced of harm, when there is no evidence.

·

False or fabricated allegations of sexual,
    physical and/or emotional abuse.

·

Denigrates and exaggerates flaws of rejected
    parent to child.

·

Extreme lack of courtesy to rejected parent.

·

Relocation for minor reasons and with little
    concern for effects on child.

[16]

For example, a mouse was found in an unattached
    garage shared with neighbor. The mother transformed this into an allegation
    that ants and rats infested the former matrimonial home, occupied by the father.
    She used this as an excuse for violating court orders regarding the childrens
    visits to the fathers home.

[17]

The trial judge concluded that the childs
    behaviour was not a justifiable response to poor parental behaviour by the
    father:

[176] There is no doubt that the Applicant
    Father has struggled to successfully communicate with the children for many
    years. However, I do not find that his conduct played a part in damaging the
    children. In other words, his conduct did not constitute justified
    estrangement. Because of the poisoning by the Respondent Mother of the children,
    they wanted nothing to do with the Applicant Father, but his shortcomings were
    not the issue. Issues identified by the children (for example his driving, ants
    and rats in his house, and physical abuse) were not grounded in reality. They
    were figments planted by the Respondent Mother or created by the children
    themselves. This is not a hybrid situation. It is a unilateral, deliberate and
    successful alienation by the Respondent mother alone.

[177] The alienation had been completed well
    before the separation. The OCL did not observe undue influence by the Respondent
    Mother recently because she did not need to continue the influence once
    alienation was a
fait accompli
. The evidence outlined earlier of the
    Respondent Mothers and childrens demeaning attitude and bitterness toward the
    Applicant Father for two years prior to separation (not permitting him to eat
    with the family or watch TV with them) supports this conclusion.

[18]

The father attempted to engage in reconciliation
    therapy with his son and Marcie Goldhar, a social worker. The mother was unable
    to act in a way consistent with reconciling the father and the child. Ms.
    Goldhar reported that further similar efforts at outpatient therapy were
    unlikely to be successful unless circumstances changed. The trial judge
    concluded that if the child was left with the mother, both she and the child likely
    would not comply with any order for therapy or attempts at reconciliation. In
    fact, the trial judge expected the mother and child may completely disobey any
    access order he made.

[19]

By the end of the trial, the mother and the
    child both took the position that there should be no contact with father, or in
    the alternative, minimal contact.

[20]

The trial judge rejected the possibility of
    leaving the child with the mother. He characterized her behaviour as amounting
    to emotional abuse, which would continue and permanently sever any relationship
    between the child and his father.

[21]

He also rejected the possibility of leaving the
    child with the mother with an order for therapy, on the ground the mother would
    not participate.

[22]

There was no third party proposed to take charge
    of the child.

[23]

The trial judge concluded that the long-term
    best interests of the child required placing the child with the father and
    suspending the mothers contact with the child. He determined that the
    potential long-term detrimental impact of the childs severed relationship with
    his father far outweighed the short-term difficulties of the custody reversal
    and no-contact order.

Analysis

1.

Did the trial judge improperly apply the best
    interests of the child test?

[24]

The mother and OCL suggest the trial judge
    improperly applied the best interests of the child test. Their arguments mainly
    focused on how the trial judge failed to consider the potentially catastrophic
    consequences of custody reversal for the child, overemphasized the mothers bad
    conduct, and failed to give the childs wishes any weight. However, the mother
    and OCL do not dispute any of the factual findings that informed the best
    interests of the child analysis. It is thus difficult to challenge the trial
    judges discretionary weighing of the different factors.

[25]

The trial judge explicitly considered the
    childs ties to his mother and the short-term disruption that would result from
    a transfer of custody to the father. The child was having difficulties while
    living with his mother. He had assaulted her. The mother struggled to meet the
    childs educational needs. While the child had lived almost exclusively with
    the mother for four years, the trial judge did not consider this a stable home
    environment, due to the mothers inadequate and emotionally abusive parenting.
    Accordingly, trial judge concluded:

[167]  I
    have no doubt that [the child] will initially struggle tremendously with the
    order I am making. However, continuing with the status quo in my view will not
    only result in a termination of the childs relationship with the Applicant
    Father but it will be detrimental to his emotional development in the long-term
    to continue to be exposed to the destructive parenting of the Respondent
    Mother. The long-term detrimental impact on the child of a permanently severed
    relationship with his father and ongoing exposure to the substandard parenting
    of the Respondent Mother far outweighs the emotionally challenging but
    temporary adjustment to living with the Applicant Father and short-term
    difficulties of having no contact with the Respondent Mother
.

[26]

The mothers conduct was profoundly harmful to
    the child and contrary to the childs best interests. The mothers conduct was
    highly relevant, and the trial judge did not err in giving it the importance he
    did.

[27]

The trial judge also found that the child had
    been poisoned against his father and his wishes were not independent. Absent a
    challenge to this finding, the trial judge was entitled to put no weight on the
    childs wishes. The trial judge noted further he would not abandon the courts
    role of determining the best interests of the child just because the child will
    do what he wishes in any event. Instead, his goal was to fashion an order that
    will prevent [the child] from voting with his feet: at para. 153.

[28]

The trial judges conclusions were reasonably available
    on the evidence and are entitled to deference. There is no basis to intervene.

2.

Did the trial judge err in imposing a reversal
    of custody with a no-contact order?

[29]

The mother suggests the remedy was extreme and
    she had no notice of it. However, the father explicitly claimed sole custody
    as an alternative claim to division of parenting time with detailed conditions.
    The mothers conduct and its effect on the child was front and center in the
    fathers pleadings. Sometimes warring parents lose sight of their childrens
    best interests. Under such circumstances, no one should be surprised if the
    trial judge fashions a parenting regime which is not in the precise terms
    sought by either party.

[30]

The mother and OCL also submit that expert
    evidence about the effects of the remedy on the child, as well as therapeutic
    supports, was necessary before imposing such an extreme remedy.

[31]

In finding that the mother alienated the child
    from the father, the trial judge was not purporting to make a psychiatric
    diagnosis of any syndrome or condition. Rather, he was making factual findings
    about what happened in this family. This is the stuff of which custody trials
    are made, and as conceded, no expert opinion was required to enable him to do
    so.

[32]

Those factual findings logically led to certain
    remedies being appropriate or not. The trial judge did not need expert evidence
    before choosing the remedy that was in the best interests of the child.

[33]

Further, judges deciding custody cases do so in
    places as diverse as Cochrane, Ontario and downtown Toronto. It cannot be
    assumed that comprehensive parenting capacity assessments are universally
    available or affordable. Even competent assessors may not have the luxury of
    lengthy time to evaluate family dynamics and appropriate remedies.

[34]

This was an 11-day trial. The trial judge had
    the full opportunity to assess the parties in examination in chief and in cross
    examination, and to assess the reports of the counsellors who had worked with
    the family and the evidence of other witnesses. No one else had that same
    opportunity, which equipped the judge to decide what remedy promoted the best
    interests of the child.

[35]

It is noteworthy that in circumstances similar
    to these, this court upheld a trial judges decision transferring custody
    because of parental alienation, without expert evidence on that issue:
Fiorito
    v. Wiggins
, 2015 ONCA 729.
[1]

[36]

Some expert assessments may be very helpful to a
    trial judge, but they are not a prerequisite to making the order the trial
    judge thinks is in the childs best interests, based on all of the evidence at
    the end of the trial. In fact, the trial judge is obliged to make that order,
    regardless of whether expert evidence is adduced.

[37]

There is also no legal requirement for
    therapeutic support when custody reversal is contemplated, though it might be
    helpful in some cases. Here, it would be of doubtful utility, given the
    mothers refusal to participate in that process.

[38]

The trial judge had few choices. The mother and
    the child were unwilling to participate in reconciliation therapy on an
    outpatient basis. If the child remained with his mother, it was virtually
    certain that the child would lose any chance for a relationship with his father,
    who was a reasonably competent parent.

[39]

The clear evidence about risks to the child if
    he stayed with his mother justified a change in custody and the no-contact
    order. The trial judge chose this remedy to promote the childs long-term best
    interests, not to punish the mother. There is no basis to intervene.

3.

Did the trial judge improperly delegate
    decision-making power to therapists?

[40]

The trial judge hoped that six months would
    allow for a beginning of a rapprochement between the child and his father. If
    the mother and child had supported this plan, it is likely that the child would
    have then been returned to his mothers care, if that remained his wish, with
    access having been solidly established with the father. I see no error in the
    trial judge setting a target date to assess how the process was unfolding.

[41]

It is true the trial judge stated that review of
    the custody and access provisions cannot be undertaken until [the child] has
    meaningfully engaged with therapy. Yet, the trial judge also noted that the
    court
will
review the custody and access
    provisions in six months and the specific review date will not be set until
the court is satisfied
said review is appropriate based
    upon the reports from the therapists (emphasis added). The therapists were to
    submit their reports by March 1, 2019, at which point trial judge, not the
    therapists, retained ultimate authority to set a review date.

[42]

The trial judge did not foreclose the parties
    from asking him to revisit the arrangement if there had been a change in
    circumstances. In fact, the mother moved twice before the trial judge, seeking
    access first on January 9, 2019 and then again on May 28, 2019. The trial judge
    heard both motions on the merits and did not impose any pre-condition to the
    mothers ability to bring the motions.

[43]

Accordingly, there was no improper delegation of
    decision-making power.

4.

Did the trial judge err by ordering the child to
    participate in reconciliation therapy without the childs consent, as
    contemplated by the
HCCA
?

[44]

In his judgment of October 30, 2018, the trial
    judge ordered that the changed custody regime would not be reviewed until:

·

The father and the child took steps to engage
    and meaningfully participate in supportive reconciliation therapy with either
    Carol Jane Parker or Marcie Goldhar. The father and the child were to follow
    the therapists recommendations.

·

The mother engaged and meaningfully participated
    in therapy to gain insight into her alienating behaviour and work towards
    supporting reconciliation between the father and his son.

[45]

The judgment of October 30, 2018, which is the
    order under appeal, does not directly order the child or the mother to
    participate in therapy. Rather, it sets participation in therapy as a prerequisite
    to the fixed date review of the change in custody. If the child or the mother
    refused to participate in the therapeutic process, they would lose the
    opportunity to have a fixed date review of the change in custody, without the
    need to show a change of circumstances. In that sense, the order made still
    left some scope for choice on their part as to participation in the therapy and
    the question of forcing treatment on an unwilling participant does not directly
    arise. This would be sufficient to dismiss this ground of appeal.

[46]

In later orders which are not part of this
    appeal, on motions brought by the parties, the trial judge did make orders
    requiring the child to accept and attend the court ordered therapist: see,
    for instance, the order of January 18, 2019, with reasons reported at 2019 ONSC
    527. As such, it is useful to review the extent of a judges authority to make
    therapeutic orders in custody cases.

[47]

I
    begin by reviewing the courts jurisdiction to make therapeutic orders under
Divorce Act
,
1985, c. 3 (2nd Supp.)

and the
Childrens Law Reform Act
,

R.S.O. 1990, c.
    C.1. Next, I analyze the interplay between the
HCCA
and legislation governing custody.
I
    conclude that the
HCCA

is
    not a controlling factor when a judge decides whether to make a therapeutic
    order in a custody case.

(a)

Jurisdiction to make therapeutic orders in custody cases

[48]

The
Divorce Act
and the
Childrens
    Law Reform Act
give judges broad authority to make custody orders and other
    corollary orders about a childs life.

[49]

Sections 16 (1) and 16(2) of the
Divorce Act
provide as follows:

16(1) A court of
    competent jurisdiction may, on application by either or both spouses or by any
    other person, make an order respecting the custody of or the access to, or the custody
    of and access to, any or all children of the marriage.

(6) The court may
    make an order under this section for a definite or indefinite period or until
    the happening of a specified event and
may impose such
    other terms, conditions or restriction in connection therewith as it thinks fit
    and just.
[Emphasis added.]

[50]

Sections 28(1) (a), (b) and (c) of the
Childrens
    Law Reform Act
state:

(1) The court to which an application is made
    under section 21,

(a) by order may grant the custody of or access
    to the child to one or more persons;

(b) by order
may
    determine any aspect of the incidents of the right to custody or access; and

(c)
may make such additional order as the court considers necessary
    and proper in the circumstances
[Emphasis added.]

[51]

Accordingly, where parents cannot agree, a court
    may make orders about almost any aspect of the childs life, including
    education, religious training, diet, vaccinations, recreation, travel, and so
    on. This includes making an order for counselling or therapy.

[52]

Other statutory provisions support this
    conclusion. For instance, section 17(8)(b) of the
Family Law Rules
, O.
    Reg. 114/99 grants a court the power to make an order at a case conference,
    settlement conference or trial management conference requiring a party to
    attend a program offered through a community service or resource. Here, the
    plain meaning of the term program would include counselling or therapy.

[53]

Additionally, under s. 30 of the
Childrens
    Law Reform Act
, a court may appoint a skilled professional to report on
    the needs of the child and the ability and willingness of the parties to
    satisfy the needs of the child. Not infrequently, the professional might
    recommend a course of treatment to promote the well-being of the child: see,
    for instance,
Leelaratna v. Leelaratna
, 2018 ONSC 5983
. A court should not be powerless to implement those suggestions.

[54]

As the trial judge pointed out in
Leelaratna
,
a large and liberal interpretation of the statutory and
    regulatory powers conferred upon the courts to make a wide variety of orders
    with regards to parenting, including therapeutic orders, is also entirely
    consistent with the courts duty to promote the best interests, protection and
    well-being of children: at para. 52.

(b)

Effect of the
HCCA
on a courts ability to make therapeutic
    orders

[55]

The OCL argued that if the child refuses consent
    to therapy, the
HCCA
prevents a court from ordering the child to
    participate in therapy. This is because section 10 of the
HCCA
prohibits
    a health practitioner from administering treatment to a capable person without
    that persons consent, and from administering treatment to an incapable person
    without the consent of the persons substitute decision-maker:

10 (1) A health practitioner who proposes a
    treatment for a person shall not administer the treatment, and shall take
    reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the
    person is capable with respect to the treatment, and the person has given
    consent; or

(b) he or she is
    of the opinion that the person is incapable with respect to the treatment, and
    the persons substitute decision-maker has given consent on the persons behalf
    in accordance with this Act.

[56]

However, there are some salient differences
    between the
HCCA
and the legislation directly governing custody cases.

[57]

The
HCCA
concerns the relationship
    between individuals and health care practitioners. It sets up a statutory
    regime and an administrative tribunal, the Consent and Capacity Board (the
    Board), to resolve differing views about a patients wishes and capacity.

[58]

The
HCCA
also aims to protect of a
    persons autonomy to make decisions about their own well-being, even if those
    decisions are not in their best interests. This prioritization of autonomy
    above best interests is noted in
Starson v. Swayze
, 2003 SCC 32, [2003]
    1 SCR 722, at para. 76:

The legislative mandate of the Board is to
    adjudicate solely upon a patients capacity. The Boards conception of the
    patients best interests is irrelevant to that determination. As the reviewing
    judge observed, [a] competent patient has the absolute entitlement to make
    decisions that any reasonable person would deem foolish (para. 13). This point
    was aptly stated by Quinn J. in
Koch (Re)
(1997), 33 O.R. (3d) 485
    (Gen. Div.), at p. 521:

The right
    knowingly to be foolish is not unimportant; the right to voluntarily assume
    risks is to be respected. The State has no business meddling with either. The
    dignity of the individual is at stake.

[59]

In
Starson
, the only issue before the
    Board was whether Professor Starson was capable of refusing consent to
    medication. The wisdom of his decision should not have had any bearing on this
    determination. The Supreme Court of Canada ultimately ruled that the Board had
    inappropriately focused on Professor Starsons best interests, and disregarded
    clear evidence of his capacity to refuse treatment.

[60]

In contrast, custody decisions prioritize the
    best interests of the child.

[61]

Section 16(8) the
Divorce Act
states
    that in making a custody order, the court shall take into consideration only
    the best interests of the child of the marriage as determined by reference to
    the condition, means, needs and other circumstances of the child.

[62]

Similarly, section 24(1) of the
Childrens
    Law Reform Act
states that the merits of a custody or access application shall
    be determined on the basis of the best interests of the child. Section 24(2)
    sets out the factors used to determine the childs best interests:

(2) The court shall consider all the childs
    needs and circumstances, including,

(a) the love, affection and emotional ties
    between the child and,

(i) each person,
    including a parent or grandparent, entitled to or claiming custody of or access
    to the child,

(ii) other members
    of the childs family who reside with the child, and

(iii) persons
    involved in the childs care and upbringing;

(b)
the childs views
    and preferences
, if they can reasonably be ascertained;

(c) the length of time the child has lived in
    a stable home environment;

(d) the ability and willingness of each person
    applying for custody of the child to provide the child with guidance and
    education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying
    for custody of or access to the child for the childs care and upbringing;

(f) the permanence and stability of the family
    unit with which it is proposed that the child will live;

(g) the ability of each person applying for
    custody of or access to the child to act as a parent; and

(h) any familial
    relationship between the child and each person who is a party to the
    application.

[63]

In contrast, Ontarios child welfare
    legislation, the
Child, Youth and Family Services Act
,
2017
,
    S.O. 2017, c. 14, explicitly provides that if a service being provided to a
    child under the care of a childrens aid society is treatment to which the
HCCA
applies, the consent provisions of the
HCCA
apply: s. 22(7). Further,
    s. 23(1) provides that a service provider may provide a counselling service to
    a child who is 12 years or older
with
the childs consent,
    but that subsection has no application where the service is a treatment under
    the
HCCA
.

[64]

The same legislative choice to refer to
HCCA
provisions is not part of the
Childrens Law Reform Act
or the
Divorce
    Act.

[65]

Under the
Childrens Law Reform Act
and
    the
Divorce Act
, the childs views and preferences are only one factor
    among many in determining the childs best interests. Consequently, a childs
    refusal to attend counselling is not necessarily determinative of their best
    interests.

[66]

Having said that,
A.C. v. Manitoba (Director
    of Child and Family Services)
, 2009 SCC 30, [2009] 2 S.C.R. 181 at paras.
    81 and 82 highlighted the potential tension between a childs growing autonomy
    and the childs best interests norm:

[81] The general purpose of the best
    interests standard is to provide courts with a focus and perspective through
    which to act on behalf of those who are vulnerable. In contrast, competent
    adults are assumed to be the best arbiter[s] of [their] own moral destiny,
    and so are entitled to independently assess and determine their own best
    interests, regardless of whether others would agree when evaluating the choice
    from an objective standpoint.

[82] The
    application of an objective best interests standard to infants and very young
    children is uncontroversial. Mature adolescents, on the other hand, have strong
    claims to autonomy, but these claims exist in tension with a protective duty on
    the part of the state that is also justified [citations omitted].

[67]

As a result, the majority in
A.C.
stated that the best interests standard must be interpreted in a way that
    reflects and addresses an adolescents evolving capacities for autonomous
    decision-making: at para. 88.

[68]

Under this interpretation of the best interests
    standard, a minors wishes will have greater weight as their maturity increases.
    In some cases, the court will inevitably be so convinced of a childs maturity
    that the principles of welfare and autonomy will collapse altogether and the
    childs wishes will become the controlling factor:
A.C
., at para. 87.
    Scrutiny of a childs maturity will intensify in relation to the severity of
    potential consequences of medical treatment or its refusal:
A.C.
at
    paras. 95. This is partly because it is inherently difficult to assess an
    adolescents ability to make medical decisions:
A.C.
, at paras. 70-79.

[69]

The majority in
A.C.
listed questions
    to assist courts in assessing maturity:

What is the nature, purpose and utility of the
    recommended medical treatment? What are the risks and benefits?

Does the adolescent demonstrate the
    intellectual capacity and sophistication to understand the information relevant
    to making the decision and to appreciate the potential consequences?

Is there reason to believe that the
    adolescents views are stable and a true reflection of his or her core values
    and beliefs?

What is the potential impact of the
    adolescents lifestyle, family relationships and broader social affiliations on
    his or her ability to exercise independent judgment?

Are there any existing emotional or
    psychiatric vulnerabilities?

Does the adolescents illness or condition
    have an impact on his or her decision-making ability?

Is there any
    relevant information from adults who know the adolescent, like teachers or
    doctors?: at para. 96

[70]

While
A.C.
was decided in relation to Manitobas
    child welfare legislation and its application of the best interests test, the
    above principles are still relevant for interpreting the best interests
    standard under the federal
Divorce Act
and Ontarios
Children Law
    Reform Act
.

[71]

Taking this together, the
HCCA
does not
    limit the courts jurisdiction to make therapeutic orders in the childs best
    interests. A court must always consider a childs view and preferences, but a
    childs refusal to participate in a therapeutic intervention will not necessarily
    determine whether a court can make such an order. Rather, a court must assess
    the childs maturity and weigh their wishes accordingly, in relation to the
    various factors listed in section 24(2) of the
Childrens Law Reform Act
.

[72]

There are of course risks in making therapeutic
    orders. The child may refuse to comply. A health care practitioner may consider
    that the child is capable and that he or she cannot override the childs
    refusal. The attempts at therapeutic intervention may fail. Courts cannot fix
    every problem.

[73]

That said, time and time again, experienced
    family court judges have emphasized the value of access to a broad variety of
    remedial measures. Again, in
Leelaratna
, the trial judge observed,
    there are often no legal solutions to family problems. Therapeutic orders can
    be very effective tools to help the family move forward, reduce the parental
    conflict, and help children transition though the emotional turmoil of their
    parents litigation in a healthier way: at para. 52, see also
Fiorito
,
    where a reversal of custody and therapy was ordered to remedy a fathers
    estrangement from his children. Judges deciding custody cases should be enabled
    to create or support the conditions which are most conducive to the flourishing
    of the child.

(c)

Application to this case

[74]

Each case must be determined on its own specific facts. The trial
    judge hears from all the witnesses and as such, is in the best position to assess
    the childs best interests. If there is no error in law, no palpable and
    overriding error of fact, and no misapprehension of evidence, appeal courts
    should not interfere.

[75]

In
    my view, there was no such error in this case. The trial judge considered the
    views and preferences of the child as conveyed through the OCL. He ultimately
    concluded the mother had poisoned the child against the father and the childs
    wishes were not his own. That is, the child lacked the requisite maturity to
    refuse counselling with his father. As addressed earlier, absent a challenge to
    this factual finding, the trial judge was entitled to put no weight on the
    childs wishes.

[76]

The
    trial judge reasonably concluded that the childs best interests required
    contact with the father and reconciliation therapy, over the childs heated
    objections. Without any conclusive evidence that such orders are ineffective
    see for instance,
Nicholas C. Bala and Katie Hunter, Children
    Resisting Contact & Parental Alienation: Context, Challenges & Recent
    Ontario Cases (2015), Queen's University Legal Research Paper No. 056, online:
    <ssrn.com/abstract=2887646>
 this court should not and cannot
    interfere.

[77]

Given this conclusion, it is not necessary to
    explore the application of the
HCCA
to the order for counseling made
    by the trial judge, including the questions of whether the social worker was a
    health practitioner, whether the counseling ordered was treatment, and whether the
    child had capacity to refuse consent.

Fresh evidence

[78]

The test for fresh evidence on appeal is as
    follows: (1) could the evidence have been adduced by due diligence; (2) is the
    evidence relevant; (3) is the evidence credible; and (4) could the evidence reasonably
    be expected to affect the result:
Palmer v. The Queen,
[1980] 1 S.C.R.
    759, 106 D.L.R. (3d) 212 at p. 775.

[79]

We admit the fresh evidence on the appeal but
    this court is not in a position to weigh the conflicting evidence.

[80]

Each of the parties has filed large amounts of
    fresh evidence relating to events following the trial. The child has behaved
    badly. The father says that the mother has repeatedly breached the court orders
    made by the trial judge and done everything she can to undermine the process crafted
    by the trial judge. The mother says the child is not doing well and should be
    returned to her care.

[81]

The police had to assist in transport of the
    child to his fathers home, and the child has run away on numerous occasions.
    The trial judge, who remained seized of the matter, outlined some of the
    further problems at paras. 2-4 of his reasons on a post-trial motion heard
    January 9, 2019, reported at 2019 ONSC 527:

[2]  [The child] has also engaged in other rebellious
    behaviour since the trial decision. He would leave his fathers home early in
    the morning and return late at night if at all. He has, with the assistance of
    friends, vandalized his fathers home and contents of the home, completely
    trashing his fathers home office work space.

[3] He was refusing to eat any of the food
    prepared for him by his father and demanded money from his father for takeout
    food.

[4] He has alleged
    to the school, neighbours, police and Childrens Aid Society (CAS) that his
    father has been abusive towards him, and does not have adequate food or bedroom
    furniture for him. He has attempted to engage the CAS and the police to become
    involved. Both agencies have investigated and have not verified any of his
    concerns. The CAS has investigated the concerns and plans to close the file.
    The father has accommodated [the child]s requests for bedroom furnishing,
    buying new items.

[82]

The mother continued to violate the trial
    judges orders and undermine the childs restoration of a relationship with the
    father, as the trial judge observed at paras.15-17:

[15] Since the trial decision was released on
    October 30, 2018, the mother admits to only a few occasions of brief contact
    with the child. In the materials that the mother has filed at the Court of
    Appeal and before me, she has clearly displayed a complete lack of appreciation
    for the counterintuitive message she has given to the child. She has failed to
    include in any of her affidavit evidence that she has in any way discouraged
    the rebellious and destructive conduct and disrespectful attitude of [the child]
    towards his father. Not once did she claim that she has told the child to
    submit to his fathers custodial authority, that he attend school or Cadets, or
    that he cooperate with his father in attending counselling in accordance with
    the court expectations. She has shown to the court and to the child that she is
    unable to accept the trial decision, and therefore has continued to act in a
    manner that is contrary to the childs best interest

[16] Rather than admonishing [the child] for
    his defiant, rebellious, and self-destructive conduct and encouraging him to
    comply with the court order, she used his behavioral meltdown as evidence in
    support of her unsuccessful motion to stay. Surprisingly, the OCL supported the
    mother in this litigation strategy.

[17] In light of
    the messaging presented to [the child], there is little wonder that he has
    struggled so tremendously to accept the transition to his fathers care and
    custody. To her credit, the mother is now (in her submissions for this motion)
    articulating a desire to facilitate a smooth transition for the child to get
    him back on track with school and Cadets and to support the current court order
    for this part of his life. The child need his mother to not only say these
    things, but also to mean what she says.

[83]

The trial judge left the original six month
    review in place but made ancillary orders to promote the goal of
    reconciliation.

[84]

Matters got worse and the trial judge heard
    three motions on May 28, 2019, with reasons reported at 2019 ONSC 3503.

[85]

The trial judge described the continuing
    problems and his response to the mothers request for access or the return of
    the child at paras. 3-10:

[3] The evidence clearly establishes that on
    the surface [the child] is not doing well. He is not attending school, not
    attending Cadets, has caused damage to his fathers home, refuses to submit to
    his fathers rules, attends at his mothers home and communicates with his GM
    [maternal grandmother] contrary to non-contact orders and runs away from
    fathers home several times a week requiring engagement of the police for
    assistance in locating and returning him.

[4] On the other hand, [the child] has shown
    some glimpses of progress toward the goal of rebuilding his relationship with
    his father (the goal). He has engaged in some meaningful discussions with his
    father regarding a plan for his education and he willingly attended a dinner
    out and a Raptors game with his father. He has also resided primarily at his
    fathers residence in compliance with my orders. Unfortunately, he also
    continues to display very blatant acts of disrespect towards his father,
    recently pouring the bulk of contents of 2 water bottles over his fathers head
    while laughing.

[5] I do not agree with the OCL and the
    Respondent Mother that [the child] is in crisis, or at least not a crisis over
    which he has no control. He is not a child without options who is forced to
    live on the street. He has the option of living under the roof provided by his
    father and eating the food provided by his father. He has the option to bathe
    at his fathers, attend school, Cadets and therapy. He chooses not to. If he is
    in crisis it is because he is not allowed to have what he wants  to reside
    with his mother. The solution is not to give in to his rebellious behaviour and
    give him what he wants. I am more concerned about what he needs.

[6] The suspension of contact between [the
    child] and his mother and her family is not meant as a punishment for [the
    child] or anyone else. The suspension of contact is meant to eliminate the
    distraction from the goal.

[7] Unfortunately the distractions caused by
    the Respondent Mother and GM in particular go well beyond inane distractions
    such as a squirrel is to a dog.

[8] The reversal of custody and suspension of
    access was not meant to be a permanent solution. The purpose of these and the
    many related orders was to get everyone, as Mr. Ludmer suggested, on the same
    path, or to use another metaphor, the plan was to get everyone in the same boat
    and paddling in the same direction. By allowing [the child] the option of
    maintaining contact with the negative influence of the Respondent Mother and
    GM, these individuals are telling [the child] that he does not have to comply
    with court orders or work on his relationship with his father.

[9] To allow continued contact or to grant the
    Respondent Mothers request to return [the child]s residence to the Respondent
    Mother, is to return [the child] to the situation he experienced prior to the
    order reversing custody. The findings I made after 11 days of trial clearly
    established that such a situation was not in [the child]s best interest.
    Although he was attending school more regularly and attending Cadets,
    psychological dysfunction caused by the alienating conduct of the Respondent
    Mother had started to set in. [The child] had started to skip school, had
    become addicted to video games and had become oppositional to his mother. All
    of this was on top of showing a total lack of respect for the Applicant Father.
    In my view, cracks were starting to form in [the child]s foundational needs to
    show respect for authority and in particular, his parents. I cannot place [the
    child] back into that situation.

[10] However, it is evident to me that the
    current situation is also not working. There is no evidence that the Respondent
    Mother has accepted the trial findings regarding alienation and the value of [the
    child]s relationship with the Applicant Father. Until that happens, I cannot
    be assured that everyone will be on the same boat and on the same path toward
    the goal.

[86]

On June 4, 2019, the child and his friend came
    to the fathers home. The childs friend assaulted the father (age 70) with his
    fist. The child and his friend left the home as the father called police.

[87]

On June 11, 2019, the child climbed to the roof
    of the fathers home. The child threatened to beat his father up when the
    father asked him to come down. When the child did come down from the roof, he physically
    attacked his father, leaving the father with severe bruises to his head, and
    injury to his arm.

[88]

On June 17, 2019, the child and his friend
    threatened to beat the father to death in the basement of his home. The child
    assaulted his father. The father suffered significant bruising and swelling to
    his face, eye, head and ear. The father contacted police and the child was
    charged. Ultimately the child was released on condition he have no contact with
    his father. Given the court orders preventing contact with the mother, the
    child was found to be a child in need of protection and is now in a foster
    placement pursuant to an order of the Ontario Court of Justice.

[89]

On July 31, 2019, the father was advised the
    child went absent from the foster home without permission. Police later that
    day advised the father that the child had stolen a cell phone from another
    child.

[90]

On August 6, 2019, in an incident apparently
    related to the childs robbery of another child, the child himself was
    assaulted and suffered broken bones under his eye. He required surgery and had
    plates implanted in his face.

[91]

There have been significant changes since the
    trial judges decision of October 30, 2018. The child is now approaching his 15th
    birthday and seems even more entrenched in his attitude towards his father. The
    process that the trial judge contemplated has not gone well. Considering the
    serious credibility issues in this case, the Superior Court is best positioned
    to deal with these new developments.

CONCLUSION

[92]

The trial judge has not erred in any respect
    justifying appellate intervention. The appeal is dismissed. The parties may
    make brief written submissions as to the costs of this appeal, due within 30
    days of the release of these reasons from the father, and within 15 days
    thereafter from the mother.

Released: September 30, 2019

GP

G.
    Pardu J.A.

I
    agree David M. Paciocco J.A.

I
    agree B. Zarnett J.A.

[1]

That
    case seems to have had a very happy ending. In a subsequent hearing Hebner J. observed
    that: On the evidence as a whole, I find that a change in custody has made a
    remarkable difference in the relationship these three girls have with their
    father. In fact, I can safely say that the change in custody has saved that
    relationship. Were it not for the change in custody, I have no doubt whatsoever
    that the children would not have any sort of relationship with their father:
    2016 ONSC 3678 at para. 32.


COURT OF APPEAL FOR ONTARIO

CITATION: Abeje (Re), 2019 ONCA 734

DATE: 20190919

DOCKET: C66761

Hourigan, Brown and Paciocco
    JJ.A.

IN THE MATTER OF: Samuel Abeje

AN APPEAL UNDER PART XX.1 OF THE
CODE

Ken J. Berger, for the appellant

Nicolas de Montigny, for the
    respondent, Attorney General of Ontario

Michele Warner, for the respondent, the
    Person in Charge of the Centre for Addiction and Mental Health

Heard: September 17, 2019

On appeal against the disposition of the
    Ontario Review Board, dated March 7, 2019, with reasons dated March 27, 2019.

REASONS FOR DECISION

OVERVIEW

[1]

Mr. Samuel
    Abeje appeals from the March 7, 2019 disposition of the Ontario Review Board
    (the Board) that continued his conditional discharge. Under that disposition,
    Mr. Abeje lives, on his own, in an apartment in Toronto, with no on-site
    supervision, and is required to report not less than once every 12 weeks to the
    Centre for Addiction and Mental Health (CAMH). At that time, Mr. Abeje
    receives a long-acting injectable antipsychotic medication to treat his
    schizoaffective disorder.

[2]

Mr. Abeje submits the Board erred in holding that he continues to
    pose a significant risk to the safety of the public. Mr. Abeje asks this court
    to set aside the Boards disposition and grant an absolute discharge.

[3]

At the hearing, we dismissed the appeal, with reasons to follow.
    These are those reasons.

BACKGROUND FACTS

[4]

Mr. Abeje
    is 54 years old.

[5]

He has a long history of mental illness, dating back to at least
    1992 when he emigrated from Ethiopia to Canada. At the time of the Board
    hearing, his diagnosis was schizoaffective disorder, bipolar subtype, and
    borderline intellectual functioning. According to the hospital record, the
    diagnosis of borderline intellectual functioning is significant in that Mr
    Abejes ability to absorb and remember psychoeducational material is
    compromised.

[6]

Mr. Abeje has been declared incapable of consenting to medical
    treatment. The Public Guardian and Trustee is his substitute decision-maker.

[7]

Mr. Abeje has no significant history of alcohol or street drug
    abuse.

[8]

Prior to the 2005 index offences, Mr. Abeje had a history of
    violence. In 1995, he was convicted of possession of a weapon, uttering a
    threat, and assault with a weapon for showing a bus driver a large kitchen
    knife. Later that year, he was convicted of theft under $5,000 and assault. In
    1997, charges of uttering threats were withdrawn upon Mr. Abeje entering into a
    peace bond. In addition, as the Board noted in its reasons:

Mr. Abeje has a long history of non-adherence
    to medication. When unwell he develops mania and/or psychosis. He has a history
    of violence (apart from his criminal convictions and the index offences). They
    include: January 1993 - sexually assaultive behaviour in the context of a manic
    episode; October 1993 - sexually assaultive behaviour secondary to mania; and in
    2004 - physical aggression towards police officers, at which time he had an axe
    in his possession.

[9]

Prior to the index offences, Mr. Abeje had been admitted to
    psychiatric hospitals on several occasions.

[10]

In 2005, Mr. Abeje was found not criminally responsible
    on account of mental disorder on two counts of aggravated assault and one count
    of possession of a weapon for a dangerous purpose. The first assault occurred
    when Mr. Abeje approached a woman on the street, spoke to her in an unknown
    language, stabbed her in the lower back, and ran away. This first victim
    suffered a fractured spinal bone and internal bleeding.

[11]

Another woman saw the first victim running
    across the street holding her neck and followed Mr. Abeje to his residence. She
    approached him and asked if something was wrong. Mr. Abeje said Nothing,
    nothing. He then stabbed the second victim twice in the head and once in the
    cheek. As well, he hit the second victim on her left arm. The second victim
    required 20 staples to close the wounds on her head.

[12]

From 2005 until May 2008, Mr. Abeje resided at
    CAMH, with most of his time spent in minimum secure rehabilitation units. Since
    then, Mr. Abeje has lived in an unsupervised apartment and continued treatment
    at CAMH on an out-patient basis. For the past decade, he has been subject to a
    series of conditional discharge dispositions by the Board.

[13]

As the Board noted, at para. 12, Mr. Abejes
    mental state is stable, he is compliant with medication, attends all his
    appointments, and is virtually free from his underlying psychotic symptoms.
    Although he still has delusions about the United Nations giving him power to
    control the world, and that Bill Clinton and Kofi Annan were aware of these
    powers, Mr. Abeje has not acted on those beliefs.

RECENT BOARD DISPOSITIONS

2018

[14]

In its April 2018 disposition, the Board
    continued Mr. Abejes conditional discharge but lessened the reporting
    requirements. The Board expressed the view that CAMH had not moved as quickly
    as it could to consider appropriate next steps to proceed to an Absolute
    Discharge and to assist Mr. Abejes reintegration into society and his other
    needs. The Board observed that his treatment team had not made any referral to
    a non-forensic team or to an Assertive Community Treatment (ACT) team.

2019

[15]

As the Board notes in the disposition under
    appeal, in 2018 Mr. Abejes treatment team acted on the Boards concerns and
    referred Mr. Abeje to the downtown west clinic of CAMH and the ACT team
    services provided by Access Point. Mr. Abeje was not accepted as a suitable
    candidate given his status under the Board and the psychiatric care he was
    receiving through the transitional care team in the CAMH forensic outpatient
    clinic.

[16]

The Board unanimously concluded that Mr. Abeje
    was a significant risk to the safety of the public and continued his
    conditional discharge, with reduced reporting conditions.

ANALYSIS

[17]

Mr. Abeje submits that the Boards disposition was unreasonable in
    finding that he continued to pose a significant threat to the safety of the
    public. He advances two related arguments. First, Mr. Abeje argues that it was
    unreasonable for the Board to deny him any credit for his
long-term
    stability and compliance, as well as placing undue weight on his lack of
    insight into his illness as a factor in assessing risk
.
Second, Mr. Abeje contends that the Board acted
    unreasonably in concluding that the civil mental health system could not manage
    adequately the risk that he might fall away from treatment.

[18]

We are not persuaded by these submissions.

[19]

Under s. 672.54 of the
Criminal Code
,
    on an annual review the Board must inquire into and determine whether an NCR
    accused is a significant threat to the safety of the public. Where it
    determines he is not, the Board must direct an absolute discharge. The meaning
    of the phrase significant threat to the safety of the public is well settled.
    It was summarized in
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d)
    451, at para. 8:

The phrase refers to a foreseeable and
    substantial risk of physical or psychological harm to members of the public
    that is serious and beyond the trivial or annoying. A very small risk of even
    grave harm will not suffice. A high risk of relatively trivial harm will also
    not meet the substantial harm standard. While the conduct must be criminal in
    nature, not all criminal conduct will suffice to establish a substantial risk.
    There must be a risk that the NCR accused will commit a serious criminal
    offence.

[20]

In conducting its inquiry, the Board may have
    recourse to a broad range of evidence, including: the past and expected course
    of the NCR accuseds treatment, if any; the present state of the NCR accuseds
    medical condition; the NCR accuseds own plans for the future; the support
    services existing for the NCR accused in the community; and the assessments
    provided by experts who have examined the NCR accused:
Winko v. British
    Columbia (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para.
    62(5).

[21]

The Boards reasons disclose that in performing
    the required statutory assessment it drew upon a broad range of evidence and
    took into account a number of factors. Specifically, the Board stated at paras.
    20 to 22:

The Board accepts the evidence of Dr. Choptiany
    [Mr. Abejes psychiatrist] that Mr. Abeje lacks appropriate insight into his
    illnesses, that without the external controls of an order from the Ontario
    Review Board he would fall away from care, not take his injectable medication
    on a regular basis, become psychotic and engage in either violent and/or
    sexually inappropriate behaviour putting the public at risk. The Board
    considered the legacy of many hospitals involvement with Mr. Abeje both before
    the index offence and after. The differences are stark. Before he was under the
    jurisdiction of the Ontario Review Board beginning in 2005, he had multiple
    hospital admissions but they were unsuccessful in reducing his risk to the
    public. This risk ultimately manifested [itself] in a very serious series of
    criminal acts in 2005 leading to gratuitous assaults on innocent individuals.
    Since that time and as a result of the efficacious mental health treatment he
    receives at CAMH, his risk to public safety has significantly diminished.

However, notwithstanding the fact that he is
    compliant with his medication and virtually symptom free, the history of his
    involvement with the mental health system strongly suggests that if he were to
    be transferred to the civil system, he would represent a significant risk to the
    safety of the public. As previously indicated the treatment team has attempted
    to refer him to other agencies but so far he has not been suitable given his
    status under the Ontario Review Board. As well, as we learned from Dr.
    Choptiany, his borderline intellectual functioning affects his insight. Dr.
    Choptiany was emphatic that if he were to decompensate, he would be involved in
    violent acts.

Accordingly, notwithstanding his compliance
    with the terms and conditions of last years order and his stable functioning
    in the community, we are unanimously of the view that his current reasonably
    healthy mental state is a direct function of his compliance under the external
    control of an Ontario Review Board order.

[22]

The Boards reasons disclose that as part of its
    risk assessment, it took into account Mr. Abejes compliance with his medical
    regime and the long-term stability that has resulted from that regime. As this
    court observed in
Afemui (Re)
, 2016 ONCA 689, at paras. 10 and 11, the
    Board is entitled to rely on expert evidence that the NCR accused is compliant
    with treatment because of the external controls associated with being under the
    Boards supervision. The Board accepted Dr. Choptianys evidence to that
    effect.

[23]

As part of its examination of the present state of the NCR accuseds
    medical condition, the Board is entitled to consider evidence concerning the
    accuseds understanding of or insight into his medical condition, provided that
    evidence is assessed in the context of the entirety of the record before the
    Board:
Sim (Re)
, 2019 ONCA 719, at paras. 20-22. In the present case,
    the Board accepted Dr. Choptianys opinion that Mr. Abeje lacks appropriate
    insight into his illness: at para. 20. However, such lack of insight was only
    one of several factors that led the Board to its conclusion. In the present
    case, the evidence of insight did not improperly dominate the significant
    threat analysis:
Woods (Re)
, 2019 ONCA 87, at para. 17.

[24]

Finally, we are not persuaded that the Board
    acted unreasonably in concluding that the civil mental health system could not
    manage adequately any risk that Mr. Abeje might fall away from treatment.

[25]

As the Board noted, at para. 14, the CAMH
    treatment team made the inquiries about the availability of non-forensic
    treatment recommended in the Boards 2018 disposition. The hospital record for
    the review period reported that Mr. Abeje was not accepted as a suitable
    candidate. As well, the record reported that Mr. Abeje remained quite socially
    isolated and that it is hard to identify anyone apart from outpatient
    clinicians who would be in a position to identify subtle signs of illness in
    the event of their recurrence, and to report these to the treatment team.

[26]

At the hearing, the Board questioned Dr.
    Choptiany about the ability to manage Mr. Abejes illness under the civil
    mental health regime: at para. 18. Dr. Choptiany expressed the view that the
    powers available under the civil mental health regime were not effective enough
    to deal with the risks: at para. 18.

[27]

In its reasons, the Board accepted that
    evidence. At para. 23, the Board explained at some length why the controls
    available in the civil mental health regime would not be effective in managing the
    risk involved in Mr. Abejes behaviour and actions should he decompensate.

[28]

Given those inquiries made by the Board and its
    consideration of the alternatives available under the civil mental health
    regime, we are not persuaded that the Board acted unreasonably in concluding
    that the civil mental health regime would be inadequate to manage Mr. Abejes
    risk should he fall away from treatment.

[29]

In sum, the Boards reasons stand up to the
    standard of a somewhat probing examination:
R. v. Owen
, 2003 SCC 33,
    [2003] 1 S.C.R. 779, at para. 33. The Board considered a broad range of
    evidence, applied the statutory test, explained why it found that Mr. Abeje
    continued to pose a significant threat to the safety of the public, and
    inquired into the ability of the civil mental health regime to manage the risk.
    We are not persuaded that the Boards disposition was unreasonable in the
    circumstances.

[30]

That said, we understand the frustration felt by
    Mr. Abeje about his current status under the Board. Although his counsel
    described Mr. Abejes situation as a treatment impasse, that term usually
    describes a situation where an NCR accused is detained without treatment,
    refuses treatment, or the treatment does not result in any progress in managing
    the mental health condition:
Gonzalez (Re)
, 2017 ONCA 102, 136 O.R.
    (3d) 453, at paras. 28 -29. In the case of Mr. Abeje, the evidence shows that
    his clinical team has found an effective course of treatment to manage his
    illness. The treatment is so effective that Mr. Abeje has been living
    unsupervised in the community for many years, with the only material
    restriction on his liberty being the requirement that he report to CAMH once
    every three months.

[31]

What concerns Mr. Abeje is a sort of catch-22 in
    which he finds himself. On the one hand, the Board acknowledges Mr. Abejes
    stable functioning in the community; indeed, he has lived almost
    independently in the community for many years: at para. 22. As well, in 2018
    the Board exhorted CAMH to consider appropriate next steps to proceed to an
    Absolute Discharge and to assist Mr. Abejes reintegration into society and his
    other needs: at para. 35. Yet, on the other hand, when CAMH made such
    inquiries, the response back was that Mr. Abeje did not qualify for the
    programs or services, in part because of his stability under the ORB regime: at
    para. 14.

[32]

Mr. Abejes concerns are understandable. In
    2018, the Board urged the Treatment Team to take steps in the upcoming
    reporting year to refer Mr. Abeje to a non-forensic team and to plan for moving
    towards an Absolute Discharge, if his medication change occurs without incident
    and he remains stable: at para. 37. His medication change proceeded without
    incident, and Mr. Abeje remains stable. CAMHs inquiries of non-forensic teams
    did not produce any change for Mr. Abeje. In those circumstances, we would expect
    the Board in Mr. Abejes next annual review to exercise its inquisitorial
    powers to obtain and examine in some detail evidence regarding the availability
    of non-forensic services for Mr. Abeje.

DISPOSITION

[33]

For the reasons set out above, the
    appeal is dismissed.

C.W.
    Hourigan J.A.

David
    Brown J.A.

David
    M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Apex Results Realty Inc. v.
    Zaman, 2019 ONCA 766

DATE: 20190930

DOCKET: C66461

Juriansz, Benotto and Miller
    JJ.A.

BETWEEN

Apex Results Realty Inc.,
    formerly known as Sutton Group Results Realty Inc.

Plaintiff/Defendant by counterclaim

(Respondent)

and

Sharief H. Zaman, Eminence
    Living Inc. and Higher Living Development Inc.

Defendants/Plaintiffs by counterclaim

(Appellants)

Saba Ahmad as agent for Ivan Marini,
    for the appellants

Walter R. Wellenreiter, for the
    respondent

Heard: September 24, 2019

On appeal from the judgment of Justice James
    R. H. Turnbull of the Superior Court of Justice, dated December 31, 2018.

REASONS FOR DECISION

[1]

The motion judge granted summary judgment on the
    respondents claim for commissions on the sale of two properties bought by the
    corporate appellants controlled by the appellant Zaman. The motion judge found that
    Zaman had executed a buyer representation agreement that provided that the
    respondents agent would receive a commission for properties he purchased. The
    motion judge rejected Zamans claims that he did not understand the agreement
    because he suffered from dyslexia, that a different buyer representation
    agreement governed one property purchased, that in relation to the other there
    were oral amendments to the agreement that the vendor would pay the commission,
    and that the respondent failed to inform him of the commissions payable as soon
    as possible after the sales as required by the agreement. The motion judge granted
    summary judgment on the respondents claim for the commissions due under the
    contract.

[2]

On appeal Zaman advances a new argument. He submits
    that the motion judge failed to conclude that summary judgment was not
    appropriate in the interests of justice because he counterclaimed for
    substantial damages based on alleged negligence on the part of the respondent.
    The motion judge simply said Counsel did not make any submissions to the court
    with respect to the disposition of the counterclaim. Hence, I will make no
    ruling with respect to it. He argues that the motion judge should have concluded
    summary judgment was inappropriate because the counterclaim is inextricably
    intertwined with the claim giving rise to the probability of duplication of
    proceedings and the possibility of inconsistent results.

[3]

The motion judge was aware of the counterclaim,
    but understandably did not discuss it as Zaman did not raise it in response to
    the motion for summary judgment on the commission. Nor did he raise the allegation
    of the respondents negligence. It is evident the motion judge took the view
    the counterclaim was not inextricably intertwined with the claim. We agree. On
    our reading of the counterclaim, it is not inextricably intertwined with the
    claim. Indeed, it is premised on the existence of a valid buyer representation
    agreement between the parties. When pressed counsel was unable to identify the
    specific issues that were duplicative. We do not give effect to this argument.

[4]

We do not accept Zamans other arguments. The
    motion judges factual error about a date was not material, and the adverse
    inference the motion judge made because Zaman failed to fulfil an undertaking was
    permissible.

[5]

The appeal is dismissed. The respondents costs
    are fixed in the amount of $8,000.00, all-inclusive, as agreed by counsel.

R.G. Juriansz J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Aviva Insurance Company v. Wawanesa Mutual
    Insurance Company, 2019 ONCA 704

DATE: 20190910

DOCKET: C66043

Feldman, Paciocco and Fairburn JJ.A.

BETWEEN

Aviva Insurance Company

Applicant (Appellant)

and

Wawanesa Mutual Insurance Company

Respondent (Respondent)

and

Hy Kiet Liu

Intervenor

Dennis Ong and Christopher Scotchmer, for the appellant

Steven Carlstrom and Genevieve Durigon, for the respondent

Heard: May 15, 2019

On appeal from the order of Justice Shaun Nakatsuru of
    the Superior Court of Justice, dated October 1, 2018, with reasons reported at
    2018 ONSC 5778, 89 C.C.L.I. (5
th
) 332.

Fairburn J.A.:

A.

OVERVIEW

[1]

On October 29, 2010, Hy Kiet Liu was driving a car that was rear-ended
    by a rental truck driven by Maroof Shah Mahamood. The rental company was New
    Horizons Car and Truck Rentals/Discount Rent-a-Car (New Horizons). At the
    time of the accident, Mr. Mahamood was delivering furniture for a company named
    Fine Furnishings. Mr. Liu sued Mr. Mahamood, New Horizons, and Fine Furnishings
    in a negligence claim. The insurers for New Horizons and Fine Furnishings,
    Aviva and Wawanesa respectively, cannot agree upon their insurance obligations.

[2]

When a rental vehicle is involved in a collision and there is
    overlapping liability coverage, s. 277(1.1)(1)-(3) of the
Insurance Act
,
R.S.O. 1990, c. I.8, sets out the following order in which the policies
    will respond:

1.

any policy under
    which the
lessee
of the automobile is entitled to indemnity (emphasis
    added);

2.

any policy under
    which the
driver
of the automobile is entitled to indemnity (emphasis
    added); and

3.

any
    policy under which the
owner
of the automobile is entitled to
    indemnity (emphasis added).

[3]

The purpose of s. 277(1.1) is to relieve the insurer of the owner of a
    rented vehicle from being the first loss insurer where other insurance is
    available to the renter or driver of the rented vehicle:
Enterprise
    Rent-a-Car Canada Limited v. Meloche Monnex Financial Services Inc.
,
2010
    ONCA 277, 102 O.R. (3d) 87, at para. 4. It results in a cascading priority
    effect in relation to insurance claims arising in the rental vehicle context.
    Insurance available to drivers operates in excess to insurance available to
    lessees. And insurance available to owners operates in excess to insurance available
    to lessees and drivers.

[4]

To determine who is the first loss insurer under s. 277(1.1), it is first
    necessary to determine the identity of the lessee and whether that lessee is
    entitled to indemnity under a motor vehicle liability policy. In this case, the
    parties cannot agree upon the identity of the lessee. Aviva says that Fine Furnishings
    was the lessee. Wawanesa says that Mr. Mahamood was the lessee.

[5]

Aviva sought to resolve this dispute by bringing an application pursuant
    to rr. 14.05(3) and 38 of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, effectively seeking two declarations:

a.

that Fine
    Furnishings was the lessee of the rental truck driven by Mr. Mahamood; and

b.

that at the time
    of the collision, Mr. Mahamood was acting as an employee of Fine Furnishings
    (as distinct from an independent contractor).

[6]

The application judge found that Mr. Mahamood was the lessee but left
    the determination as to whether Mr. Mahamood was an employee or an independent
    contractor for trial in the main action. Since Mr. Mahamood had no motor
    vehicle liability policy of his own, the application judge made an order
    declaring Aviva, as the owners insurer, the first loss insurer.

[7]

This is an appeal from that order. The appellant maintains that the
    application judge erred by failing to take into account all relevant
    circumstances when determining the identity of the lessee. Alternatively, the
    appellant submits that the application judge erred by declaring Aviva to be the
    first loss insurer after finding that Mr. Mahamood was the lessee. The
    appellant contends that Mr. Mahamood was acting as an employee of Fine
    Furnishings when he rented the truck, which the appellant says would have
    entitled him to indemnity under the Wawanesa policy.

[8]

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

B.

BACKGROUND FACTS

[9]

Mr. Mahamood immigrated to Canada in 2000 as an international student.
    He remained in the country under a work permit after he graduated. Under that
    permit, he was only authorized to work for Fine Furnishings.

[10]

Mr.
    Mahamood began working for Fine Furnishings in 2009. While he initially worked in
    an administrative position, he later asked Mr. Rajiv Mehta, the owner of Fine
    Furnishings, whether he could take on additional responsibilities to increase
    his income. Mr. Mehta offered Mr. Mahamood a job delivering furniture for the
    company. He asked Mr. Mahamood to sign a subcontract agreement which set out the
    amount he would be paid for each delivery and required Mr. Mahamood to arrange
    his own insurance. Mr. Mahamood signed the agreement but maintains that he did
    not understand its terms. Mr. Mahamood has never worked for anyone other than
    Fine Furnishings.

[11]

Mr.
    Mahamood did not have his own vehicle or credit card. When delivering furniture
    for Fine Furnishings, Mr. Mahamood always obtained his rental trucks from New
    Horizons. This was because Fine Furnishings had a standing arrangement with New
    Horizons under which Fine Furnishings authorized New Horizons to charge the
    cost of vehicle rentals directly to a credit card on file. Without a credit
    card to obtain the rental trucks, Mr. Mahamood had no option but to obtain the vehicles
    from that location. Mr. Mahamood gave evidence that he was told that he could
    only use the rental trucks to make furniture deliveries for Fine Furnishings.

[12]

On
    October 29, 2010, Mr. Mahamood picked up a truck from New Horizons to complete his
    deliveries. Mr. Mahamood was the sole signatory to the New Horizons rental
    agreement. In the course of delivering furniture to Fine Furnishings customers,
    Mr. Mahamood rear-ended Mr. Lius vehicle.

C.

THE
APPLICATION JUDGES DECISION

[13]

Early
    in his reasons for decision, the application judge expressed the view that the
    identity of the first loss insurer would depend on the identity of the
    lessee. In approaching this issue, the application judge observed that the
Insurance
    Act
defines lessee as a person who is leasing or renting the automobile
    for any period of time: s. 277(4). For the application judge, this definition
    pointed toward the primacy of the contractual arrangement in determining the
    identity of the lessee. Accordingly, the application judge adopted the test
    set out in
Intact Insurance Company of Canada v. American Home Assurance
    Company of Canada
,
2013 ONSC 2372, 115 O.R. (3d) 708, at para. 18
    for determining who is the lessee under the
Insurance Act
:

Who is the lessee can be tested and determined
    by asking the following question:
Who
    can the lessor (Budget Car Rental) sue to enforce the car rental contract
?
[Emphasis added.]

[14]

The
    application judge acknowledged that there may be cases where it is appropriate
    to look beyond the four corners of the rental agreement to determine the
    identity of the lessee, especially if the contract is ambiguous in nature.
    However, he found that this was unnecessary in the case before him and held as
    follows:

In my opinion, I need not go further than
    the rental agreement in this case. Mr. Mahamood signed it. He rented the truck.
    He is the person New Horizons must sue to enforce the car rental contract. He
    is therefore the lessee. It does not matter why he was renting it or what he
    was going to use the truck for. It does not matter how the rental would be paid
    for and by whom.
The focus of the inquiry should be
    on the contractual arrangement made to rent or lease the vehicle. [Emphasis added.]

[15]

The
    application judge concluded that Mr. Mahamood was the lessee because there was
    nothing on the face of the two-page rental agreement that signalled Fine
    Furnishings involvement apart from its phone number, which Mr. Mahamood listed
    as his contact number. Instead, the rental agreement contained Mr. Mahamoods
    name, home address, and signature.

[16]

The
    application judge did not consider it necessary to resolve whether Mr. Mahamood
    was acting as an employee or an independent contractor at the time that he
    rented the vehicle. He decided not to do so because resolving these issues
    would require him to make specific findings of fact based on conflicting
    evidence; findings which raise credibility assessments. Although he concluded
    that the resolution of that issue may be germane to some issue at trial, he
    held that it was immaterial to determining the priority of insurance policies.

[17]

Ultimately,
    the application judge declared Aviva, as the insurer of the owner of the rental
    truck, the first loss insurer.

D.

ANALYSIS

(1)

Did the Application Judge Fail To Take All Relevant Circumstances into
    Account When Determining the Identity of the Lessee?

(a)

Overview

[18]

In my view, the application judge erred in determining the identity
    of the lessee by restricting himself to the face of the two-page rental
    agreement. By deciding that he had to go [no] further than the rental
    agreement in this case, the application judge failed to grapple with whether
    Mr. Mahamood was acting as an authorized representative, or agent, of Fine
    Furnishings when he signed that agreement. Taking agency principles into
    account, I conclude that Fine Furnishings was the lessee.

(b)

Intact
and
Lloyds

[19]

The
    parties rely on two decisions of the Superior Court that deal with how to
    determine the identity of a lessee for purposes of s. 277(1.1):
Intact
and
The Insurance Corporation of British Columbia v. Lloyds Underwriters
,
2017 ONSC 670, [2017] I.L.R. I-5949. The parties suggest that
Intact

and
Lloyds

stand in conflict with each other, unsusceptible
    to reconciliation. I do not agree. Considered against their factual backdrops,
    the principles from these cases are clear and support

the finding that
    Fine Furnishings was the lessee.

(i)

Intact

[20]

In
Intact
, an
employee was
    driving a rental vehicle for work-related purposes when he collided with
    another vehicle and injured its passenger. As in this case, the insurers for
    the employer and the employee disputed who was the lessee for the purposes of
    s. 277(1.1). The employee had signed the rental agreement and paid for the
    rental vehicle with a credit card provided to him by his employer. His employer
    ultimately reimbursed him for the cost. However, the credit card was in the
    employees name alone. He was also permitted to use the card for both business
    and personal expenses.

[21]

Perell J. rejected the argument that the employer was
    the

de facto
lessee of the rental vehicle. He saw no reason
    to introduce the concept of a
de facto
 lessee into s. 277(1.1) and
    preferred a straightforward interpretation of the provision: at paras. 17-18.
    He reasoned that it was inadvisable to encourage factual and legal disputes over
    the identity of a lessee for the purposes of the
Insurance Act
. Ultimately,
    Perell J. found that the identity of the lessee could be determined by asking
    the following question: who can the lessor  sue to enforce the car rental
    contract?: at para. 18.

[22]

The
    answer was the employee. There was no need for Perell J. to go beyond the
    rental agreement to understand the identity of the contracting parties:
Intact
,
    at para. 18. Apart from its policy of reimbursing employees who rented vehicles
    for work-related purposes, there were no facts that suggested that the employer
    had authorized the employee to contract with the rental agency on its behalf.

(ii)

Lloyds

[23]

A
    similar dispute arose in
Lloyds
.
In resolving that dispute,
    Penny J. adopted the same test for determining the identity of a lessee as that
    set out in
Intact
:
Lloyds
,
at paras. 14-15. However,
    the facts before him required a more expansive approach, one that engaged
    principles of agency. As Penny J. determined at para. 17:

(i)

the employee was required to rent the car to fulfill
    her employment obligations;

(ii)

the employer kept an account with the rental
    agency;

(iii)

the employee was required by company policy to
    rent from that rental agency;

(iv)

the rental car was rented on the employers
    account;

(v)

the rental was paid for on a corporate credit
    card;

(vi)

the employee was not permitted to use the credit
    card for personal expenses;

(vii)

the credit card bill went directly to the
    employer; and

(viii)

the rental agency was entitled to collect, and
    did collect, from [the employer] reimbursement for the cost of repairing
    accident damage to the rented car.

[24]

In
    considering the
Intact

question  who can the lessor  sue to
    enforce the car rental contract  Penny J. looked for what he described as the
    true counterparty to the rental contract: at para. 15. In doing so, Penny J.
    looked beyond the four corners of the contract to factors that would indicate
    whether the employee was acting as an agent of her employer when she signed the
    rental agreement. Based on the facts before him, Penny J. concluded that the
    employee signed the agreement as a mere authorized representative of her
    employer:
Lloyds
,
at para. 18. The employer being the true counterparty
    to the agreement, Penny J. declared that the employers insurer was the first
    loss insurer.

(c)

The Test for Determining Who Is the Lessee

[25]

The
    appellant says that
Lloyds

was correctly decided and the
    application judge should have applied the reasoning from
Lloyds

to
    this case by looking beyond the actual rental agreement to determine the
    identity of the lessee.

[26]

The
    respondent counters that
Intact

was correctly decided and
    applied by the application judge when he refused to consider factors beyond the
    four corners of the rental contract in determining the identity of the lessee. In
    support of that argument, the respondent contends that car rental agreements
    are contracts of adhesion which should be interpreted without regard to the
    circumstances surrounding their formation, absent ambiguity:
Ledcor
    Construction Ltd. v. Northbridge Indemnity Insurance Co.
,
2016 SCC
    37, [2016] 2 S.C.R. 23, at paras. 27-32. The respondent maintains that there is
    no ambiguity on the face of the rental agreement in this case and that the
    application judge was right to focus upon who signed that agreement.

[27]

I
    do not agree with the parties that the judgments in
Intact

and
Lloyds

stand in conflict, one with the other. Although stated somewhat
    differently, at their core, both decisions correctly focus upon identifying the
    lessee by determining the identities of the actual contracting parties. Importantly,
    the parties to a contract are not always those who sign it. Determining the
    identity of the lessee for the purposes of s. 277(1.1) may require courts to
    apply agency principles where the face of the agreement and the surrounding circumstances
    show that one of the signatories was signing on behalf of another person. As
    G.H.L. Fridman explains in his text,
The Law of Contract in Canada
,
    6th ed (Toronto: Thomson Reuters, 2011) at p. 192:

Under the law of agency, a principal may contract with another
    party through an agent. In such circumstances,
even though the contract is
    negotiated between the agent and the third party (and may even be signed by the
    agent, not the principal), the contract which comes about is held to be between
    the principal and the third party, not the agent and the third party
.
    [Ordinarily,] the principal, on whose behalf the agent contracts, is the one
    entitled to take the benefit of the contract so negotiated, as well as being
    the one liable in the event of default. [Emphasis added.]

[28]

In
Intact
,
there was no indication that the employer had
    authorized the employee to contract with the rental agency on its behalf. Not
    so in
Lloyds
. In essence, the application judge in
Lloyds
concluded
    that the employer had given its employee authority to deal with the rental car
    company on its behalf:
Hav-A-Kar Leasing Ltd. v. Vekselshtein
, 2012
    ONCA 826, at para. 42. In those kinds of situations, ones raising relationships
    of agency, I agree with Penny J.s observation, at para. 18, that:

I do not think the fact that [the employee] signed the rental
    contract is necessarily evidence that she was the lessee. This is because
    corporations like [the employer] are legal fictions. While [the employer] could
    enter into a contract it could not sign a contract other than through an
authorized
    representative
. [The employee] was that authorized representative.
    [Emphasis added.]

[29]

Although
    the contracting parties will typically be identified by ascertaining the
    identities of the signatories to a rental agreement, in those situations where a
    relationship of agency is raised, like in
Lloyds
, it may be necessary
    to go beyond the four corners of a rental agreement to understand the
    identities of the actual contracting parties.

(d)

The Decision Below

[30]

In my view, it was an error of law to simply rely upon the face of
    the two-page rental agreement to determine the lessee status in this case. By
    doing so, the application judge failed to grapple with the fact that Mr.
    Mahamood was acting as Fine Furnishings agent when he rented the truck. Mr.
    Mehta impliedly authorized him to do so by telling him that he could rent a
    vehicle from New Horizons and have that vehicle billed to the credit card on
    file for Fine Furnishings. New Horizons was aware of this grant of authority
    and dealt with Mr. Mahamood on that basis.

[31]

Mr.
    Mahamoods evidence was that:

a.

Fine Furnishings
    instructed him to rent vehicles from New Horizons for the purposes of completing
    Fine Furnishings deliveries;

b.

Fine Furnishings
    did not permit him to use the rental vehicles for any purpose other than making
    deliveries to its customers;

c.

Fine Furnishings
    paid for the cost of fuelling the rental vehicles;

d.

Mr. Mahamood
    never paid New Horizons directly for the rental vehicles, as they were always billed
    to the credit card on file for Fine Furnishings; and

e.

when he called
    to reserve the rental vehicle for October 29, 2010, Mr. Mahamood told New
    Horizons that he would be picking it up on behalf of Fine Furnishings.

[32]

The
    evidence also shows that Mr. Mahamood entered into the rental agreement pursuant
    to a longstanding arrangement between Fine Furnishings and New Horizons. The
    car rental agency says that it was contracting with Fine Furnishings and not
    Mr. Mahamood, as evidenced by their decision not to enforce the contract
    against Mr. Mahamood.

[33]

Moreover,
    the Fine Furnishings phone number was the contact number on the face of the
    rental agreement. As well, the rental agreement contains an R.A. number that is
    the same number that appears on a document with the corporate account number
    assigned to Fine Furnishings. Under this account, New Horizons had recorded Fine
    Furnishings address and phone number, as well as a credit card number that
    belonged to the owner of Fine Furnishings, Mr. Mehta. Mr. Mehta acknowledges
    that he authorized New Horizons to keep [his] personal credit card on file for
    independent contractors to use in the event that they did not have their own credit
    card. He paid for car rentals from New Horizons with some regularity. And while
    Mr. Mehta maintains that he would always deduct the cost of the truck rental
    from the amount he paid Mr. Mahamood for the furniture deliveries, it is agreed
    that his credit card was billed for Mr. Mahamoods rentals.

[34]

These
    factors all point toward the fact that Mr. Mahamood entered into the rental
    agreement as an authorized representative of Fine Furnishings. On this basis, I
    conclude that Fine Furnishings was the lessee.

(2)

Did the Application Judge Err by Determining that Aviva Was the First
    Loss Insurer?

[35]

On
    appeal, Aviva also argued in the alternative that Wawanesa should have been
    declared the first loss insurer even if Mr. Mahamood was found to be the
    lessee. Aviva contends that Mr. Mahamood was acting as Fine Furnishings
    employee at the time of the accident, which Aviva says would have entitled him
    to indemnity under the Wawanesa policy. Wawanesa counters that Mr. Mahamood was
    an independent contractor at the time of the accident and, even if he was Fine
    Furnishings employee, the Wawanesa policy did not necessarily provide coverage
    relating to his alleged negligence. Importantly, we have not been provided with
    the Wawanesa policy.

[36]

Bearing
    in mind the credibility assessments that would be required to determine whether
    Mr. Mahamood was acting as an employee or an independent contractor at the time
    that the vehicle was leased, the application judge understandably declined to
    determine that factual issue and left it for determination on the main action. In
    light of my conclusion that Fine Furnishings was the lessee, it is unnecessary
    to determine Mr. Mahamoods employment status. I would simply say this: priority
    under s. 277(1.1) can only be determined after determining the identity of the
    lessee, driver and owner, and the sources of insurance available to each. In
    other words, priority depends upon whether there is a right to indemnity under
    the policy and who has that right to indemnity.

[37]

For
    that very reason, despite my finding that Fine Furnishings was the lessee, I
    would decline the appellants request to make a declaration that Wawanesa is
    the priority insurer. During oral submissions there was some dispute about the
    content of that policy and its reach. As we have not been provided with the
    Wawanesa policy, we are not in a position to determine the issue of priority,
    particularly where there remains some dispute about the extent of coverage.

[38]

I
    also note that the initial application did not ask for a declaration of
    priority. Rather, it asked for a declaration as to the identity of the lessee
    and a declaration as to whether Mr. Mahamood was acting as an employee or
    independent contractor at the time of the lease. As for the latter issue, I
    agree with the application judge that, if the issue remains important, it will
    have to be determined in the main action. Alternatively, the
    employee/independent contractor issue could be determined by way of trial of an
    issue if considered advisable and if all necessary parties agree to be bound by
    the result.

E.

CONCLUSION

[39]

I
    would allow the appeal and make a declaration that Fine Furnishings was the
    lessee.

[40]

On
    consent, I would vacate the costs order from below, except to the following extent.
    The costs made payable to Mr. Liu as the intervenor in the original action are
    not vacated. He did not appear in this court and we heard no submissions as to
    those costs. Accordingly, that costs order remains in place.

[41]

In
accordance
with their
    agreement, the respondent will pay the appellant $20,000 in costs for the
    appeal, inclusive of G.S.T. and disbursements.

Released: K.F. September 10,
    2019

Fairburn J.A.

I agree. K. Feldman J.A.

I agree. David M. Paciocco J.A.