COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Broadcasting Corporation
    v. Ferrier, 2019 ONCA 1025

DATE: 20191227

DOCKET: C66995 & C66998

Strathy C.J.O., Doherty and
    Sharpe JJ.A.

BETWEEN

Canadian Broadcasting
    Corporation

Applicant
(Appellant in Appeal)

and

Lee Ferrier, Q.C., Exercising
    powers and duties of the Thunder
Bay Police Services Board,
the Independent Police Review
Director, the First Nation Public Complainants, the Chief of
Police of the Thunder Bay Police Service, and the Respondent
Officers

Respondents
(Respondents in Appeal except the First Nation Public Complainants)

Ryder L. Gilliland
    and Agatha Wong, for the appellant Canadian Broadcasting Corporation

Julian N. Falconer and Mary (Molly)
    Churchill, for the appellants, the First Nation Public Complainants

Joanne E. Mulcahy, for the Respondent
    Officers

Holly Walbourne, for the respondent the
    Chief of Police of the Thunder Bay Police Service

Jean C.H. Iu and Pamela Stephenson
    Welch, for the respondent the Independent Police Review Director

David Migicovsky, for the respondent
    Lee Ferrier, Q.C., exercising powers and duties of the Thunder Bay Police
    Services Board

Daniel Guttman, for the intervener the
    Attorney General (Ontario)

Heard: October 31, 2019

On appeal from the judgment of the
    Divisional Court (Bonnie R. Warkentin R.S.J., Catherine D. Aitken, and Gregory
    M. Mulligan JJ.) dated January 7, 2019, with reasons reported at 2019 ONSC 34; 53
    Admin. L.R. (6th) 236.

Sharpe J.A.:

[1]

This appeal raises an important issue regarding
    the openness of police board hearings. The case involves the tragic death of an
    Indigenous man and allegations that the members of the Thunder Bay Police
    Service (the TBPS) were guilty of misconduct in relation to their
    investigation of his death. Within hours of the discovery of the body, they
    concluded that the death was not suspicious, and they failed to conduct any
    further investigation. The complaint that they were guilty of misconduct forms
    part of a much larger pattern of concern regarding the conduct of the TBPS in
    relation to the Indigenous community.

[2]

Because it took longer than six months for the
    Ontario Independent Police Review Director (the OIPRD) to report that there were
    reasonable grounds to believe that the officers were guilty of misconduct, it
    was necessary to ask the TBPS Board for an extension before a disciplinary
    hearing could be commenced.

[3]

The
Police Services
    Act
, R.S.O. 1990, c. P.15, provides that subject to
    certain exceptions, police services board hearings are presumptively open to
    the public. The decision maker, a retired judge appointed to make the decision
    the TBPS Board would ordinary make, entertained submissions and ordered that
    hearing would be closed.

[4]

The Canadian Broadcasting Corporation (the CBC)
    and the Complainants appeal the order of the Divisional Court refusing to
    interfere with the decision, arguing that both the Divisional Court and the decision
    maker failed to pay adequate attention to the s. 2(b)
Charter

right to freedom of expression by failing to require an open
    hearing.

[5]

For the following reasons, I would allow the
    appeal, set aside the judgment of the Divisional Court, quash the decision ordering
    a closed hearing and remit the matter for reconsideration in the light of these
    reasons.

A.

BACKGROUND

[6]

The body of Stacy DeBungee, an Indigenous man,
    was discovered in the McIntyre River in Thunder Bay on October 19, 2015. Within
    hours, the TBPS advised that the death was not suspicious. The two Complainants,
    Brad DeBungee, Stacys brother, and Chief Jim Leonard, Rainy River First Nations,
    asked the OIPRD to investigate allegations of misconduct against the officers
    who had conducted the investigation and to undertake a systemic review of the
    relationship between First Nations peoples and the TBPS.

[7]

On April 22, 2016, the OIPRD decided to
    undertake an investigation into the handling of the DeBungee death. Under the
Police Services Act
,
this is referred to as the day that the complaint was retained by
    the OIPRD. On November 3, 2016, the OIPRD announced terms of reference for a
    systemic review into the TBPS policing of First Nations peoples. The OIPRD
    report issued on February 15, 2018 found that there was sufficient evidence to
    believe, on reasonable grounds, that the officers had committed misconduct in
    their investigation of Stacy DeBungees death.

[8]

Because more than six months had elapsed from
    the date the complaint was retained, no notice of hearing to consider the
    complaint and disciplinary action could be served unless the TBPS granted an
    extension on the ground that the delay in serving the notice was reasonable:
Police Services Act
, at s. 83(17). The
    OIPRD directed the Chief of the TBPS to bring an extension application to the
    TBPS Board.

[9]

On account of the ongoing OIPRD systemic review
    of the TBPSs relationship with the lndigenous community, the Board was
    concerned about potential bias allegations. Accordingly, it sought the
    appointment of a disinterested person under the
Public
    Officers Act
, R.S.O. 1990, c.P.45, s. 16, to hear
    the extension application in its place. The Superior Court appointed a retired
    judge, the Honourable Lee Ferrier, Q.C., to act as the substitute decision
    maker to consider and exercise the Boards powers in relation to the extension.

[10]

The parties at the extension application hearing
    included the Chief of Police, the OIPRD, the officers and the Complainants. The
    Complainants had standing to make and receive submissions.

[11]

The
Police Services
    Act
, at s. 35(3), provides that police board
    meetings and hearings are presumptively open:

Meetings and
    hearings conducted by the board shall be open to the public, subject to
    subsection (4), and notice of them shall be published in the manner that the
    board determines.

[12]

Section 35(4) allows the board to hold a closed
    meeting and defines the circumstances when that may be done:

(4) The board may exclude the public from all
    or part of a meeting or hearing if it is of the opinion that,

(a)     matters involving public security may
    be disclosed and, having regard to the circumstances, the desirability of
    avoiding their disclosure in the public interest outweighs the desirability of
    adhering to the principle that proceedings be open to the public; or

(b)     intimate
    financial or personal matters or other matters may be disclosed of such a
    nature, having regard to the circumstances, that the desirability of avoiding
    their disclosure in the interest of any person affected or in the public
    interest outweighs the desirability of adhering to the principle that
    proceedings be open to the public.

[13]

The decision maker sought the views of the
    parties as to whether the hearing of the extension application should be
in camera
. Counsel for the Chief of
    Police, the OIPRD and the officers asked that the hearing be closed. Counsel
    for the Complainants advised that his clients sought an open hearing. The decision
    maker asked for written submissions. Counsel for the Complainants notified the
    CBC, and the CBC advised the decision maker of its interest in being heard on
    the
in camera
issue. The decision maker allowed the CBC to make
    written submissions.

[14]

The CBC and the Complainants submitted that an
    open hearing was required by s. 2(b) of the
Charter
:

Everyone has the following fundamental
    freedoms:

(b) freedom of
    thought, belief, opinion and expression including freedom of the press and
    other media of communication.

[15]

The CBC and the Complainants argued that
principles
    enunciated in
Dagenais v. Canadian Broadcasting Corp.
, [1994] 3 S.C.R.
    835 and
R. v. Mentuck,
2001 SCC 76, [2001] 3 S.C.R. 442, (the
Dagenais/Mentuck

    test) applied. This test applies to discretionary decisions limiting freedom of
    the press in relation to court proceedings. As restated in
Toronto Star
    Newspapers Ltd. v. Ontario
,
2005 SCC 41, [2005] 2 S.C.R. 188, at para. 26, and explained by this
    court in
R. v.

Canadian Broadcasting Corporation,
2010 ONCA
    726, 102 O.R. (3d) 673, at para. 20, the
Dagenais/Mentuck
principle,
    is as follows:

Restrictions on the open court principle and
    freedom of the press in relation to judicial proceedings can only be ordered
    where the party seeking such a restriction establishes through convincing
    evidence that

(a) such an order is necessary in order to
    prevent a serious risk to the proper administration of justice because
    reasonably alternative measures will not prevent the risk; and

(b) the salutary
    effects of the publication ban outweigh the deleterious effects on the rights
    and interests of the parties and the public, including the effects on the right
    to free expression, the right of the accused to a fair and public trial, and
    the efficacy of the administration of justice.

B.

DECISION ORDERING A CLOSED HEARING

[16]

The decision maker cited a Divisional Court
    decision for the proposition that the consideration of a request for an
    extension under s. 83(17) of the
Police Services
    Act

is
    administrative in nature and that procedural fairness and natural justice do
    not always require a police services board to hold a public hearing. He also
    noted that the
Statutory Powers Procedure Act
, R.S.O. 1990, c. S.22, does not apply to a Board meeting to
    consider an extension. The decision maker then cited a series of decisions and Board
    orders to support the proposition that employment and disciplinary matters
    qualify as intimate  personal matters under s. 35(4)(b) of the
Police Services Act
,
noting that investigations of conduct undertaken by the OIPRD are
    confidential pursuant to s. 95. The decision maker found that if the
    investigative report completed by the OIPRD in this case was made public, it
    could taint the witnesses and result in negative stigma for the officers
    involved. He suggested that as the extension application hearing precedes the
    commencement of proceedings, it was akin to the swearing of an information or a
pre-enquete
in criminal proceedings, both of which are held
in camera
.

[17]

For two reasons, the decision maker rejected the
    submission that the
Dagenais/Mentuck
test applies. First, the proceeding to consider the reasonableness
    of the delay was administrative as opposed to judicial or quasi-judicial and
    the
Dagenais/Mentuck
test applies only to judicial or quasi-judicial proceedings. Second, s. 35(4) lays
    out a test for determining whether to conduct a public or closed proceeding and
Dagenais/Mentuck
did
    not supersede the prescribed statutory test. Finally, the decision maker
    concluded that, although the investigative report had been made public by the Complainants,
    the hearing should be held
in camera
in order to ensure the integrity of the proceedings.

C.

DIVISIONAL COURT: INTERIM INJUNCTION DECISION
    (2018 ONSC 5872)

[18]

The CBC sought an interim injunction to enjoin
    the decision maker from proceeding with the
in camera
hearing pending consideration of the CBCs application to the
    Divisional Court for judicial review.

[19]

The motion judge, who is based in Thunder Bay,
    granted the interim injunction. She found that there was a serious question to
    be tried as it is important for the court to consider the extent to which the
    public can expect openness in administrative decision-making (at para. 48).
    The question of whether the
Dagenais/Mentuck
test should apply in the context was an important issue that
    required the courts attention (at para. 43). The motion judge found that given
    the context in which the case arose  allegations of racist policing practices
    relating to Indigenous peoples  the need for transparency in the complaint
    procedure was heightened (at paras. 48-49). She also found that as the OIPRD
    report had already been made public, there was no evidence that intimate
    financial or personal matters may be disclosed on an extension application (at
    para. 40).

[20]

The motion judge found that the CBC and the
    First Nations community would suffer irreparable harm if a stay were not
    granted because, regardless of whether an extension is granted or not, an
in camera
hearing would deny the public
    their right to understand the process (at para. 60).

[21]

Finally, the motion judge held that the balance
    of convenience favours transparency in the circumstances of this case where
    racist policing is alleged (at para. 66).

D.

DIVISIONAL COURT: JUDICIAL REVIEW (2019 ONSC 34;
    53 Admin. L.R. (6th) 236)

[22]

The Divisional Court identified the sole issue
    arising on the CBCs application for judicial review as whether the decision
    maker erred by not applying the
Dagenais/Mentuck
test to the question of whether the extension application should be
    heard
in camera
(at
    para. 23). The Complainants, the officers and the Chief of Police were added as
    respondents as they had taken part in the proceedings before the decision maker.
    As an interested party, the OIPRD was also added as a respondent

[23]

The court took note of the social context
    surrounding the dispute; namely, that there is a very high level of distrust
    between the First Nations community and the TBPS, with many Indigenous peoples
    in the Thunder Bay area believing that the policing practices relating to them
    are racist (at para. 25). However, the court held that, despite this context
    and the fact that the community has a strong interest in the circumstances
    surrounding the death of Stacy DeBungee and in the TBPSs investigation of his
    death, it is important to not lose sight of the reality that the extension
    application is being determined in the context of possible disciplinary
    proceedings against employees (at paras. 29-33). The level of public concern
    should not change the nature of the decision-making process or the nature of
    the role being undertaken by [the decision maker] (at para. 33).

[24]

The court found that the applicable standard of
    review was reasonableness. The case law established that the function of the
    Board under s. 83(17) of the
Police Services Act
is not judicial or quasi-judicial but rather administrative and
    procedural in nature. The case law also established that the standard of review
    for the Boards decision on an extension application is reasonableness. The
    court found that the reasonableness standard was supported by the Supreme Court
    of Canadas decision in
Doré v. Barreau du Québec,
2012 SCC 12, [2012] 1 S.C.R. 395.

[25]

The Divisional Court held that neither the open
    court principle nor the
Dagenais/Mentuck
test applied because the extension hearing was not a judicial or quasi-judicial
    proceeding. The
Dagenais/Mentuck
test was also excluded as the
Police
    Services Act
, ss. 35(3) and (4) set out a specific
    statutory test for how to address the question of whether a hearing is to be
    open to the public. As the statute itself laid out the balancing act to be
    undertaken and there is no ambiguity in the legislative provisions, there was
    no need for the
Dagenais/Mentuck
test to apply (at paras. 52-53).

[26]

The Divisional Court concluded that the decision
    was both reasonable and correct (at para. 60). He was transparent in his
    decision-making process, his reasons were clear and intelligible, he adequately
    justified his decision, and he considered the important public interest at
    play.

E.

ISSUES

[27]

The following issues arise on the Complainants
    and the CBCs appeal to this court:

1.

What is the appropriate standard of review?

2.

Does the decision ordering a closed hearing satisfy
    the applicable standard of review?

3.

Should the Complainants fresh evidence motion
    be granted?

4.

If the appeal is allowed, what is the
    appropriate remedy?

F.

ANALYSIS

(1)

What is the appropriate standard of review?

[28]

As an appellate court hearing an appeal from a
    judgment refusing judicial review, the question for us to decide is whether
    the court below identified the appropriate standard of review and applied it
    correctly:
Canada Revenue Agency v. Telfer
,
2009 FCA 23, 386 N.R. 212, at para.
    18.

[29]

This appeal had been argued and a complete draft
    of these reasons had been written before the Supreme Court released its
    decision in
Canada (Minister of Citizenship and Immigration) v. Vavilov
,
    2019 SCC 65 modifying standard of review analysis. As I will explain, it is my
    view that
Vavilov
confirms that the appropriate standard of review is
    correctness. Moreover, even if the appropriate standard of review were
    reasonableness,
Vavilov
confirms that the decision to hold a closed
    hearing was unreasonable.

[30]

The decision to hold a closed hearing, as
    explained by the Divisional Court, would ordinarily attract the deferential
    reasonableness standard of review mandated by
Dunsmuir
    v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190.

[31]

I note that in oral argument, the Complainants
    withdrew the submission in their factum that the standard of review was altered
    by the fact that the decision was that of a substitute decision maker without the
    expertise of a police services board. In any event,
Vavilov
, at para. 30,
    holds that expertise is no longer a factor to be considered when determining
    the appropriate standard of review.

[32]

In my respectful view, the Divisional Court
    failed to recognize that the attack on the decision focussed on the refusal to
    apply the
Dagenais/Mentuck
test when concluding that the extension hearing should be closed.
    The challenged decision was not, as the Divisional Court suggested, a decision
    under s. 83(17) whether to grant an extension. Rather, it was a decision under
    s. 35(4) whether to hold a closed hearing. The appellants argued that that
    decision could only be made if the
Charter

rights to freedom of expression and
    freedom of the press were considered. They argued that the decision maker was
    wrong to conclude that the exercise of his discretion was governed solely by
    the terms of s. 35(4) and to refuse to take those
Charter

rights into accounts.

[33]

I agree with the appellants submission that the
    decision that the
Dagenais/Mentuck
test does not apply is reviewable on a correctness standard of
    review.

[34]

If the
Charter

rights are considered by the
    administrative decision maker, the standard of reasonableness will ordinarily
    apply. In
Doré
, the
    Disciplinary Council of the Barreau du Québec considered and rejected the
    argument that the
Code of ethics of advocates

requirement that advocates conduct
    themselves with objectivity, moderation and dignity infringed the s. 2(b)
Charter
right to freedom of expression. Similarly, in
Episcopal
    Corporation of the Diocese of Alexandria-Cornwall v. Cornwall Public Inquiry,

2007 ONCA 20, 278 D.L.R. (4th) 550, the
    commissioner of inquiry considered the
Dagenais/Mentuck
test and rejected the argument that he should issue a publication ban
    regarding an alleged wrong-doer. In both cases, a reasonableness standard of
    review was applied when the decisions were challenged.

[35]

On the other hand,
the
    refusal or failure to consider an applicable
Charter

right should, in my opinion, attract a
    correctness standard of review. As the Supreme Court explained in
Dunsmuir
, at para. 60, citing
Toronto (City) v. C.U.P.E.,
Local 79, 2003
    SCC 63,

[2003] 3 S.C.R. 77,
at para. 62: where the question at issue is one of general law
    that is both of central importance to the legal system as a whole and outside
    the adjudicators specialized area of expertise  uniform and consistent
    answers are required. See also
Alberta (Information
    and Privacy Commissioner) v. University of Calgary,
2016 SCC 53, [2016] 2 S.C.R. 555, at paras. 20-21. This is confirmed
    by
Vavilov
, at para. 17:
[T]he presumption of
    reasonableness review will be rebuttedwhere the rule of law requires that the
    standard of correctness be applied. This will be the case for certain
    categories of questions, namely constitutional questions, general questions of
    law of central importance to the legal system as a whole and questions related
    to the jurisdictional boundaries between two or more administrative bodies.

[36]

The s. 2(b)
Charter
right to freedom of expression and freedom of the press relied upon
    by the appellants is both a matter of central importance to the legal system and
    a constitutional question. As confirmed by
Vavilov
, at para. 53, the
    application of the correctness standard to
constitutional
    questions, general questions of law of central importance to the legal system
    as a wholerespects the unique role of the judiciary in interpreting the
    Constitution and ensures that courts are able to provide the last word on
    questions for which the rule of law requires consistency and for which a final
    and determinate answer is necessary.

[37]

The issue before the decision maker was
whether
the
Dagenais/Mentuck
test had a bearing on
    the discretionary decision he had to make. That is not the same as the issue presented
    in
Doré

and
Episcopal
of
how
the s. 2(b)
Charter
right impacted or
    affected the discretionary decision he had to make
.
The decision maker
    did not reach the point of factoring the
Dagenais/Mentuck
test into his discretionary decision because he decided that it did
    not apply. A reasonableness standard assumes a range of possible outcomes all
    of which are defensible in law: see
Vavilov
, at para. 83. That
    standard is inappropriate here. The
Dagenais/Mentuck
test either applied or it did not.

[38]

I refer here to a passage in
Episcopal
which, in my view, has a direct bearing on this issue. In that case,
    the inquiry commissioner applied the
Dagenais/Mentuck
test when declining to order an
in camera

hearing. This court held that his decision
    was reviewable on a reasonableness standard because he did consider the impact
    of the
Charter
right on the
    decision he had to make. However, we noted, at para. 36, that in
Dagenais
itself, the judge who made the challenged
    decision did not have available the new test enunciated when the case went to
    the Supreme Court. That meant that his failure to arrive at a result that
    could be supported under the new test  amount[ed] to an error of law,
    reviewable on a standard of correctness. The same applies here. As I will
    explain, the decision maker did not have the benefit the decision of this court
    in
Langenfeld v. Toronto Police Services Board
,
2019 ONCA 716, 437 D.L.R. (4th) 614, an
    authority that bears directly upon the discretionary decision he was asked to
    make.

(2)

Does the decision ordering a closed hearing satisfy
    the applicable standard of review?

[39]

The appellants submit that the decision maker
    erred by concluding that the
Dagenais/Mentuck
test did not apply to the s. 35(4) decision whether to hold an open
    or closed extension hearing. They submit that
Dagenais/Mentuck
establishes a general standard that applies to all judicial,
    quasi-judicial and administrative decisions, and that it is not ousted by
    statutory provisions such as s. 35(4) that prescribe a specific test to
    determine whether a meeting should be open or closed. They urge us to take a
    contextual approach and to recognize the paramount importance of openness in
    the circumstances of this case. The issues surrounding allegations of racism
    and mistreatment on the part of the TBPS towards the Indigenous community have
    attracted wide attention and the appellants assert that it is of utmost
    importance that the s. 83(17) extension hearing be open.

[40]

The appellants also rely heavily on the recent
    decision of this court in
Langenfeld
, delivered after the decision ordering a closed hearing was made and
    after the Divisional Court dismissed the application for judicial review.

[41]

The respondents submit that
Dagenais/Mentuck
test only applies to
    judicial or quasi-judicial proceedings and that a s. 83(17) extension hearing
    is administrative in nature. Supported by the intervener, the Attorney General
    of Ontario, they also submit that as the appellants did not challenge the validity
    of s. 35(4), they cannot use the
Dagenais/Mentuck
test to, in effect, re-write that provision to alter the test applicable
    to a s. 83(17) extension hearing.

[42]

I turn first to the question of whether the
Dagenais/Mentuck
test applies to a s. 83(17)
    hearing.

[43]

Dagenais

and
Mentuck

hold that the
Charters

s. 2(b) guarantee of freedom of expression and freedom of the press
    fortifies the common law open court principle. [T]he presumption that courts
    should be open and reporting of their proceedings should be uncensored is so
    strong and so highly valued in our society. Closed proceedings can only be
    ordered upon a convincing evidentiary basis that such an order is necessary in
    order to prevent a serious risk to the proper administration of justice:
Mentuck
, at paras. 39 and 32.

[44]

The respondents rely on a strong line of
    authority for the proposition that a s. 83(17) extension hearing is an
    administrative rather than judicial or quasi-judicial matter. They point out
    that while the procedural protections of the
Statutory
    Powers Procedure Act
apply when a police services
    board is conducting a disciplinary hearing, the Act is explicitly excluded when
    a board considers a request for s. 87(17) extension:
Police Services Act
, at s. 37.

[45]

In
Forestall v.
    Toronto Police Services Board

(2007), 228 O.A.C. 202 (Div. Ct.), the Divisional Court held, at
    para. 44, that as an extension hearing does not determine the merits of
    allegations or impose discipline, the decision is administrative in nature,
    purely procedural, and, at para. 53, that while some degree of procedural
    fairness is required, the Board is not required to hold a judicial-type of hearing
    and that only minimal rights of procedural fairness, including notice,
    disclosure, and an opportunity to respond, apply. Similarly, in
Ackerman v. Ontario Provincial Police Service
, 2010 ONSC 910, 259 O.A.C. 163 (Div. Ct.), the court held that a
    decision to allow an extension is clearly interlocutory as all that has been
    decided is that it is reasonable to delay service of the notice of hearing (at
    para. 20). There has been no determination of the officers rights. The Board
    is exercising a procedural, administrative function in extending the time for
    service of the notice (at para. 21). In its reasons, the Divisional Court
    cited a number of other decisions to the same effect:
Coombs
    v. Toronto (Metropolitan) Police Services Board,
[1997] O.J. No. 5260 (Div. Ct.);
Payne v. Peel
    (Regional Municipality) Police Services Board
(2003),
    168 O.A.C. 69 (Div. Ct.);
Figueiras v. (York) Police
    Services Board,
2013 ONSC 7419, 317 O.A.C. 179 (Div.
    Ct.).

[46]

The appellants do not suggest that these cases
    were wrongly decided or seriously challenge the characterization of a s. 83(17)
    extension hearing as being administrative and procedural in nature. However,
    the appellants urge us to hold that
Dagenais/Mentuck
applies to the meetings of all public institutions and therefore,
    even if the s. 83(17) extension hearing is characterized as administrative in
    nature, the TBPS Board cannot escape its reach.

[47]

In my view, to accept that submission would
    represent a significant expansion of the reach of the
Dagenais/Mentuck
test beyond judicial
    and quasi-judicial decisions, in a manner not supported by authority.

[48]

The
Dagenais/Mentuck
test evolved in relation to discretionary judicial decisions in
    criminal proceedings. As the Supreme Court stated in
Toronto Star

Newspapers
    Ltd. v. Ontario
, at para. 7: the
Dagenais/Mentuck
test applies
to
all
discretionary
court
    orders
that limit freedom of expression and freedom
    of the press in
relation to legal
    proceedings
 (italics in original, underlining
    added). The test was extended to civil proceedings in
Sierra
    Club of Canada v. Canada (Minister of Finance)
, 2002
    SCC 41, [2002] 2 S.C.R. 522, but civil proceedings are judicial in nature.

[49]

The CBC relies on the application of the
Dagenais/Mentuck
test in relation to a commission of inquiry:
Episcopal
.
However, in
Episcopal
, the applicability of the
Dagenais/Mentuck
test was assumed by the
    inquiry commissioner and not challenged in this court. That is hardly surprising.
    The public hearing and fact-finding phase of a commission of inquiry may well
    have an adverse effect upon a witness or a party to the inquiry and although
    the findings of the commissioner do not result on penal or civil liability,
    procedural fairness is essential:
Canada
    (Attorney General) v. Canada (Commission of Inquiry on the Blood System
), [1997] 3 S.C.R. 440, at para. 55. The applicability of the
Dagenais/Mentuck
test in
Episcopal
also fits with case law finding
    commissions of inquiry to be quasi-judicial proceedings:
British Columbia (Attorney General) v. British Columbia (Information
    and Privacy Commissioner
, 2004 BCSC 1597, 34 B.C.L.R.
    (4th) 298, at paras. 48-72.

[50]

The appellants also rely upon the application of
Dagenais/Mentuck

by
    some administrative tribunals and professional discipline bodies. In my view,
    those cases are also distinguishable as they deal with proceedings classified
    as quasi-judicial in nature. For example,
Lifford Wine
    Agencies Ltd. v. Ontario (Alcohol & Gaming Commission)
(2003), 180 O.A.C. 151 (Div. Ct.), dealt with quasi-judicial a
    proceeding to which the
Statutory Powers Procedure Act
applied. As I have noted, that Act does not apply to police services
    board meetings to consider s. 83(17) extension requests.
Southam Inc. v. Canada (Attorney General)
(1997)
,
36 O.R. (3d) 721, and
Canadian Broadcasting Corp. v. Summerside (City of)
(1999)
,
170 D.L.R. (4th) 731 (P.E.I. Sup. Ct.), dealt with police discipline
    proceedings at the stage of the actual hearing which, again, brings them into
    the quasi-judicial category.

[51]

The appellants also rely on
Toronto Star v. AG Ontario,
2018 ONSC 2586, 421
    D.L.R. (4th) 687, striking down as an infringement of s. 2(b) the application
    of the
Freedom of Information and Protection of
    Privacy Act
,
R.S.O.
    1990, c. F.31 (FIPPA) to the adjudicative records of thirteen administrative
    tribunals. Those tribunals were subject to the
Statutory
    Powers Procedure Act
and exercised quasi-judicial
    powers. The adjudicative records included: documents by which proceedings were
    commenced, notices of hearing, interlocutory orders made by the tribunal,
    documentary evidence filed with the tribunal, transcripts of evidence and
    reasons for decision. The court held that the open court principle and the
    right to freedom of expression guaranteed by s. 2(b) applied to these
    adjudicative records and that the restrictions imposed by FIPPA on access could
    not be justified as a reasonable limit under s. 1. While the case represents a
    strong statement on the need for openness in proceedings before quasi-judicial
    administrative tribunals, it does not apply here for the same reason I have
    distinguished the cases discussed above: it deals with quasi-judicial
    proceedings and the case before us does not.

[52]

I conclude that the decision maker did not err
    when he found that the
Dagenais/Mentuck
test did not apply to the decision he had to make under s. 35(4).

[53]

However, that does not end the matter. The
Dagenais/Mentuck
test does not
    exhaustively define the application of the s. 2(b) right to freedom of
    expression and freedom of the press in the context of this case. This courts
    decision in
Langenfeld

deals directly with the issue we must
    decide, namely, the application of 2(b) to administrative meetings of police
    services boards.

[54]

Regrettably, neither the decision maker nor the
    Divisional Court had the benefit of the
Langenfeld

decision.

[55]

In
Langenfeld
,
this court allowed an appeal from the
    decision of the Superior Court (2018 ONSC 3447; 414 C.R.R. (2d) 85), striking
    down a security protocol instituted by the Chief of Police requiring any person
    entering Toronto Police Headquarters to pass through a metal detector and
    wanding process designed to uncover dangerous items and weapons. The protocol
    was challenged by an individual who regularly attended police board meetings
    and who asserted that the protocol infringed his s. 2(b) right to freedom of
    expression.

[56]

While the court allowed the appeal on the ground
    that the security protocol was a reasonable limit on the s. 2(b) right to
    freedom of expression, at paras. 18-21, it agreed with and adopted Copeland
    J.s conclusion the right to attend the police services board meeting was
    protected by s. 2(b).

[57]

In the portion of her reasons adopted by this
    court, Copeland J. stated, at paras. 50-52, as follows. The public meeting
    requirement of s. 35 of the
Police Services Act

fosters the objective of public confidence in
    decision making through transparency and accessibility to the public. The
    rationale of openness to foster public confidence is similar to the rationale
    for the open courts principle (it differs only in that the open courts
    principle has a further basis of ensuring that litigants are treated fairly).
    Copeland J. identified the two pillars for the proposition that the right to
    attend court proceedings is protected expression. First, public confidence in
    the courts, an important institution of democratic government, is fostered by
    transparency and accessibility, and second, freedom of expression protects
    listeners as well as speakers, particularly in the context of members of the
    public receiving information about the activities of public institutions. She
    then applied those principles to the right to attend public meetings of police
    services boards:

The
Police
    Services Act
makes public meetings the default for police services boards
    in order to foster public confidence in the decisions of the boards, by way of
    transparency and accessibility. Police services boards perform an
    important democratic function. Thus, I find that the right of members of
    the public to attend public meetings of police services boards is protected by
    s. 2(b) of the
Charter
.

[58]

If Mr. Langenfeld had a s. 2(b)
Charter

right to attend a regular and purely administrative meeting of the
    Toronto Police Services Board, it is difficult to see why, subject to the
    exclusions set out in s. 35(4), the CBC does not enjoy the same right to attend
    the s. 83(17) hearing.

[59]

On the state of the law as it now stands, the
Dagenais/Mentuck
test does not apply to
    this administrative hearing. However, the presumption of an open hearing under
    s. 35(3) of the
Police Services Act
and the s. 2(b)
Charter
right recognized in
Langenfeld
do apply.

[60]

While I reach that conclusion on a correctness standard, I add here
    that even if a reasonableness standard of review applies, I fail to see how a
    decision resulting from an unexplained refusal or failure to consider an
    applicable
Charter
right
    could be considered reasonable.
This courts
    application of s. 2(b) in
Langenfeld
means that the decision ordering
    a closed hearing, through no fault of the decision maker, failed to consider an
    applicable right protected by the
Charter
. That decision cannot
    survive scrutiny under the
Vavilov
test for reasonableness. The
    reasonableness standard requires
an internally coherent
    and rational chain of analysis and that is justified in relation to the facts
    and law that constrain the decision maker;
Vavilov
, at para. 85
. A decision that fails to
    consider an applicable
Charter
right cannot satisfy that standard or
    the principle that the exercise of public power must be justified,
    intelligible and transparent:
Vavilov
, at para. 95.

[61]

For convenience, I repeat here s. 35(4), the
    test the legislature has prescribed for determining when a police services
    board may conduct a closed hearing:

The board may exclude the public from all or
    part of a meeting or hearing if it is of the opinion that,

(a)     matters involving public security may
    be disclosed and, having regard to the circumstances, the desirability of
    avoiding their disclosure in the public interest outweighs the desirability of
    adhering to the principle that proceedings be open to the public; or

(b)     intimate
    financial or personal matters or other matters may be disclosed of such a
    nature, having regard to the circumstances, that the desirability of avoiding
    their disclosure in the interest of any person affected or in the public
    interest outweighs the desirability of adhering to the principle that
    proceedings be open to the public.

[62]

The question the decision maker had to decide
    was whether the desirability of avoiding disclosure or intimate financial or
    personal matters  outweighs the desirability of adhering to the principle that
    proceedings be open to the public. In my view, that statutory test and not the
Dagenais/Mentuck
test governed the exercise of his discretion.
    However, the s. 2(b) right recognized in
Langenfeld

has a direct bearing on the exercise
    of that discretion. Through no fault of his own, the decision maker did not
    consider
Langenfeld.
The principle that proceedings be open to the
    public, recognized by s. 35(4), is considerably fortified by the s. 2(b)
Charter

right recognized by
Langenfeld
in relation to police services board meetings.

[63]

Doré
, at para.
    56, explains that the administrative decision maker is to ask how the
Charter
value at issue will best be protected in view of the statutory objectives and
    that the core of this proportionality exercise will require the decision
    maker to balance the severity of the interference of the
Charter

protection with the statutory objectives. As
Doré
explains, at para. 57, this
    proportionality exercise calls for integrating the spirit of [the
Charter
s

s. 1 reasonable limits scrutiny] into
    judicial review.

[64]

As I will explain when discussing the issue of
    remedy, it will be for the decision maker to conduct that proportionality
    exercise. However, I propose to outline what seem to me to be some of the
    relevant considerations.

[65]

Section 35 reflects three relevant statutory
    objectives. The first objective is congruent with s. 2(b). Meetings of police services
    boards are presumptively open to the public. The second and third relevant
    statutory objectives are the protection of intimate financial or personal
    matters and the public interest in a fair and impartial hearing. Both factors
    require a proportional response, appropriately balancing the severity of
    interfering with the
Charter

right with the achievement of the
    statutory objectives.

[66]

For reasons I have explained, I do not think
    that the
Dagenais/Mentuck
test applies. On the other hand, the measuring of a proportional
    response in the context of an administrative hearing such as this is bound to
    take on a similar hue. As Morgan J. explained in
Toronto
    Star v. AG Ontario
, at para. 92:
The judicial considerations of the
Dagenais/Mentuck
test have tended to arise in the course of criminal prosecutions,
    which raise unique factors that may not apply to the regulatory contexts of
    most administrative tribunals. He added, at para. 93: The particular
    institution and circumstances of the particular case may require the most
    stringent application of the
Dagenais/Mentuck
test or a modified and more relaxed version of the test. There is no
    one size fits all application of the openness principle.

[67]

The administrative decision maker should, as
    required by the
Dagenais/Mentuck
test, consider
reasonably alternative measures
    that could avoid the risk of impeding the statutory objective. Counsel for the decision
    maker argues that it was not open to the decision maker to consider as an
    alternate measure a limited publication ban that would preclude publication of
    the OIPRD report and the names of the officers in order to protect their
    interest and the public interest in a fair and impartial hearing. I disagree
    with that submission. Section 35(4) provides that
[t]he
    board may exclude the public from all
or part of
a meeting
    or hearing (emphasis added). In my view, that language indicates that the Board
    is not required to make an all or nothing order and that where an order less
    restrictive than a total ban will achieve the relevant statutory objectives,
    such an order can and should be made. It was therefore open to the decision
    maker to make an order banning further publication of the OIPRD investigative
    report and/or the names of the Respondent Officers.

[68]

Consideration of the s. 35(4) test in the light
    of s. 2(b) and freedom of the press is a highly contextual exercise and framing
    an appropriate order will very much depend upon the circumstances of each case.
    The decision maker identified the factors favouring an
in camera
hearing. Here are the factors that, in my respectful view, he should consider
    as favouring an open hearing.

[69]

The first contextual feature of the present case
    is that the extension hearing forms one small part of a much larger
    controversy. As the interim injunction judge noted, at paras. 14-15: the
    question of whether there has been systemic racism in policing Indigenous
    cases in Thunder Bay was a matter of keen interest to members of the Thunder
    Bay community, including or perhaps especially its Indigenous citizens. At
    para. 48 of her reasons she observed: Because of the complaint underlying this
    process  the policing practices related to Indigenous citizens in Thunder Bay
    are racist  it is
even
more critical
that every step in the
    complaint procedure be dealt with transparently (emphasis in original). Similarly,
    the Divisional Court observed, at para. 25, the context is important and
there is a very high level of distrust between the First Nations
    community and the TBPS, with many Indigenous peoples in the Thunder Bay area
    believing that the policing practices relating to them are racist.
The racial tension between the Indigenous community and the TBPS,
    the distrust of the Indigenous community towards the TBPS and the current state
    of administration of criminal justice all point strongly to the need for
    openness and transparency.

[70]

The second contextual factor is that, as the decision
    maker noted, rightly or wrongly, the OIPRD investigative report has already
    been made public. The issues surrounding Stacy DeBungees death and the details
    of the OIPRD report on the TBPS investigation have attracted significant media
    interest and were well-known in the Thunder Bay community and beyond.

[71]

The third contextual feature of this case is
    that the TBPS Board and the decision maker have structured the consideration of
    the request for a s. 83(17) extension as if it were a quasi-judicial decision.
    The Board appropriately applied quasi-judicial considerations when it decided
    that there could be a reasonable apprehension of bias if it were to consider
    the extension request in the ordinary course. Rather than appoint someone with
    a background in police services administration as a substitute decision maker,
    the Superior Court appointed a retired judge. The decision maker quite properly
    treated the issue of whether to order a closed hearing as requiring adversarial
    submissions for the interested parties, considered those submissions and then handed
    down a reasoned, judgment-like decision. I do not retreat from the
    characterization of the extension request as an administrative act. However, it
    seems to me that these steps were taken to lend a dimension of quasi-judicial
    legitimacy to the decision. It is arguable that the price to be paid for that
    added element of legitimacy is the kind of openness that quasi-judicial
    proceedings ordinarily attract.

[72]

The fourth contextual factor to consider is the
    interest of transparency in relation to police discipline. The purpose of the
Police Services Act
has been judicially
    described as being to enhance public confidence in policing by ensuring a more
    transparent and independent process for dealing with complaints against the
    police:
Figueiras
,
at para. 41.
Figueiras
, at para. 62, also described the statutory framework as being
    designed to increase the transparency of and public accountability for the way
    in which the conduct of the police is dealt with. In his 2005 Report On The Police
    Complaints System In Ontario, (Toronto: Ministry of the Attorney General of
    Ontario, 2005), the Honourable Patrick J. LeSage emphasized the importance of
    transparency. He suggested, for example, that if the review of a decision not
    to order a hearing is transparent, there will be greater understanding and
    acceptance of the system (at p. 75).

(3)

Should the Complainants fresh evidence motion be
    granted?

[73]

The Complainants move for the introduction of
    fresh evidence. First, they ask the court to admit two reports issued after the
    matter was heard by the Divisional Court: the OIPRDs systemic review Broken
    Trust: Indigenous People and the Thunder Bay Police Service; and Senator
    Murray Sinclairs Ontario Civilian Police Commission report Thunder Bay Police
    Services Board Investigation: Final Report. Second, they ask us to consider a
    revised standard form letter sent by the OIPRD to the Complainants upon
    completion of an investigation. Third, they ask for the admission of two
    newspaper articles, the first reporting an incident of alleged police
    misconduct and the second reporting that the progress of the OIPRD and Sinclair
    reports.

[74]

I would not admit the fresh evidence as I
    believe it to be unnecessary for the resolution of this appeal. As I have
    pointed out, both the interim injunction judge and the Divisional Court were
    fully aware of the allegations of racism and the tension between the TBPS and
    the Indigenous community. While the reports explore those issues in
    considerable detail, I do not think we require that level of detail to decide
    this appeal.

[75]

The revised standard form letter and the
    newspaper articles have no relevance to the issues we must decide.

[76]

Accordingly, I would dismiss the fresh evidence
    motion.

(4)

If the appeal is allowed, what is the
    appropriate remedy?

[77]

This brings me to the issue of the appropriate
    remedy. Ordinarily, where a court grants judicial review and quashes a
    decision, the appropriate remedy is to remit the matter to the decision maker
    for reconsideration in the light of the courts decision:
Oakwood Development Ltd. v. St-François Xavier
,
[1985] 2 S.C.R. 164, at p. 176. There
    is an exception to that rule where remitting the matter would be pointless as
    there is only one possible outcome in view of the courts decision:
Giguère v. Chambre des notaires du Québec
,
2004 SCC 1, [2004] 1 S.C.R. 3, at
    para. 66;
Gehl v. Canada (Attorney General)
, 2017 ONCA 319, 138 O.R. (3d) 52, at para. 54;
Vavilov
, at
    para. 142.

[78]

The respondents and the decision maker submit
    that if we allow the appeal, the matter should be remitted to the decision
    maker. The Complainants submit that the reasons for an open hearing are so
    strong that we should simply make the order the decision maker should have
    made.

[79]

This appeal deals with a preliminary issue and
    the open hearing issue has further stalled the very slow pace of the OIPRD
    recommendation for disciplinary proceedings. In these circumstances, I am
    tempted do as the Complainants ask: see
Vavilov
, at para. 142, holding
    that urgency of providing a resolution to the dispute is a relevant factor to
    consider.

[80]

In the end, however, I am not persuaded that
    this is one of those exceptional cases where the court should put itself in the
    shoes of the decision maker. My view of the matter largely turns on the
Langenfeld
decision that was not
    available and therefore not considered by the decision maker.
Vavilov
holds, at para. 142, that a factor to consider on this issue is whether the
    administrative decision maker had a genuine opportunity to weigh in on the
    issue in question. The decision maker should be permitted to take another look
    at the matter with the benefit of
Langenfeld
. Accordingly, I would
    remit the matter to the decision maker for reconsideration in light of these
    reasons.

G.

DISPOSITION

[81]

For these reasons, I would allow the appeal from
    the Divisional Courts judgment and set aside its order dismissing the
    application for judicial review. I would quash the decision and remit the
    matter to him for reconsideration in light of these reasons.

[82]

No party seeks costs of the appeal.

Released: December 27, 2019

GRS

Robert
    J. Sharpe J.A.

I
    agree G.R. Strathy C.J.O.

I
    agree Doherty J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Cormier v. 1772887 Ontario Limited (St. Joseph
    Communications), 2019 ONCA 965

DATE: 20191206

DOCKET: C66596

Feldman, Fairburn and Jamal JJ.A.

BETWEEN

Kelly Cormier

Plaintiff (Respondent)

and

1772887 Ontario Limited carrying on business as St.
    Joseph Communications

Defendant (Appellant)

Ian R. Dick, for the appellant

Christopher Perri and Genevieve Cantin, for the
    respondent

Heard: October 21, 2019

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice, dated January 24, 2019, with reasons reported at
    2019 ONSC 587, 53 C.C.E.L. (4th) 60.

REASONS FOR DECISION

A.

overview

[1]

This is an appeal from summary judgment arising from a wrongful
    dismissal claim.

[2]

The respondent worked for the appellant as a wardrobe stylist and later
    as a fashion studio manager from 1994 until she was dismissed without cause in
    2017. The motion judge determined that the respondent acted in the capacity of
    a dependent contractor between 1994 to 2004, after which she became the
    appellants employee. The respondent brought an action seeking damages for
    wrongful dismissal. She also sought to be reimbursed for amounts that she said
    had been improperly deducted from her wages while she was still employed.

[3]

The motion judge found that the termination clause in the employment
    agreement was void because it attempted to contract out of the minimum
    standards provided for under s. 5 of the
Employment Standards Act
,
2000
,
    S.O. 2000, c. 41 (
ESA
). He granted summary judgment in favour of the
    respondent and awarded her 21 months pay in lieu of notice, 10 percent of her base
    salary for loss of benefits, and $2,373 owing under her cellphone allowance,
    less any amounts that had been paid to date. The motion judge also held that
    the appellant had made unlawful deductions from the respondents wages
    beginning in 2016, contrary to s. 13 of the
ESA
, and awarded her
    compensation for the lost wages.

[4]

The summary judgment is appealed on several
    grounds. For the following reasons, the appeal is dismissed.

B.

analysis

(1)

Was this an appropriate case for summary judgment?

[5]

First, the appellant suggests that this was not
    an appropriate case for summary judgment because: there were material facts in
    issue; credibility findings had to be made; the respondent had not put her best
    foot forward by producing necessary documents, such as tax returns, to show her
    dependent contractor status; and the respondent did not plead that she was a
    dependent contractor between 1994 to 2004.

[6]

In determining that this was an appropriate
    matter for summary judgment, the motion judge specifically referred to and
    applied
Hryniak v. Mauldin
,
2014 SCC 7, [2014] 1 S.C.R. 87. He concluded that there was no
    genuine issue requiring a trial and that this case was appropriate for summary
    judgment. We see no error in that determination.

[7]

As the motion judge noted, there were really
    only two factual issues in dispute: how to correctly characterize the parties employment
    relationship between 1994 and 2004; and whether the respondent failed to mitigate
    her damages. Those issues turned largely upon non-disputed facts. The rest of
    the issues were largely ones focused upon contractual and statutory
    interpretation.

[8]

The motion judge turned his mind to the question
    of credibility and found that there were no significant issues of credibility
    to be determined as few facts were even in dispute. Moreover, he specifically
    noted that there had been cross-examinations conducted with respect to all of
    the factual issues and it appeared that the parties had done their best to put
    forward all records and documents. As such, the quality and quantity of the
    record would not appreciably change at a trial. We see no error in those
    conclusions, all of which are supported by the factual record in this case.

[9]

While the appellant claims that the respondent
    failed to put her best foot forward as it relates to documents supporting the
    issue of her employment status and her mitigation efforts, we disagree. During
    her cross-examination relating to outstanding documents for the period of 1994
    to 2004, she gave explanations as to why those documents were missing. She also
    swore two affidavits about her efforts to mitigate her damages, which were
    subject to cross-examination. The appellant did not ask for further documents
    related to the respondents mitigation efforts, apart from a request for her
    2017 tax documents, which the respondent provided. A trial would not have
    improved the factual record on these points. In any case, the burden was on the
    appellant to demonstrate that the respondent had not mitigated her damages:
Red
    Deer College v. Michaels
,
[1976] 2 S.C.R. 324
,
at p. 332;
Belton v. Liberty Insurance
    Co. of Canada
(2004), 72 O.R. (3d) 81 (C.A.), at paras. 32-34.

[10]

As for the pleadings argument, it is made for
    the first time on appeal. While the respondent did not specifically plead that
    she was a dependent contractor from 1994 to 2004, the pleadings were clear
    that the respondent was claiming that she had been employed since 1994 and was
    entitled to damages arising from that point in time. While the legal characterization
    of that employment relationship was not described by its precise name, the
    pleadings were clear as to what was being claimed.
Both pleadings put in
    issue the nature of the relationship between the parties between 1994 and 2004.
    No one was taken by surprise. The parties had the opportunity to lead evidence
    on the degree of economic exclusivity in the work relationship and made written
    submissions that squarely addressed whether the respondent was a dependent
    contractor during that period.
Accordingly, we would not give
    effect to this submission.

(2)

Did the motion judge err by finding that the respondent was a
    dependent contractor between 1994 and 2004?

[11]

The appellant also claims that the motion judge
    erred in concluding that the respondent was a dependent contractor from 1994 to
    2004. The appellant argues that the motion judge erred by failing to consider
    all relevant factors. Specifically, the appellant says that the motion judge
    erred by focusing upon the exclusivity of the parties working relationship,
    thereby failing to focus upon whether the respondent was economically dependent
    upon the appellant.

[12]

We see no error in the motion judges approach
    to this issue. He referred to all of the pertinent authorities. Among other
    authorities, the motion judge referred to both
McKee v. Reids
    Heritage Homes Ltd.
,
2009
    ONCA 916,

315 D.L.R. (4th) 129,

and
Keenan v. Canac
    Kitchens Ltd.
,
2016 ONCA
    79, 29 C.C.E.L. (4th) 33
.
The motion judge adverted to the correct legal
    test for determining dependent contractor status.

[13]

We do not agree that the motion judge ignored
    whether the respondent was economically dependent upon the appellant. Indeed, relying
    upon the test set out in
McKee
, the motion
    judge specifically listed that consideration as one of the factors that
    differentiate a dependent from an independent contractor. His factual
    conclusion that, within a short time of engagement, the respondent worked exclusively
    for [the appellant] and, practically speaking, [the appellant] was her boss
    was telling. Read contextually, the motion judge clearly concluded that the
    respondent was not only in an exclusive relationship with the appellant, but
    an economically dependent one. We would defer to the motion judges ultimate
    conclusion that [w]hat stands out is that [the respondent] had a twenty-three
    [year] solid workplace relationship with [the appellant]. We would not give
    effect to this ground of appeal.

(3)

Did the motion judge err by finding that the termination clause was
    unenforceable?

[14]

The appellant also suggests that the motion judge erred
    in finding that the termination clause was unenforceable because it purported
    to contract out of the requirements of the
ESA
.
While the appellant acknowledges that an
    employer cannot contract out of the minimum standards provided for under the
ESA

unless that contracting out provides a greater benefit for
    the employee than that provided for under the
ESA
,
the appellant says that the motion
    judge erred in concluding that there had been a contracting out.

[15]

This is a matter of contractual interpretation to which the standard of
    review requiring a palpable and overriding error applies:
Sattva Capital
    Corp. v. Creston Moly Corp.
,
2014 SCC 53, [2014] 2 S.C.R. 633,

at
    para. 50. We would not give effect to this ground of appeal.

[16]

Section 60(1)(c) of the
ESA

says that during a notice
    period, the employer shall continue to make whatever benefit plan
    contributions would be required to be made in order to maintain the employees
    benefits under the plan until the end of the notice period. Accordingly, the
ESA

requires that an employer continue all benefits during the applicable
    notice period. Yet the impugned clause in this case purported to contract out
    of two things: (a) short-term and long-term disability benefits during the
    notice period; and (b) other benefits absent the consent of the Companys
    insurers:

Termination without Cause

(b) In addition to the foregoing and
subject to the consent
    of the Companys insurers
, you will be entitled to continue to receive
    Company benefits (
excluding STD and LTD benefits
) during the notice
    period specified above. [Emphasis added.]

[17]

We find no palpable and overriding error in the motion judges
    interpretation of the impugned clause within the employment contract. He
    concluded that it allowed the employer upon termination to provide [the
    respondent] with only some of the employee benefits that she received before
    termination and even then, only subject to the consent of [the appellants]
    insurers. Clearly, the long and short-term disability benefits were excluded
    and other benefits would be excluded unless the insurer consented to giving
    effect to those benefits. This constituted a contracting out of and fell short
    of the s. 60(1)
ESA

benefit protections. As such, in accordance
    with this courts decision in
Wood v. Fred Deeley Imports Ltd.
,
2017 ONCA 158, 134 O.R. (3d) 481, at
    para. 46,
the
termination clause was unenforceable and
    the motion judge was correct to apply the common law to determine the
    appropriate period of notice.

(4)

Did the motion judge err in calculating the
    damages for wrongful dismissal?

[18]

The appellant also submits that the motion judge
    erred in calculating the amount of damages arising from the duration of
    employment (including the stage when the respondent worked as a dependent
    contractor) and the amount of damages for lost benefits. This was a matter
    within the discretion of the motion judge.

[19]

The appellant argues that the respondent was
    required to provide contributions toward her benefits and, therefore, should
    not have benefited from the typical calculation that provides for 10 percent of
    base salary for loss of benefits. We would not interfere with the conclusion
    reached by the motion judge. While there may be cases where an employees
    contribution to benefits could reduce the typical percentage of base salary
    awarded in lieu of benefits during the notice period, this is not one of those
    cases. There was no evidence to support the claim that the amount of damages in
    lieu of benefits should be reduced to five percent. The real question was what
    the appellant paid for the benefits. That information lay exclusively within
    their knowledge and no evidence was led on this point. Accordingly, we would
    not interfere with the motion judges calculation.

[20]

The appellant also challenges the 21 months of
    notice, claiming that it was unreasonable and that the motion judge wrongly
    thought that it had conceded the point. The motion judge said that, although
    the appellant asked for a lesser notice period, that request depended in the
    main on the enforcement of the termination clause or on defining [the respondents]
    years of employment as commencing with an original hire date of June 7, 2004. If
    the respondent was found to have had a longer employment relationship, though,
    the motion judge noted that the appellant actually suggested that the
    appropriate notice period was around twenty to twenty-one months.

[21]

We agree with the motion judges
    characterization of the appellants position. In the appellants written
    submissions on the motion, it accepted that based upon a hire date of 1994,
    the reasonable notice period would be 21.6 months. In any event, in the
    circumstances of this case, and considering the 23-year work history, 21 months
    of common law notice was squarely within a reasonable range.

[22]

The appellant also points out that there is a
    clause in the employment contract that says, Your original hire date of June
    7, 2004 will be recognized as your start date for the calculation of your years
    of service, vacation entitlement and heath care benefits under this agreement.
    The appellant argues that this clause means that the length of the reasonable
    notice period at common law should not be calculated with regard to the period
    of time prior to June 7, 2004, when the respondent acted as a dependent
    contractor. We disagree. Years of service may be used for any number of
    purposes that do not relate to an employee's rights on termination. If an
    employer wishes to contract out of the common law reasonable notice period, the
    contract must clearly specify another period of notice:
Wood
, at para.
    15, citing
Machtinger v. HOJ Industries Ltd.
,
    [1992] 1 S.C.R. 986, at p. 998. This contract did not contain the type of clear
    language that would be needed to contract out of that notice.

(5)

Did the motion judge err in finding that the appellant had made
    wrongful deductions from the respondents wages, contrary to s. 13 of the
ESA
?

[23]

There is also an issue about whether the motion
    judge was correct in concluding that there was a deduction from the
    respondents wages that offended s. 13 of the
ESA
.

[24]

In June 2016, the appellant advised the
    respondent that as part of a cost-saving measure, all employees would be
    required to take two weeks of unpaid vacation between July 1, 2016 and June 30,
    2017. Starting on July 1, 2016 until the end of her employment, the appellant held
    back $125.54 from the respondents biweekly pay. This was all done on a
    unilateral basis. No amendment was made to the employment contract. At the time
    of termination, a total of $3,264 had been deducted from the respondents pay.

[25]

The motion judge concluded that the unpaid
    vacation plan did not comply with the
ESA

because it was implemented by deductions from wages, and s. 13 of
    the [
ESA
] prohibits an employer [from] making
    deductions from wages unless, among other things, the deductions are authorized
    by court order or by the employees written authorization. Section 13(1)
    reads:

13(1) An employer shall not withhold wages
    payable to an employee,
make a deduction from an employees wages
or
    cause the employee to return his or her wages to the employer unless authorized
    to do so under this section. [Emphasis added.]

[26]

As there was no authorization in this case, the
    motion judge found that s. 13 of the
ESA

had been offended and damages to replace the deducted wages should
    be granted.

[27]

The appellant argues that the motion judge erred
    in concluding that the wages had been deducted as opposed to reduced. The appellant
    argues that s. 13(1) is designed to prevent deductions from earned wages, but
    not a reduction of wages. According to the appellant, in effect, the appellant
    imposed a two-week layoff on all of its employees with a corresponding
    reduction in wages that were to be paid in the coming year. The
ESA

is said not to apply to this kind of situation. Although
    such a reduction could amount to a material change in the employment terms and,
    theoretically, constitute a constructive dismissal (a claim that the appellant
    presumably would have opposed), the respondent did not claim constructive
    dismissal. As a result, she was not owed the money because the lesser amount
    did not constitute a deduction from her wages as captured by s. 13(1) of the
ESA
.

[28]

In all of the circumstances here, we see no
    error in the motion judges conclusion that the appellants conduct breached s.
    13(1) of the
ESA
.
The appellant acknowledges that the unpaid vacation leave was
    tantamount to a temporary lay-off, the cost of which was spread out over
    multiple pay periods. The program was for all intents and purposes funded
    through periodic deductions from the employees wages.

[29]

Any suggestion that the respondent effectively
    waived her contractual rights does not answer the breach of s. 13(1). For a
    binding waiver to apply, the respondent would have had to authorize the
    reductions in writing in accordance with ss. 13(3) and (5) of the
ESA
.

(6)

Did the motion judge err in awarding the
    respondent damages to compensate for the loss of her cell phone allowance?

[30]

The appellant maintains that the motion judge
    erred when he awarded the respondent $2,712 to compensate her for the loss of
    her cell phone allowance over the notice period. She received $113 per month to
    cover the cost of a cell phone. The appellant argues that no damages are owed
    for the cell phone because the payments were intended as nothing more than
    reimbursement for the respondents business expenses, which she was no longer
    required to incur after termination.

[31]

We note that the employment contract refers to
    the appellant as being required to reimburse the respondent for all expenses
    actually and properly incurred in the performance of her services under the
    employment agreement. Under that agreement, acceptable expenses included cell
    phone expenses.

[32]

The point of a damages award for wrongful
    dismissal is to compensate for all losses arising from the employers breach
    of contract in failing to give proper notice, and to place the employee in
    the same financial position he or she would have been in had such notice been
    given:
Paquette v. TeraGo Networks Inc.
, 2016
    ONCA 618, 352 O.A.C. 1, at para. 16 (citation omitted).

[33]

It was open to the motion judge to arrive at the
    conclusion that, while the respondent was being reimbursed for her cell phone
    expenses, she personally benefited from the use of the cell phone. Accordingly,
    it was open to the motion judge to award damages on that basis. We see no error
    in his approach.

C.

disposition

[34]

The appeal is dismissed.

[35]

On the agreement of the parties, we award costs
    to the respondent in the amount of $15,000, inclusive of disbursements and applicable
    taxes.

K. Feldman J.A.

Fairburn J.A.

M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: CTT Pharmaceutical Holdings, Inc. v. Rapid Dose
    Therapeutics Inc., 2019 ONCA 1018

DATE: 20191224

DOCKET: C66767

Lauwers, Paciocco and Fairburn JJ.A.

BETWEEN

CTT Pharmaceutical Holdings, Inc.

Plaintiff (Appellant)

and

Rapid Dose Therapeutics Inc.

Defendant (Respondent)

Robert Trifts, for the appellant

Brendan Morrison and Derek Knoke, for the respondent

Heard: November 25, 2019

On appeal from the order of Justice Edward M. Morgan of
    the Superior Court of Justice dated March 4, 2019, with reasons reported at 2019
    ONSC 1444, 163 C.P.R. (4th) 463.

REASONS FOR
    DECISION

A.

overview

[1]

This is an appeal from a motion for summary judgment dismissing CTT Pharmaceutical
    Holdings Inc.s (CTT) claim against Rapid Dose Therapeutics Inc. (RDT) for
    breach of confidence.

[2]

In 2017, CTT and RDT entered into an agreement with the objective of jointly
    producing and marketing cannabis-infused rapid release oral dissolvable strips
    to take advantage of the impending legalization of cannabis in Canada.

[3]

After CTT terminated that agreement, RDT contacted a professor at
    McMaster University and requested that he develop a formulation for a
    sublingual thin film drug delivery system on behalf of RDT. Around the same
    time, RDT entered into an agreement with New Jersey-based HED International
    Inc. (HED) and acquired the exclusive rights to distribute HEDs machines,
    which could be modified to produce sublingual thin film strips, to cannabis
    growers and licensed producers in Canada.

[4]

CTT sued RDT, alleging that it misused confidential information that CTT
    supplied to it in confidence to CTTs detriment. The motion judge dismissed
    CTTs claim, finding that CTT had failed to demonstrate that it had suffered
    any detriment as a result of RDTs actions.

[5]

CTT appeals from the motion judges determination. For the reasons that
    follow, the appeal is dismissed.

B.

background

(1)

The Asset Purchase
    and Sale Agreement

[6]

On May 29, 2017, CTT and RDT (then CTC Pharma International Ltd.)
    entered into an Asset Purchase and Sale Agreement (APS) under which CTT agreed
    to sell two patents for oral dissolvable strips in exchange for shares in RDT. The
    APS included a due diligence period. During its investigations, RDT became
    concerned with the effectiveness of CTTs patented technology, particularly as
    it related to its ability to achieve the objective of rapidly providing the sublingual
    delivery of cannabis extracts. It turned out that the only clinical study involving
    CTTs technology had just 13 participants, took place at an unidentified
    university in Spain, and showed a very slow rate of absorption.

[7]

CTTs CEO, Dr. Pankaj Modi, took offence to RDT inquiring into the
    effectiveness of his patented technology, as expressed in an email he sent to
    RDT on October 8, 2017:

I am just totally unwilling to move forward with RDT. I am sure
    you will find much better IPs and doctor scientist better than me who is much
    more capable of proving Sublingual vs Stomach absorption etc. I am just NOT in
    a position to do any clinicals and prove it to world and YOU in this life time
    that it is flash dose etc. It is a[n] impossible task.

I am unwilling to work with you guys looking at the current
    conditions and situation as I dont like to work with management who doesnt
    have faith and trust and respect in the technology they are planning to acquire.

[8]

Dr. Modi officially terminated CTTs relationship with RDT on October
    31, 2017.

(2)

The events following
    the termination of the APS

[9]

In November 2017, RDT met with Dr. Alex Adronov, a chemistry professor
    from McMaster University. This ultimately led to a contract between RDT, Dr.
    Adronov, and McMaster University to develop a proprietary formulation for
    sublingual thin film drug delivery technology. The result was called
    QuickStrip.

[10]

In addition, on November 15, 2017, RDT entered into a distribution
    agreement with HED, which manufactures tape casting machines. RDT and HED
    agreed that RDT would be HEDs exclusive distributor of HEDs tape casting
    machines for cannabis-related accounts in Canada.

(3)

CTTs claims against
    RDT

[11]

In September 2018, CTT brought a claim against RDT alleging breach of
    confidence and tortious interference with economic relations. RDT was
    successful in obtaining security for costs because, among other things, CTTs
    operations had never generated cash flow, there was no value assigned to CTTs patents,
    and the patents had never been commercialized.

[12]

RDT brought a motion for summary judgment and succeeded. This is an
    appeal from that judgment.

[13]

The motion judge determined that the only claim that was conceivably
    viable was the breach of confidence claim. Although CTT and RDT were bound by
    a contract for about five months, CTT did not seek damages for breach of
    contract. Nor did it seek damages for patent infringement. Of the claims that
    were advanced, the motion judge determined that the tortious interference with
    economic interests claim could not possibly succeed given that there was no contractual
    relationship with an identifiable third party with which RDT had interfered.
    There is no challenge to that finding in the appellants written or oral
    submissions.

[14]

As it related to the alleged breach of confidence/misappropriation of
    confidential material claim, the statement of claim alleged that there were multiple
    pieces of information that were disclosed to RDT during the due diligence
    period and that were later inappropriately used by RDT to CTTs detriment. CTT
    advanced only three of those claims in response to the summary judgment motion.
    The motion judge rejected all three.

C.

cttS position on appeal

[15]

In this court, CTT confined its submissions to one alleged breach of
    confidence, specifically the one related to HED. That allegation is set out at
    para. 13(b) of the statement of claim:

In particular, the plaintiff, through Dr. Modi disclosed the
    following to the defendant, through Messrs. Upsdell and Sanders:

(b) the
identity of the plaintiffs proposed contract
    manufacturer
of film casting machines in New Jersey, Hed International (and
    travelled with the representatives of RDT to New Jersey to personally introduce
    them). [Emphasis added.]

[16]

CTT says that on June 9, 2017, it provided RDT with a list of names and
    contact information for four potential manufacturers of the equipment necessary
    to make the dissolvable strips. There is no dispute that HED was the third suggested
    manufacturer on that list. CTT told RDT to follow the list in the order
    provided.

[17]

Although RDT acknowledges receipt of the email containing the list, Mr. Jason
    Lewis, who is the Senior Vice President of Business Development at RDT, swore
    an affidavit and confirmed on cross-examination that he already knew about the
    existence of HED through an internet search he had conducted prior to receiving
    the email that contained the list. Representatives of CTT and RDT attended at
    HED and determined that HED did not have a machine capable of making CTTs thin
    film technology without modifications.

[18]

CTT argues that the identity of HED as its proposed equipment manufacturer
    was confidential information that RDT gained during the due diligence process and
    that RDT misused it in two ways.

[19]

First, by entering into the distribution agreement with HED, RDT used
    confidential information obtained from CTT while the APS was still in place. As
    evidence of this fact, CTT points to a September 15, 2017 agency agreement
    between HED and RDT, entered into while the due diligence period was still
    operative. CTT says that this shows that RDT went behind its back while the APS
    was still live. RDT says it did nothing of the sort, claiming that the agency
    agreement was entered into in contemplation of its ongoing agreement with CTT.
    By November 15, 2017, though, when the distribution agreement was entered into,
    it had become an exclusive agreement because the APS with CTT had ended at Dr.
    Modis insistence.

[20]

Second, CTT argues that RDT might have provided the information about HEDs
    machines to Dr. Adronov. In particular, CTT argues that [t]he use of the
    design of HEDs film casting equipment as a parameter to inform the design of
    Dr. Adronovs thin-film cannabis wafers  would constitute a misuse of
    confidential information provided by CTT to RDT to CTTs detriment.

[21]

CTT takes aim at the motion judges finding as it relates to HED. The
    impugned aspects of the judgment follow:

Finally, the Plaintiff claims that the Defendant misused
    confidential information by entering into a distribution agreement with HED
    International Inc. for tape casting machines. These devices supposedly allow
    for oral thin film to be imbued with chemical products such as cannabis
    extract, and the agreement permitted the Defendant to make them available to
    licensed Canadian producers of cannabis products.

The Defendants position is that HED  is well-known for this
    technology and that there is nothing proprietary about the Plaintiffs
    knowledge of this fact and thus nothing confidential about the passing on of
    this knowledge.
Whether or not that is the case, the Defendants affiant
    deposed that the HED  machines turned out not to be effective for
    cannabis-imbued oral strips and so the distributorship agreement never got off
    the ground. The Defendant thus incurred no gain and the Plaintiff suffered no
    loss. There is no evidence in the record to suggest anything to the contrary.

The courts have observed that for a breach of confidence
    claim to succeed there must be actual evidence of financial loss. The goal of
    the remedy in this type of action is to restore the Plaintiff to the position
    it was in prior to the breach. Failure to prove an actual loss is failure to prove
    the grounds for a remedy
.

The state of the record before me is such that the Plaintiff
    cannot possibly succeed on any of its claims. The one cause of action which is
    conceivably viable under the circumstances, breach of confidence, has no
    evidentiary foundation.
[Emphasis added.]

[22]

CTT argues that the motion judge erred in fact when he concluded that
    the distributorship agreement never got off the ground and erred in fact and
    law when he determined that it did not suffer a detriment as a result of RDTs
    breach of confidence.

D.

analysis

(1)

The
    motion judge did not misapprehend the evidence on the distribution agreement
    between RDT and HED

[23]

We do not agree that the motion judge erred in fact when he said that,
    regardless of whether RDT had misused confidential information, the machines
    turned out not to be effective for cannabis-imbued oral strips and so the
    distributorship agreement never got off the ground. In this portion of the
    judgment, the motion judge was merely summarizing RDTs position, as captured
    by his reference to what the Defendants affiant deposed about HED. Clearly,
    the motion judge knew that the distributorship agreement got off the ground,
    in the sense that he acknowledged that it had been entered into.

[24]

RDTs position about the distributorship agreement not getting off the
    ground related to the fact that, while the agreement was in place, nothing had
    happened under it. Not a single machine had been ordered and, indeed, another manufacturer
    from outside of North America was manufacturing RDTs products. We understand
    RDTs position  and the motion judges summary of that position  as being
    rooted in the fact that, as of the date of the motion, nothing had happened
    under that agreement.

(2)

RDT did not misuse
    confidential information to CTTs detriment

[25]

There are two elements to this claim. The first relates to CTTs claim
    that RDT shared CTTs confidential information with Dr Adronov. CTT provided no
    direct evidence to support this claim.

[26]

CTT argues that the motion judge erred in failing to consider whether an
    adverse inference should be drawn from RDT not leading the evidence of Dr.
    Adronov. CTT argues that what was used in the development of QuickStrip,
    created through the partnership of RDT and Dr. Adronov, is a contested fact.
    According to CTT, RDT should have elicited evidence from Dr. Adronov to respond
    to the allegation that RDT had misused confidential information in developing
    QuickStrip. The motion judge is said to have erred by failing to consider drawing
    an adverse inference from RDTs failure to elicit that evidence.

[27]

There was no error in the circumstances. CTT has not identified any
    confidential information that could have been misused by Dr. Adronov, apart
    from the fact that HED could manufacture machines capable of producing oral
    strips with modifications. RDTs evidence was that Dr. Adronovs design was
    used to inform HEDs modifications and not the other way around. Importantly,
    HEDs machines were not instrumental to RDTs manufacturing process, since it
    does not use the HED machines in its own production.

[28]

In addition, the claim was not directed at Dr. Adronov or the university
    where he worked. There was no suggestion that Dr. Adronov or McMaster
    University used any confidential information when they created QuickStrip. Nor
    was the statement of claim for patent infringement.

[29]

This leaves the question of whether the motion judge erred in fact and
    law when he determined that CTT had not suffered a detriment as a result of the
    potential misuse of the confidential information. We say potential misuse
    because the motion judge did not come to a factual determination on whether the
    information was confidential at all. The motion judge found it unnecessary to
    resolve that matter. Instead, he went directly to the question of detriment.

[30]

Staying within the parameters of what the motion judge decided, while we
    find error in the motion judges approach  specifically, his statement that
    detriment can only arise from financial loss  we nonetheless conclude that CTT
    suffered no detriment in this case.

[31]

As Rosenberg J.A. held in
Lysko v. Braley
(2006), 79 O.R. (3d)
    721 (C.A.), at para. 17, there are three elements to a claim for breach of confidence:

1.

that the information conveyed was confidential,

2.

that the information was conveyed in confidence, and

3.

that the confidential information was misused by the party to whom it
    was communicated to the detriment of the confider.

See also:
Lac Minerals Ltd. v. International Corona
    Resources Ltd.
, [1989] 2 S.C.R. 574, at pp. 608, 635-36 and
Cadbury
    Schweppes Inc. v. FBI Foods Ltd.
, [1999] 1 S.C.R. 142, at paras. 52-54.

[32]

Accordingly, as the final consideration in a breach of confidence claim,
    the plaintiff must prove detriment in order to establish liability:
The
    Catalyst Capital Group Inc. v. VimpelCom Ltd.
,
2019 ONCA 354, 145
    O.R. (3d) 759, at para. 41, leave to appeal refd, [2019] S.C.C.A. No. 284. The
    concept of detriment is not tied to only financial loss, but is afforded a
    broad definition, including emotional or psychological distress, loss of
    bargaining advantage, and loss of potential profits:
Catalyst
, at
    para. 41;
Lysko
,
at paras. 18, 20;
Rodaro v. Royal Bank of
    Canada

(2002), 59 O.R. (3d) 74 (C.A.), at paras. 56-57; and
Cadbury
,
at paras. 52-53, 64.

[33]

CTT argues that the motion judge failed to appreciate that, with
    modifications, the HED machines would be functional for the purpose of
    producing cannabis-infused strips. This is not a controversial proposal.
    Indeed, Mr. Lewis (on behalf of RDT) accepted that the modifications [required
    to produce Dr. Adronovs formula] were accepted and incorporated by HED for
    very specific use. He also acknowledged that the exclusive distributorship
    agreement between HED and RDT remains in place.

[34]

CTT argues that the motion judge erred by failing to take into account
    the fact that RDTs actions left them unable to purchase the necessary
    equipment directly from HED. CTT claims that it was delayed as a result  or set
    back from the pole position  in bringing its product to market while RDT was
    able to get a head start.

[35]

While we agree that the motion judge should have considered this
    argument, essentially that CTT lost a competitive advantage, as part of whether
    there had been a detriment, granting summary judgment against CTT was still
    appropriate on the facts of this case.

[36]

As RDT points out, CTT was in no position to begin manufacturing its
    products in November 2017. One of the directors of CTT, Dr. Allen Greenspoon,
    swore an affidavit saying that, to that date, CTT had not found another
    potential supplier of machines, something that was effectively delaying its
    commercialization efforts. In cross-examination, though, Dr. Greenspoon
    admitted that CTT was not ready to move forward with manufacturing at the time
    that the exclusive distributorship agreement was entered into. Moreover, Dr.
    Modi himself had identified a number of other equipment suppliers in his June
    9, 2017 email. Yet, as Dr. Greenspoon confirmed, CTT didnt need a machine to
    manufacture its products at the time.

[37]

CTT was facing enormous hurdles in getting its product to market.
    According to its Quarterly Report, while CTT had obtained patents, it was
    making no products, ha[d] no suppliers, ha[d] no distribution chains, ha[d] no
    operation, ha[d] no customers and ha[d] no cash flow, even as late as June of
    2018.  Indeed, it had no employees and no commercial activity whatsoever. These
    were some of the findings that persuaded a master to award security for costs
    against CTT:
CTT Pharmaceutical Holdings v. Rapid Dose Therapeutics
,
2019 ONSC 731,

at paras. 4, 7
.

[38]

Even at the time that Dr. Greenspoon was giving evidence on the motion under
    appeal, he acknowledged that CTT was still not ready to manufacture its
    products, although it was getting close. Accordingly, even if CTT had been free
    to order machines directly from HED, (though it was and is free to buy a HED
    machine from RDT), nothing would have been different. There is therefore no
    detriment to CTT that is attributable to RDTs actions.

[39]

For its part, RDT has received no independent benefit from the
    distribution agreement. RDT has not sold a single machine under the agreement.
    Nor does RDT use HED machines in its own production of its sublingual strips.

[40]

For these reasons, the motion judge was correct to dismiss CTTs claim
    for breach of confidence. As a result, the motion judge was not required to
    consider CTTs request for other remedies, such as declaratory or injunctive
    relief. Contrary to CTTs position on appeal, a remedy must be preceded by a
    finding of liability. Having failed to establish that RDT misused confidential
    information that was supplied to it in confidence to CTTs detriment, no relief
    was in order:
Catalyst,
at paras. 40-41.

(3)

Other arguments

[41]

Although it was not pressed in oral submissions, CTT also claims that
    the motion judge erred by relying on hearsay evidence to conclude that CTTs technology
    was not commercially viable. This is said to have coloured his approach to
    the issues.

[42]

CTT maintains that Dr. Modi provided the only admissible evidence
    relating to CTTs technology and the products efficacy. There is no basis to
    dispute the results of the clinical study of 13 individuals from the
    unidentified university in Spain.

[43]

Although the motion judge noted that the patents were not commercially
    viable, that was a finding that was well-rooted in the record. Indeed, it
    partly came from Dr. Modis admission in his October 8, 2017 email, where he
    stated that he was not in a position to prove the efficacy of his product. He
    simply wanted RDT to trust him. We noted that the one clinical study that was
    provided showed that peak absorption only took place after 3 hours, far from
    the rapid absorption claimed.

[44]

As well, the motion judge had available to him both the determinations
    made on the security for costs motion, as well as CTTs own financial
    disclosure under securities laws. Those disclosures showed CTT had no customers
    and no distribution channels.

[45]

The other arguments have no merit.

E.

disposition

[46]

The appeal is dismissed. Costs are awarded to the respondent in the
    agreed upon amount of $20,000, H.S.T. and disbursements included.

P. Lauwers J.A.

David M. Paciocco J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Curtis v. Pinto, 2019 ONCA 982

DATE: 20191212

DOCKET: C67234

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

BETWEEN

Gary Curtis

Plaintiff (Appellant)

and

Andrew Pinto and Pinto Wray James LLP

Defendants (Respondents)

Gary Curtis, acting in person

Tim Gleason and Adrienne Lei, for the respondents

Heard and released orally: December 10, 2019

On appeal from the order of Justice Grant R. Dow of the Superior
    Court of Justice, dated June 26, 2019, with reasons reported at 2019 ONSC 3635.

REASONS FOR DECISION

[1]

The appellant, Gary Curtis, appeals the order of the motion judge,
    dismissing his action against the respondents under r. 21.01(3)(d) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg.
    194,
as an abuse of process and ordering costs against the
    appellant in the amount of $28,276.43.

[2]

The motion judge did so on the basis that the issue in the appellants action
     whether the respondents, who had represented the appellant in an unjust
    dismissal case under the
Canada Labour Code
, R.S.C. 1985, c. L-2,
before Adjudicator Monteith had
    failed to follow his instructions, misled and deceived him, and/or failed to
    provide competent legal services  had been specifically raised by the
    appellant before and determined by Adjudicator Monteith. The Federal Court
    dismissed the appellants application for judicial review of that decision:
Curtis
    v. Bank of Nova Scotia
, 2017 FC 380.

[3]

Adjudicator Monteith had no doubt counsel was acting in accordance with
    the [appellants] instructions and found that there was no basis for the contention
    of ineffective representation made against Mr. Pinto, the former counsel of the
    [appellant]. The Federal Court held that the appellants evidence does not
    show a failure by [the respondent] Mr. Pinto to follow instructions and was
    not persuaded that Mr. Pinto acted incompetently.

[4]

The appellant argues that the motion judge erred in dismissing his
    action as an abuse of process because: Adjudicator Monteith only made non-binding
    comments and not findings; if Adjudicator Monteith made findings, they were
    only made on the appellants motion to reopen the hearing and findings on a
    motion cannot be the basis for a claim of abuse of process; and the respondents
    were not parties to the proceeding before Adjudicator Monteith. The appellant
    also argues that the motion judge was biased.

[5]

We are not persuaded that there is any basis for this court to interfere
    with the motion judges order.

[6]

As the motion judge noted, citing
Toronto (City) v. C.U.P.E., Local
    79
, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 51,

the doctrine of abuse of process concentrates on the integrity
    of the adjudicative process  if the result in the subsequent proceeding is
    different from the conclusion reached in the first one on the very same issue,
    the inconsistency, in of itself, will undermine the credibility of the entire
    judicial process, thereby diminishing its authority, its credibility and its
    aim of finality.

As this court stated in
Canam Enterprises Inc. v.
    Coles
(2000)
, 51 O.R. (3d)
    481, at para. 31, and as the motion judge further noted, the doctrine of abuse
    of process can be relied upon by persons who were not parties to the previous
    litigation.

[7]

We agree with the motion judge that the issue in this action is the same
    issue raised by the appellant in his motion to Adjudicator Monteith to reopen
    the hearing before him. In our view, Adjudicator Monteith made clear findings
    on the issue raised by the appellant on his motion to reopen. Contrary to the
    appellants assertion, a finding on an earlier motion can be the basis for a
    claim of abuse of process.

[8]

Further, in the exercise of his discretion, the motion judge considered
    whether the fact that the respondents were not parties to the previous proceeding
    would work an injustice and concluded that, in the circumstances, it would not.
    While the respondents, who, despite their efforts to be represented before
    Adjudicator Monteith, did not have the right to be fully heard in the previous proceeding,
    the findings made by Adjudicator Monteith were in their favour. It was not a
    situation where the doctrine of abuse of process was invoked to bar
    re-litigation of findings made
against
parties who
    were not parties to the first proceeding.

[9]

The appellants argument that the motion judge was not impartial is
    based solely on the statement during the proceedings that Mr. Pinto seems to
    have won the day [before Adjudicator Monteith] without participating. This
    statement is accurate and shows no bias. In our view, there is no merit to this
    ground of appeal.

[10]

The appellant has failed to articulate any error made by the motion
    judge in the costs order. In our view, the costs awarded were reasonable.

[11]

Accordingly, leave to appeal the motion judges order as to costs is
    denied, and the appeal is dismissed. The respondents shall be entitled to their
    costs of the appeal, fixed in the amount of $8,500, including HST and
    disbursements.

Alexandra Hoy
    A.C.J.O.

Janet Simmons J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Donovan v. Waterloo
    Regional Police Services Board, 2019 ONCA 994

DATE: 20191217

DOCKET: C66718

Hoy A.C.J.O., van Rensburg and Roberts JJ.A.

BETWEEN

Kelly Lynn Donovan

Plaintiff/Responding Party (Appellant)

and

Waterloo Regional Police Services Board and Bryan
    Larkin

Defendants/Moving Parties (Respondents)

Kelly Lynn Donovan, acting in person

Donald B. Jarvis and Cassandra Ma, for the respondents

Heard: October 11, 2019

On appeal from the order
    of Justice Michael T. Doi of the Superior Court of Justice, dated March 20,
    2019, with reasons reported at 2019 ONSC 1212.

COSTS ENDORSEMENT

[1]

We have received and reviewed the parties costs submissions. The
    appellant is entitled to costs of the appeal and of the motion before the
    motion judge, fixed in the all-inclusive amounts of $4,000 and $3,500,
    respectively.

Alexandra Hoy
    A.C.J.O.

K. van Rensburg J.A.

L.B. Roberts J.A.