COURT OF APPEAL FOR ONTARIO

CITATION: Beazley v. Canada (Attorney
    General), 2021 ONCA 117

DATE: 20210225

DOCKET: C67948

Strathy C.J.O., Brown and Miller
    JJ.A.

BETWEEN

Cary
    Beazley

Plaintiff (Appellant)

and

Attorney General of Canada and
Her Majesty the Queen in Right of Ontario

Defendants (Respondents)

Cary Beazley, acting in person

Marshall Jeske, for the respondent,
    Attorney General of Canada

Roopa Mann, for the respondent, Her
    Majesty the Queen in Right of Ontario

Heard: February 12, 2021 by video conference

On appeal from the order of Justice Sally
    A. Gomery of the Superior Court of Justice, dated December 19, 2019.

REASONS FOR DECISION

[1]

In this action, commenced against Canada and
    Ontario in 2018 (the 2018 Action), Mr. Beazley raises substantially the same
    issues, on substantially the same pleadings, as he did in an action he
    commenced in 2017 against Canada, Ontario, some 28 physicians and the Queensway
    Carleton Hospital (the 2017 Action).

[2]

Mr. Beazley was diagnosed with Lyme Disease in
    2017. In both actions, he pled, among other things, that his diagnosis and
    treatment were delayed or otherwise impaired by the misrepresentations by
    Canada and Ontario concerning the efficacy of testing for Lyme Disease.

[3]

The 2017 Action was dismissed, without leave to
    amend, as disclosing no reasonable cause of action. A motion brought in this court
    to extend the time to appeal that decision was dismissed on the basis, among
    other things, that the appeal had no merit. A motion to review the dismissal of
    the time extension motion was dismissed by a panel of this court:
Beazley
    v. Canada (Attorney General)
, 2020 ONCA 582.

[4]

The motion judge dismissed the 2018 Action for
    the same reasons she had dismissed the 2017 Action. She held that this was one
    of the exceptional cases where written submissions from the responding party
    (the appellant) would serve no purpose, because the court had already made a
    final order dismissing the 2017 Action, the statements of claim were
    substantially identical, and the issues raised were
res judicata
. She
    found that the 2018 Action could not possibly succeed.

[5]

We agree with all those conclusions. In our
    view, this was one of those clear cases in which the abusive nature of the
    claim was apparent on the face of the pleading which was, as the motion judge
    found, substantially identical to the pleading in the 2017 Action. We would not
    interfere with the exercise of the motion judges discretion.

[6]

While Mr. Beazley suggests that the pleading
    could have been cured by amendment, the motion judge referred to her reasons on
    the 2017 Action in which she observed that the appellant had not alluded to any
    additional facts that could cure the defects in the pleading and was not satisfied
    that granting leave to amend would serve any useful purpose. Having heard Mr.
    Beazleys submissions, we see no error in these conclusions.

[7]

Nor are we persuaded that the motion judge erred
    in the exercise of her discretion in dismissing the 2018 Action pursuant to r.
    2.1.01 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, without
    giving Mr. Beazley an opportunity to make submissions. Rule 2.1.01(3) gave the
    motion judge discretion to dismiss a claim without requesting submissions:
Alexander
    v. Longo Brothers Fruit Market Inc.
, 2020 ONCA 590, at para. 4. That
    discretion was exercised judicially.

[8]

As the respondents note, there is no question of
    Mr. Beazleys passionate belief that he has been wronged. However, a previous
    decision of this court has confirmed that there was no merit to Mr. Beazleys
    appeal of the dismissal of the 2017 Action. That dismissal included a finding
    that Mr. Beazley had not established that the deficiencies in his statement of
    claim could be cured by amendment. It is not open to Mr. Beazley to re-argue
    that conclusion based on a subsequent, and almost identical, statement of claim.

[9]

The appeal is dismissed, with costs fixed at
    $300, payable to each respondent, inclusive of disbursements and all applicable
    taxes.

G.R.
    Strathy C.J.O.

David
    Brown J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bilodeau (Re), 2021 ONCA 198

DATE:  20210331

DOCKET: C68631

Watt, Hoy and Nordheimer JJ.A.

IN THE MATTER OF:  Matthew Bilodeau

AN APPEAL UNDER PART XX.1 OF THE
CODE

Stephen F. Gehl, for the appellant

Rebecca Schwartz, for the respondent, The Attorney
    General of Ontario

Julie A. Zamprogna Balles, for the respondent, The
    Person in Charge of the Southwest Centre for Forensic Mental Health Care St.
    Josephs Health Care London

Heard: March 26, 2021 by video conference

On appeal from the disposition of the Ontario Review
    Board, dated July 16, 2020, with reasons dated August 4, 2020.

REASONS FOR DECISION

[1]

Mr. Bilodeau appeals the disposition of the
    Ontario Review Board, continuing his conditional discharge but reducing his
    obligation to report to the Hospital to not less than two times per month.

[2]

Counsel for Mr. Bilodeau argues that the Boards
    finding that he continues to pose a significant threat to the safety of the
    public was unreasonable and seeks an absolute discharge. In particular, he
    argues that the Boards finding that he poses a significant threat was
    speculative, not grounded in the evidence, and failed to consider that  his only
    incident of violence was the index offence, he has been compliant with
    medication for eight years, and he has voluntarily returned to the Hospital
    when symptomatic.

[3]

We are not persuaded that there is any basis for
    this court to intervene. The Boards conclusion was reasonable and is grounded
    in the evidence. The path to its conclusion is clear. The Boards decision reflected
    an internally coherent and rational chain of analysis that was justified in
    relation to the facts and law:
Canada (Minister of Citizenship and
    Immigration) v. Vavilov
, 2019 SCC 65, 441 D.L.R. (4th) 1,
    at paras. 83, 85.

[4]

The Board reviewed and considered the evidence of
    Mr. Bilodeaus treating physician, Dr. Ugwunze, and the Hospital Report. The
    evidence on which the Boards disposition rests includes the following.

[5]

On April 3, 2012, Mr. Bilodeau was found not
    criminally responsible on account of mental disorder on two charges of attempt
    murder, after stabbing his father with a large butcher knife and stabbing his
    mother in the chest with a smaller knife. The offence occurred less than two
    weeks after he had stopped his medication.

[6]

Mr. Bilodeau is diagnosed with schizoaffective
    disorder, substance use disorder (in remission) and anxiety disorder NOS.

[7]

At the time of the disposition under appeal, Mr.
    Bilodeau lived alone in a one -bedroom apartment. However, he continued to
    suffer from active psychotic symptoms and continues to require oversight. Dr.
    Ugwunze opined that should Mr. Bilodeau miss two doses of any of the three
    anti-psychotic medications he takes, his mental state would deteriorate
    significantly within 48 hours. Further, Dr. Ugwunzes evidence was that the
    therapeutic level of one of his anti-psychotic medications, clozapine, is
    affected by his use of cigarettes and, as a result, his medication levels
    require monitoring to ensure that they remain within the therapeutic range.

[8]

Mr. Bilodeau has made progress and, in the year
    under review, steps were made to transfer Mr. Bilodeaus care from a forensic
    outreach team to an Assertive Community Treatment Team (ACTT).  But as a result
    of restrictions arising from the COVID-19 pandemic, a therapeutic relationship
    had not developed by the time of the Board hearing. Dr Ugwunze explained that a
    developed therapeutic relationship was necessary to manage Mr. Bilodeaus
    medication, given his attempts to negotiate reductions and question the
    authenticity of his medication. Mr. Bilodeau struggles to adjust to change and
    it takes him a long time to build therapeutic trust.

[9]

Mr. Ugwunze testified that, if given an absolute
    discharge at this time, Mr. Bilodeaus risk of violent re-offending would
    increase to at least moderate and might actually be higher.

[10]

The Board found that the evidence before us is
    quite clear and given the severity of the index offence and [Mr. Bilodeaus]
    propensity for extreme unprovoked and unpredictable violence it is imperative
    that he needs to be actively monitored by a therapeutic team that knows him
    well.

[11]

The Board did not misapprehend that there was
    only one incident of violence. While there was only one incident of violence,
    it was extreme and unprovoked. The risk of violence if Mr. Bilodeau does not
    maintain therapeutic levels of medication is clear. In its reasons, the Board
    noted the evidence of medication compliance under the forensic outpatient team,
    while also noting Dr. Ugwunzes evidence that, while compliant, Mr. Bilodeau
    has, at times, expressed not wanting to take his medications. The Boards
    review of the evidence included that in July 2018, and on prior occasions, Mr.
    Bilodeau returned to the hospital at his own request and that Mr. Bilodeau has
    been adhering to his relapse prevention program as best he can. But the Board
    also considered the risk that a transition, such as to the ACTT, poses.

[12]

Contrary to counsel for Mr. Bilodeaus
    assertion, the Board did not signal that Mr. Bilodeau would always present a significant
    threat to the safety of the public, given the nature of his mental illness and
    the gravity of the index offence. Rather, the Board accepted the evidence of
    Dr. Ugwunze of the need for a strong therapeutic relationship to manage that
    risk and that Mr. Bilodeau had not yet developed such a relationship outside of
    the forensic team.

[13]

Accordingly, the appeal is dismissed.

David
    Watt J.A.

Alexandra
    Hoy J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Blake (Re), 2021 ONCA 230

DATE: 20210412

DOCKET: C68353

Feldman, Lauwers and Trotter
    JJ.A.

IN THE MATTER OF: Glenroy Blake

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Dena Bonnet, for the respondent, Attorney
    General of Ontario

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

Heard: February 19, 2021 by video conference

On appeal from the disposition of the
    Ontario Review Board, dated May 1, 2020, with reasons dated May 7, 2020.

Feldman J.A.:

A.

Overview

[1]

The appellants annual hearing before the
    Ontario Review Board (the Board) on April 29, 2020 was one of its first hearings
    using zoom technology because of the COVID-19 pandemic that was declared a
    public health emergency in March 2020. Although the appellant had received a
    conditional discharge disposition in the past, he was under a detention order
    at the time of the 2020 hearing. He sought another conditional discharge. The
    Board concluded that the necessary and appropriate disposition was to continue
    the detention order, by which, at the time, the hospital required reporting to
    the Centre for Addiction and Mental Health (CAMH or the Hospital) in-person
    five days a week and frequent urine testing for substance abuse.

[2]

The appellant submits on this appeal that the
    Board erred in law and in fact by failing to grant a conditional discharge. The
    appellant argues that the Board erred by 1) failing to consider the significant
    progress the appellant had made over the last eight months while detained in
    hospital; 2) failing to give sufficient consideration to the effect of the COVID-19
    pandemic on the safety of the appellant and others confined or potentially
    confined in a congregate hospital setting; 3) giving too much effect to the
    potential for a restriction of liberty (ROL) hearing to protect the liberty
    interest of the appellant, in light of the Hospitals unacceptable failure to
    release the appellant following the Boards last ROL disposition; and 4)
    finding that the
Mental Health Act
, R.S.O. 1990, c. M. 7, provisions
    would not be sufficient to return the appellant to the Hospital if it became
    necessary.

[3]

I would not give effect to the appellants
    submissions. However, if at any future hearing, there is a dispute regarding the
    proper interpretation and application of the
Mental Health Act
provisions that allow a hospital to detain a person and about the efficacy of
    those provisions in the context of a conditional discharge disposition, the
    Board should require the parties to provide a complete record and full argument.

B.

Background Facts

[4]

The appellant, aged 38 at the time of the
    hearing, was first hospitalized in 2006 for an instance of First Episode
    Psychosis. He was diagnosed with schizophrenia in 2010. His current diagnoses
    are schizophrenia, unspecified personality disorder, and substance use disorder.
    He has over 30 convictions as an adult, including for weapons-related offences,
    uttering threats, assault, and criminal harassment (typically targeting women
    who did not know him). In 2010, the appellant was found not criminally
    responsible (NCR) in respect of offences that occurred between August 2009
    and March 2010. The offences were failure to comply with a recognizance,
    watching a dwelling house, failure to comply with probation, prowling by night,
    and carrying a concealed weapon.

[5]

Following the NCR finding in September 2010, the
    appellant was an inpatient at CAMH for two years. He was first discharged into
    the community in August 2012. He returned to the Hospital for one brief
    admission in June 2014, then again in November 2014, when he was placed on the
    secure unit under a hybrid order as a result of positive screens for cocaine as
    well as other issues (specifically, allegations of drug trafficking, of plans
    to buy a gun, and reports of gambling on hospital grounds). He was transferred
    to the general unit on September 8, 2015 and discharged to the community on
    January 7, 2016, but admitted again on January 19 following a positive screen
    for cocaine, which he denied, and discharged again on January 29. Following
    four positive screens for cocaine (which he again denied), he was admitted on
    August 25, 2016 and discharged on September 15, 2016.

[6]

On January 24, 2018, the appellant was granted a
    conditional discharge. He had one positive drug screen in February. He was
    admitted twice to the Hospital, once at his own initiative from March 30
    April 4, and a second time under the
Mental Health Act
Form 1 psychiatric
    assessment, as a result of threats to obtain a firearm and to harm two of his
    previous case managers. A no-trespass order was in place at CAMH against him,
    except for his scheduled appointments.

[7]

In November 2018, although the appellant was
    medication-compliant and not psychotic, he began to decline, missing
    appointments, failing to co-operate with the team or with the Boards conditions,
    screening positive eight times out of ten between November 2018 and February
    2019 for cannabis, and violating the no-trespass order on several occasions.
    Also, in that time period, four female CAMH staff members alleged that he had
    followed them.

[8]

As a result of this decline, the Hospital
    requested an early review of the conditional discharge disposition. On March
    26, 2019, he was placed on a detention order that authorized his readmission to
    hospital if necessary. He was readmitted from July 11 to August 1, 2019 after
    screening positive for cannabis and cocaine. He required restraint and
    seclusion and was described as a high risk for violence. He was released from
    the Hospital on August 1, 2019, when he was discharged back into his residence
    in the community. On August 9, 2019, the Board convened a hearing to review the
    appellants ROL from July 11 to August 1. On August 15, 2019, the Board concluded
    that the appellants ROL had been warranted.

[9]

The appellant, however, was readmitted to the
    Hospital later in August after he again tested positive for cocaine, he missed
    appointments, he met with his case manager in an alleyway to give a urine
    sample, and then the next day was not reachable.

[10]

A second ROL hearing was held on October 9, 2019,
    and on November 4, 2019, the Board released a decision where the majority found
    that while his initial detention in hospital was warranted, the appellants
    continued admission was not. In reasons for that decision released January 14,
    2020, the Board found that his continuing admission is not warranted and is
    neither necessary nor appropriate. Despite that finding, the appellants
    physicians did not discharge him to the community. The appellants lawyer advised
    this court that she had made repeated requests for a discharge between November
    2019 and March 2020. After his March 2020 annual review was postponed until
    April 2020 due to COVID-19, the appellant was discharged on April 28, 2020
    the day before his hearing. During the period of extended detention, the
    appellant made significant progress in hospital.

C.

Decision of the board

[11]

The Board summarized its findings and reasons
    for its decision that the appellant remained a significant threat to the safety
    of the community, and that a detention order was the least onerous and least
    restrictive disposition for the appellant at para. 50 of its reasons:

The Board finds that a detention order is
    necessary and appropriate. Mr. Blake's early hearing and two ROL hearings in
    2019 attest to the ongoing risk he poses in the community. The early hearing in
    2019 arose from reports of drug use and allegations that Mr. Blake had followed
    female staff from CAMH. Later in 2019 he was admitted twice, for reasons that
    included positive drug screens (i.e, including cocaine), as well as missed
    appointments and a refusal to attend or co-operate with the team. The Board is
    not hesitant to find that a detention order is necessary so that Mr. Blake can
    be re-admitted to hospital. The MHA is not a viable alternative because it is
    not adequate to protect public safety. The primary concern is Mr. Blake's
    pattern of drug use and disinhibited behaviour, which creates a risk,
    especially to women but also of weapon use and other criminal behaviour. This
    risk has crystallized in the community when Mr. Blake is compliant with
    medication, is not experiencing psychotic symptoms, and is not certifiable. Mr.
    Blake's two ROLs in 2019 confirm the pattern and the hospital's need for the
    authority of a detention order to readmit him.

(1)

Dr. Toguris evidence

[12]

The Board heard evidence from the appellants
    treating psychiatrist, Dr. Toguri. He advised that while the appellant was
    detained in hospital from September 2019 to the day before the hearing, April 28,
    2020, he had received psychosocial and pharmacological treatment and one-to-one
    counselling as well as group programming to address his substance abuse
    problem. He advised that the appellant uses olanzapine as needed for calming,
    and that his long-acting injectible, aripiprazole, had been increased during
    this period. While in hospital, the appellant had had a positive change in his interactions
    with staff. He also had no positive drug screens.

[13]

Dr. Toguri explained that before the appellant
    could be discharged into the community, as had been ordered by the Board in
    November 2019, the Hospital had to co-ordinate with an outpatient team because
    of the requirement for a staff safety plan. They had implemented a zero
    tolerance policy for the appellant while in the community, which meant that
    any positive screen or non-compliance related to substance use or reporting
    would result in the appellant being readmitted to hospital. He had to report
    daily during the week with frequent urine tests, and his reporting had to be to
    the West Wing of CAMH in order to comply with the no-trespass order that had
    been imposed on him for the safety of female staff. There was no COVID-19
    outbreak in the West Wing.

[14]

Dr. Toguri gave his opinion that a detention
    order was necessary and appropriate because the Hospital required the authority
    to return the appellant to its care. He stated that the
Mental Health Act
does not address the risk that the appellants personality and substance abuse
    issues could lead to behavioural problems without any change to his mental
    status. Those problems can manifest with disinhibited behaviour and following
    women in the community.

[15]

With respect to the applicability of the
Mental
    Health Act
, Dr. Toguri stated that with substance abuse the appellant
    could become a risk to the public, even without the return of his psychosis. In
    those circumstances, admission to the Hospital under Box B would not be
    available (since the appellant has capacity), and he would likely not meet the strict
    criteria of serious harm in Box A either.

(2)

The Boards findings on the Hospitals failure
    to discharge

[16]

The Board expressly addressed the issue of the Hospitals
    failure until April 28, 2020, to implement the Boards order of November 2019
    following the ROL hearing, where the Board held that the appellants detention
    in hospital was no longer necessary or warranted. The Board stated that [t]he
    clear purpose of s. 672.81(2.1) [of the
Criminal Code
, R.S.C. 1985, c.
    C-46] is to protect NCR offenders from restrictions of their liberties that are
    not authorized by their disposition, and to ensure that such ROLs are subject
    to review by the Board, and found that the appellants prolonged admission to
    hospital contrary to a Board Decision is unacceptable. It also found that the Hospital
    was effectively in breach of the Boards order.

[17]

The Board explained that its orders are not
    self-executable, and that it is up to the Hospital to accept the guidance of
    the Board. The Board did not accept the explanations provided by the Hospital
    that it misunderstood the Boards November 2019 decision and that the
    appellants discharge was very complex. The Board noted in respect of the
    appellants discharge plan, that over the eight month period when the appellant
    was detained in hospital, there were no reports of positive screens or drug use
    concerns, and that counsel for the Hospital had described the period as the
    longest period of stability for the appellant.

(3)

The Boards 2020 disposition

[18]

Counsel for the appellants position was that
    the appellant should receive a conditional discharge. She submitted that the
    zero tolerance policy, in the context of the COVID-19 pandemic, would subject
    him to detention at the first sign of trouble and place him at enormous risk of
    contracting the disease. This would be risk enhancing rather than risk
    diminishing, especially since the appellant was agreeable to both a residence
    requirement and a s. 672.55(1) consent treatment provision as part of his
    conditional discharge. She also submitted that in crafting the appellants
    disposition, the Board should take full account of the COVID-19 pandemic, and endeavour
    to protect his safety and the safety of others by limiting congregate settings
    for mental health patients.

[19]

In response to the first submission, the Board
    found that in light of the appellants history with drug use and disinhibited
    behaviour since November 2018, without a detention order that allows the Hospital
    to readmit him if necessary, the risk to the public safety would be significant.
    The detention order was therefore necessary to satisfy the statutory mandate of
    the Board to treat the safety of the public as a paramount consideration.

[20]

The Board also addressed the COVID-19 issue. It rejected
    jurisprudence regarding the effect of COVID-19 on bail decisions as of limited
    relevance, because while the safety of the public is the second bail criterion,
    it is the Boards paramount consideration under s. 672.54 of the
Criminal Code
.
    The Board quoted with approval the following statement from the bail decision in
R. v. Williams
, 2020 ONSC 2237, at para. 125: The law continues to
    require that accused who pose a substantial risk of endangering the public,
    like Mr. Williams, must remain in custody, even during the COVID-19 pandemic.

[21]

Additionally, the Board consulted the CAMH
    statement on the pandemic, and after considering the appellants circumstances,
    concluded that a detention order would not entail an inappropriate risk of
    exposure to COVID-19. There were no outbreaks at the time in the West Wing
    where the appellant would be required to report, meaning that any potential risk
    was from readmission, which he could avoid by complying with the conditions of
    his detention. If the appellant were to be brought back into hospital under the
    detention order, an ROL hearing would be triggered after seven days, and the
    admission would only be warranted under s. 672.81(2.1) when it is the least
    onerous and least restrictive alternative in the circumstances.

D.

Issues

[22]

The appellants position is that the Board erred
    by failing to grant a conditional discharge as the least onerous and least
    restrictive disposition order, and raises four grounds of appeal in support:

1.

The Board erred by failing to take account of
    the significant progress the appellant made while detained in hospital.

2.

The Board erred by failing to give sufficient consideration
    and effect to the presence of the COVID-19 pandemic and the danger it poses to
    the appellant and others who are confined or required to attend at the Hospital.

3.

The Board erred by relying on the ROL hearing as
    a procedural safeguard for the appellant, when the Hospital had unacceptably failed
    to implement the Boards previous order that his ongoing admittance to the Hospital
    was not warranted or necessary.

4.

The Board erred by relying on the evidence of Dr.
    Toguri that the
Mental Health Act
provisions would not apply to the
    appellant when his psychosis remained under control, but his risk to public
    safety arose from his personality disorder and substance abuse.

E.

Analysis

(1)

Did the Board err by failing to take account of
    the significant progress the appellant made while detained in hospital?

[23]

The appellant submits that the Board did not
    take his recent positive progress while in hospital into account in arriving at
    its disposition. I do not accept this submission. The Board fully outlined the
    appellants history and the testimony of Dr. Toguri, whose opinion was based on
    his knowledge of the appellants history and his progress while under treatment
    in hospital. Dr. Toguris opinion was that despite the appellants progress,
    the detention order was necessary, and that the current requirement for a zero
    tolerance compliance regime was also necessary to ensure that the appellant
    would not use substances that had the effect of causing his mental condition to
    deteriorate and increasing his risk of being a danger to the public.

(2)

Did the Board err by failing to give sufficient consideration
    and effect to the presence of the COVID-19 pandemic and the danger it poses to
    the appellant and others who are confined or required to attend at the
    Hospital?

[24]

The appellant submits that in response to the COVID-19
    pandemic, it is the Boards obligation to depopulate the Hospital as a congregate
    living setting, to the extent possible, in order to protect both the
    appellants and the publics safety from the pandemic. To that end, he submits
    that the low threshold for readmission under the zero tolerance policy that the
    Hospital would implement as part of his detention order would needlessly expose
    him and others to the risk of contracting the disease. This submission was
    supported at the hearing by the affidavit of Dr. A. Orkin, a public health
    physician, and a written statement from the Bazelon Center for Mental Health
    Law. In other words, to protect the appellant as part of the public as well as
    to protect the rest of the public from COVID-19, the Board should have imposed
    a conditional discharge with appropriate conditions as the least onerous and
    least restrictive disposition, and that it erred by not doing so.

[25]

In my view, the Board made no error in its approach
    to its obligation, including its consideration of how to factor in the COVID-19
    pandemic. The Board was acutely aware of the pandemic, and its effect on the Hospital
    and on the whole of society. It considered the evidence presented by the
    appellant as well as the CAMH policy on COVID-19 and the current conditions at
    the Hospital. It noted that the reporting requirement for the appellant was to
    the West Wing where there was no outbreak. The Board also addressed its primary
    statutory obligation to protect the safety of the public, in the context of the
    appellants history of substance abuse and disinhibited behaviour. The Board
    recognized the need to be able to return the appellant to the Hospital because
    he could become dangerous to women as he had in the past. The Board concluded,
    at para. 55:

In light of Mr. Blakes history since November
    2018  as discussed above  the Board finds that the risk to public safety
    would be significant absent a detention order granting the hospital authority
    to re-admit Mr. Blake, if necessary. As noted above, the Board is required,
    under its statutory mandate, to treat the safety of the public as a paramount
    consideration.

[26]

A similar argument regarding the effect of COVID-19
    on the Boards obligations was made to the Board and to this court, and
    rejected, in the recent appeal in
Scalabrini (Re)
, 2021 ONCA 212. There,
    Fairburn A.C.J.O. emphasized, at para. 45, that it would be contrary to the statutory
    scheme for the Board to impose a conditional discharge in circumstances where
    a detention order is called for, only to make it more difficult for the
    appellant to be returned to the hospital in circumstances where he is
    decompensating and in need of stabilization. She added the important
    observation, at para. 46, that it will be for the healthcare professionals who
    administer the detention order to keep COVID-19 in mind at the time that
    decisions are being made about whether to intervene in the context of
    decompensation, and, if so, how, including using strategies other than
    re-hospitalization. In this case, as the respondent Attorney General points
    out, the Boards order only required the appellant to report once per month, or
    as required giving the Hospital the flexibility to reduce the reporting
    conditions from five days per week if that should become appropriate.

[27]

The Board in this case also made two important
    observations when weighing the risk to the appellant of being exposed to COVID-19
    by his potential readmission to the hospital. The first was that the appellant
    could avoid readmission to hospital by complying with his reporting requirements
    and abstaining from substance use. The appellant had been compliant while in
    hospital. It was a fair expectation that he would remain so in order to be able
    to remain in the community. The second, which will be discussed in further
    detail below, was that the appellant had the procedural safeguard of an ROL
    hearing requiring the Board to re-consider his admission to hospital after
    seven days.

(3)

Did the Board err by relying on the ROL hearing
    as a procedural safeguard for the appellant, when the Hospital had unacceptably
    failed to implement the Boards previous order that his ongoing admittance to
    the Hospital was not warranted or necessary?

[28]

The Boards second observation was that the
    appellant had the protection of s. 672.81(2.1) of the
Criminal Code
,
    which requires the Board to hold an ROL hearing after seven days to ensure that
    the appellant would be returned to the community as soon as possible. The
    appellant objects that in light of the Hospitals recent failure to abide by
    the order of the Board following an ROL hearing, this was a hollow observation.

[29]

I do not agree. The Board strongly reprimanded
    the Hospital in its reasons for failing to abide by the Boards order following
    the ROL hearing, and made its expectations for future compliance abundantly
    clear. By adding that the ROL gives the appellant further protection from any
    unwarranted extended stay in hospital, and therefore exposure to COVID-19, the
    Board was reinforcing its message to the Hospital, and its confidence that the Hospital
    would not be in breach in the future. I would endorse the Boards reprimand and
    its approach.

(4)

Did the Board err by relying on the evidence of
    Dr. Toguri that the
Mental Health Act
provisions would not apply to the
    appellant when his psychosis remained under control, but his risk to public
    safety arose from his personality disorder and substance abuse?

[30]

In this case, the appellant had a history of
    remaining medication-compliant in respect of his injectable medications and
    keeping his psychosis under control, but then decompensating and becoming
    dangerous as a result of cocaine or cannabis use.

[31]

The appellant objects that when deciding whether
    the
Mental Health Act
committal provisions would be sufficient to
    bring him back to hospital for breach of a condition of discharge, the Board
    relied on what his counsel alleges was erroneous testimony from Dr. Toguri that
    the
Mental Health Act
provisions cannot be used to detain a person for
    substance abuse where there is no manifestation of psychosis.

[32]

The appellant submits that as an expert
    tribunal, the Board should have understood the proper interpretation and
    application of the
Mental Health Act
. Counsel added, in reply
    submissions, that when Dr. Toguri was asked questions by one of the
    psychiatrist Board members during the hearing, the Board member referred to language
    used in a previous version of the
Mental Health Act
that no longer
    applies, and thus called into question its own expertise.

[33]

The appellant submits that, contrary to the
    evidence of Dr. Toguri, the applicable
Mental Health Act
provisions
    that allow a person to be detained in prescribed circumstances can apply to
    substance abuse, and therefore could be used in the appellants circumstances
    to bring him back to hospital if he were to decompensate. The appellant also
    relies on the fact that he consented to a treatment clause under s. 672.55 of
    the
Criminal Code
, which he submits would allow readmission to the Hospital
    for treatment under a conditional discharge disposition.

[34]

The issue of the extent to which the
Mental
    Health Act
provisions may be of sufficient efficacy that they may be used
    effectively in the context of a conditional discharge disposition to return a
    decompensating person subject to the disposition to hospital, and keep him or
    her in for treatment as required, has been raised in appeals to this court in a
    number of cases over the last twelve years: see, for example,
R. v.
    Breitwieser
, 2009 ONCA 784, 99 O.R. (3d) 43, at paras. 7-18;
R. v.
    Lamanna
, 2009 ONCA 612, 252 O.A.C. 280, at paras. 14-17;
Young (Re)
,
    2011 ONCA 432, 273 C.C.C. (3d) 512, at para. 26;
Coburn (Re)
, 2016
    ONCA 536, at para. 19;
Munezero (Re)
, 2017 ONCA 585, at paras. 4-9;
Marchese
    (Re)
, 2018 ONCA 307, 359 C.C.C. (3d) 408, at paras. 19-23;
Valdez (Re)
,
    2018 ONCA 657, at paras. 21-24;
Leger (Re)
, 2018 ONCA 1035, at paras.
    9-14;
Negash (Re)
, 2018 ONCA 179, at paras. 10-13;
Esgin (Re)
,
    2019 ONCA 155, at paras. 19-21;
Davies (Re)
, 2019 ONCA 738, 380 C.C.C.
    (3d) 552, at paras. 33-39;
Ahmadzai (Re)
, 2020 ONCA 169, at paras.
    22-24;
Yunus-Ali (Re)
, 2020 ONCA 669, at paras. 10-12; and
Williams
    (Re)
, 2021 ONCA 90, at paras. 19-22.

[35]

These cases make it clear that in deciding
    whether a detention order is required and is the least onerous and least
    restrictive disposition, the Board must consider the committal provisions of
    the
Mental Health Act
as one of the available mechanisms for securing
    the persons attendance at hospital for breach of a discharge condition. However,
    in order to do that, the Board must have an accurate understanding of how the
    committal provisions of the
Mental Health Act
operate.

[36]

Ms. Szigeti, who is an expert in mental health
    law, has argued that both the treating psychiatrist and one of the Board
    psychiatrists did not have that accurate understanding of the
Mental Health
    Act
. However, neither this court, nor the Board, can be in a position to
    rule on that submission without a full record. Such a record could include
    expert evidence from a legal expert in mental health law, expert evidence from specialist
    psychiatrists with significant experience with the committal provisions of the
Mental
    Health Act
, as well as legal briefs on behalf of the appellant, the Hospital
    and the province.

[37]

In this case, the Board, which had only the
    evidence of Dr. Toguri on this issue, was entitled to accept and act on that
    evidence. However, in a future case where the efficacy of the
Mental Health
    Act
committal provisions is going to be a disputed issue before the Board,
    it will be incumbent on the Board, as an inquisitorial body, to require the
    parties to place a sufficient evidentiary and legal record before it, to enable
    it to determine the issue in the context of supporting its disposition as the
    least onerous and least restrictive.

F.

Conclusion

[38]

For these reasons, I would dismiss the appeal.

Released: April 12, 2021 K.F.

K Feldman
    J.A.

I agree. P.
    Lauwers J.A.

I agree. Gary
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bogue v. Miracle, 2021 ONCA 278

DATE: 20210430

DOCKET: C68596

Benotto, Miller and Trotter JJ.A.

BETWEEN

Glenn
    Bogue

Applicant
(Respondent)

and

Andrew Clifford Miracle
    a.k.a. Sir Andrew Miracle
,
Andrew Clifford Maracle III a.k.a. Andy Maracle, Smokin Joes

Respondents
(
Appellant
)

Ian J. Collins, for the appellant Andrew
    Miracle

Kenneth H. Page, for the respondent Glenn
    Bogue

Robert J. Reynolds and Mike Pretsell,
    for Lisa Maracle Sexsmith and Virginia Maracle

Heard: April 21, 2021 by video conference

On
    appeal from the order of Justice Stanley J. Kershman of the Superior Court of
    Justice, dated October 11, 2019.

REASONS FOR DECISION

[1]

The appellant, Andrew Clifford Miracle
    (Andrew), had been involved in a dispute with his son, the respondent, Andrew
    Maracle III (Andy). The dispute involved the joint ownership of Smokin Joes,
    a store in the Tyendinaga Mohawk Territory near Belleville. Andrew and Andy
    agreed to arbitration. Andrew entered into a retainer agreement with the
    respondent Glenn Bogue to act for him on the arbitration. The contingency
    agreement provided that Bogue would receive 25% of the amount awarded.

[2]

On November 24, 2016, the arbitrator decided
    that Andy owed Andrew $11,486,283.00. The arbitration award was subsequently
    made into an order at Andrews request. Andy was required to transfer his
    interest in Smokin Joes to Andrew. Andrew now has possession of Smokin Joes.

[3]

Lisa Maracle Sexsmith and Virgina Miracle own and
    operate Smokin Speedway, a gas station. Andy was a one-third owner of Smokin
    Speedway before he transferred his ownership share to Lisa and Virginia. Lisa
    and Virginia are not directly affected by the order but obtained status as
    respondents out of concern that Bogue will seek a receivership order or
    garnishment order against them.

[4]

Andrew has paid Bogue only $12,500.00. Bogue
    sought the appointment of a receiver to realize upon the debt for his benefit
    and Andrews other creditors.

[5]

Kershman J. granted the order pursuant to s. 101
    of the
Courts of Justice Act
, R.S.O. 1990, c. C.43.

[6]

Andrew alleges that the application judge erred
    because: (i) he had no authority to make a
final
order for a receiver;
    (ii) there was no money owed to Bogue for fees on the contingency; and (iii) the
    final order for a receiver contravenes the
Indian Act
, R.S.C. 1985, c.
    1-5, ss. 29, 89, which prohibits the enforcement by a non-status Indian against
    the assets of an Indian situated on a reserve. He relies on
Borden &
    Elliot v. Temagami First Nation
, [2009] 3 C.N.L.R. 30 (Ont. S.C.);
Mitchell
    v. Peguis

Indian Band
, [1990] 2 S.C.R. 85; and
Tyendinaga
    Mohawk Council v. Brant
, 2014 ONCA 565, 121 O.R. (3d) 561.

[7]

In our view, the third ground of appeal is a
    threshold issue which must be determined before the appeal can be heard.

[8]

It is not clear that this issue was raised in
    the court below. Andrew acknowledges that he did not raise this issue before
    the application judge. But he says it was argued by Virginia Maracle and Lisa
    Maracle Sexsmith. Although the application judge touched on the issue as it
    related to Virginia Maracle and Lisa Maracle Sexsmith, he failed to make the
    findings necessary to conduct appellate review of this aspect of his decision,
    especially as it relates to Andrew. For example, Andrew says Bogue is not an
    Indian under the
Act
. Bogue says that there is no evidence on the
    record about his status under the
Act
, as this argument was not raised
    in the court below. In addition, he submits that, if the provisions of the
Indian
    Act
apply, that Andrew has waived his rights to protection under it.

[9]

We cannot consider this appeal without a
    determination from the court below on the issue raised with respect to the
Indian
    Act
.
As a general rule, this court will decline to
    decide new issues on appeal:
R. v. Roach
,
2009 ONCA 156
, 246
    O.A.C. 96, at para. 6.

[10]

For this reason, we return the matter to the application
    judge to determine the effect of the appellant
s submission with respect
    to the
Indian Act
.

[11]

We award no costs.

M.L.
    Benotto J.A.

B.W.
    Miller J.A.

Gary
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Booth v. Bilek, 2021 ONCA 128

DATE: 20210302

DOCKET: C68248

Strathy C.J.O., Brown and Miller
    JJ.A.

BETWEEN

Clifford
    Alan Booth

Applicant
    (Respondent)

and

Michelle Yvette Marie Bilek

Respondent (Appellant)

Paul D. Slan, for the appellant

Shawn M. Philbert, for the respondent

Heard: February 8, 2021 by video conference

On
    appeal from the order of Justice Gisele M. Miller of the Superior Court of
    Justice, dated March 10, 2020.

REASONS FOR DECISION

OVERVIEW

[1]

The parties, who were married, separated after
    four years and four months of cohabitation. There are no children of the
    marriage.

[2]

The sole issue on this appeal is the equalization
    of net family property. Section 5(6) of the
Family Law Act
, R.S.O.
    1990, c. F.3 (the Act) permits the court to vary a spouses share of net
    family property if the court is of the opinion that equalizing the net family
    properties would be unconscionable.

[3]

Here, the trial judge declined to award the
    appellant an amount that would equalize the parties net family properties
    under s. 5(1) of the Act, given: (1) the extent to which the appellants net
    family property derived from gifts from the respondent; (2) that a full
    equalization payment would be disproportionate to the relatively short period
    of cohabitation, and (3) the parties respective financial contributions to the
    property they owned during their marriage.

[4]

The trial judge awarded the appellant $10,627.45,
    or 10% of the full amount that would equalize the parties net family
    properties, namely $106,274.49. The appellant had already received
    approximately $200,000 from the sale of the matrimonial home.

[5]

There is no dispute that the trial judge correctly
    identified the governing law. She considered appropriate factors under the
    legislative provision permitting a variation of share, as well as the relevant
    case law.

[6]

The appellant argues, however, that the trial
    judge erred in concluding that: (1) full equalization would be unconscionable
    under s. 5(6) of the Act; and (2) 10% of the full equalization payment would be
    just and equitable. The appellant argues in the alternative that an unequal
    division of 87% would be appropriate, tracking the length of the marriage.

[7]

As explained below, we do not agree that the
    trial judge erred either in finding that full equalization would be unconscionable,
    or in her exercise of discretion in setting the appropriate payment at 10% of
    the amount that would fully equalize the parties net family properties.

ANALYSIS

(a)

Unconscionability

[8]

The trial judge concluded that an award of full
    equalization would be unconscionable, per s. 5(6) of the Act, considering: (1)
    the extent to which the appellants net family property derived from gifts from
    the respondent; (2) the disproportion between full equalization and the
    duration of cohabitation; and (3) the fact that the respondent was almost the
    sole financial contributor to the property owned by the parties during the
    marriage.

[9]

The trial judge found that the appellant had
    benefitted financially from the comparatively short marriage. The appellant
    received $199,302.87 as half of the proceeds of sale of the matrimonial home, despite
    having made no direct financial contribution to its purchase. Although the
    appellant contributed $16,000 to the cost of renovating the first matrimonial
    home, those funds had come from the sale of her condominium, which in turn had been
    entirely financed by the respondent before their marriage. The appellant had used
    the balance of the proceeds of sale of the condominium (approximately $33,000)
    to pay off her personal debt. The trial judge also found that the appellant had
    benefitted from the gift of wedding and engagement rings from the respondent, worth
    in excess of $87,000.

[10]

The trial judge found that the difference between
    the parties respective net family properties at separation was attributable
    almost entirely to the growth of the respondents investments over the course
    of the marriage. The trial judge also noted that the respondent had not made
    any contributions to these investments during the marriage, meaning that none
    of the family income earned during the marriage had been used to finance them. The
    trial judge also found that at the time of trial, the respondent was 69 years
    old, retired and in addition to CPP and OAS, was living solely off the income
    generated by his investments. The appellant was 46 and had become
    self-supporting.

[11]

The trial judge correctly observed that the
    threshold for unconscionability under s. 5(6) of the Act is high and not
    satisfied by a finding of mere unfairness:
Serra v. Serra
, 2009 ONCA 105,
    93 O.R. (3d) 161, at paras. 47-48. The high bar for unconscionability precludes
    trial judges from undertaking a minute parsing of the parties relative
    contributions to the marriage. It also promotes the goal of certainty in family
    law disputes.

[12]

For the vast majority of cases, s. 5(1) sets the
    default rule that upon marriage breakdown, the spouse whose net family property
    is the lesser of the two net family properties is entitled to equalization.
    This presumption can only be displaced where equalization would be unconscionable,
    as assessed using the criteria set out in s. 5(6) and guided by the purpose articulated
    in s. 5(7).

[13]

Section 5(6)(e) of the Act specifically
    identifies that a period of cohabitation less than five years is relevant to
    whether full equalization may be unconscionable. This promotes certainty about
    equalization for marriages longer than five years. It also provides notice to parties
    who have been married for less than five years that a court may take a closer
    look at whether equalizing would be unconscionable in the specific
    circumstances of a shorter marriage.

[14]

We do not agree that the trial judge erred in concluding
    that equalizing the parties net family properties would be unconscionable on
    the facts as she found them. She considered the relevant criteria, applied them
    to the facts before her, and came to a reasonable conclusion. The trial judge did
    misapprehend the appellants evidence of when she returned to the work force, which
    the respondent concedes. The appellant returned to full-time work in the last
    year of the parties marriage, and not after the parties had separated, as the
    trial judge found. Nevertheless, this error was not overriding. It did not bear
    on the factors that led the trial judge to conclude that equalization would be
    unconscionable. In particular, it did not bear on the trial judges finding
    that over the course of the relatively short marriage, the appellant made
    little contribution to the acquisition and maintenance of the matrimonial home
    (or other family assets), and received a sizable benefit from its sale.

[15]

It is also relevant that the trial judge found
    that the appellant was much better off financially than she was at the
    beginning of the marriage, with little if any financial contribution on her
    part, while the respondent had become dependent for his living expenses on income
    from investments made prior to the marriage.

(b)

Unequal division

[16]

Having concluded that full equalization would be
    unconscionable, the trial judge ordered the respondent to pay the appellant 10%
    of the full amount.

[17]

The appellant argues that the trial judge did
    not explain how she arrived at the figure of 10%, and that the reasons in this
    respect prevent meaningful appellate review.

[18]

Furthermore, the appellant argues that the trial
    judge did not give appropriate weight to the length of the marriage. She contends
    that the trial judge ought to have applied a formula that pro-rates the equalization
    payment according to the length of cohabitation. As the parties cohabited for
    52 months, the appellant argues that any unequal division should be calculated
    at 87% of full equalization (52/60 months), which would entitle the appellant
    to $92,458.80.

[19]

We do not agree that the trial judge made any
    error in the exercise of her discretion. Although applying a mathematical
    formula based on the length of the marriage provides the benefit of certainty,
    neither the Act nor relevant case law requires the trial judge do so. As this court
    held in
Gomez v. McHale
, 2016 ONCA 318, 79 R.F.L. (7th) 305, at paras.
    11-12:

In several cases, courts have looked at the actual period of
    cohabitation (e.g. 48 months) and then fixed an unequal division of net family
    property using that period as a percentage of the five year statutory period,
    i.e. 48/60 = 80 [percent]).

Although a
    mathematical formula may be of assistance in some cases, we do not think that
    the motion judge erred by not applying it in this case
.
He did what s. 5(6) of the

FLA

requires. He looked
    carefully at the backgrounds of both parties, determined that an equal division
    would be unconscionable, and fixed what he regarded as a reasonable figure.
    We see no error in the motion judges approach. [Citations omitted; emphasis
    added.]

[20]

Similarly, it was not an error for the trial
    judge to reason as she did, and not to apply the mathematical formula proposed
    by the appellant. Contrary to the appellants argument, the trial judges
    conclusion was neither unreasoned nor unjustified. Paragraph 37, which contains
    a bare statement of the trial judges conclusion, is not the whole of the
    analysis and must not be read as though it were unconnected to the preceding paragraphs
    that first recite the trial judges factual findings and then analyze the
    parties obligations using the criteria set out in s. 5(6). The trial judges ultimate
    conclusion  that the appellant is entitled to 10% of full equalization  was a
    reasoned conclusion flowing from the findings that preceded it.  Her findings give
    an ample basis for understanding why she choose not to apply a mathematical formula,
    as was done in
Zheng v. Xu
, 2019 ONSC 865, 23 R.F.L. (8th) 436. The
    facts of that decision, although involving the dissolution of a marriage of similar
    duration, is dissimilar in many other relevant respects. Unlike in
Zheng
,
    the appellants only financial contribution to the matrimonial home (or any
    other family property) came from property that she had first received as a gift
    from the respondent. To have applied the time-weighted approach in this case
    would have required the trial judge to ignore the relevant differences between
    the two cases.

DISPOSITION

[21]

The appeal is dismissed. Costs of the appeal are
    awarded to the respondent in the amount of $20,000 inclusive of HST and
    disbursements.

G.R.
    Strathy C.J.O.

David
    Brown J.A.

B.W.
    Miller J.A.