COURT OF APPEAL FOR ONTARIO

CITATION: Kechnie v. Sun Life Assurance Company of Canada,

2016 ONCA 434

DATE: 20160602

DOCKET: C60952

Strathy C.J.O., Blair and Lauwers JJ.A.

BETWEEN

Doug Kechnie and Kechnie Financial Group Inc.

Plaintiffs

(Appellants)

and

Sun Life Assurance Company of Canada, Sun Life
    Financial Investment Services (Canada) Inc. and Sun Life Financial Distributors
    (Canada) Inc.

Defendants

(Respondents)

Jeffrey Larry and Alysha Shore, for the appellants

Stephen F. Gleave and Richelle M. Pollard, for the respondents

Heard: May 13, 2016

On appeal from the Judgment of Justice E. M. Stewart of
    the Superior Court of Justice, dated November 25, 2015, with reasons reported
    at 2015 ONSC 3714.

R.A. Blair J.A.:

Factual Overview

[1]

The appellants seek to set aside the judgment of Stewart J. dismissing
    their claim against Sun Life Assurance Company of Canada for the payment of
    certain commissions.

[2]

Doug Kechnie is an insurance agent and investment advisor who sold Sun
    Life insurance and financial products to his clients for more than 30 years,
    through his company Kechnie Financial Group Inc. (KFG). Sun Life terminated
    its agreements with Mr. Kechnie and KFG (together, the Kechnies), as it was
    entitled to do, in October 2008.

[3]

At the time, the Kechnies had accumulated a book of business that
    would entitle them to post-termination commissions of $22,435.19 per month for
    a period of 10 years (roughly $1.85 million in present value terms) in
    accordance with what is known as Sun Lifes Commissions on Release (CORe)
    program.  Under that program, Sun Lifes advisors and agents were paid
    commissions following termination over a 10-year period, based on a percentage
    of the value of the estimated commissions that Sun Life reasonably anticipated
    would be payable on the products sold by them but remaining with Sun Life
    following termination for that period.

[4]

But the CORe agreements also provided, in s. 6.7.2, that no further
    commissions would be payable if, after termination and during the 10-year
    period, the advisor advises, counsels or induces a Client holding a Policy on
    which such Commissions are being paid, to: (a) terminate, surrender, cancel, or
    Replace the Policy; (b) allow the Policy to lapse; or (c) reduce the amount of
    the Premiums being paid under the Policy. It is the enforceability of Sun
    Lifes ability to terminate the Kechnies CORe payments pursuant to this clause
    that is at the heart of the dispute.

[5]

Following the termination, Mr. Kechnie joined his son at another
    insurance and financial advisory agency. Although there is a dispute over the
    extent to which it occurred, and the value of the business involved, it is
    uncontestable on the record that Mr. Kechnie advised, counselled or induced a
    significant number of his Sun Life clients to terminate or replace their Sun
    Life products and policies and to transfer them to his new business. Upon
    discovering this  after payment of the first monthly amount  Sun Life
    terminated the future stream of CORe payments. The Kechnies claim to recover
    them was dismissed at trial.

[6]

The Kechnies appeal, arguing that their CORe rights were vested
    proprietary rights at the time of termination, that the CORe termination provisions
    were unenforceable forfeiture provisions, and that they were entitled to relief
    from forfeiture and, therefore, to the payment of the commissions (or at least
    the CORe commissions less the commissions Mr. Kechnie admits to have received
    from the transferred business). They contend that the trial judge erred in failing
    to hold that their rights to the payment of CORe commissions were vested
    rights at the time of termination and by holding, instead, that they were contingent
    rights conditional upon the appellants compliance with the payment-for-release
    requirements in the CORe agreements.

[7]

I reject these submissions.

Analysis

The CORe Program

[8]

Although it may be expressed in differing ways, the central concept
    driving the CORe program is the following. In exchange for the terminated
    advisors book of business remaining within the Sun Life constellation  for
    transition to other Sun Life advisors who are willing to pay a price for
    receiving them  and in recognition of the advisors contribution in creating
    that asset for Sun Life, the terminated advisor is to be paid commissions
    reflecting some portion of the continuing premium and other incidental revenue generated
    by that business over a period of 10 years. The terminated advisor profits from
    a continuing flow of revenue, tied to the previous business, for an extended
    period. Sun Life profits by retaining the benefits of the long-term retention
    of existing business and the potential for the generation of new business from
    those clients; it does so through its ability to transfer the business to new
    advisors for a price. To protect the integrity of the CORe program, however, the
    terminated advisor loses the right to the stream of post-termination commissions
    if the advisor engages in replacement activities that result in the book of
    business being transferred elsewhere. Were it otherwise, the entire purpose of
    the CORe program would be undermined: new advisors would be unwilling to pay
    for a book of business that might well be enticed away from them by a
    terminated advisor with an existing long-standing client relationship; Sun Life
    would therefore lose the long-term benefits of retention of the business; and
    the terminated advisor would profit twice over, by receiving both the CORe
    payments based on the released book of business in addition to the revenues and
    other benefits derived from the book of business the advisor is supposed to
    have released, but rather entices away.

[9]

The key is that the book of business remains with Sun Life. As the
    respondent observes: It is for this exact reason that CORe is called Commission
on Release
 (emphasis added). In relation to the termination of the
    CORe payments, the agreements also stipulated in s. 6.7.4:

The Advisor acknowledges and agrees that:

(b) in agreeing to the terms of [the Schedule setting out the
    CORe payments] the Company assumes that the Advisor and the Representative will
    not engage in the conduct referred to in section 6.7.2 of this Agreement.

[10]

The
    trial judge accurately captured the sense and purpose of the CORe program when
    she stated, at para. 28:

The clear language of the Agreements demonstrates that the
    parties intended that continuation of the CORe payments was to be contingent
    upon compliance with the obligations imposed upon the Agents, and [upon the
    Agents] refraining from interfering with Sun Lifes arrangements to retain the
    business of those clients historically serviced by the Plaintiffs. If the
    Plaintiffs were not prepared to comply, they were free to engage in such
    conduct subject to any non-solicitation provision.  By so doing, however, they
    would give up all entitlement to receipt of CORe payments.

The Vesting Issue

[11]

At
    trial and on appeal the appellants argued that their right to CORe payments was
    a vested proprietary right that had been fully earned, and to which they had
    become fully entitled, prior to termination. They see the resolution of the
    vesting issue as a threshold question that must be dealt with before the
    secondary question regarding the enforceability of the CORe termination
    provisions can be considered. In their view, it is a legal pre-requisite that
    an advisors right to CORe payments be vested in order for the [relief from]
    forfeiture analysis to apply.

[12]

The
    appellants submit that the trial judge failed to conduct a proper analysis of
    the issue and erred in failing to hold that their right to CORe payments was
    vested.

[13]

I
    see it differently.

[14]

The
    foregoing observations about the nature and purpose of the CORe program apply
    equally whether the right to the future stream of commissions is characterized as
    vested or contingent. If the Kenchies entitlement to CORe payments was a
    vested right, it was subject to being divested, or forfeited, upon their
    choice to engage in the targeted economic activity; if it was a contingent
    contractual right, it was subject to being defeated, or forfeited, if the
    conditions underpinning that right to payment were not satisfied because of
    that same choice.

[15]

The
    appellants provide no authority for the proposition that relief from forfeiture
    only lies where a contractual provision operates to deprive a defaulting party
    of a vested or proprietary right and, in my view, the jurisprudence does not
    impose such a requirement.

[16]

Accordingly,
    while a finding that the CORe program provided the Kechnies with a vested proprietary
    right to the future stream of payments may provide them with a stronger footing
    to resist forfeiture  because of a general reluctance by the courts to deprive
    people of a vested property right  such a finding is not necessary for a determination
    of the proceeding. A contractual term that provides for the forfeiture of the
    right to future payments in the event the holder of the right engages in
    certain conduct in the future may or may not be enforceable by the courts,
    whether the right has become vested or not. As I explain below, enforceability depends
    on whether the forfeiture clause has penal consequences and, if so, whether it
    would be unconscionable for the innocent party to receive the benefit of the
    forfeiture:
869163 Ontario Ltd. v. Torrey Springs II Associates Ltd.
    Partnership
(2005), 76 O.R. (3d) 362 (C.A.). Whichever
path
is followed  a vested property right or a contingent contractual right  each
    leads to the same gateway through which the appellants must pass: relief from
    forfeiture.

[17]

The
    real issue here is not whether the Kechnies right to CORe payments was vested
    or contingent. The real issue is whether the CORe payment termination provision
    is properly characterized as a forfeiture clause with penal consequences and,
    if so, whether the Kechnies are entitled to relief from forfeiture in the
    circumstances. The trial judge adopted this overall approach. In the process,
    she analysed the nature of the CORe agreements for this purpose and concluded
    that they provided for a contingent right to the future payments, subject to
    the Kechnies complying with the non-replacement restrictions of s. 6.7.2. That
    she declined to adopt the appellants submission that the rights were vested
    was not fatal to her ultimate decision rejecting their claim.

The Forfeiture Analysis

[18]

The
    appellants rightly refrain from asserting that the CORe payment termination
    clause is a penalty and therefore unenforceable because of the common laws
    reluctance to enforce such clauses. A penal clause involves the payment of a
    sum as a consequence of a breach that does not represent a genuine pre-estimate
    of damages at the time the contract is entered into:
Dunlop Pneumatic Tyre
    Co. v. New Garage & Motor Co.
, [1915] A.C. 79 (H.L.), at pp. 86-87.

[19]

The
    CORe payment termination clause is not such a provision. However, it may
    properly be characterized as a forfeiture clause, because it involves the
    loss, by reason of some specified conduct, of a right, property, or money:
Torrey
    Springs
, at para. 22. And it could, potentially, involve penal
    consequences, since the right forfeited by the defaulting party might in some
    circumstances bear no relation to the loss suffered by the innocent party. Counsel
    for the appellant gave us an example of the latter when he posited a situation
    where termination of a significant CORe payment stream occurred after a
    terminated advisor enticed away a
de minimus
portion of the total book
    of business the advisor had released to Sun Life on termination.

[20]

Default
    triggering the operation of a forfeiture clause attracts a
    relief-from-forfeiture analysis where there are concerns about penal
    consequences and about unconscionability. The jurisprudence recognizes  in the
    spirit of honouring parties rights to freedom of contract and their right to
    define their own consequences of breach  that penal clauses and forfeiture
    clauses (referred to below as stipulated remedy clauses) may be enforced
    unless these two requirements underlying the granting of relief from forfeiture
    weigh against it.

[21]

For
    this reason, the appellants are incorrect when they assert that the trial judge
    erred in considering whether the CORe payment termination clause had penal
    consequences. Penal consequences are the first concern in the relief-from-forfeiture
    inquiry. Equity does not relieve against all forfeiture consequences that may
    be negotiated by parties. It relieves against penal forfeitures.  The
    analysis is conducted as of the time of the default, and not on the basis of a
    hypothetical situation.

[22]

Sharpe
    J.A. put it this way in
Torrey Springs
, at paras. 25-26:

Equity, on the other hand, considers the enforceability of
    forfeitures at the time of breach rather than at the time the contract was
    entered.
[1]
Equity also looks beyond the question of whether or not the stipulated remedy
    has penal consequences to consider whether it is unconscionable for the
    innocent party to retain the right, property, or money forfeited. As explained
    by Denning L.J. in
Stockloser v. Johnson
, [1954] 1 All E.R. 630 (Eng.
    C.A.) at 638:
Two things are necessary
: first, the
    forfeiture clause must be of a penal nature, in the sense that the sum
    forfeited must be out of all proportion to the damage; and, secondly, it must
    be unconscionable for the seller to retain the money.

The central pillar of the appellants argument, as I
    understand it, is that there is an iron-clad rule to the effect that all
    stipulated remedy clauses, whether penalties or forfeitures, assessed at the
    date of the contract as having penal consequences will not be enforced. In my
    view, that proposition does not represent an accurate statement of the law.
Not
    all stipulated remedy clauses having penal consequences are unenforceable. In
    particular, the equitable doctrine of relief from forfeiture enforces such
    penalty clauses, where they are in the form of a forfeiture, where it is not
    unconscionable to do so.
[Emphasis added.]

[23]

Much
    of the analysis in
Torrey Springs
was directed towards smoothing out
    the rigid distinction between the common laws treatment of penal clauses
    (unenforceable at common law) and equitys treatment of forfeiture clauses
    (subject to relief if the penal consequences and unconscionability requirements
    are met), concluding, at para. 32, that, courts should, whenever possible,
    favour analysis on the basis of equitable principles and unconscionability over
    the strict common law rule pertaining to penalty clauses. While this
    distinction is not important for this appeal, the underlying principle for
    moving away from the distinction  a reluctance to extend the strict common law
    rule refusing to enforce penalty clauses  is of some significance because it
    reinforces the growing tendency in the jurisprudence favouring the enforcement
    of stipulated remedy clauses that have been freely negotiated by the parties. Referring
    to the reluctance to extend the common law rule and to the enforcement of
    stipulated remedy clauses, Sharpe J.A. added the following, at para. 34 in
Torrey
    Springs
:

This is closely related to the fourth factor, namely, the
    policy of upholding freedom of contract. Judicial enthusiasm for the refusal to
    enforce penalty clauses has waned in the face of a rising recognition of the
    advantages of allowing parties to define for themselves the consequences of
    breach.  As I have already noted, in
Elsley, supra,
[2]

Dickson J. labeled the penalty clause doctrine as a blatant interference
    with freedom of contract, a sentiment echoed by the English Court of Appeal in
Else
.
[3]

[24]

What
    flows from this is that the trial judge was required to determine whether the
    CORe payment termination clause had penal consequences  a determination that
    is made as of the time of default  and, if so, whether relief from forfeiture
    should be granted because it would be unconscionable to permit Sun Life to
    retain the benefits of the unpaid CORe amounts.  That is precisely the analysis
    in which she engaged.

Relief from Forfeiture

[25]

After
    examining the provisions of the CORe agreements and arriving at her interpretation
    of their meaning, beginning at para. 44, the trial judge addressed the question
    whether the provisions disentitling the appellants to receive the CORe payments
    were unenforceable as punitive forfeiture clauses or an unreasonable restraint
    of trade.
[4]
She held they were not.

[26]

The
    appellants accept that trial judge applied the proper test for granting relief
    from forfeiture, as set out in
Kozel v. Personal Insurance Co
., 2014
    ONCA 130, 119 O.R. (3d) 55, at para. 31:

In exercising its discretion to grant relief from forfeiture, a
    court must consider three factors: (i) the conduct of the applicant, (ii) the
    gravity of the breach, and (iii) the disparity between the value of the
    property forfeited and the damage caused by the breach.

[27]

However,
    they submit that she erred in in applying the test. I disagree.

[28]

Whether
    to grant or refuse relief from forfeiture, as an equitable remedy, is a purely
    discretionary decision: the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43, s. 98;
Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance
    Co.
, [1994] 2 S.C.R. 490, at para. 32. Here, the trial judge reviewed the
    record in the context of all three of the foregoing factors. In substance, the
    appellants simply disagree with the findings she made.

[29]

For
    example, the appellants contend that the disparity between their loss of the
    CORe payments and any damage Sun Life suffered from the breach was entirely
    disproportionate. They submit that they lost over $1.8 million in CORe
    payments, while recovering only about $600,000 from the transferred business
    and that Sun Life benefitted additionally by receiving almost $675,000 from
    other Sun Life advisors who purchased portions of the Kechnies book of
    business.  They say that Mr. Kechnies conduct was reasonable and did not
    constitute a blatant or intentional breach of the terms of the agreement, and
    that Sun Life treated the Kechnies badly.

[30]

The
    trial judge did not see it that way, however. She accepted Sun Lifes evidence
    and held that its reconstructed data was more reliable than the figures
    offered by the Plaintiffs (para. 57). She found that: Mr. Kechnie had
    transferred over 600 Sun Life clients and 60 life insurance policies to his
    sons firm; roughly $20 million of Mutual Funds assets were moved from Sun Life
    to the new business; the market value of the mutual funds and segregated funds
    in the book of business formerly serviced by Mr. Kechnie at Sun Life decreased
    by 84% between 2008 and 2014; and Mr. Kechnie could earn between $2-3 million
    in revenue from the transferred business with the result that he would earn
    from those clients revenue that was at least equal to or greater than the CORe
    payments he would otherwise have received (paras. 33-40). She also found that
    Mr. Kechnie knew very well the nature of the provisions he had contracted to
    and their implications for conduct following termination and, indeed, had been
    directly involved in the various internal discussions which occurred
    surrounding the rollout of the new system (paras. 49 and 52).

[31]

On
    the basis of this evidence the trial judge characterized Mr. Kechnies
    activities as a systematic attack on the goodwill in the former block of
    business (para. 33) and (on his premise that he would be entitled to receive
    the CORe payments) as a flagrant breach of contractual obligations (para. 53).

[32]

In
    the end, the trial judge determined that the CORe payment termination
    provisions were not punitive in nature or a penalty, nor were they contrary to
    public policy. Having so found, she correctly concluded that the principles of
    relief from forfeiture were not engaged. Nonetheless, she went on to address
    the appellants claim that the operation of the provisions was unconscionable,
    harsh and inequitable. Her findings led her to reject these claims as well.

[33]

These
    conclusions were amply supported by the record and completely justify the trial
    judges conclusion that the appellants were not entitled to relief from
    forfeiture in the circumstances.

Other Considerations

[34]

Because
    it is unnecessary to characterize the CORe payment right as vested or
    contingent for the purposes of resolving this proceeding, I need not address
    the jurisprudence referred to us in which courts have characterized payments
    made under the CORe program, or similar programs, for other purposes and in
    other contexts such as those related to compensation payments (e.g.,
Levinsky
    v. Toronto-Dominion Bank
, 2013 ONSC 5657), or to the calculation of
    equalization payments in family law situations (e.g.,
Dunham v. Dunham
,
    2012 ONSC 2338;
Brandt v. Brandt
, [1998] M.J. No. 531 (Man. Q.B.)).

[35]

Nonetheless,
    the trial judges decision is consistent with other authorities supporting the
    enforceability of forfeiture provisions in contracts of a similar nature to the
    CORe payment termination clause.

[36]

For
    example,
Inglis v. The Great-West Life Assurance Co.
, [1942] 1 D.L.R. 99
    (Ont. C.A.), involved a forfeiture clause respecting payments by an insurer to
    an insurance agent following termination of employment. The clause provided
    that the company would continue to pay the agent the commissions on business
    written during the continuance of this agreement to which the Agent would have
    been entitled if this agreement had remained in force; however, if the agent became
    connected with or [did] business directly or indirectly for any other life
    insurance company the commissions were forfeited. The agent subsequently began
    to work for another life insurance company. His claim to recover the
    commissions was unsuccessful. The Court of Appeal held that the forfeiture
    clause did not constitute a penalty. Its reasoning is instructive for the
    present appeal.  At p. 102, Masten J.A. said:

We are of the opinion that the provisions of [the forfeiture
    clause] are not in the nature of a penalty.  Whether it is to be considered as
    part of the remuneration provided by the agreement when read as a whole, or as
    a separate provision entered into in consideration of the right of either party
    to cancel on notice, appears to the Court to be immaterial. In either case it
    is the agreement of the parties, not a penalty.  The plaintiff agreed that if
    he chose to join another life insurance company these payments would cease. He
    did so choose, and their cessation is not in the nature of a penalty but is in
    pursuance of the agreement by which the plaintiff voluntarily bound himself in
    the beginning.

[37]

The
    Court also agreed that the clause was not in restraint of trade. Other
    authorities holding that similar forfeiture provisions are valid and enforceable
    against the defaulting party, either because they do not constitute a penalty
    or because they do not operate in restraint of trade, or both, include:
Webster
    v. Excelsior Life Insurance Co.
(1984), 50 B.C.L.R. 381 (S.C.), at p. 382;
Roy v. Assumption Mutual Life Insurance Co.
(2000), 222 N.B.R. (2d)
    316 (Q.B.), at paras. 56-61;
Burgess v. Industrial Frictions & Supply
    Co
. (1987), 12 B.C.L.R. (2d) 85 (C.A.), at pp. 89-90. These decisions
    support the trial judges conclusions.

Disposition

[38]

For
    the foregoing reasons, I would dismiss the appeal.

[39]

In
    accordance with the agreement of counsel I would fix the costs of the appeal in
    favour of the respondents in the amount of $24,600 inclusive of disbursements
    and all applicable taxes.

Released:  June 2, 2016

R.A. Blair J.A.

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

I agree P. Lauwers J.A.

[1]

In contrast to the common law, which focused on whether a
    clause was a penalty clause as at the time the contract was made.

[2]

Elsley v. J. G. Collins Insurance Agencies Ltd.
, [1978] 2 S.C.R. 916.

[3]

Else (1982) Ltd. V. Parkland Holdings Ltd.
, [1993] E.W.J. No. 4674 (C.A.).

[4]

The appellants do not assert a restraint of trade argument on
    appeal.


COURT OF APPEAL FOR ONTARIO

CITATION: Keizer (Re),
    2016 ONCA 483

DATE: 20160616

DOCKET: C61774/C61899

MacFarland, van Rensburg
    and Huscroft JJ.A.

IN THE MATTER OF:
    Timothy Keizer

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Suzan E. Fraser and Cate Martell, for the appellant
    Timothy Keizer

Barbara Walker-Renshaw, for the appellant the
    Person-in-Charge, St. Josephs Healthcare Hamilton

Amy Rose, for the respondent Her Majesty the Queen

Janice Blackburn, for the respondent the
    Person-in-Charge, Waypoint Centre for Mental Health Care

Heard: June 1, 2016

On appeal from the disposition of
    the Ontario Review Board, dated January 7, 2016.

ENDORSEMENT

[1]

The appellants, Timothy Keizer (Keizer) and the Person-in-Charge, St. Josephs
    Healthcare Hamilton (St. Josephs), appeal from a disposition of the Ontario
    Review Board, denying Keizers request for an absolute discharge and ordering
    that he be transferred from Waypoint Centre for Mental Health Care (Waypoint)
    to St. Josephs pursuant to a hybrid disposition.

[2]

The index offence was a failure to comply with a recognizance following
    a charge of threatening death in 2012. Keizer was found not criminally
    responsible for breaching his recognizance and held at St. Josephs. (He was
    subsequently acquitted of the threatening death charge.) He was diagnosed with
    delusional disorder, persecutory type and assessed as incapable of consenting
    to treatment. This assessment was upheld by the Consent and Capacity Board and
    an appeal to the Superior Court was dismissed.

[3]

Keizer argues that the Board erred in concluding that he poses a
    significant threat to public safety. St. Josephs argues that the Boards
    decision is unreasonable because it failed to consider the threat to public
    safety. In addition, St. Josephs argues that the Board breached the duty of
    fairness it owed to St. Josephs and that, as a result, its decision
    should be quashed.

[4]

We will address the procedural fairness argument before considering the
    Boards decision.

Did the Board breach the duty of fairness?

[5]

St. Josephs argues that the Board breached the duty of fairness by
    failing to give notice of its intention to override St. Josephs objection to
    Keizers transfer and failing to provide an opportunity to St. Josephs to make
    further submissions or file further evidence opposing the transfer.

[6]

This argument must be rejected.

[7]

It is clear that St. Josephs knew and understood what was at stake in
    the Board proceedings. By letter dated September 25, 2015, Keizer informed the
    Crown, the Board, Waypoint, Ontario Shores Centre for Mental Health Services,
    and St. Josephs that he would be requesting a transfer from Waypoint to a less
    secure facility, and that one of his choices was St Josephs. This notice was
    provided pursuant to rule 13 of the Ontario Review Boards Rules of Procedure.

[8]

On October 22, 2015, St. Josephs replied, informing the parties that it
    did not agree that Keizer could be managed in a less secure environment and
    that he continued to pose a threat that requires the greater level of security
    provided at Waypoint. But St. Josephs took no further action. It made no
    submissions and did not seek to participate in the Boards review process.

[9]

It is not obvious that St. Josephs  a public institution  was owed a
    common law duty of fairness by the Board in the context of Keizers request for
    an absolute discharge. But even assuming that it was, in our view the duty
    would extend no further than the notice it received pursuant to rule 13. Having
    chosen not to take any further steps to participate in the review process, St.
    Josephs cannot be heard to assert that the Board acted unfairly in determining
    Keizers request on the basis of the submissions that were made before it.

Is the Boards decision unreasonable?

[10]

The Boards decision is reviewable on a reasonableness standard, as
    prescribed by s. 672.78 of the
Criminal Code
. The court is required to
    review the decision of the Board pursuant to administrative law principles:
R.
    v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 34. The Board was
    required to exercise its expert judgment based on its evaluation of the
    relevant evidence, and the reasonableness of its decision must be evaluated by
    considering the reasons given by the Board in the context in which its decision
    was made.

[11]

Keizer argues that the Boards decision is unreasonable because the
    Board did not accept the evidence of Dr. Bergstrome, the only witness with
    recent clinical experience with him. Dr. Bergstrome found Keizer capable of
    consenting to treatment and discontinued his anti-psychotic medication. He
    testified that Keizer does not have a delusional disorder, persecutory type.
    Keizer has never been physically violent and, according to Dr. Bergstrome, poses
    no significant risk to public safety.

[12]

St. Josephs argues that the Board failed to consider the safety of
    those who had been psychologically harmed by Keizers threats and would be
    exposed to him if he were returned to St. Josephs. It submits that the Board
    considered only the needs of Keizer and his proximity to friends and family in
    the Hamilton area.

[13]

These arguments must be rejected.

[14]

The Board found that Keizer suffers from a delusional disorder,
    persecutory type, which he neither acknowledges nor accepts treatment for. This
    finding was open to the Board on the evidence that was before it, which
    included Keizers history documented in the Hospital Report. Keizer was
    diagnosed with delusional disorder in 2002 and with delusional disorder,
    persecutory type in 2007. Several attending psychiatrists made the same
    diagnosis since that time.

[15]

The Board was under no obligation to accept Dr. Bergstromes opinion, in
    whole or in part. The Board is an expert tribunal whose membership includes two
    psychiatrists, and it is entitled to form its own opinion and make its own
    finding on the matter. Given Keizers extensive history, it cannot be said that
    the Boards finding about his diagnosis is unreasonable.

[16]

The Board also rejected Dr. Bergstromes opinion in finding that Keizer
    continues to pose a significant threat to the safety of the public. The Board
    was entitled to conclude, as it did, that a reasonable person would feel
    threatened by Keizers threats, despite the absence of violent behaviour
    which the threat recipients might not be aware of in any event.

[17]

Finally, the Board was entitled to consider Keizers proximity to family
    and friends in crafting its disposition order. The Board noted Keizers
    maintenance of security privileges at Waypoint and his progress, and quite
    properly factored these into its disposition. The Board acknowledged
    St. Josephs opposition to the Keizers transfer from Waypoint, but
    concluded that the least onerous and least restrictive disposition was a hybrid
    disposition, detaining him in the Secure Forensic Service and General Forensic
    Service at St. Josephs with privileges up to entering the community of
    Hamilton, accompanied by staff.

[18]

In all of the circumstances, we are satisfied that the Boards decision
    is reasonable and must be upheld.

[19]

The appeal is dismissed.

J.
    MacFarland J.A.

K.
    van Rensburg J.A.

Grant
    Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kukemueller v. Ontario (Community Safety and
    Correctional Services), 2016 ONCA 451

DATE: 20160608

DOCKET: C60869

Laskin, Lauwers and Roberts JJ.A.

BETWEEN

Gerrit
    Kukemueller, Jacqueline Kukemueller,

Justin
    Kukemueller and Joshua Kukemueller

Plaintiffs (Respondents)

and

Her
    Majesty the Queen in right of Ontario as represented by the

Ministry
    of Community Safety and Correctional Services operating

as the
    Ontario Provincial Police and its employees Kevin Cameron,

Derek
    Robertson, Shawn Filman, Troy Beavis, Mike Davidson, Jason

Katz,
    Jamie Brockley, Malcolm McArthur, Mark Mussington, Marc

Gravelle,
    Robert Flindall, Gerry Smith, Brent Anderson, Kaury

Jones,
    Jennifer Payne, Yves Piette, Chad LePerle, Fran Crowe, J.

Birmingham,
    Jane Doe, John Doe, Aaron MacMillan, and its Retirees

Brad
    Filman and Norm Shaw, the Attorney General of Ontario, and

James A. Hughes

Defendants (
Appellant
)

Heather MacKay and Farzin Yousefian, for the appellant

Gerrit Kukemueller, acting in person

Jacki Kukemueller, acting in person

Heard and released orally:  June 1, 2016

On appeal from the order of Justice Laura Bird of the Superior
    Court of Justice, dated July 13, 2015.

ENDORSEMENT

[1]

We allow the appeal even though the action has been discontinued, in
    order to clarify the law.  Section 8 of the
Ministry of the Attorney
    General Act
, R.S.O. 1990, c. M.17
gives individual Crown Attorneys immunity from being named personally in an
    action or proceeding for damages alleging prosecutorial misconduct, and
    substitutes the Attorney General as the proper defendant.

[2]

The motion judge erred in finding s. 8 was in force in 1990. In fact, it
    came into force on December 15, 2009.  There is no reason to doubt the
    effectiveness of s. 8 of the
Act
. The cases on which the motion judge relied
    to come to the opposite conclusion and dismiss the appellants motion,
    including
Kvello

v. Miazga
, 2009 SCC 51, [2009] 3 S.C.R. 339, all
    predated s. 8s enactment.

John Laskin J.A.

P. Lauwers J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lattuca v. Smith, 2016 ONCA 476

DATE: 20160615

DOCKET: C61184

MacPherson, Rouleau and Pardu JJ.A.

BETWEEN

Joseph Lattuca

Plaintiff (Appellant)

and

Frank C. Smith, Gamal Kousa, John Doe, Jane Doe,
    Hamilton Health Sciences Corporation

Defendants (Respondents)

Jillian Van Allen, for the appellant

Andrew M. Porter for the respondents Frank C. Smith and
    Gamal Kousa

Logan Crowell, for the respondent Hamilton Health
    Sciences Corporation

Heard: June 9, 2016

On appeal from the judgment of Justice Dale Parayeski of
    the Superior Court of Justice, dated September 17, 2015.

ENDORSEMENT

[1]

The appellant Joseph Lattuca appeals the Order of Parayeski J. of the Superior
    Court of Justice dated September 17, 2015 dismissing his motion to extend an
    expired timetable in a medical malpractice action against the respondent
    doctors and hospital.

[2]

The motion judge applied the test from
Marché d`Alimentation Denis
    Theriault Ltee v. Giant Tiger Stores Ltd.
, 2007 ONCA 695, which directs
    that four factors should be considered when determining whether relief should
    be granted from an order dismissing an action for non-compliance with statutory
    time requirements:

(1)

any explanation for the delay;

(2)

whether there was inadvertence in missing the deadline to set the action
    down as ordered;

(3)

whether the motion seeking relief was brought promptly; and

(4)

any prejudice to the defendant(s) should the action be allowed to
    continue.

[3]

The motion judge found in favour of the appellant on the third factor
    and in favour of the respondents on the other factors. He did not grant the
    appellant an extension of time.

[4]

On appeal, the appellant contends that the motion judge did not consider
    certain relevant evidence relating to the time periods in the action and failed
    to take sufficient account of the fact that medical malpractice cases can be
    complicated and time consuming.

[5]

We do not accept these submissions. The history of delay and inactivity by
    the appellants lawyers in this case was unrelenting and inexcusable. We agree
    with the motion judge that the facts have transcended anything that
    legitimately can be described as inadvertence.

[6]

The appellant submits that the motion judge erred in her assessment of
    the prejudice factor. He says that there is no direct evidence from the
    respondent physicians concerning their ability to recall significant events and
    that most of the relevant documents from the doctors and the respondent
    hospital are obtainable.

[7]

We are not persuaded by this submission. The surgery giving rise to the
    action took place almost eight years before the motion, some undertakings
    remained unfulfilled, and many relevant documents have not been obtained.
    Moreover, with respect to the hospital, the appellant received ongoing care at
    the hospital for six months following his surgery. He interacted with many
    caregivers. Without particulars, it is difficult for the hospital to know what
    is at issue  witnesses, documents  to preserve the evidence necessary to its
    defence. Finally, it should not be forgotten that there is always stress and
    concern when professional caregivers and institutions are accused of negligence
    relating to their care of patients.

[8]

The decision of the motion judge on this discretionary matter is
    entitled to deference. We can see no error in the way he dealt with each of the
    four factors or in the way he balanced them in arriving at his ultimate
    decision.

[9]

The appeal is dismissed. The respondents are entitled to their costs of
    the appeal fixed at $6,500 (doctors) and $3,500 (hospital), inclusive of
    disbursements and HST.

J.C. MacPherson J.A.

Paul Rouleau J.A.

G.
    Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Middlesex Centre (Municipality) v. MacMillan, 2016
    ONCA 475

DATE: 20160616

DOCKET: C60543

Doherty, Epstein and Huscroft JJ.A.

BETWEEN

Municipality of Middlesex Centre

Applicant (Appellant)

and

David Ronald MacMillan, Janice Lynn McIntosh and
    Her Majesty the Queen in Right of Ontario

Respondents (Respondents in Appeal)

James D. Virtue, for the appellant

Analee J.M. Ferreira and E.
    Cormier, for the respondents David MacMillan and Janice McIntosh

No one appearing for the
    respondent Her Majesty the Queen in Right of Ontario

Heard:  February 4, 2016

On appeal from the order of Justice A. Mitchell of the Superior
    Court of Justice, dated May 8, 2015, with reasons reported at 2015 ONSC 2988.

Doherty J.A.:

I

[1]

David Ronald MacMillan and Janice Lynn McIntosh (the respondents) own
    and live on a 10-acre lot near London, Ontario.  They decided to construct a
    second house on the property and sell that house.  However, the applicable
    zoning laws allowed only one house per lot.  The respondents could build the
    second house only if they could divide their 10-acre lot into two lots.  An attempt
    by a previous owner to obtain a severance under the
Planning Act
,
    R.S.O. 1990, c. P.13, had failed.

[2]

As luck would have it, Bear Creek (the Creek)
[1]
runs through the middle of the respondents property.  If the Creek is a navigable
    body of water or stream within the meaning of s. 1 of the
Beds of
    Navigable Waters Act
, R.S.O. 1990, c. B.4 (the Act), the land forming
    the bed of the Creek is Crown land, creating a natural severance of the parts
    of the respondents lot on each side of the Creek.  What was one 10-acre lot
    would become two lots of about five acres each.

[3]

The respondents retained a land surveyor who offered the opinion that the
    Creek was a navigable stream.  Acting on that opinion, the respondents
    registered a reference plan prepared by the surveyor on title to their property
    showing the creek bed as Crown land and dividing their property into Part 1
    north of the Creek and Part 2 south of the Creek.  The respondents conveyed
    Part 2 to Mr. MacMillan alone.  He applied for a permit to build a home on Part
    2.

[4]

The Municipality of Middlesex Centre (the appellant) did not agree that
    the Creek was a navigable stream.  It brought an application seeking a
    declaration that the Creek was not a navigable stream and a further declaration
    that the purported conveyance of Part 2 to Mr. MacMillan was void as contrary
    to the
Planning Act
.  The Province was named as a respondent in the
    application.  It supported the position taken by the appellant.  The
    application judge dismissed the application holding that the Creek was a
    navigable stream, making the bed of the Creek Crown land and creating a natural
    severance of the respondents property into two lots, one to the north of the
    Creek and one to the south.

[5]

The appellant appeals from the order dismissing the application.  It
    claims that the application judge misapprehended relevant evidence and
    considered irrelevant evidence in concluding that the Creek was a navigable stream.
    The appellant submits that the errors were sufficiently material to the outcome
    to overcome the deference owed by this court to the application judges fact
    finding.  The respondents resist the appeal arguing first that the application
    judge carefully reviewed the relevant case law and, second, that her findings
    were reasonably open to her on the totality of the material filed on the
    application.  The Province did not participate in the appeal.

II

[6]

The respondents property is part of Lot 32 located at the north end of
    Concession 10 in London Township (now the Municipality of Middlesex Centre).
    The property extends to the north to Ilderton Road, the dividing line between
    Concessions 10 and 11 in London Township and to the west to Vanneck Road, the
    dividing line between London Township and Lobo Township.

[7]

The Creek flows in a generally southwesterly direction across the
    respondents property, under Vanneck Road and into Lobo Township.  Eventually,
    the Creek flows into the Sydenham River which in turn flows into Lake St. Clair
    about 100 kilometres to the southwest of the respondents property.

III

[8]

Before addressing the question of navigability, I will briefly refer to
    two other issues that were raised on the application, but have now fallen by
    the wayside.  The first issue arises out of the Provinces argument on the
    application that the respondents were abusing the Act by using it to
    circumvent the
Planning Act
.  There
    can be no doubt that the respondents were attempting to use the Act, and in
    particular s. 1, to avoid the limits on severance imposed by the
Planning
    Act
.  It is equally clear that the Act was never intended as an
    alternative means to achieve severance.

[9]

The application judge held, at para. 49, that the respondents motive
    for advancing its claim was irrelevant to her determination of whether the
    Creek was a navigable stream.  I agree.  Navigability is essentially a factual
    question based upon an assessment of the capabilities of the waterway at the
    time of the Crown grant.  The answer to that question cannot turn on the motive
    of the party advancing or resisting the navigability claim over 100 years after
    the Crown grant.  The Creek is or is not a navigable waterway.  If s. 1 of the
    Act is having an unforeseen and unacceptable impact on effective land
    management in the Province, the Legislature can amend the Act.  I observe that
    this is hardly the first case in which s. 1 has been relied on to achieve
    severance of a lot:  see e.g.
Coleman v. Ontario (Attorney General)
(1983), 143 D.L.R. (3d) 608 (Ont. H.C.), at p. 611;
ODonnell v. Ontario
    (Attorney General)
, 2013 ONSC 590, at para. 3.  To date, there has been no
    legislative reaction.

[10]

The Province and not the appellant advanced the argument before the
    application judge that non-compliance with the
Planning Act
or other planning
    laws should somehow influence the determination of whether the Creek was
    navigable.  The appellant has not supported that position on appeal and the Province
    has not participated in the appeal.

[11]

The second issue that occupied some time on the application but has now
    disappeared is a factual one.  The appellant led evidence on the application in
    support of the contention that the course of the Creek as it presently runs
    through the respondents property is very different from that which had existed
    at the time of the original Crown grant in 1831.  This was important because
    navigability is determined as at the time of the original Crown grant.  The
    respondents took the position that any deviation in the watercourse was minor
    and of no significance.

[12]

The evidence on this issue is not easy to follow.  Most of the evidence
    focusses on the part of the Creek that passes from the respondents property
    under Vanneck Road into Lobo Township and the work done in 1969 to deepen the
    Creek for drainage purposes.  By the end of the application, the appellant had
    conceded that the Creek as it traverses the respondents property follows the
    same waterway that existed at the time of the initial Crown grant (see reasons,
    at paras. 17, 44-45).  The appeal has proceeded on the same basis.

IV

navigability

[13]

Under the common law of England, title to the bed of a navigable stream
    depended on whether the stream was tidal or non-tidal.  If the former, the
    Crown retained title of the bed.  If the latter, the landowner on either side
    held title to the mid-point of the stream:  see
The Keewatin Power Company
    v. The Town of Kenora
(1908), 16 O.L.R. 184, at pp. 188-89 (C.A.).  However,
    in Ontario, unlike England, a public right of navigation did not depend on ownership
    of the bed of the body of water in question.  The public right of navigation in
    Ontario extended to all navigable waters.  As Professor LaForest puts it, the
    rule is that if the waters are
de facto
navigable, the public right of
    navigation exists there, whether the waters are tidal or non-tidal.:  see G.V.
    LaForest,
Water Law in Canada: the Atlantic Provinces
,
(Ottawa: Information Council, 1973) at
    pp. 178-80;
The Tadenac Club Ltd. v. Hebner et al.
, [1957] O.R. 272,
    at pp. 274-75 (H.C.).

[14]

In 1911, the Ontario Legislature abandoned the common law distinction
    between tidal and non-tidal navigable waters for the purposes of determining
    title to the bed of waters.  Section 2 of the
The
Bed of Navigable Waters
    Act
, S.O. 1911
, c. 6
    provided that subject to an express grant by the Crown, title to the bed of any
    navigable water did not pass with the Crown grant and remained with the Crown.
    Subject to specified exceptions, the Act applied retroactively to Crown grants
    that preceded its enactment.

[15]

The present equivalent of s. 2 of the 1911 Act is s. 1:

Where land that borders on a navigable body of water or stream,
    or on which the whole or part of a navigable body of water or stream is
    situate, or through which a navigable body of water or stream flows, has been
    or is granted by the Crown, it shall be deemed, in the absence of an express
    grant of it, that the bed of such body of water was not intended to pass and
    did not pass to the grantee.

[16]

The parties agree that the original Crown grant of the respondents property
    in 1831 did not contain an express grant of title to the Creek bed and that no
    express grant has been made since then.  The parties also accept that s. 1 of
    the Act applies retroactively to the Crown grant of 1831 and that the
    navigability of the Creek must be determined as of that date:  see
Coleman
,
    at p. 612.  If the Creek was a navigable stream in 1831, title to the Creek bed
    resides in the Crown.  If the Crown has title to the Creek bed, the Creek bed
    severs the respondents lot into two lots, one north and one south of the
    Creek.

[17]

A stream is navigable if there is a right of navigability along that
    stream.  The right of navigability is a right of reasonable passage for public
    purposes along a waterway.  The right is akin to the public right of passage on
    a highway:
Coleman
, at p. 613;
Canoe Ontario v. Reed
(1989),
    69 O.R. (2d) 494 (H.C.), at p. 502.  The right of navigability entitles the
    public to use the waterway as a means of transportation.  The right does not
    extend to use for purely private purposes, or to other uses such as fishing and
    irrigation:  see LaForest,
Water Law in Canada
, at pp. 178-82;
Coleman
,
    at p. 614.

[18]

The right of navigability can only exist if the waterway is physically
    capable of being traversed by a boat of some sort.
[2]
However, what Henry J. in
Coleman
, at p. 613, referred to as
    navigable in fact, does not, standing alone, establish a right of
    navigability.  Navigability cannot be measured only by regard to the depth and
    width of the waterway.  In addition to being physically capable of use for
    transportation by boat, the waterway must also be capable for use as
    transportation in relation to a public purpose such as commerce, agriculture,
    or recreation:  LaForest,
Water Law in Canada
, at p. 180;
Coleman
,
    at pp. 614, 616-17.

[19]

The requirement that a waterway be capable of practical public use is a reflection
    of the public nature of the right of navigability.  In my view, the meaning of
    the word navigable in s. 1 of the
Act
must be informed by, and be
    consistent with, the nature of the right of navigability.  As explained in
Canoe
    Ontario
, at p. 502:

In essence, the test for navigability developed in Canada is
    one of public utility.
If a waterway has real or
    potential practical value to the public as a means of travel or transport from
    one point of public access to another point of public access, the waterway is
    considered navigable.

Navigability should depend on public
    utility.
If the waterway serves, or is capable of serving, a legitimate
    public interest in that it is, or can be, regularly and profitably used by the
    public for some socially beneficial activity, then, assuming the waterway runs
    from one point of public access to another point of public access, it must be
    regarded as navigable and within the public domain.  [Emphasis added. Citations
    omitted.]

[20]

Because the right of navigability is a public right that exists independent
    of any prior grant of the right and of the actual exercise of the right,
    navigability is determined by the waterways realistic potential to meet the
    criteria of navigability.  The actual exercise of the right of navigability
    through public use of the waterway is not a prerequisite to the existence of the
    right, or a finding of navigability under the
Act
.  If the waterway is capable of serving a
    legitimate public interest, it may be navigable:
Canoe
    Ontario
, at p. 503.

[21]

Although actual public use is not a prerequisite to a finding of
    navigability, the absence of any evidence that the waterway was used for any
    practical public purpose can provide circumstantial evidence that the waterway did
    not have the capacity to serve any public purpose and was therefore not navigable.

[22]

The public utility rationale underlying the right of navigability is
    also evinced by the requirement that the waterway runs from one point of public
    access to another point of public access.  The public does not have the right
    to go across private land to get onto a navigable waterway, but must access the
    waterway from a point of public access.  Similarly, the public does not have a
    right to go across private land upon leaving the navigable waterway.  Egress
    must be by way of a route to which there is a right of public access.  Absent
    proof of those two points of public access, the waterway between those points,
    no matter how wide or deep, has no practical value to the public as a means of
    transport and can serve no public utility.

[23]

Navigability is determined by reference to a specific location along the
    waterway.  The question is not whether Bear Creek as a whole is navigable, but
    rather whether the Creek as it runs over the respondents property is navigable:
Coleman
, at p. 614.

V

[24]

The appellant accepts that the application judge identified the correct
    legal principles relevant to the definition of navigable in s. 1 of the
Act
.
    The appellants submissions focus on the application judges findings of fact,
    at para. 67, underpinning her conclusion that the Creek was navigable:

Instead, I find the evidence of Mr. MacMillan gleaned from his
    research of the historical records and the measurements and observations of Mr.
    Burwell contained in his field notes compelling.  The totality of this evidence
    is sufficient to find that it is more probable than not that the watercourse
    was not only capable of public use in 1831 but was actually used by the
    public.  Its dimensions could support commercial and/or recreational use.  We
    know that it was of sufficient depth to support irrigation activity.  At times at
    or about the time of the Crown grant, the watercourse was difficult to traverse
    due to its depth.  A petition to improve navigability of Bear Creek was
    brought on behalf of numerous affected landowners a mere four years after the
    original grant.  This suggests there was widespread navigation of Bear Creek
    which includes the watercourse.  There is no evidence of points of access
    whether current or historical.  Such evidence is not required.  The watercourse
    is part of a larger river system which ultimately finds its way to Lake St.
    Clair.  It was capable of constituting an aqueous highway for public,
    commercial and/or recreational use at the time of the original Crown grant
    regardless of whether or not it was considered by the public useful for such
    purposes.

[25]

In the above passage, the application judge identifies three areas of
    the evidence in support of her finding that the Creek was navigable:

·

the
    measurements and observations made by Mr. Burwell, the land surveyor who in
    1819 surveyed London Township along what is now Vanneck Road;

·

evidence
    from various sources of the depth of the Creek at least at the point where it
    crossed what is now Vanneck Road into Lobo Township;  and

·

evidence
    of petitions seeking to maintain and improve the navigability of Bear Creek
    placed before the government in 1833 and 1835, shortly after the initial Crown
    grant of the respondents property in 1831.

[26]

The evidence relied on by the application judge was reasonably capable
    of establishing that the Creek was navigable in fact.  Mr. Burwell, the
    original surveyor, calculated the width of the Creek at some 33 feet where it
    passed from the respondents property into Lobo Township.  Mr. Wilband, the
    respondents surveyor, measured the width at 25 feet at about the same point.  Other
    evidence, including anecdotal evidence in at least one historical text,
    indicated that the Creek had sufficient depth at that site, especially at
    certain times of the year, to permit transportation by boat along the Creek.  On
    the totality of the evidence, the application judge could reasonably conclude
    that the Creek was wide enough and deep enough to allow a person to travel by
    boat along the Creek over at least part of the respondents property.

[27]

The evidence of potential practical public use, apart from the
    dimensions of the Creek, was considerably slimmer.  The only evidence referred
    to by the application judge capable of establishing capacity for public use was
    the evidence of the petitions filed with the colonial government in 1833 and 1835
    respecting the navigability of Bear Creek.  The 1833 petition was brought by
    Robert Johnson, a resident of the Township of Adelaide.  Adelaide is located
    two townships to the southwest of the respondents property.

[28]

Mr. Johnson brought the 1833 petition on behalf of a numerous majority
    of immigrant settlers in the several townships of Adelaide, Warwick, Brooke,
    Lobo, Caradoc.  Those townships are all to the southwest of London Township.

[29]

Mr. Johnsons petition said, in part, that the petitioners:

[A]re prepared to prove that the said river of Bear Creek to
    have been navigable for time immemorial from Lake St. Clair to Underwoods Mill
    in Caradoc compromising an extent of upwards of one-hundred miles but Maps
    Taylor and Company.  Millers and divers other persons have recently and
    completely obstructed the natural course of the navigation and the fishery
    thereof by having erected mill dams and other acts of Trespass they persist in
    constructing although your petitioner has given due notice to the offending
    parties to abate without effect.

[30]

The petitioner requested the governments immediate assistance to end
    the illegal infraction of the laws for protection of navigation, commerce and
    fisheries.

[31]

The 1835 petition sought a Charter authorizing the improvement of the
    Navigation of Bear Creek, in the Western District.  In 1835, the Western
    District included Warwick and Brooke, two of the townships referred to in the
    1833 petition.  It did not include the Townships of Lobo, Adelaide or Caradoc.
    Those townships, like London Township where the respondents property was located,
    were part of the London District in 1835.
[3]
As the name implies, the Western District was to the west (and somewhat to the
    south) of London Township and extended to Lake St. Clair.

[32]

The 1833 and 1835 petitions are strong evidence of the potential public
    utility of the Creek in the Western District generally and as described in the
    1833 petition, between Underwoods Mill in Caradoc and downstream, southwest,
    to Lake St. Clair.  There is no evidence of where in Caradoc Township Underwoods
    Mill was located.  The respondents property is located upstream from Underwoods
    Mill and the Western District.  Lobo Township lies between Caradoc Township and
    London Township where the respondents property is located. There is no
    evidence of the distance along the Creek between Underwoods Mill and the
    respondents property.
[4]
Perhaps most importantly, there is no evidence about the state of the Creek
    between Underwoods Mill and the respondents property at the time of the Crown
    grant.  On the record before the application judge, there was no way of knowing
    whether that part of the Creek was capable of serving any practical public purpose.

[33]

The application judge found that the petitions indicated widespread
    navigation of Bear Creek which includes the watercourse.  In my view, the petitions
    provided evidence of navigation on the part of the Creek referred to in the
    petitions.  However, without evidence of the state of the Creek between the
    location described in the 1833 petition and the respondents property, it was
    unreasonable and speculative to infer that the navigability of the Creek as it
    passed over the respondents property was the same as or similar to the
    navigability of the Creek several kilometres downstream.  The evidence of the 1833
    and 1835 petitions, standing on their own without any evidence describing the
    Creek between Underwoods Mill and the respondents property, could not
    reasonably assist in establishing the potential practical public utility of the
    Creek as a means of public transportation through the respondents property.

[34]

The application judge was left only with the evidence of the dimensions
    of a part of the Creek as it passed from the respondents property into Lobo.
    There was little, if any, evidence about the dimensions of the Creek in other
    parts of the respondents property.  There was no evidence of any public use for
    transportation related purposes of the Creek as it passed over the respondents
    property.  Nor was there any evidence of at least two points of public access that
    would have allowed the public at the time of the Crown grant to access the
    Creek without committing trespass, travel along the part of the Creek running
    over the respondents property and leave the Creek without trespassing on
    private property.  Without evidence of the publics ability to legally access
    and egress the part of the Creek passing over the respondents property, that
    part of the Creek could have no potential practical public utility as a means
    of transportation.

[35]

The evidence at its highest shows that a person could travel by boat
    over some part of the Creek as it passes along the respondents property.  There
    is no evidence of any practical purpose for doing so in 1831.  The evidence is
    incapable of supporting a finding that as of the Crown grant, the part of the
    Creek that travelled along the respondents property provided real or
    potential practical value to the public as a means of travel or transport from
    one point of public access to another point of public access:  see
Canoe
    Ontario
, at p. 502.

[36]

In her helpful submissions, counsel for the respondents, in
    addition to arguing that the evidence could support the application judges
    findings, advanced two other arguments in support of her submission that the
    appeal should be dismissed.  Counsel argued that it would be unfair to the
    respondents to find against them on the question of navigability given the
    holding in
ODonnell
.  Counsel submits that in
ODonnell
, the
    trial judge held that the stream was navigable on evidence which was arguably
    significantly weaker than the evidence mustered by the respondents.  Counsel
    submits
that the respondents should be
    entitled to rely on
ODonnell
as creating a reasonable expectation that the Creek as it runs through
    their property would also be found to be navigable.

[37]

Cases turn on their own
    facts.
ODonnell
dealt with a different stream and a different set of facts.  This court is not
    asked to review the correctness of the decision made in
ODonnell
and I do not propose to do so.

[38]

The result in
ODonnell
can create no reasonable expectation of any
    particular result in this case.  The respondents are entitled to have their
    case decided on its own facts according to the law of navigability in this
    Province.  As I have endeavoured to demonstrate, navigability is about more
    than the width and depth of a stream.  If
ODonnell
can be read as suggesting otherwise, it does not
    represent the law in this Province.

[39]

Counsel for the
    respondents also argued that in assessing the evidence offered by the
    respondents in support of their navigability claim, the court should make some
    allowance for the difficulty inherent in proving a state of affairs as of 1831.
    Certainly, the court cannot demand a quality of evidence which, in the
    circumstances, is not reasonably available.  Consequently, the court will
    carefully consider reputable historical sources like those proffered in this
    case without becoming unduly concerned about the technical confines of evidentiary
    rules like the hearsay rule.

[40]

I do not agree, however,
    that this court should approach the evidence offered by the respondents any
    differently than the evidence offered by the appellant.  The respondents had
    the onus of establishing navigability as of 1831.  Neither side had an
    advantage over the other in producing evidence relevant to that question.

[41]

Nor, in my view, is
    there any reason for the Court to feel any need to lend a sympathetic ear to
    the respondents evidence.  The respondents are trying to get around the
Planning
    Act
.  As indicated above, that motive
    has no impact on the meaning of navigability under the Act.  The motive does,
    however, discourage any inclination to rush to the respondents assistance with
    a benevolent interpretation of the evidence.

VI

conclusion

[42]

The evidence was not
    capable of establishing that the Creek as it passed over the respondents
    property was a navigable stream within the meaning of s. 1 of the Act.  Title
    to the bed of the Creek does not lie with the Crown.  There is no natural
    severance of the respondents property.

[43]

I would allow the appeal, set aside
    the order of the application judge, and substitute an order in the terms of the
    relief sought in paras. 51(a)(i)-(v) of the appellants factum.  As agreed, the
    appellant, as the successful
party on the appeal, shall have its
    costs of the appeal fixed at $8,000, inclusive of disbursements and relevant
    taxes.

[44]

The application judge awarded costs to the respondents in the amount of $50,000.
    That order may change in light of this courts disposition.  The court will
    receive written submissions of no more than five pages as to the appropriate cost
    order on the application.  The appellant will serve and file its written
    submissions within 21 days of the release of these reasons.  The respondents will
    serve and file their response within 21 days of receipt of the appellants
    submissions.

Released: DD  JUN 16 2016

Doherty J.A.

I agree Gloria Epstein J.A.

I agree Grant Huscroft J.A.

[1]
The waterway running through the respondents property is given various names
    in the material.  The appellant prefers to call it a drainage ditch and the
    respondents prefer to call it part of the Sydenham River.  Ultimately, the name
    is irrelevant.  I will call it Bear Creek, the name used in the historical
    material.

[2]
Navigable can also mean floatable in the context of the timber trade.  I need
    not address that concept in these reasons:  see
Coleman
, at p. 614.

[3]

An Act to repeal part of an Act passed in the thirty-eighth year of His late
    Majestys Reign, entitled An Act for the better division of this Province and
    to make further provision for the Division of the same into Counties and
    Districts
, S.U.C. 1821 (2 Geo. IV), c. 3, s. 11;
An Act to form certain
    Townships in the London District into a County, and to attach certain Townships
    in the Counties of Middlesex and Kent, in the London and Western Districts
,
    S.U.C. 1835 (5 Will. IV), c. 45, ss. 2-3.

[4]
The material does contain a map with a scale of Lobo Township.  The map is
    taken from a text entitled The Heritage of Lobo 1820-1990.  As near as I can
    tell, the Creek travels a distance of about 13 kilometres across Lobo Township.
    The distance between the respondents property and Underwood Mill is therefore
    something more than 13 kilometres.


COURT OF APPEAL FOR ONTARIO

CITATION: Ogg v. Ogg, 2016 ONCA 474

DATE: 20160614

DOCKET: C61609

MacPherson, Juriansz and Pardu JJ.A.

BETWEEN

John David Ogg

Applicant (Respondent in Appeal)

and

Cheryl Ann Ogg

Respondent (Appellant in Appeal)

Cheryl Ann Ogg, acting in person

John David Ogg, acting in person

Heard: June 10, 2016

On appeal from the judgment of Justice Michael G. Emery
    of the Superior Court of Justice, dated December 21, 2015.

ENDORSEMENT

[1]

Cheryl Ogg appeals from rulings made by a trial
    judge, after final judgment was rendered, in order to give effect to his
    decision for realization of John Oggs interest in the jointly held matrimonial
    home.

[2]

In the event Ms. Ogg elected to purchase Mr.
    Oggs interest in the matrimonial home, the final judgment provided a mechanism
    to determine the value of that home:

If John and Cheryl cannot agree upon the fair
    market value of the matrimonial home by November 30, 2015, each of them may consult
    with a real estate broker of their choice to determine the highest fair market
    value for which the matrimonial home could have been sold between June 1, 2015
    and November 30, 2015 and the fair market value for the starting place of the
    calculation shall be the average of those estimates of fair market value.

[3]

Both parties appeared in person before the trial
    judge. They could not agree to anything. They did not file affidavit evidence
    or testify. Both made submissions as to the value that should be ascribed to
    the matrimonial home, and handed up information provided to them by realtors.
    Ms. Ogg took the position that the house should be valued at $625,000. She said
    she researched the market with the aid of a realtor, Brad Sauve, and that the
    average fair market value for all homes sold in the area was $640,767. She and
    her realtor, she said, concluded that the highest fair market value the home
    could have been sold for was $625,000. Mr. Ogg pointed out that just six days
    earlier, Mr. Sauve had indicated in writing that the fair market value was
    $640,000 to $650,000. Mr. Ogg took the position that Ms. Ogg had prevailed upon
    Mr. Sauve to reduce his estimate. Mr. Ogg produced an email from a realtor
    indicating that having viewed the home on November 30, 2015, and reviewing
    comparable sales, it was his opinion that the home could be listed for $679,000
    and that he was confident it could be sold for that price. The trial judge
    averaged the $625,000 and $679,000 figures, and on December 21, 2015 ordered
    that the home was to be valued at $652,000.

[4]

Ms. Ogg says that the trial judge erred by using
    Mr. Oggs figure of $679,000, as that reflected a listing price and not fair
    market value. However, the information provided by Mr. Oggs realtor indicated
    that he was confident that the home could be sold for a listing price of
    $679,000.00. This amounts to an estimate of fair market value. The trial
    judges decision was not unreasonable, based on the information that was
    available to him. While Mr. Ogg submits that the amount should have been
    higher, he has not filed a cross appeal.

[5]

The trial judge bent over backwards to help the
    parties by making a decision based on their oral and documentary submissions.
    Determination of value is not an exact science, and the figure he chose falls
    within the range of reasonable outcomes.

[6]

Ms. Ogg also takes issue with a post judgment
    adjustment made to credit Mr. Ogg in the sum of $4550 for interest paid by him
    after separation on $130,000 removed from a joint line of credit by Ms. Ogg. Ms.
    Ogg submits that the trial judge should not have given credit to Mr. Ogg for
    interest paid on the line of credit because Mr. Ogg deducted the monthly interest
    paid from the spousal support paid, and that to now give Mr. Ogg credit for
    these payments results in her paying twice for the line of credit interest. We do
    not accept this submission. The trial judge found that Mr. Ogg should not have
    deducted the line of credit interest from the support payments, and gave Ms.
    Ogg retroactive support to replace those amounts. Credit to Mr. Ogg for these
    post separation payments was appropriate.

[7]

Accordingly, the appeal is dismissed with costs
    to the respondent Mr. Ogg in the sum of $1000, inclusive of HST and
    disbursements.

J.C. MacPherson J.A.

R.G. Juriansz J.A.

G. Pardu J.A.