WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any
    of the following offences;

(i)      an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in the same
    proceeding, at least one of which is an offence referred to in paragraph (a).

(2)     In
    proceedings in respect of the offences referred to in paragraph (1)(a) or (b),
    the presiding judge or justice shall

(a)     at
    the first reasonable opportunity, inform any witness under the age of eighteen
    years and the victim of the right to make an application for the order; and

(b)     on
    application made by the victim, the prosecutor or any such witness, make the
    order.

(2.1)
    Subject to subsection (2.2), in proceedings in respect of an offence other than
    an offence referred to in subsection (1), if the victim is under the age of 18
    years, the presiding judge or justice may make an order directing that any
    information that could identify the victim shall not be published in any
    document or broadcast or transmitted in any way.

(2.2) In
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice shall

(a) as
    soon as feasible, inform the victim of their right to make an application for
    the order; and

(b) on
    application of the victim or the prosecutor, make the order.

(3)     In
    proceedings in respect of an offence under section 163.1, a judge or justice
    shall make an order directing that any information that could identify a
    witness who is under the age of eighteen years, or any person who is the
    subject of a representation, written material or a recording that constitutes
    child pornography within the meaning of that section, shall not be published in
    any document or broadcast or transmitted in any way.

(4)     An
    order made under this section does not apply in respect of the disclosure of
    information in the course of the administration of justice when it is not the
    purpose of the disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c.
    3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary
    conviction.

(2)     For
    greater certainty, an order referred to in subsection (1) applies to prohibit,
    in relation to proceedings taken against any person who fails to comply with
    the order, the publication in any document or the broadcasting or transmission
    in any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. W.D., 2019 ONCA 120

DATE: 20190220

DOCKET: C60818

Simmons, Lauwers and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

W.D.

Appellant

Nader R. Hasan, for the
    appellant under a limited order under s. 684 of the
Criminal Code

W.D., appearing in person

Holly Loubert, for the respondent

Heard: January 17, 2019

On appeal from the conviction entered by Justice Kelly A.
    Gorman of the Superior Court of Justice, sitting with a jury, on March 9, 2015,
    and the sentence imposed on July 3, 2015.

REASONS FOR DECISION

[1]

Following a jury trial, the appellant was convicted of sexual assault
    and sexual assault with a weapon, but acquitted of three counts of uttering
    threats and one count of assault. All charges involved the same complainant,
    the appellants former common law spouse. The appellant was sentenced to a
    total of 22 months less one day of imprisonment plus two years probation. He
    appeals against the convictions and seeks leave to appeal sentence.

[2]

The appellant was self-represented at trial. Through counsel appointed
    under s. 684 of the
Criminal Code
,
RSC
    1985, c C-46,
he raises two issues on his conviction appeal. In
    addition, he advances one issue on his own behalf.

[3]

The two issues raised by counsel are the following:

i)

particularly because of the multi-count indictment, the evidence of
    extrinsic discreditable conduct introduced at trial and the trial Crowns
    references to the extrinsic discreditable conduct in her closing address,  the
    trial judge erred by failing to direct the jury not to apply the evidence
    across counts and by failing to provide a specific caution against the dangers
    of propensity reasoning; and

ii)

the trial judge erred by failing to provide the jury with meaningful
    guidance about assessing credibility.

[4]

We allow the conviction appeal based on the second issue raised by
    counsel. Before turning to that issue, we briefly explain why we would not give
    effect to the first issue raised by counsel. In light of our conclusion on the
    second issue, it is unnecessary that we deal with the additional issue raised
    by the appellant on the sentence appeal.

(1)

Did the Trial Judge did err in her instructions regarding use of
    evidence across counts or in failing to caution the jury specifically against
    propensity reasoning?

[5]

Concerning the first issue, we do not accept counsels submissions.
    Although this case involved a multi-count indictment, the charges related to a
    single complainant, the appellant's former common law spouse. Given the nature
    of the evidence led at trial, an instruction prohibiting entirely the use of
    evidence across counts would not have been appropriate. For example, some of
    the evidence on the nature of the parties relationship was potentially
    probative of animus or motive and was admissible across counts. Accordingly, in
    this case, the following instruction given by the trial judge concerning the
    use of evidence across counts was adequate:

there are six alleged offences. Each allegation is a separate
    charge. You must make a separate decision and give a separate verdict for each
    of the six charges.
You must make your decision on each charge only on the
    basis of evidence that relates to that charge
.

Now, [the appellant] is
    presumed innocent on each of those six charges. You must consider each charge
    separately and return a separate verdict, as I said based only on the evidence
    and the legal principles that I will tell you about
. Your verdicts on each
    charge, so each of the six, they may be the same on each of the six, or for
    example you may find [the appellant] not guilty on each of the six counts. You
    may have [sic] find him guilty on one of the six counts, and so on [Emphasis
    added.]

[6]

The absence of an instruction cautioning against misuse of discreditable
    conduct evidence is not fatal either. Much of the evidence of extrinsic
    discreditable conduct was led by the appellant himself in support of his theory
    that the complainant had bipolar disorder, was inadequately medicated, and, as
    a result, was an unreliable historian who blew minor events out of all
    proportion. Overall, the discreditable conduct evidence (meaning both the
    evidence relating to the counts of which the appellant was acquitted and the
    evidence of extrinsic discreditable conduct) related to relatively minor misconduct
    as compared to the more serious sexual assault allegations for which the
    appellant was convicted. As we have said, the jury acquitted the appellant of
    four of the six charges he faced. Further, as we read the Crowns closing
    address, she did not invite any misuse of the discreditable conduct evidence
    but rather restricted her submissions to asking the jury to draw adverse
    inferences about the appellants credibility. Given all these circumstances, we
    are not persuaded that the jury was misled into improper propensity reasoning
    in this case or that the failure to give a discreditable conduct caution
    constituted reversible error.

(2)

Did the trial judge err by failing to provide the jury with meaningful
    guidance about assessing credibility?

[7]

We conclude that the trial judge committed reversible error by failing
    to give the jury more complete instructions about assessing credibility and
    prior inconsistent statements.

[8]

In this regard, we note certain frailties in the complainants evidence
    that were not properly addressed. For example, the complainant agreed during
    cross-examination that she made a false statement in an affidavit she swore for
    use in a family law proceeding when she said the appellant got along well with
    her children. More importantly, there was evidence before the jury that, during
    her initial police interview, the complainant advised the police that she had
    not been sexually abused.

[9]

In particular, evidence was led that, during her initial police interview
    on November 8, 2013, not only did the complainant not mention her sexual
    assault allegations but she responded in the negative to an inquiry put by an
    officer completing a standard questionnaire concerning whether the appellant
    had ever sexually abused her. Evidence was also led that on December 9, 2013,
    after the appellant had served her with a family law motion, the complainant
    returned to the police station, responded positively to the same questionnaire
    inquiry, and made the sexual assault allegations that led to the charges
    forming the subject matter of this appeal.

[10]

Despite
    these issues concerning the complainant's credibility, the trial judge did not
    give the standard general instructions set out in specimen jury charges about
    assessing credibility. The instructions would have focused the jurys attention
    on potential credibility issues  such as prior inconsistent statements or false
    statements made under oath.

[11]

The
    only general instruction the trial judge gave about assessing credibility was to
    tell the jury to use their common sense:

Now when you go to your jury room
    to consider the case
use the same common sense that you use in everyday life
    in deciding whether people know what they are talking about and whether they
    are telling the truth
. There is no magic formula for deciding how much or
    how little you believe of the witness testimony or how much to rely on it in
    deciding this case, use your common sense. [Emphasis added.]

[12]

This
    instruction essentially mirrors one paragraph of the assessment of evidence
    instruction set out in David Watt,
Watts Manual of Criminal Jury
    Instructions,
2nd ed. (Toronto: Carswell, 2015), at p. 267.  It did not
    include any of the further instructions generally given that are designed to
    focus the jurys attention on particular problems with the evidence in the
    case.  For example, the following questions set out in the assessment of
    evidence instruction in
Watts Manual
, at pp. 267-68, would have been
    particularly relevant in this case:

Did the witness seem honest? Is there any reason why the
    witness would not be telling the truth?...

Did the witnesss testimony seem reasonable and consistent as
    s/he gave it?  Did the witness say or do something different on an earlier
    occasion?

Do any inconsistencies in the
    witnesss evidence make the main points of the testimony more or less
    believable and reliable? Is the inconsistency about something important, or a
    minor detail? Does it seem like an honest mistake? Is it a deliberate lie? A
    deliberate lie is always serious and may taint all the witness evidence. Is
    the inconsistency because the witness said something different, or because s/he
    failed to mention something? Is there any explanation for it? Does the
    explanation make sense?

[13]

The
    trial judge gave no general instructions addressing the significance of a false
    statement made under oath or prior inconsistent statements. She mentioned the
    complainants evidence acknowledging that the complainant had sworn an
    affidavit containing a false statement only when setting out the appellants
    theory of the case:

Further, [the appellant] reminds
    you that [the complainant], on a previous occasion, swore a false affidavit in
    regards to a
Family Law Act
matter and should be treated as an
    incredible witness.

[14]

The
    trial judge addressed the evolving nature of the complainants allegations
    solely through the lens of the appellants argument that the complainant had a
    motive to fabricate. The trial judge did so initially when addressing the issue
    of motive and explaining that the appellant alleged the complainant had a
    motive to fabricate. As part of this instruction, the trial judge explained
    that on December 9, the complainant made a more fulsome allegation of a number
    of incidents that she alleges has occurred. The trial judge said:

But in assessing whether there was
    a motive to fabricate, I would ask you to consider those items together with
    the fact that
she first went to the police on November 8
th
, 2013
    and she made a complaint of a couple of incidents
, and you will have the
    report there. And then the evidence was that she became aware by November 18
th
that [the appellant] initiated some Family Law proceedings in relation to [the
    couples son],
and then December 9 she goes back to the police and makes a
    more fulsome allegation of a number of incidents
that she alleges occurred.
    [Emphasis added.]

[15]

Subsequently,
    when addressing the appellants theory of the case, the trial judge noted that
    the complainant made an expanded complainant on December 9:

[The appellant] also wants to
    remind you that
November 8
th
when [the complainant] went to the
    police she told the police a very abbreviated version of the allegations
which she testified to before you, that she became aware of the Family Law
    proceedingsNovember 18, 2013, and then
went to the police a further time on
    December 9 and reported an expanded complaint
which results in the
    Indictment before this court.

[16]

These
    instructions describe an evolving complaint. What they fail to do is put front
    and centre before the jury the fact that there was evidence before them that,
    in her initial interview with the police, the complainant not only failed to
    mention the sexual assault allegations, but denied any sexual abuse by the
    complainant.

[17]

In
    failing to mention the evidence of the complainants prior inconsistent
    statement and in failing to equip the jury with the tools to assess that
    evidence, either by way of general instructions on assessing the evidence or by
    general instructions on prior inconsistent statements, the trial judge
    committed reversible error. The inconsistency in the complainants reporting
    went to the heart of the complainants allegations of sexual assault.

[18]

While
    this inconsistency in reporting may have been a secondary aspect of the
    appellants position, nonetheless, he put the inconsistency in reporting to the
    complainant as part of his cross-examination. During cross-examination, the
    appellant suggested to the complainant that, in her initial interview with the
    police on November 8, 2013, she responded no to a question by the interviewing
    officer about whether the appellant had ever sexually abused her. The
    complainant denied the suggestion. She explained that she was very upset the
    first time she went to the police station. She said, If I answered no, I
    probably thought he asked another question.

[19]

Although
    the appellant failed to have the interviewing officer read into the record the
    question and answer that gave rise to the inconsistency, the inconsistent
    question and answer formed part of the record and should have been drawn to the
    jurys attention
[1]
.
    Particularly as a self-represented litigant, the appellant was entitled to have
    his position put fully and fairly before the jury.

[20]

We
    acknowledge that the complainant did not recall making the inconsistent statement
    and said if she did, she must have misunderstood the question. However, the
    interviewing officer testified he went over the questionnaire inquiries
    carefully with the complainant and had her initial each page of the November 8
    handwritten version of the questionnaire. It was up to the jury to decide
    whether the complainant made the inconsistent statement and if she did, what,
    if any, impact that should have on her credibility. However, the jury was not
    equipped with the proper tools to address these issues.

[21]

In
    oral submissions on the appeal, the Crown argued that if we accepted the
    appellants submission on this ground, we should rely on the proviso in s. 686(1)(b)(iii)
    of the
Criminal Code
to dismiss the appeal. We reject that submission.
    As we have said, the failure to instruct the jury concerning the evidence of a
    prior inconsistent statement by the complainant went to the heart of the
    complainants allegations of sexual assault. As such, the non-direction was not
    a minor error  it related to the core of the allegations of which the
    appellant was convicted. Further, the Crowns case on the sexual assault
    charges was not overwhelming. It depended solely on the testimony of the
    complainant, which was disputed by the testimony of the appellant.

Disposition

[22]

Based
    on the foregoing reasons, the appeal is allowed, the convictions are set aside
    and a new trial is ordered on the sexual assault and sexual assault with a
    weapon charges.

Janet
    Simmons J.A.

P.
    Lauwers J.A.

G.T.
    Trotter J.A.

[1]

In examination-in-chief by the Crown, the police officer who
    interviewed the complainant testified that he filled out a Domestic Violence
    Supplementary Report (DVSR) with her both on November 8, 2013 and on December
    9, 2013. He explained that initially he completed each DVSR in his handwriting
    and later input the information into a computer to produce a typed report. He
    confirmed it was his practice to fill out DVSRs in handwriting with a
    complainant, have her review it, make any necessary changes, and then sign it.
    He produced the handwritten DVSRs he filled out with the complainant on
    November 8, 2013 and December 9, 2013 as well as the typed reports he generated
    for both dates. He testified that the complainant signed each page of the
    November 8, 2013 handwritten DVSR but not the December 9, 2013 handwritten
    DVSR. In cross-examination by the appellant, the interviewing officer confirmed
    he always ensured complainants understood the questions in the DVSRs and had an
    opportunity to think about their answers. The appellant did not ask the police
    officer to read into the record the question and answer from the November 8,
    2013 DVSR in which the complainant denied sexual abuse by the appellant.
    However, at the appellants request, the typed DVSRs were entered as exhibits.
    During examination-in-chief, the Crown had clarified one transposition error as
    between the handwritten and typed versions of the November 8, 2013 DVSRs (the
    age of the child accompanying her was misstated as two instead of three). The Crown
    did not object to the typed versions of the DVSRs being entered as exhibits.  As
    we have said, the interviewing officer testified that the complainant signed
    each page of the handwritten November 8, 2013 DVSR. In our view, the questions
    asked and answers recorded on the November 8, 2013 DVSR thus became part of the
    record for the purpose of demonstrating any prior inconsistent statement.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Robertson (Re), 2019 ONCA 88

DATE: 20190208

DOCKET: C64673

Simmons, Lauwers and Trotter JJ.A.

IN THE MATTER OF: James Robertson

AN APPEAL UNDER PART XX.1 OF THE
CODE

James Robertson, in person

Christel E. Francis, as
Amicus Curiae

Linda Shin, for the Attorney General of Ontario

Janice E. Blackburn, for the person in charge of Waypoint
    Mental Health Care

Heard: January 17, 2019

On appeal from the disposition of the Ontario Review
    Board, dated October 20, 2017, with reasons reported at [2017] O.R.B.D. No.
    2453.

REASONS FOR DECISION

[1]

At the review of
    Mr. Robertsons disposition by the Ontario Review Board under appeal, he
    requested an absolute discharge on the basis that he was no longer a
    significant threat to public safety. He proposed, as an alternative, a transfer
    to another facility. In the further alternative, he requested the board to
    order an assessment for a period of up to six weeks in order to obtain a second
    opinion on his diagnosis. For the reasons that follow we dismiss the appeal.

Context

[2]

Mr. Robertson
    committed the index offences of criminal harassment and an invitation to sexual
    touching in 2001 and 2002, which resulted in a finding in 2007 that he was not
    criminally responsible by reason of a mental disorder. He had earlier been
    convicted of rape in 1978, and for a sexual assault in 1983 that occurred shortly
    after his release.

[3]

Mr. Robertson has
    been under a number of board dispositions made from June 2009 to the
    disposition under appeal. In each disposition, based on a finding that he posed
    a significant risk to the safety of the public, he was ordered to be detained
    at Waypoint.

The appellants psychiatric
    diagnoses

[4]

According to the
    hospital report and the addendum, Mr. Robertsons current diagnoses are
    Paraphilia, Not Otherwise Specified; Cannabis Abuse; Polysubstance Dependence,
    Prior History; Antisocial Personality Disorder; and Narcissistic Personality
    Disorder. The board noted that Mr. Robertson has extremely high scores on the
    PCL-R test, which confirms that he is a psychopath.

The standard of review

[5]

Part XX.1 of the
Criminal
    Code
prescribes the legislative scheme for addressing accused persons who
    have mental disorders and are found not to be criminally responsible: the
    primary purpose of the legislative scheme is to protect the public while
    minimizing any restrictions on the NCR accused's liberty interests:
Mazzei
    v. British Columbia (Director of Adult Forensic Psychiatric Services)
,
    2006 SCC 7, [2006] 1 S.C.R. 326, at para 32.

[6]

The board is
    responsible for determining Mr. Robertsons necessary and appropriate
    disposition, which contemplates the least onerous and least restrictive
    disposition necessary to protect the public:
R. v. Winko
, [1999] 2
    S.C.R. 625, at para. 47.

[7]

This court may only
    set aside an order of the board where it is of the opinion that: the decision
    is unreasonable or cannot be supported by the evidence; it is based on a wrong
    decision on a question of law; or there was a miscarriage of justice: s.
    672.78(1) of the
Criminal Code
;

and see
R. v. Owen
, 2003
    SCC 33, [2003] 1 S.C.R. 779, at paras. 31-37,
Re Hart
, 2016 ONCA 277,
    at para. 6. Appellate courts are not [to] be too quick to overturn a review
    boards expert opinion on how best to manage a patients risk to the public:
R. v. Conway
,
2010 SCC 22, [2010] 1 S.C.R. 765 at para. 95; see
    also,
R. v. Owen
, at para. 69.

Issues and analysis

[8]

The main issue on
    this appeal is whether the boards disposition falls within a range of
    reasonable outcomes. Mr. Robertson and
amicus
raise several other
    issues, which are stated in the headings below.

(1)

Does Mr. Robertson continue to pose a significant risk to public safety?

[9]

Mr. Robertson and
amicus
argue that there is no factual basis to support a finding that
    he presents a risk to public safety any longer, after many years of
    incarceration. They point out that there is no evidence of physical violence other
    than two incidents in which Mr. Robertson was responding to the aggressiveness
    of other patients. His treating psychiatrist, Dr. A. Danyluk, acknowledged that
    there have been no complaints about Mr. Robertsons behaviour from staff during
    the two years that she has been his psychiatrist, and no complaints about his
    behaviour from numerous interactions he has had with doctors, physiotherapists,
    the dentist and court staff while under her care.

[10]

The board referred
    to Dr. Danyluks testimony at para. 47:

Dr. Danyluk was asked whether the recent (seven months)
    behavioural improvement has changed her opinion on the issue of significant
    threat. Dr. Danyluk responded that it has not. In her opinion, Mr. Robertson
    remains a significant threat. She reaches that conclusion based on his lengthy
    criminal record for serious assaultive conduct, his substance abuse history,
    the results of the phallometric testing, his preference for coercive sexual
    activities, and his lack of programming such as anger management programs. She
    also noted his lack of insight and his refusal to accept responsibility for any
    of his past conduct.

[11]

Mr. Robertson
    also challenged Dr. Danyluks qualifications as an expert because she is not
    yet certified as a forensic psychiatrist. The board rejected the challenge and
    notes simply that she had been accepted as an expert witness in hundreds of
    hearings. We see no error in this determination.

[12]

Before this
    court, Mr. Robertson noted that he has been at Waypoint since 2008 and asserted
    that there has been no movement towards reintegrating him back into the
    community. Apart from his psychiatric treatment, he has not been provided with
    therapy. He has not shown signs of psychosis in a number of years and is not
    presently medicated. Dr. Danyluk testified that there were programs at Waypoint
    that could assist Mr. Robertson, including an anger management program, a
    substance abuse program, and a mindfulness program, but he had chosen not to
    engage. He has also avoided contact with the psychometrist, as a result of
    which his psychometric tests are dated.

[13]

The boards
    decision relied on the unanimous opinion of Dr. Danyluk and the clinical team
    that Mr. Robertson remains a significant threat to public safety: para. 31. The
    board's decision was plainly reasonable and is amply supported by the evidence.
    Mr. Robertson continues to pose a significant threat to the safety of the
    public as defined by s. 672.5401 of the
Criminal Code
. There is no evidentiary
    support for an absolute discharge. We do not give effect to this ground of
    appeal.

[14]

Amicus
asserted that the board erred in
    failing to find that there was a treatment impasse at Waypoint, to which the
    board is obliged to respond, relying particularly on
Gonzalez (Re)
,
    2017 ONCA 102, 136 O.R. (3d) 453, leave to appeal refused, 2017 CarswellOnt 9960
    & 9961; 2018 CarswellOnt 2600 & 2601. This issue was not raised before
    the board and is not properly raised for the first time on appeal.

(2)

Should the board have ordered an
    independent assessment?

[15]

Mr. Robertson
    sought an independent assessment, to be performed by Dr. Federoff, even though
    he was the psychiatrist who supported Mr. Robertson being found not criminally
    responsible. The board also noted Mr. Robertsons testimony that he would be
    open to another assessor but he wanted the assessor to be "open
    minded" and be prepared to consider whether Mr. Robertson was properly
    convicted of the rape charge and of the sexual assault charge: para. 71. He
    also wanted a second opinion on the appropriate diagnoses, whether or not he
    remains a significant threat to public safety, and whether the necessary and
    appropriate disposition is detention at Waypoint: para. 20.

[16]

In the boards
    reasons, Mr. Robertsons request for an independent assessment was confusingly
    intertwined with his request for a transfer, but there was clarification in
    argument before this court.

[17]

Waypoint did not
    oppose an assessment at another facility, but counsel argued before the board
    that the transfer for an assessment should only be to a facility where female
    co-patients would not be present and that certain conditions were required in
    the interest of safety: para. 68. Mr. Robertson indicated that he would not go
    for such an assessment unless he could take his computer with him.

[18]

The board refused
    to order the assessment on the basis that there is simply no reason for Mr.
    Robertson to be assessed elsewhere. The board referred to Dr. Danyluks
    opinion: that any independent psychiatric assessment would simply confirm Mr.
    Robertson's diagnoses, would confirm that he remains a significant threat to
    public safety and would confirm that the necessary and appropriate Disposition
    remains a Detention Order at the Provincial Forensic Program.

[19]

It became clear
    in argument that Mr. Robertson would be amenable to an independent assessment
    conducted at Waypoint. Counsel for Waypoint agreed that this was acceptable,
    but that Dr. Federoff, Mr. Robertsons preferred assessor, would not be
    acceptable, since  she saw him as a defence expert and therefore not
    independent. Mr. Robertsons assessment is dated and the evidence would be
    relevant to any board disposition. There is merit in this request.

[20]

There is an issue
    about the scope of an independent assessment. The board took the view that Mr.
    Robertson is hoping to find a doctor or psychiatric team that would be willing
    to entertain Mr. Robertsons submission that he was wrongfully convicted of the
    rape and/or sexual assault: para. 81. These issues are outside of the boards
    mandate under s. 672.54 and therefore of this courts scope of review under s.
    672.72(1).

[21]

Since Mr.
    Robertsons next review is scheduled for March, we direct the board to reconsider
    the request for an independent assessment.

(3)

Did the board err in refusing Mr.
    Robertsons request for a transfer?

[22]

Mr. Robertson
    sought a transfer to a less secure facility. However, the record establishes
    that no other facilities are prepared to accept him on a transfer because he
    presents too great a risk on his current diagnoses. The panel noted that any
    necessary conditions around Mr. Robertsons disposition after a transfer would
    have the paradoxical result that Waypoint would actually be clearly less
    onerous and less restrictive than conditions that would be imposed at another
    facility on a transfer.

[23]

Mr. Robertson has
    not shown that the board erred in declining to order his transfer.

(4)

Did the board err in refusing to hear the Mr. Robertsons
Charter
application?

[24]

Mr. Robertson
    brought a
Charter
application but the board refused to hear it.

[25]

The record shows
    that 16 pre-hearing conferences were held, largely to deal with the appellants
    ongoing requests and routine failures to meet filing deadlines. At the
    pre-hearing conference on February 22, 2017, Mr. Robertson raised the
    possibility that he would file a
Charter

application,
    and he raised it at the next 7 pre-hearing conferences. Mr. Robertson agreed to
    file his
Charter

materials by April 13, 2017, but this deadline was
    missed. The next six deadlines were also missed. Mr. Robertson had counsel or
amicus
for much of this time. The board
    imposed a final deadline of July 15, 2017, which it communicated to the
    appellant earlier. The boards concern was to ensure that the panel had
    sufficient time booked to deal with the disposition decision and with the
Charter
application.

[26]

Mr. Robertson did
    file his
Charter
application materials on August 30,
    2017 for the September 27 hearing, which came within the time limits set out in
    Rule 12
.
On September 8, 2017, the board advised Mr. Robertson that the
    panel would not hear his
Charter

application due to his non-compliance
    with its deadlines.

Mr. Robertson and
amicus
argue that his application was timely under the boards
Rules of Procedure
and that the boards refusal to hear
    the
Charter
application was unreasonable.

[27]

We disagree.

[28]

The rules state
    that a party who intends to bring a constitutional application must give notice
    of their intention to do so no less than 15 days before the hearing. However,
    Rule 7.2 gives the chairperson of the board or the alternate chairperson
    authority to extend or abridge the deadlines (such as the 15day deadline for
    filing
Charter

application materials), on such terms as are just.

[29]

While Mr.
    Robertsons filing was within the 15-day notice period provided for in Rule 12,
    the alternate chair properly exercised his discretion under Rule 7.2 in
    declining to hear the application. Given the inordinate delays in scheduling
    the hearing, it was reasonable for the board to provide the appellant with a
    firm deadline and to refuse an additional extension in view of the boards
    obligation to ensure Mr. Robertson had his annual hearing in a timely fashion. There
    was nothing unfair or arbitrary about the boards handling of this issue. The
    board has control over its own processes.

[30]

As it was, the
    annual review was conducted almost a year late. In our view, it was reasonable
    for the board to impose a final filing deadline in order to get on with the
    review. The board expressly noted that it was not denying the application for
Charter
relief, which Mr. Robertson can pursue at the next annual review.

(5)

Did the board err in refusing to allow Mr. Robertson to call witnesses
    at the hearing?

[31]

As noted, there
    were 16 pre-hearing conferences conducted before the hearing itself. At the
    second, Mr. Robertson advised that he wished to call as witnesses Mike MacNeil,
    the program director of his ward; Chad Draper, the nurse manager; and another
    patient. According to the report of the conference, Mr. Robertson responded
    that he wished to put evidence of a brutal attack on the patient before the
    board. The conference chair pointed out that such evidence would be irrelevant to
    the issues before the board relating to Mr. Robertsons disposition.

[32]

Amicus
advised Mr. Robertson about the
    process by which he might subpoena witnesses, but he did not take the
    appropriate steps. He failed to explain how the witnesses he intended to call
    were related to the issues before the board. The board did not err in refusing
    to allow Mr. Robertson to call Mr. MacNeil and Mr. Draper as witnesses.

(6)

Did the board err in failing to
    ensure sufficient disclosure?

[33]

The disclosure
    provided to Mr. Robertson was voluminous and consisted of a 316-page hospital report,
    and a 43-page addendum. It included excerpts of his clinical records from
    various years. In July 2017, Mr. Robertson made a request for access to records
    of personal health information, and it eventually became clear that he was
    asking for his entire chart from the date of his admission in 2008. He
    explained that he needed these records in order to address the
Charter
application.

[34]

Several days
    before the hearing, Waypoint provided Mr. Robertson with the disclosure he
    sought, but he declined to accept it on the basis that it was too late for the
    hearing.

[35]

There is no
    suggestion that the late response to the request prejudiced Mr. Robertsons
    presentation at the hearing, since the
Charter
application was not in issue any longer.

[36]

The board did not
    fail in its duty to ensure proper disclosure.

(7)

Did the board err in failing to take account of Mr. Robertsons
    inadequate computer access?

[37]

Mr. Robertsons
    complaint was that his ability to present his case was hampered by his limited
    access to his computer.

[38]

Mr. Robertsons individual
    management plan relating to the use of his computer states: The purpose of
    this plan is to afford Mr. Robertson access to his computer for the purposes of
    accessing and completing legal documents. A structured and consistent approach
    will be taken with Mr. Robertsons computer use as he has a recent history of
    misuse, including using his computer tower as a means to conceal contraband.

[39]

The hospital
    record shows conclusively that Mr. Robertson has abused his computer privileges
    by using the computer for the storage of contraband and to compose a sexually
    explicit hip hop song about a staff member at Waypoint.

[40]

This was not a
    matter on which the board made any comments. It is not this courts function to
    micromanage with the board or Waypoint.

Disposition

[41]

The appeal is
    dismissed.

Janet Simmons J.A.

P. Lauwers J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Salman v. Ipacs, 2019 ONCA 151

DATE: 20190227

DOCKET: C65836

Feldman, Brown and Miller JJ.A.

BETWEEN

Rawia Salman

Plaintiff (Appellant)

and

Robert Ipacs and Ipacs Law Office

Defendants (Respondents)

Rawia Salman, in person

Louis P. Covens, for the respondents

Heard: February 22, 2019

On appeal from the order of Justice David Broad of the Superior
    Court of Justice, dated August 9, 2018.

REASONS FOR DECISION

[1]

The appellant brought an action against the respondent lawyer and his
    law firm, alleging they were negligent in counselling her to accept an
    improvident settlement of a tort claim arising from a motor vehicle accident.

[2]

The action was dismissed on a motion for summary judgment. The motion
    judge found that the appellant was not coerced into settlement, and that the
    respondent lawyer explained to her his reasons for recommending the settlement
    before having her sign a release, and then had her sign a second release two
    weeks later after she expressed reservations. The motion judge found that the
    decision to recommend the settlement could not be assailed, and that based on
    the evidence before him, the settlement was far from improvident, but rather
    was favourable to the [appellant] and in her best interests.

[3]

Before this court, the appellant did not identify an error by the motion
    judge with respect to this issue.

[4]

The appellant also argued that the motion judge erred in not addressing
    her claim that the respondents were negligent in not reporting two other
    settlements (one from a slip and fall claim and one from a long term disability
    claim) to the Ontario Disability Support Program (ODSP). The failure to
    report, she argued, caused her to encounter problems with the ODSP, which required
    some effort on her part to correct.

[5]

The motion judge was unable to find, on the evidence before him, that
    what he referred to as the appellants encounters with the ODSP, resulted
    from any negligence on the part of the respondents. We see no error in this
    conclusion.

DISPOSITION

[6]

The appeal is dismissed. The respondents are entitled to costs of the appeal
    in the amount of $4,000, inclusive of HST and disbursements.

K. Feldman J.A.

David Brown J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Son v. Khan, 2019 ONCA 100

DATE: 20190208

DOCKET: C65694

Hourigan, Miller and Paciocco JJ.A.

BETWEEN

Young-Hew Son and Young Son

Plaintiffs (Respondent in Appeal)

and

Daud Ahmad Khan, Fawad Khan and Ishaq Ahmad Khan

Defendants (Appellants)

Fawad Khan and Daud Khan, appearing in person

Sang Joon Bae, for the respondents

Heard: February 8, 2019

On appeal from the order of Justice Silja S. Seppi of the
    Superior Court of Justice, dated June 26, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The appellants appeal the order of the motion judge, which among other
    things, made an order under s. 140 of the
Courts of Justice Act
declaring the appellants to be vexatious litigants.

[2]

Mr. Fawad Khan made submissions on behalf of all of the appellants. He
    persuaded us that the motion judge erred in referring to 20 motions since the
    order of Price J. dated December 6, 2016, when the number is actually seven.
    However, this is not a palpable and overriding error.

[3]

Mr. Khan has not persuaded us that the motion judge otherwise erred.
    There was a clear evidentiary record supportive of her conclusion that the
    appellants are vexatious litigants, including the findings of Price J. and Kurz
    J. We see no error in her analysis or conclusion.

[4]

The appeal is dismissed. The appellants shall pay costs of the appeal to
    the respondent in the all-inclusive sum of $2,800.00. Order to go as endorsed
    by me.


COURT OF APPEAL FOR ONTARIO

CITATION: Tolias (Re), 2019 ONCA 123

DATE: 20190219

DOCKET: C65400

Sharpe, Benotto and Brown JJ.A.

IN THE MATTER OF: Helen Tolias

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jeff Marshman, for the Appellant

Manasvin
    Goswami, for the Respondent

Heard: February 8, 2019

On appeal against the disposition of the Ontario Review
    Board dated, March 14, 2018, with reasons for disposition dated April 9, 2018,
    with reasons reported at [2018] O.R.B.D. No. 794.

REASONS FOR DECISION

I.

OVERVIEW

[1]

The appellant, Ms. Helen Tolias, appeals from the March 14, 2018
    disposition of the Ontario Review Board (the Board) ordering that she be
    detained on the secure forensic unit at the Providence Care Hospital, Kingston
    (the Hospital).

[2]

Ms. Tolias submits that the Board's finding that she remains a
    significant threat to the safety of the public is unreasonable and the Board
    erred in failing to grant her an absolute discharge. In the alternative, she
    submits that the Board erred in failing to grant her a conditional discharge or
    transfer to the Centre for Addiction and Mental Health (CAMH) in Toronto.

[3]

For the reasons that follow, we dismiss her appeal.

II.

BACKGROUND

The index offences

[4]

Ms. Tolias is 46 years old. She suffers from schizoaffective disorder, with
    persecutory delusions.

[5]

Ms. Tolias originally was charged in 2003 with uttering threats and
    criminal harassment of her ex-boyfriend, together with breach of recognizance.
    She was admitted to CAMH to be assessed for criminal responsibility on those
    charges. There, Ms. Tolias became infatuated with, and developed erotomanic
    delusions about, Dr. Colleton, the CAMH staff psychiatrist who conducted her
    assessment. She began to send him letters and repeatedly called him on the
    telephone. As a result, Ms. Tolias was charged with criminal harassment
    and with making harassing telephone calls.

[6]

On November 14, 2003, she was convicted of the charges relating to her
    ex-boyfriend.

[7]

Despite recognizances containing conditions that she abstain from direct
    or indirect communication with Dr. Colleton, Ms. Tolias persisted with her
    communications and was again charged.

[8]

On July 14, 2005, Ms. Tolias was found not criminally responsible on
    account of mental disorder (NCR) of four charges of making harassing phone
    calls to Dr. Colleton, three charges of failure to comply with a recognizance,
    and two charges of failure to comply with probation. She received a conditional
    discharge and was required to report to the Whitby Mental Health Centre.

[9]

Ms. Tolias continued in her efforts to communicate with Dr. Colleton.
    She was again charged and again found NCR in 2006. Since that time, Ms.
Tolias has remained under the jurisdiction of the Board.

Places of treatment

[10]

Since
    the disposition of the index offences in April 2006, Ms. Tolias has been
    detained and treated at several hospitals: she was at the Whitby Mental Health
    Centre from 2006 until her transfer to the Hospital in August 2009, where she
    remained until May 2011 when she was transferred to St. Josephs Healthcare in
    Hamilton. Ms. Toliass family had requested that move to facilitate visits as
    they lived in the GTA.

[11]

The
    Board held an early review hearing in March 2017 to consider a request by Ms.
    Tolias for a transfer from Hamilton to the Hospital in Kingston, which it
    granted. Since that time, Ms. Tolias has remained at the Hospital.

[12]

The
    capacity of Ms. Tolias to consent to treatment has fluctuated since the
    disposition of the index offences. At the time of the 2018 Board hearing, she
    had been found incapable of consenting to treatment.

III.

FIRST ISSUE: SIGNIFICANT THREAT TO THE SAFETY OF THE PUBLIC

[13]

The
    Board found that Ms. Tolias continued to pose a significant threat to the
    safety of the public because of the severe nature of her schizophrenic illness,
    including continued delusions of being assaulted by her treating psychiatrists,
    Hospital staff, and co-patients.

[14]

Ms.
    Tolias submits that the Boards conclusion was unreasonable, for two main
    reasons: (i) her continued verbal misconduct was not reasonably capable of
    causing serious criminal harm; and (ii) she has not had any contact with Dr.
    Colleton who was the complainant in the index offences.

[15]

We
    do not agree. The Boards finding was reasonable given the evidence of: the nature
    of Ms. Toliass mental illness; her continuing persecutory delusions, which
    have led to aggressive oral outbursts, including threats; her limited coping
    abilities; and the need to ensure ongoing medication compliance and
    optimization.

[16]

As
    well, there was evidence before the Board of a strong link between certain acts
    of Ms. Tolias during the review period and the conduct underlying the index
    offences involving her former treating psychiatrist, Dr. Colleton.
    Significantly, Ms. Tolias continued to voice the belief that she has a husband
    and, in June 2017, submitted a written request to have her name changed to
    Michelle Colleton, the name she used during the commission of the second index
    offence. As well, Ms. Tolias requested at transfer to CAMH. While that facility
    certainly would move her closer to family members, the evidence before the
    Board was that Dr. Colleton still practised there.

[17]

Taken
    together, the evidence reasonably supported the Boards conclusion that Ms.
    Tolias remained a significant threat to the safety of the public.

IV.

SECOND ISSUE: CONDITIONAL DISCHARGE

[18]

The
    Board rejected the alternative request by Ms. Tolias for a conditional
    discharge. The Board described her request as premature for several reasons:
    (i) a reduction in her delusions and sometimes aggressive behaviours was needed
    before she could progress to grounds and community living privileges; (ii) her
    requests to change her name and transfer to CAMH indicated that the
    delusionary thoughts regarding the victim of the index offences  remain
    active; and (iii) optimization of her medications was required given the
    current severity of her symptoms.

[19]

Ms.
    Tolias contends that the Board failed to impose the least onerous and
    restrictive disposition, especially given: the lack of any violent conduct by
    Ms. Tolias; the existence of a strong family support network; and the lack of
    any attempt by her to contact Dr. Colleton when she was absent without leave
    from the Hospital for four days, which she spent in Toronto.

[20]

In
    its decision dismissing the appeal of Ms. Tolias from the 2016 and 2017 Board
    dispositions, this court directed the Board to inquire into whether conditions
    could be crafted to release Ms. Tolias into the community:
Re Tolias
,
    2018 ONCA 215, at para. 20.

[21]

We
    have reviewed the transcript of the Board hearing. We are satisfied the Board
    made such inquiries. We are also satisfied that the evidence elicited by those
    inquiries support, as reasonable, the Boards conclusion that a conditional discharge
    would be premature. We would also note that at the hearing Ms. Tolias, who was
    represented by counsel, did not present any concrete plan concerning
    alternative living and treatment arrangements.

[22]

That
    said, cases such as this one always raise a certain concern. The index offences
    involved criminal harassment. Such offences have a serious impact on the victim
    but, in the case of Ms. Tolias, the offences did not involve any violence. Yet,
    the offences occurred more than a decade ago, and since that time Ms. Tolias
    has remained in detention. Although the record certainly supports the Boards
    conclusion that Ms. Tolias continues to suffer from a serious mental illness,
    cases such as this require constant vigilance and inquiry by the Board into the
    appropriate disposition, especially the appropriateness of a conditional
    discharge with community living.

[23]

We
    note that the next review hearing for Ms. Tolias will be held on February 25,
    2019. We expect the Board to inquire actively into the appropriateness of
    alternative dispositions for Ms. Tolias.

V.

THIRD ISSUE: TRANSFER TO CAMH

[24]

As
    her final ground of appeal, Ms. Tolias submits that the Board erred by failing
    to grant her request for a transfer to CAMH.

[25]

We
    are not persuaded by this submission. First, only a year before the hearing the
    Board had acceded to Ms. Toliass request for a transfer from Hamilton to
    Kingston. Second, the information from CAMH placed before the Board showed that
    there was an extensive waiting list for secure beds at CAMH, which would delay
    any ordered transfer. Finally, the Board had reason to be concerned about Ms.
    Toliass request for the transfer against the background of her name change
    request.

VI.

DISPOSITION

[26]

For
    these reasons, the appeal is dismissed.

Robert
    J. Sharpe J.A.
M.L. Benotto J.A.
David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: United Soils Management Ltd. v. Mohammed, 2019 ONCA
    128

DATE: 20190220

DOCKET: C64197 and C65260

Doherty, Pardu and Nordheimer JJ.A.

BETWEEN

United Soils Management Ltd.

Plaintiff (Appellant)

and

Katie Mohammed

Defendant (Respondent)

AND BETWEEN

United Soils Management Ltd.

Plaintiff (Appellant)

and

Kayt Barclay

Defendant (Respondent)

William A. Chalmers, for the appellant

Jean-Marc Leclerc and Sabrina Callaway, for the
    respondents

Heard: February 11, 2019

On appeal from the order of
    Justice Thomas R. Lederer of the Superior Court of Justice, dated July 25, 2017
    with reasons reported at 2017 ONSC 4450, and the order of Justice Janet Wilson
    of the Superior Court of Justice, dated April 19, 2018, with reasons reported
    at 2018 ONSC 1372.

REASONS FOR DECISION

[1]

These appeals were heard together
    and thus we provide one set of reasons addressing both appeals. We will set out
    the facts of each case and then engage in our analysis as it relates to both
    cases.

Katie
    Mohammed

[2]

The appellant provides site remediation,
    excavation and special materials disposal services throughout southern Ontario.
    It has operated a gravel pit near Stouffville since 2007.

[3]

In late August 2016, the
    Whitchurch-Stouffville Town Council approved an amendment to the appellants
    license that expanded its dumping rights at the gravel pit site and, in
    particular, allowed it to dump material collected from small quantity sites and
    from hydro-vac trucks.

[4]

Some people, including two members
    of the Town Council, expressed concerns that the amendment permitted the dumping
    of material in the site that could compromise the long term integrity of the
    local water supply. There were long-standing concerns about the safety of the
    water supply in the community.

[5]

Both respondents shared these
    concerns. Ms. Mohammed took to Facebook. She posted and commented on two private
    Facebook group pages over about a three day period. In at least three of those postings
    or comments, she referred to the dumping of the material from the hydro-vac
    trucks into the gravel pit site as potentially poisoning our children.

[6]

A few days after the first
    postings, Ms. Mohammed received a letter from the appellants lawyer demanding
    an immediate retraction and apology. The letter also contained a libel notice.

[7]

On the same day, Ms. Mohammed
    deleted the word poison from the various Facebook postings and added a
    comment to each post retracting her defamatory and slanderous statements. She
    also apologized. A day or two later, she received the appellants statement of
    claim alleging libel and seeking damages of $100,000. The appellant also sought
    aggravated damages of $10,000; punitive damages of $10,000; special damages in an
    amount to be determined; and costs on a substantial indemnity basis.

[8]

Ms. Mohammed brought a motion
    under s. 137.1 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 (the
CJA
) for an order dismissing the appellants action. The
    motion judge allowed the motion and dismissed the appellants claim. He found
    that:

·

Ms. Mohammeds statements related to a matter of public interest
    under s. 137.1(3) of the
CJA
.

·

The appellant had failed to meet its onus under either s. 137.1(4)(a)(i)
    (the substantial merit provision) or s. 137.1(4)(a)(ii) (the valid defense
    provision).

·

The appellant had also failed to meet its onus under s.
    137.1(4)(b) (the public interest balancing provision).

[9]

The motion judge awarded damages
    to Ms. Mohammed pursuant to s. 137.1(9) in the amount of $7,500.

[10]

Finally, the motion judge awarded
    costs of the proceeding to Ms. Mohammed on a full indemnity basis. In doing so,
    he applied the presumption in favour of costs on a full indemnity basis set
    out in s. 137.1(7). The motion judge fixed those costs at $122,286.94. The
    costs were referable to the entire proceedings and included about $30,000 in
    costs awarded on three motions that the appellant had brought earlier in the
    course of the proceedings.

[11]

The appellant appeals from the
    judgment dismissing the action, claiming legal errors in respect of each step
    of the motion judges analysis under s. 137.1. The appellant also appeals
    from the damage award to Ms. Mohammed. The appellant further seeks leave to
    appeal from the costs order. It does not contend that the motion judge erred in
    awarding costs on a full indemnity basis, but argues that the quantum is so
    excessive as to warrant appellate intervention.

Kayt Barclay

[12]

As was the case with Ms. Mohammed,
    Ms. Barclay was also concerned about the activities of the appellant. In a
    Facebook group, she posted a message in which she said that a councillor, who
    had voted in favour of the amendment, was in the pocket of United Soils.

[13]

Less than four hours after the
    Facebook post was made, the President of the appellant personally e-mailed Ms. Barclay,
    copying United Soils lawyer. He told Ms. Barclay that he had instructed his
    lawyer to sue her for libel and that he looked forward to that process.

[14]

Two days later, Ms. Barclay received,
    by process server, a letter enclosing a Notice of Libel and demanding that she
    immediately post, for the period of seven consecutive days, a public
    retraction and apology on Facebook. The Notice of Libel alleged that Ms. Barclays
    words were made with the intention of bringing political pressure against
    United Soils.

[15]

Ms. Barclay deleted the Facebook
    post. She was not able to post the requested retraction and apology because the
    Facebook group was shut down. Days later, Ms. Barclay was served at her home with
    a statement of claim, claiming damages of $100,000 for libel; aggravated
    damages of $10,000; punitive damages of $10,000; special damages in an amount
    to be determined; and costs on a substantial indemnity basis.

[16]

Ms. Barclay also moved under s.
    137.1 to dismiss the action against her. The motion judge allowed the motion
    and dismissed the appellants action. She found that Ms. Barclays post related
    to a matter of public interest; that the appellant had not met its onus of
    proving that its claim had substantial merit (as in her view Ms. Barclays post
    was not defamatory with respect to the appellant); that, in any event, the
    appellant had not proved that Ms. Barclay had no valid defence to the
    proceeding; and, finally, that the appellant had failed to prove that it had
    suffered, or was likely to suffer, any harm, such that the public interest in
    permitting the proceeding to continue outweighed the public interest in
    protecting Ms. Barclays expression.

[17]

The motion judge awarded Ms.
    Barclay $20,000 in damages pursuant to s. 137.1(9). She also awarded Ms.
    Barclay her full indemnity costs, pursuant to s. 137.1(7), in the amount of
    $126,438.55.

[18]

The appellant appeals from the
    motion judges order dismissing its action against Ms. Barclay. As in the
    companion appeal with respect to Ms. Mohammed, it argues that the motion judge
    erred in her analysis with respect to s. 137.1 in dismissing its action against
    Ms. Barclay. It also challenges the motion judges damages and costs awards.

Analysis

[19]

Both motion judges heard and
    decided the s. 137.1 motion before this court released a series of judgments
    interpreting s. 137.1 in some detail: see
1704604 Ontario Ltd. v.
    Pointes Protection Association
, 2018 ONCA
    685, 142 O.R. (3d) 161 and the related cases that were released simultaneously.
    Some of the motion judges analyses have been overtaken by
Pointes
and those related authorities.

[20]

In light of the significant
    developments in the case law since the motion judges released their reasons, we
    see no need to engage in a detailed consideration of those reasons. Whatever
    may be said about the correctness of their analyses in respect of s.
    137.1(4)(a) (the substantial merit and valid defense provisions), the appellant
    cannot succeed on these appeals unless it satisfies this court that the motion
    judges each reached the wrong conclusion in respect of s. 137.1(4)(b), the
    public interest balancing provision.

[21]

Section 137.1(4)(b) required the
    motion judges to dismiss the appellants lawsuits unless the appellant could
    demonstrate that the harm suffered by it, or likely to be suffered by it, as a
    result of the respondents statements was sufficiently serious that the public
    interest in permitting the appellants lawsuit to go forward outweighed the
    public interest in protecting the respondents freedom of expression. This
    court considered the factors relevant to the balancing process described in s.
    137.1(4)(b) in
Pointes
, at paras.
    85-98;
Able Translations Ltd. v. Express International Translations
    Inc.
, 2018 ONCA 690, at paras. 37-44; and
Fortress
    Real Developments Inc. v. Rabidoux
, 2018
    ONCA 686, 426 D.L.R. (4th) 1, at paras. 42-52.

[22]

Any monetary damages suffered by a
    plaintiff, or likely to be suffered by a plaintiff, as a consequence of alleged
    defamatory statements is a key feature in the assessment of the harm suffered
    or likely to be suffered by the plaintiff:
Pointes
,

at para. 88. The appellant offered no
    evidence of any monetary damage suffered by it. While damages are presumed if
    defamation is established, there is no presumption about the nature or quantum
    of that damage. On this evidence, there is no reason to think that any damages
    awarded to the appellant would be anything more than modest, if not nominal.

[23]

Nor is there any evidence of any
    reputational harm done to the appellants business. There is no suggestion that
    the appellant, a corporation, suffered any damage to, or was likely to suffer
    any damage to, its business reputation as a result of the respondents Facebook
    posts.

[24]

The extent of any harm suffered or
    likely to be suffered by the appellant is also significantly diminished by the
    very limited circulation of the alleged defamatory comments. In both instances,
    they were posted only for a few days and to a limited audience of likeminded
    individuals also concerned about potential damage to the environment.

[25]

Further, in the case of Ms.
    Mohammed, the timely and unqualified apology, and retraction of the offensive
    portions of her posts, is a crucial factor in assessing harm caused or likely to
    be caused to the appellant. The apology goes a long way to eliminating any
    possible future harm to the appellants reputation from the posts. To the
    extent that the appellant claims to have taken legal action to vindicate its
    good name, the unqualified and timely apology by Ms. Mohammed would seem to
    achieve that vindication.

[26]

While the appellant can point to
    little, if any, harm or potential harm, both respondents make a strong case for
    protecting their freedom of expression. The statements related to a matter of significant
    public importance. They were also part of an ongoing political dialogue in the
    local community. Democracy thrives through open and public debate on matters of
    public policy. Strong citizen involvement in those debates can only strengthen
    our democracy. Although both respondents can properly be criticized for the
    particular words used  poisoning our children and in the pocket of United
    Soils  there can be no doubt that both the subject matter of their concerns,
    and the manner in which they advanced those concerns, constituted expression
    that engaged the public interest.

[27]

The appellant has the onus of
    demonstrating that the harm suffered or likely to be suffered by it was
    sufficiently significant to show that the public interest in allowing the
    appellant to proceed outweighed the public interest in protecting the
    respondents expression. On these records, the appellant cannot meet that onus
    in either case.

[28]

The proceedings were properly
    dismissed on the basis that the respondent had not met its onus in respect of
    s. 137.1(4)(b).

Damages

[29]

A separate issue arises on both of these appeals and that is the proper
    application of s. 137.1(9). That section reads:

If, in dismissing a proceeding
    under this section, the judge finds that the responding party brought the
    proceeding in bad faith or for an improper purpose, the judge may award the
    moving party such damages as the judge considers appropriate.

[30]

The motion judge awarded Ms. Mohammed damages of $7,500. In doing so he
    found that prior motions brought by the appellant were an objective
    demonstration of improper purpose:
Mohammed
, at para. 78. The motion
    judge also pointed out that the appellant instituted the proceeding
    notwithstanding that Ms. Mohammed had apologized, as demanded by the appellant.
    He found that this was a continuation of its desire to intimidate:
Mohammed
,
    at para. 78.

[31]

In fixing the amount of damages, the motion judge noted that there was
    no medical evidence in support of Ms. Mohammeds claim that she suffered stress
    as a result of the proceeding being instituted against her. He also noted that
    there was no other corroborating evidence of any adverse effects on Ms.
    Mohammed. Nevertheless, the motion judge accepted that the proceeding
    unnecessarily caused Ms. Mohammed stress that affected her day-to-day life:
Mohammed
,
    at paras. 79-80.

[32]

In the case of Ms. Barclay, the motion judge awarded her damages of
    $20,000. The motion judge found that the action was brought in bad faith and
    for an improper purpose of stifling public debate around a crucially important
    public issue:
Barclay
, at para. 136. The motion judge found that Ms.
    Barclay had suffered personal anguish as a result of the action:
Barclay
,
    at para. 136.

[33]

The motion judge also found, in the alternative, that s. 137.1(9) would
    permit an award of punitive damages in the same amount. She found that the
    appellants conduct warrants denunciation and deterrence:
Barclay
,
    at paras. 134, 136.

[34]

The wording of s. 137.1(9) is somewhat problematic. On one view, the
    wording of s. 137.1(9) would seem redundant, as a finding that an action has
    been commenced for the purpose of unduly limiting expression on matters of
    public interest would seem to qualify as one that has been brought for an
    improper purpose. On another view, the wording of s. 137.1(9) could be seen as
    an effort to separate out a subset of SLAPP cases which go beyond simply
    reflecting an effort to limit expression and include active efforts to
    intimidate or to inflict harm on the defendant.

[35]

A review of the Anti-SLAPP Advisory Panel Report to the Attorney
    General, dated October 28, 2010, supports the latter interpretation. In that
    report, the Advisory Panel recommended, at para. 46:

[T]he court should not be required
    to make findings as to bad faith or improper motive on the part of the
    plaintiff in deciding a motion under the special procedure.
If in a
    particular case, however, the court is satisfied on the record before it that
    an action has been brought in bad faith or for an improper motive, such as
    punishing, silencing or intimidating the defendant rather than any legitimate
    pursuit of a legal remedy, an additional remedy should be available for this
    improper conduct.
In such circumstances, the court should have the power to
    award damages to the defendant in such amount as is just. [Emphasis added].

[36]

We would make two observations regarding the approach taken by the
    motion judges in these cases with respect to this issue. First, we do not view
    it as necessary for a defendant to adduce medical evidence in order to support
    a claim for damages. While medical evidence might be of assistance in
    determining the proper quantum of damages to be awarded, in certain cases, such
    as the ones here, it may be presumed that damages will arise from the use of a SLAPP
    lawsuit.  Both of the respondents were individuals inexperienced in litigation,
    who would understandably suffer the stress and anxiety associated with being
    the subject of a proceeding of this type. This is especially true given the
    intimidating nature of the conduct of the appellant.

[37]

That observation does not mean that damages will naturally follow in
    every case where the action is dismissed.  The exact limits to the
    circumstances justifying an award of damages must await further development of
    the law surrounding s. 137.1.  Whether an award of damages is warranted should
    also take into account the presumption that costs will be awarded on a full
    indemnity basis.  Such an award may, in some cases, address the harm to a
    defendant that arises from a SLAPP proceeding.

[38]

Second, we do not view the wording of s. 137.1(9) as being so broad as
    to encompass punitive damages awards. In our view, the thrust of s. 137.1(9) is
    to provide compensation for harm done directly to the defendant arising from
    the impact of the instituted proceeding. The section is not intended to provide
    wide-ranging authority for the court to sanction the conduct of the plaintiff
    through a damages award, such as an award for punitive damages. Any need to
    sanction the conduct of the plaintiff is already addressed through the
    provision in s. 137.1(7) of a presumptive award of full indemnity costs.

[39]

All of that said, we do not see any basis for interfering with the
    damages awards that were made in either of these cases. There was evidence of
    harm to Ms. Mohammed and Ms. Barclay arising from these proceedings. Each of
    the motion judges gave reasons for the conclusions that they reached regarding
    the quantum of damages to be awarded. There is no palpable and overriding error
    in either of their conclusions that would warrant intervention by this court.

Costs

[40]

In each of these appeals, the appellant sought leave to appeal the costs
    award made. In each instance, the appellant submits that the amount of costs
    awarded was excessive and that the motion judges failed to carry out the
    requisite analysis of the costs claimed and determine whether those costs were
    reasonable.

[41]

We do not see any grounds, much less strong grounds, on which we could
    conclude that either of the motion judges erred in exercising their discretion
    in fixing costs such that leave to appeal should be granted:
Brad-Jay
    Investments Ltd. v. Szijjarto

(2006), 218 O.A.C. 315 (C.A.), at
    para. 21;
Sawdon Estate v. Watch Tower Bible and Tract Society of Canada
,
    2014 ONCA 101, 119 O.R. (3d) 81, at para. 77. It was acknowledged that the
    motions were complex and that considerable time was spent on them. The amounts
    awarded, given that they were on a full indemnity basis, were not unreasonable.

[42]

We do, however, agree with the appellant that there remains an
    obligation on a motion judge, when determining the quantum of costs under s.
    137.1(7), to undertake the same type of analysis that is required when fixing
    costs in any other context. Just because the award is on a full indemnity basis
    does not mean that the successful party is entitled to whatever costs were
    incurred. The quantum must still be fair and reasonable for what was involved
    in the particular proceeding:
Boucher v. Public Accountants Council for the
    Province of Ontario
(2004), 71 O.R. (3d) 291 (C.A.), at para. 26. The
    award must also be proportionate to the importance and complexity of the
    issues, and to the amount involved, in the proceeding: see r. 1.04(1.1),
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194.

Conclusion

[43]

The appeals are dismissed. The motions for leave to appeal from the
    costs awards are dismissed. The respondents are entitled to the costs of the
    appeals, each in the amount of $30,000, inclusive of disbursements and HST.

Doherty
    J.A.

G.
    Pardu J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Woods (Re), 2019 ONCA 87

DATE: 20190208

DOCKET: C65415

Doherty, Miller and Trotter JJ.A.

IN THE MATTER OF:  Joanne Woods

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Caitlin Sharawy, for the Crown

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

Heard: January 25, 2019

On appeal against the disposition of the Ontario Review
    Board dated April 26, 2018.

REASONS FOR DECISION

[1]

Ms. Woods has been subject to the
    jurisdiction of the Ontario Review Board (the Board) since 2012. After her
    most recent review hearing, the Board continued her conditional discharge. She
    appeals, arguing that the Board erred in not ordering an absolute discharge
    pursuant to section 672.54(a) of the
Criminal Code
. For the following
    reasons, the appeal is dismissed.

A.

Background

[2]

Ms. Woods is 52 years old. Her
    primary diagnoses are schizoaffective disorder and substance abuse disorder,
    with differential diagnoses of schizophrenia and personality disorder not
    otherwise specified. Before the index offences, she had roughly 25 hospital
    admissions since 1998. The record reveals that the ingestion of illicit
    substances worsens her condition.

[3]

In 2012, Ms. Woods was charged
    with uttering a death threat and possession of a weapon for a dangerous purpose.
    She boarded a TTC bus which was carrying many passengers and yelled I am going
    to kill someone and I have a knife. She fled from the bus but was soon
    apprehended by police. She was in possession of a knife. Ms. Woods was found
    NCR of these charges.

[4]

Ms. Woods was conditionally
    discharged in 2017. She lives in an apartment that is close to the Centre for
    Addiction and Mental Health (CAMH). Ms. Woods is currently being followed by
    the Enhanced Forensic Outpatient Service Team, due to her heightened need for
    support and supervision. She sees team members five days a week and receives
    medication two days a week. Ms. Woods requires this level of support and
    supervision because there have been medication compliance issues and her mental
    condition is prone to quick deterioration. Even when medicated, Ms. Woods
    continues to experience persecutory and somatic delusions.

[5]

The sole witness at Ms. Woods
    review hearing was her attending psychiatrist, Dr. R. Jones. He testified that
    her medication has not been fully optimized. This is the project for the
    coming year. Dr. Jones is working with Ms. Woods substitute decision maker,
    her daughter, to address this issue. Dr. Jones also expressed concern about
    medication compliance issues and Ms. Woods lack of insight into her mental
    illness and the need for medication. Ultimately, he testified that Ms. Woods
    continues to pose a significant threat to the safety of the public.

[6]

Dr. Jones testified that the
    treatment team has given thought to transitioning Ms. Woods out of the forensic
    system and managing her illness under the civil system, with the support of the
    Assertive Community Treatment (ACT) Team. Dr. Woods testified that, [w]e
    would want to see improvements, however, in terms of her mental state and in
    terms of her insight. Especially with regards to taking medication, before we
    would feel that she was ready to make that transition directly over to the
    ACT.

B.

the boards decision

[7]

The Board accepted the
    uncontroverted opinion of Dr. Jones. It characterized Ms. Woods mental
    status as still fragile. In its reasons, the Board said, at para. 29:

According to the Hospital Report, Ms. Woods history of
    violence includes behaving in an agitated and threatening manner when ill. In
    addition to the index offences, violent incidents in the community include:
    holding a knife to her aunts throat and threatening her mother. In 2012, she
    was reported to have yelled obscenities at children, threatened to kill people
    and to blow up a park. She also spat at police officers. Other incidents of
    aggression have occurred when she has been an impatient in the hospital,
    necessitating seclusion and/or restraint.
The Hospital Report indicates that
    she is assessed as a moderate-high risk if she were to receive an Absolute
    Discharge at this time
. [Emphasis added.]

[8]

Ms. Woods moderate-high ranking
    was based on actuarial measures. There was also a clinical risk assessment
    component in the Hospital Report:

In risk assessment, one of the best predictors is a patients
    history of violence. Ms. Woods history of violence includes behaving in an
    agitated and threatening manner when ill. While suffering from active symptoms
    of psychosis and/or mania, she exhibits behavioural disinhibition, impulsivity,
    paranoid delusions, mood lability and irritability, which leads to aggressive
    behaviour that can be focused on those in close vicinity, often in a
    non-premeditated and unpredictable way.

[9]

In its reasons, the Board twice
    expressed concern about Ms. Woods lack of insight. At para. 28, the Board said:
    She has very little insight into her mental illness and has expressed markedly
    fluctuating insight into the benefits of medications.

[10]

The Board concluded that Ms. Woods
    still requires significant supervision and support, which involves seeing her
    team 5 days a week. The Board concluded, at para. 32, that, absent this level
    of supervision, she would be very likely to fall away from treatment, leading
    to a relapse to psychosis and likely aggression in the community.

C.

issues on appeal

[11]

Ms. Szigeti,
amicus curiae
,
    argues that the Board erred in concluding that Ms. Woods continues to pose a
    significant risk to the safety of the public. She argues that the Board placed
    too much emphasis on the lack of insight exhibited by Ms. Woods. As Ms. Szigeti
    argues, this is a common characteristic of those who come before the Board.
    Moreover, she argues that the Boards reasoning falls short of finding that Ms.
    Woods poses a significant threat to the safety of the public. She submits that
    although there may be a risk that Ms. Woods will discontinue her medication and
    her mental status will deteriorate, the Boards finding of a significant threat
    to the safety of the community is speculative. In these circumstances, Ms.
    Woods should be discharged and her mental well-being managed under the
Mental
    Health Act
, R.S.O. 1990, c. M.7.

[12]

The respondents argue that there
    was an evidentiary basis for the Boards disposition. The reasons of the Board
    go beyond speculation about the threat posed by Ms. Woods to the safety of the
    public. The respondents further submit that the Board did not give undue weight
    to Ms. Woods enduring lack of insight into her condition.

D.

analysis

[13]

We consider this case to be a close
    call. However, after careful consideration, we have reached the conclusion that
    the appeal must be dismissed.

[14]

Appellate review of the Boards
    decisions does not involve a search for a single, correct answer to the
    complex and multifactorial decision that the Board is tasked with making: see
Carrick
    (Re)
, 2015 ONCA 866, 128 O.R. (3d) 209, at para. 24. Instead, the question
    is whether the Board, in the exercise of its specialized knowledge and
    expertise, rendered a decision that falls within the range of reasonable
    outcomes. As Huscroft J.A. said, at para. 26:

This court does not make its own judgment on the significant
    threat question and use that judgment as the benchmark for assessing the
    reasonableness of the boards decision. Nor does this court re-weigh the
    considerations before the board. The reasons for the boards decision and the
    substantive decision reached by the board must be considered together to
    determine whether an acceptable and defensible outcome has been reached.

See also
Medcof
    (Re)
, 2018 ONCA 299, at paras. 44-46; and
R. v. Conway
, 2010 SCC
    22, [2010] 1 S.C.R. 764, at para. 95.

[15]

In our view, the Boards disposition
    was within the range of reasonable outcomes available based on the record
    before it. There was an evidentiary basis to support the Boards conclusion
    that the significant threat standard was met in this case. Despite the very
    high level of supervision and support that Ms. Woods receives, her mental state
    remains precarious. The disordered thought processes that she currently
    experiences (even while medicated) are similar to those that were active at the
    time of the index offences. There was evidence before the Board that, in this
    state, Ms. Woods becomes threatening and aggressive. As noted in para. 7 above,
    the Hospital Report explained the downward spiral that will almost inevitably
    occur when Ms. Woods falls away from treatment, which, on this record, also
    seems very likely.

[16]

The Board was also entitled to
    rely on the actuarial assessment of Ms. Woods which placed her at moderate to
    high risk of reoffending. We acknowledge that results on risk assessment tests
    such as
the HCR-20
V3
are only capable
    of predicting the likelihood of future violence, and not its nature or
    magnitude: see
Krivicic (Re)
, 2018 ONCA 535, at para. 60. As such, standing alone,
    these measures cannot satisfy the requirements of s. 672.541. However, in this
    case, the Board considered the actuarial testing alongside the clinical risk
    assessment in the Hospital Report and the evidence of Dr. Jones.

[17]

Accordingly, it cannot be said
    that the Boards decision was unreasonable. Nor do we find that the Board
    committed any legal errors in reaching its ultimate decision. However, Ms.
    Szigetis submissions about the Boards reliance on Ms. Woods lack of insight
    deserve consideration. Lack of insight has its place in the overall clinical
    picture; however, it must not dominate the significant threat analysis. This is
    important in Ms. Woods situation. As Ms. Szigeti submitted, Ms. Woods will
    likely never gain any real insight into her situation. However, this alone
    cannot form the basis for indeterminate detention under Part XX.1 of the
Criminal
    Code
.

[18]

Despite Ms. Szigetis helpful
    submissions, we are satisfied that the Boards decision was not overwhelmed by
    this factor; it was one, albeit an important one, of many components of
    analysis. Still, it bears repeating the words of Hoy A.C.J.O. in
Kalra
    (Re)
, 2018 ONCA 833, at para. 52:

As I have said, the Board's Disposition was rooted in its
    concern that Mr. Kalra lacked insight into his illness and therefore would not
    continue to take his medication if he received an absolute discharge.
It
    bears stating that lack of insight is not of itself a basis to deny an absolute
    discharge.
As the Supreme Court instructs, the mentally ill are not
    inherently dangerous:
Winko
, at para. 35.
Whether an NCR accused has
    insight into his or her mental illness, and the extent of that insight, is only
    part of the analysis in determining if there is a significant threat to the
    safety of the public.
While insight is a treatment goal, it is one some
    persons living with mental illness may be unable to fully achieve.
In some
    instances, particularly where the contemplated harm falls at the lower end of
    the spectrum, it may be unreasonable to require, as the Board did here, that an
    NCR accused's insight into his or her illness be "entrenched on his
    consciousness" in order to obtain an absolute discharge.
[Emphasis
    added.]

[19]

In conclusion, we reiterate that
    we consider this case to be a close call. Deference prevents us from
    interfering. However, there appears to be a path forward. As Dr. Jones
    testified, the current plan is to optimize Ms. Woods medication. The prospect
    of transitioning Ms. Woods out of the forensic system is clearly on his radar.
    It is hoped that Ms. Woods progress in the coming year will allow this to
    happen or at least move her closer to this goal.

E.

disposition

[20]

The appeal is dismissed.

Doherty J.A.

B.W. Miller J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: 1554080 Ontario Inc. v. Heffner, 2019 ONCA 211

DATE: 20190315

DOCKET: C65751

Simmons, Tulloch and Brown JJ.A.

BETWEEN

1554080 Ontario Inc.

Appellant (Plaintiff)

and

Willy Heffner, Heffner Motors Limited, Heffner
    Auto Sales and Leasing Inc., and Heffner Investments Limited

Respondents (Defendants)

F. Scott Turton, for the appellant

James H. Bennett, for the respondents

Heard and released orally: March 14, 2019

On appeal from the order of Justice Silja S. Seppi of the
    Superior Court of Justice, dated July 4, 2018.

REASONS FOR DECISION

[1]

The appellant, 1554080 Ontario Inc., appeals the dismissal of its action
    under Rule 21 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[2]

The appellant owned a piece of commercial property (the Property). In
    its statement of claim, the appellant pleads that in 2012 it entered into
    discussions with the respondent, Willy Heffner, about renovating the building
    on the Property in order to lease it out. The appellant alleges that in 2013
    the respondents paid some of the Propertys expenses and co-signed an agreement
    with a firm to conduct a Phase II Environmental Site Assessment of the
    Property. According to the claim, the respondents paid for that work, which
    revealed some lead contamination around the test bore holes. The appellant then
    sold the Property in 2014, with some of the respondents receiving $250,000 from
    the sale proceeds.

[3]

In August 2017, the appellant commenced this action in which it seeks
    declaratory relief that: (i) the respondents are persons having control of a
    pollutant on the Property, within the meaning of s. 99 of the
Environmental
    Protection Act
, R.S.O. 1990, c. E.19, between July 22, 2013 and February
    28, 2014; and (ii) the respondents are liable to make contribution or indemnity
    in respect of any liability that might be imposed in the future upon the
    appellant by reason of the presence of any excess quantities of lead on the
    Property.

[4]

The respondents filed a statement of defence and then moved under
    various branches of Rule 21 for an order dismissing the action. Specifically,
    the respondents sought to dismiss the action on the basis that the action: (i)
    disclosed no reasonable cause of action (r. 21.01(1)(b)); (ii) was frivolous
    and vexatious (r. 21.01(3)(d)); or (iii) was statute-barred under the
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sch. B.

[5]

The motion judge dismissed the action on the first two grounds. She did
    not consider or deal with the limitations period argument.

[6]

The appellant appeals. It advances two main grounds of appeal.

[7]

First, the appellant argues that the motion judge erred by failing to
    consider and give effect to this courts decision in
Brozmanova v. Tarshis
,
    2018 ONCA 523, 81 C.C.L.I. (5th) 1, which discussed the proper use of Rule 21.
    We are not persuaded by this submission. Although the motion judge did not
    refer to the
Brozmanova
decision, her reasons demonstrate that she was
    alive to
Brozmanovas
holding that a motion under r. 21.01(1) was not an
    appropriate means by which to seek the adjudication of a limitations defence,
    which usually requires making findings of fact. The motion judge specifically
    held that it was not necessary to consider the respondents argument based on
    the
Limitations Act
and she made no findings in respect of it. Instead,
    the motion judge concluded that the respondents argument that the claim
    disclosed no reasonable cause of action was dispositive of the motion: at para.
    27.

[8]

As its second ground of appeal, the appellant submits that the motion
    judge erred in holding that the statement of claim does not disclose the
    material facts necessary to support its claim under s. 99 of the
EPA
. We
    disagree.

[9]

Paragraph 12 of the statement of claim contains the bald pleading that
    the respondents are all persons having control of a pollutant within the
    meaning of section 99 of the
EPA
during the period 22 July [2013] to 28
    February 2014. The motion judge held, at para. 20, that the statement of claim
    contains a radical defect because it does not allege any facts to support an
    ultimate finding that the respondents were owners or persons having control of
    the lead pollutant immediately before the first discharge of the pollutant,
    as required by s. 91(1) of the
EPA
. The motion judge correctly read the
    statement of claim; it contained no such pleading. Indeed, the statement of
    claim does not even plead when the first discharge of lead took place.
    Accordingly, we see no error by the motion judge.

[10]

That
    is sufficient to dispose of the appeal. Consequently, we see no need to address
    the appellants further submission that the motion judge erred in holding that
    its claim for a declaration of contribution and indemnity from the respondents
    in the absence of any claim against the appellant by a third party rendered the
    action premature.

[11]

In
    oral argument, the appellant submitted that in the event this court dismissed
    the appeal, leave to amend the statement of claim be granted. No formal request
    for leave to amend was made in the Notice of Appeal; no draft amended statement
    of claim was filed. Leave is not granted.

[12]

The
    appeal is dismissed. The respondents are entitled to their costs of the appeal
    fixed on a partial indemnity scale in the amount of $6,500, inclusive of
    disbursements and applicable taxes.

Janet Simmons J.A.

M. Tulloch J.A.

David Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Asghar v. Alon, 2019 ONCA 249

DATE: 20190328

DOCKET: C65553

Lauwers, Brown and Benotto JJ.A.

BETWEEN

Sajjad Asghar

Appellant

and

Joallore Alon

Respondent

Sajjad Asghar, in person

Iain MacKinnon, for the respondent

Heard: March 28, 2019

On appeal from the judgment of Justice Andras Schreck of
    the Superior Court of Justice dated May 29, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The appellant sued the respondent for defamation. The respondent moved
    for summary judgment dismissing the action on the grounds that the statements
    made were true. The motion judge granted summary judgment. The appellant appeals.

[2]

The appellant has not demonstrated that the motion judge applied
    incorrect legal principles. As to the findings of fact made by the motion judge
    at para.10 of his reasons, the record supported those findings.

[3]

We see no palpable and overriding error. The appeal is dismissed with
    costs payable by the appellant to the respondent fixed at $8000 all-inclusive.


COURT OF APPEAL FOR ONTARIO

CITATION: Amon v. Mejj Enterprises Inc., 2019 ONCA 184

DATE: 20190306

DOCKET: C65817

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

Susan Amon

Plaintiff/Respondent

and

Mejj
Enterprises Inc.
and West Realty Group Ltd. cob Royal LePage

West
Realty Group

Defendants/
Appellant

Trent Morris, amicus

Ryan Breedon, for the respondent

Heard and released orally: March 6, 2019

On appeal from the judgment of Justice Edward Belobaba of
the Superior Court of Justice, dated August 22, 2018.

APPEAL BOOK ENDORSEMENT

[1]

Mr. Hussain was not originally in court to argue this appeal, but after
being called he appeared to advise the court that he was fired by the appellant
one month ago. Another counsel, Mr. Morris, also appeared to advise the court
that he is retained on other matters but not this appeal. Mr. Hussain spoke by
phone to the appellant who asked him to request an adjournment for him to
retain new counsel. That request is opposed by the respondent. We see no basis
to grant an adjournment in these circumstances.

[2]

The respondent also submits that there is no merit to the appeal. The
summary judgment was granted by the motion judge after the appellant failed to
comply with a court ordered indulgence regarding the payment of costs and
filing material. He also found that the material would not have raised a
genuine issue for trial.

[3]

The appeal is therefore dismissed with costs on the partial indemnity
basis of $7,500, inclusive of disbursements and HST.


COURT OF APPEAL FOR ONTARIO

CITATION: AV Holdings foundation trust v. Gilmore, 2019 ONCA
    223

DATE: 20190320

DOCKET: M49713 (M49611)

Feldman, Pepall and Nordheimer JJ.A.

BETWEEN

Michael Joseph Albert Gaboury, Trustee
    for AV Holdings foundation trust, AV7 Holdings Inc. and Valerie Burrell

Moving Parties (Appellants)

and

Carla Gilmore a.k.a. Karla Gilmore,
    Township of West Lincoln, Regional Municipality of Niagara, Welland and District
    Humane Society, Ontario SPCA, Welland and District SPCA Enforcement, Ryan
    Huurman and Relevant Boards associated (undisclosed)

Responding Parties (Respondents)

Michael Gaboury, as trustee for AV Holdings

Jordan D. Sobel, for the appellant, Valerie Burrell

Karla Gilmore, acting in person

Andrea Mannell, for the respondent, Township of West
    Lincoln

Mickey Cruickshank, for the respondent, Regional
    Municipality of Niagara

Ryan Kahn, for the respondents, Welland and District
    Humane Society, Ontario SPCA, Welland and District SPCA Enforcement and Ryan
    Huurman

Heard and released orally: March 20, 2019

On review of the order of Justice M.L. Benotto of the
    Court of Appeal for Ontario, dated October 4, 2018.

APPEAL BOOK ENDORSEMENT

[1]

This is a motion to review the decision of Benotto J.A. dismissing a
    motion for an extension of time to appeal. Benotto J.A. applied the correct
    test. We see no basis to interfere with her discretionary decision.

[2]

The motion is dismissed with costs fixed at $2,275 to the respondent, Township
    of West Lincoln, $2,275 to the respondent, Regional Municipality of Niagara,
    and $60 to the respondent, Karla Gilmore, inclusive of fees, disbursements and
    HST.


COURT OF APPEAL FOR ONTARIO

CITATION: AVIS Industrial Corporation v. Gravelle, 2019 ONCA
    172

DATE: 20190305

DOCKET: C65770

Tulloch, Brown and Miller JJ.A.

BETWEEN

AVIS Industrial Corporation

Respondent (Applicant)

and

Gordon R. Gravelle

Appellant (Respondent)

Gordon Gravelle, in person

Derek Zulianello, for the respondent

Heard and released orally: March 1, 2019

On appeal from the
    order of Justice W. Danial Newton of the Superior Court of Justice, dated July
    11, 2018.

REASONS FOR DECISION

[1]	The appellant, Gordon Gravelle, appeals from the order dated July 11, 2018 of Newton J. made pursuant to s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43 that prohibits Mr. Gravelle, and any company he controls, from instituting or continuing any proceedings in any court except by leave of a judge of the Superior Court of Justice. Mr. Gravelle advances both substantive and procedural grounds of appeal.

[2]	In terms of procedure, he submits the application judge denied him natural justice by not allowing him to give viva voce evidence, call witnesses on the application or convert the application into an action. We are not persuaded by these submissions. A proceeding under s. 140 of the Courts of Justice Act is by way of application, on a written record. Mr. Gravelle has not identified any distinctive aspect of this s. 140 application that would require a departure from that general procedure.

[3]	Mr. Gravelle makes a general argument that the application judge erred in law. We see no such error. The application judge identified and applied the correct legal principles. We see no palpable and overriding error in his factual conclusions.

[4]	The appeal is dismissed and the request for leave to appeal costs is denied.

[5]	Mr. Gravelle shall pay the respondent its costs of the appeal on a partial indemnity scale fixed in the amount of $10,398.30, inclusive of disbursements and H.S.T.

M. Tulloch J.A.

David Brown J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Berta v. Berta, 2019 ONCA 218

DATE: 20190319

DOCKET: C65727

van Rensburg, Benotto and Harvison Young JJ.A.

BETWEEN

Delia Joan Berta

Applicant
(Respondent in Appeal)

and

Raymond Louis Berta

Respondent
(Appellant)

Peter M. Callahan, for the
    appellant

Michael Zalev and Aaron
    Franks, for the respondent

Heard and released orally: March
    11, 2019

On
    appeal from the order of Justice Michael Gibson of the Superior Court of
    Justice, dated July 17, 2018.

REASONS FOR
    DECISION

[1]

The parties have been involved in matrimonial
    litigation since their separation nine years ago. This is the third time they
    have been to this court. Indeed, the bulk of the accumulated spousal support
    arises out of this courts order of November 2017.

[2]

The issue in this appeal is whether the motion
    judge erred by setting off costs and interest of $331,533.54 owed by the wife
    to the husband against accumulated spousal support and costs of $479,130.91
    owed by the husband to the wife. In the result, the husband owes the wife
    $147,597.37.

[3]

The husband appeals arguing that the motion
    judge erred by allowing the wife to amend her notice of motion to request the
    set off, then further erred in granting the set off because set off is not
    available in law and usurps the jurisdiction of the Family Responsibility
    Office (FRO).

[4]

We do not accept these submissions.

[5]

The motion judge did not err by allowing the
    amendment. The Family Law Rules require the court to ensure that cases are
    dealt with fairly by saving expense and time, dealing with the case in ways
    that are appropriate to its importance and complexity and by giving appropriate
    resources to the case while taking account of the need to give resources to
    other cases. The amendment was appropriately allowed.

[6]

Nor do we agree that set off was unavailable.
    The motion judge correctly referred to s. 111 of the
Courts of
    Justice Act
. While the Director of the FRO has the duty
    to enforce support orders, nothing in the
Family Responsibility
    Enforcement Act
limits the courts jurisdiction to order
    set off. Finally, to allow the husband to pursue a claim against the wife when
    he is significantly in debt to her would be highly unjust.

[7]

The appeal is dismissed with costs in the amount
    of $17,000 all-inclusive payable to the respondent out of the funds paid into
    court as security for costs.

K.
    van Rensburg J.A.

M.L.
    Benotto J.A.

A.
    Harvison Young