COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Cavan, 2015 ONCA 664

DATE: 20151002

DOCKET: C58169

Watt, Pepall and Huscroft JJ.A.

IN THE MATTER OF an application for judicial review
    pursuant to s. 57 of the
Extradition Act
, S.C. 1999, c. 18

BETWEEN

The Minister of
    Justice and Attorney General of Canada and

The United States of
    America

Respondents

and

Han Cavan

Applicant

John Norris and Meara Conway, for the applicant

Nancy Dennison, for the respondents

Heard: January 30, 2015

On application for judicial review of the surrender order
    of the Minister of Justice, dated December 12, 2013.

Watt J.A.:

[1]

Those who persist in their pursuits have mixed results. Some succeed.
    Others fail.

[2]

Han Cavan persisted in his pursuit of cocaine in the United States for
    sale in Canada. Twice he tried. And twice he failed. The reasons he failed
    differed. But the result was the same. No drugs. And no money.

[3]

Han Cavans troubles were not over. United States authorities wanted to
    prosecute him for his alleged involvement in those failed drug transactions.
    And they wanted Canadas help to pursue the prosecution by returning Cavan to
    the United States for trial.

[4]

Han Cavan agreed that the United States authorities had made out a case
    for his committal for surrender. A judge ordered his committal. The Minister of
    Justice ordered Cavans surrender.

[5]

Han Cavan does not contest the committal order. But he contends that the
    surrender order is fatally flawed by legal errors the Minister made in his
    decision. These reasons explain why I have concluded that, in this pursuit, Han
    Cavan fails again.

THE BACKGROUND FACTS

[6]

A brief tour through the nature of the allegations and the history of
    the proceedings is essential to an understanding of the claims of error
    advanced here.

The Original
    Conviction

[7]

The story begins in Minneapolis, Minnesota, on November 20, 2006, when
    Han Cavan was sentenced to imprisonment for 8 years, 8 months and 8 days on a
    conviction for conspiracy to traffic in nearly 30,000 ecstasy pills.

[8]

Han Cavan is a Canadian citizen. When convicted and sentenced in
    Minneapolis, Cavan was living and had a business in the United States. He began
    serving his sentence in a U.S. prison.

The Transfer to Canada

[9]

On May 9, 2008, under the
International Transfer of Offenders Act
,
    S.C. 2004, c. 21 and governing treaty, Cavan became a treaty transfer case to
    Canada. He arrived in Canada on June 26, 2008 to serve the remainder of his
    sentence.

Accelerated Day Parole

[10]

About
    six weeks after his return to Canada, Han Cavan was granted accelerated day
    parole. He was to reside at a Salvation Army residence in Kitchener while
    subject to the conditions of his day parole.

The First Plan

[11]

United
    States authorities allege that, during the summer of 2008, Han Cavan telephoned
    an individual in the United States in search of kilogram quantities of cocaine.
    The person whom Cavan called was a brother of a man with whom Cavan had been in
    jail in the United States. Unknown to Cavan, however, the man was also a paid
    confidential source who worked with the Drug Enforcement Agency (the DEA).

[12]

The
    communications between Cavan and the DEA source continued into the fall of 2008
    and included visits to New York City by Jo Van Lo, one of Cavans associates,
    to settle the details of the transaction: 17 kilograms of cocaine for $27,000
    per kilogram. The money, about $458,000, was to be transported to the United
    States in a secret compartment in a sports utility vehicle and exchanged for
    the cocaine, which was to be transported back to Canada in the same compartment
    of the same vehicle.

[13]

The
    plan failed. Customs and Border Protection agents stopped the vehicle at the
    Peace Bridge, searched it and found $458,000 in the hidden compartment. The
    driver of the vehicle, William Hicks, explained the scheme in a post-arrest
    statement to United States authorities.

Accelerated Full Parole

[14]

On
    October 2, 2009 the Parole Board of Canada (PBC) granted Han Cavan
    accelerated full parole. He was required to live at a designated address in
    Kitchener and be supervised by the Guelph Parole Office.

The Second
    Plan

[15]

According
    to United States authorities, Cavan continued to call the DEA source about the
    purchase of kilogram amounts of cocaine in 2009. The parties settled on a
    proposed exchange of 10 kilograms of cocaine for $25,000 per kilogram. Delivery
    of the drugs to Cavans associate, John Mawhinney, did not proceed in
    accordance with the original plan. A new plan was formulated. The transfer was to
    take place in Tonawanda, New York.

[16]

In
    Tonawanda, Mawhinney was given a sample of the cocaine by an undercover law
    enforcement agent. Mawhinney then produced a duffle bag containing the purchase
    price and a transportation fee of $500 per kilogram. When Mawhinney turned over
    the money to the DEA source, DEA agents arrested Mawhinney.

The United States Indictment

[17]

On
    November 19, 2009, two days after Mawhinney was arrested in Tonawanda, New
    York, a Grand Jury in the Southern District of New York returned a true bill of
    indictment against Mawhinney, Adam Kaup (who was with Mawhinney in Tonawanda),
    Cavan, Lo and Hicks.

[18]

The
    indictment alleged a conspiracy from at least November 2008 until November 17,
    2009 to distribute and to possess with intent to distribute cocaine. Arrest
    warrants were issued the same day.

Suspension and Revocation of Parole

[19]

Within
    a week of the Grand Jury indictment, a warrant suspending Cavans parole was
    issued. The warrant was executed the next day when Cavan attended a scheduled
    supervision interview.

[20]

About
    two and one-half months after Cavans parole was suspended, the PBC revoked his
    parole on the basis that he was involved in the commission of a new criminal
    offence and had breached a specific non-association condition of his parole.
    Cavan was recommitted to custody with a warrant expiry date of July 27, 2015.
    He has not taken any steps to review the suspension or cancellation of his
    parole.

[21]

The
    only new criminal involvement described in the materials provided to parole
    authorities was the charges contained in the U.S. indictment.

The Extradition Request

[22]

By
    diplomatic note on September 14, 2012 the United States requested the
    extradition of Cavan, Lo and Hicks to stand trial on the indictment in the
    United States District Court for the Southern District of New York.

The Authority to Proceed

[23]

About
    three months later, on December 13, 2012, counsel with the International
    Assistance Group issued an Authority to Proceed under s. 15 of the
Extradition
    Act
, S.C. 1999, c. 18 (the Act). The Attorney General of Canada was authorized
    to proceed before the Superior Court of Justice and seek orders of committal
    for Cavan, Lo and Hicks. The corresponding Canadian offence listed in the Authority
    to Proceed is conspiracy to traffic in a Schedule I controlled substance.

The Arrest of Han Cavan

[24]

Han
    Cavan was arrested on March 1, 2013, about three years after his parole had
    been revoked and about 28 months before his warrant expiry date. The arrest
    occurred about three years and four months after the Grand Jury returned a true
    bill of indictment in the Southern District of New York.

The Committal Hearing

[25]

On
    June 7, 2013 Han Cavan consented to his committal for surrender to United States
    authorities. A judge of the Superior Court of Justice ordered his committal.

The Surrender Proceedings

[26]

Counsel
    for Han Cavan sought and obtained further information from officials in the
    International Assistance Group in order to make submissions to the Minister
    about surrender.

[27]

On
    December 12, 2013 the Minister informed counsel for Cavan that he (the
    Minister) was ordering Cavans surrender for extradition to the United States.

THE GROUNDS FOR REVIEW

[28]

Han
    Cavan invokes s. 57(1) of the
Extradition Act
to seek judicial review
    of the surrender order made by the Minister. He contends that the surrender
    order is unsupportable because the Minister made several errors in failing to
    find that surrender would not infringe Cavans s. 7
Charter
rights or
    would not be unjust or oppressive under s. 44(1)(a) of the
Extradition Act
.

[29]

I
    would reframe these alleged errors as follows:

i.

The Minister erred in law by applying the wrong test and confining abuse
    of process to cases of bad faith and improper motive and thereby imposing an
    erroneously high standard on the exercise of his discretion to refuse to order
    surrender;

ii.

by limiting prejudice to the impact of delay on the extradition hearing;
    and

iii.

by unfairly imposing a burden on the applicant to show that an earlier
    extradition request would have resulted in his earlier release from custody.

[30]

I
    will consider each component of the overarching submission of unreasonableness
    separately.

Ground #1: The Abuse of Process Argument

[31]

The
    first complaint advanced by Cavan is that the Minister applied the wrong test
    and imposed too rigorous a standard in responding to the submission that to
    surrender him (Cavan) would constitute an abuse of process.

[32]

To
    determine the validity of this complaint, it is helpful to begin with a
    reference to the Ministers reasons on the issue before reviewing the positions
    of the parties and the principles that govern our decision on this issue.

The Reasons of the Minister

[33]

The
    Minister characterized this submission of counsel as an argument that surrender
    would be unjust and oppressive within s. 44 of the Act and an unjustifiable
    infringement of the applicants s. 7
Charter
rights. After noting that
    the arguments about delay by foreign authorities were analyzed as claims of
    abuse of process, the Minister described his understanding of the applicants
    burden to establish an abuse of process in these terms:

To find an abuse of process, there must be evidence of bad
    faith or improper motive on the part of the foreign authorities. As stated by
    the Supreme Court of Canada, such a finding will be extremely rare and must
    only be made in the clearest of cases (
United States of America v. Cobb
,
    [2001] 1 SCR 587;
R. v. Power
,
supra
). Additionally, it must
    be shown that the delay resulted in actual prejudice of such magnitude that the
    publics sense of decency and fairness is affected (
Blencoe v. British
    Columbia (Human Rights Commission)
, [2000] 2 SCR 307).

[34]

After
    a brief recital of the events that occurred from the Grand Jury indictment of
    the applicant and the others until the making of the extradition request the
    Minister wrote:

Your submissions are to the effect that the delay caused Mr.
    Cavan to be re-incarcerated for at least three years as a result of his parole
    having been suspended and revoked by order of the Parole Board of Canada (PBC).
    However, you have not presented any evidence to suggest that the U.S.
    authorities were involved in the parole suspension or revocation proceedings in
    Canada, other than to provide information to Canadian authorities. In
    particular, your materials indicate that the DEA provided information to
    Canadian officials concerning Mr. Cavans alleged involvement in cocaine
    trafficking while on parole. The U.S. authorities also provided updates at the
    request of Canadian officials on the status of their extradition request.

Your materials reveal that Mr. Cavans parole was not only
    revoked by the PBC because of information suggesting his involvement in drug
    trafficking but also because he violated a condition of his parole not to
    associate with a certain individual or individuals. Moreover, the delay in
    seeking Mr. Cavans extradition did not bring about the parole suspension; it
    was Mr. Cavans alleged conduct itself.

[35]

After
    a brief reference to the conduct of Canadian authorities and the complaint that
    those authorities did nothing to advance the extradition process, the Minister
    wrote:

I am satisfied that the three-year delay in this case (from the
    date of Mr. Cavans arrest on November 26, 2009, to the request for his
    extradition on September 14, 2012, and which was perfected when the ROC was
    certified on December 3, 2012) was not as a result of bad faith, or for an
    improper motive. Therefore, there is no basis to conclude that the conduct of
    Canadian or American authorities was abusive.

[36]

A
    few paragraphs later, the Minister expressed his conclusion on the applicants
    submission about delay and abuse of process.

In conclusion, it has not been established that the delay in
    this case amounts to an abuse of process or that Mr. Cavans surrender under
    the circumstances would be shocking to the conscience of Canadians, be
    simply unacceptable or contrary to the principles of fundamental justice.

Accordingly, I am of the view that Mr. Cavans surrender cannot
    be denied on the basis of delay.

The Arguments on Review

[37]

The
    applicant says that the doctrine of abuse of process is not limited to cases of
    bad faith or improper motive on the part of state authorities. To be certain,
    bad faith or improper motive are relevant considerations in the abuse of
    process analysis, but not conditions precedent to a successful claim. It
    follows, the applicant continues, that he was under no obligation to make out a
    case of either and the Minister was wrong in requiring him to do so.

[38]

The
    applicant contends that the doctrine of abuse of process protects the repute of
    the administration of justice. It has nothing to do with the merits of the
    states case either for extradition or at trial in the requesting jurisdiction.
    The doctrine is flexible and subsumed under s. 7 of the
Charter
. To
    subject the applicant to surrender in light of the delay in the extradition partners
    pursuit of extradition after the alleged offence and Grand Jury indictment
    would offend the communitys sense of fair play and decency, amount to an abuse
    of process and offend the principles of fundamental justice. The emphasis
    placed on the requirement of shocking the conscience or being simply
    unacceptable obscured the test the Minister should have applied in making his
    surrender decision.

[39]

The
    respondents begin with a reminder about the standard of review we are to apply.
    The standard is reasonableness, a benchmark that posits a range of possible
    outcomes, not a single, exclusive response. In this case, the respondents say,
    the Minister considered the relevant facts and reached a conclusion that falls
    within the range of supportable outcomes.

[40]

The
    respondents contend that the applicants argument about abuse of process rests
    exclusively on a claim of unreasonable or undue delay in the initiation of
    extradition proceedings. Unlike in domestic proceedings to which s. 11(b) of
    the
Charter
would apply, the delay here must take cognizance of the
    international nature of these proceedings. To make out a claim of abuse of
    process based on delay, the applicant must invoke the residual category of
    abuse of process. The authorities make it clear that in the residual category,
    stays for abuse of process are extremely rare and granted in only the clearest
    of cases where no other remedy is capable of eradicating the prejudice. This
    case does not ascend to that level.

The Governing Principles

[41]

The
    combined effect of several principles assists in the determination of this
    ground of appeal. Some describe the standard of review of a surrender decision.
    Others define the scope of the doctrine of abuse of process. Still others
    interpret the duty of the Minister under s. 44(1)(a) of the
Extradition Act
.
     And others describe the extent to which, if at all, Canadian authorities can
    direct the manner in which our extradition partners carry out their
    investigation of offences and pursuit of extradition proceedings.

The Surrender Decision

[42]

After
    committal, an extradition request reverts to the Minister who reviews the case
    in its entirety and determines whether, and if so on what basis, to order the
    surrender of the person sought. This requires the Minister to determine whether
    it is politically appropriate and not fundamentally unjust for Canada to
    extradite the person the extradition partner seeks:
Extradition Act
,
    s. 40(1);
Fischbacher v. Canada (Minister of Justice)
, 2009 SCC 46,
    [2009] 3 S.C.R. 170, at para. 36.

[43]

The
    Ministers authority to order or refuse surrender is subject to the provisions
    of the Act and Treaty. The Minister must exercise his authority in conformity
    with the
Charter
:
Fischbacher
, at para. 36.

[44]

Several
    provisions of the Act, under the sub-heading
Reasons for Refusal
, circumscribe
    the Ministers surrender power in s. 40(1). Some provisions are mandatory,
    barring surrender in defined circumstances. Others are discretionary,
    permitting but not requiring refusal in other circumstances.

[45]

Under
    s. 44(1)(a), the Minister must refuse to order surrender if the Minister is
    satisfied that the surrender would be unjust or oppressive having regard to all
    the relevant circumstances. Under this provision, the Minister must consider
    all relevant circumstances, each on its own and together with the rest, to
    determine whether surrender would be unjust or oppressive:
Fischbacher
,
    at para. 37;
United States of America v. Johnson
(2002), 62 O.R. (3d)
    327 (C.A.), at para. 45. Inclusion of the term satisfied in s. 44(1)(a)
    reposes a discretion in the Minister:
Fischbacher
, at para. 37.

[46]

To
    make a surrender decision, the Minister must undertake a balancing of all the
    relevant circumstances, weighing factors that militate in favour of surrender,
    on the one hand, against those that advocate against surrender, on the other.
    The relevant circumstances will vary, of course, from one case to the next.
    Included within the broad embrace of relevant may be:

i.

any representations (on the issue of surrender) made on behalf of the
    person sought;

ii.

the conduct of the proceedings in the requesting state before and after
    the extradition request;

iii.

the potential punishment on conviction in the requesting state;

iv.

the personal circumstances of the person sought;

v.

the timeliness and manner of prosecuting the extradition proceedings in
    Canada; and

vi.

the need to respect the constitutional rights of the person sought and
    Canadas international obligations under the Treaty and as a responsible member
    of the international community: see
Fischbacher
, at para. 38;
United
    States of America v, Bonamie
, 2001 ABCA 267, 293 A.R. 201, at para. 54;
United
    States of America v. Cobb
, 2001 SCC 19, [2001] 1 S.C.R. 587, at para. 34.

[47]

Section
    44(1)(a) entitles the Minister to refuse surrender in the absence of a
Charter
breach, provided the Minister is satisfied that surrender would be unjust or
    oppressive in all the relevant circumstances. A
Charter
breach may not
    be alleged. Or alleged, but not established. Despite the constitutionality of
    surrender, the Minister may refuse surrender if surrender would be unjust or
    oppressive in all the circumstances.

[48]

The
    exercise of the Ministers power of surrender implicates the liberty and, in
    some cases, the security of the person sought. As a result, the Minister owes a
    duty of fairness both at common law and in accordance with the principles of
    fundamental justice under s. 7 of the
Charter
:
Nemeth v. Canada
    (Minister of Justice)
, 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 70.

[49]

Under
    s. 44(1)(a), the Minister must have a wide measure of appreciation of what
    circumstances are unjust or oppressive. The burden of demonstrating that
    unjust or oppressive circumstances exist falls upon the person sought:
Fischbacher
,
    at para. 37;
Nemeth
, at para. 72;
Lake v. Canada (Minister of
    Justice)
, 2008 SCC 23, [2008] 1 S.C.R. 761, at paras. 38-39.

Supervision of Proceedings in
    Foreign Jurisdictions

[50]

Actions
    undertaken by the Government of Canada in extradition proceedings are subject
    to
Charter
scrutiny. But the
Charter
does not govern the
    actions of the extradition partner. The
Charter
does not operate
    extraterritorially to superintend the manner in which offences alleged to have
    been committed in a foreign jurisdiction are investigated and prosecuted:
Canada
    v. Schmidt
, [1987] 1 S.C.R. 500, at p. 518.

Abuse of Process and the
    Principles of Fundamental Justice

[51]

In
    domestic proceedings, we recognize two categories of abuse of process. Each
    would also be captured by s. 7 of the
Charter
. Each is rooted in state
    conduct. The main category encompasses state conduct that affects the fairness
    of the trial. The residual category takes in state conduct that contravenes
    fundamental notions of justice and thus undermines the integrity of the
    judicial process:
R. v. OConnor
, [1995] 4 S.C.R. 411, at para. 73;
R.
    v. Nixon
, 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 36;
R. v. Babos
,
    2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31.

[52]

Abuse
    of process does not require evidence of bad faith or an improper motive on the
    part of the foreign authorities. It also captures conduct that falls short of
    bad faith but still risks undermining the integrity of the justice system:
Canada
    (Attorney General) v. Barnaby
, 2015 SCC 31, 323 C.C.C. (3d) 185, at para.
    10;
Babos
, at paras. 36-37.

[53]

The
    test used to determine whether a stay of proceedings is warranted in domestic
    cases under either category comprises three requirements:

i.

prejudice to an accuseds right to a fair trial or the integrity of the
    justice system that will be manifested, perpetuated or aggravated through the
    conduct of the trial or its outcome;

ii.

no alternative remedy capable of redressing the prejudice; and

iii.

in the event of uncertainty after completion of steps i and ii, a
    balancing of interests in favour of the stay against the interest society has
    in having a final decision on the merits: see
Babos
, at para. 32. See
    also
R. v. Regan
, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 54 and
    57.

[54]

In
    the residual category, prejudice to an accuseds interests is relevant, but not
    determinative. In most cases an accused will have to demonstrate that the state
    conduct prejudiced him or her in some significant way in order to make out a
    case for abuse of process. But the prejudice component is better conceptualized
    as an act tending to undermine societys expectations of fairness in the
    administration of justice:
Nixon
, at para. 41. The question is whether
    the states interest is offensive to societys notions of fair play and decency
    and whether proceeding with a trial in the face of that conduct would be
    harmful to the integrity of the justice system. State conduct that exceeds
    societys tolerance harms the integrity of the justice system:
Babos
,
    at para. 35.

[55]

The
    balancing stage of the test, which need only be undertaken when uncertainty
    remains after completion of the first two stages, assumes added importance
    under the residual category:
Babos
, at para. 41. The question there is
    which of two options better protects the integrity of the system: staying the
    proceedings or having a trial despite the impugned conduct:
Babos
, at
    para. 41.

[56]

At
    the root of each category of abuse of process rests state conduct. Where the
    state conduct implicates the fairness of trial proceedings, the main category
    applies. The concern is whether there is ongoing unfairness to the accused:
Babos
,
    at para. 34. In the residual category, the conduct does not implicate the
    fairness of trial proceedings, rather its condonation would tarnish the integrity
    of the court:
Nixon
, at para. 41.

[57]

In
    either category, stays of proceedings for abuse of process are limited to the
    clearest of cases:
Babos
, at para. 31;
OConnor
, at para. 68.
    The balancing of societal interests that must take place and the clearest of
    cases threshold present a claimant who seeks a stay under the residual
    category with an onerous burden. Cases warranting a stay in the residual
    category will be exceptional and very rare:
Babos
, at para. 44;
Canada
    (Minister of Citizenship and Immigration) v. Tobiass
, [1997] 3 S.C.R. 391,
    at para. 91. It is only where the affront to fair play and decency is
    disproportionate to the societal interest in the effective prosecution of
    criminal cases that a stay will be warranted:
Babos
, at para. 44;
R.
    v. Conway
, [1989] 1 S.C.R. 1659, at p. 1667.

The Standard of Review

[58]

On
    review, provided the Minister applies the correct legal test and does not
    otherwise err in law or contravene principles of natural justice, deference is
    owed to the Ministers decision on surrender: see
Lake
, at para. 34,
    41;
United States of America v. Magnifico
, 2007 ONCA 535, 223 C.C.C.
    (3d) 129, at para. 26. The standard of review for the Ministers decision is
    reasonableness even where the person sought contends that extradition would
    offend his or her rights under the
Charter
:
Lake
, at para.
    34. Interference with the Ministers decision is limited to exceptional cases
    of real substance:
Schmidt
, at p. 523;
Lake
, at para. 34.

[59]

The
    standard of reasonableness does not command that reviewing courts be blindly
    submissive to the Ministers assessment. That said, the standard does entail
    more than one possible conclusion. Our role is not to reassess the relevant
    factors and substitute our own view for that of the Minister. What we must
    decide is whether the Ministers decision falls within a range of reasonable alternatives.
    We must ask ourselves:

Did the Minister consider the relevant facts and reach a
    defensible conclusion based on those facts?

Provided the Minister has identified the proper test,
    his conclusion should be upheld unless it is unreasonable, that is to say,
    falls outside the range of reasonable outcomes:
Lake
, at para. 41.

The Principles Applied

[60]

The
    applicant  alleges error in the test the Minister applied in rejecting the
    submission that surrender would constitute an abuse of process or be unjust or
    oppressive within s. 44(1)(a) of the
Extradition Act
. I would not give
    effect to this ground of appeal.

[61]

The
    standard of review in this case is reasonableness. The applicant is correct to
    say that the Minister erred in his statement that bad faith or improper motive
    are conditions precedent to a successful claim of abuse of process; however,
    reading his decision as a whole, the Minister applied the correct test.

[62]

The
    Ministers reasons indicate that he considered all of the relevant factors pertaining
    to the issue before him, including the delay, Cavans re-incarceration and any
    potential prejudice. In addition, as the applicant put the
bona fides
of
    the requesting state in issue, it was appropriate for the Minister to consider
    whether the request for extradition was made in good faith or for some
    colourable purpose.

[63]

In
    any event, the standard to be met to establish an abuse of process  a showing
    that the state conduct risks undermining the extradition process  is so far
    removed from what occurred here as to make the error of no consequence to the
    result.

[64]

In
    reviewing the Ministers surrender decision on a standard of reasonableness, I
    proceed from a standard of deference owing to the discretionary nature of the
    decision, the superior expertise of the Minister and his obligation to ensure
    that Canada complies with its international obligations. His decision is
    principally an exercise of executive discretion, essentially political in
    nature, and at the extreme legislative end of the continuum of administrative
    decision-making.

[65]

Further,
    I am mindful of the admonition that interference with the Ministers decision
    on surrender is to be limited to exceptional cases of real substance.

[66]

Two
    reasons persuade me that the Ministers decision to reject the applicants
    claims that an order of surrender would be an abuse of process or unjust or
    oppressive falls within a range of reasonable outcomes and accordingly is not
    unreasonable.

[67]

First,
    the applicants invocation of the residual category of abuse of process
    requires a showing that the state conduct risks undermining the integrity of
    the extradition process. Such a showing would require evidence of conduct that
    is offensive to societal notions of fair play and decency. Cases warranting a
    stay of proceedings, and thus a refusal of surrender, on this ground are
    exceptional and rare. Nothing that occurred here amounts to an affront to fair
    play and decency that is disproportionate to the societal interest in the
    effective discharge of our international obligations to those accused of
    serious crimes in the jurisdiction of our extradition partner.

[68]

Second,
    the claim of abuse of process, injustice or oppression ultimately reduces to a
    submission of undue delay in the initiation of extradition proceedings. A
    complaint of this kind comes uncomfortably close to an attempt to impose our
    standards on the timeliness of trial proceedings on foreign authorities or at least
    to gauge their conduct by such a standard. And this we cannot do. Not directly.
    And not indirectly.

[69]

The
    Minister made an inquiry about the time that had elapsed from indictment to the
    initiation of extradition proceedings. He received a response, on its face
    reasonable  the accused persons had been indicted two days after the
    investigation concluded, and additional information in support of the charges
    had been gathered. The involvement of two different jurisdictions in the
    extradition of one of Cavans co-defendants had required consultation and
    coordination. It was not unreasonable for the Minister to accept this
    response.

Ground #2: Alleged Error in
    Assessment of Prejudice

[70]

The
    second ground on which the applicant argues the Ministers surrender decision
    was unreasonable has to do with the Ministers assessment of prejudice
    attributable to the delay in initiation of the extradition proceedings by the
    U.S. authorities. The error alleged is twofold. First, the Minister limited his
    assessment of prejudice to the impact of delay on the extradition hearing. And
    second, he failed to consider the prejudice caused to the applicant by the
    communication of information about the outstanding charges in the United States
    to Canadian authorities and its impact on the suspension and cancellation of
    the applicants parole and his incarceration to serve the balance of his
    sentence.

The Reasons of the Minister

[71]

In
    addition to the passages of the Ministers letter to counsel cited in paras. 34
    and 35 of this judgment, the following passage is relevant to this ground:

I have considered whether Mr. Cavan has been prejudiced by the
    delay. The Supreme Court of Canada has determined that only delay which impairs
    the ability of the person sought to adequately prepare for an extradition
    hearing is relevant to my decision on surrender. You have not provided me with
    any evidence to suggest that Mr. Cavans ability to defend himself in the
    Canadian extradition proceedings has been prejudiced by delay. Any other delay,
    and in particular delay which impacts on the ability of the defendant to
    present a full answer and defence, should be addressed at trial in the foreign
    state (
United States v. Allard
, [1987] 1 SCR 564).

The Arguments on Review

[72]

The
    applicant contends that the Minister wrongly restricted his consideration of
    prejudice to the impact of delay on the conduct of the extradition hearing. In
    doing so, the applicant says, the Minister wrongly conflated the jurisdiction
    of the extradition judge at the committal hearing with his own authority on
    surrender. The Minister is not required to find a nexus between the conduct
    alleged to constitute an abuse of process and the committal hearing in order to
    refuse surrender. The Ministers authority under s. 44(1)(a) of the Act is more
    expansive and not limited to or dependent upon a finding that the delay
    impaired the applicants ability to prepare for the extradition hearing.

[73]

In
    addition, the applicant says, the Minister took an unreasonably narrow view of
    prejudice in connection with the impact of the extradition partners conduct on
    the parole revocation proceedings. The suspension, later revocation, of the
    applicants parole was based largely on information supplied by the DEA about
    the outstanding U.S. proceedings. The result was that the applicant was
    reincarcerated until his warrant expiry date. Having provided the information
    to Canadian authorities, the applicant submits, the United States was obliged
    to move expeditiously with the extradition proceedings. Its failure to do so
    should have resulted in refusal of surrender.

[74]

The
    respondents disclaim any nexus amounting to an abuse of process between the
    extradition proceedings and the decision of PBC to suspend, then revoke, the
    applicants parole.

[75]

The
    respondents say neither the initiation nor the timing of extradition
    proceedings were of any moment to the authority or decision of the PBC to
    suspend and later revoke the applicants parole. The PBC exercises an
    inquisitorial function. It can rely on a wide variety of information from
    domestic and foreign sources to carry out its mandate. The range of material on
    which the Board can rely includes information indicative of a return to
    criminal activity whether charged, proven, stayed, withdrawn or dismissed. The
    extradition partner had no status before the Board. The applicant had the right
    to appeal or judicially review to Boards decision but chose not to do so.

[76]

The
    respondents point out that the delay in instituting extradition proceedings had
    no impact on the period the applicant would spend in custody. Once parole had
    been revoked, subject to his right to re-apply or review the revocation
    decision, the applicant would remain in custody until his warrant expiry date
    with or without any extradition proceedings.

The Governing Principles

[77]

In
    addition to the principles already canvassed and in no need of repetition, it
    is helpful to add a brief reference to the relationship between the domestic
    proceedings before the PBC and the impact of parole revocation on surrender for
    extradition.

[78]

Whether
    a prisoner serving a penitentiary sentence in Canada will receive parole and,
    if so, when and on what basis is determined by the PBC. It is of no moment to
    eligibility whether the sentence being served is for a domestic crime or for an
    offence committed elsewhere and served here under the
International
    Transfer of Offenders Act
.  The Board is not a court. It is not bound by
    the traditional rules of evidence, but rather may act on information that would
    not be admissible in criminal trial proceedings.

[79]

Nothing
    disentitles the PBC from acting on information gathered in a foreign
    jurisdiction. That said, foreign law enforcement authorities have no standing
    before the Board. Whether the foreign information is conveyed to the Board
    depends on domestic authorities. The use, if any, the Board makes of the
    information is determined by the Board in the exercise of its discretion.

[80]

Section
    64(1) of the
Extradition Act
governs cases in which a surrender order is
    made in respect of a person who was serving a sentence in Canada after
    conviction of an offence. The general rule enacted by this section is that the
    surrender order does not take effect until the person has been discharged from
    custody. It is of no moment whether the discharge is the result of an
    acquittal, the expiry of the sentence, or some other reason. The timing of the
    extradition proceedings would seem of no consequence to the prisoners
    surrender, absent a contrary order by the Minister:
Hanson v. Canada
    (Minister of Justice)
, 2005 BCCA 77, at para. 12.

[81]

The
    rule of no surrender until discharge is not unyielding. Section 64(1) expressly
    authorizes the Minister to order otherwise. And s. 66(1) permits the Minister
    to make an order of temporary surrender to the extradition partner.

The Principles Applied

[82]

I
    would reject the applicants claim that the surrender decision is unreasonable
    because the Minister erred in his assessment of prejudice when considering
    whether to refuse surrender under s. 44(1)(a) of the Act.

[83]

The
    decision of the Minister under s. 44(1)(a) of the Act is essentially an
    exercise of discretion. This arises from the use of the term satisfied and
    despite the mandatory shall refuse in the introductory words of the
    subsection. The subsection contains no exhaustive or illustrative list of
    factors for the Minister to consider, but rather envisages an assessment of all
    the circumstances and a balancing of those factors that favour surrender and
    those that counsel otherwise. Decisions that involve the exercise of discretion
    are notoriously the subject of deference on review.

[84]

Second,
    the fact that the extradition proceedings were outstanding formed no part of
    the decision of the PBC to suspend and later revoke the applicants parole.
    That decision was based on the applicants alleged involvement in an agreement
    to unlawfully import cocaine into Canada for sale here and his association with
    others with whom contact was prohibited under the terms of his parole. It was
    the applicants own conduct that compromised his conditional liberty, not the
    fact of extradition proceedings or any delay in initiating them.

[85]

Third,
    it does not follow, as the applicant seems to suggest, from the fact U.S.
    authorities provided information to their Canadian counterparts about the
    alleged criminal activity of the applicant that the United States authorities
    were bound to accelerate the initiation of extradition proceedings.

[86]

Extradition
    proceedings inevitably involve alleged criminal activity in the jurisdiction of
    the extradition partner. The manner in which the investigation proceeds in
    connection with the activity is up to the law enforcement authorities in the
    jurisdiction where it occurs. Likewise, the decision about extradition
    proceedings. Whether they will be taken. When. On what basis. The requested
    state does not call the tune. International comity dictates otherwise.

[87]

Fourth,
    any collateral consequences in Canada of alleged criminal activity in the
    United States are of no moment to United States authorities. Neither the fact
    nor the nature of these consequences imposes any obligation on the United
    States authorities to hasten their decision about extradition proceedings or the
    pace at which those proceedings are pursued. It is their case to make, not ours
    to dictate.

[88]

In
    addition, once the PBC revoked the applicants parole and he was recommitted to
    serve the balance of his sentence, failing a contrary order by the Minister, s.
    64(1) of the Act mandated that no surrender would take effect until the remanet
    of the applicants sentence expired. No prejudice ensued from the pace at which
    extradition proceedings were pursued.

[89]

Reading
    the reasons of the Minister as a whole, I am not persuaded that the erroneous
    reference to the impact of delay on the applicants ability to adequately
    prepare for the extradition hearing (which had already been held) renders the
    surrender decision unreasonable. The applicant consented to committal, a step
    that put paid to any claim of prejudice in that respect. But the Minister went
    on to consider other aspects of prejudice that might ensue from delay. Such as
    its effect on the applicants ability to defend himself in the United States
    proceedings. He also weighed potential prejudice against Canadas international
    obligations to its extradition partner. His conclusion was not unreasonable.

Ground #3: Alleged Unfair Burden of Proof

[90]

The
    final ground advanced by the applicant concerns the Ministers authority under
    s. 64(1) of the Act to order that surrender take place before expiry of a
    sentence of imprisonment the person sought is then serving.

The Reasons of
    the Minister

[91]

The
    Minister considered the submission that Canadian authorities did nothing to
    advance the extradition proceedings while the United States charges prevented
    the applicants release on parole. The Minister wrote:

With respect to your submission that Canadian authorities did
    nothing to advance this matter while the pending U.S. charges prevented Mr.
    Cavan from being released on parole, I note that an earlier extradition request
    would not have changed the fact that the U.S. charges would still have been
    pending until at least such time as Mr. Cavan was surrendered to the United
    States. With respect to persons sought serving sentences in Canada, I note that
    section 64 of the Act provides that, unless I order otherwise, a surrender
    order does not take effect until after the person has been discharged whether
    by expiry of the sentence or otherwise. Your materials indicate that Mr. Cavan
    was not eligible for statutory release until September 5, 2013, and that his
    sentence does not expire until July 27, 2015. In the circumstances, it is not
    apparent that an earlier request for extradition would have resulted in Mr.
    Cavans earlier release from custody in relation to the sentence he is
    currently serving in Canada.

The Arguments on Review

[92]

The
    applicant contends that the Minister placed an unfair burden on him to show
    that an earlier request for extradition
would
have resulted in his
    earlier release from custody on his U.S. sentence that had been transferred to
    Canada. Early surrender is in the hands of the Minister. It follows, the
    applicant says, that the burden should be on the Minister to explain why he
    would not have made an order under s. 64(1) had the extradition proceedings been
    instituted more promptly. In addition, the Minister failed to consider an order
    for temporary surrender under s. 66 of the Act.

[93]

The
    respondents point out that the complexities inherent in extradition proceedings
    engender delay. The underlying investigation within the jurisdiction of the
    extradition partner must be completed. In this case, the offence alleged to
    have been committed extended over a year, involved several alleged
    participants, included two separate prosecutorial authorities and required
    concurrent proceedings against the alleged parties to ensure contemporaneous
    apprehension. The Minister cannot dictate the pace of the foreign investigation
    or extradition proceedings.

[94]

The
    respondents say a fair reading of the Ministers reasons fails to reveal the
    imposition of any burden on the applicant as he claims. As a general rule,
    surrender awaits sentence expiration. The Minister simply pointed out that it
    was not apparent that an earlier extradition request would have made a
    difference. Such an observation does not impose a burden on the applicant to
    demonstrate the contrary.

The Governing Principles

[95]

Earlier
    in these reasons, I canvassed the operation of the provisions of s. 64(1) of
    the Act. No purpose will be served by their repetition here.

The Principles
    Applied

[96]

I
    would not give effect to this complaint. My reasons for rejecting it are brief.

[97]

First,
    I do not read the reasons of the Minister as imposing a burden on the applicant
    to demonstrate that more timely initiation of the extradition proceedings would
    have resulted in the applicants earlier release. The reasons simply point out
    the general rule that s. 64(1) puts in place. This observation about the
    practical impact of the statutory provision does not, in terms or by necessary
    implication, impose any burden on the applicant.

[98]

Second,
    a contrary order by the Minister based simply on delay would offend comity in
    that it would necessarily imply ministerial authority to superintend the manner
    in which foreign authorities conduct their business. No such authority resides
    in the Minister.

CONCLUSION

[99]

For
    these reasons, I would dismiss the application for judicial review and affirm
    the surrender decision of the Minister.

Released: October 2, 2015 (DW)

David
    Watt J.A.

I
    agree S.E. Pepall J.A.

I
    agree Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Whiteman v. Iamkhong, 2015 ONCA 687

DATE: 20151013

DOCKET: C57975

Laskin, Pardu and Brown JJ.A.

BETWEEN

Percy
    Wilbert Whiteman

Plaintiff (Appellant)

and

Suwalee
    Iamkhong, a.k.a. Ricky Iamkhong, Her Majesty the Queen in Right of Canada, The
    Attorney General of Canada, Dr. Martin Taylor, and Zanzibar Tavern Inc.

Defendants (Respondents)

Talman Rodocker and Joe Giuliana,
    for the appellant

Marina Stefanovic and Kareena
    Wilding, for the respondent The Attorney General of Canada

Allyson Fox, for the respondent
    Zanzibar Tavern Inc.

Christopher Hubbard and Carole
    Piovesan, for the respondent Dr. Martin Taylor

Heard: June 22, 2015

On appeal from
    the judgment of Justice Carole J. Brown of the Superior Court of Justice, dated
    October 30, 2013.

COSTS ENDORSEMENT

[1]

Following the release of the courts written endorsement on July 29,
    2015, the appellant settled the issue of costs with the respondents, Her
    Majesty the Queen in Right of Canada, The Attorney General of Canada, and Dr.
    Martin Taylor.

[2]

The appellant and the respondent, Zanzibar Tavern Inc., filed cost
    submissions.  Having reviewed those submissions, we conclude that costs should
    follow the success on the appeal, and we order the appellant to pay the
    respondent, Zanibar Tavern Inc., costs of the appeal fixed in the amount of
    $3,500.00, inclusive of disbursements and HST.

John
    Laskin J.A.

G. Pardu
    J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Akagi v. Synergy Group (2000) Inc., 2015 ONCA 771

DATE: 20151110

DOCKET: C57582, C59494, C59496, C59497, C59498,

C59499, C59500, C59508, C59509, C59510, C59511

Simmons, Blair and Juriansz JJ.A.

BETWEEN

Trent Akagi

Applicant

(Respondent)

and

Synergy Group (2000) Inc. (aka Synergy Group
    Inc., Synergy Group 2000 Inc., The Synergy Group 2000 Inc., The Synergy Group,
    Inc., (2000), The Synergy Group Incorporated, The Synergy Group 2000
    Incorporated) and Integrated Business Concepts Inc.

Respondents

(Appellants)

Jonathan C. Lisus and James Renihan, for the appellants,
    Student Housing Canada Inc. and RV Inc.

William C. McDowell and Brian Kolenda, for the
    appellants, Integrated Business Concepts Inc. and Vincent Villanti

Shannon M. Puddister, for the appellant, Ravendra
    Chaudhary

Joseph M. Sereda, for the appellants, Synergy Group
    (2000) Inc., Shane Davidson Smith, Nadine Theresa Smith, Jean Breau, David
    Prentice, and 1893700 Ontario Limited

Jeffrey S. Leon and Ruth Promislow, for the respondent,
    J.P. Graci & Associates Ltd. in its capacity as Court-Appointed Receiver

Terry Corsianos, for the respondent, Trent Akagi

Heard: December 12, 2014

On appeal from the orders of Justice Colin Campbell of the
    Superior Court of Justice, dated June 14, 2013, June 24, 2013, June 28, 2013,
    August 2, 2013, and September 16, 2013.

COSTS ENDORSEMENT

[1]

On May 22, 2015, this Court released its decision setting aside a series
    of increasingly expansive
ex parte
receivership orders dated June 14, June
    24, June 28 and August 2, 2013, and a subsequent order on a Come Back Hearing
    dated September 16, 2013 maintaining those orders.

[2]

We have received and reviewed the costs submissions filed by counsel
    since then. This is our decision with respect to the costs of the proceedings.

BACKGROUND

[3]

The
    appeal concerned what was labelled an investigative receivership that
    generated a series of orders which the Court concluded stood on a
    fundamentally flawed premise and were unjustifiably overreaching in the
    powers they grant[ed]:
Akagi v. Synergy Group (2000) Inc.
, 2015 ONCA
    368, at para. 59.  In our view, both Mr. Akagi (who commenced the receivership
    proceedings without taking any initial steps to recover on his judgment) and
    the Receiver (who took the investigative receivership too far, essentially on
    the theory that an investigative receivership was akin to a criminal
    investigation or a public inquiry where there were allegations of significant
    fraud) must bear the cost consequences of the orders having been set aside.

[4]

Mr. Akagi
    applied for an initial
ex parte
order appointing a receiver (the
    Initial Order) after obtaining a default judgment in the amount of
    approximately $147,000, based on allegations of fraud arising out of the loss
    of funds he had contributed to a tax program marketed and sold by the Synergy
    Group (2000) Inc. (the Synergy Group). The program was supposed to generate
    tax loss allocations for him, but did not. His judgment was against the Synergy
    Group and certain individuals associated with it. The Initial Order granted a
    receivership over all the assets and undertakings of the Synergy Group and an
    additional company, Integrated Business Concepts Inc. (IBC).

[5]

It
    soon became clear, however, that the principal purpose of the receivership
    order was not to recover on Mr. Akagis judgment debt, but to institute a
    broad-ranging inquiry  a roving investigative receivership  into what was
    alleged to be a much larger tax fraud scheme, and to do so, purportedly, on
    behalf of approximately 3,800 other investors who may have been caught in the
    tax scheme as well. None of these investors were a party to the Akagi action or
    the receivership application, none purported to seek to have their interests
    protected, and Mr. Akagi and the Receiver maintained throughout that they did
    not purport to represent the interests of those investors.

[6]

As
    we explained in our reasons at para. 4:

Subsequently, through a series of further
ex parte
applications, the receivership order morphed into a wide-ranging investigative
    receivership, freezing and otherwise reaching the assets of 43 additional
    individuals and entities (including authorizing the registration of
    certificates of pending litigation against their properties).  None of the
    additional targets was a party to the receivership proceeding, only three had
    any connection to the underlying Akagi action, and only two were actually
    judgment debtors.

[7]

The
    receivership orders were set aside on the basis that the receivership had
    proceeded on an entirely misguided course (para. 1), the orders were
    impermissibly overreaching, and the
ex parte
proceedings themselves
    had been tainted by certain procedural frailties, including the Receivers
    failure to disclose to the Commercial List judge that the Canada Revenue Agency
    had discontinued its investigation into the tax allocation scheme several
    months before the receivership was sought, when evidence of that inquiry had
    formed the basis for obtaining the orders.

THE COSTS SUBMISSIONS

[8]

The appellants IBC and Vincent Villanti (IBC/Villanti), Ravendra
    Chaudhary, and Student Housing Canada Inc. and RV Inc. (Student Housing/RV)
    all seek their costs on a full or substantial indemnity basis against both Mr.
    Akagi and the Receiver jointly and severally.  They rely on what the Court
    described as the impermissibly and breathtakingly broad sweep and nature of
    the
ex parte
orders (paras. 38, 43), the procedural frailties in the
    manner in which the successive
ex parte
orders were obtained, and what
    is said to be the unduly adversarial nature of the way in which the Receiver
    conducted itself.

[9]

The Receiver resists these allegations and argues that no costs should
    be awarded against it for the following reasons: it was proceeding in good
    faith and simply carry[ing] out what it understood to be the court-ordered
    mandate; its conduct and activities pursuant to the receivership orders were
    approved by the Court in the August 2, 2013 Order and the Come Back Order; and
    the general rule is that a receiver is not exposed to costs against it
    personally in receivership proceedings.

[10]

Mr.
    Akagi argues that his involvement with this receivership has been limited solely
    to obtaining the initial receivership order of June 14, 2013 and to defending
    [that] order throughout [the] receivership (i.e., at the Comeback Hearing, on
    a motion before Feldman J.A., and on the appeal to this Court). He therefore
    resists any responsibility for costs incurred by the appellants drawn into the
    proceedings by the three
ex parte
orders subsequent to the Initial
    Order. He also submits that costs should not be ordered because none of the
    appellants sought costs against him at the Comeback Hearing.

DISCUSSION

Mr. Akagi and the Receiver Are Both Liable to Pay Costs

Mr. Akagi

[11]

We
    do not accept that Mr. Akagis involvement in the receivership proceedings was
    minimal or limited to obtaining the Initial Order, or that he should be immune
    from an award of costs against him in the circumstances.

[12]

While
    it may be true that it was the Receiver that sought and obtained the subsequent
ex parte
orders, Mr. Akagi tenaciously defended those orders and the
    Initial Order once the appellants received notice of them and took steps to set
    them aside. Mr. Akagis counsel attended and participated in the various
    motions, scheduling appointments and examinations following the August 2, 2013
    Order and leading up to the appeal, and was a central participant on the appeal
    itself.  In short, Mr. Akagi instituted and then supported the proceedings throughout
    and, as counsel for IBC/Villanti submits, permitted himself to be misused as a
    proxy to initiate the impermissible voyage that was this receivership.

[13]

We
    also do not accept Mr. Akagis submission that no costs should be awarded with
    respect to the Comeback Hearing because none of the appellants sought costs
    against him in their notices of motion or appeal. In our view, this is not
    fatal to the claim for costs.

[14]

Costs
    of a proceeding and a step in the proceeding are within the discretion of the
    court: see
Courts of Justice Act
, R.S.O. 1990, c. C.43, s. 131.  The
    default loser pays rule is well-recognized and it is the usual expectation of
    parties that costs will be sought by a successful party. Indeed, r. 57.03(1) of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194

requires
    the court to order costs unless it is satisfied that a different order would be
    more just. Although r. 37.06(a) requires a party to set out the relief sought
    in the notice of motion, a costs award is incidental to the substantive relief
    claimed and  absent prejudice to the losing party  we see no reason why the
    failure to ask for costs in the notice of motion should, in itself, preclude
    the court from making such an order where costs are requested at the hearing.
    See
Kretzschmann v. Greater Sudbury (City of)
, 2010 ONSC 327, 69
    M.P.L.R. (4th) 114, at para.
10;
Lemieux v. Canada (AG)
,
    2005 CanLII 26317 (Ont. S.C.), at para.
7; and
Hakim Optical
    Laboratory Ltd. v. Phillips
(2009), 96 O.R. (3d) 798 (S.C.), at paras.
    4-7.

[15]

Here,
    the appellants were unsuccessful at the Comeback Hearing and therefore it never
    became necessary to address the issue. They seek costs now.  We see no
    prejudice to Mr. Akagi in awarding costs against him for that proceeding.

[16]

For
    these reasons, Mr. Akagi is responsible for costs.

The
    Receiver

[17]

In
    the circumstances of this case, the Receiver is liable to pay costs as well, in
    our view.

[18]

The
    Receiver argues that costs are only awarded against a receiver personally in
    rare cases, relying upon
Hamilton Wentworth Credit Union Ltd. (Liquidator
    of) v. Courtcliffe Parks Ltd.
, 1995 CarswellOnt 3559 (Gen. Div.), at para.
    16. That principle applies, however, when the receiver is acting in its
    capacity as receiver in the course of the receivership. It does not apply where
    the receiver turns itself into a real litigator, impermissibly drawing others
    into the fray and forcing them to defend themselves in what amounts to a
    process that is extraneous to the creditor-driven receivership.

[19]

We
    do not say that the Receiver was acting in bad faith. In our view, however, it
    misconceived its role, and in the process lost its objectivity in the heady
    notion that it was an investigative receiver entitled to use a
    single-creditor receivership process to pursue a larger public cause on
    behalf of all 3,800 alleged victims of the tax scheme and with a view to
    gathering evidence that would support an eventual lawsuit on their behalf. Mr.
    Akagis claim was a relatively small one that did not justify, or require, the
    intrusive and far-reaching
Mareva
-like orders that were obtained. In taking
    these steps, the Receiver undermined its neutral position as an officer of the
    court and turned itself into a litigant for the cause. As a litigant, it is
    subject to the loser pays costs regime that applies in this jurisdiction.

[20]

If
    any further confirmation is necessary to demonstrate that the extraordinary
ex
    parte
orders sought by the Receiver in 2013 were obtained as part of a
    roving receivership conducted in contemplation of pending litigation in which
    the Receiver would be authorized to pursue what would have been, in effect, a
    class action in the guise of a receivership, it is found in the Receivers
    Seventh Report, dated August 28, 2014, at paras. 27-28:

It is contemplated by the Receiver that if the forensic work
    confirms the conclusions reached by CRA and the RCMP, the Receiver will
    recommend that an action be commenced by the Receiver (without security for
    costs) on behalf of the 3800 investors against the following individuals,
    claiming damages for fraud, an accounting and tracing and other related relief:
    Villanti, Chaudhary, Loschiavo, Shane Smith, Prentice and Lloyd. Additional
    potential defendants would be added as appeared appropriate based on further
    information as to the flow of funds that recently became available.

It is further contemplated that the Receiver may recommend that
    it be directed to commence actions against the various individuals and entities
    that earned the commissions from the sale of this tax scheme.  Further
    examinations are necessary (including those which the Receiver is currently
    trying to schedule) in order to further report to the Court on this matter.

[21]

This
    is not a case of bankruptcy proceedings in which a trustee enjoys a presumption
    that, in an action commenced by or against it under the
Bankruptcy and
    Insolvency Act
, R.S.C. 1985, c. B-3, as amended, the trustee is not
    personally liable for costs unless the court directs otherwise: see s.197(3). Here,
    the Receiver was appointed under s. 101 of the
Courts of Justice Act
,
    as amended, and, under its appointing Order, had the authority, but was not
    obliged, to take further legal proceedings.

[22]

In
    such non-bankruptcy situations, the law is clear that a receiver or trustee
    assuming the role of a real litigator runs the risk of being personally
    liable for costs, as is any unsuccessful litigant, and litigates at its peril
    in the absence of a source of indemnity available to it  generally the assets
    of the estate or a contract of indemnity with the creditor or creditors: see
    Frank Bennett,
Bennett on Receiverships
, 3rd ed. (Toronto: Thomson
    Reuters Canada, 2011), at pp. 259-60;
Haunert-Faga v. Faga
, 2013 ONSC
    1581, 100 C.B.R. (5th) 52, at paras. 12-16, and the authorities cited therein;
Touche
    Ross Ltd. v. Weldwood of Canada Sales Ltd.
(1984), 49 C.B.R. (N.S.) 284
    (Ont. H.C. in Bank.), at pp. 286-88;
Re Waterloo Mechanical Contractors
    Ltd.; Thorne Riddell Inc. v. Sinclair
(1983), 49 C.B.R. (N.S.) 196 (Ont.
    S.C.), at pp. 203-4;
Crossing Co. v. Banister Pipelines Inc.
, 2004
    ABQB 56, at para. 19;
Sigurdson v. Fidelity Insurance Co. of Canada et al.
(1980)
, 110 D.L.R. (3d) 491 (B.C.C.A.),
    at pp. 495-96; and
Canadian Imperial Bank of Commerce v. 437544 Ontario
    Inc.
(1995), 86 O.A.C. 241, at para. 14.

[23]

It
    does not matter that the receiver or trustee was acting in good faith or that
    it appeared desirable to the receiver or trustee to pursue the proceeding; as
    an unsuccessful litigant, they may still be liable for costs. In
Sigurdson
,
    at p. 495, the British Columbia Court of Appeal cited with approval the
    following passage from an early English case,
In re Arthur Williams &
    Co., Ex parte The Official Receiver
,
[1913] 2 K.B. 88, at pp. 94-95, which we also find persuasive:

The question in this appeal is one that is so familiar and so
    well settled with reference to other jurisdictions that I confess I was
    surprised to learn that it was thought capable of being argued in bankruptcy.
If
trustees of a settlement, or executors, or administrators of a deceased person,
    or
a receiver
, or a liquidator,
raise a contest with another
    person and bring him into Court to defend himself in respect of some claim
    which is set up against him, and the claim fails
, the trustees, or
    executors,
or receiver
, or official liquidator, are personally liable
    to pay the costs.
It is immaterial that in making the claim they acted bona
    fide in the belief that they were doing that which was for the benefit of the
    estate which they represented
.  They are personally liable as between them
    and the defendant; they are entitled to an indemnity out of the estate which
    they are representing unless they have been guilty of misconduct.  The question
    of misconduct is not relevant at all in these circumstances as between the
    plaintiffs and the defendant whom they have brought into Court;
it does not
    matter whether they have acted bona fide or not; they brought an action and failed,
    and they are personally liable to pay costs,
but in a proper case they
    are, as I have said, entitled to indemnity
.
[Emphasis added.]

[24]

The
    Receiver raises two additional arguments. First, it relies upon s. 142 of the
Courts
    of Justice Act
, which provides that [a] person is not liable for any act
    done in good faith in accordance with an order or process of a court in
    Ontario.  Secondly, it seeks to shelter under the protection provided in the
    August 2, 2013 Order, which states:

THIS COURT ORDERS that the Receiver, its counsel and any agents
    or advisors appointed by the Receiver to assist the Receiver in carrying out
    its duties, obligations and activities in connection with matters relating to
    the exercise of its powers and any ancillary matters in respect thereof
    including, without limitation, pursuant to this Order, Prior Receivership
    Orders or further Orders of this Court, shall have no liability with respect to
    carrying out such duties, obligations and activities.

[25]

We
    would not give effect to either of these contentions. First, a receiver cannot
    obtain a series of
ex parte
orders for an impermissible and extraneous
    purpose  as was the case here  and then seek to be shielded by s. 142 of the
Courts
    of Justice Act
on the basis that it was simply acting in accordance with
    those orders. Secondly, we read the provision of the Order, cited above, as
    providing a buffer for the Receiver against a lawsuit that might be commenced
    concerning its conduct of the receivership. We do not read it as providing the
    Receiver with immunity from the costs consequences of entering the arena as a
    real litigator  particularly in respect of a cause that it was not entitled
    to pursue.

THE SCALE AND QUANTUM OF COSTS BY PARTICIPANT

[26]

We
    now turn to the question of the scale and quantum of costs payable to the
    appellants. Counsel for the Receiver and for each of the appellants have filed
    comprehensive submissions, and appellants counsel have included their respective
    costs outlines. We have reviewed the submissions and the costs outlines
    carefully.

The Scale of Costs

[27]

We
    turn first to the appropriate scale of costs to be awarded.

[28]

The
    appellants seek their costs on a full indemnity or substantial indemnity basis.
    In support of this position, they variously argue the following:

(a) Mr. Akagi and the Receiver knew
    they were embarking on a process that was fraught with legal risk and which had
    an incredibly damaging effect on the appellants;

(b) the receivership appears to have
    been instituted in order to circumvent the customary procedural safeguards
    relating to a claim for
Mareva
-like interlocutory injunctive relief or
    other similar pre-trial relief;

(c) in the circumstances of this case,
    the
ex parte
orders constituted not only execution before judgment
    but, in fact, execution before the commencement of any claim;

(d) Mr. Akagi and the Receiver
    continued to press forward with the process even after Feldman J.A. had
    expressed reservations about the procedural flaws in November 2013, and Penny
    J. did the same in May 2014;

(e) offers to settle  at least on the
    part of Student Housing/RV  were vigorously rebuffed (even in the face of the
    procedurally flawed registration of certificates of pending litigation
    following the August 2, 2013 Order);

(f) at least in the cases of Mr.
    Chaudhary and Student Housing/RV, neither was a party to the receivership
    proceedings, neither had any connection to the underlying Akagi action, and
    neither was indebted to Mr. Akagi or to any other of the 3,800 alleged victims,
    nor had any claim ever been commenced against them or evidence of wrongdoing on
    their part ever put forward;

(g) in spite of the foregoing, Mr.
    Akagi and the Receiver insisted on pursuing far-reaching demands for
    production, compelled the examinations of various appellants and members of
    their families, brought a contempt motion against the solicitor for one of the
    appellants, and prevented the appellants from doing business with their banks
    by sending copies of the various orders to every bank the Receiver identified
    as dealing with the appellants and individuals related to them; and finally,

(g) the Receiver failed to make full
    and complete disclosure by not advising the Court that the CRA investigation
    (upon which Mr. Akagi and the Receiver relied to obtain the orders) had been
    discontinued three months before the Initial Order was obtained (although, in
    fairness, the RCMP was by that time conducting a criminal investigation).

[29]

In
    short, the appellants say, the receivership was overreaching, harassing and
    abusive. Costs should be awarded on a full or substantial indemnity basis.

[30]

A
    review of this Courts earlier reasons will reveal that there is some substance
    to these submissions. The attempted use of the receivership process by the
    Receiver was misguided. Its goal was to utilize the machinery of a
    receivership, and the status and position of the Receiver as an officer of the
    court, to freeze and otherwise tie up the assets of over 40 far-flung,
    non-party individuals and entities (only three of which had any connection to
    the Akagi proceedings)  all with a view to putting forward a future claim on
    behalf of 3,800 alleged victims of the tax scheme, none of whom expressed any
    desire to be represented or came forward to join in the receivership
    proceedings. The
ex parte
orders obtained were akin to
Mareva
injunctions,
[1]

Anton Piller
orders
[2]
and
Norwich
orders
[3]
combined, but with none of the procedural protections usually afforded to
    defendant litigants in such cases and none of the obligations usually required
    of plaintiffs.
[4]

[31]

The
    general rule is that costs are awarded on a partial indemnity basis. In some
    generally rare  circumstances, however, the level of costs may be increased to
    substantial indemnity or even a full indemnity basis. One of those
    circumstances is where it is necessary to mark the courts disapproval of the
    conduct of the party in the litigation: Mark M. Orkin,
The Law of Costs
,
    loose-leaf (2015-Rel. 54), 2nd ed. (Aurora: Canada Law Book, 1993) vol. 1 at p.
    2-217, cited by this Court with approval in
Hunt v. TD Securities Inc.
(2003), 66 O.R. (3d) 481, at para. 123. See also
Mortimer v. Cameron
(1994),
    17 O.R. (3d) 1 (C.A.), at p. 23, leave to appeal refused, [1994] S.C.C.A. No.
    150.

[32]

In
    our view, this is one of those cases. For all of the reasons outlined above,
    the Receiver took a useful concept  that of the investigative receivership
    and ran too far with it for an extraneous purpose, losing sight in the process
    of its role as an officer of the court, bound to protect the interests of every
    individual or entity involved. We conclude that the extension of the orders, on
    an
ex parte
basis, against Mr. Chaudhary and Student Housing/RV was
    particularly egregious in the circumstances.

[33]

That
    said, we do not propose to make an award of costs against the Receiver on a
    full indemnity scale. We do, however, award costs against the Receiver on a
    substantial indemnity scale as a measure of our disapproval of its conduct.

[34]

Mr.
    Akagi (narrowly) escapes that sanction, although he will be liable for the
    appellants costs on a partial indemnity basis, for the reasons outlined
    above.  Although the appellants are correct in submitting that Mr. Akagi lent
    his name as proxy to the roving receivership and supported it all along, it
    appears to us from the record that it was the Receiver that was the more active
    litigant, pushing for the potential action on behalf of all 3,800 alleged
    victims and calling the shots on the overreaching orders that were obtained. In
    addition, Mr. Akagi is an unpaid creditor and at least had some interest in
    pursuing the receivership.

The Quantum of Costs

[35]

In
    addressing the question of quantum of costs, we have carefully considered
    counsels submissions and the costs outlines filed. Having done so, we make the
    following preliminary observations.

Adjusting
    Factors

[36]

First,
    the receivership and the proceedings it generated were complex and far-reaching.
    Subject to some submissions about overlapping efforts, neither Mr. Akagis
    counsel nor the Receivers quarrel with the time spent by the various counsel
    in dealing with the matter, or with the hourly rates put forward. Nor do we.

[37]

Secondly,
    because of the evolving nature and complexity of the receivership, the Synergy
    Group and IBC (and, to a certain extent, Mr. Villanti), who were the initial
    targets, were undoubtedly required to invest more time and resources in
    ultimately defending their positions than would have been the case had the
    receivership not been extended to ensnare the 40 or so additional non-parties
    to the receivership. For that reason, the Synergy Group and IBC/Villanti are
    entitled to their costs on a substantial indemnity basis against the Receiver
    and on a partial indemnity basis against Mr. Akagi, even though they are the
    appellants who might be said to have had the most direct connection with the
    underlying Akagi action.

[38]

Thirdly,
    because each of the appellants  except for the Synergy Group  changed counsel
    at some point between the Comeback Hearing and the argument of the appeal,
    there is an inevitable overlap in preparation time spent by counsel. This
    overlap is reflected in the costs outlines submitted, requiring the amounts
    claimed to be adjusted accordingly.

[39]

Finally,
    a significant amount of the time logged related to motions before Penny J. in
    the Superior Court, while the appeal was pending, and to the motion before
    Tulloch J.A. in this Court to set aside the Registrars order dismissing the
    appeal for delay, as well as the subsequent motion before the panel that
    reinstated the appeal. Costs were dealt with by Penny J. (costs to Mr. Akagi
    and the Receiver jointly, fixed at $7,500) and his orders were not appealed. The
    costs of the proceedings in this Court relating to the reinstatement of the
    appeal were also dealt with by the panel ($15,000 to Student Housing/RV and
    $15,000 to IBC/Villanti). These orders stand and, as a result, the time devoted
    to those particular proceedings cannot form part of the costs order being made
    at this time.

Quantum
    (Partial and Substantial Indemnity)

[40]

The
    appellants are entitled to their costs against Mr. Akagi on a partial indemnity
    basis and against the Receiver on a substantial indemnity basis, in the amounts
    set out below with respect to the Comeback Hearing, the stay motion before
    Feldman J.A. (who reserved costs to the panel) and the appeal (including
    submissions as to costs). In addition, they are entitled to their disbursements
    as set out below.

The
    Comeback Hearing

[41]

Costs
    are awarded for the Comeback Hearing as follows:

TO

PARTIAL
          INDEMNITY

SUBSTANTIAL
          INDEMNITY

STUDENT HOUSING/RV

$10,000 + HST

$15,000 + HST

CHAUDHARY

$10,000 + HST

$15,000 + HST

SYNERGY/IBC/VILLANTI

$10,000 + HST

$15,000 + HST

TOTAL

$30,000 + HST

$45,000 + HST

Stay Motion

[42]

The
    stay motion was important and no doubt reasonably complex.  However, it is with
    respect to this proceeding that we have had to reduce some of the time claimed
    by counsel. It appears that a certain amount of time has been accounted for in
    the same portions of their costs outlines with respect to both the stay motion
    and other proceedings that occurred around that period, up to the point when it
    became necessary to deal with the reinstatement of the appeal.

[43]

Albeit
    that the appellants were unsuccessful before Feldman J.A., we are satisfied
    that they should receive their costs in relation to that proceeding.  Justice
    Feldman expressed serious reservations about the procedure employed to appoint
    and maintain the receivership; the appellants were fully successful on the
    appeal, partly because those concerns were determined to have merit.

[44]

It
    appears that Mr. Chaudhary did not file materials in relation to the stay
    motion or appear on it. He is therefore not entitled to costs for that
    proceeding.

[45]

The
    following award of costs is made with respect to the stay motion:

TO

PARTIAL
          INDEMNITY

SUBSTANTIAL
          INDEMNITY

STUDENT HOUSING/RV

$7,500 + HST

$11,250 + HST

CHAUDHARY

$0

$0

SYNERGY/IBC/VILLANTI

$7,500 + HST

$11,250 + HST

TOTAL

$15,000 + HST

$22,500 + HST

The
    Appeal

[46]

We
    have determined that $37,500 represents a reasonable amount at which to fix
    costs of the appeal on a partial indemnity basis for all appellants except the
    Synergy Group, for reasons we will explain below, which is roughly what counsel
    for Student Housing/RV and IBC/Villanti claimed in their submissions. Counsel
    for the Trustee accepts this as reasonable.  We have also topped up this
    amount to include a small sum representing costs in relation to these costs
    submissions.

[47]

The
    Synergy Group is not entitled to the same amount for the costs of the appeal as
    are the other appellants because it did not fully participate in the proceeding.
    By the time of the appeal, IBC and Mr. Villanti had changed counsel from Mr.
    Sereda to the Lenczner Slaght firm. Mr. Sereda continued to represent the
    Synergy Group. Mr. Sereda filed materials on the appeal, but he did not attend
    on the argument, instead instructing an agent who attended and simply advised
    the Court that the Synergy Group was adopting the submissions of the other
    appellants.

[48]

Accordingly,
    we fix the costs of the appeal payable to the Synergy Group on a partial
    indemnity basis at $15,000, taking these factors into account and recognizing
    as well that there was a certain amount of duplication in preparation time as
    between Mr. Sereda and newly retained counsel for IBC/Villanti.

[49]

For
    reasons already explained, we award costs of the appeal against Mr. Akagi on a
    partial indemnity basis and against the Receiver on a substantial indemnity
    basis.

[50]

Costs
    of the appeal (and of the submissions relating to these costs) are therefore
    fixed in the following amounts:

TO

PARTIAL
          INDEMNITY

SUBSTANTIAL
          INDEMNITY

STUDENT HOUSING/RV

$39,000 + HST

$58,500 + HST

CHAUDHARY

$39,000 + HST

$58,500 + HST

IBC/VILLANTI

$39,000 + HST

$58,500 + HST

SYNERGY

$16,500 + HST

$24,750 + HST

TOTAL

$133,500 + HST

$200,250 + HST

Disbursements

[51]

The
    appellants are entitled to their disbursements, paid jointly and severally by
    Mr. Akagi and the Receiver, in the following amounts, which are inclusive of
    HST:

TO

DISBURSEMENTS

STUDENT HOUSING/RV

$8,300.48

CHAUDHARY

$2,736.91

IBC/VILLANTI

$8,386.11

SYNERGY

$7,837.92
[5]

TOTAL

$27,261.42

The Substantial Indemnity Quantum

[52]

Some
    explanation of the way in which we arrived at the substantial indemnity amounts
    referred to in the charts above may be helpful.

[53]

In
    seeking substantial indemnity costs, counsel appear to have proceeded on the
    basis that substantial indemnity costs represent 90% of full indemnity.  While
    that may be so in some circumstances, we do not think that is an accurate
    general principle of law.

[54]

Counsel
    have referred us to two Superior Court decisions in which judges have concluded
    that a substantial indemnity
hourly rate
may fairly represent 90% of
    the full indemnity
hourly rate
. They have come to this conclusion
    based on the premise that a fair partial indemnity hourly rate represents
    approximately 60% of full indemnity. Applying a factor of 1.5  the factor set
    out in the definition of substantial indemnity costs in r. 1.03  the judges
    arrived at a substantial indemnity
hourly rate
of 90% of full
    indemnity. See
OGT Holdings Ltd. v. Startek Canada Services Ltd.
, 2010
    ONSC 1090; and
Middleton v. Highlands East (Municipality of)
, 2013
    ONSC 2027.

[55]

It
    is well-established, however, that fixing costs of a proceeding or of a step
    within a proceeding on a partial indemnity basis pursuant to Part I of Tariff A
    of the
Rules of Civil Procedure
is not simply an exercise of
    multiplying hourly rates by the amount of time expended. The court must balance
    the discretionary factors set out in r. 57.01(1) and, in the end, arrive at an
    amount that is reasonable and fair in the circumstances and that bears some
    relationship to the amount that an unsuccessful party could reasonably expect
    to pay: see
Boucher v. Public Accountants Council for the Province of
    Ontario
(2004),
71 O.R. (3d) 291
(C.A.), at paras. 26, 37-38. That the Receiver itself had accumulated fees and
    disbursements exceeding $300,000 as at the Comeback Hearing is confirmation of
    what would have reasonably been contemplated in the eyes of the Receiver. It is
    on that basis that we have arrived at the partial indemnity amounts awarded
    above.

[56]

Costs
    awarded on a substantial indemnity basis are not a function of full indemnity
rates
,
    however, or of full indemnity costs where full indemnity rates are reasonable. Under
    the
Rules
, substantial indemnity costs are a function of the costs
    awarded on a partial indemnity basis.  Rule 1.03 is quite clear on this:

Substantial indemnity costs mean costs awarded in an amount
    that is 1.5 times what would otherwise be awarded in accordance with Part I of
    Tariff A, and on a substantial indemnity basis has a corresponding meaning.

[57]

In
    short, costs awarded on a substantial indemnity scale are to be determined on
    the basis of applying a factor of 1.5 to the amount of the partial indemnity
    costs as fixed (or that would otherwise have been fixed) in accordance with the
Rules
and Tariff A. The substantial indemnity costs we have awarded,
    as set out in the charts above, have been arrived at in this fashion.

Joint and Several
    Liability

[58]

We
    are satisfied that, in the circumstances, Mr. Akagi and the Receiver should be
    jointly and severally liable for the partial indemnity costs and the
    disbursements, as set out above. The Receiver shall be severally liable for the
    difference between the partial indemnity amounts and the substantial indemnity
    amounts as shown. HST is payable on the costs amounts awarded. The
    disbursements awarded are inclusive of HST.

[59]

We
    have not been provided with any information about whether the Receiver has an
    indemnity agreement from Mr. Akagi. If such is the case, however, we order that
    the Receiver is not to be indemnified for more than the partial indemnity costs
    awarded. In addition, the Receiver shall not be entitled to be indemnified out
    of the assets of the receivership estate: see
HSBC Bank Canada v.
    Lechcier-Kimel
, 2014 ONCA 721, at para. 19.

DISPOSITION

[60]

An
    order will go fixing the costs of the Comeback Motion, the stay motion before
    Feldman J.A. and the appeal in the amounts set out above.

Janet
    M. Simmons J.A.

R.A.
    Blair J.A.

R.G.
    Juriansz J.A.

[1]
A
Mareva
injunction operates to restrain a party from disposing of his
    or her assets pending a trial: see Robert J. Sharpe,
Injunctions and
    Specific Performance
, loose-leaf (2014-Rel. 23), (Toronto: Thomson Reuters
    Canada, 2014), at paras. 2.750, 2.800.

[2]
An
Anton Piller
order gives the plaintiff access to the defendants
    premises to inspect documents and remove items to which the plaintiff asserts a
    proprietary claim: Sharpe, at para. 2.1100.

[3]
A
Norwich
order  which is similar to, but distinct from, an
Anton
    Piller
order  authorizes pre-action discovery: see
GEA Group
    AG v. Flex-N-Gate Corp.
, 2009 ONCA 619, at para. 41. More
    specifically, it allows the plaintiff to gain disclosure of facts required to
    bring an action where he or she can demonstrate that such disclosure is
    necessary in all the circumstances: Sharpe, at para. 2.1197.

[4]
To obtain a
Mareva
injunction, the plaintiff must generally meet the
    following requirements: i) make full and frank disclosure; ii) give sufficient
    particulars of the claim, so that a defence can be put forward; iii) provide
    evidence that the defendant has assets and that there is a risk of those assets
    being removed from the jurisdiction or otherwise improperly dealt with; and iv)
    give an undertaking as to damages: see Sharpe, at paras. 2.850 to 2.900.

[5]
A portion of these disbursements were incurred while Mr. Sereda was
    representing IBC/Villanti.  We leave it to counsel to make any allocation that
    may be appropriate.


COURT OF APPEAL FOR ONTARIO

CITATION: Aletkina v. The Hospital for Sick Children, 2015
    ONCA 804

DATE: 20151123

DOCKET: M44446  M45385

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

BETWEEN

Nadejda Aletkina

Moving Party/Appellant/Plaintiff

and

The Hospital for Sick Children

Responding Party/Respondent/Defendant

Nadejda Aletkina, acting in person

Stephanie Young, for the respondent

Heard and released orally:  November 3, 2015

Motion to set aside the order of Justice Lois B. Roberts
    dated July 31, 2015.

ENDORSEMENT

[1]

The moving party seeks a review of the order of Roberts J.A. made July
    31, 2015, dismissing her motion for a stay and an order for a capacity
    assessment.

[2]

The motion before Roberts J.A. arose as a result of a decision of this
    court dated June 24, 2015, which dismissed her motion to review the order of
    Huscroft J.A. dated March 6, 2015.  This matter has a protracted history.

[3]

In her action against the hospital for Sick Children, the moving party
    seeks damages for wrongful dismissal.  She was employed at the Hospital for
    Sick Children for about 11 months from May 2002 to April of 2003 as a lab
    technician earning about $35,000 per annum. She commenced her action in April
    2009 and it has yet to be tried.

[4]

The issue that brings the matter to this court today has its genesis in
    an order made by Master McAfee in August of 2013.  At that time, the Master
    dismissed a motion brought by the moving party:

(1) to compel
    answers to questions refused and/or not answered on discovery;

(2) to add a
    number of parties as defendants; and

(3) to amend
    your statement of claim to add new causes of action.

[5]

The motion was dismissed in reasons delivered August 12, 2013. The
    moving party next appealed the order of the Master and brought two motions as
    part of that appeal to adduce fresh evidence. Her appeal and the motions to
    adduce fresh evidence were dismissed by order of Corbett J. dated October 27,
    2014.

[6]

In his reasons, at para. 12 the appeal judge noted:

The Master took a good, hard look at Ms Aletkinas claim that
    she was under a legal disability that suspended the running of the limitations
    period. The voluminous materials filed on the motion established clearly that
    Ms Aletkina does suffer from a mental illness and one that has been described
    as severe by her treating psychiatrist.  Nowhere in the volumes of the
    material is there an opinion that this mental illness renders her under a legal
    disability.  And while it may be true that Ms Aletkina was slow taking steps
    related to this litigation, because of her mental health issues, receiving
    accommodation for health reasons is not the same thing as being unable to
    appreciate that she had claims that she now wishes to assert.

[7]

Further, at para. 14 the appeal judge quotes from the responding partys
    factum:

... [Ms Aletkina] was regularly pursuing doctors notes to
    further prolong and delay this litigation. It is significant that [Ms Aletkina]
    specifically requested a letter indicating that she lacked capacity and in July
    2012 a physician specifically refused to provide such an opinion.

[8]

Justice Corbett set the new date by which the moving party was to set
    her action down for trial to November 30, 2014.  The moving party then sought
    leave to appeal a decision of Corbett J. to this court.

[9]

She was granted an extension of time to perfect her leave application to
    this court on two separate occasions and did not meet the deadline set in
    either order before she appeared before Justice Huscroft on March 5, 2015,
    again seeking yet a further extension of time to perfect her appeal and
    directions from the court on the form and content of her materials.

[10]

After
    dismissing her motion that he recuse himself from hearing her motion on grounds
    that were utterly unsubstantiated, the motion judge reviewed the history of the
    matter and the numerous requests made by the moving party for directions.
    Her motion was dismissed.

[11]

Ms.
    Aletkina then moved to review the order of Huscroft J.A. before a panel of this
    court on June 24, 2015, and again brought a motion to introduce fresh evidence.
    Both her motion and appeal were dismissed in a brief endorsement issued by the
    court.  As part of its endorsement, this court required that the moving party
    set her action down for trial no later than July 30 failing that her action be
    dismissed.

[12]

On
    July 29, 2015, she moved before Roberts J.A. for a stay of this courts order
    of June 24, 2015, pending determination of her application for leave to appeal
    that decision to the Supreme Court of Canada and for an order that she undergo
    capacity assessment.  Her motion was dismissed.

[13]

Roberts
    J.A. concluded that Ms. Aletkina failed to meet the test for a stay and that
    there was insufficient evidence to rebut the presumption of capacity set out
    in s. 2 of the
Substitute Decisions Act
 and further despite the
    voluminous materials filed, her submission that she lacks legal capacity to
    conduct these proceedings is not demonstrated by the evidence. The deadline to
    set her action down for trial was extended by Roberts J.A. to August 31, 2015
    and we are advised that that has been done.

[14]

Ms.
    Aletkina moves before this court to review the order of Roberts J.A.  Before
    the hearing was about to start at the return of this motion on November 2,  Ms.
    Aletkina sought to file an extensive volume of further fresh evidence in
    addition to the volume of fresh evidence already filed which numbered some 579
    pages and she sought an adjournment of the proceedings and at her request, we
    adjourned the matter to November 3 as she requested.  The voluminous record
    contains much material that has been previously filed including many detailed
    memoranda and letters authored by the moving party. Ms. Aletkina has a history,
    demonstrated in these materials, of attempting to have her treating physicians
    offer an opinion that she is without legal capacity to conduct legal
    proceedings and to date none have offered any such opinion despite the
    persistent efforts of Ms. Aletkina.

[15]

Following
    her appearance before Roberts J.A. on July 29, the moving party presented in
    the Emergency Department of the Kingston General Hospital where she requested
    a capacity assessment by psychiatry.  She was told she needs a capacity
    assessment done in order to represent herself in an upcoming court hearing as recorded
    in the visit summary of the hospital dated September 25, 2015. It was suggested
    that she follow up with her general practitioner.

[16]

In
    her general practitioners notes for an October 2015 appointment it is recorded
    that the moving party talked at length about her quandary of having a capacity
    assessment and noted the doctors offer to refer her to psychiatry.  There
    follows Dr. Russells referral note to Dr. Fahy noting that Ms. Aletkina has
    been asking for a capacity assessment and that she is also looking for a
    retrospective capacity assessment despite me informing her that this is very
    difficult for a new psychiatrist to ascertain.

[17]

Next
    is a note dated October 30, 2015 from the Addiction and Mental Health Services
    Supervisor reporting on a visit to that clinic by the moving party on October
    28, seeking an assessment for use in her court proceedings.  This supervisor
    reported that the physician Dr. Naeem told the moving party that to do an
    assessment for court purposes he would have to be requested to do so by the
    courts.  Ms. Aletkina seeks such an order.

[18]

Both
    Master McAfee and Justice Corbett dealt with the request for a capacity
    assessment in their reasons for decision. The result of this courts decision
    in June 24 is that her application for leave to appeal the order of Corbett J.
    is finally dismissed. In these circumstances, this court has limited
    jurisdiction.  It can order a stay pending an application for leave to appeal
    to the Supreme Court of Canada, however, any request for further relief should
    be made either to the Supreme Court of Canada or to the Superior Court of
    Justice in relation to any aspect of the trial. The rules provide that a person
    under a disability which includes a person who is incapable within the meaning
    of s. 6 or s. 45 of the
Substitute Decisions Act
, is to be represented
    by a litigation guardian who may in appropriate circumstances be the Public Guardian
    and Trustee. The
Substitute Decisions Act
requires determination of
    legal capacity to be made by assessors as defined in the regulations to that
    Act. It is open to Ms. Aletkina to request an assessment of her own capacity
    under s. 16 of the Act by following the procedures that are laid out in that
    Act.

[19]

Accordingly,
    the motion to admit fresh evidence is dismissed, except for the three documents
    in records that we have referenced in these reasons.  In the result, we see no
    error in the decision of Roberts J.A. and the motion to review is dismissed.

[20]

Costs
    to the respondent fixed in the sum of $1,500 inclusive of disbursements and
    HST.

Alexandra Hoy A.C.J.O.

J.
    MacFarland J.A.

P.
    Lauwers J.A.