COURT OF APPEAL FOR ONTARIO

CITATION: Kuczera (Re), 2018 ONCA 322

DATE: 20180329

DOCKET: C64317

MacFarland, Huscroft and Nordheimer JJ.A.

In the
    Matter of the Bankruptcy of Miroslaw Ian Kuczera,

of the City of
    Brampton, in the Regional Municipality of Peel,

in the Province
    of Ontario, Electrician (Disability)

Robert Klotz, for the appellant, Miroslaw Kuczera

Patrick Bloomfield in person as Trustee to the Estate of
    Miroslaw Kuczera, Bankrupt

Heard:  March 21, 2018

On appeal from the order of Justice Frederick Myers of
    the Superior Court of Justice, dated August 29, 2017, with reasons reported at
    2017 ONSC 5140, on appeal from the order of the Registrar in Bankruptcy dated October
    21, 2014.

Nordheimer J.A.:

[1]

The appellant was, until about 2007, successfully employed as an
    electrician. He was married and, with his wife, raised two children. Unfortunately,
    the appellants fortunes turned suddenly and dramatically in 2007 when his
    marriage broke down. The divorce proceedings, which were acrimonious, included
    allegations of abuse by his wife (which the appellant denied) and took several
    years to conclude.

[2]

The appellants assets became tied up in the family litigation.  When
    his income became insufficient to meet the demands of paying support, as well
    as his legal fees, the appellant began to rely on credit and personal loans to
    cover his legal expenses. In December 2008, he borrowed $16,000 from his
    brother in Poland, secured against a property the appellant owned in Poland.
    The loan had to be repaid by 2009, failing which the property would be
    surrendered to his brother. In fact, the appellant could not repay the loan and
    his brother obtained judgment against him in Poland and claimed the property.

[3]

In 2009, with no end to the divorce proceedings in sight, with his debts
    continuing to mount and his financial resources continuing to diminish, the appellant
    sought the assistance of a bankruptcy trustee. The appellant declared bankruptcy
    on May 20, 2009. Following the Trustees instructions, he made nine monthly
    payments of $226 each, totalling $2,034, and was discharged on October 14,
    2010.

[4]

However, the family litigation continued.

[5]

On April 4, 2011, the appellants discharge was annulled, apparently on
    the basis of the Trustees allegation that the appellant had not disclosed the
    situation with the property in Poland  a fact that the appellant denies.

[6]

In June 2011, the appellant made a consumer proposal (the Proposal) in
    an attempt to escape from bankruptcy. The Proposal required him to make
    increasing monthly payments over a five-year period totalling $66,665. At the
    time of the Proposal, the proven claims in the estate totalled $19,415.58.

[7]

By this time, the appellants mental and emotional health began to
    deteriorate significantly as a result of the legal battles he was facing, both in
    the family law and bankruptcy litigation.  According to a later report from his
    psychiatrist, the appellant became clinically depressed and suffered from a
    Dissociative Identity Disorder.

[8]

The dispute over the proceeds of the matrimonial home was finally
    judicially resolved in late 2011. In early January, 2012, the appellant
    received $72,850 from the proceeds of the matrimonial settlement, after all deductions
    and costs and his own legal fees. He deposited these proceeds in the bank and,
    as he subsequently determined from his bank statements, withdrew about $5,000
    monthly. As the Proposal did not provide for any lump sum payment, the
    appellant says that he did not realize he should pay all of these monies to his
    Trustee.

[9]

The appellant says that he was simply unable to cope. By this point his
    mental state had deteriorated so significantly that he was unable to work.  He
    made his monthly Proposal payments to the Trustee until his money ran out in
    late 2012. He has very little memory of this period, and does not know where all
    the money went. Consequently, his Proposal was annulled on December 1, 2012,
    and the appellant was again in bankruptcy.  The appellant made payments
    totalling $4,265 under the Proposal.

[10]

The
    appellant offered some possible explanations for the disappearance of the
    settlement funds.  In this period, he had a daughter who had a drug addiction.
    He also had a teenaged son who was living at home and who was suffering from
    some unspecified illness.  As a result of the bankruptcy proceedings, the
    appellant had to deal in cash.  He routinely took cash out of the bank in order
    to cover his living expenses.  Consequently, he had the habit of keeping
    significant sums of money in his wallet.  The appellant said that it was
    possible that his children helped themselves to some of that cash from time to
    time.  The appellant was also buying expensive Chinese medicines to treat the
    illness that his son had.  Finally, the appellant says that, throughout this
    time, he had periods of disassociation where he was unaware of where he was
    or what he was doing.  During these times, he acknowledges that he may well
    have spent money on things that he does not remember.

[11]

On
    this latter point, the appellant has brought a motion to adduce fresh evidence
    on this appeal that consists of two detailed reports from his treating
    psychiatrist.  The appellant also attempted, unsuccessfully, to put these
    reports before the appeal judge.  The psychiatric reports outline, among other
    things, that, during the relevant time frame, the appellant presented as a
    distraught, preoccupied man, who demonstrated significant problems in
    intellectual functioning, difficulties with memory and presenting his history
    chronologically.

[12]

The
    appellant represented himself at the discharge hearing before the Registrar in
    Bankruptcy on May 14, 2014.  He attempted to have the court understand that he
    had not intentionally ignored his obligations to the Trustee.  Rather, his mental
    condition at the time left him unable to cope with his day to day
    responsibilities, let alone understand his obligations in a process that had
    already proven to be confusing and unpredictable. However, in support of these submissions,
    he only provided a very brief report from his psychiatrist.

[13]

At
    the discharge hearing, the Registrar refused to grant an absolute discharge to
    the appellant.  Rather, she ordered the appellants discharge but on two
    conditions.  One was that the appellant had to pay $61,000 (the amount
    remaining due under the Proposal) and the other was that he had to attend a
    second counselling.  Further, the Registrar suspended the discharge for six
    months.  In reaching her decision, the Registrar said:

When considering all of the facts as disclosed by the trustee
    and the bankrupt, I conclude that the bankrupt cannot be absolutely discharged,
    due to the finding of the s. 173 facts as noted above.  I am of the view that
    the bankrupt ought to have performed the proposal.  He failed to pay
    approximately $61,000 to the administrator in the proposal. In my view, that is
    the amount that the bankrupt should be required to pay as a condition of
    discharge.

I appreciate that the bankrupt will find an order of payment of
    this magnitude difficult in light of the circumstances present at the date of
    the hearing. However, it is my view that this situation could have been avoided
    had the bankrupt acted reasonably with his creditors. He clearly did not wish
    to pay his creditors under the proposal when he received significant funds in
    2012. His current situation is his own doing.

[14]

The
    appellant appealed the Registrars decision.  By this point, he had counsel.  There
    was a delay in the appeal hearing taking place because of difficulties counsel
    experienced in trying to obtain more detailed information from the appellants
    psychiatrist, who had retired.  The appeal was eventually heard on August 24,
    2017.  The appeal was dismissed.

[15]

On
    the appeal, the appeal judge refused to consider the fresh evidence of the
    psychiatric reports.  He did so based on his finding that the fresh evidence
    was not sufficiently credible nor sufficiently probative so as to have likely
    affected the result below.  Part of his reasoning for this conclusion was that
    the appellants psychiatrist was not an independent expert witness and that
    his detailed reports add little to the first letter that was before the
    Registrar.  In the end result, the appeal judge said, at para. 35:

The Registrar made no error in principle in attaching the
    condition to Mr. Kuczera's discharge. She appropriately weighed all of the
    relevant factors and her exercise of discretion is entitled to deference. In
    any event, I agree with the outcome.

Analysis

[16]

I
    begin by addressing the fresh evidence.  I am satisfied that it meets the
    necessary criteria for admission under the principles set out in
R. v.
    Palmer
, [1980] 1 S.C.R. 759.  The due diligence factor is not a rigid one
    and must be considered in light of all of the relevant facts, including the
    salient fact that the appellant was unrepresented at the hearing before the
    Registrar:
R. v. 1275729 Ontario Inc
.,
205 O.A.C. 359, at para.
    29.  In terms of the other factors, the evidence is relevant, it is credible,
    and it could reasonably have affected the result.

[17]

It
    will follow from my conclusion on this point that I disagree with the approach
    taken by the appeal judge to this fresh evidence.  The fact that the
    psychiatrist was the appellants treating psychiatrist is not a proper basis for
    rejecting the evidence.  It might go to the weight that the court would give to
    the evidence, but the asserted lack of independence is not of the type that
    would normally constitute a disqualifying factor under the
Mohan
criteria.
[1]
Indeed, it is well recognized that a treating physician is quite entitled to
    give expert evidence if properly qualified to do so: see, for example, the discussion
    in
Westerhof v. Gee Estate
, 124 O.R. (3d) 721, 2015 ONCA 206.

[18]

Nor
    do I understand the basis upon which the appeal judge found that the evidence was
    not sufficiently credible.  As I have said, the reports came from the
    treating psychiatrist.  They detailed the psychiatrists conclusions and
    observations from many sessions that he had undertaken with the appellant.  It
    is not clear to me how the reports lacked credibility.

[19]

I
    also do not understand the appeal judges conclusion that the reports were not
    sufficiently probative.  The central issue on the discharge hearing was what
    had happened to the settlement funds and why the appellant had not paid them to
    his Trustee.  The Registrar found that the appellant had failed to account for
    the loss of those funds which she, in turn, found constituted a fact under s.
    173(1)(d) of the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3.  She
    used this fact to justify her refusal, under s. 172(2), to grant the appellant
    an absolute discharge.  Yet, the appellant had explained that he could not
    account for the funds because of the problems arising from his mental health.  The
    psychiatric reports went directly to that issue.

[20]

In
    my view, neither the Registrar nor the appeal judge gave proper consideration
    to the psychiatric evidence, although in fairness to the Registrar, she did not
    have the detailed reports that were provided subsequently.  She did, however,
    hear directly from the appellant with respect to these issues.  The mental
    health issues, from which the appellant was suffering at the time that the
    settlement funds were received, were significant.  They clearly could have
    affected both his thinking and his actions.  They also clearly affected his
    ability to recall events. I would add, on this point, that there is no evidence
    that the appellant personally benefitted from these funds, in the sense that he
    used them to improve his own situation to the disadvantage of his creditors.
    Indeed, where the settlement funds went remains something of a mystery.

[21]

Further,
    in reaching the conclusion not only to deny the appellant an absolute discharge,
    but also to suspend her order of a conditional discharge for six months, the
    Registrar made an important factual error.  She found that the appellant had
    failed to disclose the Polish property to his Trustee, whereas the Trustee
    acknowledges that it was disclosed, although not in the appellants original
    statement of affairs.  Consequently, the fact relied upon by the Registrar did
    not exist.

[22]

The
    condition imposed by the Registrar that the appellant pay $61,000 as a
    condition of his discharge, given his personal history, was more than just
    difficult for the appellant.  It was crushing.
[2]
It does not reflect the rehabilitative objective of the
BIA
,
as
    affirmed by this court in
Re Moore
, 2013 ONCA 769, 118 O.R. (3d) 161,
    at para. 30:

In The 2013 Annotated
Bankruptcy and Insolvency Act
(Toronto: Carswell, 2013), at p. 2, Lloyd W. Houlden, Geoffrey B. Morawetz and
    Janis P. Sarra describe the purposes of the
BIA
as follows:

It is a fundamental purpose of the Act to provide
    for the financial rehabilitation of insolvent persons. The Act permits an
    honest debtor, who has been unfortunate, to secure a discharge so that he or
    she can make a fresh start and resume his or her place in the business
    community.

[23]

The
    appellant does not now suggest that he should have received an absolute
    discharge at the time.  He complains only about the condition requiring him to
    pay the sum of $61,000.  He suggests that a suspension of his discharge alone
    would be sufficient to penalize him for any errors that he committed in the
    course of his bankruptcy.

[24]

The
    appeal judges conclusion was based entirely on his rejection of the
    psychiatric evidence.  I have found that he erred in his conclusion on that
    point.  As a result, his order cannot stand.  Given the particular facts of
    this case, the condition respecting the payment of $61,000, imposed by the
    Registrar, was not a reasonable one.  It was based on an incomplete
    understanding of the mental health issues under which the appellant was
    labouring at the relevant times.  In light of those concerns, that condition
    cannot be justified.

[25]

I
    would have been inclined to replace the conditions imposed by the Registrar
    with a simple suspension for a period of time.  However, the appellant has been
    effectively operating under a suspension for more than three years, since the
    Registrar made her order.  Consequently, it does not appear that a further
    period of suspension would accomplish any purpose.

[26]

I
    would allow the appeal, set aside the order of the appeal judge, and set aside the
    order of the Registrar.  In place of the latter, I would grant an absolute
    discharge to the appellant.

[27]

This
    is not an appropriate case to make any award of costs of this appeal or of the proceedings
    below.

Released: IVBN MAR 29 2016

I.V.B. Nordheimer J.A.

I agree. J. MacFarland J.A.

I agree. Grant Huscroft J.A.

[1]

Regina v. Mohan
, [1994] 2 S.C.R. 9

[2]
I note that $61,000 was the entire proposal amount which was more than three
    times the total proven claims at the time.


COURT OF APPEAL FOR ONTARIO

CITATION: Larose (Re), 2018 ONCA 208

DATE: 20180302

DOCKET: C63551

Strathy C.J.O, Simmons and Hourigan JJ.A.

IN THE MATTER OF:  Jason Larose

AN APPEAL UNDER PART XX.1 OF
    THE
CODE

Mercedes Perez, for the appellant

Amy Alyea, for the respondent Attorney General of
    Ontario

Janice Blackburn, for the Person in charge of Waypoint
    Centre for Mental Health Care

Heard and released orally: February 27, 2018

On appeal against the disposition of the Ontario Review
    Board dated March 22, 2017.

REASONS FOR DECISION

[1]

The appellant is a dual-status offender.  He was found Not Criminally
    Responsible in 1997 and subsequently convicted of murder in 2002.  At the appellants
    annual disposition review hearing before the Ontario Review Board on March 22,
    2017 the board declined the appellants request to conduct a placement review
    hearing.  The appellant appeals from that ruling.

[2]

We see no error in the Boards decision not to conduct a placement
    review hearing as part of the appellants annual disposition review hearing in
    all the circumstances of this case.  The Boards notice of hearing issued in
    January 2017 was restricted to the issue of disposition.  However, the subject of
    placement was reviewed at pre-hearing conferences.  At the most recent
    pre-hearing conference, it was noted that counsel would be in a position to
    advise the Board whether it would be asked to review placement once certain
    materials were received from Correctional Services Canada.  The appellant did
    not request that a placement hearing be held as part of the disposition hearing
    prior to the scheduled hearing date.

[3]

In the circumstances, the other parties were not ready to proceed with a
    placement review hearing and had not made arrangements for the attendance of a necessary
    witness.  Given that the appellants annual disposition review hearing was more
    than six months overdue, the Board did not err in failing to adjourn the
    disposition review hearing.  It remained open to the appellant to request a
    placement review hearing under s. 672.69(2) and the Board so advised the
    appellant.

[4]

The appeal is dismissed.

G.R. Strathy C.J.O.

Janet Simmons J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Law v. Cedar Ridge Waterfront Park Corporation,
    2018 ONCA 204

DATE: 20180301

DOCKET: C64145

Doherty, MacFarland and Paciocco JJ.A.

BETWEEN

Simon Stuart Law, Julia Lorraine Law, Olga
    Lapshin, John Lackner and Teresa Lackner

Applicants (Respondents)

and

Cedar Ridge Waterfront Park Corporation

Respondent (Appellant)

Scott R. Fairley and Joshua Valler, for the appellant

Brendan Y. B. Wong and Graham Splawski, for the
    respondents

Heard and released orally:  February 22, 2018

On appeal from the judgment of Justice Barbara A. Conway
    of the Superior Court of Justice, dated July 4, 2017.

REASONS FOR DECISION

[1]

We are satisfied that this appeal must succeed. In her reasons, the
    motion judge said the following:

I am satisfied there was a common intention of Mr. Blair [the
    owner] and the purchasers of the Ridge Lots that they would, through their
    membership in CRRC, have access to the water.

[2]

She also said:

Membership in the CRRC was the means by which they were to have
    access to the water which the basis on which they acquired their properties.

[3]

We accept those observations as well-founded on the record. With
    respect, however, they fail to come to grips with the nature of the right of
    access. Was it contractual or was it by way of a right in the land purchased?
    In our view, the documents reviewed and signed at closing establish that the
    right was contractual. The respondents right to access to the waterfront was
    one of a bundle of rights and obligations created by way of a contract between
    the club (CRRC) and lot purchasers like the respondent.

[4]

In coming to our conclusion that the right of access is contractual, and
    not the basis upon which an easement could be found, we make the following
    observations:

·

The property owner was required to assign to any subsequent
    purchaser membership in the club and, hence, the right to access to the
    waterfront sale. This requirement is inconsistent with the existence of an
    easement over the land;

·

The property owner had to be a member in good standing of the
    club to exercise the rights of membership, including access to the waterfront;
    and

·

Nowhere in the relevant documentation are there any of the normal
indicia
of an easement such as a metes and bounds description of the
    purported easement, or of a description of the nature of the uses to which the
    easement was subject.

[5]

In our view, the above observations are equally determinative of the
    argument that there was an easement by
estoppel
. As the rights are
    clearly contractual, they cannot be converted into rights that run with the
    land through the mechanism of an easement by
estoppel
.

[6]

The appeal is allowed. We award costs of the appeal in the amount of
    $20,000, inclusive of disbursements and relevant taxes, and costs in the court
    below in the amount of $25,000, inclusive of disbursements and relevant taxes
    for a total amount of $45,000.

Doherty J.A.

J. MacFarland J.A.

D.M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lemesani v. Lowerys Inc., 2018 ONCA 270

DATE: 20180319

DOCKET: C63659

Simmons and Pepall JJ.A. and Fragomeni J. (
ad
    hoc
)

BETWEEN

Michael Lemesani

Plaintiff (Appellant)

and

Lowerys Inc.

Defendant (Respondent)

Jordan Lester, for the appellant

Roderick W. Johansen, for the respondent

Heard: March 16, 2018

On appeal from the judgment of Justice H.M. Pierce of the
    Superior Court of Justice, dated March 20, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals from a judgment dismissing his claim for wrongful
    (constructive) dismissal and related relief.  He raises several issues on
    appeal.

[2]

His first argument is that the trial judge erred in finding the
    employment agreement frustrated.  We disagree.

[3]

As acknowledged by appellants counsel, this was essentially a fact
    driven question.  The trial judge gave lengthy and considered reasons assessing
    the appellants many arguments.  Among other things, she found there was no
    evidence supporting his claims of workplace harassment and that, as at the time
    of the termination of the contract, there was no reasonable likelihood of the
    appellants being able to return to work within a reasonable time.  On our review
    of the record, these findings were amply supported and we see no palpable and
    overriding error.

[4]

The appellant also argued that the trial judge erred in failing to find
    he was constructively dismissed due to the termination of his employment
    benefits.  We reject this argument.  Counsel acknowledged that the benefits
    terminated as of June 30, 2013.  However, as found by the trial judge, this was
    the date on which the employment contract was frustrated.  It follows that
    there was no constructive dismissal through termination of the employment
    benefits.

[5]

The appellant raised a number of other issues which, either he did not
    plead and therefore were not addressed by the trial judge in her reasons, or
    which are inconsistent with the trial judges finding concerning the
    appellants inability to return to work within a reasonable time.  We reject
    these claims.

[6]

Despite the able arguments made by appellants counsel, the appeal is
    therefore dismissed.

[7]

Costs of the appeal are to the respondent on a partial indemnity scale
    fixed in the agreed upon amount of $11,300 inclusive of HST and disbursements.


COURT OF APPEAL FOR ONTARIO

CITATION: Magee (Re), 2018 ONCA 300

DATE: 20180326

DOCKET: C63766

Doherty, Rouleau and Miller JJ.A.

IN THE MATTER OF:  CHRISTIAN MAGEE

AN APPEAL UNDER PART XX.1 OF THE
CODE

Dean Embry, for the appellant

Carmen Elmasry, for the Ministry of the Attorney General

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

Heard:  March 22, 2018

On appeal against the disposition of the Ontario Review
    Board dated, April 12, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appellant and the Hospital, Waypoint, argued that the Boards
    decision is unreasonable. We disagree. The Board concluded that public safety
    would be compromised if the appellant was transferred, unless the maximum
    security regime at Waypoint could be effectively replicated at the hospital to
    which the appellant was transferred to. Were that to be done, there would seem
    to be no value in the transfer.

[2]

We note that a possibility of a further assessment by someone who is not
    part of the treatment team remains, even though we are told Dr. Bradford has
    left Waypoint. The appellants annual hearing is scheduled for early April. He
    or the Hospital may, if so advised, make submissions with respect to a further
    assessment and the appropriate location for that assessment.

[3]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Manulife Bank of Canada v. Holden-Khan, 2018 ONCA
    297

DATE: 20180323

DOCKET: C64425

MacFarland, Huscroft and Nordheimer JJ.A.

BETWEEN

Manulife Bank of Canada

Plaintiff (Respondent)

and

Marika Holden-Khan and Lutful Kabir Khan

Defendants (Appellants)

Lutful Khan, acting in person

Natalie Marconi, for the respondent

Heard and released orally: March 21, 2018

On appeal from the judgment of Justice Hugh R. McLean of
    the Superior Court of Justice, dated October 6, 2017.

REASONS FOR DECISION

[1]

The appellant filed fresh evidence on his appeal from the judgment of
    McLean J. In our view most of the relevant material could have been put before
    the motion judge at the time.

[2]

We note that the motion judge asked the appellant several times during
    the motion if he wished to file materials and he declined to do so.

[3]

He acknowledged that he was in significant arrears of property taxes.
    The bank stepped in and paid those arrears as it was entitled to do and added
    that amount to the mortgage debt. Having done so, this caused the appellant to
    exceed his authorized credit limit which constituted a default as did the
    non-payment itself under the terms of the mortgage.

[4]

We are not persuaded there is any basis on the record for any of the
    other defences raised. There is no basis for this court to interfere with the
    summary judgment granted by McLean J. and the appeal is dismissed. Costs to the
    respondent fixed in the sum of $20,000 inclusive of HST and disbursements.

J. MacFarland J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Marchese (Re), 2018 ONCA 307

DATE: 20180327

DOCKET: C63703

Watt, Brown and Huscroft JJ.A.

IN THE MATTER OF:  Mary Marchese

AN APPEAL UNDER PART XX.1 OF THE
CODE

Russell Browne, for the appellant Mary Marchese

Megan Petrie, for the respondent the Attorney General of Ontario

Heard: February 22, 2018

On appeal against the disposition of the Ontario Review
    Board, dated April 13, 2017.

Brown J.A.:

I.

OVERVIEW

[1]

The appellant, Mary Marchese, appeals the disposition of the Ontario
    Review Board (the Board) dated April 13, 2017 (the Order) that continued
    her detention, with a term that, subject to the discretion of the
    person-in-charge of St. Josephs Healthcare Hamilton (the Hospital), would
    permit her to live in the community in accommodation approved by the person-in-charge.

[2]

The appellant advances two grounds of appeal: (i) the decision of the
    Board that she was a significant threat to the safety of the public was
    unreasonable; (ii) alternatively, the detention order did not amount to the
    least onerous and least restrictive disposition in the circumstances, with the
    result that the Board should have granted her a conditional discharge.
    (Although the appellant couched her alternative argument in the old language of
    s. 672.54 of least onerous and least restrictive, I shall use the sections
    current language of necessary and appropriate.)

[3]

The 2008 index offences that resulted in a finding of not criminally
    responsible on account of a mental disorder (NCRMD) involved the appellant
    spitting at and assaulting a psychiatrist while she was in a hospitals
    psychiatric intensive care unit. The appellants current diagnosis is
    Schizophreniform Disorder.

[4]

The appellant has generally lived in the community since 2010. However,
    between 2011 and 2017 the appellant was readmitted seven times to the general
    forensic unit of the Hospital for treatment, often for quite lengthy periods of
    time. At present, she lives in the community with her common-law partner, Mr.
    Ben Savage.

[5]

For the reasons set out below, I would dismiss the appeal.

II.

THE FINDING OF SIGNIFICANT THREAT TO THE SAFETY OF THE PUBLIC

[6]

The continued supervision of an NCR accused under Part XX.1 of the
Criminal
    Code
requires the Board to find that the person remains a significant
    threat to the safety of the public  that is, the person poses a significant
    risk of committing a serious criminal offence:
Winko v. British Columbia
    (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at paras. 48-49 and
    57.

[7]

Under the reasonableness standard of review, the Boards reasons must be
    able to withstand a somewhat probing examination to ascertain whether the
    decision is justifiable, transparent, and intelligible, and falls within a
    range of possible, acceptable outcomes:
R. v. Owen
, 2003 SCC 33, [2003]
    1 S.C.R. 779, at para. 33; and
Delta Air Lines Inc. v. Lukács
, 2018
    SCC 2, 416 D.L.R. (4th) 579, at para. 12.

[8]

To conduct a somewhat probing examination this court must have
    something to probe. Yet, too often this court sees reasons from the Board that
    go on at considerable length to recite the NCRMD accuseds history, the evidence
    considered by the Board, and the parties submissions, only to conclude with a
    cursory analysis of the key issue: is the appellant a significant threat to the
    safety of the public?

[9]

Cursory analysis is difficult to probe. It also risks failing to provide
    justification, transparency, and intelligibility for the resulting decision. To
    avoid that risk, in every case the Boards reasons should clearly explain what
    evidence in the record leads it to conclude that the condition and conduct of
    the NCRMD accused creates a significant threat to the safety of the public,
    both in the sense that there exists a real, foreseeable risk of physical or
    psychological harm occurring to individuals in the community and in the sense
    that this potential harm must itself be serious:
R. v. Ferguson
, 2010 ONCA 810,
    264 C.C.C. (3d) 451, at para. 8. The Boards reasons must clearly deal with the
    likelihood of a risk materializing and the seriousness of the harm that might
    occur:
Carrick (Re)
,
    2015 ONCA 866, 128 O.R. (3d) 209, at para. 16.

[10]

In
    the present case, the brevity of the Boards treatment of the key issue of
    significant threat to the safety of the public is cause for concern: only one
    paragraph at the end of five pages of reasons. This brevity led the Board to
    treat material evidence without the rigour one would expect from a specialized
    tribunal such as the Board.

[11]

For
    example, in concluding the appellant was a significant threat to the safety of
    the public, the Board relied on the fact that [w]hile readmitted to the
    hospital, [the appellant] has required seclusion due to her behaviour. The
    details of the appellants behaviour and the resulting seclusion were not set
    out in the Boards reasons. They did exist - in the depths of the Hospital record,
    which the Board accepted as uncontroverted evidence. But, the point is that
    transparency and intelligibility require the Board to identify the material
    evidence upon which it relies in its reasons and to explain how that evidence
    is linked to the issue of significant threat to the safety of the public.

[12]

That
    said, on a review of the Boards reasons, taking into consideration the
    evidence it accepted in the Hospital record, I am not persuaded the Boards
    decision that the appellant remains a significant risk to the safety of the
    public was unreasonable.

[13]

There
    was evidence before the Board to support its finding that the appellant
    remained a significant threat to the safety of the public. During the period
    under review, the appellant was re-admitted to the Hospital for over seven
    months due to a deterioration in her mental status. While in the Hospital, the
    appellant was placed in seclusion for one day because of escalated behaviour
    that risked harm to herself and to others. As well, she experienced a
    significant incident of delusion when she left the Hospital without permission
    and presented herself at another hospital asking for a caesarian section,
    thinking she was pregnant when she was not.

[14]

At
    the hearing, Dr. Prat testified that in the first incident  the escalated
    behaviour  the appellants presentation was similar to that at the time of the
    index offence, and the second recalled certain delusional behaviour concerning
    babies displayed prior to the index offences.

[15]

In
    light of that evidence, I would not interfere with the Boards finding that the
    appellant remained a significant threat to the safety of the public.

III.

THE NECESSARY AND APPROPRIATE DISPOSITION

[16]

In
    every case, the Board is obliged to explain why the disposition ordered is necessary
    and appropriate in the circumstances:
R. v. Lamanna
, 2009 ONCA 612, 252
    O.A.C. 280, at para. 14. In the present case, the Board failed to do so. It
    merely curtly stated its conclusion: [T]he necessary and appropriate
    disposition is a continuation of the current Detention Order without
    amendment.

[17]

A
    conclusion is not an explanation. Nor is such a brief, conclusory statement
    justifiable, transparent, and intelligible. Whether it falls within a range
    of possible, acceptable outcomes cannot be assessed given the absence of any
    analysis to justify the conclusion.

[18]

The
    Boards perfunctory treatment of what disposition order would be necessary and
    appropriate in the circumstances was not appropriate on the evidence before it.

[19]

On
    the appellants 2013 annual review, her attending psychiatrist and the Hospital
    supported a conditional discharge. The Board did not accept their
    recommendation.  In its May 16, 2016 Reasons for Disposition, the Board
    rejected the suggestion of counsel for Ms. Marchese of a conditional discharge,
    explaining that a continued detention order would enable a more timely
    intervention in the event of the appellants rapid decompensation than would be
    available under the provisions of the
Mental Health Act
, R.S.O. 1990,
    c. M.7 (the
MHA
).

[20]

On
    the current 2017 review, a similar reason for continuing the detention order
    was advanced in the clinical risk summary.

[21]

However,
    at the 2017 review hearing the Board heard from Mr. Savage, the appellants
    common-law partner. They have been together for the last four years and
    currently live together. Mr. Savage pointed out that a new general hospital had
    opened about 15 minutes away from their residence. He believed the appellant
    could be managed within the
MHA
system.

[22]

Those
    circumstances lent an air of reality to a conditional discharge as
    potentially the necessary and appropriate disposition. Consequently, given the
    record before it, the Board was required to explain why it concluded that a
    continued detention order, not a conditional discharge, was the necessary and
    appropriate disposition in the circumstances:
R. v. Breitweiser
, 2009
    ONCA 784, 99 O.R. (3d) 43, at para. 18. It was unreasonable for the Board not
    to provide an explanation.

[23]

Such
    an explanation would include a consideration of the adequacy or inadequacy in
    the circumstances of: (i) conditions such as those upheld by this court in
Young
    (Re)
, 2011 ONCA 432, 273 C.C.C. (3d) 512, at paras. 26-33;
[1]
(ii) a condition, if agreed to, under s. 672.55 to take medication; (iii) the
    mechanisms for enforcing conditions in a conditional discharge found in ss. 672.91,
    672.92 and 672.93 of the
Criminal Code
;
and (iv) the committal provisions of the
MHA
:
Breitweiser
,
    at para. 18;
Lamanna
, at paras. 14-17; and
Gacek (Re)
, 2012
    ONCA 591, 298 O.A.C. 148, at para. 43.

[24]

Notwithstanding
    the Boards failure to explain the disposition it selected, I am not prepared
    to interfere with the Order. At the hearing of the appeal, counsel for Ms.
    Marchese alluded to her having further contact with the Hospital. In fact, Ms.
    Marchese was readmitted to the Hospital on September 12, 2017 and remained
    there until at least late October 2017 when the Board conducted a restriction
    on liberty hearing. The Board held that the Hospitals decision to
    significantly increase the restrictions on the liberty of the appellant was
    warranted:
Marchese (Re),
2017 CarswellOnt 17863 (Review Board).

[25]

Accordingly,
    whether a conditional discharge would constitute the necessary and appropriate disposition
    for Ms. Marchese is an issue best left to her next annual review. Whatever
    disposition the Board ends up making on the evidence before it at that time,
    the Board must explain its choice of disposition in accordance with the
    directions given in these reasons.

IV.

DISPOSITION

[26]

For the reasons set out above, I would dismiss the
    appeal.

Released: DW Mar 27 2018

"David Brown J.A."
"I agree. David Watt J.A."
"I agree. Grant Huscroft J.A."

[1]

Those conditions required that
    the NCR accused: (i) upon notice by the person in charge of the hospital, immediately
    submit to attendance and for readmission to hospital; and (ii) upon the
    request of the hospital, attend for psychiatric assessment, and upon notice of
    the person in charge, attend for admission to the hospital:
Young
, at
    para. 8.


COURT OF APPEAL FOR ONTARIO

CITATION: Mars Canada Inc. v. Bemco Cash & Carry Inc.,
    2018 ONCA 239

DATE: 20180313

DOCKET: C64077

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

BETWEEN

Mars Canada Inc.

Plaintiff (Respondent)

and

Bemco Cash & Carry Inc., GPAE Trading Corp.
    and Aizic Ebert

Defendants (Appellants)

Patrick T. Summers, for the appellants

Jim Holloway and Essien Udokang, for the respondent

Heard: January 15, 2018

On appeal from the judgment of Justice Frederick L. Myers
    of the Superior Court of Justice dated November 18, 2016, with reasons reported
    at 2016 ONSC 7201, and the costs judgment dated December 6, 2016, with reasons
    reported at 2016 ONSC 7643.

Strathy C.J.O.:

[1]

This appeal concerns the enforcement of contracts in restraint of trade,
    the courts jurisdiction to order a reference on a summary judgment motion, and
    the award of substantial indemnity costs.

[2]

The following summary of the facts will put the issues in context.

A.

Background

[3]

The respondent Mars Canada Inc., an Ontario company, is related to the
    well-known American candy company. It sells candy products under
    Canadian-registered trademarks, including MARS, M&Ms, MILKY WAY and
    SNICKERS.

[4]

The appellant Aizic Ebert (Ebert) owns and controls the corporate
    appellants, Bemco Cash & Carry Inc. (Bemco) and GPAE Trading Corp.
    (GPAE). Through those companies, he sold grey market Mars products in
    Canada. He bought the products in the United States, imported them to Canada,
    and sold them at a price lower than those offered by the respondent. The law is
    unsettled as to whether a Canadian trademark holder can prevent this activity.

[5]

In about 2006, the respondent discovered that Bemco was selling Mars products
    in Toronto. It brought an action in the Federal Court. After lengthy
    negotiations and legal advice, the parties settled the action (the Bemco
    Settlement).

[6]

Under the Bemco Settlement, Bemco agreed to identify the source of its
    grey market products. It also agreed that it would not import or sell Mars products
    in Canada without the respondents consent or without obtaining a declaratory
    judgment in the Superior Court authorizing it to do so.

[7]

After the settlement, Bemco disclosed that GPAE was its supplier of foreign
    Mars products.

[8]

On disclosure of this information, the respondent demanded that GPAE
    cease its activities. GPAE agreed to do so. It agreed not to import or sell Mars
    products in Canada without the respondents consent (the GPAE Settlement).
    The GPAE Settlement was to be binding on related companies and their
    shareholders  that is, Bemco and Ebert.

[9]

In 2010, the respondent discovered that foreign products bearing its
    trademarks were once again being sold in Canada, through another company, in
    concert with Bemco and GPAE. It brought this action to enforce the Bemco
    Settlement and the GPAE Settlement and for damages. The appellants defended on
    the ground, among others, that the settlement agreements were in restraint of
    trade and, therefore, void.

B.

The Motion Judges Reasons

[10]

The
    respondent brought a motion for summary judgment. It sought declaratory relief
    and damages. It also sought rectification of the Bemco Settlement, to correct an
    error in Bemcos corporate name.

[11]

There
    was a voluminous documentary record, transcripts of cross-examinations and
    third party examinations, as well as an expert report.

[12]

The
    Bemco Settlement was made in the name of Bemco Confectionary Sales, the company
    from which Ebert had purchased the business, rather than in Bemcos proper
    name. The motion judge found that both parties intended the agreement to be the
    name of Bemco and granted rectification. That order is not appealed.

[13]

The
    motion judge also found that both Bemco and GPAE had breached their settlement
    agreements. Bemco by continuing to engage in grey marketing, and GPAE by
    continuing to import Mars products into Canada.

[14]

The
    motion judge rejected the appellants argument that the settlement agreements
    were void as being in restraint of trade. He applied the test identified by this
    court in
Tank Lining Corp. v. Dunlop Industrial Ltd.
(1982), 40 O.R.
    (2d) 219 (C.A.). For the purposes of argument, he was prepared to assume that
    the agreements were in restraint of trade and that they did not fall within one
    of the recognized exceptions. He found, however, that the agreements were
    reasonable in the interests of the parties and reasonable in the interests of
    the public. The agreements were made to settle litigation, a purpose favoured
    and supported by the law and by public policy. The respondent was entitled to
    enforce its registered trademarks. Finally, the products imported from the U.S.
    by the appellants did not comply with Canadian labelling and packaging laws.

[15]

Having
    found that the appellants breached the agreements, he directed a reference as
    to damages pursuant to r. 20.04(3) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194. He rejected the appellants submission that this was an
    improper bifurcation of the proceedings without their consent, contrary to r.
    6.1.01.
[1]

[16]

In
    a subsequent endorsement, the motion judge granted costs to the respondent on a
    substantial indemnity basis, in the amount of $225,000, all-inclusive. He found
    that the appellants brazenly breached their settlement agreements, contrived
    to avoid the settlements they made, raised trivial grounds of argument and made
    the litigation lengthier and more expensive than it ought to have been.

C.

Issues

[17]

The
    appellants raise three issues on appeal.

[18]

First,
    they submit that the motion judge erred in giving effect to the settlement
    agreements. He should have found they were void as being in restraint of trade.

[19]

Second,
    they submit that the motion judge erred in directing a reference to determine
    damages. The appellants argue that the agreements could only be enforced if the
    respondent established that it suffered damages. Because the motion judge made
    no finding that the respondent had sustained damages, he improperly bifurcated
    the proceedings by ordering a reference. The appellants also argue that the
    bifurcation of liability and damages violated r. 6.1.01.

[20]

Third,
    the appellants seek leave to appeal the award of substantial indemnity costs.
    They say that the motion judge erred in principle in awarding such costs as a
    result of their conduct prior to the commencement of the litigation. They also
    argue that the respondent itself increased the cost of the proceedings by
    asserting claims that were abandoned at the outset of the hearing.

D.

Analysis

(1)

Agreements in Restraint of Trade

[21]

Before
    the motion judge, the restraint of trade issue was argued and decided on the
    basis of the leading case,
Tank Lining
.

[22]

In
Tank Lining
, Blair J.A. stated that the test requires a four-stage
    inquiry (at p. 223). The first and second stages ask whether the covenant is in
    restraint of trade and, if so, whether it falls within one of the limited
    exceptions to the rule that such restraints are void. The third question asks
    whether the restraint can be justified as reasonable in the interests of the
    parties. The fourth asks whether it is reasonable with reference to the
    interests of the public. Blair J.A. noted, at p. 225, that the onus is on the
    party seeking to enforce the covenant to show that it is reasonable in the
    interests of the parties. The onus is on the party opposing enforcement to show
    that the covenant is not reasonable in the public interest: see also
Martin
    v. ConCreate USL Ltd. Partnership
, 2013 ONCA 72, 359 D.L.R. (4th) 123, at
    paras. 49-50.

[23]

The
    appellants focused their argument on the question of whether the restraint can
    be justified as reasonable in the interests of the parties. The appellants
    argue that because the judge made no finding that the respondent had sustained
    damages, he did not consider whether the respondent had demonstrated that it
    had an interest in need of protection. In effect, they say that a determination
    that the respondent suffered damages was a necessary prerequisite to the motion
    judges conclusion that the settlement was not void in restraint of trade. No
    authority was cited to us to support the appellants submission that proof of
    damages is a necessary requirement of an action to enforce an agreement in
    restraint of trade.

[24]

To
    be reasonable between the parties, the agreement must not be wider than
    necessary to protect the legitimate or proprietary interests of the party in
    whose favour it was granted: see
Tank Lining
, at p. 225;
MEDIchair
    LP v. DME Medequip Inc.
, 2016 ONCA 168, 129 O.R. (3d) 161, at para. 38. The
    factors relevant in determining whether the restraint on trade is reasonable
    are the geographic coverage of the agreement, the period of time that it is in
    effect and the extent of the activity prohibited:
Martin v. ConCreate USL Ltd.
    Partnership
, at para. 54.

[25]

However,
    as noted by Blair J.A. in
Tank Lining
, at p. 225, [w]hen two
    competently advised parties with equal bargaining power enter into a business
    agreement, it is only in exceptional cases that the courts are justified in
    over-ruling their own judgment of what is reasonable in their respective
    interests.

[26]

In
    the circumstances of this case, the respondent has legitimate interests tied to
    its trademark rights. As recognized by the motion judge, at para. 42, [t]he [respondent]
    has an obvious interest in the enforcement of its intellectual property rights
    which, as noted above, remain valid unless or until declared otherwise.

[27]

The
    appellants have identified no error in the motion judges application of
Tank
    Lining
. The settlement of the litigation was unquestionably reasonable in
    the interests of the parties. It resolved their dispute and defined the scope
    of the parties trading rights. It was also reasonable in the public interest.
    It prevented confusion between the respondents trademarked products and the
    appellants improperly labelled grey market products.

[28]

I
    would therefore reject this ground of appeal.

(2)

Directing a Reference

[29]

The
    appellants submit that the motion judge erred in ordering a reference without
    having found that the respondent had, in fact, sustained damages. They point to
    the judges conclusion, at para. 50, in refusing to order the appellants to
    provide an accounting, that [t]he [respondents] damages,
if any
, are the damages that reasonably flow from the
    breach. They are readily calculable as lost profits (emphasis added). The
    appellants say that without a specific finding that the respondent sustained
    damages, it was improper to order a reference.

[30]

The
    appellants also argue, as they did below, that the motion judge had no
    jurisdiction to bifurcate liability and damages, relying on
Bondy-Raphael
    v. Potrebic
, 2015 ONSC 3655, 128 O.R. (3d) 767 (Div. Ct.).

[31]

I
    would reject both submissions. As to the first, there was evidence before the
    motion judge to support a conclusion that the respondent sustained some
    damages. There was evidence given by the respondents witness that every sale
    of a grey market Mars bar by the appellants represented a loss of a sale by the
    respondent. As well, the appellants own expert testified that the appellants
    sales would cannibalize the respondents sales.

[32]

In
    any event, the respondents action was in breach of contract. The motion judge
    found that the appellants were in breach of their agreements. He granted a
    declaration to that effect. Unlike in tort, damages are not an essential
    element of a cause of action for breach of contract. The plaintiff need only
    establish the existence of a contract with the defendant and its breach: Angela
    Swan and Jakub Adamski,
Canadian Contract Law
, 3rd ed. (Markham:
    LexisNexis Canada Inc., 2012), at §2.16.1.

[33]

Having
    established a valid contract and a breach, the respondent was entitled to
    damages, even nominal damages. Nominal damages are always available in a breach
    of contract action: see
Place Concorde East Ltd. Partnership v. Shelter
    Corp. of Canada Ltd.
(2006), 270 D.L.R. (4th) 181, at para. 76 (Ont.
    C.A.).

[34]

As
    to the bifurcation argument,
Bondy-Raphael
does not assist the
    appellants in any way. That case involved the interpretation of r. 6.1.01,
    which provides as follows:

With the consent of the parties, the court may order a separate
    hearing on one or more issues in a proceeding, including separate hearings on
    the issues of liability and damages.

The majority of the Divisional Court held, at paras.
    37-38, that a judge did not have inherent jurisdiction to bifurcate a
trial
into a determination of liability and a damage
    assessment without the consent of the parties. The majority of the Divisional
    Court was careful to observe, at para. 39, that the decision should be confined
    to its particular context:

It is important when dealing with Rules of new and potentially
    broad application to not decide anything more than is specifically before the
    court in the given case.  [W]here there is provision in the Rules for deciding
    an issue by summary judgment or by a ruling on a point of law, that situation
    might not necessarily be the same as a motion for bifurcation of a trial, such
    that Rule 6.1.01 might not be paramount. Our ruling in this case should be
    confined to the specific issue before us whether a motion judge can order
    bifurcation of a trial without the consent of the parties.

[35]

I
    agree with the motion judge that on a motion for summary judgment the courts
    jurisdiction is governed by r. 20.04(3), which provides:

Where the court is satisfied
    that the only genuine issue is the amount to which the moving party is
    entitled, the court may order a trial of that issue or grant judgment with a
    reference to determine the amount.

[36]

I
    reject the appellants submission that r. 6.1.01 applies to summary judgment
    motions. It is inconsistent with r. 20.04(3) and the underlying philosophy of
    the summary judgment process, described in
Hryniak v. Mauldin
, 2014
    SCC 7, [2014] 1 S.C.R. 87. Its application would gut the efficacy of summary
    judgment. The appellants argument has been rejected in the Superior Court
    cases that have considered it. In this case, the motion judge stated at para.
    51:

Summary judgment is not a separate hearing under Rule 6.1.01.
    There will not be two trials or a trial of one issue followed by a separate
    trial of a second issue. Summary judgment is its own, alternative model of
    adjudication. It is not a hearing as contemplated by Rule 6.1.01.

[37]

The
    motion judge came to a similar conclusion in
Anjum et al. v. Doe et al.
,
    2015 ONSC 5501, at para. 8. See also
Fontenelle v. Canada (Attorney
    General)
, 2017 ONSC 6604, at paras. 136-141;
Abuajina v. Haval
,
    2015 ONSC 7938, at paras. 42-45.

[38]

It
    is conceivable that a judge hearing a summary judgment motion could decline to
    determine liability and order a reference as to damages because of a risk of
    inconsistent findings on liability and damages. This is not such a case.

[39]

It
    follows that I reject the appellants submissions that the motion judge had no
    jurisdiction to order a reference as to damages and that it was necessary to
    establish that the respondent had sustained more than nominal damages, before
    ordering a reference.

(3)

Substantial Indemnity Costs

[40]

The
    motion judge identified the principles to be applied in fixing costs under s.
    131 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, and considered
    the factors set out in r. 57.01.

[41]

He
    also considered the appellants argument that the costs award should have
    reflected the fact that the respondent advanced several causes of action, some
    of which it ultimately withdrew. He found this was reasonable given the
    lengths to which the [appellants] would go to try to avoid accountability for
    their conduct (at para. 5).

[42]

The
    motion judge found that the appellants brazenly breached the settlements. They
    relied on an obvious slip (the misnomer of Bemco) to try to avoid living up to
    their agreements. Their efforts to undermine the agreements were dishonourable
    and deserving of censure. They altered a document in a transparent attempt to
    hide their illicit activities. He found that their conduct of the action
    reprehensibly maximized costs and delay (at para. 5). Their kitchen sink
    approach lengthened the proceedings and they made the litigation lengthier and
    more expensive than it ought to have been.

[43]

The
    applicable principles can be summarized as follows:

a.

the fixing of costs is discretionary and the motion judges costs award
    attracts a high level of deference  it should be set aside on appeal only if
    the trial judge erred in principle or if the award is plainly wrong: see
Hamilton
    v. Open Window Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27;

b.

costs on a substantial indemnity basis should only be awarded where
    there has been reprehensible, scandalous or outrageous conduct on the part of
    one of the parties:
Young v. Young
, [1993] 4 S.C.R. 3, at p. 134; and

c.

the kind of conduct that will justify an elevated level of costs is not
    limited to conduct in the proceedings and can include the circumstances that
    gave rise to the litigation:
Mortimer v. Cameron
(1994), 17 O.R. (3d)
    1 (C.A.), at p. 23;
Clarington (Municipality) v. Blue Circle Canada Inc.
,
    2009 ONCA 722, 100 O.R. (3d) 66, at para. 30.

[44]

The
    motion judge applied these principles. In awarding substantial indemnity costs,
    he was entitled to consider that the litigation was caused by the appellants
    duplicitous breach of agreements made in settlement of the previous litigation:
    see Mark M. Orkin,
The Law of Costs
, looseleaf, 2nd ed. (Toronto:
    Thomson Reuters, 1987), at §219. He properly had regard to the appellants
    conduct during the litigation, including litigating what was clearly a
    technical slip, altering a document, and engaging in tactics that increased
    costs. He considered the appellants argument that the respondent had increased
    the costs by asserting claims that were ultimately abandoned and gave reasons
    for rejecting it.

[45]

The
    appellants have not demonstrated an error in principle in the motion judges
    award of costs and I would not grant leave to appeal.

E.

Disposition

[46]

For
    these reasons, I would dismiss the appeal. I would award costs to the
    respondent, fixed at $20,000, inclusive of disbursements and all applicable
    taxes.

Released: GRS  MAR 13 2018

G.R. Strathy C.J.O.

I agree. C.W.
    Hourigan J.A.

I agree. B.W. Miller
    J.A.

[1]

Rule 6.1.01 With the consent of the parties, the court may
    order a separate hearing on one or more issues in a proceeding, including
    separate hearings on the issues of liability and damages.


COURT OF APPEAL FOR ONTARIO

CITATION: Medcof (Re), 2018 ONCA 299

DATE: 20180327

DOCKET: C64097

Strathy C.J.O., Simmons and Hourigan JJ.A.

IN THE MATTER OF:  William Medcof

AN APPEAL UNDER PART XX.1 OF
    THE
CODE

Erin Dann, for the appellant

Nancy Dennison, for the Attorney General of Ontario

Gavin S. MacKenzie, for the Centre for Addiction and
    Mental Health

Heard: March 2, 2018

On appeal against the disposition of the Ontario Review
    Board dated May 8, 2017.

Simmons J.A.:

[1]

The appellant appeals from a disposition of the Ontario Review Board
    dated May 8, 2017. The majority of the Board found that the appellant continues
    to pose a significant threat to the safety of the public and ordered that he be
    conditionally discharged.  A minority of the Board concluded that the
    evidence adduced at the hearing did not cross the threshold of establishing
    that the appellant poses a significant threat to public safety and would have
    granted an absolute discharge.

[2]

The appellant was found not criminally responsible in 2002 in relation
    to multiple serious criminal offences. He suffers from schizophrenia and has
    been treated with anti-psychotic medications while under the Boards
    jurisdiction. Although subject to a detention order until the disposition under
    appeal, he has lived in the community without incidents of violence, but with
    intermittent re-hospitalizations, since late 2012. He disputes his diagnosis
    and asserts that he will discontinue all medication if discharged absolutely.

[3]

On appeal, the appellant submits that the Board's finding that he poses
    a significant threat to the safety of the public is unreasonable.

[4]

The appellant says the Board made two errors in reaching its conclusion.
    First, it equated the appellants lack of insight into his mental illness and the
    potential for decompensation in his mental state with significant threat. In so
    doing, the Board failed to assess whether those factors lead to the conclusion that
    if absolutely discharged there is a real risk the appellant will commit a
    serious criminal offence resulting in serious physical or psychological harm.

[5]

Second, in assessing the threshold of significant threat, the Board
    failed to factor in the civil mechanisms for controlling risk under the
Mental
    Health Act
, R.S.O. 1990, c. M.7.

[6]

The appellant asserts that the Board could not have concluded that he meets
    the significant threat threshold because the evidence at the hearing was
    insufficient to support that finding.

[7]

In my view, although the evidence before the Board was neither extensive
    nor well-articulated, it was sufficient to support a finding of significant
    threat to public safety. I would therefore dismiss the appeal.

Background

(i)

The index offences

[8]

The appellant was found not criminally responsible (NCR) on November 29,
    2002 in relation to several serious offences: one count of aggravated assault;
    two counts of break and enter with intent to commit an indictable offence; one
    count of kidnapping; three counts of assault with a weapon; three counts of
    uttering threats, one count of assault; three counts of criminal harassment; one
    count of breach of probation; two counts of breach of recognizance; and one count
    of weapons dangerous.

[9]

The offences took place on May 24 and 25, 2001. They arose out of an
    attack on the appellant's roommate, the subsequent kidnapping of the
    appellants mother from his parents home and an attack on the appellant's
    father at his parents cottage. The appellant asserted a belief that his
    parents and sister were evil and uttered threats to kill them. As a result of
    these incidents, the appellants roommate suffered a head injury and was taken
    to hospital where he received stitches. The appellant threatened both his
    parents with a golf club, struck his mother with it, hit his father and tied
    his mothers hands and feet together during the kidnapping. Despite being tied,
    the appellants mother managed to call 911 on her cell phone after she and the
    appellant arrived at the cottage.

(ii)

The appellants background

[10]

The
    appellant was born in Toronto in 1967 and is currently 50 years of age. He was
    adopted at the age of three months.

[11]

According
    to his father, problems began when the appellant was in grade 7. He began
    exposing himself to neighbours and was seen by a psychiatrist for
    exhibitionism. He began skipping school in grade 8 and left school in grade 10.
    He later took courses in mechanics, private investigation and paralegal work,
    but has not held a job consistently in any of these fields. He currently
    receives Ontario Disability Support.

[12]

The
    appellant was seen again for exhibitionism at age 23 and over the years
    attended various programs to treat exhibitionism, depression and post-traumatic
    stress.

[13]

The
    appellants father reports that the appellant became verbally aggressive towards
    his mother at age 25, screaming at her with foul language, breaking furniture
    and throwing things. His mother reports becoming increasingly afraid of her
    son. He became physically aggressive and pushed her on a couple of occasions in
    the late 1990s. On September 15, 2000, police escorted him to CAMH on a Form 2
    arranged by his parents. On September 27, 2000, the appellant was assessed at
    College Park after being charged with two counts of indecent assault. As I have
    said, the index offences occurred in May 2001.

[14]

The
    appellant was married for about two years, ending in 1999. He has a son from
    that union. His ex-wife has sole custody of the child. The Hospital Report
    notes that she reports that the appellant slapped her in approximately 1998,
    that he was emotionally abusive and that with time she became afraid of him.

(iii)

The appellants prior criminal history

[15]

Prior
    to being found not criminally responsible in 2002, the appellant had two
    convictions on his record: attempted fraud under $5,000 in 1991 and failing to
    comply with a recognizance in 2000. He also reports having been charged with
    criminal harassment (x6) and indecent act (x2).

(iv)

The appellants current diagnoses

[16]

The
    appellants current diagnoses are: schizophrenia, residual type; substance
    abuse disorder; personality disorder NOS (with narcissistic and antisocial
    traits); and exhibitionist disorder. Differential diagnoses are delusional
    disorder, mixed type; unspecified schizophrenia spectrum disorder; and
    post-traumatic stress disorder.

[17]

The
    appellant is not treatment competent. His substitute decision maker is the
    Public Guardian and Trustee. Since coming under the jurisdiction of the Board,
    the appellant has continued to take antipsychotic medications. He is currently treated
    with a long-acting antipsychotic medication and an oral sedative as needed. The
    appellant also reports that he uses marijuana for chronic pain but will not
    disclose the name of the prescribing doctor.

(v)

The appellants progress under the ORB

[18]

Since
    the finding and until the disposition under review, the appellant remained on a
    detention order. He was initially detained at Whitby Mental Health Centre
    (WMHC). He was discharged into a community group home for several months in
    2005 but was returned to WMHC after testing positive for cannabis. He eloped
    from that facility in January 2008 but returned on his own the next day. He
    pleaded guilty to a charge of escape lawful custody as a result of that
    incident and received a suspended sentence and probation.

[19]

While
    at WMHC, the appellant denied having any mental illness and demonstrated a
    number of persecutory and delusional beliefs. These included a belief that the
    hospital, the police and the courts were conspiring to keep him in hospital
    unjustly; being a prolific inventor; the creator of movies and TV shows; the
    founder of GM, Ford and Chrysler; the author of many Stephen King novels; and
    believing that he received messages from the television. The appellant was
    described as hostile and as demonstrating little respect for hospital rules.
    However, there was no evidence of violent or aggressive behaviour.

[20]

The
    appellant was transferred to the medium secure unit of the Centre for Addiction
    and Mental Health (CAMH) at his request in 2008. He believed the WMHC
    treatment team manufactured evidence against him to keep him detained. It was
    hoped that a transfer and increase in medication would improve his mental
    status and therapeutic relationship.

[21]

While
    at CAMH, the appellant continued to deny that he suffered from any mental
    illness and was not initially agreeable to working with the treatment team.
    During a period of treatment with Clozapine he became more amenable to
    interacting with his treatment team and his psychotic symptoms decreased in
    intensity but remained evident (for example, he described how he had come up
    with the idea for certain movies). The appellant complied with medication as
    prescribed but displayed little insight into the need for the same. He
    exercised various privileges without incident and did not display any sexually
    inappropriate behaviours.

[22]

The
    appellant was granted community living privileges in late 2012. As already
    noted, there have been no incidents of violence or sexually inappropriate
    behaviours while the appellant has lived in the community. That said, the
    appellant has been readmitted to hospital on many occasions after positive
    tests for cannabis and early signs of decompensation and he continues to
    exhibit grandiose delusions and paranoia. The appellants initial readmission
    was in early 2013. He showed early signs of decompensation after successive
    positive tests for cannabinoids and a dramatic drop in blood Clozapine levels.
    The appellant ultimately acknowledged medication non-compliance because of side
    effects and his medication was changed from Clozapine to depot drugs.

[23]

Between
    February 2015 and October 2016, the appellant was readmitted to hospital on
    four occasions following positive tests for cannabis and reported increases in
    paranoia. While under the care of Dr. Swayze, the appellant was readmitted to
    hospital during the following periods: February 27, 2015 to April 14, 2015;
    July 23, 2015 to August 27, 2015; March 24, 2016 to May 5, 2016; and July 14,
    2016 to October 20, 2016. The appellant frequently denied using cannabis and
    lodged a formal complaint against Dr. Swayze, alleging that he was tampering
    with laboratory tests. As of October 2016, the appellant remained distrustful
    of Dr. Swayze and his outpatient care was transferred to Dr. Liu as of October
    25, 2016.

[24]

From
    October 2016 until the Board hearing in April 2017, the appellants drug
    screening tests continued to show cannabis use but there were no further
    readmissions to hospital. According to Dr. Liu, the appellants clinical
    presentation remained unchanged during that period. Further, there was no
    suggestion of violent or sexually inappropriate behaviour. In testimony before
    the Board, Dr. Liu noted that the reason for the previous hospitalizations when
    cannabis was detected was that the appellant manifested with increased
    paranoia. He said the treatment team had been closely monitoring the
    appellants clinical manifestation since October 2016. They were unsure how
    much cannabis the appellant had been using and he remained adamant that he was
    not using cannabis. Dr. Liu opined that an excessive use of cannabis might
    induce a change in the appellants mental condition and require
    hospitalization.

The significant risk threshold

[25]

Under
    s. 672.54 of the
Criminal Code
, the Board is required to grant an
    absolute discharge if, in its opinion, an NCR accused is not a significant
    threat to the safety of the public. That term is defined in s. 672.5401 as a
    risk of serious physical or psychological harm to members of the public
    resulting from conduct that is criminal in nature but not necessarily violent.

[26]

In
R. v. Ferguson
, 2010 ONCA 810, 264 C.C.C. (3d) 451, this court noted
    that the meaning of the phrase significant threat to the safety of the public
    was authoritatively set down in
Winko v. British Columbia (Forensic
    Psychiatric Institute)
, [1999] 2 S.C.R. 625, at paras 49-62, 69. As stated
    by this court at para. 8 of
Ferguson
, the phrase refers to a foreseeable
    and substantial risk of physical or psychological harm to members of the public
    that is serious and beyond trivial or annoying. A very small risk of even great
    harm will not suffice. Nor will a high risk of relatively trivial harm. While
    the conduct must be criminal in nature, not all criminal conduct will suffice
    to establish a significant risk. There must be a risk that the NCR accused will
    commit a serious criminal offence.

The evidence at the Board hearing concerning significant risk

[27]

The
    evidence before the Board concerning significant risk consisted of the Hospital
    Report, marked as an exhibit and the testimony of Dr. Liu.

(i)      The Hospital Report

[28]

In
    addition to the appellants history, the Hospital Report disclosed that the
    appellant had not been participating in any regular programming since his last discharge
    from hospital in October 2016. He was unemployed, did not attend educational,
    vocational, volunteer or social activities and had distanced himself from his
    family because he believed they were involved in his persecution.

[29]

At
    his most recent mental status examination prior to the Board hearing, the
    appellant was described as being mildly irritable and raising his voice from
    time to time. Although he did not utter direct threats, his emotional reaction
    was described as sometimes intense and capable of making people feel
    intimidated. However, the report notes that despite the negative emotions, he
    did not lose his behavioural control or become physically aggressive and that
    he repeatedly asserted that he did not want to resort to violence and that he
    did not intend to hurt or harm others. When canvassed as to his understanding
    of his illness, the appellant denied having paranoid schizophrenia and denied
    being agitated or irritable when he did not take his medications.

[30]

The
    appellant scored a 29 out of a possible 40 points on the HCR-20 Structured
    Guide for the Assessment of Violence Risk. This was an increase from 25/40 from
    the previous year. When scored under an absolute discharge, the appellant
    scored 32/40. The Hospital Report indicated this was likely an underestimation
    as clinical items were not reflected in the score and stated that the appellants
    HCR-20 profile is best described as high.

[31]

Under
    the heading clinical risk factors/re-offence scenario, the Hospital Report
    stated the following:

Clinical or dynamic
risk factors which may serve as proximal
    indicators for violent re-offence include active symptoms of his schizophrenia,
    non-compliance with medications, substance use, interpersonal conflict with
    others, unstructured and supervised daytime routine and exacerbation of
    underlying personality traits
.

If [the appellant] is to reoffend, this will likely occur in
    the context of exposure to destabilizers and stressors, and a return to his
    historical path during noncompliance with medications and substance use leading
    to psychosis. In such situations his risk will be actualized. While psychotic
    and/or acutely intoxicated, [the appellant] has engaged in physically violent
    and sexually disinhibited behaviours.
[The appellant] has indicated that he
    will not take medication if he is not under ORB. He has used cannabis and
    intends to regularly use cannabis.

[Emphasis added.]

[32]

The
    hospital team concluded that the appellant continues to remain a significant
    threat to the safety of the public. It summarized its conclusion as follows:

[The appellants] actuarial assessment of static long-term risk
    for violent recidivism is best described as moderate.
His profile on the
    HCR-20 is best described as high. In addition, he has several salient clinical
    risk factors. Taken in totality, the clinical team opines that [the appellant]
    continues to remain a significant threat to the safety of the public as defined
    in section 672.5401
. [Emphasis added.]

(ii)     Dr. Lius evidence

[33]

In
    his testimony before the Board, Dr. Liu confirmed his opinion that the
    appellant represents a significant threat to the safety of the public. When
    asked by counsel for the hospital to briefly summarize his reasons for that opinion,
    Dr. Liu said the following:

Basically, since the discharge [from hospital at the end of
    October 2016], [the appellants]
mental condition has remained relatively
    stable but he still present with overt delusional beliefs
regarding
    grandiosity
and paranoia, and he believes there is a conspiracy going on
    against him, and he related many paranoia ideation and delusions
. And
    although he did not have any valid source, but
we need to take into
    consideration he is now under treatment, under regular treatment
. Recently,
    the medication has been changed from Paliperidone to Abilify, which  so I was
    aware of the fact, in the past [the appellant] has been very stable for two to
    three years when he was receiving Clozapine. And at that time, he was described
    to manifest minimal delusional ideations, and his emotional motivation was very
    stable.
But however, as soon as he was discharged into the community, and
    the Clozapine was discontinued because of the compliance concerns, when he was
    back on depot [medication], even with the newer generation antipsychotics, you
    can see the overall baseline of his psychotic symptoms increase. And also, we
    can see, from time-to-time, when [the appellant] was under the influence of
    substances, when he was under some stress, his emotional motivation was not as
    ideal as when he was on Clozapine. So that speak to the fact, [the appellant]
    needs ongoing antipsychotic treatment to maintain the current level of mental
    stability
, and [the appellant] has been very consistent in saying he
    doesnt need any antipsychotic medication. If he is not ordered to take
    medication or not under ORB, he would not take any kinds of antipsychotic
    medications. And he didnt believe that would increase his risk of violence.
So,
    I was also of the opinion, given the level of insight and the clinical
    symptoms, and also the problematic substance use behaviour, all things together
    can all contribute to [the appellants] mental decompensation and it resulting
    in dangerous behaviour to the public.
[Emphasis added.]

[34]

When
    questioned by a legal member of the Board concerning whether the appellants
    delusions are harmful and when they had been acted on in a harmful way, Doctor Liu
    responded that the index offence was obviously under delusions. He noted that
    the appellant has been under continuous treatment with antipsychotics but that
    there were still occasional aggravations or paranoid ideation. He also said
    its a reasonable prediction[n] that the appellants medical condition will
    deteriorate further if he is not taking medications.

[35]

Further
    questioning proceeded as follows:

Q. Okay, so just to understand the,
whats concerning about
    the delusions,
am I right that its not so much the grandiose delusions,
    about Chrysler and Stephen King, and so on, but
more some sort of underlying
    paranoia

A.
Yes

Q.
That is delusional in nature
?

A.
Yes
.

Q. And has he acted on that paranoid delusional system since
    the index offences?

A.
He has been continuously accusing the hospital of being part
    of the conspiracy.

Q. Okay, so hes acted on it to make claims but not in to
    commit acts of violence or harm?

A.
No, he can be very abusive verbally
.

Q. So verbal abuse?

A.
And appear quite agitated. On several occasions, I was, I
    need to be usually aware of the possibility about further behaviour escalations
.

Q. Okay. Thank you and so, I guess my second to last question
    is what decompensation looks like for [the appellant], and how fast it might
    be? How it might take place?

A. [The appellant] come, the manifestation is quite
    complicated, intertwined, with his personality characteristics.
So, usually,
    [the appellant] will present with certain paranoia ideations, however, the
    emotion or intensity, the reaction to a set contents of paranoia contents might,
    might be different.
Yeah, for example, when he was under Clozapine, he
    dealt with the same delusional content. [The appellant] was much more
    emotionally modulated, and was not decided. But however, when he was out in the
    community, and
when the Clozapine was breach, he had two other
    antipsychotics, you can see the degree. The baseline of his emotional
    reactivity increased
.

Q. So, again, just the concrete question about decompensation,
    what it looks like and how quick it would be?

A. To be honest, I cannot predict how quick it can be. Because
    he has been consistently under supervision and medications.

Q. But you are content it would happen?

A. What would happen?

Q. Decompensation?

A. According to what happened in the past, historically.

[Emphasis added.]

The Reasons of the Majority of the Board

[36]

In
    the Analysis and Conclusion section of its reasons, the majority accepted the
    submission that the appellant continues to represent a significant threat to
    the safety of the public. The majority stated that they relied on the evidence
    of Dr. Liu and in the Hospital Report which meets the standard set out in
Winko
.

[37]

In
    setting out their analysis, the majority acknowledged that the appellant has been
    under the Boards jurisdiction for a lengthy period of time and that he has not
    exhibited violent behaviour even with his ongoing substance abuse. However, to support
    their conclusion, the majority relied on the following factors:

·

the appellants diagnoses;

·

the appellants psychiatric history and history of aggression
    towards his mother;

·

the extremely serious nature of the index offences;

·

the appellants many readmissions to hospital following positive
    tests for cannabis and associated deteriorations in his mental state;

·

the fact that the appellant has remained on antipsychotic
    medications throughout;

·

Dr. Lius evidence that the baseline of the appellants psychotic
    symptoms has increased with the switch to depot medication and that, when under
    stress, his emotional stability is not as good;

·

Dr. Lius evidence that the appellant continues to display
    underlying paranoia that is delusional;

·

the appellants position that if granted an absolute discharge he
    would cease all antipsychotic medication;

·

Dr. Lius evidence that, although he could not predict the speed
    of decompensation because the appellant has been on medication, based on past
    behaviour the appellant would decompensate without medication.

[38]

The
    majority concluded its reasons relating to the significant threat threshold as
    follows:

The Hospital Report notes that there has been no improvement in
    [the appellants] insight into his psychiatric illnesses, the Index Offences or
    his episodes of aggression when unwell. He maintains his belief that he suffers
    from PTSD and anxiety and that his mental state can be managed with medical
    marijuana with no risk of deterioration. He denies being agitated or irritable
    when he does not take medication and has no insight into the causal
    relationship between the Index Offences and his mental illness.

Given this conclusion, there is no basis for an Absolute
    Discharge.

The Reasons of the Minority of the Board

[39]

The
    minority of the Board concluded that the evidence adduced at the hearing did
    not support a finding that the appellant constitutes a significant threat
    within the meaning of the
Winko
standard. The minority emphasized that
    that standard requires that the threat posed must be more than speculative in
    nature; it must be supported by evidence. The evidence must demonstrate a
    foreseeable and substantial risk that the NCR would commit a serious criminal
    offence.

[40]

The
    minority acknowledged that the index offences were serious and violent.
    However, they observed that the offences were committed about 16 years
    previously and that, since then, there had been no instances of violent behaviour
    or violent reoffending. Further, they quoted the Hospital Reports statements
    that despite ongoing cannabis use and readmissions to hospital, the appellant
    had not lost his behavioural control or become physically aggressive and had
    repeatedly asserted that he did not want to resort to violence and denied
    having intention to hurt or harm others.

[41]

The
    minority noted that, in his evidence, Dr. Liu was unable to describe when or
    how the appellant might decompensate. Further, Dr. Liu could not link the
    appellants delusions of grandeur to an identifiable risk of harm to others or
    suggest how they might intensify and pose a risk without medication.

[42]

The
    minority concluded:

[The appellant] has been oppositional throughout his ORB
    history, has come to an impasse with most of his attending psychiatrists over
    the years, and is an unapologetic rule-breaker; for these reasons, he is not a
    particularly sympathetic candidate for absolute discharge. Nonetheless, the
    evidence that [the appellant] poses a significant threat of serious physical or
    psychological harm, within the meaning of Winko, does not cross the threshold
    required by law. For that reason [the appellant] must be given an absolute
    discharge.

Standard of Review

[43]

The
    standard of review of the Boards decision is prescribed by s. 672.78 of the
Criminal
    Code
:

672.78 (1) The court of appeal may allow an appeal against a disposition
    or placement decision and set aside an order made by the court or Review Board,
    where the Court of Appeal is of the opinion that

(a) is unreasonable or cannot be supported by the evidence;

(b) it is based on a wrong decision on a question of law; or

(c) there was a miscarriage of
    justice.

[44]

As
    noted in
Carrick (Re)
, 2015 ONCA 866, 128 O.R. (3d) 209, at para. 22,
    absent an error on a question of law or a decision that results in a
    miscarriage of justice, the court is required to defer to the Boards judgment,
    upholding it if it is reasonable.

[45]

Further,
    as the Supreme Court of Canadas decision in
Dunsmuir v. New Brunswick
2008 SCC 9, 1 S.C.R. 190, makes clear, reasonableness review begins from the
    premise that questions before specialized tribunals may not give rise to a
    single, correct answer. A range of reasonable decisions may be made in a
    particular context and that range may be more or less broad, depending on a
    number of considerations in all the circumstances:
Carrick
, at paras.
    23-24.

[46]

Finally,
    the court does not make its own judgment on the significant threat question and
    use that judgment as the benchmark for assessing the reasonableness of the
    Boards decision. Nor does this court re-weigh the considerations before the
    Board. The reasons for the Boards decision and the substantive decision
    reached by the Board must be considered together to determine whether an
    acceptable and defensible outcome has been reached:
Carrick
, at para.
    26.

Discussion

[47]

As noted above, the appellant maintains that the majority of the Board
    (and in effect Dr. Liu) erred by equating the appellants lack of insight into
    his mental illness and the potential for decompensation with significant threat.
    The appellant does not challenge the reasonableness of the conclusion that he
    lacks insight into his mental illness or that there is a significant risk of
    decompensation in his mental state if he is granted an absolute discharge.
    However, he asserts that the majority erred by failing to make a finding
    concerning whether those factors would lead to a foreseeable and substantial
    risk of serious physical or psychological harm to members of the public. He
    argues that the evidence before the Board was not capable of supporting such a
    finding.

[48]

I
    would not accept these submissions. It is clear that Dr. Liu and the Board were
    aware of the requisite standard. The majority of the Board commenced its
    analysis by referring explicitly, albeit without expressly stating, the test
    for significant threat articulated in
Winko
. In questioning, Dr. Liu
    noted that a significant threat was one which would cause physiological harm
    or physical harm. The Hospital Report specifically referenced the definition
    of significant threat as being set out in s. 672.5401 of the
Criminal Code
.

[49]

Regrettably,
    Dr. Liu was not pressed on how decompensation would manifest itself, or its
    foreseeable consequences, either in his evidence in-chief or when questioned by
    the legal member of the Board.
[1]
Nonetheless, he provided evidence that the appellant continues to suffer from
    delusional paranoia,
[2]
and that his response to such delusions depends largely on his treatment. While
    on Clozapine, the appellant dealt with the same type of delusions in a more
    emotionally modulated manner. When he was in the community and stopped taking
    Clozapine, the baseline of his emotional reactivity increased. This
    necessitated re-admission on several occasions. In Dr. Lius opinion, the
    nature of the appellants illness, coupled with his lack of insight into it and
    his use of marijuana, could contribute to mental decompensationresulting in
    dangerous behaviour to the public.

[50]

Further,
    Dr. Lius oral evidence must be viewed in the context of the Hospital Report to
    which he was a co-signatory. The Report noted the appellants actuarial risk
    assessments and clinical risk factors. His Structured Guide for the Assessment
    of Violence Risk was considered high. The Report itemized a number of
    destabilizers that the treatment team concluded would actualize the appellants
    risk. As a result of these factors, the clinical team was of the unanimous
    opinion that the appellant continued to meet the definition of significant
    threat set out in s. 672.5401.

[51]

The
    fact that Dr. Liu could not articulate how quickly the appellant would
    decompensate after going off antipsychotic medications or precisely how the
    decompensation would manifest itself does not make the majoritys acceptance of
    the opinions of Dr. Liu and the clinical team unreasonable. Doctor Liu
    explained that the nature and speed of the appellants potential decompensation
    was difficult to predict, [b]ecause [the appellant] has been consistently
    under supervision and medications.

[52]

In
    oral argument, the appellant acknowledged that the fact that he committed serious
    criminal offences while ill and un-medicated gives rise to a common sense
    inference of the possibility that he will do so again. However, he argued that
    the strength of that inference is diminished because of the significant length
    of time during which he has not displayed any violent or sexually inappropriate
    behaviour.

[53]

In
    my view, however, that was an issue for the appellants treatment team to
    assess and ultimately the Board to determine.

[54]

Both
    the Hospital Report and Dr. Liu acknowledge that the appellant has not engaged
    in violent or sexually inappropriate behaviour while under the jurisdiction of
    the Board. But they point to the index offences, which were very serious; the
    fact that the appellant has been treated with antipsychotic medications
    throughout the period he has been under the jurisdiction; the fact that the
    appellant still manifests symptoms of his illness, including paranoid delusions;
    the fact that the appellant has been readmitted to hospital when he showed
    signs of decompensation; and his actuarial risk assessment and his clinical
    risk factors, to conclude that the appellant continues to pose a significant
    risk.

[55]

Although
    it might have been preferable for the Board to more fully engage with Dr. Liu
    concerning the ongoing likelihood of the appellant committing a serious crime
    given the passage of time without incident, I am unable to say that that the
    majoritys acceptance of his opinion constituted legal error or was
    unreasonable.

[56]

The
    appellant also relied on this courts decisions in
Ferguson
and
Re
    Pellet
2017 ONCA 753, in support of his position that the majoritys
    decision was unsupported by the evidence. In my view, however, those decisions
    are distinguishable from this case. Neither involved an index offence giving
    rise to a risk of dangerousness similar to the index offences in this case. And
    unlike
Pellet
, the index offence in this case was not an isolated
    one-off. Rather, it involved a series of violent offences (attack on
    roommate, kidnapping and assault of mother, assault on father) that persisted
    over a period of time and had been preceded by assaultive behaviour towards both
    the appellants mother and wife, together with longstanding sexually
    inappropriate behaviour.

[57]

I
    would not give effect to this argument.

[58]

I
    turn to the appellants second argument that the majority erred in failing to
    consider the civil mechanisms for controlling risk under the
Mental Health
    Act
. It is implicit in the majoritys reasoning that they did not consider
    those mechanisms adequate to control the appellants risk in the event of an
    absolute discharge. Unlike with a conditional discharge, the appellant would
    not be reporting regularly to a psychiatrist. The evidence before the Board was
    clear that the appellant leads an isolated life. In these circumstances, there
    would be no one monitoring the appellants mental status who could invoke the
    civil mechanisms in the event of decompensation in the appellants mental state
    following any termination of antipsychotic medication.

[59]

I
    would not give effect to this argument.

Disposition

[60]

Based
    on the foregoing reasons, I would dismiss the appeal. However, I would urge the
    Board at the appellants next annual review to more fully engage with the issues
    of the significance of the appellants continuing non-violent behaviour
    (assuming it continues), the passage of time and the correlation between these
    factors and the risk of serious harm in the event of decompensation.

Released:

GS                                         Janet Simmons
    J.A.

MAR 27 2018                         I agree G.R. Strathy
    C.J.O.

I agree
    C.W. Hourigan J.A.

[1]
The legal member of the Board asked Dr. Liu a two-part question: what
    decompensation looks like and how quickly it would take place. When asked the
    two-part question a second time, Dr. Liu responded specifically to how quickly
    it would take place. He did not respond specifically to what it would like.
    Unfortunately, no one followed up on that omission.

[2]
Contrary to the reasons of the minority of the Board, it is the appellants
    paranoid delusions that Dr. Liu believed were of concern.


COURT OF APPEAL FOR ONTARIO

CITATION: Meridian Credit Union Limited v. Bishara, 2018 ONCA
    201

DATE: 20180302

DOCKET: C64237

Feldman, Benotto and Brown JJ.A.

BETWEEN

Meridian Credit Union Limited

Plaintiff

(Respondent)

and

Kiky
    Arraf Bishara aka

Kiky Arraf-Bishara

Defendant

(Appellant)

Kevin Scullion, for the appellant

Alyssa Adams, for the respondent

Heard and released orally: February 27, 2018

On appeal from the judgment of Justice Theresa Maddalena of
    the Superior Court of Justice, dated July 27, 2017.

REASONS FOR DECISION

[1]

The appellant appeals the decision of the motion judge granting summary
    judgment on a guarantee. The appellants defence was that a representative of
    the Credit Union represented to her when she signed the guarantee that she
    would only be responsible for 25% of the entire loan. The documents she signed
    however, clearly state that the guarantee is unlimited.

[2]

While the Credit Union did not file an affidavit from the former
    employee who was alleged to have made the representation, neither did the
    appellant file that evidence or evidence from her husband who was also at the
    meeting.

[3]

The motion judge rejected the appellants evidence of the alleged
    misrepresentation and granted summary judgement on the guarantee in accordance
    with its terms.

[4]

The motion judge made no error in doing so. She was entitled to find,
    based on the record before her, that there was no genuine issue for trial.
    There would be no purpose in this court ordering a trial. Any witness that
    could be called at a trial could have been brought forward on the motion.

[5]

The appeal is dismissed, with costs fixed in the amount of $7,500,
    inclusive of disbursements and HST.

K.
    Feldman J.A.

M.L.
    Benotto J.A.

David
    Brown J.A.