COURT OF APPEAL FOR ONTARIO

CITATION: Huang v. Fraser Hillary's Limited, 2018 ONCA 527

DATE: 20180608

DOCKET: C63576 and C63592

Hourigan, Benotto and Fairburn JJ.A.

BETWEEN

Eddy Huang

Plaintiff

(Appellant/Respondent)

and

Fraser Hillarys Limited
and David Hillary

Defendants

(Respondents/
Appellant
)

Michael S. Hebert and Cheryl Gerhardt McLuckie, for the
    appellant/respondent, Eddy Huang

Jonathan OHara and Michael Rankin, for the appellant/respondent,
    Fraser Hillarys Limited

Christopher Reil and Jeremy Rubenstein, for the
    respondent, David Hillary

Heard: May 2, 2018

On appeal from the judgment of Justice Pierre E. Roger of
    the Superior Court of Justice, dated March 6, 2017, with reasons reported at
    2017 ONSC 1500.

Hourigan J.A.:

Introduction

[1]

There are two appeals from the judgment of the trial judge following an eight-day
    trial. The primary issue for determination at trial was liability for the
    remediation of the environmental contamination of real property owned by Eddie
    Huang.

[2]

The trial judge held Fraser Hillarys Limited (Fraser) liable in
    nuisance and pursuant to s. 99 of the
Environmental Protection Act
,
    R.S.O. 1990, c. E.19 (the
EPA
). He awarded over $1.8 million in
    damages for the remediation of Mr. Huangs properties. The action against David
    Hillary was dismissed.

[3]

On appeal, Fraser submits that the trial judge erred in finding it liable,
    both in nuisance and under the
EPA
,
for the remediation costs.
    Mr. Huang also appeals. His primary submissions are that the trial judge erred
    in failing to find Fraser negligent, in failing to find Mr. Hillary liable in
    nuisance or in negligence, and in his assessment of damages.

[4]

For the reasons that follow, I would dismiss both appeals.

Facts

[5]

Fraser owns 1235 Bank Street in Ottawa. It is a commercial property and
    Fraser has operated a dry cleaning business there since 1960. Mr. Hillary is
    the president and sole director of Fraser. He is also the owner of 36 Cameron
    Avenue, a residential property that abuts 1235 Bank Street.

[6]

Mr. Huang is the owner of 1255 and 1263 Bank Street. 1235, 1255, and
    1263 Bank Street are adjacent to one another, in that order. 36 Cameron Avenue
    does not abut any of Mr. Huangs lands.

[7]

Fraser does not dispute that during the period 1960 to 1974, solvents
    used in its dry cleaning operations spilled onto the ground. Tetrachloroethylene
    (PCE) and trichloroethylene (TCE) were ingredients in the dry cleaning
    solution that Fraser used during this time. The environmental danger caused by
    these chemicals was unknown at that time. In 1974, Fraser purchased new dry
    cleaning equipment, which along with new practices significantly reduced the
    amount of PCE and TCE used. It also virtually eliminated the potential for
    spills.

[8]

Mr. Hillary purchased 36 Cameron Avenue in 1986. He was unaware of any
    contamination at that property or at 1235 Bank Street at the time.

[9]

In 2002, Mr. Huang entered into a 20-year lease with Tim Hortons for
    1263 Bank Street. There is also a long-term lease in place on 1255 Bank Street
    that expires in 2024. Despite the existence of these long-term leases, Mr.
    Huang wanted to develop his properties. In 2002, he approached his bank about
    arranging financing for the project. As part of the financing process, a Phase
    I environmental report was obtained. That report concluded that the properties
    were likely contaminated.

[10]

A
    Phase II environmental report of Mr. Huangs properties confirmed that the soil
    and groundwater have a concentration of TCE that exceeds the Ministry of the Environment
    and Climate Change (MOE) standards. Frasers dry cleaning operations at 1235
    Bank Street are the source of the contamination. The report recommended that
    the contaminated soil be removed, with remediation to be done at Frasers
    property. Failing remediation of Frasers property, the report called for a
    barrier system to be installed along the common property boundary. The report
    also recommended remediation of the groundwater.

[11]

It
    is common ground that the dry cleaning solvents have created a source zone that
    contains free phase (undissolved) PCE. The source zone is located on parts of
    1235 Bank Street, 36 Cameron Avenue, and 1255 Bank Street. When groundwater
    flows through the source zone it spreads the contaminant particles. The general
    direction of the groundwater is southeast from 1235 Bank Street and 36 Cameron
    Avenue toward Mr. Huangs properties and onward to the Rideau River.

[12]

In
    January 2003, Mr. Huang put Fraser on notice about the contamination of his
    properties. Fraser retained an engineering firm that prepared a remedial action
    plan in February 2004, but it was not immediately implemented.

[13]

The
    MOE began communicating with Fraser in 2006. There followed various
    interactions between the MOE and Fraser over the next seven years. By 2013, the
    MOE concluded that it was not receiving significant communications from Fraser
    and that its remedial efforts to date did not appear to have had a significant
    impact on the contamination. Consequently, the MOE issued a Provincial
    Officers Order on April 15, 2013, which required Fraser to retain a qualified
    person and submit a detailed work plan to remediate the contamination.

[14]

A
    further Provincial Officers Order was issued on July 23, 2014. That order
    provided that by August 31, 2015, Fraser was to produce a report addressing the
    interpretation of soil vapour monitoring results, interpretation of groundwater
    and soil monitoring results, and identification of the proposed measures for
    ongoing assessment and remediation. Fraser did not comply with that order and the
    MOE initiated enforcement proceedings against Fraser under the
EPA
.

Issues

[15]

These
    appeals raise the following issues:

1.

Did the trial judge err in finding Fraser liable in nuisance?

2.

Did the trial judge err in not finding Mr. Hillary liable in nuisance?

3.

Did the trial judge err in finding Fraser liable under s. 99 of the
EPA
?

4.

Did the trial judge err in not finding Fraser and/or Mr. Hillary
    negligent?

5.

Did the trial judge err in not finding Fraser liable in trespass?

6.

Did the trial judge err in his assessment of damages?

Analysis

(1)

Nuisance - Fraser

[16]

Fraser
    makes a very narrow point on this ground of appeal. Its argument is that the
    trial judge erred in law by failing to consider whether the environmental
    damage was reasonably foreseeable as part of his nuisance analysis. The trial
    judge found Fraser liable in nuisance, having rejected Frasers arguments that
    (1) Mr. Huang had not established either physical damage to his property or
    interference with the enjoyment of his land, and (2) any interference with the
    use of Mr. Huangs land was not unreasonable in the circumstances: see paras.
    118-43.

[17]

According
    to Fraser, foreseeability of harm is a constituent element of the tort of
    nuisance. Counsel for Fraser concedes two things in oral argument: (a) he did
    not ask the trial judge to find that reasonable foreseeability is an element of
    nuisance; and (b) there is no authority binding on this court that supports
    that proposition. He relies instead on statements made in Canadian tort texts
    that foreseeability is required. Specifically, he cites Allen M. Linden and
    Bruce Feldthusen,
Canadian Tort Law
, 10th ed. (Markham: LexisNexis
    Canada, 2015)  at p. 638; Lewis N. Klar and Cameron S.G. Jefferies,
Tort
    Law
, 6th ed. (Toronto: Thomson Reuters, 2017) at pp. 755, 876; and Philip H.
    Osborne,
The Law of Torts
, 5th ed. (Toronto: Irwin Law, 2015) at p.
    416.

[18]

I
    note that where the texts rely on judicial authorities, they cite cases from
    England and New Zealand in support of their contention regarding foreseeability.
    Reasonable foreseeability of harm has been accepted as part of British law in
    respect of nuisance and in the
Rylands v. Fletcher
context:
Cambridge
    Water Company v. Eastern Counties Leather plc
, [1994] 2 A.C. 264 (H.L.);
Transco
    plc v. Stockport Metropolitan Borough Council
, [2003] UKHL 61, [2004] 1
    All E.R. 589; and
Northumbrian Water Ltd. v. Sir Robert McAlpine Ltd.
,
    [2014] EWCA Civ 685.  The
Northumbrian Water
decision may go so far as
    to require foreseeability of the escape itself:  Maria Hook, Reasonable
    Foreseeability of Harm as an Element of Nuisance (2016), 47 VUWLR 267 at p.
    269.

[19]

There
    has been mixed acceptance of the reasonable foreseeability requirement in this
    country.
[1]
In
Smith v. Inco
, 2011 ONCA 628, 107 O.R. (3d) 321 this court declined
    to decide whether foreseeability is a requirement under
Rylands v. Fletcher
.
    The court did observe, at paras. 109 and 110, that while to require
    foreseeability of the escape itself would be to merge the rule in
Rylands
    v. Fletcher
with liability in negligence, compelling reasons exist to
    require foreseeability of damage as a necessary element.

[20]

In
Windsor v. Canadian Pacific Railway Ltd.
, 2014 ABCA 108, 371 D.L.R. (4
th
)
    339, the Alberta Court of Appeal followed the
Inco
decision in upholding
    the decision of the case management judge to dismiss a class proceeding claim under
    the doctrine in
Rylands v. Fletcher
because the element of
    foreseeability could not be established. Like the present appeal, TCE had been
    used in accordance with best practices at the time. The court noted, at para.
    21, that the appellants evidence that it was not foreseeable that the migration
    of TCE would cause harm to neighboring lands was uncontradicted on the record.
    Yet, without discussing whether foreseeability was a necessary element of the
    nuisance claim, the court permitted certain of the class claimants to pursue
    their nuisance claims.

[21]

The
    Supreme Court of Canada recently considered the
elements of private nuisance i
n
Antrim Truck
    Centre Ltd. v. Ontario (Transportation)
, 2013 SCC 13, [2013] 1 S.C.R. 594.
    Justice Cromwell, writing for the unanimous court, answered that question as
    follows, at para. 18:
[A] nuisance
    consists of an interference with the claimants use or enjoyment of land that
    is both substantial and unreasonable. The court characterized this as a
    two-part test. Nowhere in its analysis did the court indicate that
    foreseeability is part of the tort.

[22]

While
    I acknowledge the divergence in British law and the fact that the law may be
    evolving in this country, in the absence of any binding Canadian authority I conclude
    that foreseeability is not a necessary part of the tort of nuisance in Canada.

[23]

I
    also fail to see the policy imperative for importing this additional
    requirement into our test for nuisance. The tort is a useful tool in the prosecution
    of environmental claims and is consistent with the Supreme Court of Canadas espousal
    of the principle that the polluter must pay: see
St. Lawrence Cement Inc.
    v. Barrette
, 2008 SCC 64, [2008] 3 S.C.R. 392, at para. 80. The addition
    of a foreseeability requirement blurs the distinction between negligence and
    nuisance. If we were to accept Frasers submission, the utility of the tort
    would be compromised. I would therefore reject this ground of appeal.

(2)

Nuisance - David Hillary

[24]

At
    the outset of the analysis of the potential personal liability of Mr. Hillary,
    it is important to recognize that he was sued only in his capacity as the owner
    of 36 Cameron Avenue and not as an officer or director of Fraser. The fact that
    he holds those positions is of no relevance to this case as pleaded. It is also
    important to note that 36 Cameron Avenue is enveloped by 1235 Bank Street and
    does not abut Mr. Huangs properties.

[25]

The
    theory of Mr. Huangs case against Mr. Hillary is that Mr. Hillary is liable in
    nuisance for the contamination emanating from 36 Cameron Avenue, even though
    that contamination does not travel directly from 36 Cameron Avenue to Mr.
    Huangs properties. In other words, Mr. Huangs position is that Mr. Hillary
    should be liable in nuisance by reason of the fact that he is an up-gradient polluter.

[26]

The
    trial judge noted that the claim against Mr. Hillary was based on his inaction
    since becoming aware that 36 Cameron Avenue was within the source zone. He
    found that Mr. Hillary became aware of this fact in 2007. The trial judge
    concluded that there was no evidence that the need for remediation at Mr.
    Huangs properties had become any worse since 2007. In addition, the trial
    judge found that there was nothing Mr. Hillary could have done at 36 Cameron
    Avenue that would change the fact that Mr. Huangs properties continue to be
    contaminated by PCE and TCE originating from Frasers property. In these
    circumstances, he dismissed the nuisance claim against Mr. Hillary on the
    ground that Mr. Huang had not established that any inaction on Mr. Hillarys
    part caused any substantial interference with Mr. Huangs properties: see
    paras. 144-55.

[27]

Mr.
    Huang submits that the trial judge erred in his analysis. He argues that he has
    met the test for nuisance, as he has suffered
an interference with his use and enjoyment of his land that
    is both substantial and unreasonable. In his submission, the tort is one of
    strict liability and Mr. Hillary as a polluter of his land must be held liable.

[28]

I would not give effect to this ground of
    appeal. The trial judges finding that
36 Cameron Avenue is not the source
    of the contaminant is entitled to deference. In my view, there was no error in
    the trial judges conclusion that causation had not been established and that
    Mr. Hillary did not subject
Mr.
    Huang to an unreasonable interference with his use and enjoyment of his
    properties. Accordingly, I would deny this ground of appeal.

(3)

Section 99 of the
EPA

[29]

Frasers
    submission is that the trial judge erred because he retrospectively applied
    Part X of the
EPA
. That part of the legislation deals with liability
    and other obligations as a consequence of spills. Fraser notes that Part X was
    not proclaimed into force until 1985. Because the spills on its property ceased
    in 1974, Fraser submits that the
EPA
can have no application. I would
    not give effect to this ground of appeal.

[30]

The
    relevant sections of the
EPA
to consider in analyzing this submission
    are as follows:

93(1) The owner of a pollutant and the person having
    control of a pollutant that is spilled and that causes or is likely to cause an
    adverse effect shall forthwith do everything practicable to prevent, eliminate
    and ameliorate the adverse effect and to restore the natural environment.

* * *

99(2) Her Majesty in right of Ontario or in right of
    Canada or any other person has the right to compensation,

(a) for loss or damage
    incurred as a direct result of,

(i) the spill of a
    pollutant that causes or is likely to cause an adverse effect,

(ii) the exercise of
    any authority under subsection 100(1) or the carrying out of or attempting to
    carry out a duty imposed or an order or direction made under this Part, or

(iii) neglect or
    default in carrying out a duty imposed or an order or direction made under this
    Part;

(b) for all
    reasonable cost and expense incurred in respect of carrying out or attempting
    to carry out an order or direction under this Part,

from the owner of the pollutant and the
    person having control of the pollutant.

[31]

In
    my view, the trial judge did not retrospectively apply the
EPA
. Time
    does not freeze in 1974 for the purposes of liability under s. 99(2). Accepting
    for the purposes of this argument that the spills ceased in that year, there
    was an ongoing obligation under s. 93 of the
EPA
to remediate the
    damage. That remediation has not been done. Therefore, there is liability under
    s. 99(2)(a)(i) and (ii) because Fraser has not fulfilled a duty imposed on it
    under Part X of the
EPA
. In short, while the spills may have occurred
    before Part X of the
EPA
was enacted, Frasers obligations under that
    part of the legislation are ongoing.

[32]

Fraser
    relies upon this courts decision in
McCann v. Environmental Compensation
    Corp.
, 1990 CarswellOnt 213 (C.A.) in support of its submission that spills
    that occurred prior to 1985 cannot be the subject of a claim under Part X of
    the
EPA
. In my view, the circumstances of
McCann
are
    distinguishable from the case at bar. In
McCann
, the issue for the
    court was whether fresh evidence should be admitted in order to assert a claim
    against a compensation fund for allergic reactions resulting from a spill. In
    the courts short endorsement, there is no reference to an ongoing obligation
    to remedy a spill by the polluter as is present in the current case. That
    ongoing obligation renders this case distinguishable from
McCann
.

(4)

Negligence

[33]

With
    respect to negligence, the trial judge found that Fraser and Mr. Hillary did
    not breach the standard of care until 2013: see paras. 165 and 168. This was a
    finding of mixed fact and law available to him on the evidence. I cannot
    identify any palpable and overriding error in the trial judges analysis and
    thus it is owed deference by this court.

[34]

The
    trial judge then reviewed the evidence regarding the contamination of Mr.
    Huangs properties. He concluded that there had been no appreciable increase in
    contamination since 2013: see paras. 168-69. This was also a factual finding
    open to him on the evidence and there is no basis for appellate interference.

[35]

The
    trial judge concluded that causation had not been established given that there
    had been no increase in contamination during the relevant time that would have
    any impact on the requirement for remediation or its associated costs. This
    conclusion flowed logically from his findings regarding the date of the breach
    and the absence of increased damage. I would not disturb his conclusion.

(5)

Trespass

[36]

In
    his factum, Mr. Huang submits that the trial judge erred in not finding Fraser
    liable in trespass. Mr. Huangs counsel did not vigorously press this argument
    in his oral submissions. In any event, I would not give effect to this ground
    of appeal.

[37]

The
    trial judge correctly identified that a direct physical intrusion onto Mr.
    Huangs properties was required in order to establish a trespass. He found that
    the intrusion was not direct because the contaminant entered into the ground at
    1235 Bank Street, filtered down and was then carried to Mr. Huangs properties
    in the groundwater: see paras. 49-56. This was a finding of mixed fact and law
    open to the trial judge.

(6)

Damages Assessment

[38]

Mr.
    Huangs experts, David Reynolds and Brian Byerley, provided the court with
    eight different remediation strategies for the purposes of assessing damages.
    Neither Fraser nor Mr. Hillary filed any expert evidence on damages.

[39]

Generally,
    the scenarios presented by Mr. Byerley were far more costly than the estimates
    provided by Dr. Reynolds. The trial judge preferred the scenarios of Dr.
    Reynolds. He noted that Dr. Reynolds had superior qualifications and testified
    in a fair and impartial manner that should be a model for all expert witnesses:
    see paras. 194-95.

[40]

The
    trial judge considered all of the remediation strategies and rejected those
    that called for the remediation of all of the surrounding properties. He found that
    those strategies were impractical because they would rely on Fraser to
    remediate its property and would also require remediation of properties belonging
    to non-parties to the litigation: see paras. 177-79.

[41]

The
    trial judge also rejected Mr. Huangs preferred strategies that called for
    excavation of contaminated soil during the redevelopment process. He was not
    satisfied that the redevelopment could begin before the expiry of the last
    lease in 2024. In his view, these strategies would overcompensate Mr. Huang, as
    they were not discounted for time. The trial judge also expressed concerns
    regarding whether the proposed underground parking structure would occupy the
    entire site: see para. 191.

[42]

The
    remediation strategies that most appealed to the trial judge were the ones that
    involved isolating Mr. Huangs properties. He found that these were the most
    likely to place Mr. Huang in the position he would have been in had the
    contamination not occurred. The trial judge selected remediation strategy GS-2
    proposed by Dr. Reynolds. Its cost was $1.21 million and it called for the
    installation of a ZVI barrier, ZVI injections, bioremediation of the down
    gradient plume on Mr. Huangs lands, and on-going monitoring. It required eight
    to ten years to fully implement, which was consistent with Dr. Reynolds'
    evidence that a longer remediation timeframe is appropriate where there is no
    immediate health and safety threat. The trial judge found that there was no
    evidence that this strategy would interfere with the redevelopment of the properties:
    see paras. 180, 187-92.

[43]

In
    costing the GS-2 strategy, Dr. Reynolds assumed that Mr. Huangs properties
    would retain their commercial zoning. He therefore used a commercial standard
    of remediation, which is less expensive than a residential standard. The trial
    judge concluded that there should be an adjustment because the evidence was
    that the properties highest and best use would be a commercial and residential
    mix. He increased the cost of the GS-2 strategy by $222,500 to reflect a
    residential standard. In addition, he added a $200,000 contingency for the
    repair or replacement of the barrier, and $201,726.71 for the costs already
    expended on experts and engineers. The final amount awarded was $1,834,226.71:
    see paras. 196-209.

[44]

Mr.
    Huang submits that the trial judge erred in his damages assessment because he chose
    a remediation strategy and then adjusted it without an evidentiary basis.
    According to Mr. Huang, this resulted in the trial judge accepting a
    remediation strategy that was not advanced at trial.

[45]

Trial
    judges are owed considerable deference in their assessment of damages. Appellate
    interference with a damages award is limited to situations where the trial
    judge made an error in principle, misapprehended the evidence, failed to
    consider relevant factors, considered irrelevant factors, made an award without
    any evidentiary foundation, or otherwise made a wholly erroneous assessment of
    damages:
TMS Lighting Ltd. v. KJS Transport Inc.
, 2014 ONCA 1, 314
    O.A.C. 133, at para. 60.

[46]

In
    the case at bar, the trial judge carefully considered the evidence and
    determined what he felt was the appropriate figure for damages. He was entitled
    to reject the damages scenarios that he felt were unsuitable in the
    circumstances.

[47]

This
    was not a case where the trial judge assessed damages without regard to the
    evidence at trial or based on a misapprehension of the evidence. His assessment
    was grounded in Dr. Reynolds testimony and the trial judge did not err in
    accepting the GS-2 scenario. The experts were examined and cross-examined
    regarding the cost adjustments that would have to be made in order to target
    different standards of remediation in their various scenarios. It was open to
    the trial judge to simply adopt the GS-2 cost of $1.21 million and make no
    adjustment for the increased costs to remediate to a residential standard. He
    chose, instead, to increase the cost based on evidence about upward adjustments
    for other similar remediation alternatives in order to compensate Mr. Huang for
    the increased costs of remediating to a residential standard. I see no palpable
    and overriding error in that analysis.

[48]

In
    summary, I am not satisfied that there is any basis for appellate interference
    with the trial judges assessment of damages.

Disposition

[49]

I
    would dismiss both appeals. Given the divided success between Fraser and Mr.
    Huang, I would not award costs to either party. Mr. Hillary has been entirely
    successful on the appeals and is entitled to his costs of the appeals payable
    by Mr. Huang. I would fix those costs in the all-inclusive sum of $10,000.

Released: CWH JUN 8 2018

C.W. Hourigan J.A.

I agree. M.L. Benotto J.A.

I agree. Fairburn J.A.

[1]

There is some Superior Court jurisprudence in this province
    that has held or suggested that foreseeability is an element of the tort of
    nuisance: see for example,
Durling v. Sunrise Propane Energy Group Inc.
,
    2013 ONSC 5830, 315 O.A.C. 246;
Sorbam Investments Ltd.
    v Litwack
, 2017 ONSC 706, 276 A.C.W.S. (3d) 852
    (appeal dismissed on unrelated grounds:
2017 ONCA 850, 288 A.C.W.S. (3d)
    677)
. The reach of these cases is arguably limited to their specific
    circumstances, and in any event they are not binding on this court.


COURT OF APPEAL FOR ONTARIO

CITATION: Jackson (Re), 2018 ONCA 560

DATE: 20180618

DOCKET: C65115

Watt, van Rensburg and Fairburn JJ.A.

IN THE MATTER OF:  Jesse Russell Jackson

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jill Gamble, for the appellant, Jesse Jackson

Megan Petrie, for the Attorney General of Ontario

James Thomson, for Waypoint Centre

Julie Zamprogna, for Southwest Centre for Forensic
    Mental Health Centre

Heard and released orally: June 12, 2018

On appeal against the disposition of the Ontario Review
    Board dated, February 16, 2018.

REASONS FOR DECISION

[1]

The appellant was found not criminally responsible on account of mental
    disorder on a number of charges which occurred over a one-week period in
    September of 2017. Among the offences were break, entry and commit an
    indictable offence; assault with a weapon, uttering threats; escaping lawful
    custody, robbery and several counts of breach of probation. The appellants
    psychiatric diagnoses are bipolar II disorder and substance abuse disorder.

[2]

On February 16, 2018 the Ontario Review Board ordered that the appellant
    be detained at the Southwest Centre for Forensic Mental Health Care, St.
    Josephs Health Care London at, St. Thomas, with privileges up to and including
    living within the community in approved accommodation.

[3]

At the time of the disposition hearing the appellant was detained at
    Waypoint Centre for Mental Health Care. The Board ordered his detention to continue
    there until his transfer to the Southwest Centre could be accomplished. The
    interim order of detention at Waypoint included privileges up to and including
    grounds privileges, but not community living.

[4]

The appellant seeks a conditional discharge. He does not challenge the
    Boards conclusion that he remains a significant threat to the safety of the
    public within ss. 672.54 and 672.5401 of the
Criminal Code
. But he
    contends that on the evidence adduced at the hearing the Board unreasonably
    concluded that a detention order was necessary and appropriate in the
    circumstances. The Boards reasoning according to the appellant was flawed in
    two respects:

(i)      in
    assigning undue significance to the risk of illicit drug use and its sequelae including
    failure to take essential medication, decompensation and further criminality if
    conditionally discharged; and

(ii)      in
    taking into account the ease with which the appellant could be readmitted on
    decompensation as a factor in deciding whether to make a detention order or
    grant a conditional discharge.

[5]

In our view, this appeal fails.

[6]

Prior decisions of this court establish that the need to supervise a
    mental disorder detainees housing, as well as to readily readmit the detainee
    to hospital on decompensation, are relevant and appropriate considerations for
    a Board to take into account in deciding on a necessary and appropriate
    disposition.

[7]

In this case there was evidence from the appellants treating psychiatrist
    that the ability to approve housing and to expeditiously readmit the appellant
    to hospital on decompensation were essential tools not only to ensure public
    safety, but also to facilitate the appellants recovery.

[8]

The appellant has a serious and long-standing substance abuse problem, with
    few periods of abstinence and little insight about the relationship among
    substance abuse, mental health and criminality. Resumption of substance abuse
    is likely to produce rapid decompensation.

[9]

For these reasons, the appeal is dismissed.

David
    Watt J.A.
K. van Rensburg J.A.
Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: CITATION: Joshi v. Canadian Imperial Bank of
    Commerce, 2018 ONCA 537

DATE: 20180611

DOCKET: C64932

MacPherson, LaForme and Roberts JJ.A.

BETWEEN

Navin Joshi

Plaintiff (Appellant)

and

Canadian Imperial Bank of Commerce and Alan S.
    Freedman

Defendants (Respondents)

Navin Joshi, acting in person

Frank Cesario, for the respondents

Heard and released orally: June 8, 2018

On appeal from the
    order of Justice E. Ria Tzimas of the Superior Court of Justice, dated January
    26, 2018.

REASONS FOR DECISION

[1]

The appellant, Navin Joshi, appeals from the order of Tzimas J. of the
    Superior Court of Justice dismissing the appellants action as frivolous,
    vexatious and an abuse of process. The core of the motion judges reasoning
    was:

With the greatest of respect for the
    plaintiff, it is apparent on the face of this claim that the action before this
    court is frivolous, vexatious and an abuse of process. The action amounts to an
    effort to relitigate unsuccessful proceedings before the Canadian Human Rights
    Commission, the Canada Labour Code adjudicator, the Federal Court and the
    Federal Court of Appeal. I am unable to [see a] legitimate complaint at the
    heart of the plaintiffs claim. Instead, I see bald and extreme allegations of
    fraud, obstruction of justice, blackmail and criminal conduct which are
    thinly-disguised attacks on the validity of the decisions of the various noted
    bodies. They are advanced without any factual foundation.

[2]

The appellant appeals on three bases: (1) unlawful application of Rule
    2.1.01(1) of the
Rules of Civil Procedure
; (2) a malicious use of the
    words factual foundation, relitigation and thinly-disguised attack by the
    motion judge in her reasons; and (3) infringement of s. 15(1) of the
Charter
.

[3]

There is no merit in any of these grounds of appeal. The reality is that
    the appellant is seeking to relitigate the decisions of the courts and
    adjudicators in previous proceedings. Those proceedings have run their course.

[4]

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

J.C. MacPherson J.A.

H.S. LaForme J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kennelly v. Hashemi, 2018 ONCA 558

DATE: 20180618

DOCKET: C64513

Hoy A.C.J.O., Rouleau and Benotto JJ.A.

BETWEEN

Christopher Kennelly and
    Jupiter Equities, LLC

Respondents

and

Hassan Hashemi

Appellant

Hassan Hashemi, self-represented

Scott W. Beattie, for the respondents

Heard: June 11, 2018

On appeal from the
    judgment of Justice R.A. Lococo of the Superior Court of Justice, dated September
    26, 2017.

REASONS FOR DECISION

[1]

The appellant, Hassan Hashemi, appeals the judgment of the application
    judge declaring that he is in breach of the agreement dated January 26, 2017
    (the Agreement) for the sale to and purchase by the respondents of a property
    in Niagara-on-the-Lake (the Property); and that the respondent, Jupiter
    Equities, is entitled to the return of the deposit paid under the Agreement.

[2]

On the court day before the appeal was heard, the appellant advised that
    he would seek a 60-day adjournment of the appeal to obtain transcripts and hire
    counsel. He renewed this request at the opening of the hearing. The respondents
    opposed his request for an adjournment.

[3]

After hearing submissions from the parties, we declined to grant the
    adjournment sought.

[4]

The appellant was aware since at least March 14, 2018 that his counsel
    would seek to be removed from the record if he were not paid forthwith. The
    appeal was originally scheduled to be heard on April 25, 2018. Before removing
    himself from the record on April 26, 2018, appellants counsel secured an
    adjournment to todays date to provide the appellant with time to retain new
    counsel or to prepare to represent himself. Counsel had filed and served a
    factum on behalf of the appellant before he obtained an order removing him from
    the record.

[5]

After his counsel removed himself from the record, the appellant filed
    notice that he would represent himself. The appellant submitted that he would
    prefer to retain counsel but that prospective counsel required more time to
    prepare and to obtain transcripts. He advised that if the requested adjournment
    were granted, he proposed to retain the counsel who represented him on the
    application below.

[6]

The appellant provided no evidence of any steps taken to retain counsel,
    his ability to retain counsel, or that counsel on the application is prepared
    to act for him. This absence of evidence was significant given the several
    changes of counsel in the period leading up to the scheduled closing date of
    the transaction. Further, given the arguments in his factum and the fact that
    there was no oral evidence on the application, we did not see why transcripts
    of the attendance before the application judge were required for the appeal. In
    these circumstances, we concluded that a further adjournment was not
    appropriate and proceeded to consider the appeal on the merits.

[7]

The appellant was not the original vendor under the Agreement. He was
    the tenant in possession of the Property and the assignee of the third mortgage
    on the Property. The assignor of the third mortgage had served a notice of
    power of sale before the Agreement was concluded. The parties and the
    application judge accepted that the Agreement applied in the circumstances and,
    for the purposes of our analysis, we assume the same.

[8]

The appellant submits that the application judge erred in finding him in
    breach of the Agreement. He argues that he was entitled under the Agreement to
    close the sale of the Property at any time up to February 28, 2017, and,
    contrary to the application judges conclusion, he was therefore entitled to
    extend the closing date after failing to complete the transaction at the
    agreed-upon closing time of 2:30 p.m. on February 24, 2017, and did not breach
    the Agreement by failing to complete the transaction at that time.

[9]

We reject this argument.

[10]

The
    Agreement provided that the closing date was February 14, 2017, but that the
    seller had the option to delay the closing up to two weeks. The seller
    extended the closing date to February 23, 2017 and then the parties agreed that
    the closing time would be 2:30 p.m. on February 24, 2017 (the Closing Time).
    The appellant did not attempt to further extend the closing date before the
    Closing Time. The Agreement provides that time is of the essence and it is clear
    that the appellant was not ready, willing, and able to close at the Closing
    Time.

[11]

We
    agree with the application judge that the respondents ceased to be obligated to
    complete the purchase of the Property and were entitled to the return of their
    deposit when the appellant failed to complete the purchase and sale transaction
    at the Closing Time. The appellant was not entitled to unilaterally extend the
    closing date under the Agreement after he failed to complete the transaction at
    the Closing Time.

[12]

Accordingly,
    the appeal is dismissed. The respondents are entitled to their costs of the
    appeal, fixed in the amount of $10,000, including HST and disbursements.

Alexandra Hoy
    A.C.J.O.

Paul Rouleau J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kowalsky v. Asselin-Kowalsky, 2018 ONCA 539
DATE: 20180611

DOCKET: C64491

MacPherson, LaForme and Roberts JJ.A.

BETWEEN

Mark Kowalsky

(Respondent)
Applicant

and

Denise Asselin-Kowalsky

(Appellant)
Respondent

Patrick J. Kraemer, Justine A. Dalton and Michael A. van
    Bodegom, for the appellant

Kim S. Kieller and Ainsley Hunter, for the respondent

Heard: June 7, 2018

On appeal from the order of Justice
    Emile Kruzick of the Superior Court of Justice, dated December 7, 2007, and
    from the order of Justice Michael G.J. Quigley, dated March 27, 2008.

By the Court:

A.

Overview

[1]

The appellant appeals from the order
    finally determining the issues of equalization, child support and spousal
    support (the final trial order), and from the order dismissing her motion to
    set aside the final trial order. The appellant also seeks to file fresh
    evidence on appeal.

[2]

This appeal presents highly unusual
    circumstances in that it involves the appeal from orders that were granted over
    ten years ago to parties who have been separated for almost 15 years and whose children
    are now in their 30s. It is equally exceptional because the entire passage of
    time can be explained by the evidence of the appellants prolonged history of
    serious mental health issues, which this court accepted as the basis for
    granting the appellant an extension of time to appeal by order dated September
    29, 2017.

[3]

The appellant and the respondent were
    married for 22 years when they separated in 2003. The respondent instigated proceedings
    in 2005 to obtain a divorce and to determine finally the issue of equalization
    of the parties net family property, including the former matrimonial home. In
    response, the appellant raised claims for child and spousal support. The
    parties were granted a divorce in 2006.

[4]

The other issues finally came on for
    trial starting on November 27, 2007.  The appellant failed to appear and the
    trial proceeded in her absence, although her brother attended and advised that
    the appellants health did not permit her to attend. The appellants subsequent
    motion to set aside the final trial order was dismissed on March 27, 2008, when
    the appellant again failed to attend.

B.

Analysis

[5]

The appellant submits that she was
    unable to attend the trial or her motion because she was physically and
    mentally incapable of doing so. She maintains that in the circumstances,
    justice requires that the final trial order of the trial judge and the order of
    the motion judge be set aside. She asks that this court determine the issues
    that were before the trial judge or, alternatively, that there be a new trial.

[6]

We requested and the parties agreed to
    make submissions, first, on whether the decisions under appeal should be set
    aside, which included whether the appellants fresh evidence ought to be
    admitted, before proceeding with argument on the merits.

(1)

Motion to admit fresh evidence on
    appeal

[7]

The appellants fresh evidence consists
    of her affidavit in which she sets out her medical history, including various
    medical notes and records of her attending physicians, the affidavit of Dr. David
    A. Jones, who provided a psychological assessment of the appellant, the history
    of the proceedings, various financial statements and records, and the affidavit
    of Brad Borkwood, a chartered professional accountant and chartered business
    valuator, of Bluepoint Valuations Inc., who provided an earnings report about
    the respondent for support purposes.

[8]

We admit the appellants fresh evidence
    on appeal because it satisfies all of the criteria for its admission: it could
    not have been provided before trial; it is credible; and it is conclusive of
    the main issue on this appeal, namely, whether the justice of the case requires
    that the orders under appeal be set aside, in order to prevent an unjust
    result:
Sengmueller v. Sengmueller
, 1994
    CarswellOnt 375, at para. 34.

[9]

We do not accept the respondents
    submission that the issue to be determined is whether the trial judge and the
    motion judge erred by failing to adjourn the proceedings before them. The fresh
    evidence, by definition, was unknown to the presiding judges. The underlying
    merits of their orders are therefore largely irrelevant on this unusual appeal.
    The questions to be determined are whether, on the basis of the fresh evidence
    and the other evidence in the record, the appellant has excused her failure to
    attend the trial and her motion and, if so, whether the justice of the case
    requires that the orders under appeal be set aside on the basis of procedural
    fairness.

[10]

None of the fresh evidence could have
    been provided with due diligence prior to or at trial because, as this evidence
    (and the other evidence on the record) establishes, the appellant was mentally
    unable to attend. Moreover, the appellants litigation guardian and solicitor
    having been removed mere weeks before trial (respectively, on October 15, and
    November 14, 2007), the appellant lacked any means of assistance, other than
    her brother who, as noted earlier, attended at trial and advised the trial
    judge that the appellant could not attend because of her health. This situation
    continued past the motion date in March 2008 and persists to the present day.

(2)

Was the appellant incapable of
    attending the trial and her motion?

[11]

There is no issue that due to her
    scoliosis and a number of back surgeries, the appellant has been physically
    disabled from employment and in receipt of disability pension benefits since
    1999. The record, including the fresh evidence, demonstrates that the appellant
    has also struggled with serious mental health issues since at least 1995.

[12]

The respondent does not dispute that
    the appellant has suffered from various physical and mental disabilities over
    the years. In these proceedings, he instigated motions to have the appellant
    assessed and to appoint the Public Guardian and Trustee as her litigation
    guardian.

[13]

A year before trial, the respondent
    stated in an affidavit:

I have been increasingly concerned
    about the mental health of the respondent over the last three years of
    separation, as I see her withdraw from the world and retreat into her own
    little reality. Recent events have convinced me that she needs psychiatric help
    that she is not getting.

[14]

Nine months before trial, the
    respondent brought a motion seeking, among other relief, that the appellant
    submit to a mental examination by one or more health practitioners pursuant to
    section 105 of the
Courts of Justice Act
, R.S.O. 1990, c. C.43.

[15]

At trial, he produced photographs
    purporting to show that the appellant had randomly splattered paint all over
    the matrimonial home. Within days of the completion of trial and before the
    final trial order was released, the respondent assisted one of their sons in
    completing the necessary forms under the
Mental Health Act
, R.S.O. 1990, c. M.7, to have the appellant assessed in
    hospital.

[16]

However, the respondent disputes that
    the appellant lacked the capacity to attend trial or her motion. He submits
    that there is no formal opinion of incapacity by a qualified capacity assessor
    and that there is no evidence that the appellant was a special party under
    the
Family Law Rules
, O. Reg. 114/99.

[17]

We do not accept these submissions.

[18]

First, a fundamental purpose of the
    appellants fresh evidence is to explain her absence at trial and her motion. In
    order to succeed on her appeal, her explanation must be sufficiently cogent
    that it credibly excuses her absence and such that it would be procedurally
    unfair to allow the trial and motion orders to stand. The level of her
    inability to attend must obviously be serious to reasonably explain her absence.
    However, there is no requirement that she prove a certain level of incapacity including
    one that rises to the definition under the
Substitute Decisions Act
, S.O. 1992, C.30 or the
Mental Health Act
. We also note that incapacity for the purposes of the
    representation of a person under a disability under r. 7.04 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194,
    speaks to a person who is mentally incapable  in respect of
an
    issue
in the proceeding [
emphasis added]
, not
    necessarily for all purposes in all aspects of her life.

[19]

Second, the evidence establishes that
    the appellant was incapable of dealing with and attending at trial or her
    motion because of her mental health issues.

[20]

Crucially, within days of the trial,
    the appellant was found incapable. On December 5 and 7, 2007, the appellant was
    brought into hospital by police for mandatory assessment under the
Mental
    Health Act
.  On December 7, 2007, she was
    involuntarily admitted to Orillia Veterans Hospital where she remained until
    released on January 23, 2008. While in hospital, the appellant became aware of
    the final trial order and instigated a motion to set it aside on December 24,
    2007.  Obviously, the trial judge was not aware of this traumatic event nor of the
    appellants condition because her hospitalization occurred very soon after the conclusion
    of the uncontested trial.

[21]

Further, according to Dr. Jones
    assessment, the appellant meets the diagnostic criteria for Posttraumatic
    Stress Disorder (PTSD) and Major Depressive Disorder, Recurrent Severe, but
    those chronic depressive symptoms are part of the PTSD symptom complex and are
    secondary to that diagnosis.  Her chronic pain symptoms are described as a
    Somatic Symptom Disorder Persistent with Predominant Pain. His opinion is that
    her Paranoid Personality Disorder is a manifestation of extreme psychological
    defenses that have resulted from cumulative trauma over the years. Significantly,
    he opines that she has likely been chronically impaired from as early as 1995
    and remains highly impaired by her chronic PTSD and associated Major Depressive
    symptoms today. He estimates her current level of functioning is only 45-50 on
    a scale of 100. He concludes that the combined impairments of the appellants
    chronic physical problems and her chronic PTSD symptoms make it extremely
    difficult for her to take care of herself.

[22]

With respect to the appellants ability
    to deal with the extreme stress of the family law proceedings, Dr. Jones
    explains:

It is highly probable that she was in
    no state to understand the basic rules of the court and the steps she should
    have taken to protect her interests, including seeking spousal and child
    support and the equalization of net family property.  And even if she was able
    to maintain a rudimentary understanding of those rules, despite having PTSD,
    her paranoid defense system and her fear of confronting and standing up to the
    man whom she perceives as abusive could also have been powerful enough to
    emotionally paralyze her and prevent her from taking steps necessary to protect
    her interests.

[23]

We are satisfied that the appellant
    lacked the capacity to prepare for and attend at trial and the motion. The
    uncontested trial and motion resulted in orders that had disastrous financial consequences
    for the appellant. By the final trial order, she was required to make an
    equalization payment of $117,500.31 and her claims for spousal and child
    support were dismissed. The motion judge ordered that she pay additional monies
    to the respondent in the amount of $173,277.11.

[24]

After the trial in 2007 and until 2017,
    the appellants income flowed from a modest long-term disability pension
    ($1,664 to $2,989 monthly) and the Canada Pension Plan ($905 to $1,253 monthly).

[25]

By virtue of a report prepared by
    Bluepoint Valuations Inc., it appears that the respondents income as a family
    lawyer should have increased from $116,000 to $174,000 between 2003 and 2017. The
    respondent sold the former matrimonial home for $538,000 in 2015. He kept the
    entire proceeds of sale. He has remarried. He and his wife own a home in Midland
    and a condominium in a gated community in Costa Rica. They own three vehicles,
    two Mercedes cars and a BMW motorcycle.

[26]

For several years after the marriage
    ended, the appellant lived with her mother. Her mother died in December 2014. The
    respondent commenced garnishment proceedings to recover proceeds from the estate
    of her deceased mother. So far, he has obtained $248,609 and seeks to obtain an
    additional $100,000 plus from the garnishment proceedings against the
    appellant.

[27]

In our view, the outcome would likely
    have been dramatically different had the appellant been present at the trial
    and her motion, and had she been given the opportunity to challenge the
    respondents evidence with her own evidence and through cross-examination and
    submissions.

[28]

In particular, the appellant has raised
    serious issues as to the validity of the equalization of the former matrimonial
    home and the dismissal of her claim for spousal support. There is also a
    serious question as to whether the respondent gained an unfair advantage in
    both purchasing the matrimonial home at a greatly discounted value and
    receiving an award that the appellant pay for repair costs.   Similarly, on its
    face, the appellants claim for compensatory and needs-based spousal support is
    also a serious issue to be tried, given the length of the marriage, her
    financial support of the respondent through his education, her significant disability,
    and her impoverishment through supporting her two children without child
    support from the respondent.

[29]

As a result, in these highly unusual
    circumstances, justice requires that the final trial order and order of the
    motion judge be set aside. The garnishment order, which flows from these, must
    also therefore be set aside and the garnished monies in the amount of $248,609
    plus interest paid back to the appellant.

(3)

Should the merits of the family law
    proceedings be determined by this court or at a new trial?

[30]

The appellant submits that this court
    should determine all issues and, if necessary, provide an adjournment to allow
    the respondent to conduct cross-examinations and file further responding
    evidence. The respondent maintains all issues should be determined at a trial.

[31]

Regrettably, we are not in a position
    on this record to determine the issues of equalization, and child and spousal
    support, all of which require credibility assessments and findings of fact.
    These issues must be determined at a new trial.

C.

Disposition

[32]

Accordingly, we allow the appellants
    appeal, set aside the final trial order of Kruzick J. dated December 7, 2007,
    and the order of Quigley J. dated March 27, 2008, and order that the issues of
    equalization and support be determined at a new trial. We also set aside the
    garnishment order. The respondent must return to the appellant the garnished
    amount of $248,609, plus interest from the date of garnishment, within fourteen
    days of the release of these reasons.

[33]

Given the age of these proceedings, it
    is in the parties best interests, and they agree, that the trial should be
    case-managed and expedited.  We agree that the outstanding issues should be
    determined expeditiously through a fair and proportional process in keeping
    with the primary objective of the
Family Law Rules
.

[34]

While we have ordered that there be a
    new trial, this obviously does not preclude the parties from trying to resolve
    this matter out of court. We strongly encourage them do so. It is in the
    parties best interests to make every effort to settle their dispute entirely
    or at the least, significantly narrow the issues to be determined at trial. We
    would remind the parties of the potential cost consequences to a party who
    fails to accept an offer that was as favourable as or more favourable than the
    result achieved at trial.

[35]

The costs of this appeal are unusually
    high because of the myriad steps that were required. As a result, the appellant
    is entitled to her partial indemnity costs of the appeal, including the motion
    for an extension of time and the fresh evidence motion, in the amount of $80,000,
    inclusive of disbursements and applicable taxes.

Released: June 11, 2018

J.C. MacPherson J.A.

H.S. LaForme J.A.

L.B. Roberts J.A.


COURT
    OF APPEAL FOR ONTARIO

CITATION: Krivicic (Re), 2018 ONCA 535

DATE: 20180611

DOCKET: C64041

Feldman, Roberts and Trotter JJ.A.

IN
    THE MATTER OF: Elvis Krivicic

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jill R. Presser and Jeff Marshman,
amici curiae

Elvis Krivicic, acting in person

Megan Petrie, for the respondent, the Attorney General
    of Ontario

Heard:
    April 18, 2018

On appeal from the disposition of the Ontario Review
    Board dated June 22, 2017.

Trotter J.A.:

A.

Introduction

[1]

More
    than a decade ago, the appellant was found not criminally responsible (NCR) of
    one count of criminal harassment and two counts of failing to comply with a
    recognizance. Ever since, he has been under the supervisory jurisdiction of the
    Ontario Review Board (the Board). Each time the Board has reviewed the
    appellants case, it has determined that he poses a significant threat to the
    safety of the public pursuant to s. 672.54 of the
Criminal Code
.

[2]

On
    his prior appeal to this court, a new risk assessment was received as fresh
    evidence. It indicated that the appellant was at a low risk to re-offend. In
    light of this evidence, all three members of the panel agreed that the Boards
    disposition detaining the appellant could not stand. The majority (Weiler and
    Huscroft JJ.A.) remitted the case to the Board to consider the appellants
    situation in light of the new risk assessment. Feldman J.A. would have granted
    an absolute discharge: see
Re Krivicic
, 2017 ONCA 379, 139 W.C.B. (2d) 55, leave to
    appeal refused, [2017] S.C.C.A. No. 317.

[3]

At
    the appellants most recent hearing, the Board considered the fresh evidence
    admitted by this court, along with a more recent risk assessment. Again, the
    Board determined that a detention order was appropriate.

[4]

The
    appellant argues that the Boards decision was unreasonable. I agree. I would
    allow the appeal and substitute an absolute discharge.

B.

background

(1)

The
    appellant and the index offences

[5]

The
    appellant is 40 years old. In late 2006, he was involuntarily admitted to the
    Grand River Mental Hospital under the
Mental Health Act
, R.S.O. 1990, c. M.7. Earlier
    that year, the appellant was charged with producing a controlled substance
    (marijuana). In 2007, he received an eight-month conditional sentence for that
    offence, his only recorded conviction. The appellant was also charged with
    assault, mischief, and uttering threats in 2006, but those charges were
    withdrawn after he was found NCR for the index offences.

[6]

The
    index offences commenced in the fall of 2006. The appellant made repeated calls
    and sent 17 letters to a woman with whom he had attended high school, but did
    not otherwise know. The letters were vulgar and sexually explicit. The woman lived
    with her parents at the time, and the appellant lived close by. The appellant
    was charged with criminal harassment on November 16, 2006. He was subsequently charged
    with two counts of failing to comply with his recognizance. He was found NCR on
    February 27, 2007.

[7]

The
    appellants past diagnoses have included schizophrenia with antisocial and
    schizoid traits, and polysubstance dependence in remission in a controlled
    environment. At the most recent Board hearing, his attending psychiatrist testified
    that delusional disorder, rather than schizophrenia, is a more appropriate
    diagnosis.

[8]

The
    appellant has refused treatment while under the Boards jurisdiction. Aided by
    his substitute decision maker (SDM), his mother, the appellant refuses anti-psychotic
    medication and prefers to seek natural remedies for his physical ailments. As
    discussed below, the appellants failure to accept treatment for his mental
    illness troubled the Board.

[9]

The
    appellants detention in psychiatric institutions has not been problem-free.
    There have been angry outbursts and aggressiveness, sometimes directed at
    hospital staff. However, over the course of the past 11 years, incidents of
    violence have been few and far between. In 2007, the appellant threatened two
    patients and took a swing at another when that patient called the appellant a fucking
    goof. In 2010, he punched and spat on another patient. His most recent verbal
    aggression, in 2013, involved three incidents within the span of a month at the
    Regional Mental Health Centre in St. Thomas. That same year, the appellant was
    transferred to the Centre for Addiction and Mental Health (CAMH) in Toronto.

[10]

In
    2014, the appellant twice eloped from CAMH, for a combined duration of over two
    months. While he was AWOL, there were no further criminal charges. The
    appellant made no effort to contact the victim. Instead, he focused on
    obtaining treatment for his physical ailments, the principal one being Crohns
    disease.

[11]

The
    appellant was transferred from CAMH to Waypoint Centre for Mental Health Care
    (Waypoint) in February 2015. During his stay at Waypoint, a few incidents of
    verbal aggression were recorded. Additionally, on a single occasion, the
    appellant was observed alone in his room speaking in a threatening manner (I
    will get you) to a non-existent person.

[12]

The
    appellant was moved to the North Bay Regional Health Centre (North Bay) in
    April 2016. Due to a shortage of psychiatrists, the hospital requested an early
    Board hearing to transfer the appellant. At this hearing, held in August 2016,
    the Board detained the appellant, ordering that he be placed at the secure
    forensic unit at Providence Care Centre in Kingston (Providence). He appealed
    that disposition to this court.

(2)

The
    prior appeal to this court

[13]

On the
    appeal from the disposition resulting in the appellants placement at
    Providence, both Providence and North Bay filed as fresh evidence the affidavit
    of Dr. Michael Chan, the appellants attending psychiatrist. The affidavit
    addressed the risk posed by the appellant, based on new psychological testing
    that occurred after the Board hearing.

[14]

It is
    necessary to place this new testing in context. At his initial disposition
    hearing in 2007, the appellants risk of recidivism was assessed as extremely
    high, if not approaching certainty. In December 2015, while he was at
    Waypoint, the appellant was assessed using the HCR-20, a clinical judgment tool
    designed to predict violent recidivism. He was assessed as a high risk for
    violent re-offence.

[15]

In
    January 2017, before the hearing of the appeal, the appellant was assessed by
    Dr. Jan Looman, a clinical forensic psychologist. He met with the appellant for
    six hours over the course of three days, and reviewed previous hospital reports
    prepared for Board hearings, including previous risk assessments. In a written
    report, Dr. Looman addressed the appellants December 2015 rating on the HCR-20:

This assessment suggested that [Mr. Krivicic] was [a] high risk
    for violent re-offence. However, Mr. Krivicic does not have a history of
    previous violence. Given this, it is not clear that this instrument is
    appropriate for assessing the risk for violence in this case. In addition, Mr.
    Krivicic has not acted out violently while in hospital, despite his obvious
    anger and frustration with what he sees as his unjust detention and inadequate
    medical care. Given that he is 38 years old and that risk for violence begins
    to decrease after the age of 40, it seems reasonable to assume that if Mr.
    Krivicic has not engaged in violence to this point he is unlikely to do so in
    the future. Previous research related to the initiation of violent offending
    indicates that the peak period is in the late teens and early 20s and very few
    people commit their first violence offence beyond that age. [Internal footnote
    omitted.]

[16]

Dr.
    Looman was concerned that, given the appellants index offences and lack of
    violent history, risk assessment tools predicting general violent recidivism
    may fail to meaningfully evaluate the appellants risk. He administered a more
    specific test  the Stalking Risk Profile (SRP), as the appellants index
    offence was best characterized as stalking. The SRP measures risk in three
    categories  risk of stalking violence, risk of persistence, and risk of
    reoccurrence. The appellant was determined to be a low risk across all three
    measures. Dr. Looman concluded that overall, the appellant presented a low risk
    for violence. These results formed the basis of an up-to-date medical report
    prepared by Dr. Chan, in which he endorsed Dr. Loomans conclusion and opined
    that the appellant no longer met the significant threat threshold. Counsel who
    appeared on behalf of both North Bay and Providence supported this conclusion. Counsel
    for the Ministry of the Attorney General opposed it.

[17]

As already
    noted, this court unanimously concluded that the Boards finding that the
    appellant ought to be detained could not stand in light of the new risk
    assessment. Writing for the majority, Huscroft J.A. held that the Board should
    make the ultimate determination as to the impact of this new evidence alongside
    the evidence it relied on in making its prior dispositions (para. 15). In
    remitting the appellants case back to the Board for an early hearing, Huscroft
    J.A. said, at para. 18:

It is not for the court to reconcile the competing psychiatric
    evidence in this case. That is the responsibility of the Board, an expert body charged
    with responsibility for evaluating the medical evidence, and the Board must be
    permitted to do its job.

[18]

Feldman
    J.A. held that, in light of the fresh evidence, and with no contradictory
    evidence either tendered or proposed (para. 22), the appellant was entitled to
    an absolute discharge. Noting that both hospitals endorsed Dr. Chans opinion,
    Feldman J.A. concluded, at para. 40:

In this case, although the Board has not had an opportunity to
    assess the fresh evidence, that evidence is unequivocal and one-sided. Based on
    the record before this court, there is no evidence that the appellant continues
    to pose a significant risk to the safety of the public.

(3)

Most
    recent Board hearing

[19]

The
    Board convened on June 14, 2017, to consider the appellants status. The
    appellant sought an absolute discharge. This was supported by counsel for
    Providence and reflected in the hospital report prepared on May 17, 2017. The
    Attorney General again opposed this result, recommending a detention order with
    hospital privileges, or a conditional discharge.

(a)

The
    evidence

(i)

Updated
    risk assessment

[20]

Prior
    to the hearing, Dr. Looman conducted another risk assessment. In the excerpted
    passage from his January 2017 report, reproduced in para. 15 above, Dr. Looman
    administered the SRP on the assumption that the appellant had not acted out
    violently while in hospital. At some point before the new hearing, Dr. Looman
    learned that the appellant had engaged in violent and aggressive behaviour
    while hospitalized. However, in fairness to Dr. Looman, the only information he
    missed is referenced in para. 9 above. It is minor and mostly dated.

[21]

In
    light of this information, Dr. Looman administered the HCR-20
V3
 a
    revised version the HCR-20 test administered to the appellant in 2015. As Dr.
    Looman wrote in his Updated Risk Assessment, dated June 14, 2017:

[A]ccording to the HCR-20
V3
[Mr. Krivicic] presents
    a moderate long-term risk for violent re-offence, moderate risk according to
    clinical factors and moderate-high in terms of risk management factors,
thus, overall, he presents a moderate risk for violent
    re-offence.

Mr. Krivicic was previously assessed using the HCR-20 in 2015
    at the Waypoint Centre for Mental Health.
He was assessed
    as presenting a high risk at that time. Thus, the current assessment assigns
    him a lower level of risk than the previous assessment. In part this can be
    attributed to changes in the instrument, as the current assessment uses the
    HCR-20V3. As well, Mr. Krivicics behaviour appears to be somewhat less
    problematic than while he was at Waypoint.
[Emphasis added.]

(ii)

Dr.
    Loomans testimony

[22]

Dr.
    Looman testified before the Board and explained that he did not consider the
    most recent test results indicative of the appellants real risk. In terms of
    clinical and risk management factors, a number of the items that the appellant scored
    poorly on relate to the fact that he is hospitalized and refuses treatment.
    Also, the HCR-20
V3
does not reflect the fact that violence tends to
    decrease with age.

[23]

Dr.
    Looman was of the view that, in the community, the appellant would be better
    able to attend to his medical needs in the way he desires, in terms of accessing
    services and buying his preferred foods. Consequently, his irritability would
    likely diminish because the pressures affecting his behaviour in detention
    would no longer exist. Dr. Looman said, Theres a lot of people who have
    delusions and preoccupations who live in the community and function okay and
    without getting themselves into trouble and I dont know that he wouldnt be
    one of those.

[24]

The
    Board pressed Dr. Looman on his views. He explained that the appellants delusions
    are currently persecutory and somatic in nature. While refusing treatment is
    generally an important factor in assessing risk, it has less of a role to play
    in the appellants case. As he explained:

If it wasnt for his refusing treatment, he would be at [a] low
    risk.
What Im saying is a lot of the symptoms hes
    currently presenting are unrelated to risk to the public in the community.

. . .

Hes got the somatic delusions, if we think theyre delusions,
    somatic complaints and theyre related to our refusing to provide him the
    appropriate medical care and appropriate diet.
So if he
    was out in the community where he could seek out the care that he wants and eat
    the food that he wants, that would be gone. Right now none of his symptoms of
    mental illness actually create a risk to the public.
[Emphasis added.]

[25]

The
    Board challenged Dr. Looman on the notion that the appellants risk assessment
    was the result of where he is. As Dr. Looman said:

No
, like I said, theres lots of
    people out in the community who are walking around with all sorts of somatic
    complaints and being a burden to the health care system because theyre never
    satisfied with the treatment they get, but we dont lock them up in the
    forensic system because they arent a threat to the public.

His persecutory delusions are related to
    the fact that hes involuntarily in the hospital.
Its all focused on
    that. So, the risk to the public in holding those delusions, there is none.
He comes out as high risk because hes refusing treatment and
    hes lacking insight and hes not complying with, you know, hes not
    cooperating with the things we

want him to
    cooperate with, but does that mean hes a high risk to the public? I cant see
    it.
[Emphasis added.]

[26]

Dr.
    Looman was asked about the appellant being released without conditions, and how
    he would establish himself in the community. Dr. Looman acknowledged that the
    appellant is probably not adequately prepared for just being turned loose, but
    added, The question is, does he meet the threshold of risk, its not how
    prepared he is to move out. However, Dr. Looman agreed that stressors
could
have
    a significant impact on the appellants risk.

[27]

In
    follow-up questions, Dr. Looman agreed that the appellant would score the same on
    the HCR-20
V3
whether hospitalized or not, and agreed that the HCR-20
V3
is considered to be a valid and helpful instrument for assessing violent
    risk. Nevertheless, he maintained his opinion that, in all of the
    circumstances, the test artificially inflated the appellants risk.

(iii)

Dr.
    Chans testimony

[28]

Dr.
    Chan described the appellants stay at Providence over the previous 10 months,
    noting that the appellant had not engaged in any violence with staff or other
    patients. He testified that a more accurate diagnosis for the appellant was
    delusional disorder, rather than schizophrenia. This was based on his
    observations that the appellant did not exhibit recurring disordered thought
    patterns that are typical of schizophrenia. Recognizing that delusional disorder
    is more difficult to treat, Dr. Chan said that the appellants current
    pre-occupations are somatic; he exhibits no inclination to stalk the victim of
    his offences, nor anyone else.

[29]

It was
    Dr. Chans decision to involve Dr. Looman in the appellants case. Dr. Chan was
    concerned that the appellant had been detained for over 10 years as a result of
    stalking behaviour. As he said, I felt we needed to have the best fit between
    the risk instrument used and the index problem. Referring to the HCR-20
V3
results, Dr. Chan observed that the appellants score had improved. Still, he
    echoed Dr. Loomans concerns that the test overstated the appellants actual
    risk.

[30]

Dr.
    Chan testified that, based on the risk assessments
and
our
    clinical contact with him over the time he has been with us, [the appellant
    does] not present a significant risk to the safety of the public.

[31]

Dr.
    Chan acknowledged that the appellant remains untreated. Efforts to treat him
    have been thwarted by his SDM. He referred to the appellant as pretty much
    legally untreatable. In light of this history, when the appellant came to
    Providence, Dr. Chan did not wish to instigate an adversarial relationship with
    him. Given that efforts to treat the appellant in the previous 10 years had
    been unsuccessful, Dr. Chan thought future attempts would be futile and
    unproductive.

[32]

In
    terms of the risk posed by the appellant if released into the community, Dr.
    Chan said that it could be looked at in two ways. On the one hand, the
    appellant could be less stressed because he would be able to seek the
    treatments that he desires for his medical needs. On the other hand, there was
    an outside possibility that the day-to-day stress of living could create
    fluctuations in his mental state. However, Dr. Chan observed that, while
    detained, the appellants frustrations have not led to violence; instead, he
    has used legal means to pursue his grievances. Dr. Chan said, At this point I
    dont foresee that it will necessarily lead to disturbed or violent behaviour,
    but his mental state can fluctuate given new environments and new challenges.

[33]

A
    number of Board members challenged Dr. Chan on his opinion. Concerns were expressed
    about the appellant apparently responding to voices and saying, I will get
    you. This happened almost two years prior to the hearing. Because so little
    was known about the circumstances, Dr. Chan did not acknowledge that the
    appellant was hallucinating at the time. Dr. Chan agreed that the appellants
    symptoms could worsen if he consumed THC. Dr. Chan testified that the appellant
    might be tempted to smoke marijuana in a non-controlled environment.

[34]

Dr.
    Chan agreed that it would be preferable to gradually release the appellant into
    the community, rather than doing so abruptly, without supports. As he said, I
    would always prefer that approach. However, he did not intend to release the
    appellant without any support. Dr. Chan said, We would do our best to link him
    up with the mental health community services. He acknowledged that being
    released from the forensic system could be a huge stressor, but whether that
    will lead to risky scenarios, its
possible
 I cant rule it out (emphasis added.) Dr.
    Chan also expressed doubt that any possible problems would lead to physical violence.
    He said, Knowing him the way hes been here he might react verbally but Im
    not sure it will necessarily escalate to physical violence honestly.

[35]

According
    to Dr. Chan, the HCR-20
V3
exaggerated the appellants risk, largely
    because the instrument places significance on historical information that will
    never change. The fact that the appellant has refused treatment did not help.
    Dr. Chan said, Im not saying there would be no risk, Im not saying that at
    all. There is risk and there will always be risk given the past. We cant go
    back and change that. However, by adding the SRP scores to the equation, Dr.
    Chan said, We thought [it] would give a bigger picture and we think [his risk is]
    tempered a little bit, not down to very low, but its tempered a bit. In our
    opinion its dropped below the threshold. I mean, we can always make arguments
    one way or the other.

[36]

Ultimately,
    Dr. Chan did not waiver from his view that the appellant could be released
    safely into the community. As he said, If I felt that when he walked through
    that door he would get himself in trouble and get arrested for criminal
    problems, no, I wouldn't want thatI wouldnt recommend that type of scenario.

(iv)

The
    Appellants testimony

[37]

The appellant
    testified that, if released, he plans to move to Saskatchewan. He was somewhat
    vague on the details of his plans. He said that on the two occasions when he
    eloped from CAMH, his main focus was obtaining medical attention for his physical
    ailments, which he felt were not being adequately addressed during his
    detention. He attempted to seek asylum in the United States on both occasions,
    but was returned to hospital. The appellant testified that the main stress he
    felt while AWOL was being captured and brought back. He was able to find
    accommodation and eat as he pleased by drawing on his CPP, along with assistance
    from his family.

[38]

Questioned
    by counsel for the Attorney General and Board members, the appellant denied any
    temptation to smoke marijuana and said he had not thought about the victim of
    his index offences in many years.

(b)

The
    Boards reasons

[39]

In its
    Reasons for Disposition (see [2017] O.R.B.D. No 1686), the Board provided a
    detailed summary of all of the evidence adduced at the hearing. In its
    narrative, the Board mentioned the previous decision of this court.
    Specifically, at para. 25, the Board quoted from Huscroft J.A.s reasons (at
    para. 17): If Dr. Chans evidence is accepted by the Board, the appellant is
    entitled to an absolute discharge. As discussed below, this was not the
    appellants only route to an absolute discharge.

[40]

The
    Board rejected the opinions of Dr. Chan and Dr. Looman, the position of counsel
    for Providence, and the submissions of the appellants counsel. It agreed with
    the Attorney General that the appellant should be detained.

[41]

The
    Board found that the updated HCR-20
V3
risk assessment significantly
    contradicts the testimonial opinions of Drs. Looman and Chan. The Boards
    ultimate conclusions are reflected in paras. 36-39:

The Board is fully aware that in reaching a conclusion that Mr.
    Krivicic continues to represent a significant risk, it is reaching a conclusion
    different from both Dr. Chan and Dr. Looman.
With
    respect, the Board cannot agree with their opinion that Mr. Krivicic no longer
    represents a significant threat.

Dr. Chan's support for his opinion, both in the Court of Appeal
    and before this Board, was founded on the assessment using the Stalking Risk
    Profile (SRP). Dr. Chan maintained this opinion before the Board notwithstanding
    his acknowledgement that the HCR-20 v3 Risk Assessment Tool reached a
fundamentally different conclusion
. He did acknowledge
    that granting Mr.
Krivicic
an
    absolute discharge and releasing him to the community without any form of
    support plan in place would likely be a significant stressor
potentially
leading to a risk to the safety of the
    public.

Dr. Looman's conclusion that there was not a significant risk
    was that the scoring on the HCR-20 v3 overstated the risk of violence. He went
    on to say that the lack of Mr.
Krivicic's
insight into his illness is
    not related to his potential risk. Although it seemed that the main reason for
    rejecting the outcome of this assessment tool was that it was scored while
    Mr.
Krivicic
was
    in the hospital, Dr. Looman did eventually agree that the results would not be
    any different if scored with Mr.
Krivicic
in the community.

The Board is unanimous in rejecting Dr. Looman's evidence on
    the issue of significant risk. The HCR-20 v3 is a widely recognized and accepted
    assessment tool used internationally. Dr. Looman agreed with this point.
    Nothing in the evidence before the Board calls into doubt its value as one of
    the factors to be considered.
When taken together with
    all the evidence outlined above, the Board is unanimous in concluding that
    Mr. Krivicic continues to represent a significant threat to the
    safety of the public
. [Emphasis added.]

[42]

The
    Board was concerned that an absolute discharge would be risky for the
    appellant, given that he would be in the community without any formal supports.
    Moreover, the Board was critical of the appellants resistance to treatment
    both historically and looking to the future, and of Dr. Chans reluctance to
    engage with a treatment plan. Remarkably, the Board said, at para. 40, the
    Board encourages the hospital to take whatever further steps might be available
    to pursue a treatment plan. Essentially, the Board recommended that the
    hospital attempt to override the decisions of the appellants SDM, in direct
    opposition to the conciliatory approach taken by Dr. Chan.

C.

positions
    of the parties

[43]

The
    appellant submits that he is entitled to an absolute or conditional discharge.
Amici
counsel
    requested an absolute discharge, or alternatively a conditional discharge. The
    hospital (Providence) did not participate in this appeal.

[44]

Counsel
    on behalf of the Attorney General conceded in its factum that it would have
    been open to the Board to reach a different conclusion on the evidence before
    it. However, the Attorney General maintained that the disposition was within
    the range of reasonable outcomes and as such deference is owed.

D.

analysis

[45]

The
    jurisdiction of this court in reviewing decisions of the Board is set out in s.
    672.78(1) of the
Criminal
    Code
, which provides:

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)     it 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.

[46]

Reasonableness
    is at the heart of this appeal. In reviewing a Board decision for
    reasonableness, deference is required, owing to its expertise: see
R. v. Owen
, 2003
    SCC 33, [2003] 1 S.C.R. 779, at paras. 29-30;
Pinet v. St. Thomas Psychiatric
    Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 22; and
Re Campbell
, 2018
    ONCA 140, 139 O.R. (3d) 401, at paras. 27-28.

[47]

Notwithstanding
    the deference that is customarily afforded to the Board, I would allow the
    appeal. The evidence fell short of establishing that the appellant poses a
    significant threat to the safety of the public within the meaning of s. 672.54
    of the
Criminal Code
. The
    evidence raised speculative concerns about the appellants risk of re-offending.
    However, it was no more than that.

[48]

I
    accept that the Board was not required to agree with the hospitals position
    that the appellant no longer met the threshold in s. 672.54: see
Re Hassan
, 2011
    ONCA 561, 283 O.A.C. 154, at paras. 24-25.

[49]

It was
    also open to the Board to reject the opinions of Drs. Chan and Looman, for
    appropriate reasons: see
Re Laberakis
, 2012 ONCA 70, 99 W.C.B. (2d) 832, at para. 3.
    However, as discussed below, I am of the view that the opinions of both doctors
    were not fairly evaluated in the context of all of the evidence that was
    available to the Board. More fundamentally, the Boards rejection of the May
    2017 hospital report, essentially
all
of the evidence adduced at the hearing,
    and the submissions of counsel for the hospital and the appellant, did not
    inexorably lead to the conclusion that the appellant constituted a significant
    threat to the safety of the public. Positive evidence was still required to reasonably
    reach this conclusion. There was no other evidence adduced before the Board.

[50]

After
    sweeping aside all of the evidence and submissions that it did not accept, all
    that the Board was realistically left with was the appellants most recent
    HCR-20
V3
results, which assessed him as a moderate risk to
    re-offend. Standing alone, this fell short of the mark. The appellants refusal
    of treatment, along with his optimistic, yet vague plans for his life after 10
    years in hospital, could not properly fill this void. In detaining the
    appellant based on the record before it, the Board effectively reversed the
    burden of proof.

[51]

The
    Boards mandate is set out in s. 672.54 of the
Criminal Code
,
    which provides:

When a court or Review Board makes a dispositionit shall, taking
    into account
the safety of the public, which is the
    paramount consideration
, the mental condition of the accused, the
    reintegration of the accused into society and the other needs of the accused,
    make one of the following dispositions that is necessary and appropriate in the
    circumstances:

(a) where a verdict of not criminally responsible on account of
    mental disorder has been rendered in respect of the accused and, in the opinion
    of the court or Review Board, the accused is not
a
    significant threat to the safety of the public
, by order, direct that
    the accused be discharged absolutely [Emphasis added.]

[52]

In
    terms of the nature of the risk contemplated by s. 672.54, I rely upon the following,
    oft-quoted passage from
Winko v. British

Columbia (Forensic Psychiatric Institute)
,
    [1999] 2 S.C.R. 625, in which McLachlin J. (as she then was) said the
    following, at para. 57:

To engage these provisions of the
Criminal
    Code
,
the threat posed must
    be more than speculative in nature; it must be supported by evidence. The
    threat must also be "significant", both in the sense that there must
    be a real risk of physical or psychological harm occurring to individuals in
    the community and in the sense that this potential harm must be serious. A
    minuscule risk of a grave harm will not suffice. Similarly, a high risk of
    trivial harm will not meet the threshold. Finally, the conduct or activity
    creating the harm must be criminal in nature.
In short,
    Part XX.1 can only maintain its authority over an NCR accused where the court
    or Review Board concludes that the individual poses a significant risk of
    committing a serious criminal offence. If that finding of significant risk
    cannot be made, there is no power in Part XX.1 to maintain restraints on the
    NCR accused's liberty. [Emphasis added, internal citations omitted.]

As Simmons J.A. clarified in
Re Medcof
, 2018
    ONCA 299, 145 W.C.B. (2d) 377, at para. 26: While the conduct must be criminal
    in nature, not all criminal conduct will suffice to establish significant risk.
    There must be a risk that the NCR accused will commit a serious criminal
    offence.

See also
Re Carrick
, 2015
    ONCA 866, 128 O.R. (3d) 209, at para. 17.

[53]

Onus
    is critical in this context. Dangerousness is not presumed; it is the other way
    around. As McLachlin J. said in
Winko
, at paras. 46 and 54:

In my view, properly read, [s. 672.54] does not create a
    presumption of dangerousness and does not, in its effect, impose a burden of
    proving lack of dangerousness on the NCR accused.

. . .

If the court or Review Board is uncertain, Part XX.1 provides
    for resolution by way of default in favour of the liberty of the individual.

See also
Re Sokal
, 2018 ONCA 113, 145 W.C.B.
    (2d) 378, at para. 19
.

[54]

In
    assessing the reasonableness of the Boards decision in this case, I start with
    its treatment of Dr. Loomans evidence. His evidence was critical because it
    was the foundation for Dr. Chans evidence, as well as the hospitals position.

[55]

In my
    view, the Board misapprehended Dr. Loomans evidence. Dr. Looman was of the
    view that the HCR-20
V3
exaggerated
    the appellants risk because of his refusal to accept treatment while
    hospitalized, and because the test failed to account for the reduction in
    violence based on increased age. Dr. Loomans qualification of these test
    results clearly troubled the Board. As the Alternate Chair said during the
    hearing, the Board regularly relies on these types of test results.

[56]

However,
    Dr. Looman did not launch a broad attack on the HCR-20; he agreed that it is a
    valid and helpful instrument. Presumably, that is why he administered the
    test. Valid and helpful is not synonymous with universally reliable. Dr.
    Looman and Dr. Chan merely used the test as an aid in assessing the appellants
    risk, in light of his specific diagnosis, presenting symptoms, and behaviour
    while detained. In their view, looking to the SRP in addition to the HCR-20
V3
provided a more holistic evaluation of the appellants risk in his unique
    circumstances. Their evidence stood uncontradicted.

[57]

At the
    hearing, it was not disputed that the appellants delusions are now focused on
    persecutory themes and somatic complaints, which are very different from how
    his illness contributed to the index offences. Dr. Loomans evidence must be
    seen in this light. While he acknowledged that refusing treatment is generally
    an important factor in assessing risk, it has less of a role to play in the
    appellants case because a lot of the symptoms hes currently presenting are
    unrelated to risk to the public. Although it was open to the Board to reject
    Dr. Loomans evidence, I have concerns that his position was not properly
    understood.

[58]

Having
    rejected Dr. Loomans and Dr. Chans evidence, and after lauding the value of
    the HCR-20
V3
, the Board said, at para. 39: When taken together with
    all of the evidence outlined above, the Board is unanimous in concluding that
    Mr. Krivicic continues to represent a significant threat to the safety of the
    public. It is unclear to what evidence the Board was referring, especially
    since it had discounted most, if not all, of the testimonial evidence adduced
    at the hearing.

[59]

Assuming
    for the sake of argument that the most recent HCR-20
V3
results should
    be taken at face value (without any explanation by an expert in the field), standing
    alone, they did not supply the evidence required to meet the threshold in s.
    672.54 in this case. The Boards decision appeared to be predicated on the
    assumption of a direct correspondence between the appellants test scores and
    the significant threat standard in s. 672.54. However, the appellant was
    assessed as only a moderate risk to reoffend. In the absence of expert evidence
    on this issue, the Board could not reasonably draw a straight line between the
    test score and the significant threat threshold in s. 672.54.

[60]

Moreover,
    HCR-20
V3
results are only capable of feeding into half of the
    equation mandated by s. 672.54. As
Winko
makes clear, s. 672.54 requires an
    inquiry into: (1) the likelihood of the risk of reoffending
and
(2)
    the seriousness or magnitude of that offending. The HCR-20
V3
says
    nothing of the latter: see
R. v. Montgrand
, 2017 SKCA 49, 352 C.C.C. (3d) 485, at
    paras. 14-20, for a discussion of the limits of risk prediction assessments in
    the context of dangerous offender applications.

[61]

Most
    importantly, the HCR-20
V3
results did not stand alone. The Board also
    had the appellants SRP results, assessing the appellant as a low risk to
    re-offend in a manner similar to the index offences. The appellants score on
    this instrument caused this court to set aside the Boards previous
    disposition. At the new hearing, while mentioned in its reasons, the Board essentially
    ignored the SRP score, noting that it was fundamentally different than the
    most recent HCR-20
V3
results.

[62]

This
    was an overstatement. After all, the appellant was rated as a low risk to re-offend
    on the SRP, and just a moderate risk on the HCR-20
V3
. Having
    rejected the explanations of Drs. Chan and Looman, and without evidence to the
    contrary, the Board was not in a position to make such a categorical finding.

[63]

Taking
    all of these factors into consideration, I conclude that the Boards
    conclusions were speculative. As Huscoft J.A. said in
Re

Carrick
, at
    para. 17: An NCR accused is not to be detained on the basis of mere
    speculation. The Board must be satisfied as to both the existence and gravity
    of the risk of physical or psychological harm posed by the appellant in order
    to deny him an absolute discharge. See also
Re Wall
, 2017 ONCA 713, 141 W.C.B.
    (2d) 646, at para. 26.

[64]

In the
    end, the Boards decision was driven by the appellants most recent risk
    assessment, his refusal to accept treatment, and the vague plan for his release.
    It seized upon Dr. Chans acknowledgement that it would be preferable to
    gradually release (or cascade) the appellant toward unfettered freedom in the community.
    Granted, it would probably be in the appellants interests to proceed in this
    cautious fashion. But that is not the test under s. 672.54: see
Re Ferguson
, 2010
    ONCA 810, 264 C.C.C. (3d) 451, at para. 45;
Re Wall
, at para. 30.

[65]

Through
    its questions, the Board revealed its concern that the appellant would be under
    extreme stress if released without supervision. Dr. Chan acknowledged that this
could
worsen his symptoms and increase his risk. However, whether the appellant would
    act out in a way contemplated by s. 672.54 was a matter of pure speculation:
    see
Re Pellett
, 2017
    ONCA 753, 139 O.R. (3d) 651. In fact, Dr. Chan expressed doubts that any
    problems the appellant could possibly have would rise to criminal conduct or
    physical violence. If anything, the uncontradicted evidence before the Board
    (from Drs. Looman and Chan, and the appellant) was that the appellant would
    likely be less stressed in the community because he would be able to pursue the
    remedies he desired for his medical ailments, likely with the support of his
    family. While it was open to the Board to reject all of this evidence, it did
    not constitute proof positive of the opposite, unless the onus were to be
    reversed.

[66]

Lastly,
    the Board was critical of Dr. Chans evidence, unfairly in my view, because he
    took a non-adversarial approach to the appellants refusal of treatment. However,
    Dr. Chans description of the appellant as legally untreatable reflected the
    appellants recorded history while detained  he continued to use the legal
    process to prevent involuntary treatment, as he was entitled to do. Again, this
    itself does not translate into a significant risk to the safety of the
    public, especially given the appellants more recent symptomology and the long
    passage of time since he has acted out in a violent or threatening manner.

[67]

As mentioned
    above, at para. 53, onus is critical in the application of s. 672.54. It was
    critical in this case. While the appellant may have failed to persuade the
    Board that he was
not
a
    significant risk to the safety of the public, he was not required to do so. As
    this court said in
Re
    Laberakis
, at para. 3:

While the Board does not necessarily err because it declines to
    follow the experts or the hospitals opinion and must make its own decision,
    it must do so on the evidence. The majoritys concerns in effect placed an
    inappropriate burden on the appellant.

[68]

The
    evidence before the Board fell short of the threshold in s. 672.54. As such, the
    appellant is entitled to be discharged absolutely.

E.

Conclusion
    and disposition

[69]

I
    would allow the appeal and set aside the detention order. In its place, and
    pursuant to s. 672.78(3)(a), I would substitute an absolute discharge.

Released: June 11, 2018

G.T.
    Trotter J.A.

I
    agree K. Feldman J.A.

I
    agree L.B. Roberts J.A.