COURT OF APPEAL FOR ONTARIO

CITATION: Esgin (Re), 2019 ONCA 155

DATE: 20190226

DOCKET: C65351

Feldman, Lauwers and Nordheimer JJ.A.

IN THE MATTER OF: Burhan Esgin

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Andrew Cappell, for the respondent, Attorney General of
    Ontario

Kathryn Hunt, for the respondent,
Centre for Addiction and Mental Health

Heard: January 29, 2019

On appeal from the disposition
    of the Ontario Review Board, dated April 10, 2018, with reasons for disposition
    dated April 24, 2018, reported at [2018] O.R.B.D. No. 927.

Lauwers J.A.:

[1]

On May 29, 2014, Burhan Esgin was found not criminally
    responsible on account of mental disorder on charges of possession of weapons
    dangerous, contrary to the
Criminal Code
, R.S.C., 1985, c. C-46
. Mr. Esgin has been diagnosed with
    Schizoaffective Disorder, Bi-polar Type; Substance Use Disorder, Alcohol and Cannabis;
    and Unspecified Personality Disorder, Narcissistic and Antisocial.

[2]

Mr. Esgin was subject to a 2017 disposition, which detained him
    in the general forensic unit at the Centre for Addiction and Mental Health, and
    granted him privileges up to and including living in the community with
    accommodation approved by the person in charge. The 2018 disposition relaxed
    the reporting requirement from daily to not less than once every two weeks.

[3]

Mr. Esgin appeals. He maintains that the Board erred by failing
    to grant a conditional discharge. He seeks a conditional discharge from this
    court, and in the alternative, a new hearing.

Index offence and detention history

[4]

Mr. Esgin was driving his automobile on November
    30, 2013. He began yelling at pedestrians on the sidewalk and at drivers of
    other vehicles, and he pointed what appeared to be a black handgun at several
    drivers. He then parked the car, leaving the handgun behind, got out of the car
    and began yelling at people. As he returned to the car, police officers arrived
    and arrested him. The black handgun was an air pistol.

[5]

Mr. Esgin is particularly vulnerable to alcohol,
    and the hospital report summarizes a number of incidents from November 2013 to
    February 2017, in which he showed positive test results for alcohol; he was
    also on occasion medication non-compliant. Mr. Esgin was discharged to the
    community in 2017 and lived with his mother until January 22, 2018. He now
    lives alone. There has been no evidence of psychotic symptoms.
Mr. Esgin
    is currently being treated by long-acting injections, which he receives every
    two weeks at the hospital.

The decision under appeal

[6]

The Board unanimously found that Mr. Esgin
    continues to pose a significant threat to the safety of the public. The Board relied
    on the evidence of Dr. Swayze, Mr. Esgins treating physician, to find that
    there is a foreseeable and substantial risk that Mr. Esgin would commit a
    serious criminal offence if he were discharged absolutely.

[7]

The Board also found that there is no air of
    reality to a Conditional Discharge at the present time, noting that Mr. Esgin
    has only been living on his own in the community for under three months and a
    further period of time and stability would be required before a Conditional Discharge
    could be considered.

[8]

Dr. Swayze expressed concern about the two positive tests for
    cannabis on March 5 and 13, 2018, and the positive test for a marker for
    alcohol, Ethyl Glucuronide. Mr. Esgin acknowledged that he had used cannabis
    once only due to the stress of his upcoming Board hearing which was originally
    set for March 2018 but had to be adjourned due to Dr. Swayze's illness and to
    the lack of a Hospital Report. Mr. Esgin also admitted drinking a non-alcoholic
    beer believing there was no alcohol in it, which could account for the marker.

[9]

The Board noted, at para. 48:

When asked if he would return to
    hospital voluntarily if asked, he said he would. He indicated if he received a
    Conditional Discharge and then had a positive test for cannabis, he would come
    in "based on my mental status". He said if he showed signs of
    deterioration he would come in but would also come in if there was no
    deterioration.

[10]

The Boards analysis of the request for a conditional
    discharge is set out in paras. 59-61:

The Board noted the strong presentation made by counsel for Mr.
    Esgin for a Conditional Discharge. The Board finds that there is no air of
    reality to a Conditional Discharge at the present time.

The Board accepts the evidence of Dr. Swayze that Mr. Esgin
    appears externally motivated to take his medication and to avoid substances.
    The fact there were two positive tests for cannabis and one for a marker for
    alcohol this year indicate that Mr. Esgin has not fully dealt with his
    substance abuse issues. He readily succumbed to peers to use cannabis when he
    felt stressed despite having had extensive training on stress management
    techniques.

In addition, the Board is not
    confident that a Conditional Discharge would permit the Hospital to intervene
    quickly enough should there be deterioration in Mr. Esgin's mental status. The
    Board prefers the evidence of Dr. Swayze and the events of Mr. Esgin's history
    under the Board as evidence for the fact he is not likely to return to hospital
    voluntarily over the evidence of Mr. Esgin who himself said that he would
    return to hospital if requested. The fact that Mr. Esgin would agree to a
    consent to treatment clause being included in the Conditional Discharge does
    not sway the Board's view in this matter.

A significant threat

[11]

The
    Board unanimously found that Mr. Esgin continues to pose a significant threat
    to the safety of the public, because his noncompliance with prescribed
    medication would lead to decompensation and the re-emergence of behaviours
    similar to that of the index offence. I would defer to that finding, which is
    well established on the evidence.

The disposition

[12]

Amicus
submits that: The Board was
    required, but failed to consider in a serious and probing manner, the evidence
    in relation to mechanisms of return to hospital as they would present in the
    particular circumstances of the Appellant. She pointed to the following
    positive developments:

The Appellants
    mental state had been essentially stable for the reporting year preceding the
    hearing, at least, and probably for longer. The Appellant had been medication compliant,
    his medications had been adjusted and optimized; indeed, there had been a
    switch to an injectable form of the same antipsychotic medication the Appellant
    was previously receiving. This now required only biweekly administration of his
    main medication treatment, his anti-psychotic. There were no incidents of
    aggression or violence or for that matter any verbal altercations in the
    reporting year.

[13]

Amicus
argues
    that it was unfair for the hospital to pursue the allegations of cannabis use
    and alcohol without providing any notice or record in the hospital report of those
    allegations. She points out that the hospital was sufficiently untroubled that
    it did not bring Mr. Esgin in when the test results were received.

[14]

This court recently dealt with a similar situation in
Valdez
    (Re)
, 2018 ONCA 657. The comments made by the court in
Valdez
apply equally to Mr. Esgin who, like Mr. Valdez, is
    taking long-acting medication administered at the hospital. The hospital would
    know immediately if he did not attend for a scheduled injection and would be
    immediately able to take remedial steps. In Valdez this court said, at para.
    21:

However, we have difficulty with the majority's cursory
    consideration of whether Mr. Valdez's risk to the public could be managed under
    a conditional discharge. The majority reasoned that "it is substantially
    easier to bring about a return to the hospital for individuals who are under a
    Detention Order" and that a warrant will always be acted upon to bring a
    person back to the hospital if necessary. However, this would always be true
    and could always be used to justify the refusal of a conditional discharge.
    But, given the least onerous and least restrictive test, something more is
    required than mere convenience to the hospital.

Analysis

[15]

Part
    XX.1 of the
Criminal Code
establishes the legislative regime for
    mental disorders and dealing with NCR accused. As Bastarache J. observed in
Mazzei
    v. British Columbia (Director of Adult Forensic Psychiatric Services)
,
    2006 SCC 7, [2006] 1 S.C.R. 326, at para. 32: "the primary purpose of the
    legislative scheme is to protect the public while minimizing any restrictions
    on the NCR accused's liberty interests".

[16]

The
    Board is charged with the responsibility for determining the necessary and
    appropriate disposition in the language of s. 672.54 of the Criminal Code. The
    previous version of the section directed the Board or a court to make the
    disposition
that is the least
    onerous and least restrictive to the accused. However,
the Board and
    the courts have considered that the new language did not change the applicable
    test, still commonly expressed as: the least onerous and least restrictive
    disposition necessary to protect the public:
Winko v. Forensic Psychiatric
    Institute
, [1999] 2 S.C.R. 625, at para. 47. The Board is a specialized,
    expert body and its decisions are owed a significant degree of deference:
R.
    v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 29-30, 37. Appellate
    courts are "'not [to] be too quick to overturn a review board's 'expert
    opinion' on how best to manage a patient's risk to the public":
R. v.
    Conway
,
2010 SCC 22, [2010] 1 S.C.R. 765 at para. 95; see also
Owen
,
at para. 69.

[17]

The
    issue on this appeal is whether the Board's decision falls within a range of
    reasonable outcomes:
Owen
, at para. 33. A decision will be considered
    unreasonable when the reasons do not "bear even a somewhat probing
    examination":
Saikaley (Re)
, 2012 ONCA 92, 109 O.R. (3d) 262, at
    para. 35;
Mazzei
,
at d. 17. As in
Valdez
, this task is
    hampered by the Board's reasons, which are sparse in their consideration of the
    least onerous/restrictive test:
Marchese (Re)
, 2018 ONCA 307, 359
    C.C.C. (3d) 408, at paras. 16-23.

[18]

In
    my view, the Boards decision is unreasonable.

[19]

The
    Board was right to be concerned that Mr. Esgin would decompensate if he failed
    to take his medication. However, I have difficulty with the Boards cursory
    consideration of whether Mr. Esgins risk to the public could be managed under
    a conditional discharge. The Boards conclusory assertion is that it is not
    confident that a Conditional Discharge would permit the Hospital to intervene
    quickly enough should there be deterioration in Mr. Esgin's mental status. The
    Board gives no reasons for this statement that are rooted in the realities of
    managing Mr. Esgin.

[20]

As
    was noted in oral argument, it is always easier to bring about a return to the
    hospital for individuals who are under a detention order since a warrant will
    always be acted upon to bring a person back to the hospital if necessary.
    However, this would be true in every case and could always be used to justify
    the refusal of a conditional discharge. But, given the least onerous and least
    restrictive test, something more is required to justify a detention order than
    mere convenience to the hospital.

[21]

As
    discussed in
Young (Re)
, 2011 ONCA 432, 278 O.A.C. 274, at para. 26,
    there are multiple ways in which to secure someone's attendance at the hospital
    when they fail to comply with a condition of their discharge. For instance, the
    person could be returned: (1) by convening a new hearing under s. 672.82(1) of
    the
Criminal Code
; (2) by resorting to the breach provisions of the
Criminal
    Code
;
or (3) through the committal provisions available under the
Mental
    Health Act
,
R.S.O. 1990, c. M.7.

[22]

Some
    of these options were discussed in oral argument, but I am not confident that
    the ramifications were fully aired. Also, I do not consider the evidence of Dr.
    Swayze on this point to be sufficient.

[23]

In my view, the reasons of the Board are inadequate and did not
    permit meaningful appellate review.
Decision makers must give
    reasons for their decisions that display the qualities of accountability,
    intelligibility, adequacy and transparency, and that are responsive to the live
    issues.
See
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869 per Binnie J. at para. 55. See also
Clifford
    v. OMERS
, 2009 ONCA 670;
Vancouver International Airport Authority v.
    Public Service Alliance of Canada
, 2010 FCA 158, at para. 16.

[24]

The
    Board had a duty to assess the evidentiary record in context, and to take into
    consideration in this case: (1) the risk of Mr. Esgins non-attendance for
    medication; (2) the mechanisms for securing his attendance at hospital under
    the conditional discharge framework; (3) the length of time that any such steps
    may take; (4) the effect of that delay on Mr. Esgin's mental health; and (5)
    the risk to public safety posed by any delay in treatment.

[25]

The
    Board's reasoning does not demonstrate that it took these considerations into
    account. Although Mr. Esgin appears to be a significant risk to public safety
    when unmedicated, it appears that, given the biweekly injection schedule, that he
    would not decompensate immediately. There was no evidence here that any delay
    in apprehending Mr. Esgin for the purpose of administering his medication would
    be critical to public safety.

[26]

For
    these reasons, I would direct the Board at its next hearing to consider
    whether, after due consideration of all of the relevant factors set out above
    and any others that appear relevant, Mr. Esgin should be subject to a
    conditional discharge rather than a detention order and to set out its reasons
    for its conclusion to select one disposition rather than the other. Since the
    next hearing is very close, I would dismiss the appeal.

RELEASED:  P.L.  February 26,
    2019

P. Lauwers J.A.

I agree. K. Feldman J.A.

I agree. I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Forster v. Canada (Correctional Service), 2019 ONCA
    91

DATE: 20190208

DOCKET: C63786

Simmons, Lauwers and Trotter JJ.A.

BETWEEN

Steven Forster

Appellant

and

The Institutional Head of Millhaven Penitentiary
    as Directed by the Commissioner of Corrections

Respondent

Paul Slansky, for the appellant

Max Binnie and Stephen Kurelek, for the respondent

Heard: January 17, 2019

On appeal from the order entered on May 11, 2017 by
    Justice Gary W. Tranmer of the Superior Court of Justice, sitting without a
    jury, with reasons reported at 2017 ONSC 2865.

Trotter J.A.:

A.

introduction

[1]

Steven Forster has been imprisoned as a dangerous offender for more than
    30 years. He launched a
habeas corpus
application to test the validity
    of his detention. However, on a motion by the respondent, the application was
    summarily dismissed because it was plain and obvious that it could not
    succeed. Mr. Forster appeals from this preliminary decision.

[2]

I would allow the appeal. The appellants
habeas corpus
application should not have been dismissed without a full hearing on the merits.

B.

factual background

(1)

The Dangerous Offender Proceedings

[3]

On February 23, 1988, the appellant pled guilty to numerous sexual
    offences. The trial judge, Dilks C.C.J., ordered that the appellant undergo a
    psychiatric assessment. On December 23, 1988, he declared the appellant to be a
    dangerous offender and imposed an indeterminate sentence. Dilks C.C.J. also
    made a recommendation that the appellant be admitted immediately to such
    courses of treatment for his disorders as can be made available to him.

[4]

The appellant appealed to this court. On June 23, 1995, his appeal was
    dismissed: see
R. v. Forster
(1995), 82 O.A.C. 78. At that time, it was
    brought to the attention of the panel that the appellant had thus far received
    no treatment. The court said, at para. 11: The situation is intolerable. This
    court supports the recommendation of the trial judge and urges the correctional
    authorities to provide the appropriate treatment on an urgent basis.

(2)

The First
Habeas Corpus
Application

[5]

On November 15, 2001, the appellant commenced his first
habeas corpus
application, seeking relief under many different heads, and invoking numerous
    sections of the
Charter
(i.e., ss. 7, 9, 10, 11, 12, 15(1), 24(1), and
    26). The appellant was self-represented. It would appear that the nub of his
    complaint concerned a transfer between institutions. After nine appearances,
    the application was dismissed by MacLeod J. (now MacLeod-Beliveau J.). At the
    terminal appearance, counsel appeared and informed the court that the appellant
    may have a basis to challenge his indeterminate sentence. In dismissing the
    application, MacLeod J. wrote: The application is dismissed, without prejudice
    to the applicant commencing a new application, citing proper grounds for
habeas
    corpus
for the court to consider.

[6]

The appellant appealed to this court. On June 21, 2005, his appeal was
    dismissed without prejudice to the appellants right to commence proceedings
    in the Superior Court or in the Federal Court, as may be appropriate, with
    regard to his various grievances.

(3)

The Current
Habeas Corpus
Proceedings

[7]

The appellant commenced the current proceedings on October 5, 2014. His
    Notice of Application requested a writ of
habeas corpus
with
certiorari
in aid, and relief under s. 24(1) of the
Charter
. The appellant
    challenges the validity of the warrant of committal, asserting a lack of
    jurisdiction to make the dangerous offender finding. He alleges that his psychiatric
    remand was unlawful; that the Crown failed to give the required notice of the
    dangerous offender application; that he was improperly excluded from parts of the
    hearing; and that the trial judge failed to recognize that he had a discretion
    to decline to make the dangerous offender designation.

[8]

On May 28, 2015, the respondent filed a motion to have the application
    dismissed. The respondent purported to rely upon r. 21.01(3)(a) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194 (the civil rules), which permits
    a defendant to move before a judge to have an action dismissed or stayed
    because the court has no jurisdiction over the subject matter of the action.

[9]

In written reasons, the application judge dismissed the
habeas
    corpus
application. The application judge accepted that he had the authority
    to dismiss these proceedings on a motion to strike (para. 10), citing the following
    authorities relied upon by the respondent:
Debrocke v. Canada
(8
    October 2015, CR-15-231-MO (ONSC));
Firbank v. Canada (Attorney General)
,
2016 ONSC 6592; and
Nome v.
    Attorney General of Canada
, Kingston Court File CR-15-583-MO. Although
    each of these cases resulted in the summary dismissal of
habeas corpus
proceedings, the jurisdictional basis for doing so was unclear.

[10]

The
    application judge considered the viability of the appellants claim for relief
    through the lens of the Supreme Court of Canadas decisions in
R. v. Lyons
,
    [1987] 2 S.C.R. 309,

R. v. Gamble
, [1988] 2 S.C.R. 595, and
R.
    v. Sarson
, [1996] 2 S.C.R. 223, as well as this courts judgment in
Gallichon
    v. Canada (Commissioner of Corrections)
(1995), 101 C.C.C. (3d) 414 (Ont.
    C.A.). Ultimately, he determined, at para. 70, that the appellants application
    was an attempt to circumvent the appeal rights that were available to him, and
    which he has exercised. The application judge concluded that it was plain and
    obvious that the application cannot succeed. It has no possibility of success. Therefore,
    I exercise this courts discretion to dismiss it at this stage.

C.

analysis

[11]

The
    importance of
habeas corpus
can hardly be understated. The right to
    test the validity of ones detention by
habeas corpus
is guaranteed by
    s. 10(c) of the

Charter
. The scope of the protection afforded
    by this right is complex and has required guidance from the Supreme Court of
    Canada on many occasions. In
May v. Ferndale Institution
, 2005 SCC 82,
    [2005] 3 S.C.R. 809, the Court held that there is a limited power in the
    Superior Courts to decline to exercise
habeas corpus
jurisdiction.
    LeBel and Fish JJ. wrote, at para. 44:

Habeas

corpus
should not be declined merely because another alternative remedy exists and
    would appear as or more convenient in the eyes of the court.
Only in limited
    circumstances will it be appropriate for a provincial superior court to decline
    to exercise its jurisdiction.
For instance, in criminal law, where a
    statute confers jurisdiction on a court of appeal to correct a lower court and
    release the applicant if need be, habeas corpus will not be
    availableJurisdiction should also be declined where there is in place a
    complete, comprehensive and expert procedure for review of an administrative
    decision. [Emphasis added.]

In para. 68 of his reasons, the application judge
    relied on
May

as a basis for declining to hear this case.

[12]

Declining
    to exercise
habeas

corpus
jurisdiction is different from striking out an application on a summary basis.
    In
Mission Institution v. Khela
, 2014 SCC 24, [2014] 1 S.C.R. 502, at
    para. 78, the Court held that [u]nlike the Federal Court in the context of an
    application for judicial review, a provincial superior court hearing a
habeas
    corpus
application has no inherent discretion to refuse to review the case.
    Stated differently, if the prisoner does raise an arguable issue there is no
    room for discretion: the matter should proceed to hearing so that a full and
    proper determination can be made. The non-discretionary nature of
habeas
    corpus
is an important difference between it and other prerogative writs:
    Judith Farbey, Robert J. Sharpe and Simon Atrill,
The Law of Habeas Corpus
,
    3rd ed. (New York: Oxford University Press, 2011), at p. 53.

[13]

As
    noted above, the respondent relied on the civil rules as the foundation for its
    pre-emptive motion to strike this
habeas corpus

application.
    However, this reliance was misplaced in a number of respects. First, the
    respondent relied on r. 21.01(3)(a)  lack of jurisdiction over the subject
    matter. However, it would appear that the application judge did not apply this
    sub-rule. Instead, he found that it was plain and obvious that the
    appellants claim could not succeed. This language  plain and obvious  is
    more appropriate to r. 21.01(1)(b), which governs a motion to strike out a
    pleading on the ground that it discloses no reasonable cause of action or
    defence: see
Paton Estate v. Ontario Lottery and Gaming Commission
,
    2016 ONCA 458, 131 O.R. (3d) 273, at para. 12; and
R. v. Imperial Tobacco
    Canada Ltd
.
, 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17-22.

[14]

More
    profoundly, neither civil rule was applicable in the circumstances of this case.
    This
habeas corpus
application was criminal in nature; it arises
    directly from the imposition of a penal sanction under the
Criminal Code
:
    see
Vukelich v. Mission Institution
, 2005 BCCA 75, 252 D.L.R. (4th)
    634, at para. 32. Accordingly, this application was governed by the
Criminal
    Proceedings Rules for the Superior Court of Justice (Ontario)
, SI/2012-7
    (the criminal rules). Rule 43 provides the foundation for prerogative relief
    applications, including
habeas corpus
.

[15]

On
    appeal, the respondents position has shifted. It now relies on a number of
    criminal rules (rr. 1.04(1), (2), 2.01, and 6.11). Moreover, the respondent
    attempts to fortify its position by invoking
R. v. Jordan
, 2016 SCC
    27, [2016] 1 S.C.R. 631, stressing the need to prevent the criminal courts from
    becoming clogged by unmeritorious cases such as the appellants.

[16]

The
    criminal rule that is most applicable to these proceedings is r. 6.11(2), which
    provides:

Upon application by the respondent that a notice of
    application
does not show a substantial ground for the order sought
, a
    judge of the court
may
,
if he or she considers that the matter is
    frivolous or vexatious and can be determined without a full hearing
,
    dismiss the application summarily and cause the applicant to be advised
    accordingly.
[1]
[Emphasis added.]

[17]

This
    rule sets the bar quite high. The application must fail to show a substantial
    ground for the order sought; it must be frivolous and vexatious;
and
it must be capable of being determined without a full hearing. Even if these
    criteria are met, the power to dismiss remains discretionary. The test for
    dismissal under r. 6.11(2) differs substantially from, and is more onerous
    than, the tests under r. 21.01(1)(b) and r. 21.01(3)(a) of the civil rules.
    Moreover, unlike the r. 21.01 tests, the test under s. 6.11(2) contemplates
    summary dismissal without notice to the applicant  in other words, an
    application so devoid of merit it can be disposed of
ex parte
.

[18]

In
    my view, it cannot be said that the appellants claim does not show a
    substantial ground or that it is frivolous or vexatious, for the following
    three reasons. First, when his previous
habeas corpus
application was
    terminated, it was without prejudice to commencing a new application. The
    appellant did just that by launching his new application. The new application
    is not, therefore, vexatious.

[19]

Second,
    the appellant raises grounds that are arguably unique, operating outside of the
Lyons/Gamble/Sarson/Gallichon
framework. The appellants
habeas
    corpus
claims do not challenge the legality of his continued detention on
    the basis of legislative shifts; instead, he argues that the initial warrant of
    committal was invalid at the time it was issued.

[20]

Third,
    whether the appellant could have raised these complaints at his 1995 appeal
    from sentence is not a foregone conclusion; it is a live issue, the resolution
    of which may well turn on the scope of this courts dispositional powers under s.
    759 of the
Criminal Code
that were in force at the time of the 1995
    appeal.

[21]

I
    return to the authorities (in para. 9, above) that were urged on the
    application judge by the respondent in support of its motion to strike. They have
    no application to this case. Those decisions involved prisoners
seeking
habeas corpus

relief
    in response to lateral transfers between maximum security institutions. In each
    case, it was determined that there was no cognizable deprivation of liberty for
habeas corpus

purposes. This is very different from the
    situation faced by the appellant who, after 30 years, seeks to challenge the
    legality of his initial and continued detention as a dangerous offender.

[22]

I
    acknowledge that the application judge provided detailed reasons for his
    decision. He grappled with the merits of the application. However, his judgment
    was rendered in response to a motion for summary dismissal, predicated on
    inapplicable civil rules. Given the unique nature of the appellants
habeas
    corpus
application, it was neither expedient nor in the interests of justice
    to short circuit his application through a procedure not contemplated by the
    criminal rules.

[23]

The
    appellant argues that, if the application judge erred in striking his application,
    this court should consider the
habeas corpus
claim on the merits and
    grant him the relief that he seeks. The respondent resists this approach. It
    claims that the case cannot be decided on the merits because the record is
    incomplete. The respondent wishes to adduce evidence in support of its
    position.

[24]

Even
    though the record is incomplete as a result of the respondents misplaced
    motion to strike, I would not be prepared to adjudicate on the merits of the
    appellants claim on the record that is presently before this court, and
    without the benefit of any further findings that a judge may make after a full
    hearing on the merits.

D.

disposition

[25]

I would allow the appeal, set aside the decision of the application
    judge, and remit the case to the Superior Court of Justice for a full hearing
    on the merits.

Released: PL FEB 8
    2019

Gary T. Trotter
    J.A.

I agree. Janet
    Simmons J.A.

I agree. P. Lauwers
    J.A.

[1]

See
Severin v. Bath Institution
, 2018 ONSC 6096, in
    which Mew J. (the same judge who decided
Firbank
) considered an
    application to dismiss a
habeas corpus
proceeding under r. 6.11(2). The
    application was brought
ex parte
. Mew J. refused to dismiss the
    application summarily, without the attendance in court of Mr. Severin.


COURT OF APPEAL FOR ONTARIO

CITATION: Grayson Consulting Inc. v. Lloyd, 2019 ONCA 79

DATE: 20190206

DOCKET: C65320

Juriansz, Brown and Roberts JJ.A.

BETWEEN

Grayson Consulting Inc.

Plaintiff (Appellant)

and

Clifford Lloyd

Defendant (Respondent)

Gregory Sidlofsky, for the appellant

Marc Munro, for the respondent

Heard: December 7, 2018

On appeal from the judgment of Justice James F. Diamond
    of the Superior Court of Justice, dated April 3, 2018, with reasons reported at
2018 ONSC 2020
.

Brown J.A.:

I.

OVERVIEW

[1]

The appellant, Grayson Consulting, Inc. (Grayson), obtained an August
    20, 2014 default judgment in the amount of US $451,435,577.37 against the
    respondent, Clifford Lloyd, in the United States District Court for the
    District of South Carolina (the SC Default Judgment).

[2]

On December 8, 2017, Grayson commenced this Ontario action to recognize
    and enforce the SC Default Judgment. On December 20, 2017, Grayson secured an
ex
    parte

Mareva
injunction against Mr. Lloyd.

[3]

By order dated April 3, 2018, the motion judge set aside the
Mareva
injunction, holding that the action to enforce the SC Default Judgment was
    commenced outside the time period prescribed by the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sched. B.

[4]

Grayson appeals and seeks orders restoring the
Mareva
injunction and declaring that its action is not statute-barred.

[5]

For the reasons set out below, I would dismiss the appeal. I see no
    error in the motion judges conclusion that Graysons action is statute-barred
    and, on that basis, the
Mareva
injunction should be set aside.

II.

JURISDICTION

[6]

Mr. Lloyd raises a preliminary issue as to whether this appeal more
    properly lies to the Divisional Court because the order setting aside the
Mareva
injunction is interlocutory in nature. However, Mr. Lloyd does not press this
    argument with vigour, noting that the law on this issue is unclear. Given that in
    the course of setting aside the
Mareva
injunction the motion judge found
    that the enforcement action was statute-barred, thereby giving effect to a
    substantive defence that would end the action, I conclude that this court has
    the jurisdiction to consider the appeal.

III.

THE SOUTH CAROLINA ACTION

[7]

In August 2007, the bankruptcy trustee of Derivium Capital, LLC,
    commenced action No. 07-CV-02992-DCN in the United States District Court for
    the District of South Carolina (the District Court), against Mr. Lloyd and
    others, alleging that the defendants had defrauded numerous investors in a
    Ponzi or pyramid investment scheme (the 2992 Action). The Complaint alleged
    that Derivium had been used as one of the vehicles by which to perpetrate the
    fraud. At one point, Mr. Lloyd had acted as corporate counsel for Derivium.

[8]

The action against Mr. Lloyd and his co-defendants was one of several
    commenced relating to the failed Derivium investment scheme.

[9]

In June 2008, Mr. Lloyd, a resident of Ontario, filed an answer in the 2992
    Action. In November 2012, Grayson was substituted as plaintiff for the
    bankruptcy trustee.

[10]

Mr.
    Lloyd moved to dismiss the action for failure to state a claim against him. By
    order dated September 9, 2013, the District Court dismissed some of the claims
    pleaded against Mr. Lloyd, but allowed others to continue. At that point, Mr.
    Lloyd stopped participating in the proceeding.

[11]

A
    trial was held in two of the Derivium-related actions: the 2992 Action in which
    Mr. Lloyd and Tsuei Consultants, LLC were two of many defendants, and action
    No. 07-CV-0593-DCN in which Nigel Wood was a defendant (the 593 Action).
    Following the trial, in May 2014 Grayson and other plaintiffs in the 2992 and
    593 Actions moved for judgment as a matter of law against Mr. Lloyd and two
    other defendants  Tsuei Consultants and Wood  on the basis that each of the
    defendants had failed to comply with court orders and appear at the trial. In
    the alternative, Grayson argued that default judgment should issue against Mr.
    Lloyd.

[12]

That
    motion was joined with one in a related action, the Sandifer Action, in which
    default judgment was sought against Metarizon LLC, a company of which Jonathan Sandifer
    was the principal.

[13]

On
    August 20, 2014, the District Court released an order dealing with the motions
    in the three actions. In his order, the District Court judge observed that the
    Grayson plaintiffs had had ample time to pursue their claims against the few
    remaining defendants, including Mr. Lloyd, but their motions did not address
    all outstanding claims in the 2992, 593, and Sandifer Actions. He stated: The
    court interprets plaintiffs silence as voluntary dismissal and will dismiss
    any claims not discussed in the three pending motions.

[14]

The
    District Court judge granted: (i) default judgment against Mr. Lloyd and Tsuei
    Consultants in the 2992 Action; (ii) default judgment and entry of judgment
    against Wood in the 593 Action; and (iii) default judgment against Metarizon in
    the 593 and Sandifer Actions. As noted, the default judgment granted against Mr.
    Lloyd was for the amount of US $451,435,577.37. Significantly, the District
    Court judge also dismissed any and all remaining claims against all other
    defendants that have not otherwise been addressed by this order in the 2992,
    593 and Sandifer Actions, save for those against Mr. Sandifer, which had been
    stayed by reason of his bankruptcy.

[15]

No
    appeal was taken from the SC Default Judgment against Mr. Lloyd. Appeals were
    taken to the United States Court of Appeals for the Fourth Circuit (the Appeal
    Court) against some of the orders made in respect of other defendants in the
    three actions. I will consider the effect of those appeals on the SC Default
    Judgment against Mr. Lloyd in more detail later in these reasons.

[16]

On
    March 7, 2016 the Appeal Court rendered judgment on the consolidated appeals in
    the 2992, 593 and Sandifer Actions. It then issued a March 29, 2016 Mandate in
    the consolidated appeals stating that on that date its March 7 judgment took
    effect.

IV.     THE ONTARIO ENFORCEMENT ACTION

The
ex parte Mareva
injunction

[17]

Alan
    Grayson, the President of Grayson, deposed that after the Mandate was issued he
    took steps to determine whether Mr. Lloyd had any assets. He contended that it
    was not until October 2017 that he discovered Mr. Lloyd had assets in Ontario,
    notwithstanding that Mr. Lloyd had lived in Ontario during the entirety of the
    South Carolina proceeding.

[18]

On
    December 8, 2017, Grayson commenced this action to recognize and enforce the SC
    Default Judgment. Dietrich J. granted an
ex parte Mareva
injunction
    against Mr. Lloyd on December 20, 2017. On the return of the motion on January
    2, 2018, Mr. Lloyd raised the issue that Graysons claim was statute-barred.
    Dietrich J. extended the
Mareva
injunction until the hearing of Mr.
    Lloyds motion relating to the limitation period issue.

[19]

On
    January 30, 2018, Mr. Lloyd filed a statement of defence asserting numerous
    defences to the enforcement action, including that the claim was time-barred.

[20]

The
    motion judge adjourned the motion to permit both parties to file expert
    evidence on issues relating to the procedures in the District and Appeal
    Courts.

The experts

[21]

Both
    parties filed evidence from practising South Carolina attorneys. Grayson filed
    an affidavit from Mr. Joseph C. Wilson IV; Mr. Lloyd filed one from Mr. Brian
    C. Duffy.

[22]

Mr.
    Wilson and Mr. Duffy did not file signed Form 53 acknowledgements of experts
    duty. As the motion judge observed, at para. 22, [n]either Wilson nor Duffy
    appear to be impartial, having been previously retained to act at various
    stages in the SC action and US Court of Appeal proceedings. Mr. Wilson had
    represented Grayson in the Derivium-related litigation; Mr. Duffy had acted for
    some of the defendants on the consolidated appeals to the Appeal Court. However,
    Mr. Duffy did state that his opinion had been prepared for use pursuant to Rule
    4.1 of the
Rules of Civil Procedure
, thereby recognizing the duties
    imposed by the
Rules
on experts.

[23]

The
    lack of independence of the two attorney experts from the parties or the underlying
    litigation could well have affected the admissibility of their evidence:
White
    Burgess Langille Inman v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2
    S.C.R. 182, at paras. 45 and 47; Janet Walker,
Canadian Conflict of Laws,
loose-leaf
    (Rel. 2017), 6th ed. (Toronto: LexisNexis, 2005), at §7.3. However, neither Mr.
    Wilson nor Mr. Duffy was cross-examined on their respective affidavits and
    neither party contested the admissibility of their evidence below or before
    this court. The motion judge evidently regarded the evidence as sufficiently
    reliable for consideration.

The reasons of the motion judge

[24]

In
    setting aside the
Mareva
injunction, the motion judge held that the
    action was commenced outside the two-year time period prescribed by the
Limitations
    Act, 2002
. He reached that conclusion for two reasons.

[25]

First,
    the motion judge held that it was legally appropriate for Grayson to commence
    this proceeding seeking enforcement of the SC judgment after the time to appeal
    the SC judgment in South Carolina had expired (i.e. 30 days after August 22,
    2014) but the proceeding was not commenced until over three years after that
    date: at para. 33.

[26]

Second,
    the motion judge rejected Graysons submission that the limitation period to
    enforce the SC Default Judgment did not begin to run until he actually knew Mr.
    Lloyd had exigible assets in Ontario. The motion judge stated, at para. 37:

[O]nce the SC judgment became final (i.e. 30 days after August
    22, 2014), Grayson was under an obligation to conduct itself with due diligence
    with respect to seeking enforcement opportunities against Lloyd. While
    this does not mean that Grayson had an obligation to conduct a worldwide search
    of possible assets, it was already in possession of enough information about
    Lloyds real and substantial connection to Ontario that it ought to have taken
    investigatory steps when the SC judgment became final, or shortly thereafter.

IV.

ISSUES ON APPEAL

[27]

Grayson
    submits the motion judge made two errors in setting aside the
Mareva
injunction. First, the motion judge incorrectly held that the limitation period
    for an action to enforce the SC Default Judgment began to run 30 days after the
    date of its entry, August 22, 2014, instead of from the date of the Appeal
    Courts March 29, 2016 Mandate in the consolidated appeals. Second, the motion
    judge erred in holding that Grayson ought to have known that Mr. Lloyd had
    exigible assets in Ontario as at the date of the SC Default Judgment.

V.

FIRST GROUND OF APPEAL: DID THE MOTION JUDGE ERR IN HOLDING THAT TIME BEGAN
    TO RUN 30 DAYS AFTER THE DATE OF OF THE SC DEFAULT JUDGMENT?

A.      The governing legal principles

[28]

In
Independence Plaza 1 Associates, L.L.C. v. Figliolini
, 2017 ONCA 44, 136
    O.R. (3d) 202, this court held, at para. 3, that: (i) the basic two-year
    limitation period in s. 4 of the
Limitations Act, 2002
applies to a
    proceeding on a foreign judgment; and (ii) the limitation period begins to run,
    at the earliest, when the time to appeal the foreign judgment has expired or,
    if an appeal is taken, the date of the appeal decision, unless the claim on the
    foreign judgment was not discovered within the meaning of s. 5 of the
Limitations
    Act, 2002
until a date later than the appeal decision.

[29]

When
    the time to appeal a foreign judgment expires is a matter of the law of the
    foreign jurisdiction. In Ontario, foreign law is treated like a fact, the proof
    of which generally requires opinion evidence from a properly qualified expert:
    Walker, at §7.1 and §7.3. The appropriate standard of appellate review on
    questions of foreign law is correctness:
General Motors Acceptance Corporation
    of Canada, Limited v. Town & Country Chrysler Limited
, 2007 ONCA 904, 88
    O.R. (3d) 666, at para. 35.

B.      Application of the governing legal principles

The expiration of the appeal period under the
Federal Rules of
    Appellate Procedure

[30]

In
    his opinion, Mr. Duffy  the expert proffered by Mr. Lloyd  expressly
    considered the operation of both the United States
Federal Rules of Civil
    Procedure
and
Federal Rules of Appellate Procedure
. He opined
    that the SC Default Judgment was final and appealable on August 20, 2014, and
    no party appealed that judgment within the thirty-day timeframe.

[31]

By
    contrast, Mr. Wilson, the expert relied upon by Grayson, did not express an
    opinion based on the
Federal Rules of Civil Procedure
and
Federal
    Rules of Appellate Procedure
on the issue framed by this court in
Figliolini
- i.e. when did the time to appeal the foreign judgment expire? Mr. Wilson did not
    opine on when the time for filing a notice of appeal of the SC Default Judgment
    expired under Rule 4 of the
Federal Rules of Appellate Procedure
.

[32]

Instead,
    Mr. Wilson sought to re-cast the
Figliolini
test as an inquiry into
    when all proceedings in the foreign jurisdiction had run their course.
    Although no party appealed the SC Default Judgment against Mr. Lloyd, Mr.
    Wilson contended that the existence of the consolidated appeals in respect of
    other defendants in the Derivium litigation meant that all proceedings in the
    foreign jurisdiction had not run their course until the Appeal Court released
    its Mandate on March 29, 2016. Only then did time begin to run in respect of
    any action to enforce the SC Default Judgment against Mr. Lloyd.

[33]

Mr.
    Wilsons opinion mischaracterizes the test in
Figliolini
, which this
    court set out clearly at paras. 3(b) and 77 of its decision:

The limitation period begins to run, at the
    earliest, when the time to appeal the foreign judgment has expired or, if an
    appeal is taken, the date of the appeal decision. The time may be longer if the
    claim was not discovered within the meaning of
s. 5
of the
Limitations Act, 2002
, until a date later than the appeal decision.

In the usual case, it will not be legally
    appropriate to commence a legal proceeding on a foreign judgment in Ontario
    until the time to appeal the judgment in the foreign jurisdiction has expired
    or all appeal remedies have been exhausted. The foreign appeal process has the
    potential to resolve the dispute between the parties. If the judgment is
    overturned, the debt obligation underlying the judgment creditors proceeding
    on the foreign judgment disappears.

[34]

At
    para. 80 of
Figliolini
, this court noted that
this
    approach avoids the risk of multiplicity of proceedings by not requiring the
    judgment creditor to commence a proceeding on a foreign judgment in Ontario
    before all proceedings in the foreign jurisdiction have run their course.
    However, the reference to whether proceedings have run their course was made
    in respect of the status of the foreign proceedings as between the foreign
    judgment creditor and the foreign judgment debtor, not as between the foreign
    judgment creditor and any other party to the foreign litigation.

[35]

In the present case, there was no dispute that neither Grayson nor Mr.
    Lloyd appealed the SC Default Judgment within the 30-day appeal period available
    to them under Rule 4 of the
Federal Rules of Appellate Procedure
.
    In the ordinary course, time under the
Limitations Act, 2002
would
    have started to run upon the expiration of the 30-day appeal period in
    accordance with the principles in
Figliolini
.

The effect of Rule 54(b) of the
Federal Rules of Civil Procedure
on the expiration of the appeal period

[36]

However, Grayson submits that the ordinary course application of the
Figliolini
principles must be modified by taking into account the operation of
    Rule 54(b) of the
Federal Rules of Civil Procedure
, which states:

Judgment on Multiple Claims or Involving Multiple
    Parties.
When an action presents more than one claim for
    relief--whether as a claim, counterclaim, crossclaim, or third-party claim--or
    when multiple parties are involved, the court may direct entry of a final
    judgment as to one or more, but fewer than all, claims or parties only if the
    court expressly determines that there is no just reason for delay.
Otherwise, any order or other decision, however designated,
    that adjudicates fewer than all the claims or the rights and liabilities of
    fewer than all the parties does not end the action as to any of the claims or
    parties and may be revised at any time before the entry of a judgment
    adjudicating all the claims and all the parties' rights and liabilities
.
    [Emphasis added.]

[37]

In
    their submissions, Grayson and Lloyd advance different interpretations of Rule
    54(b) and its effect on the running of the appeal period for the SC Default
    Judgment. However, neither party filed American case law that described the
    origins and purpose of Rule 54(b).

[38]

When
    reviewing a lower courts findings of fact regarding foreign law, this court
    may not reinterpret the law. However, we can consider the evidence upon
    which the expert opinion is based to determine if there is a reasonable
    relationship between the evidence upon which the opinion is based and the
    opinion itself:
Lind v. Sweden
(1987), 23 O.A.C. 62 (C.A.), at para.
    36. In so doing, this court may examine for itself the legislation and
    precedents referred to by the experts:
Allen v. Hay
, 64 S.C.R. 76, at
    p. 81.

[39]

Applying
    the approach described in the
Lind
and
Allen
cases, when one
    works through the cases referred to by Mr. Duffy in his expert report, together
    with the cases they in turn cite, one is led to the seminal decision of the
    United States Supreme Court in
Sears, Roebuck and Co. v. Mackey
(1956),
    351 U.S. 427 that explains the origins and purpose of Rule 54(b).

[40]

Under
    U.S. federal law a federal court of appeals has jurisdiction over appeals from
    all final decisions of the district courts of the United States: 28 U.S.C.
    §1291.
[1]
Before the adoption of the
Federal Rules
    of Civil Procedure
in 1939, United States federal courts applied the
    general rule that a judgment on some, but not all, of the claims in an action
    was not a final decision of the whole case and there was no authority for
    treating anything less than the whole case as a judicial unit for purposes of
    appeal:
Sears, Roebuck,
at pp. 431-2.

[41]

That
    changed with the enactment of the
Federal Rules of Civil Procedure
in
    1939. As described by the United States Supreme Court in
Sears, Roebuck
at p. 432:

[T]here came an increased opportunity for the liberal joinder
    of claims in multiple claims actions. This, in turn, demonstrated a need for
    relaxing the restrictions upon what should be treated as a judicial unit for
    purposes of appellate jurisdiction. Sound judicial administration did not
    require relaxation of the standard of finality in the disposition of the
    individual adjudicated claims for the purpose of their appealability. It did,
    however, demonstrate that, at least in multiple claims actions, some final
    decisions, on less than all of the claims, should be appealable without waiting
    for a final decision on all of the claims.

[42]

To
    meet this need, Rule 54(b) was promulgated in 1939, with amendments subsequently
    made to it. The purpose of the rule was described in
Sears, Roebuck
,
    at pp. 435-7:

I[t] does not relax the finality required of each decision, as
    an individual claim, to render it appealable, but it does provide a practical
    means of permitting an appeal to be taken from one or more final decisions on
    individual claims, in multiple claims actions, without waiting for final
    decisions to be rendered on all the claims in the case.
The
    amended rule does not apply to a single claim action nor to a multiple claims
    action in which all of the claims have been finally decided. It is limited
    expressly to multiple claims actions in which one or more but less than all
    of the multiple claims have been finally decided and are found otherwise to be
    ready for appeal
.

To meet the demonstrated need for flexibility, the District
    Court is used as a dispatcher. It is permitted to determine, in the first
    instance, the appropriate time when each final decision upon one or more but
    less than all of the claims in a multiple claims action is ready for appeal.
    This arrangement already has lent welcome certainty to the appellate procedure.
    Its negative effect has met with uniform approval. The effect so referred to
    is the rule's specific requirement that for one or more but less than all
    multiple claims to become appealable, the District Court must make both an
    express determination that there is no just reason for delay and an express
    direction for the entry of judgment. A party adversely affected by a final
    decision thus knows that his time for appeal will not run against him until
    this certification has been made.

The District Court cannot, in the exercise of its discretion,
    treat as final that which is not final within the meaning of s. 1291. But
    the District Court may, by the exercise of its discretion in the interest of
    sound judicial administration, release for appeal final decisions upon one or
    more, but less than all, claims in multiple claims actions. [Emphasis added.]

[43]

Grayson argues that since appeals by other parties in the three grouped
    Derivium actions proceeded after the issuance of the SC Default Judgment
    against Mr. Lloyd and Mr. Lloyds name was included in the appeals style of
    cause, the SC Default Judgment adjudicate[d] few[er] than all the claims or
    the rights and liabilities of fewer than all the parties. As a result,
    according to Grayson, the SC Default Judgment could be revised at any time
    before the entry of a judgment adjudicating all the claims and all the parties
    rights and liabilities pursuant to Rule 54(b). It follows, Grayson submits,
    that Mr. Lloyd could have re-opened the SC Default Judgment up until the Appeal
    Court issued its March 2016 Mandate in respect of the consolidated appeals, even
    though Mr. Lloyd did not participate in the consolidated appeals.

[44]

The motion judge rejected Graysons argument stating, at paras. 29-31:

In my view, Graysons position is incorrect. Graysons position
     that Lloyd could have moved to re-open the SC action as against him had the
    result of Graysons consolidated appeals been of benefit to Lloyds
    jurisdiction argument - runs contrary to the holdings in
Figliolini
. The
    time for Lloyd to appeal the SC judgment in South Carolina expired 30 days
    after the date the SC judgment was released.
It cannot
    lie in Graysons mouth to state that the SC action had yet to run its course
    because all appeal remedies had yet to be exhausted when neither Grayson nor
    Lloyd sought any relief against each other within the consolidated appeals.

In the US Court of Appeal caption, Grayson is listed as a
    Plaintiff  Appellant, Vision and Total are listed as Defendants
    Appellees (another word for respondent), and Lloyd is listed as a Defendant.
    While Lloyd may have been listed as a party to the appeal in the caption, he is
    not listed as a respondent to Graysons appeal.

Lloyd never appealed the SC judgment, and Grayson never
    appealed the SC judgment against Lloyd. As such, no relief against each other
    was available to either Grayson or Lloyd in the consolidated appeal. The SC
    judgment against Lloyd could not have been overturned by the US Court of Appeal
    since its jurisdiction to do so was never engaged by Grayson and/or Lloyd
    themselves. [Emphasis added.]

[45]

I
    see no error in the motion judges analysis that warrants appellate
    intervention. I reach that conclusion for two reasons.

[46]

First,
    the expert evidence filed by Grayson does not support its submission that as Mr.
    Lloyd could have reopened the SC Default Judgment at any time up until the
    Appeal Courts Mandate, the time to appeal the SC Default Judgment did not
    expire until the date of the Mandate.

[47]

Rule
    4(a)(1)(A) of the
Federal Rules of Appellate Procedure
requires that a
    notice of appeal must be filed with the district clerk within 30 days after
    entry of the judgment or order appealed from.
[2]
The SC Default Judgment was entered on
    August 20, 2014. Although Mr. Wilson referred to Rule 54(b) in his affidavit,
    he offered no opinion about the effect of that rule on when the 30-day appeal
    period under the
Federal Rules of Appellate Procedure
began to run in
    respect of the SC Default Judgment. Indeed, his opinion is devoid of any
    consideration of the jurisprudence surrounding the effect of Rule 54(b) on the
    SC Default Judgment, including the effect on any appeal period for the SC
    Default Judgment under the
Federal Rules of Appellate Procedure
in
    light of appeals taken from other orders in the consolidated actions.

[48]

Second,
    by contrast Mr. Duffy dealt at some length with the Rule 54(b) jurisprudence
    and its potential application to the South Carolina proceedings. He opined that
    the direction of entry of a final judgment referred to in the rule was not
    required in respect of the SC Default Judgment issued against Mr. Lloyd in the
    2992 Action because:

[A]s of August 20, 2014, the Clerk and/or District Court had
    entered final judgments in the form of dismissals, jury verdicts, or default
    judgments with respect to all of the defendants in the -2992 Case. As of August
    20, 2014, the only remaining, pending claims were against Defendant Sandifer,
    and he was not a party to the -2992 Case.

Consequently  the August 20, 2014 Order rendered the August
    20, 2014 judgments final  even though the stayed claims against
Sandifer
in the other, consolidated matter had not been
    adjudicated  because the Order adjudicated all remaining claims in the -2992
    Case and the finality of the judgments would not affect Mr. Sandifers rights
    in the bankruptcy proceeding. Thus, all of the interests underlying the
    finality rule and Appellant Graysons actions, as well as common sense, dictate
    that the judgments were in fact final and appealable as of August 20, 2014.

[49]

This
    part of Mr. Duffys opinion finds support in the Appeal Courts March 29, 2016
    Mandate, which stated that its judgment entered March 7, 2016 (the March 7
    Appeal Judgment) took effect on March 29, 2016. The March 7 Appeal Judgment
    disclosed that Grayson and other plaintiffs had appealed two rulings of the
    District Court: (i) its dismissal of claims against Vision International People
    Group, P.L., for want of jurisdiction; and (ii) its dismissal of claims against
    Randolph Anderson, Patrick Kelley and Total Eclipse International Ltd. on the
    basis that they disclosed no cause of action recognized by South Carolina law.
    Vision International and Total Eclipse had been named as defendants in the 2992
    Action and another proceeding. Anderson and Kelley were not defendants in the 2992
    Action.

[50]

The
    March 7 Appeal Judgment dismissed both appeals, affirming the District Courts
    judgments in respect of Vision International, Total Eclipse, Anderson, and
    Kelley. The Mandate subsequently issued by the Appeal Court on March 29, 2016
    indicated that it was in respect only of the appellees, Vision International,
    Total Eclipse, Anderson, and Kelley, and stated: The judgment of this court,
    entered March 7, 2016, takes effect today.

[51]

Significantly,
    the March 7 Appeal Judgment did not purport to deal with any other judgment
    issued by the District Court. Specifically, it did not affect the SC Default
    Judgment. To state the obvious, that is understandable because neither Grayson
    nor Mr. Lloyd appealed the SC Default Judgment.

[52]

Given
    the state of the record, I see no error in the motion judges conclusion, at
    para. 29, that [i]t cannot lie in Graysons mouth to state that the SC action
    had yet to run its course because all appeal remedies had yet to be exhausted
    when neither Grayson nor Lloyd sought any relief against each other within the
    consolidated appeals. The District Courts August 20, 2014 order disposed
    of all remaining claims in the 2992 Action, in part by granting the SC Default
    Judgment. Under the
Federal Rules of Appellate Procedure
, the time to
    appeal the SC Default Judgment expired 30 days after the judgments entry on
    August 20, 2014. Grayson failed to demonstrate that Rule 54(b) of the
Federal
    Rules of Civil Procedure
altered that appeal period. Consequently, the motion
    judge correctly concluded that [i]t was therefore legally appropriate for
    Grayson to commence this proceeding seeking enforcement of the SC judgment
    after the time to appeal the SC judgment in South Carolina had expired (i.e. 30
    days after August 22, 2014): at para. 33.

[53]

Grayson
    did not commence this enforcement action until December 8, 2017, more than two
    years after the expiration of the appeal period for the SC Default Judgment. As
    a result, I see no error in the motion judge setting aside the
Mareva
injunction on the basis that Grayson had failed to demonstrate a strong
prima
    facie
case that it had commenced the action less than two years after the
    appeal period expired:
Aetna Financial Services Ltd. v. Feigelman
,
    [1985] 1 S.C.R. 2, at p. 27.

[54]

Accordingly,
    I would not give effect to this ground of appeal.

VI.

SECOND GROUND OF APPEAL: DID THE MOTION JUDGE ERR IN FAILING TO FIND
    THAT TIME DID NOT BEGIN TO RUN UNTIL GRAYSON HAD ACTUAL KNOWLEDGE THAT MR.
    LLOYD HAD ASSETS IN ONTARIO?

[55]

Grayson
    submits the motion judge erred in rejecting its argument that the limitation
    period ought not to commence until such time as it had actual knowledge that Mr.
    Lloyd had exigible assets within Ontario.

[56]

I
    do not agree. While in
Figliolini
this court observed, at para. 82,
    that [i]n a particular case, a claim based on a foreign judgment may not be
    discovered under s. 5 of the
Limitations Act, 2002
until such time as
    the judgment creditor knew or ought to have known that the judgment debtor had
    exigible assets in Ontario and could be served with process, this court went
    on to emphasize that [a]s s. 5(1)(b) makes clear, the discoverability
    assessment, including the appropriateness criterion, must take account of the
    factual context and the plaintiffs actual circumstances.

[57]

Section
    5(1) of the
Limitations Act, 2002
states that a claim is discovered on
    the earlier of:

(i) the s. 5(1)(a) date
    i.e., the day on which the person with the claim first knew that the injury,
    loss or damage had occurred, was caused by an act or omission of the defendant,
    and a proceeding would be an appropriate means to seek to remedy it; and

(ii) the s. 5(1)(b) date
    i.e., the day on which a reasonable person with the abilities and in the
    circumstances of the person with the claim first ought to have known of the
    matters referred to in [s. 5(1)(a)].

[58]

In
    the present case, the reasons of the motion judge disclose he concluded that
    the day on which a reasonable person ought to have known of the matters
    referred to in s. 5(1)(a) was the date of entry of the SC Default Judgment. The
    motion judge held that once the SC judgment became final (i.e. 30 days after
    August 22, 2014), Grayson was under an obligation to conduct itself with due
    diligence with respect to seeking enforcement opportunities against Lloyd and
    it was already in possession of enough information about Lloyds real and
    substantial connection to Ontario that it ought to have taken investigatory
    steps when the SC judgment became final, or shortly thereafter.

[59]

That
    conclusion was amply supported by the evidence. The record was clear that
    throughout the South Carolina litigation, Grayson knew that Mr. Lloyd was a
    resident of Ontario practising law in Hamilton: at para. 36. In those
    circumstances, one would expect a reasonable judgment creditor to take prompt steps
    to enforce a foreign judgment in the jurisdiction where the judgment debtor resides
    when the time to appeal the foreign judgment expires or, if an appeal is taken,
    when the appeal is decided. In the circumstances, when the 30-day period to appeal
    the SC Default Judgment expired, a proceeding to enforce the judgment in
    Ontario was an appropriate means to remedy Graysons loss. Accordingly, I
    would not give effect to this ground of appeal.

VII.    DISPOSITION

[60]

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

[61]

I
    would award Mr. Lloyd his costs of the appeal fixed on a partial indemnity
    basis at $16,000, inclusive of disbursements and applicable taxes.

Released: DB Feb 6, 2019

David Brown J.A.
I agree. R.G. Juriansz J.A.

I agree. L.B. Roberts J.A.

[1]

Expert Report of Mr. Duffy, Exhibit Book, Vol. 2, p. 435.

[2]

Ibid.


COURT OF APPEAL FOR ONTARIO

CITATION: Haas v. Viscardi, 2019 ONCA 133

DATE: 20190221

DOCKET: C65496

Feldman, Brown and Miller J.A.

BETWEEN

Andreas Haas

Plaintiff (Respondent)

and

Luca Viscardi

Defendant (Appellant)

Paul Gemmink and Heather Catania, for the appellant

Andrew H. Ottaway, for the respondent

Heard and released orally: February 19, 2019

On appeal from the judgment of Justice Jane Ferguson of
    the Superior Court of Justice dated May 8, 2018, with reasons reported at 2018
    ONSC 2883.

REASONS FOR DECISION

[1]

The motion judge gave thorough reasons explaining why the default
    payment of $60,000 in the settlement agreement was reasonable and not
    unconscionable in the circumstances. We see no error in her analysis or the
    conclusion that she reached. The appeal is dismissed.

[2]

The appellant shall pay the respondent costs of the appeal in the amount
    of $12,000, inclusive of disbursements and all applicable taxes, in accordance
    with the terms of the settlement agreement.

K.
    Feldman J.A.
David Brown J.A.
B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Halat (Re), 2019 ONCA 112

DATE: 20190214

DOCKET: C65040

Feldman, Lauwers and Nordheimer JJ.A.

IN THE MATTER OF: Derek Halat

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti,
amicus curiae

Derek Halat, in person

Philippe Cowle, for the Attorney General

Julie Zamprogna
Ballès
,
    for the Southwest Centre for Forensic Mental Health Care, St. Josephs Health
    Care London

Heard: January 29, 2019

On appeal from the
    disposition of the Ontario Review Board dated February 1, 2018.

REASONS FOR DECISION

[1]

The appeal before the court is from the disposition of the Ontario
    Review Board dated February 1, 2018, where the appellant was ordered detained
    subject to conditions including the ability of the person in charge to allow
    the appellant to live in the community in supervised accommodation.

[2]

For reasons not fully explained, the Board scheduled the appellants 2019
    annual review hearing for January 11, 2019, and proceeded with that hearing,
    although this appeal was scheduled to be heard on January 29, 2019. We are told
    that Board-appointed
amicus
for the appellant at the January 11 review
    (not Ms. Szigeti) was not aware of this appeal, and therefore did not address with
    the appellant the issue of seeking an adjournment of the January 11 review until
    after the appeal of the 2018 disposition.

[3]

The Boards disposition was released on January 14, 2019. It again ordered
    the appellants detention with conditions. The only changes from the 2018
    disposition are: 1) the appellant may now enter the community of Southwestern
    Ontario, indirectly supervised; and 2) the condition regarding living in the
    community now states that it is to be in 24-hour supervised accommodation.

[4]

Because this appeal had become moot, the disposition under appeal having
    been superseded by the 2019 disposition, all counsel wrote to the court to
    alert it to that issue. In response, the court offered to use the time set for
    the appeal of the 2018 disposition to hear an appeal from the 2019 disposition
    if counsel were able to provide any additional material they felt was
    necessary. Unfortunately, counsel were not able to take up the courts offer
    because the Board had not yet delivered its reasons for the January 14, 2019 disposition.

[5]

At the hearing, counsel for the Crown submitted that although the appeal
    was moot, it would be appropriate for the court to hear the appeal from the
    2018 disposition. He said this for two reasons.  The first was that the
    hospital had undertaken to immediately seek a new hearing following the release
    of this courts decision, so that the effect of hearing the appeal would be to
    provide the Board with the courts view on the 2018 disposition before it holds
    the new hearing.  The second was that hearing this appeal could obviate the
    procedural unfairness issue the appellant raised in his notice of appeal of the
    2019 disposition:  by dealing with this appeal and providing reasons to the
    Board before it conducts the new hearing that the hospital undertook to request,
    this court would eliminate the appellants concern about the Boards 2019
    review having proceeded before this appeal.

[6]

After hearing full submissions on the mootness issue, the court advised
    the parties that it would not proceed to hear the moot appeal.  We said that we
    would deliver brief reasons for that decision. These are those reasons.

[7]

The seminal case from the Supreme Court of Canada on the question of when
    a court should exercise its discretion to hear a moot case or appeal is
Borowski
    v. Canada (Attorney General)
, [1989] 1 S.C.R. 342, where the court
    mandated a two-step process for the analysis. The first step is to decide
    whether the case or appeal is moot, i.e. whether there remains a live
    controversy that affects the rights of the parties. If there is not and the case
    or appeal is therefore moot, the general rule is that the court will not hear
    the matter.

[8]

However, the court must decide whether it should exercise its discretion
    to hear and decide the case or appeal in any event, considering three factors: 1)
    whether the necessary adversarial context remains, which may be provided by
    collateral consequences of the resolution of the issue between the parties; 2)
    despite the concern for judicial economy, whether special circumstances justify
    applying scarce judicial resources to the case because, for example, the case
    raises an important issue that will always be moot by the time it reaches
    appeal, or an issue that is a matter of public importance and in the public
    interest to resolve; 3) the need for the court to be aware of its proper law-making
    function and the extent to which it may be departing from its traditional role
    by hearing the case or appeal:
Borowski
, at pp. 358-63.

[9]

In answer to the first stage of the two-step analysis, it is clear that
    the appeal is moot because the 2018 disposition of the Board no longer governs
    or applies to the appellant. It is spent and of no further effect. There is
    therefore no live issue between the parties in relation to that disposition.

[10]

The
    second step is whether the court should hear the moot appeal in any event. Counsels
    main argument was that there were still collateral consequences because the
    appellant remains subject to the Boards jurisdiction and the Board should have
    the benefit of this courts views on its disposition for use in the future.

[11]

We
    do not accept that submission. To the contrary, because of the continuing
    jurisdiction of the Board over the appellant, it is important that this court
    only review dispositions of the Board where it can give a remedy for any
    reviewable error. These issues may well arise again between these parties for
    proper disposition on a current record. This court should not provide its
    opinion in the air and without binding effect. Similarly, in response to the
    submission by
amicus
counsel for the appellant that it would be useful
    for this court to rule on the meaning of "supervised accommodation, that
    is the courts role in the context of an appeal based on a record. It is
    neither useful nor appropriate for the court to opine on the meaning or
    parameters of a key tool of the Board on the basis of a record that has been superseded,
    and to issue a decision without binding effect on the parties.

[12]

As
    the parties have not demonstrated that the
Borowski
factors provide a
    basis to depart from the general rule against hearing a moot appeal in these
    circumstances, the appeal is dismissed. In light of what has transpired, the
    court is prepared to hear the appellants appeal from the January 14, 2019
    disposition or from any new disposition that the Board may make as soon as
    possible, and will accommodate counsel to achieve an early hearing date.

K.
    Feldman J.A.

P.
    Lauwers J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Iqbal v. Mansoor, 2019 ONCA 110

DATE: 20190214

DOCKET: C65591

Pepall, Trotter and Harvison Young JJ.A.

BETWEEN

Musharraf Iqbal

Applicant (Appellant)

and

Sohail Khawaja Mansoor and Gold International
    Inc.

Respondents (Respondents)

Musharraf Iqbal, acting in person

Paul Mand, for the respondents

Heard and released orally: February 8, 2019

On appeal from the
    order of Justice Gregory M. Mulligan of the Superior Court of Justice, dated
    June 22, 2018, with reasons reported at 2018 ONSC 3949.

REASONS FOR DECISION

[1]

The appellant commenced an action against the respondent for, among
    other things, damages of approximately $313,000 for breach of an agreement relating
    to the development of a property.

[2]

Pursuant to a consent order, the action was referred to arbitration. In
    that order, no provision was made for costs. On January 25, 2017, the
    arbitrator found in favour of the appellant and awarded him damages of
    $255,431. He invited submissions on costs and subsequently awarded the
    appellant costs of $20,000.

[3]

The respondent sought leave to appeal the award of the arbitrator and
    the appellant brought a cross-application to confirm the award pursuant to the
    provisions of the
Arbitration Act, 1991
, S.O. 1991, c. 17
.

[4]

On February 5, 2018, the respondents application for leave was
    dismissed and the appellants application for confirmation was granted:
Mansoor
    v. Iqbal
, 2018 ONSC 884. The applications judge then invited submissions
    on costs. The appellant claimed just over $100,000, largely for costs leading
    up to and including the arbitration.

[5]

On March 4, 2018, the applications judge rejected that request, stating that
    the costs up to and including the arbitration had already been accounted for by
    the arbitrator whose decision had been confirmed. However, the applications
    judge did award the appellant costs of $2,500 for the leave and confirmation
    motions.

[6]

The appellant then commenced a new application again seeking costs of
    just over $100,000.

[7]

On June 22, 2018, the application judge dismissed the new application on
    the basis that it was in essence an attempt to do indirectly what the appellant
    had been unable to do directly. The application judge had already dealt with
    the issue of costs associated with the parties dispute that was subject to
    arbitration in the March 4, 2018 order. He also refused to consider the appellants
    fresh evidence in the form of an email from the arbitrator stating that he had
    made his decision on costs, had no further jurisdiction, and could not award
    costs for any efforts prior to the arbitration or for the appeal. The
    application judge noted that this evidence could have been available when he
    had heard the earlier submissions as to costs made by the appellant. The
    application judge awarded $2,500 in costs to the respondent.

[8]

In dismissing the application, contrary to the submissions of the appellant,
    the application judge was not hearing an appeal of his prior order. There was
    no reason for him not to hear the June 22, 2018 new application.

[9]

The appellant subsequently filed a notice of appeal of the application
    judges June 22, 2018 order to this court. He asked that the order be set aside
    and that the costs award he was requesting be granted. He did not seek to
    appeal the March 4, 2018 order and had already obtained an order confirming the
    arbitrators award that addressed costs.

[10]

On
    October 11, 2018, this courts Senior Legal Officer wrote to the appellant
    advising that his appeal seemed to be only as to costs and leave to appeal must
    be granted before the appeal could proceed. The appellant disagreed. He did not
    seek leave to appeal, and has proceeded with his appeal.

[11]

In
    our view, the appellant was in error. An appeal of a costs decision requires
    leave. In spite of being advised of this deficiency, the appellant chose to
    proceed. In the absence of leave, this court has no jurisdiction and the appeal
    is quashed.

[12]

The
    appellant is to pay the respondent costs of the proceedings in this court fixed
    in the amount of $2,500, inclusive of disbursements and applicable tax.

S.E.
    Pepall J.A.

G.T.
    Trotter J.A.

Harvison
    Young J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Labadie (Re), 2019 ONCA 75

DATE: 20190204

DOCKET: C65479

Feldman, Lauwers and Nordheimer JJ.A.

IN THE MATTER OF: Nicole Labadie

AN APPEAL UNDER PART XX.1 OF THE
CODE

Stephen Gehl, for the appellant

Jeremy Tatum, for the respondent Attorney General of
    Ontario

Julie Zamprogna Balles, for the respondent Southwest
    Centre for Forensic Mental Health Care

Heard and released orally: January 28, 2019

On appeal from the disposition of the Ontario Review
    Board dated February 1, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The appellants position on this appeal is that the Ontario Review
    Boards decision that the appellant continued to pose a significant threat to
    the safety of the community was unreasonable and therefore she should have been
    discharged absolutely even though she asked the Board for a conditional
    discharge. The only remedy she seeks on this appeal is an absolute discharge.

[2]

The basis for the argument that the finding of significant threat was
    unreasonable is the evidence that the appellant was functioning for almost a
    year in full compliance with the order for conditional discharge made by the
    trial judge. While that was true, the doctor did not have full information about
    the appellant and remained concerned about the serious nature of the index
    offence, the appellants history of substance abuse and her continuing
    experience of symptoms of her mental condition.

[3]

In any event, all parties made a joint submission to the Board that
    significant threat was accepted and not an issue for the Board.

[4]

In our view, on the evidence and given the joint submission, the
    decision of the Board that the appellant continued to pose a significant threat
    was a reasonable one.

[5]

Counsel advised that the next annual review is scheduled for February 5,
    2019, where the Board will have the opportunity to address the issues on the
    current state of the evidence, and the proper disposition. The latter issue was
    not raised before us.

K.
    Feldman J.A.

P.
    Lauwers J.A.

I.V.B. Nordheimer J.A.