CITATION:
United States of
          America v.
Shanker
, 2011
          ONCA 452

DATE: 20110614

DOCKET: C52791 and C53318

COURT OF APPEAL FOR ONTARIO

Rosenberg, Lang and Watt JJ.A.

BETWEEN

The Attorney General of Canada on behalf of the United
          States of America

Respondent

and

Ravi Shanker

Appellant

Alan D. Gold, for the appellant

Richard Kramer, for the respondent

Heard:
May 18, 2011

On appeal from committal by Justice
          Julie A. Thorburn of the Superior Court of Justice dated September 22, 2010
          and an application for judicial review pursuant to s. 57 of the
Extradition Act
, S.C. 1999, c. 18.

ENDORSEMENT

[1]

This appeal from committal and review of the decision of
    the Ministers decision raise the same issue: the sufficiency of the evidence
    in the Record of the Case.  We are
    satisfied that there was sufficient evidence and that there are therefore no
    grounds to set aside the committal or the Ministers decision.

[2]

The appellant does not dispute that there was evidence
    of a conspiracy involving persons with whom the appellant was in contact.  The conspiracy involved the attempted
    delivery of 48 kilograms of cocaine from Los Angeles to Toronto.  The Authority to Proceed sets out the
    Canadian offence to which this conduct corresponds as conspiracy to traffic in
    a substance included in Schedule I to the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19
.
The United States
    authorities alleged that the appellant financed the transaction and oversaw the
    Canadian brokers involved in securing the deal.  The evidence against the appellant and the other alleged conspirators
    came principally from wiretaps that were in place from May to December
    2007.  The wiretaps show that by
    September 18, the alleged conspirators were arranging to ship 50 kilograms of
    cocaine, later reduced to 48 kilograms, by truck from California.  On September 21, the truck was stopped in New
    Mexico and the cocaine was seized.  By September
    22, conversations of the alleged conspirators indicated a concern that the
    shipment may have disappeared.

[3]

An important person in the alleged conspiracy is
    Narinder Singh who was alleged to be the broker and coordinator in Canada.  The communications on September 22 show Singh
    arranging a meeting to discuss the problem of the missing cocaine.  He then immediately called the appellant and
    told him that there is some small problem  from here 50 shirts  they said
    they have disappeared.  He told the appellant
    that he had gathered everybody.  The
    appellant replied, give me 10 to 15 minutes.

[4]

Another important alleged conspirator is Varinder
    Sahota who, it is alleged, acted as a broker and coordinator in Canada.  On September 23, Singh told Sahota that this
    is your responsibility.  Sahota in turn
    said that he was worried and mentioned the figure of $800,000 which he said was
    the value of the stuff.  About three
    weeks later, the intercepted communications show attempts by Singh and Sahota
    to obtain the funds.  Importantly, on
    October 12, Singh told Sahota to make a cheque in the name of R & S
    Liquidations, the appellants company.  A
    few minutes later Sahota told the appellant when it comes from England, I
    transfer it here to which the appellant replied take it under R & S name,
    dont worry.  A few days later, on
    October 18,
Sahota
was in communication with the
    appellant and told him that he was going to sell his house.  The appellant told him not to and also said,
    we have to take care of this problem  these guys are crazy and problem is
    that if it doesnt get resolved, it has to be resolved somehow.  On October 24, Sahota told another of the
    conspirators that the appellant had advised him not pay it.

[5]

Counsel for the Minister of Justice puts the case for
    extradition on two bases.  First, that
    the appellants prior involvement in the conspiracy to import can be inferred
    from the communications that took place immediately after the loss of the
    shipment.  Secondly, that even if the
    appellant only became involved after the shipment was seized his attempts to
    find funding bring him within this courts decision in
R. v. Neal
(2009)
,
263
    O.A.C. 201 (C.A.).

[6]

The appellant submits that these communications do not
    show that the appellant was a member of the conspiracy to import the cocaine
    into Canada.  At most the communications
    show that the appellant was contacted after the object of the conspiracy had
    been frustrated.  His exact involvement
    is uncertain; there is no evidence the appellant ever attended any meetings
    with the other conspirators or that he provided funds for the importing or to
    cover the loss.  He also submits that the
    extradition judge only committed on the basis of
R. v. Neal
, which is distinguishable, and that it would be unfair
    to uphold the committal on the basis of the theory that the appellant was
    involved in the conspiracy before seizure of the shipment.

[7]

We need not decide whether the appellants committal
    and extradition can be supported by the ratio in
Neal
.  In our view, there was
    sufficient evidence from which it could be inferred that the appellant had been
    involved in the conspiracy to import before the shipment was seized.  It would be a remarkable coincidence that
    immediately after the shipment went missing the conspirators would contact a
    stranger to the enterprise to attend a meeting to discuss the loss.  The appellant apparently had no difficulty
    understanding the purpose of the meeting [even though the purpose was referred
    to in code: a small problem with 50 shirts] and was immediately available to
    attend it.  A reasonable inference from
    the conversations involving the appellant when placed in context is that the
    appellant was involved in the importing scheme.  Another inference is perhaps available: that the conspirators decided to
    involve the appellant for the first time after the shipment was seized.  It is not for this court or the extradition
    judge to weigh competing reasonable inferences:  see
United States of America v.
    Anderson
(2007), 85 O.R. (3d) 380 (C.A.), at
para
.
    28 and
R. v. Arcuri
, [2001] 2 S.C.R.
    828, at paras. 29 and 30.

[8]

This courts jurisdiction on an appeal from committal
    is set out in s. 53 of the
Extradition
    Act
.  We can set aside the committal
    if the order was unreasonable or on the ground of a wrong decision on a
    question of law.  For the reasons set out
    above, the committal was not unreasonable.  Even if the extradition judge erred in relying upon
Neal
, a matter we need not decide, the appeal may still be
    dismissed if the court is of the opinion that no substantial wrong or
    miscarriage of justice has occurred.  Crown counsel argued before the extradition judge that the appellant
    could be committed for extradition on the basis of
Neal
or alternatively because the appellants prior involvement in
    the conspiracy could be inferred from the post-seizure conversations.  It would not be unfair to uphold the
    committal on this alternative basis.  No
    substantial wrong or miscarriage of justice has occurred given the sufficiency
    of the evidence.

[9]

The application for judicial review of the Ministers
    decision is similarly dismissed. As the Minister pointed out, in effect the
    applicant sought to have the Minister review the decision of the extradition
    judge concerning the sufficiency of the evidence, a matter reserved to this
    court.

[10]

Accordingly, the appeal from committal is dismissed and
    the application for judicial review is dismissed.

Signed: M. Rosenberg J.A.

S.
    E. Lang J.A.

David
    Watt J.A.


CITATION:
Young
      (Re), 2011 ONCA 432

DATE: 20110607

DOCKET: C52218

COURT OF APPEAL FOR ONTARIO

Doherty, Goudge and Armstrong JJ.A.

BETWEEN

The Person in Charge of Centre for Addiction and Mental
          Health

Appellant

and

Ian K. Young

Respondent

and

Her
          Majesty the Queen

Respondent

Jean D. Buie, for the appellant

Uma Kancharla, for the respondent, Young

A. Alyea, for the respondent, Her Majesty the Queen

Heard:  May 6, 2011

On appeal from the disposition of
          the Ontario Review Board dated April 23, 2010.

Doherty J.A.:

I

[1]

In November 1998, the respondent, Ian K. Young
    (Mr. Young), was charged with numerous serious criminal offences, including
    attempted murder and sexual assault.  In
    May 2001, he was found not criminally responsible on account of mental disorder
    (NCRMD).  He has been under the
    jurisdiction of the Ontario Review Board (Review Board) since then.

[2]

Mr. Young was initially held in hospital under a
    detention order.  He has lived in the
    community since March 2005.  At first, Mr.
    Young lived in the community under the terms of a detention order that gave the
    person in charge of the hospital where Mr. Young was detained the discretion to
    allow Mr. Young to live in the community at an approved residence.  By late 2006, Mr. Young was living in the
    community under the terms of a conditional discharge disposition made by the
    Review Board.

[3]

Mr. Young suffers from a longstanding serious
    mental illness.  Until August 2009, Mr.
    Young did relatively well in the community.  He took his medication, complied with the various terms imposed on him
    by the Review Board, maintained employment and kept up his own apartment.  He had support from friends and relatives.  Mr. Youngs condition was described as stable
    and he seemed able to function in the community.  Mr. Young would not, however, have anything
    to do with treatment.  He was quite
    hostile to those who attempted treatment and to the Review Board, which he saw
    as unduly restricting his liberty and stigmatizing him as a deviant person.

[4]

Unfortunately, Mr. Youngs condition
    deteriorated significantly beginning in August 2009.  He refused to comply with requests for
    drug-testing and may have stopped taking his medication.  In October 2009, he was involuntarily
    committed under the terms of the
Mental
    Health Act
, R.S.O. 1990, c. M.7.  Mr.
    Young remained in the hospital under that order until December 2009.

[5]

Mr. Youngs annual review hearing before the Review
    Board pursuant to s. 672.81(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46,

was
    scheduled to proceed in October 2009.  The hearing was adjourned until November.  At that time, the appellant (CAMH) took the
    position that Mr. Youngs decompensation required that he be ordered detained
    at CAMH with the condition that the person in charge at CAMH have the
    discretion to allow Mr. Young to live in the community.  The hospitals change in position
    necessitated a further adjournment of the annual review.

[6]

For various reasons, the annual review hearing
    did not proceed until March 2010.  By that
    time, Mr. Young was back living in the community.  CAMH maintained the position that a detention
    order was the appropriate disposition.  Counsel for Mr. Young submitted that the Review Board should order Mr.
    Young conditionally discharged on terms similar to those that had been imposed
    in the prior orders.

[7]

At the commencement of the annual review hearing
    in March 2010, the Board was asked to consider the effect of Mr. Youngs
    confinement in October 2009 pursuant to the
Mental
    Health Act
on the Boards obligations under Part XX.1 of the
Criminal Code
.  The Review Board ultimately determined that Mr.
    Youngs confinement under the
Mental
    Health Act
constituted a restriction on Mr. Youngs liberty that necessitated
    notification to the Review Board and a hearing under s. 672.81(2.1).  That hearing should have occurred soon after
    Mr. Youngs detention.

[8]

The Review Board then proceeded with its annual
    review of Mr. Youngs status.  The Review
    Board considered Mr. Youngs history in some detail.  It appeared that a new psychiatrist had taken
    charge of Mr. Youngs care in the summer of 2009 and that difficulties had developed
    as a result of Mr. Youngs reaction to the more proactive approach taken by
    those who became responsible for his treatment.  In the end, the Review Board decided to continue the order allowing Mr.
    Youngs discharge on conditions.  The
    Board imposed various conditions, two of which were new and are of some
    significance to this appeal.  Those terms
    required that Mr. Young:

·

upon notice by the person in charge of the
    hospital, will immediately submit to attendance and for readmission to
    hospital;  and

·

upon the request of the hospital, attend for
    psychiatric assessment, and upon notice of the person in charge, attend for
    admission to the hospital.

[9]

In addition, the Review Board, acting pursuant
    to s. 672.55(1) of the
Criminal Code
and
    with Mr. Youngs consent, required him to take his medication as required and
    to submit to testing to monitor his compliance with that direction.

[10]

CAMH appeals the disposition raising three
    issues:

·

Did the Review Board err in holding that
    confinement pursuant to the
Mental Health
    Act
triggers the requirement that the Review Board conduct a restriction of
    liberty hearing pursuant to s. 672.81(2.1)?

·

Did the Review Board err in law by imposing a
    disposition that blended a conditional discharge with a detention order
    resulting in a disposition that was not available under either ss. 672.54(b) or
    672.54 (c) of the
Criminal Code
?

·

If the Review Boards disposition was a
    conditional discharge under the terms of s. 672.54(b), was that order unreasonable
    in all the circumstances?

II

Was the Board Required to Hold a Restriction of Liberty Hearing When Mr.
    Young was Confined Under the
Mental Health Act
?

[11]

The disposition under appeal was made at the conclusion
    of the Review Boards annual review of Mr. Youngs status:  see s. 672.81(1).  In the course of its reasons, the Review
    Board found that Mr. Youngs confinement under the
Mental Health Act
in October 2009 triggered CAMHs obligation to
    notify the Board, which in turn required the Board to hold a hearing.  This finding ultimately had no effect on the
    Review Boards disposition or on Mr. Youngs status, and it is therefore
    unnecessary, in resolving the appeal, to determine the merits of the Boards conclusion.  Nevertheless, it is, I think, appropriate for
    this court to decide whether confinement under the
Mental Health Act
triggers the obligations under Part XX.1 of the
Criminal Code
.

[12]

Persons who are subject to dispositions under
    Part XX.1 will no doubt from time to time find themselves confined under the
Mental Health Act
.  This court should resolve the question raised
    on this appeal so that institutions like CAMH, as well as the Review Board,
    understand their obligations where a person who is subject to a disposition
    under Part XX.1 finds him or herself confined under the terms of the
Mental Health Act
.

[13]

With due respect to the contrary view expressed
    by the Review Board (and the Review Board differently constituted in other
    cases), I think the language of the
Criminal
    Code
clearly indicates that confinement under the
Mental Health Act
does not trigger the hearing requirement under s.
    672.81(2.1).

[14]

Under Part XX.1, the Review Board can make dispositions
    that include conditions allowing the person in charge of the hospital to
    increase or decrease the restrictions on the liberty of the person who is subject
    to the disposition:  see s.
    672.56(1).  Where the person to whom the
    power is delegated exercises it to restrict the liberty of the individual subject
    to the disposition, the added restriction is an exercise of the Review Boards
    power over the person subject to the disposition.

[15]

The person exercising the discretion in a manner
    that limits the liberty of the person subject to the disposition must comply
    with s. 672.56(2), which provides:

A person who increases the restriction on the
    liberty of the accused significantly
pursuant to authority delegated to the
    person by a Review Board shall

(a)

make
    a record of the increased restrictions on the file of the accused; and

(b)

give
    notice of the increase as soon as is practicable to the accused and, if the
    increased restrictions remain in force for a period exceeding seven days, to
    the Review Board.  [Emphasis added.]

[16]

The obligation of the Review Board when notified
    of the added restrictions on liberty is set out in s. 672.81(2.1):

The Review Board shall hold a hearing to review a
    decision to significantly increase the restrictions on the liberty of the
    accused, as soon as practicable
after receiving the notice referred to in s.
    672.56(2).
[Emphasis added.]

[17]

The
    language of the
Criminal Code
provisions leaves no doubt.  The
    obligation to hold a hearing found in s. 672.81(2.1) is triggered by the
    provision of notice to the Review Board, as set out in s. 672.56(2).  That notice is to be provided when
    restrictions on the liberty of an accused are significantly increased by a
    person acting pursuant to authority delegated to the person by a Review
    Board.  The purpose of the hearing is to
    review the restrictions resulting from that exercise of discretion.

[18]

The Board has a supervisory role over all of its
    dispositions, including those where it has delegated to someone else the power
    to restrict the liberty of an individual subject to a disposition.  Where the Review Board has made such an order
    and the power to restrict liberty is exercised, the Review Board, as the entity
    ultimately responsible for the order, must review it.  The relevant provisions of Part XX.1 provide
    for the necessary oversight and ensure that the Review Board will be aware of
    and ultimately responsible for any restrictions imposed under its
    authority.

[19]

An involuntary committal under the
Mental Health Act
has nothing to do with
    the Review Board or the terms of any disposition made by the Review Board.  Committal under the
Mental Health Act
depends on the criteria set out in that
Act
and is determined using the procedures
    set down in the
Mental Health Act
.

[20]

No one questions the competence of the province
    to enact the
Mental Health Act
.  Those who exercise confinement powers under
    the
Mental Health Act
are not subject
    to the authority of the Review Board or to the terms and conditions imposed by Part
    XX.1 of the
Criminal Code
.  The Review Board has no oversight role to
    play in connection with the exercise of powers under the
Mental Health Act
.  The
    exercise of those powers is reviewable by the Consent and Capacity Review Board:
    see
Mental Health Act
s. 39.  Confinement pursuant to the
Mental Health Act
is not a restriction
    on liberty made pursuant to any authority delegated to hospital personnel by
    the Review Board and is, therefore, not subject to the requirements of s.
    672.81(2.1).

[21]

In holding that an involuntary committal under
    the
Mental Health Act
does not
    trigger the Review Boards obligation to conduct a restriction on liberty
    hearing, I do not disregard the submissions of all counsel that it is important
    that the Review Board be made aware of any restrictions on the liberty of
    persons subject to a Review Board disposition.  Clearly, if a person subject to a Review Board disposition is confined
    under the terms of the
Mental Health Act
,
    the Review Board should be made aware of that order.

[22]

Steps can be taken to require that the Review Board
    be notified of any confinement under the
Mental
    Health Act
without torturing the language of the relevant sections of the
Criminal Code
.  The Review Board has the power to impose
    conditions, both in respect of detention orders and conditional discharges.  Those conditions can require the hospital to
    take certain steps, including notification to the Review Board if a person subject
    to a disposition is confined under the terms of the
Mental Health Act
.  If the Review
    Board includes that condition in its disposition and if it is notified that the
    person subject to the disposition has been confined under the
Mental Health Act
, the Review Board has
    the discretion to direct a hearing before it pursuant to s. 672.82(1) of the
Criminal Code
.  That section reads:

A Review Board may hold a hearing to review any of its
    dispositions at any time, of its own motion or at the request of the accused or
    any other party.

[23]

The approach that provides for notice to the Review
    Board of committal under the
Mental
    Health Act
as a condition of the Boards disposition, combined with the
    Review Boards exercise of its discretion to review its own disposition, is
    consistent with the language of the relevant sections of the
Criminal Code
and with the function of
    the Review Board.  That approach maintains
    the Review Boards focus on its own dispositions rather than on the merits of
    any intervening order made by an independent authority.

[24]

For the reasons set out above, the Review Board
    erred in finding that involuntary committal under the
Mental Health Act
for a period in excess of seven days triggered CAMHs
    obligation to give notice under s. 672.56(2), and in turn the Boards
    obligation to hold a hearing under s. 672.81(2.1).  That error, however, had no effect on the
    ultimate disposition imposed by the Board.  I turn now to the grounds of appeal that challenge that
    disposition.

III

Was the Review Boards Disposition Beyond the Scope of the Remedial Powers
    in Sections 672.54(b) and (c)?

[25]

Before the Review Board, and in this court, all
    parties agreed that Mr. Young, by virtue of his mental disorder, poses a
    significant threat to the safety of the public.  He could not be absolutely discharged.  The Review Board had two options.  It could discharge Mr. Young on conditions, as it had in the previous
    three orders, or it could order his detention in CAMH and give the person in
    charge the authority to allow Mr. Young to live in the community.  The Board had made this type of order prior
    to 2006.

[26]

The important difference between a conditional
    discharge and a detention order lies in the mechanism available to the hospital
    to return Mr. Young to the confinement of the hospital if necessary for the
    safety of the public.  If the Review
    Board released Mr. Young on a conditional discharge, it could return him to the
    hospital by convening a new hearing under s. 672.82(1), by resorting to the provisions
    governing breaches of conditional discharges found in s. 672.92, or through the
    committal provisions available under the
Mental
    Health Act
.  If, however, Mr. Young
    were subject to a detention order, he would be at large under the terms of a warrant
    of committal issued pursuant to s. 672.57.  If CAMH determined that the safety of the public required Mr. Youngs
    confinement in the hospital, it could simply direct the authorities to exercise
    the warrant and return Mr. Young to the hospital.  Re-confinement of persons who are subject to a
    detention order is significantly more expeditious than re-confinement of
    persons at large on a conditional discharge.  Re-confinement of persons under detention orders is also available as a
    preventative measure, whereas re-confinement of those under a conditional
    discharge will usually be available only after a breach of the conditions of
    that order.

[27]

The Review Board was faced with a difficult
    situation.  Mr. Young had fared quite well
    in the community for many years.  However, his condition had quickly and significantly deteriorated in the
    late summer and fall of 2009.  By the
    time the Review Board hearing commenced in March 2010, Mr. Youngs condition
    had settled and he was again doing relatively well in the community.  However, he continued to have no insight into
    his problems and was reluctant to participate in any treatment programs.

[28]

The Review Board decided that Mr. Young should
    remain in the community under a conditional discharge.  It attempted to address concerns for public
    safety should Mr. Young decompensate again by directing that he was required to
    return and be readmitted to the hospital if so directed by the person in charge
    of CAMH.

[29]

Counsel for CAMH submits that the Review Board
    was properly concerned about the risk Mr. Young posed should his condition once
    again deteriorate.  The Review Board
    appreciated that his speedy return to CAMH might be necessary for the safety of
    the public.  Counsel contends, however,
    that the disposition fashioned by the Review Board is, in effect, an amalgam of
    a conditional discharge and a detention order and is not an order that can be
    made under s. 672.54.

[30]

Counsel for CAMH interprets the Review Boards
    disposition as discharging Mr. Young conditionally, while at the same time
    imposing terms that would allow the hospital to require Mr. Youngs continued
    confinement at CAMH.  Counsel correctly
    submits that s. 672.54 does not contemplate a disposition in the form of a conditional
    discharge that includes conditions that give the hospital authorities the
    discretion to unilaterally remove the individual from the community and return
    that person to confinement within the hospital:  see
Brockville Psychiatric
    Hospital v. McGillis
(1996), 93 O.A.C. 226 at paras. 2-4 (C.A.);
Forensic Psychiatric Institute (B.C.) v.
    Johnston et al.
(1995), 66 B.C.A.C. 34 at paras. 48-59 (C.A.).

[31]

Counsel for Mr. Young and counsel for the
    Attorney General agree that a conditional discharge cannot contain a term
    authorizing the hospital to re-confine the individual within the hospital.  They submit, however, that properly
    interpreted, the Review Boards order does not have that effect.

[32]

I agree with this submission.  The Review Boards disposition required Mr.
    Young to submit for readmission to CAMH if directed by the appropriate
    authority.  The terms of the disposition
    did not, however, and in my view could not, authorize the hospital to have Mr.
    Young forcibly returned to CAMH against his will and confined there.    The
    disposition made by the Review Board gave CAMH the power to require Mr. Young
    to attend for readmission to CAMH.  The
    terms also required Mr. Young to comply with the direction of CAMH.  If Mr. Young refused to comply, he would be
    in breach of the conditions of the order.  As with any breach of a provision of a conditional discharge, CAMH would
    have available to it the provisions of ss. 672.91, 672.92 and 672.93.  None of those provisions gives CAMH the power
    to have Mr. Young arrested, brought back to CAMH against his will and confined
    there.  While the two new terms imposed
    by the Review Board could properly be attached as conditions to a conditional
    discharge, a breach of those conditions triggers the breach provisions and does
    not give CAMH the power to detain Mr. Young.  He could only be confined in CAMH following a breach if so ordered by a justice
    pursuant to s. 672.93(2).
[1]

[33]

The Review Boards disposition is a conditional
    discharge within the meaning of s. 672.54(b).  That interpretation leads to the third issue.  Was the Review Boards disposition unreasonable?

IV

Was the Disposition Unreasonable?

[34]

The reasonableness standard of review as applied
    to decisions of the Review Board is articulated in
R. v. Owen
, [2003] 1 S.C.R. 779  at para. 33:

[T]he Court of Appeal should ask itself whether the
    Boards risk assessment and disposition order was unreasonable in the sense of
    not being supported by reasons that can bear even a somewhat probing
    examination... If the Boards decision is such that it could reasonably be the
    subject of disagreement among Board members properly informed of the facts and
    instructed on the applicable law, the court should in general decline to
    intervene.

[35]

Counsel for CAMH agrees that Mr. Young should be
    living in the community.  Counsel
    submits, however, that he should be doing so under the terms of a detention
    order which allows the person in charge at CAMH to bring Mr. Young back into CAMH
    quickly should he decompensate as he did in the summer of 2009.  In making this submission, counsel refers to
    Mr. Youngs longstanding refusal to engage in any meaningful way in the
    treatment process and the risk that Mr. Young poses should he go off his
    medication.  Counsel submits that the
    conditions attached to the conditional discharge aimed at securing Mr. Youngs
    re-confinement in CAMH, if necessary, cannot adequately protect the public in
    that they do not allow CAMH to act expeditiously or even pre-emptively should
    Mr. Young stop taking his medication and become a danger to the public.

[36]

The Review Boards reasons are detailed and
    thoughtful.  It was acutely aware that
    the discharge of Mr. Young did pose potential risks to the public despite his
    relative success living in the community for many years.  The extracts from the Review Boards reasons
    set out below demonstrate its appreciation of Mr. Youngs condition:

The overall picture presented in so describing the
    accuseds behaviour over the years is one that describes an accused whose risk
    is associated with a psychotic illness with Bipolar Disorder and an AXIS II
    Personality Disorder.  It appears that
    the Bipolar Disorder is under control and stabilized for the most part, however
    the accuseds persistent and adamant refusal to communicate with his caregivers
    in this Boards view has resulted in an incomplete rehabilitation path. The
    Board tends to agree with Dr. Cohens observations that the accused has flown
    under the radar for some time, not because his caregivers were not aware of
    the communication problems with the accused, but because addressing them from a
    risk perspective has been incomplete.

Based on the evidence, the Board is not at all
    satisfied that the accused has sufficient insight into the relationship between
    his diagnosis and the happening of the index offences.  He has consistently refused to reveal
    anything of a personal nature to his caregivers or shared such information in
    groups when he did attend them and he has minimized or denied that he might
    represent a risk to others in the future.   Instead his concerns seem to be almost entirely self-centered.  He blames others for his problems.  He feels he is being mistreated by the
    Ontario Review Board and by his treatment team.  He gets angry by his needs not being immediately met.  He is upset that others may become aware of
    his criminal record and legal involvement.  He becomes offended that he might have been symptomatic or
    non-compliant.

...

Dr. Cohen expressed his concern that when those
    persons closest to the accused noticed signs of anger and irritability it was
    not reported to the hospital.  The
    essence of the hospitals concern is that to properly monitor the accused for
    compliance with medication and to be able to enforce the lithium level testing
    and to immediately deal with any relapse or emergence of symptoms, a custodial
    order represents the best vehicle for this.  On a conditional discharge the hospital feels hampered by the
    comparative uncertainty of being able to readmit the accused to hospital.  It is concerned that criteria which would
    otherwise enable it to quickly respond on a custodial disposition might not
    qualify for readmission under the
Mental
    Health Act
.  An example of this is
    the patients recent refusal to submit blood to measure his lithium levels.

[37]

The situation faced by the Review Board was
    similar to that found in
R. v.
    Breitwieser
(2009), 99 O.R. (3d) 43 (C.A.), a case referred to by the
    Review Board in its reasons.  In
Breitwieser
, as in this case, the primary
    concern was the risk to the public should the accused stop taking his
    medication.  This court said, at para.
    18:

In our view, in any case where the primary issue is
    compliance with conditions, and there is an air of reality to the claim that a
    conditional discharge would be an appropriate disposition, the Board must
    address these two elements. First, the Board must canvass whether the accused
    will consent to appropriate conditions under s. 672.55. Second, it must address
    the potential mechanisms for the accused's return to the hospital in the event
    of non-compliance, and determine whether the patient is likely to agree to
    return or whether a combination of s. 672.55 and either s. 672.92 or s.
    672.93(2) or another route of return would be sufficient in the circumstances.
    The Board must consider these elements in light of the legislative scheme and the
    requirement of s. 672.54 that, after taking into consideration the designated
    factors, the Board must make the disposition that is the least onerous and least
    restrictive to the accused.

[38]

The Review Board followed the direction in
Breitwieser
.  After noting the risk factors described above
    and Mr. Youngs guarded willingness to co-operate with those responsible for
    his treatment after his confinement in the fall of 2009, the Review Board went
    on to say:

The accused was presented with the option of agreeing
    to a condition that he take his prescribed medication and submit to lithium
    level testing in a conditional discharge.  The accused agreed to both of these conditions and indeed he had signed
    a risk management plan on his discharge from hospital in December 2009 in
    which, among other things, he agreed to regular urine drug screens and lithium
    levels as well as consenting to a psychiatric assessment.

The Board has taken into consideration Mr.
    Youngs above noted agreement and along with an additional condition that he
    submit to readmission to hospital upon demand by the person in charge,
the
    Review Board is of the unanimous opinion that a conditional discharge with
    these appropriate conditions represents the least onerous and least restrictive
    order for the accused at this time.  [Emphasis added.]

[39]

It is not suggested that the Review Board
    misapprehended material evidence or failed to consider material evidence.  On my review of its reasons, the Review Board
    was alive to the very real possibility that Mr. Young would not avail himself
    of treatment opportunities and could discontinue his medication.  At the same time, the Board was obligated to
    give significant weight to Mr. Youngs past performance while under various
    dispositions.  The Board also understood
    that a detention order would be seen by Mr. Young as very much a step backward that
    could well have a significant negative impact on him.

[40]

I think the order fashioned by the Review Board
    recognized Mr. Youngs performance in the community over several years, while
    at the same time identified the very real risk management concerns associated
    with Mr. Young.  The disposition order
    made addresses, in my view, Mr. Youngs best interests and the public safety
    concerns in a manner that is consistent with the statutory scheme of Part XX.1.  The order is not an unreasonable one.

V

Conclusion

[41]

I would dismiss the appeal.

RELEASED:
DD  JUN
    07 2011

Doherty J.A.

I agree S.T. Goudge J.A.

I agree Robert P.
    Armstrong J.A.

[1]
Section 672.92(1)(b) allows a peace officer who has decided to release a person
    subject to a disposition order to deliver the person to the place specified in
    that order.  It does not appear to me,
    however, that the section gives the hospital any authority to hold the person
    so delivered against his or her will.


CITATION: 1565703 Ontario Limited v. St. Clair Tavern
      (Sarnia) Limited, 2011 ONCA 523

DATE: 20110718

DOCKET: C53378

COURT OF APPEAL FOR ONTARIO

Laskin, Simmons and Epstein JJ.A.

BETWEEN:

1565703 Ontario Limited

Plaintiff (Respondent)

and

St. Clair Tavern (Sarnia) Limited

Defendant (Appellant)

Carolyn Brandow, for the appellant

Jennifer Quick, for the respondent

Heard: July 15, 2011

On appeal from the order of Justice
          Joseph M. Donohue of the Superior Court of Justice, dated January 28, 2011.

APPEAL BOOK ENDORSEMENT

[1]

We are not satisfied that the respondent properly proved its default
    judgment.  Although this issue was not raised before the motion judge, it is in
    the interests of justice to set aside the default judgment to permit the
    appellant to contest the quantum of the respondents claim.  The appellant will
    then be at liberty to pursue its claim for rental arrears as a counterclaim in
    the litigation.  In the light of the delay in this action already, the
    appellant must deliver its statement of defence and any counterclaim within 10
    days of the entry of this order.

[2]

In order to protect the respondents position we think it appropriate
    that any writ of execution that is filed in respect of its default judgment
    remain on title.

[3]

As the issue on which we are setting aside the default judgment was not
    raised before the motion judge, we think that the respondent is still entitled
    to the costs of the motion.  However, in our view, the motion judge erred in
    awarding substantial indemnity costs.  We vary these costs to $8,336.13,
    inclusive of disbursements and applicable taxes.  The respondent is also
    entitled to its costs thrown away of obtaining the default judgment.

[4]

The appeal is allowed and the default judgment is set aside on the terms
    set out in this endorsement.  In the circumstances there shall be no costs of
    the appeal.


CITATION: 1599669 Ontario Inc.
          (Springlakes.ca.inc.) v. 1617798 Ontario Inc., 2011 ONCA 531

DATE:  20110720

DOCKET: C53331

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Simmons JJ.A.

BETWEEN

1599669 Ontario Inc. carrying on business as Springlakes.ca.inc.
          and Stephen Smith

Plaintiffs (Appellants)

and

1617798 Ontario Inc., 746874 Ontario Ltd. carrying on
          business as Rosten Investments Inc., 1096508 Ontario Inc. carrying on
          business as JJ Barnicke London Windsor Sarnia Ltd., Vince De Rosa and Gordon
          Laschinger

Defendants (Respondents)

Darren J. Smith, for the plaintiffs (appellants)

Judy Hamilton, for the defendants (respondents)

Heard:  July 14, 2011

On appeal from the judgment of Justice J.E. Kelly of the Superior
          Court of Justice dated November 13, 2008.

APPEAL BOOK ENDORSEMENT

[1]

The appellant advanced one submission in oral argument.  He contends
    that the motion judge went beyond the bounds of the former Rule 20 and made
    findings of fact and credibility determinations.

[2]

We disagree.  Even under the former Rule 20, motion judges had a limited
    power to make findings in the context of determining whether there was a
    genuine issue for trial.  We are not convinced that the motion judge went
    beyond that power given the material that was before her.  Her use of the
    former Rule 20 finds support in
Rozin v. Ilitchev
(2003), 66 O.R. (3d)
    410 at para. 9.

[3]

The appeal is dismissed.  Costs to the respondents in the amount of $15,000,
    inclusive of disbursements and all applicable taxes.


CITATION: 1769656 Ontario Inc. v. Philpotts, 2011 ONCA
      489

DATE: 20110704

DOCKET: C53261

COURT OF APPEAL FOR ONTARIO

MacPherson, Juriansz and Karakatsanis JJ.A.

BETWEEN

1769656 Ontario Inc.

Plaintiff (Respondent in appeal)

and

Leslie Philpotts and
Yamunakumari Nithiananthan

Defendants (Appellant in appeal)

Norman Epstein, for the appellant

Norman Silver, for the respondent

Heard and released orally: June 29, 2011

On appeal from the order of Justice Thomas J. McEwen of the
          Superior Court of Justice, dated January 4, 2011.

ENDORSEMENT

[1]

The appellant Yamunakumari Nithiananthan appeals the order of McEwen J.
    of the Superior Court of Justice dated January 4, 2011 granting leave to the
    respondent to issue a writ of possession against the appellant for the lands
    municipally known as 22 Gaitwin Place, Scarborough.
[2]

The appellant contends that the motion judge erred by refusing her, a
    self-represented litigant on the day of the motion hearing, an adjournment.
[3]

We disagree. In light of the previous chronology of the case and the
    material before the court, the motion judge was entitled to exercise his
    discretion and refuse the request for an adjournment.
[4]

On the merits, we see no error in the motion judges reasons. The
    appellant is not the owner of the subject property and has no legal interest in
    it. Moreover, the motion judges order provided the appellant 60 days to try to
    take steps to remain as a tenant in the property. In addition, she is permitted
    to continue her action in Toronto relating to her fraud allegations.
[5]

The appeal is dismissed. We note that the respondent has undertaken to
    provide the appellant 14 days to vacate the property. The respondent is
    entitled to its costs of the appeal fixed at $4,000 inclusive of disbursements
    and HST.
J.C.
    MacPherson J.A.
R.G.
    Juriansz J.A.
Karakatsanis
    J.A.


CITATION:
Aguas v. Rivard Estate, 2011
          ONCA 494

DATE:
          20110706

DOCKET: C52438

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman and Juriansz JJ.A.

BETWEEN

Luisa Aguas

Plaintiff (Appellant)

and

The Estate of Curtis Rivard, deceased, Premier Express
          Lines and Associates Leasing

Defendants (Respondents)

William G. Scott and Doug Wright, for the appellant

David Bierstone, for the respondents the Estate of Curtis
          Rivard, deceased, and Premier Express Lines

No one appearing, for the respondent Associates Leasing
*

Heard: February 4, 2011

On appeal from the order of Justice Silja S. Seppi of the
          Superior Court of Justice, dated July 5, 2010.

Rosenberg J.A.:

[1]

The appellant appeals from the order of Seppi J.
    dismissing her motion to set aside the Registrars administrative dismissal
    order.  In lengthy and comprehensive
    reasons, the motion judge, applying the test from
Reid v. Dow Corning Corp
. (2001), 11 C.P.C. (5th) 80 (Ont. S.C.),
    revd on other grounds 48 C.P.C. (5th) 93 (Ont. Div. Ct.), as explained in
    cases from this court such as
Wellwood v.
    Ontario (Provincial Police)
(2010), 102 O.R. (3d) 555 (C.A.),
Scaini v. Prochnicki
(2007), 85 O.R.
    (3d) 179 (C.A.) and
Marché D'Alimentation
    Denis Thériault Ltée v. Giant Tiger Stores Ltd.
(2007), 87 O.R. (3d) 660
    (C.A.) held that the appellant had not shown that the dismissal should be set
    aside.

[2]

In my view, while the motion judge identified the
    proper test and purported to apply the contextual analysis required by the
    cases from this court, she made palpable and overriding errors in three
    respects:

(1)      Finding that there was no explanation for
    the litigation delay;

(2)      Finding that prejudice to the respondents
    favoured dismissing the motion; and

(3)       Applying the principle of finality.

THE CHRONOLOGY

[3]

The action that was administratively dismissed arises
    out of a motor vehicle accident on October 5, 2001.  The appellant alleges that a tractor trailer
    driven by the late Curtis Rivard swerved into the appellants lane on Highway
    401.  Mr. Rivard passed away sometime
    after the accident.  The respondents, the
    Estate of Curtis Rivard, deceased and Premier Express Lines, however, have an
    independent witness who has told the police and the respondents investigator
    that it was the appellant who caused the accident by swerving into the tractor
    trailer.

[4]

The appellant was involved in a second motor vehicle
    accident on March 27, 2005.  She has
    commenced a separate action against the driver and owner of the vehicle involved
    in that accident.

[5]

The motion before the motion judge arose out of the
    administrative dismissal of the action by the Registrar on August 15, 2007
    because the appellant neither set the matter down for trial within two years of
    filing of the statement of defence nor obtained an order from a judge presiding
    at a status hearing in accordance with rule 48.14.  The status notice and the order dismissing
    the action were sent to the appellants former counsel by the court office, but
    not to current counsel, even though the motion of change of solicitor was
    properly filed with the court office before the status notice was sent out.

[6]

As is invariably the case in this type of appeal, the
    chronology is important:

October 5, 2001        Accident #1.

October 6, 2003       Statement of claim issued for accident #1.

June 16, 2004          Order to continue, following death of
    Mr. Rivard.

March 27, 2005        Accident #2.

August 26, 2005      Discovery of appellant in action #1 by
    counsel for respondents.

May 4, 2006              Notice of Change of Solicitor to
    appellants present solicitors served and filed.

March 27, 2007       Statement of claim for accident #2 issued.

April 13, 2007         Continued discovery of appellant in
    action #1.

May 1, 2007             Status notice sent by the court
    office to appellants former counsel and respondents counsel.

August 15, 2007      Order dismissing action sent to
    appellants former counsel and respondents counsel.

May
    5, 2008             Counsel for defendant
    Associates Leasing writes to counsel for appellant and respondents as follows:

I have yet to
    receive a response to my letters of April 13 and October 11, 2007 and May 5,
    2008.

We have conducted a
    search of the court files and have determined that [action #1]  was dismissed
    by order on August 15, 2007.

Can counsel please confirm the status
    of these actions.

June 25, 2008          Discovery of appellant in action #2 by
    counsel for defendant in that action; counsel for respondents attends on
    watching brief.

April 14, 2009         Continued discovery of appellant in
    action #2 by counsel for defendant in that action; counsel for respondents
    attends on watching brief.

September 2009      Ms. Ramsden takes over carriage of the action
    and discovers the May 2008 letter from counsel for Associates Leasing and
    learns for the first time that action had been dismissed by the Registrar.

October 5, 2009       Continued discovery of appellant in
    action #2 by counsel for defendant in that action; counsel for respondents
    attends on watching brief.

October 7, 2009        Notice of motion to set aside dismissal.

[7]

A key document in this case is the letter from counsel
    for Associates Leasing to counsel for the appellant and the respondents.  As indicated above, Ms. Ramsden discovered
    the letter when she took over responsibility for the file.  The lawyer in the firm who formerly had
    carriage of the action, Ms. Sokoloff, states that she never saw the May 2008
    letter until it was drawn to her attention by Ms. Ramsden.  Ms. Sokoloff has checked with her two law
    clerks and they both stated that they had no recollection of the letter.   Ms. Ramsden was not cross-examined on her
    affidavit.

REASONS OF THE MOTION JUDGE

[8]

The motion judge made the following findings in the
    course of applying the
Reid
test.  The plaintiff did not give any
    reason whatsoever for the slow progress of the matter up to the date of the
    status hearing notice.  And, even though
    the appellants counsel did not receive the status notice and the order of
    dismissal, she should have known that under the rules, failure to set down the
    action within the time provided in rule 48.14 would lead to dismissal of
    the action.

[9]

However, counsels failure to respond immediately to the
    status hearing notice and the order dismissing the action were inadvertent and
    the result of the error by the court in sending the notice and order not to her
    but to the former solicitors.  Nevertheless, the failure to bring the motion promptly after receipt of
    the May 5, 2008 letter was not adequately explained:

The plaintiff has not explained this unusual
    circumstance of a crucial letter in the clients file not being read or acted
    upon by counsel.  Counsel merely deposes
    it was through inadvertence the motion to set aside the dismissal order was
    not brought until October, 2009, when the letter was discovered in the file
    after it was reassigned.  The letter was in the file. It must have been
    received.  Why was it ignored?

[10]

While the appellant could not be held responsible for
    the eight month delay from August 2007 to May 2008 because the order of
    dismissal was sent to the wrong solicitor, the 17-month delay thereafter was
    not adequately explained.  Absent a full
    explanation the conclusion is that the plaintiff did not promptly move to set
    aside the order after receipt of the letter informing counsel of the dismissal
    order.  The motion judge concluded that
    the failure to respond to this letter appeared to have been due to a systemic
    problem of file management or other unknown and [un]explained cause.  The information did not support a finding of
    inadvertence.

[11]

As to prejudice, trial fairness would be impacted
    should the memory of the respondents only witness to the accident be
    impaired.  Prejudice could be inferred in
    this type of case.  There was also a
    presumption of prejudice because of the passage of time since the limitation
    period expired.

[12]

Weighing all four of the
Reid
factors, as explained in
Marché
,
    supported dismissal of the motion.  In weighing
    these factors, the respondents were entitled to rely on the finality of the
    Registrars Order.

ANALYSIS

[13]

The motion judge relied on this court`s decisions in
Marché
and
Wellwood
.  Those decisions
    make the important points that the rules, including Rule 48.14, are intended to
    promote the timely resolution of disputes and finality.  Those principles are given effect in the
    context of a motion to set aside an administrative dismissal under Rule 48.14
    by reference to the
Reid
factors.  At paragraph 32 of
Marché
, Sharpe J.A. also pointed to the
    risk that countenancing negligence and incompetence of solicitors will
    undermine public confidence in the administration of justice.  Sharpe J.A. also emphasized the importance of
    finality in that case, at para. 38:

When an action has been disposed of in favour of a
    party, that party's entitlement to rely on the finality principle grows
    stronger as the years pass. Even when the order dismissing the action was made
    for delay or default and not on the merits, and even when the party relying on
    the order could still defend itself despite the delay, it seems to me that at
    some point the interest in finality must trump the opposite party's plea for an
    indulgence. This is especially true where, as in the present case, the opposite
    party appears to have another remedy available.

[14]

In
Wellwood
,
    this court also emphasized the importance of finality.  In that case, Cronk J.A. also wrote at length
    about the prejudice factor and especially about presumed prejudiced where the
    administrative dismissal is made after expiry of the limitation period.

[15]

However,
Marché
and
Wellwood
have important
    distinguishing features. In
Marché
,
    an important factor in finding that the explanation for the delay was not
    satisfactory and that the deadlines were not missed due to inadvertence was
    that the solicitor effectively abandoned the file (para. 27).  And in
Wellwood
,
    Cronk J.A. noted at paragraph 74 that on the findings of the Master in that
    case, the delay occasioned by the plaintiff was intentional.  She found as follows at para. 79:

Further, on the facts of this case, it is my view
    that invocation of the finality principle, in the context of full consideration
    of the other factors relevant to the decision whether to set aside the
    dismissal orders, was dispositive of the central issue before the master. In
    particular, I note that the respondent failed to comply with the mandatory
    requirements of rule 37.14(1); that he failed to provide a satisfactory
    explanation for his delay in moving to set aside the dismissal orders; and that
    even when he determined to seek such relief, his motion for relief was not
    brought promptly. In these circumstances, I conclude that this is the type of
    case described by Sharpe J.A. in
Marché
, in which finality must trump.

[16]

In my view, the motion judge in this case erred in finding that there was
    no explanation for the litigation delay before the Registrar`s Order and in
    holding that the respondents were entitled to rely upon the finality principle
    as explained in
Marché
and
Wellwood.
I will deal first with the question of
    explanation for the delay.
This
    is not a case like
Marché
or
Wellwood
where there were findings that
    the solicitor had put the file in abeyance and intentionally and stubbornly
    refused to proceed with the action (
Marché
at para. 26) or where the delay was intentional (
Wellwood
at para. 74).  This
    action was not proceeding with lightning speed but steps were being taken.  Discoveries were held in August 2005 and
    April 2007 before the dismissal of the action.  The pace of the litigation was also complicated and directly affected by
    the second accident.  Obviously, the
    assessment of damages from the first accident would be impacted by the second
    accident.  That this is the case is
    evident from the fact that counsel for the respondents attended the discoveries
    of the appellant in the second accident even though he was aware that the first
    action had been dismissed in August 2007.  It was a palpable and overriding error to say that the appellant did not
    give any reason whatsoever for the slow progress of the matter up to the date
    of the status hearing notice.

[17]

The motion judge put a lot of emphasis on counsels  failure to respond to the May 2008 letter from
    a third partys lawyer advising that the action had been dismissed. The motion
    judge attributed this lapse to negligence in file management rather than mere
    inadvertence.  This characterization of
    the delay favoured dismissal of the motion.  That said, when the new lawyer saw the May 5, 2008 letter she moved almost
    immediately to set aside the administrative dismissal.

[18]

The motion judge inferred prejudice from the lengthy
    passage of time, the nature of the action and the expiration of the limitation
    period.  I accept those findings.  That said, in my view, the motion judge
    placed unreasonable emphasis on prejudice.  The respondents counsel continued to attend the discoveries in the
    second action and raised not the slightest indication that something was
    amiss.  It is difficult to see what
    prejudice the respondents suffered in those circumstances.

[19]

I appreciate that the appellant, as plaintiff, bore
    responsibility for moving the action along, but respondents counsels lack of
    display of any sense of urgency undercuts the claim of actual prejudice.  Counsel for the respondents must have
    realized that counsel for the appellant had made a mistake and was not aware
    that the action had been dismissed by the Registrar; otherwise, why did appellants
    counsel not query respondents counsels attendance at the discoveries and why
    did no one raise the issue of the need for a motion to set aside the
    administrative dismissal?

[20]

Finally, in my view, the motion judge erred in holding
    that the respondents were entitled to rely on the finality of the Registrars
    Order.  The respondents did not proceed
    as if they were acting on the principle of finality; they continued to
    participate in the litigation, most obviously by attending the discoveries in
    the second accident.

[21]

In my view, when the various factors are considered in
    context, the Registrars Order should have been set aside.  The most important context was that: (1) the
    appellant continued to move the action along, participating in five
    examinations for discovery with respect to the two actions, before and after
    the first action was dismissed; (2) the Registrars Notice and Order dismissing
    the first action were not sent to the appellants counsel by the court; and (3)
    respondents counsels actions do not support actual prejudice or reliance on
    finality.

DISPOSITION

[22]

Accordingly, I would allow the appeal and set aside the
    Registrars Order dismissing the action as against The Estate of Curtis Rivard
    and Premier Express Lines.  As this is an
    indulgence to the appellant, I would award no costs of the motion. The
    appellant is entitled to costs of the appeal fixed at $5,000, inclusive of
    disbursements and H.S.T.

Signed:           M. Rosenberg J.A.

I
    agree K. Feldman J.A.

Juriansz J.A. (Dissenting):

OVERVIEW

[23]

I have read the reasons of my colleague Rosenberg J.A.
    but do not agree with his analysis or the result he reaches. I would dismiss
    the appeal.

[24]

The motion judges decision on a motion to set aside a
    Registrars dismissal order involves an exercise of discretion:
Wellwood
at para. 36. Since that
    discretion is exercised as part of the judges duty to manage her own courts
    trial list, it attracts significant deference from this court:
Finlay
at para. 6. This court reviews
    such a decision, not with the aim of replacing it with the decision it would
    have made itself, but with a view of determining whether the motion judge erred
    in arriving at her decision. The legal principles that apply are general but
    clear. Their application to a specific fact situation is necessarily
    qualitative and does not drive toward a single result that all judges would
    necessarily reach. The question on appeal is whether the result reached by the
    motion judge is reasonable.

[25]

In this case, the motion judge identified the proper
    test and applied the contextual analysis required by
Scaini
. Each of the findings she made was supported by the record.
    She carefully referenced decisions of this court for each step of her
    reasoning. I fear that interfering with her considered exercise of discretion
    will have the effect of rendering the jurisprudence of this court so uncertain
    that trial judges will have difficulty understanding and applying it.
    Uncertainty in the jurisprudence will have the result that a court of appeal
    decision will be required to determine the final status of a case
    administratively dismissed under rule 48.14, which is intended to remove cases
    from the courts docket without any judicial involvement.

ANALYSIS

[26]

I respectfully disagree with the reasoning of my
    colleague in this case in several respects.

Burden of Proof

[27]

First, in my view, he fails at several points in his
    analysis to keep on the appellant the burden of satisfying the court that the
    dismissal order should be set aside. I will identify these points in the course
    of my reasons.

Fresh View of Facts

[28]

Second, in my view, he reweighs the evidence and takes
    a fresh view of the facts.  My colleague
    infers that the respondents counsel knew that appellants counsel had made a
    mistake and acted to take advantage of it. He says that [c]ounsel for the
    respondents must have realized that counsel for the appellant had made a
    mistake and was not aware that the action had been dismissed by the Registrar.

[29]

That counsel for the respondents realized counsel for
    the appellant had made a mistake is not a finding of fact made by the motion
    judge. Furthermore, in my view, if inferences were appropriate at this stage,
    that inference is not supported by the record. The respondents solicitors had
    no reason to suspect that the court office had sent the status notice and
    dismissal order to the wrong address and that the appellants solicitors were
    unaware of the correspondence in their own file. My colleague infers that the
    respondents solicitors knew of the appellants solicitors mistake because
    they attended the continued discoveries in the second action and did not raise
    the slightest indication that something was amiss. They did know that the
    other defendant in the action had indicated something was amiss, and had
    advised the appellant that the action had been dismissed and did so in writing
    on May 5, 2008. In my view, the inference cannot rest on the mere fact that
    respondents counsel did not repeat this information at the discoveries in the
    second action that continued on June 25, 2008, mere weeks after the letter of
    May 5, 2008. The burden was on the appellant to establish the facts needed
    to support her motion. She introduced no evidence that the respondents
    solicitors were aware that her solicitors had not received the status notice
    and dismissal order and had failed to note the correspondence in their file. In
    my view, the better inference is that the respondents solicitors believed the
    appellants solicitors knew the action had been dismissed and attended the
    subsequent discoveries expecting a motion to set aside would be brought.

Litigation Delay

[30]

My colleague questions the motion judges finding that
    there was no explanation for the litigation delay. He observes that this action
    was not proceeding with lightning speed but steps were being taken. The issue
    on appeal, as I see it, is not whether there were steps taken that could
    support a finding that there was no unreasonable litigation delay, but rather
    whether there were facts in the record to support the motion judges finding
    that there was litigation delay. The motion judge rested her finding of
    litigation delay principally on the 20 month delay from the appellants
    discovery of August 26, 2005 to its continuation on April 14, 2007. The 20
    month delay was in the face of a rule that requires an action to be listed for
    trial within 24 months of the filing of the defence. The 20 month delay is
    sufficient to support the motion judges finding.

[31]

My colleague accepts the appellants position advanced
    on appeal that the action arising from the second motor vehicle accident
    explains the delay in this action because the damages from the first accident
    would be impacted by the second accident. This is not an argument the appellant
    advanced before the motion judge. Before the motion judge, the appellants
    solicitors took the position that there was no litigation delay. The motion
    judge had an ample basis to reject that position. The action had not proceeded
    within the time frame prescribed in the rules. It had been commenced in
    October, 2003 and had not been set down for trial when dismissed on August 15,
    2007. As the motion judge found, the material filed by the appellant did not
    seek to explain this delay.

[32]

On appeal, the appellant has changed her position and
    argues that the motion judge should have found that the delay in the progress
    of the first action was attributable to the appellants action in regard to her
    second accident.

[33]

The first difficulty with that argument is that the
    appellants motion is not before this court
de
    novo
. The question before this court is whether the motion judge erred in
    her disposition of the motion. The motion judges reasons emphasize that the
    appellants position before her was that there was no litigation delay to
    explain.

[34]

The second difficulty with the submission is that the
    appellant filed no evidence to show how the second action hindered the progress
    of this action. While trying the two actions together might be the way most
    counsel would proceed, it should not be assumed, without evidence, that the
    appellants solicitors would have proceeded that way. The appellants
    solicitors affidavits do not indicate that they had obtained an order that the
    two actions be tried together or even that they intended to move for such an
    order. The affidavits do not even attempt to address how the second action
    explains the 20 month period of inactivity upon which the motion judge rested
    her finding of litigation delay. While the assumption that this action was
    delayed by the need to assess the appellants damages from both accidents is
    not unreasonable, the information in the record about the second action is not
    specific enough to permit the inference that it was the cause of the 20 month delay
    on which the motion judge rested her finding. With respect, it seems to me that
    my colleague has failed to maintain on the appellant the burden of establishing
    there was no litigation delay.

Prejudice

[35]

As the motion judge noted, the burden was on the appellant
    to convince the court that the defendants have not demonstrated any
    significant prejudice in presenting their case at trial as a result of the
    plaintiffs delay or as a result of steps taken following the dismissal of the
    action:
Marché
at para. 12.

[36]

I agree that the respondents solicitors attendance at
    the subsequent discoveries in the second action would have reduced any
    prejudice in their ability to prepare to litigate the appellants damages in
    this action. The important point, though, is that the motion judges findings
    of prejudice were in relation to the issue of liability. The discoveries in the
    second action could have no relevance to the issue of liability in the first
    action. In
Marché
, Sharpe J.A. held
    at para. 35 that it is not enough for the [plaintiff] to show that the [defendant]
    could advance its case despite the delay if the matter were allowed to proceed
    to trial.

[37]

My colleague accepts the motion judges findings of
    prejudice from the lengthy passage of time, the nature of the action and the
    expiration of the limitation period. I see no basis for concluding that the
    motion judge made a palpable and overriding error in her weighing of the
    prejudice to the respondents.

Delay in Moving to Set Aside not due to Inadvertence of Counsel

[38]

My colleague accepts the motion judges finding that
    the appellants solicitors lapse in this case constituted negligence in file
    management rather than mere inadvertence. He recognizes that [t]his
    characterization of the delay favoured dismissal of the motion.

[39]

The jurisprudence of this court, despite divergent
    dicta in some cases, is that the failures of counsel are a relevant
    consideration in exercising the courts discretion to set aside a dismissal
    order. In
Marché
, Sharpe J.A. also
    explained, beginning at para. 30, why it is relevant to assess the degree of
    fault involved where the dismissal order is due to a failure of the plaintiffs
    solicitor. He emphasized how the nature of the solicitors fault engages the
    public interest by pointing out that [l]awyers who fail to serve their clients
    threaten public confidence in the administration of justice. Therefore, the
    court should consider whether the solicitors failure amounted to more than the
    kind of lapse or inadvertent mistake that the legal system can
    countenance.  He added that the courts
    should opt for a resolution that discourages this type of conduct which
    undermines the important value of having disputes resolved in a timely fashion.
    Rather, the right message was one that provides the appropriate incentives to
    those involved in the civil justice system.  He cautioned against the risk that the public would perceive
    disregarding the solicitors conductas the legal system protecting its own. He
    advised that the courts should consider whether excusing delay in a particular
    case would throw into question their willingness to live up to the stated goal
    of timely justice. Finally, he observed that where negligence rather than mere
    inadvertence is involved, [l]eaving the Registrars order in place would not
    necessarily deprive the [plaintiffs] of a remedy. He concluded that [r]einstating
    the action at this point would undermine the finality principle while refusing to
    reinstate the action does not interfere with the need to ensure adequate
    remedies.

[40]

This court, in
Machacek
    v. Ontario Cycling Association
, 2011 ONCA 410, recently applied the
Marché
approach to a solicitors conduct
    that was responsible for the delay. After citing Sharpe J.A.s reasoning in
Marché
, the court added that the
    appellants are not left without a remedy as they still have recourse through an
    action in solicitors negligence.

[41]

It seems to me that the motion judge was much better
    positioned to assess whether the lapse of the appellants solicitors in
    apparently not reviewing their clients file for some 17 months was more than
    should be countenanced in the practice before her court. There is no indication
    in my colleagues reasons that any weight is given to the effect of the
    appellants solicitors conduct in undermining public confidence in the
    administration of justice, the damage caused by the perception that the legal
    system is protecting its own, the unwillingness of the courts to live up to their
    stated goal of timely justice, and the sending of a message that provides the
    appropriate incentives to those involved in the civil justice system. The
    result reached by the majority provides no incentive to lawyers to improve the
    quality of service to the public, for example by reviewing their files
    regularly, being mindful of the expiration of the time period stated in rule
    48.14, and generally moving their clients actions forward. Rather, the careful
    service provided by the respondents solicitors underpins the excusal of the
    appellants solicitors failures.

[42]

With respect, I see no basis for interfering with the
    weight the motion judge accorded this factor.

The Contextual Approach

[43]

My colleague says that the motion judge purported to
    apply the contextual analysis but made palpable and overriding errors in doing
    so. The contextual analysis, as Goudge J.A. said in
Scaini
, requires the court to consider and weigh all relevant
    factors to determine the order that is just in the circumstances of the
    particular case. Obviously, such an analysis can lead to more than one
    reasonable outcome. The appropriate appellate function is to ensure that the
    contextual analysis was properly employed, not to ensure that the factors were
    weighed and balanced to reach the result that the judges of the appellate court
    would have reached. Here, the motion judge did not commit the error identified
    in
Scaini
of requiring the appellant
    to satisfy each of the four criteria separately without considering and
    weighing all the relevant factors in the circumstances of the case.

[44]

With respect, it seems to me that rather than
    demonstrating error on the part of the motion judge, my colleague weighs the
    factors and balances them differently than does the motion judge, and does so
    on a fresh view of the facts.

[45]

In any event, I do not agree that an important
    contextual feature of this case is the fact that the Registrars Notice and
    Dismissal Order were not sent to the correct address. While the courts mistake
    is regrettable, the motion judge completely subtracted the delay that the
    mistake occasioned from the total period of delay. The motion judge called on
    the appellant to explain only the delay from the defendants letter of May 5,
    2008 and not the delay from August 15, 2007, the date of the dismissal order.
    In light of this, I am unable to understand why the courts misdelivery of the
    dismissal order forms part of the most important context in the contextual
    analysis of the delay the motion judge found.

The Authorities Relied upon by the Motion Judge

[46]

My colleague starts his analysis by seeking to
    undermine the motion judges analysis of finality by distinguishing
Marché
and
Wellwood
, two decisions of this court that the motion judge relied
    upon heavily. He points out that in
Marché
,
    the master found that the solicitor effectively abandoned the file and in
Wellwood
, this court described the delay
    as intentional. With respect, it is my view that a fair and sound reading of
    these cases does not permit them to be distinguished on the basis of these
    details. In both decisions, the court enunciated general principles that apply
    to all cases.

[47]

On my reading of these cases, that the solicitor
    effectively abandoned the file in
Marché
and that the delay was intentional in
Wellwood
were inferred from nothing more than the lack of action on the part of the
    plaintiffs solicitors in moving the cases forward. In
Wellwood
, the solicitors for the plaintiff filed an affidavit that
    they had been working on the file all along, which is hardly evidence of
    deliberately intentional delay. They swore that they had been occupied with
    drafting and redrafting the pleadings and motion materials. Despite this, the
    master observed that they had taken no meaningful steps to move the matter
    forward, and held that the plaintiff had failed to discharge his onus to
    establish that the delay was inadvertent rather than intentional. The masters
    findings were the basis of this courts remark at para. 74 that the delay was intentional.

[48]

In
Marché
,
    throughout the four year delay, the plaintiff remained in regular contact with
    counsel and provided additional funds to prosecute the action. However, counsel
    did nothing to advance the action. The master found that the explanations
    offered by counsel for his inaction were less than satisfactory and that he
    failed to communicate to the other side any intention to move the action toward
    trial. There was no evidence that counsel had actually put the file in abeyance
    and had formed the subjective intention not to advance the file. Because
    counsel had done nothing to move the action forward, the master concluded that
    counsel had put the file in abeyance and that his conduct spoke to a
    deliberate intention not to advance the litigation toward trial. These
    conclusions were inferred from counsels inaction.

[49]

In any event, a fair reading of
Marché
does not permit limiting the principles it enunciates to
    situations in which the solicitors conduct is described as effectively
    abandoning the file. In
Marché
,
    Sharpe J.A. discusses the import of rule 48.14 at the most general level. At
    para. 23, he says that [r]ule 48.14 is one of many rules of civil procedure
    designed to promote the timely resolution of disputes, to discourage delay in
    civil litigation, and to give the courts a significant role in reducing
    delays. After referring to some of the other rules that discourage delay and
    the courts discretionary power to dismiss an action for delay, Sharpe J.A.
    made the fundamental observation that delay in an individual case surpasses the
    rights of the particular litigants and engages the public interest. The strong
    public interest in promoting the timely resolution of disputes, he pointed out,
    had been recognized by the Supreme Court of Canada in
Blencoe v. British Columbia (Human Rights Commission)
, [2000] 2
    S.C.R. 307, where the court held at para. 146 that [t]he notion that justice
    delayed is justice denied reaches back to the mists of timeFor centuries,
    those working with our legal system have recognized that unnecessary delay
    strikes against its core values and have done everything within their powers to
    combat it. Sharpe J.A. added that [d]elay multiplies costs and breeds
    frustration and unfairness. [M]odern civil procedure, he observed at para.
    23, requires the discouragement of delay and the enhancement of an active
    judicial role to ensure timely justice.

[50]

It is apparent that in
Marché
, Sharpe J.A. discussed the rule and its application at the
    most general level. The import of his observations cannot be limited to cases
    in which the cause of the delay is described as a solicitor putting a file in
    abeyance.

[51]

While Sharpe J.A. talked about modern civil
    procedure, Cronk J.A. in
Wellwood
described rule 48.14 at para. 48 as a component of contemporary litigation.
    Certainly, the rule is one that departs from the traditional model of civil
    litigation. In the traditional model, the litigants control how quickly, or
    slowly, their cases move through the system and great value is placed on the
    determination of each case on its merits. Rule 48.14 is one that gives the
    court the authority and responsibility to actively manage the cases before it.
    The rule provides for the removal of individual cases from the courts docket
    to serve the greater public interest in an efficient court system.

[52]

It is worth noting that the shift away from the
    traditional model has not been universally embraced. As described by Garry D.
    Watson & Lynne Jeffrey,
Holmested and
    Watson: Ontario Civil Procedure
, vol. 4 Supplement (Toronto: Carswell,
    1993) at p. 48-25 and p. AR-90 to AR-91, Almost from its inception the
    procedure [under rule 48.14] became controversial, having both its supporters
    and detractors. The original rule required the Registrar to send out a status
    notice within
one year
from the
    statement of defence. Among other things, its detractors thought the rule was
    intrusive as it is for the parties and not the court to control the pre-trial
    process. The adherents of the traditional model sought to have it repealed, but
    despite their initiative, the Civil Rules Committee resolved to retain it in
    1991, but extended the time allowed to place a case on the trial list to two
    years.

[53]

As there has been no change to rule 48.14 since 1992, a
    plaintiff, even one who does not receive a status notice, must realize that
    failure to set the action down in the prescribed time will lead to the action
    being dismissed:
Marché
at para. 26.
    The plaintiffs solicitors, in such a case, should take the initiative to
    arrange a status hearing in order to obtain an order otherwise, as is
    contemplated by the rule. At the status hearing, the court may impose a
    timetable setting time periods for the completion of the remaining steps
    necessary to have the action placed on or restored to a trial list or the court
    may dismiss the action.

[54]

When this court disturbs a motion judges exercise of
    discretion not to set aside a Registrars dismissal order, it undermines the
    scheme of active case management of sluggish cases for which rule 48 provides.
    This highlights why this court has stated such decisions should be accorded
    significant deference. With respect, my view is that the majority has failed
    to show the requisite deference for the motion judges decision.

CONCLUSION

[55]

Every finding the motion judge made in analyzing the
    four
Reid
factors had a basis in the
    record. In making those findings, she carefully applied the principles this
    court set out in
Marché
and
Wellwood
. She considered and weighed the
    relevant factors in the circumstances of the particular case in arriving at her
    determination. Her determination was discretionary and made in the course of
    managing her own courts trial list. Given the significant deference her
    determination attracts, there is no basis for interfering with it.

[56]

I would dismiss the appeal and fix the respondents
    costs in the amount of $7,500, inclusive of disbursements and applicable taxes.

Signed:           R. G. Juriansz J.A.

RELEASED:  MR JULY
    5, 2011

*
The parties
    have agreed that the action, as against Associate Leasing, should be dismissed
    without costs.


CITATION: Bank of Nova
      Scotia v. Antech Electric Ltd., 2011 ONCA 492

DATE: 20110704

DOCKET: C53085

COURT OF APPEAL FOR ONTARIO

OConnor A.C.J.O., Cronk and Rouleau JJ.A.

BETWEEN

Bank of Nova Scotia

Plaintiff (Respondent)

and

Antech Electric Ltd., and Claudio A. Dipalma also known
          as Claudio Anthony Di Palma also known as Claudio DiPalma also known as
          Anthony Dipalma

Defendants (Appellants)

Gregory Gryguc, for the defendants (appellants)

Oren Chaimovitch, for the plaintiff (respondent)

Heard:  July 4, 2011

On appeal from the judgment of Justice G.M. Mulligan of the Superior
          Court of Justice dated November 19, 2010.

APPEAL BOOK ENDORSEMENT

[1]

The appellant company did not dispute that it is indebted to the
    respondent in the amount of the judgment under appeal.
[2]

The appellants primary argument on the motion for summary judgment was
    that the respondent had agreed orally to change the loan agreement.  The loan
    was no longer payable on demand and the respondent would always accommodate the
    appellants cash flow requirement when demanding payment.
[3]

The motion judge rejected the appellants position concluding that it
    lacked an air of reality and is not supported by the written agreement between
    the parties.  In our view, this conclusion was open to the motion judge.
[4]

The attack on the validity of the guarantee was not pursued in oral
    argument.
[5]

The appeal is dismissed.
[6]

Costs of the appeal to the respondent in the amount of $4,000, inclusive
    of disbursements and all applicable taxes.


CITATION: BTR Global Opportunity Trading
          Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 518

DATE: 20110714

DOCKET: C53335

COURT OF APPEAL FOR ONTARIO

Weiler, Moldaver and Epstein JJ.A.

BETWEEN

BTR
          Global Opportunity Trading Limited, BTR Global Growth Trading Limited, BTR
          Global Arbitrage Trading Limited, and BTR Global Prospector Trading Limited

Plaintiffs (Respondents)

and

RBC Dexia Investor Services Trust and

Lehman Brothers International (Europe)

Defendants (
Appellant
)

Christopher D. Bredt, Douglas O. Smith and Heather K. Pessione,
          for the appellant

Jeffrey S. Leon, for the respondents

Heard and released orally:
July 8, 2011

On appeal from the order of Justice Colin L. Campbell of the
          Superior Court of Justice dated January 25, 2011, with reasons reported at
          2011 ONSC 316.

ENDORSEMENT

[1]

The appellant, Lehman Brothers International (Europe)
    (LBIE), appeals from the order dismissing its motion to enforce an exclusive
    forum selection clause in Customer Account Agreements and Margin Lending Agreements
    (the Agreements) with the respondents (collectively referred to herein as BTR
[1]
) by staying or
    dismissing BTRs Publics Action.  The exclusive forum selection clause
    selected New York State as the forum for resolution of all disputes relating
    to the Agreements.

[2]

The Publics Action is the term used by the parties to refer to BTRs
    action in relation to certain publicly traded securities of Canadian companies
    located in Ontario and is
Court File No. CV-10-8671-00CL.  The
    term Privates Application, used later in these reasons, refers to BTRs
    actions in relation to private securities of Canadian companies in Ontario and
    is Court File No. CV-10-7807-00CL.  RBC Dexia Investors Services Trust, the
    agent of LBIE and the actual custodian of the securities on its behalf, took no
    position on this appeal.

[3]

The remedy available under s. 106 of the
Courts of Justice Act
, R.S.O.
    1990, c. C.43, which provides that a court may stay any proceeding on such
    terms as are just, is discretionary.  The motions judges decision will only be
    set aside if the exercise of  his or her discretion is based upon a wrong
    principle, a failure to consider a relevant principle or a misapprehension of
    the evidence:
Mobile Mini Inc. v. Centreline Equipment Rentals Ltd.
(2004), 190 O.A.C. 149 (C.A.), at para. 2.  Particular deference is owed to
    this order given the motions judges experience not only in overseeing more
    than two years of litigation regarding the ownership of the securities in issue,
    but also as a senior commercial list judge.

[4]

In the main, the motions judge dismissed LBIEs application on the
    following bases:

1.

LBIE did not discharge its onus of showing that the Agreements and the
    exclusive jurisdiction clause contained therein applied to the factual matrix
    of this case; and

2.

Even if the Agreements applied, BTR had demonstrated strong cause to not
    enforce the jurisdiction selection clause because, among other factors, the
    position taken by LBIE amounted to a collateral attack on orders made by the
    Superior Court in 2008 and 2009 pursuant to an application and motions of which
    it was aware prior to their being argued, but chose not to challenge the
    jurisdiction of the Canadian court at that time or since.

[5]

LBIE submits that the motions judge was plainly wrong when he held that
    there was an issue as to whether the litigation relates to the Agreements.  LBIE
    further submits that the motions judge, in the exercise of his discretion, took
    into account irrelevant and improper factors in deciding that BTR had demonstrated
    strong cause.  Finally, LBIE submits that the motions judge erred in holding
    that LBIEs motion was a collateral attack on previous orders of the court.

[6]

Assuming, without deciding, that the forum selection clause does apply
    and that it must be enforced in the absence of exceptional circumstances, we
    are satisfied nonetheless that the appeal must fail.  In our opinion, BTR has
    shown strong cause, within the meaning of
Z.I. Pompey Industrie v.
    ECU-Line N.V.
, [2003] 1 S.C.R. 450, and subsequent decisions of this court,
    not to give effect to the forum selection clause.

[7]

In
Z.I. Pompey,
Bastarache J. stated at para. 39:

[T]he court must grant the stay unless the
    plaintiff can show sufficiently strong reasons to support the conclusion that
    it would not be reasonable or just in the circumstances to require the
    plaintiff to adhere to the terms of the clause.

[8]

As interpreted by this court,

a strong reason includes inordinate
    delay in raising the jurisdictional issue:
Mobile Mini Inc.
, at paras.
    7-9
; Momentous.Ca Corp. v. Canadian American Assn. of Professional Baseball
    Ltd.
(2010), 103 O.R. (3d) 467 (C.A.), at paras. 41-42.  It follows that we
    do not read the decision in
Expedition Helicopters Inc. v. Honeywell Inc.
(2010), 100 O.R. (3d) 241 (C.A.),

as foreclosing consideration of
    factors other than those listed therein at para. 24. Factors pertaining to
    justice or reasonableness may be considered in deciding whether the forum
    selection clause should be enforced.

[9]

While the motions judge may have been in error in referring to the
    motion before him as being a collateral attack on prior decisions of the court,
    he did not err in taking LBIEs conduct into consideration in concluding that
    the respondent had established strong cause.  Although the Publics Action is a
    different action than the Privates Application, the argument as to jurisdiction
    selection now being made is the same argument that could and should have been
    raised by LBIE as an affected party in the Privates Application in 2008.  The
    fact that these are separate proceedings is really a distinction without a
    difference as it is conceded that the same exclusive forum selection clause is
    at issue in both proceedings.  This factor in our view is very significant and
    weighs heavily in favour of BTRs position.

[10]

Moreover, LBIE has made itself a moving target throughout and this has
    prejudiced BTR, both in terms of the way BTR has argued the motions before the
    motions judge and in determining BTRs future course of conduct.  For example:

·

Before the motions judge, LBIE was not prepared to give up on its
    argument that the Agreements, which contain the exclusive jurisdiction clause,
    may be invalid as creating a preference.  It was only at the outset of argument
    before this court that LBIE advised that it would not be raising the preference
    issue, and thus the validity of the Agreements.

·

LBIE did not appeal the order of the motions judge dismissing its
    motion for a dismissal of BTRs request for directions concerning the Privates
    Application.

·

By its conduct, LBIE has created the risk of inconsistent
    verdicts between Canada and the United States between the Publics Action and
    the Privates Application.

[11]

For these reasons, which differ somewhat from the reasons of the motions
    judge, we would not interfere with the order refusing the stay.

[12]

Accordingly, the appeal is dismissed.  BTR is entitled to its costs,
    which we fix at $20,000 inclusive of all taxes and disbursements.

Karen M. Weiler J.A.

M. Moldaver J.A.

G.J. Epstein J.A.

[1]
BTR consists of BTR Global Opportunity Trading Limited, BTR Global Growth
    Trading Limited, BTR Global Arbitrage Trading Limited and BTR Global Prospector
    Trading Limited.