COURT OF APPEAL FOR ONTARIO

CITATION: Brisson v. Gagnier, 2014 ONCA 909

DATE: 20141219

DOCKET: C58380

Weiler, Rouleau and Pardu JJ.A.

BETWEEN

Chantal Brisson

Applicant/Respondent in appeal

and

Daniel Gagnier

Respondent/Appellant

and

Ferme Ste-Rose Inc.

Respondent/Unrepresented

Claude-Alain Burdet, for the appellant

Christian Pilon, for the respondent

Heard: December 12, 2014

On appeal from the order of Justice Michel Z. Charbonneau
    of the Superior Court of Justice, dated January 21, 2014.

ENDORSEMENT

[1]

The appellant appeals from an order of Charbonneau J, of January 21,
    2014, providing, [t]he order of Justice Maranger dated 18 October 2013 is
    hereby confirmed and the Defence and pleadings of the Respondent Daniel Gagnier
    are struck and granting temporary orders for custody, child and spousal
    support.

[2]

The basis for this order was the appellants failure to comply with the
    order of Maranger J. of October 18, 2013 which provided:

1.

La défense et les plaidoiries de lintimé, Daniel Gagnier, seront
    radiées en raison de son défaut de respecter:

a.

lOrdonnance de Monsieur le juge Charbonneau en date du 7 janvier
    2010;

b.

lOrdonnance de Monsieur le juge Kane en date du 10 février 2011;

c.

lOrdonnance de Monsieur le juge Beaudoin en date du 15 mai 2013;

d.

la demande de divulgation de la Requérante postulée en vertu du
    paragraphe 21 des
Lignes directrices fédérales sur les pensions
    alimentaires pour enfants
conformément à la Règle 1(8), 13(17) et 14(23)
    des
Règles en matière de droit de la famille
; et

e.

lOrdonnance de Monsieur le juge Charbonneau en date du 18 juillet
    2013.

dans les prochains
    30 jours à compter de la présente ordonnance à moins que lintimé, Daniel Gagnier,
    satisfasse aux alinéas 1(a) à 1(e) entièrement et sans exceptions et produise à
    la Requérante la preuve par voie daffidavit et de pièces satisfaisantes quil
    sest conformé à chacune des ordonnances/demandes intégralement et dépose
    ladite preuve au tribunal dans le délai de 30 jours.

2.

Advenant le défaut de lintimé de se conformer au paragraphe 1
    ci-devant:

a.

la Requérante peut traiter de la cause en labsence de lintimé,
    Daniel Gagnier, conformément à la Règle 10(5) des
Règles en matière de
    droit de la famille
; et

b.

la Requérante peut procéder à un procès non contesté conformément à
    la Règle 10(5) des
Règles en matière de droit de la famille
contre lintimé
, Daniel Gagnier.

3.

Lintimé, Daniel Gagnier, ne peut prendre aucune démarche dans la
    présente matière jusquà ce que le tribunal déclare quil sest conformé au
    paragraphe 1 ci-devant.

[3]

Although the order of Maranger J. required the appellant to provide, within
    30 days, the respondent with affidavit evidence supported by exhibits that he
    had complied with the several disclosure orders made, the appellant filed little
    evidence before Charbonneau J. (some three months after the order of Maranger J.)
    to demonstrate any degree of compliance with the orders. The transcripts
    demonstrate that Charbonneau J. gave the appellant ample opportunity to
    demonstrate substantial compliance, including inviting the appellant to take
    the stand and give evidence about the efforts he had made to comply. The
    appellant did not accept that offer and stated he could not produce documentation
    evidencing compliance. There was no evidence from which the motion judge could
    conclude that the appellant had complied or made reasonable efforts to comply
    with the disclosure orders and the order of Maranger J. The motion judge did
    not err therefore in concluding that the appellant had failed to comply with
    the order of Maranger J. and that his pleadings were therefore struck.

[4]

The appellant now claims that he has produced a good deal of the missing
    material. The respondent says he has not and that vital information required to
    proceed to trial has still not been provided. The respondent says the receiver
    complains that the appellant has obstructed his efforts to deal with farm
    assets by concealing grain harvested from the farm.

[5]

On appeal, the state of the record does not permit the court to assess
    the present extent of compliance with the disclosure orders.

[6]

It appears that equalization of net family property, child and spousal
    support and the unwinding of the parties interests in a corporation are in
    issue.

[7]

Counsel for the appellant says that the shares in the family farm
    corporation, 60% to the appellant and 40% to the respondent, were a gift to
    each party but that the donor stipulated that the wife, but not the husband,
    had to include the value of the shares in her net family property. As a general
    principle of law, we are unaware of any authority that would allow an
    individual donor to alter the operation of legislation. That said, the issue is
    not directly before us and we do not purport to specifically decide it. A
    misunderstanding in this regard may be a significant impediment to resolution
    of this case. It is difficult to see how sale of the farm, in whole or in part (if
    a severance can be obtained), can be avoided in this case. This is a case that
    would benefit from case management.

[8]

Although some 14 months have passed since the order of Maranger J., we
    do not foreclose the possibility that a motion judge may grant an indulgence to
    the appellant and reopen pleadings to allow him to defend the proceedings
    provided that he files a comprehensive affidavit demonstrating substantial
    compliance with the disclosure orders, a step he has not yet undertaken.

[9]

Substantial compliance will mean disclosure of all material reasonably
    necessary to permit the matter to be tried.

[10]

The
    orders for custody and support are temporary orders and can be reassessed at
    trial, if this matter proceeds to trial.

[11]

The
    appeal is therefore dismissed.

[12]

As
    a result of the order for security for costs, the respondent paid $45,000, of
    which $15,000 was arrears of support, $15,000 for costs owing and $15,000 as
    security for costs of this appeal.

[13]

Each
    of the parties says their costs associated with this appeal amount to $23,000.
    We would temper that amount and award the successful respondent costs of this
    appeal fixed at $15,000 which may be satisfied by payment out of court of the
    funds deposited by the appellant as security for the costs of this appeal.

K.M. Weiler J.A.

Paul Rouleau J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Danos v. BMW Group Financial Services Canada, 2014
    ONCA 887

DATE: 20141209

DOCKET: C58806

Laskin, Cronk and Pepall JJ.A.

BETWEEN

Peter Danos, Grace Danos and Apricot Catering
    2001 Inc.

Plaintiffs (Appellants)

and

BMW Group Financial
    Services Canada, a division of BMW Canada Inc., BMW Canada Inc.
, Sydney
    P.H. Robinson, Edward A. Robinson, Eberhard Von Kuenheim, Adam Zimmerman,
Town & Country Motors (1989) Limited, carrying on business
    as Town + Country BMW, James H. Cochrane
and Roy C. Foss

Defendants (
Respondents
)

Wayne S. Laski, for the appellants

Ron Aisenberg, for the respondents

Heard: December 4, 2014

On appeal from the order of Justice Goldstein of the Superior
    Court of Justice, dated April 7, 2014.

APPEAL BOOK ENDORSEMENT

[1]

We agree with the reasons of the motion judge, both in his granting of
    summary judgment and in his costs award. On costs, we find no error in
    principle, nor is the award unreasonable.

[2]

The appeal is dismissed. Leave to appeal costs is granted, but the costs
    appeal is dismissed. The respondents are entitled to their costs of the appeal
    fixed at $6500 all in.


COURT OF APPEAL FOR ONTARIO

CITATION: Dibiase v. Spensieri Estate, 2014 ONCA 913

DATE: 20141219

DOCKET: C58739

Sharpe, van Rensburg and Pardu JJ.A.

BETWEEN

Anna Dibiase

Plaintiff (Appellant)

and

Estate
    of Michael Spensieri, deceased, by its Litigation Administrator

Maria
    Spensieri, Maria Spensieri personally, and
Michele Dibiase

Defendant (Respondent)

Richard Anka, for the appellant

Mauro Marchioni and Adam Justin Marchioni, for the
    respondent

Heard and released orally: December 17, 2014

On appeal from the judgment of Justice C.A. Gilmore of
    the Superior Court of Justice, dated April 3, 2014.

ENDORSEMENT

[1]

We do not agree that the motion judge erred in granting summary judgment
    dismissing the claim.

[2]

The statement of claim asserts a claim to reverse the 1988 conveyance on
    grounds of fraud. The statement of claim before the motion judge and before
    this court does not attack the 1996 quit claim conveyance executed by the
    appellant for the same parcel of land.

[3]

We see no basis to interfere with the motion judges finding, at paras. 41
    and 42, based on the appellants discovery evidence, that when she executed the
    1996 quit claim, her intention was to make the title reflect the true ownership
    as she understood it. Given that admission and finding, the claim to set aside
    the 1988 conveyance has no prospect of success.

[4]

Any other claim for damages is barred by the two-year limitation period.
    Fraudulent concealment could not toll or extend the limitation period after the
    appellant discovered the fraud in May 2004. Nor does the fact that the
    appellant only obtained the corroborating evidence of a hand-writing expert in
    2007, mean that her claim would only be discovered at that time. See
Lawless
    v. Anderson
2011 ONCA 102.

[5]

Accordingly, the appeal is dismissed.

[6]

The respondent is entitled to his costs of the appeal fixed at $15,000
    inclusive of disbursements and applicable taxes.

Robert J. Sharpe J.A.

K. van Rensburg J.A.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: D'Mello v. The Law Society of Upper
    Canada, 2014 ONCA 912

DATE: 20141222

DOCKET: C58892

Weiler, Feldman and Benotto JJ.A.

BETWEEN

Roy DMello

Plaintiff (Appellant)

and

The Law Society of Upper Canada and Stephen
    Alexander McClyment

Defendants (Respondents)

Roy DMello, acting in person

Brian MacLeod Rogers, for the respondents

Heard: December 9, 2014

On appeal from the order of Justice Dale F. Fitzpatrick
    of the Superior Court of Justice, dated March 17, 2014 and the costs order
    dated May 12, 2014.

Weiler
    J.A.:

A.

overview

[1]

The appellant is a lawyer whose practice involved acting for parties on
    real estate transactions.

[2]

As a result of complaints received from financial institutions in
    connection with mortgage frauds by a company called Canadian Conveyancing  a
    company for whose clients the appellant had agreed to act  the respondent Law
    Society of Upper Canada (the Law Society) initiated discipline proceedings
    against the appellant and assigned the respondent Stephen McClyment to
    investigate. During the course of the investigation, Mr. McClyment sent emails
    to two institutions that were victims of the fraud. The appellant alleges these
    emails were defamatory, and brought a defamation action against the
    respondents.

[3]

The respondents successfully brought a summary judgment motion to
    dismiss the action, relying primarily on the defence of absolute privilege. The
    appellant appeals the dismissal of his action on the basis that absolute
    privilege does not apply. He also seeks to appeal the costs order.

B.

FACTS

[4]

The material facts were not in dispute. The appellant operated his
    practice from his home office. To generate more business, he entered into an
    agreement with the company Canadian Conveyancing whereby he agreed to provide
    representation to lenders and clients the company would refer to him. The
    appellant gave the company his personal information and changed his office
    designation with the Law Society to an office location and phone number under
    the companys control.

[5]

The appellant never received any referrals and continued practising out
    of his home office. Canadian Conveyancing opened law firm accounts with the
    Bank of Montreal in the appellants name and processed several fraudulent real
    estate transactions with multiple financial institutions. The victim institutions
    lost a combined total of about $2.5 million as a result.

[6]

Some of the victim institutions complained to the Law Society, which launched
    an investigation on October 14, 2009. The Law Society then authorized disciplinary
    proceedings against the appellant on June 17, 2010.
[1]
At the direction of the Law Societys discipline counsel, Mr. McClyment sent
    emails to two of the victim institutions, Royal Bank of Canada and Scotiabank,
    on June 28, 2010, seeking their respective files for the discipline
    proceedings. Part of the emails stated:

[A]s an update I wish to confirm that the LSUC is prosecuting
    Dmello [
sic
] for professional [mis]conduct for the fact that he
    recklessly gave out his personal and professional ID to Canadian Conveyancing
    and also voluntarily changed his office location on the LSUC records without
    ever intending to practice at this location thereby causing a considerable loss
    to a number of lenders.

[7]

As a result of the emails, the appellant sued the Law Society for defamation,
    alleging malice. For purposes of the motion, these allegations were presumed to
    be true. The Law Society defended by claiming the common law defence of absolute
    privilege, a complete defence even for malice, and brought a motion for summary
    judgment. The motion judge agreed that absolute privilege applied and dismissed
    the action. He awarded costs of $5,000 against the appellant. In doing so, he
    noted that although the respondents were successful, the motion was complicated
    by a lack of Canadian legal precedent, and the appellants action would not
    likely have been brought had Mr. McClyment been more careful with his language
    in the two emails.

[8]

The appellant contends that there are two reasons why the defence of
    absolute privilege does not apply and thus why the motion judge erred in
    dismissing his action. First, he submits that the common law defence of
    absolute privilege has been superseded by the enactment of s. 9 of the
Law
    Society Act
, R.S.O. 1990, c. L.8 (the Act), which requires that the
    person performing a duty under the Act be acting in good faith. Second, he
    submits that, in the circumstances of this case, absolute privilege does not
    apply.

[9]

The appellant also contends the motion judge erred in awarding any costs
    against him because the factors the motion judge noted, as well as the disparity
    between the resources of the litigants, justified no costs.

[10]

For
    the reasons that follow, I would reject all three arguments and dismiss the
    appeal.

C.

the Common Law has not been Superseded by section 9 of the Act.

[11]

Section
    9 of the Act provides as follows:

9. No action or other proceedings for damages shall
    be instituted against the Treasurer or any bencher, official of the Society or
    person appointed in Convocation for any act done in good faith in the
    performance or intended performance of any duty or in the exercise or in the
    intended exercise of any power under this Act, a regulation, a by-law or a rule
    of practice and procedure, or for any neglect or default in the performance or
    exercise in good faith of any such duty or power.

[12]

The
    appellant submits that when an action in defamation is brought against the Law
    Society, the common law defence of absolute privilege does not apply because s.
    9 supersedes the common law. He submits that the purpose of s. 9 is to restrict
    the right of the Law Society to defend itself in an action for defamation by
    imposing a requirement that the Law Society be acting in good faith. The Law
    Societys position is that s. 9 does not oust or otherwise affect the defence
    of absolute privilege at common law.

[13]

I
    agree with the Law Societys position. The construction of statutes presumes
    that legislatures do not intend to interfere with the common law except insofar
    as the statute clearly and unambiguously does so. The effect of the presumption
    is to enhance the stability of the law by favouring certainty and fair notice
    over vague and inadvertent change that could otherwise result. See
Sullivan
    on the Construction of Statutes
, 6th ed., (Markham, Ont.: LexisNexis,
    2014), at pp. 504, 538-39; and
Evans v. Gonder
, 2010 ONCA 172, 54
    E.T.R. (3d) 193, at para. 40.

[14]

The
    common law presumption is applicable to this case, a case that is similar to
Schut
    v. Magee
, 2003 BCCA 417, 15 B.C.L.R. (4th) 250. There, the British Columbia
    Court of Appeal dealt with the question of whether the common law doctrine of
    absolute privilege in defamation actions was superseded by the defence of
    qualified privilege in actions for damages under the
Medical Practitioners
    Act
, R.S.B.C. 1996, c. 285. The court upheld the decision of the chambers
    judge, who held that the relevant provision in that statute was not a complete
    code and did not oust the common law by implication. The court acknowledged the
    contrary majority decision of the Alberta Court of Appeal in
Dechant v.
    Stevens
, 2001 ABCA 39, 281 A.R. 1, additional reasons at 2001 ABCA 81, 277
    A.R. 333, leave to appeal to S.C.C. refused, 2001 CarswellAlta 1211, 1212,
    which held that a somewhat similar statutory provision ousted the common law.
    However, the British Columbia Court of Appeal distinguished the Alberta case based
    on the specific wording in s. 112(2) of Albertas
Legal Professions Act
,
    S.A. 1990, c. L-9.1, concerning actions in defamation.
[2]
I agree with the conclusion of the British Columbia Court of Appeal.

[15]

Inasmuch
    as there is no express indication from the legislature that s. 9 of the Act is
    meant to be an exhaustive code, or meant to preclude resort to the common law
    in actions for defamation, the legislation should be read as supplementing the
    common law in two respects. First, with respect to
any action or proceeding
    for damages
, including an action for negligence or abuse of process, s. 9 extends
    the common law immunity from prosecution for those performing quasi-judicial
    functions to officials of the Law Society conducting an investigation while
    acting in good faith. Thus, s. 9 is a rights-granting measure and not, as the
    appellant contends here, a rights-limiting measure. Insofar as defamation
    actions are concerned, it does not detract from the common law defence of
    absolute privilege in respect of an action for defamation in any way.

[16]

Second,
    s. 9 also supplements the common law in actions where defamation is alleged. The
    common law defence of absolute privilege applies only if the alleged defamatory
    statement is related to the investigation.
If
    Mr. McClyment had made a defamatory statement that was unrelated to the
    investigation, that statement would not be protected by absolute privilege at
    common law. But it could still potentially be protected by s. 9 if it was done
    in good faith.

[17]

The appellant submits that it is in the public
    interest to protect persons whom officials of the Law Society have defamed with
    malice, and, accordingly, absolute privilege should not be available to these
    officials. There must be a balancing of the interests of the individual defamed
    with those of the Law Society.

[18]

The appellants submission overlooks the broader
    context of the legislation: the protection of members of the public in their
    dealings with lawyers. An official of the Law Society who is investigating a
    complaint about a lawyer is engaged in furthering the public interest in
    ensuring that lawyers maintain high standards of conduct and do not abuse their
    position. If such persons were not granted absolute privilege in defamation
    actions, their mere allegation of malice on the part of the lawyer being
    investigated could subject them and the Law Society to costly and lengthy
    litigation requiring them to justify why an investigation into a complaint was
    warranted. Such an approach would be inconsistent with the overarching goal of protecting
    the public through the responsive and timely investigation of complaints.

[19]

To summarize, the position put forward by the Law
    Society and accepted by the motion judge is correct. It accords with the
    principle of statutory construction that legislation is presumed not to change
    the common law unless it clearly and expressly does so. In this case, the
    legislation supplements the common law both when regard is had to the wide
    variety of damages actions to which s. 9 applies and its specific application
    in a defamation action where the circumstances are such that the requirements
    for absolute privilege are not met. The application of the presumption
harmonizes
    the common law and the legislation.
Finally, and
    most important, the application of the presumption is consistent with the overarching
    goal of the legislation as a whole, namely, the protection of the public in a
    timely manner.

D.

Absolute privilege protects the communications in issue in the
    circumstances

[20]

The
    appellant submits the circumstances for absolute privilege do not exist in this
    case because Mr. McClyment was giving information to the complainants as
    opposed to receiving information from a complainant.
Teskey v. Toronto
    Transit Commission
, 2003 CanLII 35190 (Ont. S.C.), holds that absolute
    privilege should be applied strictly, and must be necessary to the
    administration of justice on the facts of the case. Mr. McClyments update to
    the two banks was not necessary. Section 49.12(1)
[3]
of the Act requires that the information an investigator receives during the
    course of an investigation be kept confidential. The appellant asserts Mr.
    McClyment breached this requirement and was thus acting outside the scope of
    his duties. He was acting without legal justification. See e.g.
Roncarelli
    v. Duplessis
, [1959] S.C.R. 121. The circumstances for absolute privilege
    do not exist.

[21]

The
    appellant advanced the same arguments before the motion judge, who correctly
    rejected them. I agree with the motion judge that the privilege extends to
    communications made by, as well as to, investigators. See
Taylor v. Serious
    Fraud Office & Others
, [1999] 2 A.C. 177 (H.L.);
Hung v. Gardiner
,
    2003 BCCA 257, 13 B.C.L.R. (4th) 298, at para. 37; and
Hamouth v. Smart
    Video Technologies Inc.
, 2005 BCCA 172.

[22]

Although
    the words used to give the update must be presumed to be libellous, they
    provided the context or grounds for the request and, in that sense, were
    required in connection with a proceeding under the Act. In making this
    determination, the purpose of the communication as a whole must be considered
    as opposed to each phrase without context and in isolation. As found by the
    motion judge, the communications from Mr. McClyment were for the purpose of
    preparing evidence for discipline proceedings that existed at the time.

[23]

I
    also agree with the motion judge that in this case, Mr. McClyment was acting in
    his capacity as an investigator for the Law Society and was not acting outside
    the scope of his duties. Giving the information to the two banks was within the
    statutory exception found in s. 49.12(2)(b) of the Act as being required in
    connection with a proceeding under the Act,
[4]
and within s. 7(3)(d) of the
Personal Information Protection and Electronic
    Documents Act
, S.C. 2000, c. 5.
[5]

[24]

The
    circumstances of the communication here are protected by absolute privilege.

E.

the motion judge did not err in the exercise of his discretion to award
    costs

[25]

The
    appellant submits that, instead of awarding the $5000 in costs he did, the
    motion judge ought not to have awarded any costs, having regard to his findings
    that the case was complex, there was a paucity of judicial authority on the
    issue, and if Mr. McClyment had better chosen his words the action would likely
    not have been brought. The appellant also argues that, in addition to the
    above, the obvious disparity between the respective resources of the parties
    further precludes a costs award against him. If successful, the appellant was
    seeking costs of $23,334.50, and the respondent $37,862.80.

[26]

I
    am of the opinion that the motion judge properly took all relevant factors into
    account and made no error in principle in his award of costs.

F.

CONCLUSION and costs of the appeal

[27]

For
    the reasons given, I would dismiss the appeal.

[28]

The
    respondent seeks approximately $12,000 for costs of the appeal. Having regard
    to the costs award of the motion judge, I would fix costs in the amount of $5,000
    inclusive of disbursements and all applicable taxes.

Released: DEC 22, 2014

(KMW)
    Karen M. Weiler J.A.

I agree K. Feldman J.A.

I agree M.L. Benotto J.A.

[1]
In March 2013, the Law Society decided not to go forward with the part of
    proceedings alleging professional misconduct on the basis that the appellant
    failed to be on his guard against becoming the tool or dupe of unscrupulous
    persons and thereby facilitating mortgage fraud. Certain other proceedings,
    however, remained extant.

[2]
Section 112(2) provides: No action for defamation may be founded on a
    communication regarding the conduct of a member or student-at-law if the
    communication is published to or by a person within any of the classes of
    persons enumerated in subsection (1) in good faith and in the course of any
    proceedings under this Act or the rules relating to that conduct.

[3]

Section
49.12(1)
reads:
A bencher, officer, employee, agent or representative of the Society
    shall not disclose any information that comes to his or her knowledge as a
    result of an audit, investigation, review, search, seizure or proceeding under
    this Part.

[4]
Section 49.12(2) provides:
Subsection
    (1) does not prohibit,  (b) disclosure required in connection with a
    proceeding under this Act.

[5]

Section 7
    provides exceptions to the requirement that personal information be collected,
    used or disclosed only with consent of the individual. Section 7(3)(d)
    provides:

7(3) For the purpose of clause 4.3 of Schedule 1, and despite the note
    that accompanies that clause, an organization may disclose personal information
    without the knowledge or consent of the individual only if the disclosure is

(
d
) made on the initiative of the organization to an
    investigative body, a government institution or a part of a government
    institution and the organization

(i) has reasonable grounds to believe that the information relates
    to a breach of an agreement or a contravention of the laws of Canada, a
    province or a foreign jurisdiction that has been, is being or is about to be
    committed, or

(ii) suspects that the information relates to national security,
    the defence of Canada or the conduct of international affairs;


COURT OF APPEAL FOR ONTARIO

CITATION: Ever Fresh Direct Foods Inc. v. Jamia Islamia
    Canada Ltd., 2014 ONCA 898

DATE: 20141215

DOCKET: C58628

Laskin, Cronk and Pepall JJ.A.

BETWEEN

Ever Fresh Direct Foods Inc.

Applicant

(Appellant)

and

Jamia Islamia Canada Ltd.

Respondent

(Respondent)

Ronald Birken, for the appellant

Anser Farooq, for the respondent

Heard and released orally: December 5, 2014

On appeal from the composite order of Justice K. Barnes of
    the Superior Court of Justice, dated March 17, 2014, May 13, 2014 and June 26,
    2014.

ENDORSEMENT

[1]

We see no basis for interference with the motion judges contempt
    findings.  The challenged findings were supported by the evidentiary record
    before the motion judge and, in significant part, were grounded on his adverse
    credibility findings.

[2]

We agree with the appellant, however, that some reduction of the motion
    judges $40,000 award in favour of the respondent for the costs of the contempt
    motion is necessary.  The respondent acknowledges that the amount sought by it
    and awarded by the motion judge was on the full indemnity scale.  Further, the
    amount awarded was in excess of the respondents claimed costs and almost four
    times the amount of the appellants costs on the contempt motion.  In the
    circumstances, the costs awarded to the respondent on the contempt motion are
    reduced to the total amount of $25,000.

[3]

In addition, the parties request that the amount of costs awarded in
    paragraphs 8, 9 and 10 of the motion judges composite order dated March 17,
    2014, May 13, 2014 and June 26, 2014 be confirmed in the total amount of
    $11,300 and we so order.

[4]

In all other respects, the motion judges costs rulings are also
    confirmed.

[5]

The appeal, therefore, is allowed in part in accordance with these
    reasons.  There are no costs awarded on this appeal.

John Laskin J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fernandez v. Unique Auto Collision Network Solution
    Corp., 2014 ONCA 882

DATE: 20141209

DOCKET:
M44054, M44116

Hoy A.C.J.O., Epstein
    and Hourigan JJ.A.

BETWEEN

Frank Fernandez and
    Anna Maria Fernandez

Respondents

and

Unique Auto Collision Network Solution Corp. and Cansom

Holdings Inc. Peter Colia, Giacomo Collia, and Antonita Collia

Moving parties/Appellants

Yusuf Barre, for the
    appellants

Gregory Gryguc, for the
    respondents

Heard and released orally:
November 7,
    2014

Motion to review order made by
    this court by Honourable Justice Pardu on August 6, 2014, dismissing motion as
    abandoned
.

COSTS ENDORSEMENT

[1]

Costs in this matter are fixed at $3000, all inclusive, in favour of the
    respondent.

Alexandra Hoy A.C.J.O.

Gloria Epstein J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA
    891

DATE: 20141211

DOCKET: C56404

Laskin, Rouleau and Lauwers JJ.A.

BETWEEN

Andrew James Fordham

Plaintiff (Respondent)

and

The Corporation of the Municipality of
    Dutton-Dunwich

Defendant (Appellant)

T.R. Shillington and Jonathan de Vries, for the
    appellant

Jim Virtue and Jim Mays, for the respondent

Heard: April 30, 2014

On appeal from the judgment of Justice Johanne N. Morissette
    of the Superior Court of Justice, dated November 27, 2012, reported at 2012
    ONSC 6739.

Laskin
    J.A.:

A.

Overview

[1]

This case is about whether a municipality met its statutory duty to keep
    one of its roads in a reasonable state of repair. By any measure, it is a sad
    case.

[2]

On a January night in 2007, 16-year-old Andrew Fordham drove from one
    friends house to another. He took a route through Dutton-Dunwich on rural
    roads that were unfamiliar to him. He came to an intersection with a stop sign.
    As he saw no approaching cars, he ignored the stop sign and drove through the
    intersection at or near the speed limit of 80 km per hour.

[3]

Unfortunately the road Fordham was driving on curved to his right just
    after the intersection. In trying to navigate the curve, he lost control of his
    car and crashed into a concrete bridge abutting the road. He suffered brain
    damage and has no memory of the crash.

[4]

Fordham sued the municipality of Dutton-Dunwich for non-repair of the
    road. He claimed Dutton-Dunwich had breached its statutory duty because it had failed
    to post a checkerboard sign warning of the change in the roads alignment.

[5]

The trial judge agreed. She held that [c]learly, it is a local practice
    in this rural area for drivers to go through stop signs if they consider it
    safe, and [o]rdinary rural drivers do not always stop at stop signs and the
    defendant knew that. In her opinion, the change in the roads alignment was a
    hidden hazard. Thus, she found that the circumstances of this intersection
    require more than a stop sign to give ordinary rural motorists reasonable
    notice of [a] potentially catastrophic hazard ahead. But the trial judge also
    found Fordham negligent because he had failed to stop at the stop sign. She
    concluded that both the plaintiffs failure to stop and the defendants failure
    to install a warning sign had caused the crash. She apportioned liability for
    Fordhams damages equally: 50 per cent to the plaintiff and 50 per cent to the
    defendant.

[6]

Dutton-Dunwich appeals. The principal question on the appeal is this: Did
    the trial judge misapply the test for assessing a municipalitys statutory duty
    of repair? I conclude she did, and therefore the judgment against the
    municipality cannot stand.

[7]

A municipalitys duty of repair is limited to ensuring that its roads
    can be driven safely by ordinary drivers exercising reasonable care. A
    municipality has no duty to keep its roads safe for those who drive
    negligently. Running a stop sign at 80 km per hour is negligent driving. The
    undisputed evidence is that the road Fordham was driving on posed no hazard to
    a driver who stopped at the stop sign, or even to one who slowed to 50 km per
    hour at the intersection.

[8]

The trial judges finding that [o]rdinary rural drivers do not always
    stop at stop signs has some modest support in the evidence, in that some rural
    drivers will not always come to a full stop at a stop sign. But there is no
    credible evidence that ordinary rural drivers go through stop signs at or near
    the speed limit. More important, the trial judges finding is legally irrelevant.
    There cannot be one standard of reasonable driving for rural drivers and
    another for city drivers. There is but one standard of reasonable driving. That
    standard requires drivers to obey traffic signs. Thus Dutton-Dunwich had no
    duty to install an additional sign on its road.

[9]

I would allow Dutton-Dunwichs appeal, set aside the judgment at trial
    and dismiss the action against it.

B.

Additional factual background

(a)

Andrew Fordham

[10]

The
    accident occurred on January 20, 2007. About three months before the accident, Fordham
    had obtained his G2 drivers licence.
[1]
However, he had driven more than most 16-year-olds. His father sponsored a car
    at the Delaware Speedway and Fordham had been racing cars at the track since
    the summer of 2005. The trial judge found that Andrew had more experience
    operating a motor vehicle than an average 16-year-old with a G2 licence.

(b)

The road alignment

[11]

The
    accident occurred in the municipality of Dutton-Dunwich on Willey Road just
    south of where it intersects with Erin Line. Dutton-Dunwich is located in Elgin
    County in southwestern Ontario. Willey Road is a gravel road in the rural part
    of the county and typically has little traffic.

[12]

At
    the time of the accident, stop signs controlled northbound and southbound
    traffic on Willey Road at the intersection with Erin Line. The municipality had
    recently replaced yield signs with stop signs because it had received
    complaints that some drivers did not properly yield the right-of-way at
    intersections controlled by yield signs.

[13]

Willey
    Road has a small S curve beginning just north of the intersection with Erin Line
    and continuing through it. To the south of the intersection, the curve deviates
    about nine metres from a straight line. In the evidence, this deviation was
    characterized as an offset. Along the offset, a concrete bridge abuts the
    road. When the accident occurred, the intersection had no warning sign alerting
    drivers to the offset.

[14]

At
    Appendix A to these reasons, I have included a sketch depicting the alignment
    of Willey Road at the intersection with Erin Line.

(c)

The accident

[15]

The
    accident occurred sometime before 9:00 p.m. That evening, Fordham had planned
    to meet up with some friends and then stay overnight with one of his friends,
    Dustin Drouillard. He left his own home around 6:00 p.m. and first drove to the
    house of Cassandra Tomczyk in Dutton-Dunwich. He was driving his fathers 1999
    Pontiac Grand Am car. He stayed at Tomczyks house for about ten minutes. Then
    he and a friend left around 8:00 p.m. for Drouillards house. The distance
    between the two houses is about 30 km.

[16]

Fordham
    drove, and his friend sat in the front passenger seat. During the trip, Fordham
    drank about two beers. Later blood alcohol testing showed his readings were
    below the legal limit.
[2]
Fordham drove southbound on Willey Road, a road he had never driven on before. The
    weather that evening was clear. And as Fordham approached the Erin Line intersection,
    the stop sign was clearly visible. However, no cars were approaching the
    intersection from either direction, so Fordham drove straight through it
    without stopping. An accident reconstruction expert estimated he was driving at
    or near the speed limit of 80 km per hour.

[17]

Fordham
    apparently saw the offset too late to navigate it safely. He turned the car
    sharply to the right, lost control and crashed into the concrete bridge
    abutting the road.

[18]

At
    the beginning of the trial, Fordham admitted he was negligent. He agreed that
    if he had stopped at the intersection, the accident would not have happened.

(d)

The expert evidence

[19]

The
    plaintiff called two experts: James Hrycay, a road design and maintenance
    engineer, specializing in accident reconstruction; and Alison Smiley, a
    professor at the University of Toronto in the Department of Mechanical and
    Industrial Engineering, specializing in the relationship between highway safety
    and human factors, including reaction times
.
The trial judge
    accepted their evidence.
[3]
Both Hrycay and Smiley testified that the signage at the intersection was
    inadequate because it did not warn of the offset. But both admitted that their
    opinions assumed drivers would not obey the stop sign. Indeed Hrycay admitted
    that additional signage was not needed for drivers who stopped at the stop
    sign.

[20]

Smiley
    testified that drivers who approach the intersection at 80 km per hour and
    ignore the stop sign would not have enough time to perceive and react to the
    offset without a warning sign to alert them. But she acknowledged that drivers
    who stop for the stop sign would have more than enough time to perceive and
    react safely to the change in the alignment of the road. She also acknowledged
    that ignoring stop signs was not reasonable driving. She maintained, however,
    that we need to design for more than just the reasonable driver whos sober,
    wearing a seatbelt and obeying all the traffic laws.

[21]

Hrycay
    believed roads should be designed for the 95th percentile of drivers: [W]ithin
    five per cent of the very worst drivers out there. Like Smiley, Hrycay
    testified that drivers who stop at the stop sign would have no difficulty in
    perceiving and navigating the offset. He also testified that drivers who do not
    obey the stop sign but slow to 50 km per hour or less would still be able to
    perceive the offset in time to navigate it safely.

(e)

The Ontario Traffic
    Manual

[22]

The
    Ontario Traffic Manual (the Manual) was filed in evidence. The Manual
    includes guidelines for signage. In the warning signs section, it discusses the
    use of checkerboard signs.

[23]

Under
    the heading Purpose and Background, the Manual states:

The purpose of the CHECKERBOARD sign  is to warn vehicular
    traffic of the termination, or abrupt change in direction, of a segment of
    road.

[24]

Under
    the heading Guidelines for Use, the Manual states:

The CHECKERBOARD sign (one direction) and the CHECKERBOARD sign
    (both directions) should be used only for a sharp change in road alignment.

C.

Analysis

(a)

Statutory cause of action

[25]

Fordham
    sued under s. 44 of the
Municipal Act, 2001
,
[4]
which provides a cause of action against a municipality that fails to keep its
    highways (including roads) and bridges in a reasonable state of repair. The
    cause of action is in subsections (1) and (2); defences for the municipality
    are in subsection (3):

44. (1) The municipality that has jurisdiction
    over a highway or bridge shall keep it in a state of repair that is reasonable
    in the circumstances, including the character and location of the highway or
    bridge.

(2) A
    municipality that defaults in complying with subsection (1) is, subject to the
Negligence
    Act
, liable for all damages any person sustains because of the default.

(3) Despite
    subsection (2), a municipality is not liable for failing to keep a highway or
    bridge in a reasonable state of repair if,

(a) it did not know and could not reasonably have
    been expected to have known about the state of repair of the highway or bridge;

(b) it took reasonable steps to prevent the
    default from arising; or

(c) at the time the cause of action arose, minimum
    standards established under subsection (4) applied to the highway or bridge and
    to the alleged default and those standards have been met.

[26]

Case
    law has established a four-step test for analyzing this statutory cause of
    action against a municipality.
[5]

1.

Non-repair
: The plaintiff must prove on a
    balance of probabilities that the municipality failed to keep the road in
    question in a reasonable state of repair.

2.

Causation
: The plaintiff must prove the
    non-repair caused the accident.

3.

Statutory Defences
: Proof of non-repair
    and causation establish a
prima facie
case of liability against a
    municipality. The municipality then has the onus of establishing that at least
    one of the three defences in s. 44(3) applies.

4.

Contributory Negligence
: A municipality
    that cannot establish any of the three defences in s. 44(3) will be found
    liable. The municipality can, however, show the plaintiffs driving caused or
    contributed to the plaintiffs injuries.

This appeal turns on the first step: was Willey Road in
    a state of non-repair because Dutton-Dunwich failed to put up a sign warning of
    the offset?

(b)

The municipalitys
    standard of care and the reasonable driver

[27]

More
    precisely, this appeal turns on the standard of care a municipality must meet
    in fulfilling its duty of reasonable repair, and the application of that
    standard to the facts. A municipalitys standard of care has been thoroughly
    canvassed in two cases: the Supreme Court of Canadas decision in
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 35, a case perhaps better known
    for its discussion of the standard of appellate review; and Howden J.s
    decision in
Deering v. Scugog (Township)
, 2010 ONSC 5502, 3 M.V.R.
    (6th) 33, which this court affirmed in a brief endorsement: 2012 ONCA 386, 33
    M.V.R. (6th) 1, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 351.

[28]

In
    brief, a municipality has a duty to prevent or remedy conditions on its roads
    that create an unreasonable risk of harm for ordinary drivers exercising
    reasonable care. In other words, a municipalitys standard of care is measured
    by the ordinary reasonable driver. Ordinary reasonable drivers are not
    perfect drivers; they make mistakes. As Howden J. wrote in
Deering
,
at para. 154:

In conclusion, I accept what have become the submissions of all
    counsel that road authorities have a duty to ordinary motorists to keep their
    roads in reasonable repair, including the type and location of the road. The
    standard of care uses as the measure of reasonable conduct the ordinary
    reasonable driver and the duty to repair arises wherever an unreasonable risk
    of harm exists on the roadway for which obvious cues on or near the road are
    not present and no warning is provided, subject to the defences of no knowledge
    and reasonable steps to prevent and minimum standards compliance. The ordinary
    motorist includes those of average range of driving ability  not simply the
    perfect, the prescient, or the especially perceptive driver, or one with
    exceptionally fast reflexes, but the ordinary driver who is of average intelligence,
    pays attention, uses caution when conditions warrant, but is human and
    sometimes makes mistakes.

[29]

But
     and this is the important point for this appeal  a municipalitys duty of reasonable
    repair does not extend to making its roads safer for negligent drivers.
[6]
In
Deering
, Howden J. made this point succinctly, at para. 142: The
    standard of care of road authorities rests on the notion of the ordinary
    motorist driving without negligence.

[30]

And
    again, at para. 155:

It is not the law in Canada that the duty of road authorities
    goes beyond the duty to keep their roads in reasonable repair for the ordinary
    driver exercising reasonable care, to include drivers who, for instance, do not
    pay attention, drive at excessive speeds, drive too close to the vehicle in
    front and who are otherwise negligent.

[31]

A
    municipalitys duty of repair includes erecting and maintaining proper signs: see
The Queen v. Jennings
, [1966] S.C.R. 532. And, where hazards are
    hidden or not readily apparent to users of the road,
[7]
a municipality may have a duty to install warning signs. A municipalitys duty
    to install signs, however, is simply an application of the general standard of
    care. Signs are required only if without them, an ordinary driver exercising
    reasonable care would be exposed to an unreasonable risk of harm. Thus, the
    mere presence of a hazard does not require a municipality to put up a warning
    sign; the hazard must be one that puts reasonable drivers at risk. See e.g.
Greenhalgh
    v. Douro-Dummer (Township)
, [2009] O.J. No. 5438 (Sup. Ct. J.), at para.
    17; affd 2012 ONCA 299.

(c)

Positions of the
    parties

[32]

On
    the question whether Dutton-Dunwich met its duty of repair, the municipality
    makes two related submissions. First, the trial judge failed to apply the
    reasonable driver standard to assess whether Dutton-Dunwich met its duty. And,
    second, she instead created a new standard of the ordinary rural motorist who
    disregards stop signs  a standard Dutton-Dunwich contends neither the law nor
    the evidence in this case supports.

[33]

In
    response, Fordham submits that the trial judges decision should be upheld:
    first because Dutton-Dunwichs failure to put up a sign warning of the offset
    was contrary to the Manuals guidelines; and second because Dutton-Dunwich knew
    rural drivers routinely go through stop signs. The decision to apportion
    liability equally was the trial judges to make, and no basis has been shown to
    interfere with her decision.

[34]

For
    reasons I discuss, I agree with Dutton-Dunwichs submissions. And I do not
    accept that either the Manual or the municipalitys knowledge that rural
    drivers do not stop at stop signs supports the trial judges decision to impose
    liability on the municipality.

(d)

Discussion

(i)

The
    trial judge did not apply the reasonable driver standard

[35]

The
    trial judge correctly stated the municipalitys duty of repair and the standard
    of care. But then she misapplied the standard. She held that the municipality should
    have put up a sign warning of the hidden and unknown change in the road
    alignment  that the offset was a hidden hazard calling for a warning sign
    for drivers to slow down.

[36]

The
    trial judges holding was an error because the offset posed no hazard, no risk
    at all to the reasonable driver  the ordinary driver exercising reasonable
    care. It posed a hazard only to drivers such as Fordham who ignored the stop
    sign. Drivers who run a stop sign at 80 km per hour are not driving reasonably;
    they are driving negligently. The following two decisive facts were
    uncontested:

·

On the night of the accident, the stop sign was clearly visible
    from hundreds of metres away.

·

A driver who stopped at the stop sign  even indeed one who
    slowed to 50 km per hour  would have adequate time to perceive the offset and
    navigate it safely.

The trial judges finding of liability would be
    supportable only if the offset posed a hazard to the reasonable driver. But
    that was not the evidence.

[37]

The
    expert opinions of Hrycay and Smiley that Dutton-Dunwich should have installed
    a warning sign assumed that the municipality ought to maintain its roads for
    more than just the reasonable driver. That assumption is not the law of
    Canada. Municipalities owe no duty to warn of hazards that present an
    unreasonable risk of harm only to drivers who do not drive with reasonable
    care. And no one can seriously question that drivers who ignore important
    traffic signals, such as stop signs, are not driving with reasonable care. Our
Highway
    Traffic Act
[8]
requires all drivers to obey posted road signs and come to a complete stop at a
    stop sign. In
Chaschuk (Hurlbert) v. Lebel
(1981)
, 12 M.V.R. 228 (Ont. C.A.), at p. 232, this court
    held that to miss, even momentarily, a visible traffic signal is negligent.

[38]

The
    present case may be contrasted with
Housen
. In
Housen
, the
    majority of the Supreme Court affirmed the trial judges ruling that a
    municipality had breached its duty of repair because it had not put up a sign
    to warn drivers to reduce their speed as they approached a sharp curve in the
    road. The severity of the curve was not readily apparent and thus was a hidden
    hazard, even for reasonable drivers who would have continued driving at the
    speed limit, unaware that they had to slow down. In the case before us, the
    municipality did put up a sign, not merely to slow down, but to stop
    altogether.

[39]

The
    distinction between the two cases is obvious. In
Housen
, without a
    warning sign, the curve in the road posed an unreasonable risk of harm to
    ordinary drivers exercising reasonable care. In the present case, with a stop
    sign in place, the offset was not a hidden hazard; it posed no risk of harm
    to reasonable drivers. Because it did not do so, the trial judge was wrong to
    find that Dutton-Dunwich had a duty to put up an additional warning sign.

[40]

Perhaps,
    however, to avoid this inevitable conclusion, the trial judge created a new
    category of driver: the ordinary rural driver who does not always stop at stop
    signs.

(ii)

Ordinary
    rural drivers do not always stop at stop signs

[41]

The
    trial judge found that [c]learly, it is a local practice in this rural area
    for drivers to go through stop signs if they consider it safe. Later in her
    reasons, she repeated this finding: Ordinary rural drivers do not always stop
    at stop signs and the defendant knew that. Relying on this finding, the trial
    judge concluded that the circumstances of this intersection require more than
    a stop sign to give ordinary rural motorists reasonable notice of [a]
    potentially catastrophic hazard ahead.

[42]

The
    trial judges new and general category of driver  the ordinary rural driver
    who does not always stop at stop signs  was not supported by the evidence at
    trial, and is not supportable in law.

[43]

First,
    the evidence. In finding a local practice in this rural area for drivers to
    go through stop signs and the municipalitys knowledge that they did, the trial
    judge appeared to rely on the following evidence:

·

Two of Fordhams teenaged friends testified that they and other
    drivers would go through stop signs if no one was around.

·

Dutton-Dunwichs road engineer, Michael Hull, agreed that in
    rural areas drivers do not always obey stop signs or yield signs.

·

Smiley testified that in rural areas, drivers often run through
    stop signs if they can see no other cars are approaching.

[44]

At
    best, the evidence suggests that some drivers in rural areas disobey stop
    signs. Some may not come to a full stop; some may come to a rolling stop,
    while driving at a slow rate of speed; and perhaps some may, as the trial judge
    effectively found, go through the intersection at or near the speed limit,
    without slowing down at all. This generic evidence, however, does not support
    the trial judges finding of a local practice  a practice in Dutton-Dunwich
    for ordinary rural drivers to go through stop signs, or her finding that the
    municipality knew about this practice.

[45]

Moreover,
    liability for non-repair must be based on the condition of the road in
    question. Apart from the evidence of one of Fordhams teenaged friends, no
    evidence was led at trial to suggest that drivers ran the stop sign at the
    Willey RoadErin Line intersection or that they did so at a high rate of speed,
    or that accidents had occurred at that intersection, or even that the
    municipality itself had experienced problems with drivers running stop signs. Indeed,
    evidence of that kind could hardly have been available because most of
    Dutton-Dunwichs intersections  including the Willey RoadErin Line
    intersection  were controlled by yield signs until a month or two before the
    accident, when they were replaced by stop signs.

[46]

I
    conclude that the trial judges finding of a local practice of running stop
    signs, which Dutton-Dunwich knew about, was an unreasonable finding.

[47]

Second,
    and more important, the law. Even if the evidence did support the trial judges
    finding of a local practice, this finding cannot be used to impose liability on
    Dutton-Dunwich for two reasons. First, the local practice the trial judge endorsed
    nonetheless amounts to negligent driving. As Iacobucci J. said in
Waldick
    v. Malcolm
, [1991] 2 S.C.R. 456, at p. 473: [N]o amount of general
    community compliance will render negligent conduct reasonable.

[48]

Second,
    the trial judge in effect created two categories of drivers: ill-defined ordinary
    rural drivers who frequently run stop signs, and all other ordinary drivers who
    habitually obey stop signs. In the trial judges opinion, a municipalitys duty
    of repair extends to both categories of drivers. This is, as Dutton-Dunwich
    says in its factum, an invitation to traffic chaos. It is also not the law in
    this country.

[49]

The
Highway Traffic Act
establishes a uniform set of rules of the road,
    which applies to all drivers, whether they drive on city roads or rural roads. It
    could hardly be otherwise. As I said earlier, a municipalitys duty to keep its
    roads, city or rural, in a reasonable state of repair extends only to making
    its roads safe for reasonable drivers, not negligent ones. If a road is safe
    for a reasonable driver  as was the Willey RoadErin Line intersection  then
    a municipality has no duty to put up additional signs or take other precautions
    to prevent accidents that will occur only if a driver is negligent.

[50]

If
    this is the law on a municipalitys standard of care, the trial judges reasons
    contain an irreconcilable conflict. The trial judge could impose liability for
    non-repair only by finding that in rural areas driving through stop signs was
    reasonable driving. Yet, when she came to apportion liability, she found that
    in running the stop sign, Fordham was negligent. These two findings cannot be
    reconciled. Running stop signs, even on rural roads, is negligent driving. A
    municipality has no duty to install warning signs that are unnecessary for
    reasonable drivers.

(iii)

The Ontario Traffic Manual

[51]

As
    I have said, the Manual recommends a checkerboard warning sign for a sharp
    change in road alignment. The plaintiff contends that the offset at the Willey
    RoadErin Line intersection was a sharp change and required a warning sign. Hrycay
    testified that the offset was a substantial change in alignment, and Smiley
    testified that the road turn[ed] sharply. As the trial judge accepted their
    evidence, she found, implicitly if not expressly, a sharp change in the
    alignment of Willey Road.

[52]

Did
    Dutton-Dunwich thus have a duty to put up a checkerboard warning sign? I do not
    think that it did. In
Deering
,
at para. 243, Howden J. suggested that a court ought to have good reason for
    departing from the Manual. However, he distinguished guidelines that say must
    from those that say should:

But in my view, where a road manual is one respected within the
    road engineering community as the [Ontario Traffic Manual] is, and the
    guideline in question uses the word must, the court should approach it in the
    sense that there should be some compelling reason not to follow it in the
    circumstances and context within which the transportation engineer is working. This
    approach would provide some distinction from a guideline reading should.

[53]

For
    checkerboard warning signs, the Manual uses the word should, not must. Moreover
    as Lauwers J. said in
Greenhalgh
,
at paras. 66-68, the guidelines in a traffic manual are just that, guidelines. They
    do not establish a legally enforceable standard of care for civil liability. The
    overriding question is always: Does the condition of the road pose an
    unreasonable risk of harm to reasonable drivers? In this case, the answer to this
    question is no. Thus, I would not give effect to the plaintiffs contention on
    the Manual.

D.

Conclusion

[54]

I
    would allow Dutton-Dunwichs appeal, set aside the judgment at trial and
    dismiss the plaintiffs action. Dutton-Dunwich is entitled to its costs on this
    appeal in the agreed amount of $35,000, inclusive of disbursements and
    applicable taxes.

Released: December 11, 2014 (J.L.)

John Laskin J.A.

I agree. Paul Rouleau J.A.

I agree. P. Lauwers J.A.

[1]
Ontario has a graduated licensing system. To get a G2 licence, a driver has to
    finish two learning levels.

[2]
Although his blood alcohol readings were below the legal limit for fully
    licenced drivers, G2 licence holders must have a blood alcohol concentration of
    zero when driving.

[3]
The defendant also called an expert who specialized in road design, traffic
    control and signage, but the trial judge rejected his evidence.

[4]
S.O. 2001, c. 25

[5]
I have taken the test from Dutton-Dunwichs factum, where it is accurately
    summarized. See e.g.
Morsi v. Fermar Paving Ltd.
, 2011 ONCA 577, 86 M.P.L.R. (4th) 30, leave to
    appeal to S.C.C. refused, [2011] S.C.C.A. No. 487; and
Deering
    v. Scugog

(Township)
,
    2010 ONSC 5502, 3 M.V.R. (6th) 33, affd 2012 ONCA 386, 33 M.V.R. (6th) 1,
    leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 351.

[6]
In
Rider v. Rider

(1972)
,
    [1973] Q.B. 505 (C.A.), the English Court of Appeal suggested that a
    municipalitys duty of repair extended to drivers whose conduct fell below the
    standard of reasonable care. In
Deering
, however, Howden J. accurately
    stated, at para. 140: The notion from
Rider
that the standard for
    road authorities is to be measured by drivers whose conduct falls below the
    standard of reasonable or ordinary care is not the law in Canada.

[7]

Housen
, at para. 42.

[8]
R.S.O. 1990, c. H.8, ss. 136(1), 182(2).


COURT OF APPEAL FOR ONTARIO

CITATION: Gajewski v.
    Wilkie, 2014 ONCA 897

DATE: 20141216

DOCKET: C56661

Laskin, Rouleau and Epstein JJ.A.

BETWEEN

Bartosz Gajewski

Appellant

and

Dr. Treena Wilkie

Respondent

Suzan E. Fraser, for the appellant

Kendra Naidoo, for the respondent

Heard: June 5, 2014

On appeal from the judgment of Justice Andra Pollak of
    the Superior Court of Justice, dated February 6, 2013.

Epstein J.A.:

OVERVIEW

[1]

On March 24, 2011, the appellant, Bartosz Gajewski, was detained at the
    Centre for Addiction and Mental Health, in Toronto by order of the Ontario
    Review Board, following a verdict of not criminally responsible on account of
    mental disorder at his trial on charges of assault and attempted kidnapping.
    After the appellant refused medication recommended for his delusional disorder,
    a physician, the respondent, Dr. Treena Wilkie, found him incapable with
    respect to treatment. At a subsequent review hearing, the Consent and Capacity
    Board confirmed this incapacity finding.

[2]

Mr. Gajewski appealed the decision of the Consent and Capacity Board
    (the Board) to the Superior Court.  Justice Whitaker appointed an
amicus
    curiae
to assist Mr. Gajewski.
Amicus
advanced Mr. Gajewskis
    arguments and made additional submissions.  In her endorsement dated February
    6, 2013, Pollak J. found the Boards decision reasonable and dismissed the
    appeal.

[3]

Mr. Gajewski appeals that decision to this court.  He submits that the
    evidence does not support the test for incapacity.  He further alleges
    ineffective assistance of
amicus
and seeks to introduce fresh evidence
    to support this ground of appeal.

[4]

I would dismiss the appeal.  In my view, the respondents evidence,
    corroborated by other evidence, supports the Boards conclusion that the
    appellant is incapable with respect to treatment with antipsychotic
    medication.   In my view, this appeal can be disposed of without dealing with
    the appellants allegation of ineffective assistance of
amicus
.

STATUTORY TEST FOR CAPACITY

[5]

This appeal arises in the context of a patients legal right to
    determine his or her own medical treatment. In Ontario, s. 10(1) of the
Health
    Care Consent Act, 1996
, S.O. 1996, c. 2, Sched. A (the Act), provides
    that a health practitioner is precluded from administering a proposed treatment
    to a patient, and is required to take reasonable steps to ensure that the
    treatment is not administered, unless consent to the treatment is first
    obtained (1) from the patient, where the patient is capable with respect to the
    treatment; or (2) from the patients substitute decision-maker, where the
    patient is incapable with respect to the treatment.

[6]

Section 4(1) of the Act establishes two criteria for capacity. To be
    capable with respect to a treatment, a person must be able to understand the
    information that is relevant to making a decision about the treatment and must
    be able to appreciate the reasonably foreseeable consequences of a decision or
    lack of decision.  Section 4(2) provides that a person is presumed to be
    capable with respect to treatment. This presumption of capacity is displaced
    only if one or both of the s. 4(1) criteria for capacity are not met.

[7]

In
Starson v. Swayze
, 2003 SCC 32, [2003] 1 S.C.R. 722, at
    para. 78, Major J., writing for the majority, explained the two criteria for
    capacity to consent to a treatment, as follows:

First, a person must be able to understand the information that
    is relevant to making a treatment decision. This requires the cognitive ability
    to process, retain and understand the relevant information.... Second, a person
    must be able to appreciate the reasonably foreseeable consequences of the
    decision or lack of one. This requires the patient to be able to apply the
    relevant information to his or her circumstances, and to be able to weigh the
    foreseeable risks and benefits of a decision or lack thereof.

OVERVIEW OF FACTUAL BACKGROUND

[8]

The appellant was born in Poland in 1971 and immigrated to Canada in
    1989.  He has a history of mental illness dating back to at least 2003.

[9]

Upon admission to the Centre for Addiction and Mental Health, (CAMH),
    on March 24, 2011, the appellant was cared for by Dr. Swayze.  The doctor
    proposed antipsychotic medication and provided the appellant with information
    about the suggested treatment.  At that time, the appellant denied experiencing
    any on-going delusions but acknowledged that he had had a fixed false belief at
    the time of the index offences.  He agreed with the diagnosis of delusional disorder.

[10]

On
    May 20, 2011, the appellant was transferred to the minimum security unit at
    CAMH and into the care of Dr. Wilkie.  From then to December 2011, the
    appellant, with some hesitation, acknowledged suffering from a delusional
    disorder.

[11]

By
    the end of December 2011, the appellants view of his condition and the risks
    and benefits of treatment had significantly changed.  As a result, over the
    next month, Dr. Wilkie assessed the appellants capacity to consent to
    antipsychotic medication.

[12]

On
    January 31, 2012, on the basis of tests, her assessment of the appellant and a
    consultation with another doctor, Dr. Wilkie informed the appellant that she
    found him incapable of consenting to treatment. The appellant immediately
    expressed his wish to have a hearing before the Board.

THE BOARD HEARING

[13]

On
    February 7, 2012, the Board held a hearing to review Dr. Wilkies finding of
    incapacity to consent to antipsychotic medication.

[14]

Dr.
    Wilkie testified at the hearing.  She described, in considerable detail, the
    appellants early insight into his medical condition and then his precipitous
    change of beliefs.

[15]

When
    the appellant was first admitted to CAMH on March 24, 2011, he denied that he
    retained any delusional beliefs regarding the victim of the index offences.
    But, he acknowledged that, at the time of committing the offences, he did have
    such delusional beliefs.  He agreed with the diagnosis of delusional disorder.
    Upon being given information about the nature of his disorder and medications
    that he should consider taking, the appellant selected a particular
    antipsychotic medication.  At this time, the appellants attending physician
    considered him capable of consenting to this treatment.

[16]

But
    the medication was not given to him.  It was discovered that the appellant had
    abnormally high levels of liver enzymes in his blood.  This symptom had to be
    explored, precluding treatment with the medication.

[17]

By
    the end of 2011, the appellants liver enzymes had normalized. A specialist
    determined that there was no need for further investigation into the liver
    issue.  As a result, there was more overt discussion with the appellant about
    starting him on antipsychotic medication. Around this time, the appellant began
    to express a different view of his mental illness.  Treatment notes from CAMH
    document this change:

·

On December 12, 2011, the appellant alluded to the possibility
    that he had been misdiagnosed.  He declined medication.

·

On December 30, 2011, the appellant stated that he would not take
    medication.  The appellant was anticipating an upcoming hearing before the
    Ontario Review Board (the ORB). He intimated that he would appeal his NCR
    status.  He said that Jehovah would make sure that information came forward in
    due time.  He stated beliefs about the victim of the index offence similar to
    those that apparently motivated the offence.  Further, he stated that the index
    offence was justifiable force.

·

On January 3, 2012, the appellant stated that he did not believe
    he suffered from a delusional disorder.  He refused any kind of treatment.  He
    again expressed his belief that he had been persecuted by the victim of the
    index offence.  He intended to challenge his NCR status. He was considering
    litigating against those who had wronged him, including the victim of the index
    offence, Dr. Wilkie and CAMH.

·

On January 11, 2012, the appellant again stated that he was not
    interested in any sort of treatment, saying Jehovah will act.  He believed
    there was a 0% chance that he had a delusional disorder.  He did not believe
    there would be any benefit in taking medication or any risk in not taking it.

·

On January 31, 2012, Dr. Wilkie reviewed the appellants recent
    treatment notes with him.  He asserted that Jehovah would be making corrections
    soon, which would lead to Dr. Wilkies going to jail and losing her license.

[18]

On
    cross-examination, Dr. Wilkie acknowledged that in a report for the ORB dated
    December 29, 2011, she had concluded that the appellant presented as capable of
    consenting to treatment with medication.  Dr. Wilkie explained that, in the
    month between writing that report and finding the appellant lacking in capacity
    on January 31, 2012, she had reassessed the appellants capacity to consent.
    At the end of December 2011, it became clear to her that the appellant was no
    longer refusing medication because of his concerns about his liver, but because
    he did not agree that he suffered from a delusional disorder.

[19]

Dr.
    Wilkie also expressed her view that medication would likely reduce the
    intensity of the appellants delusions.  Without it, his delusions would
    persist, as would his risk of re-offending. Dr. Wilkie also testified that, in
    her opinion, the appellants mental disorder affected his ability to understand
    the information about the proposed treatment and his ability to apply that
    information to himself.  As a result, in the respondents opinion, the appellant
    failed both branches of the test for capacity to consent.

[20]

The
    appellant also testified at the hearing. He told the Board that he believed he
    had delusions. However, he also believed they were true.  When asked to explain
    this discrepancy, he said, I cant explain that.  He agreed he believed that
    Jehovah would prove the diagnosis of delusional disorder to be false.  The
    appellant also testified that he believed that medication would reduce the
    strength of his delusional beliefs.  When asked why he had not communicated
    that belief to Dr. Wilkie, he stated, That was my decision.  I didnt have a
    valid or any reason, I just didnt do [so].

[21]

During
    the Board hearing, the appellant spoke extensively about his concerns relating
    to the side effects of the proposed medication, a topic he had researched.
    These concerns caused him to refuse to take the medication.  He said, I am
    primarily concerned about my physical health.

THE BOARD DECISION

[22]

The
    panel released its decision the day after the hearing, on February 8, 2012.
    Written reasons followed on February 15, 2012.

[23]

In
    her reasons, the presiding Board member reviewed the evidence of the
    appellants index offence and his mental disorder.  She then proceeded to
    analyze the two branches of the test under s. 4(1) of the Act, making findings
    of fact in the process.

[24]

The
    Board made the following findings of fact of importance here:

·

Dr. Wilkies capacity assessment was a process that evolved
    over time;

·

The appellants evidence was inconsistent on key points;

·

The appellant moved from a consistent acknowledgement of his
    mental disorder to a statement on January 11, 2012, that there was 0% chance
    that he had a mental disorder;

·

By the day of the hearing, the appellant had returned to a
    delusional state similar to that from which he suffered in 2009 when he
    attempted to kidnap the victim of the index offences;

·

The panel was not convinced that the appellant perceived any
    potential benefits from the medication; and

·

The appellant viewed the world through the lens of his mental
    disorder.

[25]

With
    respect to the first branch of the test, the Board concluded, at p. 9, that:

[The appellants] distortion of his relationship with the
    victim [of the index offences], and his preoccupation with religion, both
    caused by his mental disorder, prevented him from processing, retaining and
    understanding the relevant information.

[26]

With
    respect to the second branch of the test, the Board concluded, at p. 10, that:

The evidence taken as a whole, including [the appellants] own
    testimony, amply supported the doctors conclusions concerning [the
    appellants] capacity.  [The appellant] was unable to see that he was in fact
    suffering from serious manifestations of mental illness.  He therefore was not
    able to evaluate information concerning the proposed types of medications as it
    related to his own circumstances, a fact which rendered him incapable to make a
    decision concerning them.

[27]

Accordingly,
    the Board upheld the respondents finding that the appellant was incapable with
    respect to treatment with antipsychotic medication.

THE APPEAL

[28]

Mr.
    Gajewski appealed the Boards decision to the Superior Court.  Prior to Mr.
    Gajewskis perfecting his appeal, the case management judge, Whitaker J.,
    determined that an
amicus curiae
should be appointed.

[29]

Mr.
    Nemetz was selected as
amicus
.  The appellant prepared his own
    factum.  Mr. Nemetz filed the appellants factum as well as one that he had
    written.

[30]

At
    the hearing, a discussion took place as to who would present oral argument on
    the appellants behalf.  Ultimately, the appellant stated that his preference
    would be that Mr. Nemetz would make the arguments for me, adding, perhaps he
    could use some of my arguments when he presents the case before Your Honour.
    The appellant further stated that had he made oral submissions, he would not
    have gone beyond what was written in his factum.

[31]

The
    appeal judge was not persuaded that there were any reversible errors in the
    Boards reasoning.  She held that the Boards conclusion was within the
    reasonable range of possibilities and dismissed the appeal.

ISSUES

[32]

The
    appellant raises the following issues for determination by this court:

1.

What standards
    of review apply to the Boards and the Superior Court Justices decisions?

2.

Did the appeal
    judge err in concluding that the Boards decision of incapacity was supported
    by the evidence and within the reasonable range of possibilities?

3.

Should the
    appeal judges decision be overturned based on the allegedly ineffective
    assistance of
amicus
?

ANALYSIS

ISSUE ONE:
    What standards of review apply to the Boards and the Superior Court Justices
    decisions?

[33]

Determining
    whether the appellant was capable of making his own decision regarding
    treatment with antipsychotic medication required the Board to apply, and the
    appeal judge to review, the evidence before it to the statutory test for
    capacity set out in s. 4(1) of the Act.  In
Starson
, at paras. 23 and
    84, the Supreme Court was unanimous that this is a question of mixed fact and
    law that is reviewable on a standard of reasonableness.  But, a reviewing court
    should not defer to the Boards findings if the Board has misunderstood the
    statutory test.  See also
Dunsmuir v. New Brunswick
, 2008 SCC 9,
    [2008] 1 S.C.R. 190, at paras. 47-49;
Giecewicz v. Hastings
, 2007 ONCA
    890, 288 D.L.R. (4th) 587, at para. 13, leave to appeal to S.C.C. refused,
    [2008] S.C.C.A. No. 97.

ISSUE TWO: Did
    the appeal judge err in concluding that the Boards decision of incapacity was
    supported by the evidence and within the reasonable range of possibilities?

(i) Was the respondents evidence corroborated?

[34]

The
    appellant submits that the Board erred by not considering s. 14 of the
Evidence
    Act
, R.S.O. 1990, c. E.23. Section 14 states:

An opposite or interested party in an action by or against one
    of the following persons shall not obtain a verdict, judgment or decision on
    the partys own evidence, unless the evidence is corroborated by some other
    material evidence:

1. A person who has been found,

...

iii. incapable by a court in Canada or elsewhere.

2. A patient in a psychiatric facility.

[35]

In
Anten v. Bhalerao
, 2013 ONCA 499, 366 D.L.R. (4th) 370, this court
    considered the application of s. 14 in proceedings before the Board.   Writing
    for the court, Rosenberg J.A. held, in
obiter
, that in order for the
    Board to uphold a doctors finding of incapacity, the medical evidence had to
    be corroborated.

[36]

Here,
    the appellant submits that the respondents evidence was not corroborated.  The
    appellant contends that Dr. Wilkie provided no evidence for the basis of her
    opinion that the appellant was incapable other than that the appellant
    disagreed with her.  Further, the appellant asserts that there was no factual
    foundation for the conclusion that this disagreement was the result of the
    appellants mental illness.  In support of this contention, the appellant
    relies on the fact that it was only when he started to question Dr. Wilkies
    diagnosis and the proposed medication that the respondent changed her opinion
    about his capacity.

[37]

I
    do not accept this submission.

[38]

As
    previously indicated, the appellant testified before the Board. In
Anten
,
    at para. 30, Rosenberg J.A. wrote, I accept that in an appropriate case a
    physician's evidence can be corroborated, within the meaning of s. 14, by a
    patient's own evidence.  The Board had the opportunity to observe and question
    the appellant.  It was in a position to assess the appellants testimony in the
    context of other evidence, including his documented conversations with health
    care workers and family members.  In its reasons, the Board expressly adverted
    to the appellants testimony at the hearing. The Board described the
    appellants evidence as being consistently inconsistent on key points.

[39]

In
    addition to Dr. Wilkies evidence, there was documentary evidence. The Board
    specifically referenced the fact that Dr. Wilkie sought a second opinion from a
    Dr. Pearce regarding the appellants capacity to consent.  Dr. Pearce met with
    the appellant.  Dr. Pearce prepared a progress note, dated January 25, 2012,
    that was before the Board.  In the progress note, Dr. Pearce stated that the
    appellant did not accept that he suffered from delusions and that he does not
    have any insight into the risks and benefits of treating or not treating his
    mental illness.   Dr. Pearces note concludes that, in his opinion, the
    appellant failed both branches of the test for capacity in the Act.

[40]

While
    Dr. Pearces note is hearsay given he did not testify at the hearing, the Board
    may admit hearsay evidence:
Starson
, at para. 115;
Anten
, at
    para. 32;
Statutory Powers Procedure Act
, R.S.O. 1990, c. S.22, s.
    15.  In
Starson
, at para. 115, writing for the majority, Major J.
    cautioned that although hearsay was admissible before the Board, the Board
    must be careful to avoid placing undue emphasis on uncorroborated evidence
    that lacks sufficient indicia of reliability.  There is no evidence here, and
    the appellant has pointed to none, to suggest that Dr. Pearces hearsay
    evidence was lacking in reliability.

[41]

The
    documents the Board admitted into evidence also included other progress notes
    and a hospital report.  Although these documents were primarily prepared by Dr.
    Wilkie, I note that the December 29, 2011, Hospital Report to the Ontario
    Review Board lists Clinical Director Padraig L. Darby as a co-author with Dr.
    Wilkie.  In addition, the December 12, 2011, progress note was authored by a
    resident doctor, who met with the appellant along with Dr. Wilkie.

[42]

In
    summary, Dr. Wilkies testimony that the appellant lacked capacity to consent
    was corroborated by a number of sources.

(ii) Was the Boards finding of lack of capacity a reasonable
    one?

[43]

The
    appellant submits that the Board erred in its application of the statutory test
    because the respondent failed to adduce sufficient evidence of incapacity.
    The appellant testified that he had weighed the pros and cons and disagreed
    with the respondent as to what was in his best interests.  The appellants
    primary consideration was his physical health and the potential adverse effects
    of the proposed medication.

[44]

The
    appellant also submits that the timing of the respondents assessment
    undermines its credibility.  In her report for the ORB, dated December 29,
    2011, the respondent concluded that the appellant was capable of consenting to
    treatment.  Just over a month later, on January 31, 2012, the respondent came
    to the opposite conclusion.  In the appellants view, it was only when he began
    to question the respondents diagnosis and treatment plan that the respondent
    decided he was incapable.

[45]

As
    stated by Major J. in
Starson
, at para. 91, The enforced injection of
    mind-altering drugs against the respondents will is highly offensive to his
    dignity and autonomy, and is to be avoided unless it is demonstrated that he
    lacked the capacity to make his own decision. As
Starson
illustrates,
    the Board must take care to ensure, in such a circumstance, that the attending
    physician has proven that the patient fails the statutory test for capacity.
    The test is not whether the treatment is, in the Boards opinion, in the
    patients best interests.

[46]

In
    both
Giecewicz
and
Starson
, the focus of the analysis was the
    second branch of the test for capacity.  I will therefore first determine
    whether the Boards decision with respect to the second branch was
    reasonable.   For ease of reference, I repeat how Major J. in
Starson
,
    at para. 78,  described the second branch:

[A] person must be able to appreciate the reasonably
    foreseeable consequences of the decision or lack of one. This requires the
    patient to be able to apply the relevant information to his or her
    circumstances, and to be able to weigh the foreseeable risks and benefits of a
    decision or lack thereof.

[47]

In
Starson
, at para. 79, Major J. made the following important
    observation:

[A] patient is not required to describe his mental condition as
    an illness, or to otherwise characterize the condition in negative terms.
    Nor is a patient required to agree with the attending physicians opinion
    regarding the cause of that condition.
Nonetheless, if
    the patients condition results in him being unable to recognize that he is
    affected by its manifestations, he will be unable to apply the relevant
    information to his circumstances, and unable to appreciate the consequences of
    his decision
. [Emphasis added.]

[48]

Similarly,
    in
Giecewicz
, at paras. 38-40, Doherty J.A. wrote for this court:

I have set out the evidence in some detail because, in my view,
    that evidence speaks to the very situation described by both Major J. and
    McLachlin C.J.C. in the passages from their reasons in
Starson v. Swayze
quoted above.  According to Dr. Hastings, the appellant suffers from a mental
    disorder that in the words of Major J.  makes her unable to apply the relevant
    information given to her to her own circumstances and unable to appreciate the
    consequence of her decisions.  Dr. Hastings testified that the appellants
    inability to acknowledge the existence of the condition for which he had
    recommended medication thoroughly undermined her ability to evaluate that information
    and his advice.

Dr. Hastings evidence also reveals two of the three indicators
    of incapacity based on an inability to appreciate consequences referred to by
    McLachlin C.J.C.   Dr. Hastings opined that the appellant was unable to
    acknowledge the fact that the condition for which he recommended treatment may
    affect her (the first criterion described by McLachlin C.J.C.), and that her
    choice to refuse treatment was substantially based on her delusional belief
    system (the third criterion described by McLachlin C.J.C.).

The Board accepted Dr. Hastings opinion which was virtually
    unchallenged.  Parts of the appellants own testimony tended to confirm that
    assessment.  The Board did not act unreasonably in accepting his opinion.

[49]

In
    my view, the evidence supports the Boards findings that the appellant: 1) was
    suffering from the manifestations of a mental disorder, including entrenched
    false beliefs, persecutory delusions and religious preoccupation; and 2) was
    unable to see that he was suffering from these manifestations at the time of
    the hearing.  Although there were moments during the hearing at which the
    appellant purported to accept that his beliefs about the victim of the index
    offences were delusions, these moments were contradicted by his other testimony
    and by a month of clinical observation by Dr. Wilkie and her colleagues.  The
    appellant could provide no explanation for his shifting expression of his own
    beliefs.  It was open to the Board to conclude that the appellant did not truly
    believe that he suffered from delusions.  It follows from the cited passages
    from
Starson
and
Giecewicz
that the appellant was not able to
    apply the relevant information to his circumstances and thus was not able to
    appreciate the reasonably foreseeable consequences of taking or not taking the
    proposed medication.

[50]

There
    was also evidence to support the Boards finding that Dr. Wilkies capacity
    assessment was a process that could change over time.  Thus, the fact that
    the respondents views on the appellants capacity changed over the course of a
    month did not undermine her opinion. The evidence was that the appellants
    condition might wax and wane.  Moreover, until the appellants liver enzymes
    had normalized, the respondent and her team at CAMH could not force the issue
    of the proposed medication.  As a result, the question of capacity to consent
    to this treatment did not truly arise until late in 2011.  As discussed, Dr.
    Wilkies finding of incapacity was reached after a series of meetings with the
    appellant in late December of 2011 and in January of 2012, including a
    consultation with Dr. Pearce.

[51]

The
    appellant directed many of his submissions to his concern about the side
    effects of the proposed medication.  He also asserted that the respondent had
    presented no evidence that the medication would ameliorate his condition.

[52]

As
    stated above, Dr. Wilkie testified that the medication would diminish the
    intensity of the appellants delusions.  True, she did not present the Board
    with anything beyond her professional opinion that the proposed medication
    would help the appellant.  However, with respect, the appellants submissions
    on the efficacy of the proposed medication are not particularly germane to the
    question before the Board.  As stated by Doherty J.A. in
Giecewicz
, at
    para. 43:

It is not the Board's task to weigh the risks and benefits of
    the proposed treatment or to make any determination as to the advisability of
    the treatment from a medical standpoint. The issue before the Board was the
    appellant's capacity to make the relevant decisions.

[53]

The
    only relevance of submissions relating to the benefits and side effects of the
    proposed medication to the question of capacity is whether the appellant has a
    rational justification for refusing the treatment.  While I do not doubt that
    the appellant has a sincere, and perhaps justified, concern about potential
    adverse effects from the proposed medication, the rational nature of this
    concern cannot, on its own, overcome the preponderance of evidence that
    supports the reasonableness of the Boards finding of incapacity on the second
    branch.

[54]

Given
    my conclusion on the second branch, I do not need to consider whether the Board
    erred with respect to the first branch of the test.  I would note, however,
    that in both
Starson
and
Giecewicz
, the first branch was not
    at issue because it was accepted that the patients were intelligent and able to
    process, retain, and understand the relevant information.

[55]

Here,
    Dr. Wilkie testified that:

[I]t was clear to me that in the abstract Mr. Gajewski
    understood what the medication was, what the potential side effects of
    medication was, what the potential benefits of medication would be for another
    individual.  But that due to the fact that he was not of the opinion that he
    suffered from a delusional disorder, that he was unable to apply that knowledge
    to himself.

[56]

On
    the basis of this testimony, I am of the view that the reasonableness of the
    Boards finding that the appellant lacked capacity to consent under the first
    branch may be in some doubt.  However, as this appeal can be resolved without
    addressing this issue, I would not pursue it further.

[57]

For
    these reasons I would not give effect to this ground of appeal.

ISSUE THREE:
    Should the appeal judges decision be overturned based on the allegedly
    ineffective assistance of
amicus
?

[58]

Ineffective
    assistance of
counsel
was a ground of appeal that, at law, would have
    been available to the appellant:
Gligorevic
, at paras. 60-65. However,
    whether an argument based on ineffective assistance of
amicus curiae
is available is quite a different matter.

[59]

In
    my view, it is an issue that need not be addressed in order to determine the
    appeal as I have reviewed the Boards decision on the same standard of review that
    the Superior Court applied    standard of reasonableness  and have
    independently concluded that there is no reason to interfere with the Boards
    decision.

[60]

Nonetheless,
    as a serious allegation has been raised before this court, in relation to the
    assistance of
amicus
, I feel compelled to say that I have seen nothing
    in the record that gives rise to any concern about the assistance
amicus
provided
    the appellant.

[61]

It
    follows that I would dismiss the appellants motion to introduce fresh evidence
    since the proposed evidence relates to this ground of appeal.

DISPOSITION

[62]

For
    these reasons, I would dismiss the appeal.  I would make no order as to costs.

Released: December 16, 2014 (G.E.)

Gloria
    Epstein J.A.

I
    agree John Laskin J.A.

I
    agree Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gilmore v. Gilmore, 2014 ONCA 916

DATE: 20141222

DOCKET: C57161

Hoy A.C.J.O., Simmons and Tulloch JJ.A.

BETWEEN

Leslie Gilmore

Applicant

(Respondent in Appeal)

and

David Gilmore

Respondent

(Appellant in Appeal)

Christos Vitsentzatos, for the appellant

Jennifer Howard, for the respondent

Heard and released orally: December 18, 2014

On appeal from the judgment of Justice D.M. Korpan of the
    Superior Court of Justice, Family Branch, dated May 7, 2013.

ENDORSEMENT

[1]

The appellant appeals from a 2013 order awarding lump sum and periodic
    spousal support to the respondent.  The appellant submits that the trial judge
    erred in failing to impute income to the respondent and further erred in
    failing to take account of the disposition by the respondent of her business.
    We do not accept these submissions.

[2]

At paragraphs 44 and 45 of her reasons, the trial judge stated the
    following:

Ms. Gilmore is now age 51.  She never held a full time job
    during the 19 ½ year marriage.  Her work experience involved physical tasks
    which she can no longer do.  She has a high school education and no special
    skills or training.  Of her earnings provided to the court the most she earned was
    $13,532 in 2004 which included her WSIB pension in an unspecified amount.  In
    her last year of operating Busy Bee in 2008 her income from Busy Bee was
    $7,277.25.

I believe Ms. Gilmores evidence and accept the reports of her
    physicians that she is ill and in pain.  I find that Ms. Gilmore is not
    intentionally unemployed and I am not prepared to impute income to her in the
    circumstances.

[3]

These are findings of fact.  They were open to the trial judge on the
    record before her.  The appellant has failed to establish palpable and
    overriding error.  The trial judges award of support involved an exercise of
    discretion.  The standard of review is that set out in
Hickey v. Hickey
,
    [1999] 2 S.C.R. 518.  Absent an error in principle, a significant
    misapprehension of the evidence or unless the award is clearly wrong, an
    appellate court must not interfere.  The appellant has not established any such
    error.

[4]

The appeal is dismissed.  Costs are fixed at $1,500 inclusive of
    disbursements and all applicable taxes, payable to the respondent at the rate
    of $100 per month.

Alexandra Hoy
    A.C.J.O.

Janet Simmons
    J.A.

M. Tulloch
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Goreway Total Health Inc. v. Goldbrite Trading Co.
    Ltd., 2014 ONCA 873

DATE: 20141204

DOCKET: C58742

Blair, Pepall and Lauwers JJ.A.

BETWEEN

Goreway Total Health Inc.

Applicant (Respondent)

and

Goldbrite Trading Co. Ltd.

Respondent (Appellant)

Roger A. Gosbee, for the appellant

Robert A. Watson, for the respondent

Heard and released orally: November 27, 2014

On appeal from the judgment of Justice Jamie K. Trimble of
    the Superior Court of Justice dated April 4, 2014.

ENDORSEMENT

[1]

The application judge determined that the requirement to maintain eight
    doctors as tenants and the corresponding abatement provision in the 1990 lease
    were not eliminated by the renewal agreement.  He observed that these
    provisions were fundamental and central to the bargain and contract between the
    landlord and the tenant pharmacy.  They did not constitute an inducement within
    the meaning of the renewal agreement.

[2]

We see no error in this determination.  The application judge applied
    the correct principles and considered the commercial context and the language
    of both the lease and the renewal agreement.

[3]

We also agree with the result.  Furthermore, applying
Sattva Capital
    Corp. v. Creston Moly Corp.
,

2014 SCC 53, 373 D.L.R. (4th) 393, at
    paras. 50-55
, deference is owed to the application judges
    interpretation.

[4]

The appeal is dismissed.  Costs of the appeal are awarded to the
    respondent fixed in the amount of $7,500 inclusive of disbursements and
    applicable taxes.

R.A. Blair J.A.

S.E. Pepall J.A.

P. Lauwers J.A.