COURT OF APPEAL FOR ONTARIO

CITATION: Health Genetic Center Corp. v. New Scientist
    Magazine, 2019 ONCA 968

DATE: 20191206

DOCKET: M50748 (C66385)

van Rensburg, Paciocco and Thorburn JJ.A.

BETWEEN

Health Genetic Center Corp. o/a Health Genetic
    Center
and Yuri Melekhovets

Plaintiffs
(Appellants/Respondents to the Motion)

and

New Scientist Magazine,
Peter Aldhous, and
    Reed Business
Information Ltd.

Defendants
(Respondents/Moving Parties)

Sandra Barton, for the respondents/moving parties

Karen Zvulony, for the appellants/respondents to the
    motion

Heard: November 20, 2019

On
    motion to set aside or vary the order of the motion judge, dated July 5, 2019,
    with reasons reported at 2019 ONCA 576.

van Rensburg J.A.
:

[1]

The moving parties, respondents to a pending
    appeal, moved under s. 7(5) of the
Courts of Justice Act
, R.S.O. 1990,
    c. C.43, to set aside or vary the order of Brown J.A. dismissing their motion,
    under r. 61.06 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
    for security for costs. At the conclusion of oral argument, we dismissed the
    motion, with reasons to follow. These are the courts reasons.

[2]

In sum, there is no error in the decision of the
    motion judge. Whether to grant or refuse security for costs is a discretionary
    decision entitled to deference absent an error of law or principle:
Yaiguaje v. Chevron Corporation
, 2017
    ONCA 827, 138 O.R. (3d) 1, at para. 20.

[3]

In denying the moving parties request for
    $85,000 as security for costs of the appeal and $1,178,766.64 as security for
    the costs awarded at trial (the full amount of the costs that were awarded less
    the security ordered in the action), the motion judge made no error of law or
    principle.

[4]

The moving parties contend that the motion judge
    erred in not ordering security for costs under the combination of rr.
    61.06(1)(b) and 56.01(1)(d). Their principal concern is with the motion judges
    approach to and assessment of the sufficiency of the appellants assets. On
    behalf of the moving parties, counsel argued forcefully that the motion judge
    erred because he limited his consideration to whether the appellants would have
    sufficient assets to pay the costs of the appeal, rather than the costs of the
    appeal
and the action
. She also argued that the motion judge made a
    number of other errors in assessing the sufficiency of the appellants assets.

[5]

The moving parties also contend that the motion
    judge erred in not awarding security for costs under the combination of rr.
    61.06(1)(b), 56.01(1)(f) and s. 12 of the
Libel and
    Slander Act
, R.S.O. 1990, c. L.12, and in refusing
    security for costs under r. 61.06(1)(c) on the basis that there was no other
    good reason to award security.

[6]

After briefly summarizing the motion judges
    reasons for dismissing the motion, I will consider each of the moving parties arguments
    in turn.

A.

THE MOTION JUDGES REASONS

[7]

The motion judge acknowledged that the moving
    parties were seeking security for costs of both the appeal and the action: at
    para. 3. He considered the motion under the three subrules referred to by the
    moving parties: r. 61.06(1)(a), (b) and (c), as well as s. 12 of the
Libel
    and Slander Act
. He noted that the principal arguments were that there is
    good reason to believe the appeal is frivolous and vexatious and that the
    appellants have insufficient assets to pay the costs of the appeal and the
    trial: at para. 5.

[8]

The motion judge concluded that the appeal is
    neither frivolous nor vexatious under r. 61.06(1)(a) of the
Rules
(a
    finding that was not challenged in this panel review). While this would be
    determinative of the motion under r. 61.06(1)(a), because the requirements
    are conjunctive, the motion judge went on to consider the second requirement of
    the subrule, whether there was good reason to believe that the appellants had
    insufficient assets to pay the costs of the appeal. The determination of
    whether there was good reason to believe that the corporate appellant had
    insufficient assets was in any event relevant to r. 61.06(1)(b), in
    conjunction with r. 56.01(1).

[9]

In considering whether there was good reason to
    believe that the appellants had insufficient assets, the motion judge first
    determined that a reasonable estimate of the partial indemnity costs of the
    appeal would be $30,000. He then considered the evidence consisting of an
    affidavit of Mr. Melekhovets, who is the individual appellant and a principal
    of the corporate appellant, detailing his personal income, assets and
    liabilities, and those of the corporate appellant. The affidavit attached
    copies of various documents, including mortgage statements, notices of
    assessment, bank records, and unaudited financial statements.

[10]

The motion judge accepted that Mr. Melekhovets
    has net equity in real property and assets in Ontario of slightly more than
    $500,000. For the corporate appellant, the motion judge considered unaudited
    financial statements covering the financial years 2015 through 2018, and he noted
    the increase in the companys annual revenue from $670,000 to just over $1
    million and in its retained earnings from $18,274 to $136,386. He also noted
    that the net earnings during that period were modest but rising, except for the
    year ended January 31, 2018 when the company experienced a small net loss. The
    motion judge concluded that there was good reason to believe that the
    appellants had sufficient assets in Ontario to pay the estimated costs of
    appeal of $30,000: at para. 29.

[11]

The motion judge then relied on his conclusions (that
    there was no good reason to believe the appeal was frivolous and vexatious nor
    that the appellants would have insufficient assets to pay costs of the appeal)
    to dismiss the motion for security for costs under rr. 61.06(1)(b) and (c).

[12]

Finally, the motion judge considered the moving
    parties alternative request to lift the stay of execution on their costs award
    pursuant to r. 63.01(5). He observed that the moving parties had not
    established that they would suffer financial hardship if the stay were not lifted,
    which is a necessary precondition to lifting the stay. The motion judge also concluded
    that, while security for costs of the proceeding can be ordered under r. 61.06,
    the moving party must first have met the conditions set out in r. 61.06 and
    demonstrated that the justice of the case supported ordering security for
    costs. In this case, since the test was not met, to lift the stay would permit
    the moving parties to do indirectly what they could not do directly: at para.
    42.

B.

determining the sufficiency of assets

[13]

On this review motion, the moving parties assert
    that the motion judge erred by not considering whether the appellants would
    have sufficient assets to pay trial costs as well as appeal costs, if
    unsuccessful in the appeal. They point to the wording of r. 61.06(1), which
    permits the court to award security for costs of the appeal and of the
    proceedings, as well as the decision in
Aegis Biomedical Technologies Ltd.
    v. Jackowski
(1996), 28 O.R. (3d) 558 (C.A.), in which this court awarded
    security for costs that included the costs awarded in the court below.

[14]

The moving parties also point to r. 61.06(1)(b),
    which provides for the appeal court to order security for costs where it
    appears that an order for security for costs could be made against the appellant
    under r. 56.01. Rule 56.01 lists six circumstances in which an order for
    security for costs may be made in an action or application, including that (d)
    the plaintiff or applicant is a corporation and there is good reason to
    believe that the plaintiff or applicant has insufficient assets in Ontario to
    pay the costs of the defendant or respondent. The moving parties observe that this
    provision requires the court, in considering a motion for security for costs of
    an appeal under r. 61.06(1)(b), to consider whether the corporate appellant has
    insufficient assets in Ontario to pay the costs of the defendant. The moving
    parties say that the costs of the defendant can only be a reference to the
    costs they were awarded at trial, and that therefore the court in determining
    security for costs of an appeal
must
consider the corporate appellants
    ability to pay the costs ordered in the court below.

[15]

I disagree. While the reference in r.
    61.06(1)(b) to r. 56.01 authorizes the appeal court to consider the same
    factors that would be considered to warrant security for costs of an action or
    application, in doing so, the factors set out in r. 56.01 must be read and
    applied in the context of the pending appeal. To give effect to r. 56.01 in the
    context of an appeal, the reference to the plaintiff or applicant can only
    mean the appellant. So, for example, under r. 56.01(1)(a), the question is
    whether at the time of the appeal, the
appellant
is ordinarily resident
    outside Ontario. Similarly, the reference in r. 56.01(1)(d) to the costs of
    the defendant or respondent must be read as the costs of the respondent in
    the appeal. What this means is that, in the case of a corporate appellant that
    was a plaintiff or applicant at first instance, a judge of this court may
    consider ordering security for costs where there is good reason to believe that
    the corporate appellant has insufficient assets in Ontario to pay the costs of
    the appeal, even where the appeal is not frivolous and vexatious.

[16]

I say this despite the fact that the court,
    under r. 61.06(1), is entitled to award security for costs of an appeal
and
    of the proceeding below
. Indeed, under r. 61.06(1)(a), the test in
    respect of sufficiency of assets is tied only to the appellants ability to pay
    costs of the appeal. The decision in
Aegis Biomedical
did not

involve
    an assessment of the sufficiency of the corporate appellants ability to pay
    costs in the court below. Indeed, in that case the sole appellant was a
    corporation that admitted it had no assets, and had been incorporated for the
    purpose of pursuing the litigation: at p. 560.

[17]

This interpretation of the relationship between rr.
    61.06(1)(b) and 56.01(1)(d) mirrors the logic of r. 61.06(1)(a), where a motion
    judge only considers the appellants ability to pay costs of the appeal, and
    yet may order the costs of both the appeal and the proceeding below.

[18]

Even if the moving parties interpretation of r. 61.06(1)(b)
    and r. 56.01(1)(d) were accepted, or if there were some other reason to consider
    the sufficiency of the corporate appellants assets to satisfy the costs order
    in the court below, the overriding consideration is whether an order for
    security for costs would be just, a question that needs to be considered
    holistically, taking into consideration the circumstances of the particular
    case:
Yaiguaje
, at para. 25. See also
Foodinvest Inc. v. Royal
    Bank of Canada
, 2019 ONCA 728, at para. 8.

[19]

In this regard, the appeal is not frivolous and
    vexatious. The appellants appeal the judgment in the court below, and seek
    leave to appeal the costs order. As the motion judge observed in refusing
    security for costs under r. 61.06(1)(c), the corporate appellant is a going
    concern in Ontario, and has been for many years. The individual appellant has
    disclosed the location and value of his residential realty in Ontario, and he
    has provided copies of notices of assessment for his personal tax returns. The appellants
    have paid all costs in the proceedings, save for the costs order in relation to
    the judgment under appeal. They have already posted $300,000 security for costs
    in the court below. An order for security for costs based on the insufficiency
    of the corporate appellants assets in relation to the costs already ordered,
    and that would include security for costs of the appeal and such costs, runs
    the risk of undermining the appellants right to appeal. In my view, in all of
    these circumstances, the order would not be just.

[20]

Next, the moving parties assert that the motion
    judge
shifted the burden of proof
by rejecting their submissions about
    the obvious and glaring deficiencies in the evidence respecting the sufficiency
    and quality of the appellants assets because they failed to cross-examine on
    that evidence. They say that the motion judge, at para. 26, refused to consider
    the deficiencies in the appellants evidence about their assets, which were
    already apparent on the face of the evidence, simply because the respondents
    did not cross-examine. I do not read the motion judges reasons that way.

[21]

The motion judge considered the record and
    concluded that the information that was provided demonstrated that the
    appellants had sufficient assets in Ontario to pay the costs of the appeal. He
    did not accept the moving parties submissions that the appellants obviously
    had insufficient assets or that their evidence was deficient. Many of the same
    arguments were made to this panel. The motion judge conducted his own
    assessment of the evidence, which is entitled to deference. He was entitled, as
    he did, to consider the failure to cross-examine in rejecting the moving
    parties assertion that the absence of certain additional information made the
    financial information that was provided incomplete or unreliable. Moreover, the
    financial information provided in this case was detailed, and contrary to the
    moving parties submissions, did not reveal obvious and glaring deficiencies.
    The motion judge reasonably concluded that the moving parties had not met their
    burden of showing that the appellants had insufficient assets in the
    jurisdiction to pay the appeal costs.

[22]

Third, in my view there was no error in the motion
    judges characterization of an order for security for costs as not routine:
    para. 8. While the court characterized orders for security for costs under r.
    61.06(1)(a) as not routine in
Schmidt v. Toronto Dominion Bank
(1995), 24 O.R. (3d) 1 (C.A.) at p. 5, I do not agree with the moving parties
    that an order for security for costs of an appeal would be routine under the
    other parts of r. 61.06(1). There is no entitlement as of right to an order for
    security for costs, and even where the requirements of the rule have been met,
    security may be refused in the motion judges discretion:
Yaiguaje
, at
    paras. 18 and 23.

[23]

Finally, on the question of sufficiency of
    assets, I do not accept that the motion judge relied on irrelevant facts or
    ignored relevant facts. The moving parties say that the motion judge accepted
    dated financial information (unaudited financial statements for the years 2015
    to 2018), rather than considering whether, at the time of the motion, the
    appellants had sufficient assets to pay costs. The moving parties assert that
    there was no evidence that the appellants financial circumstances remained the
    same. This argument simply invites this court to conduct a
de novo
assessment of the evidence, and to arrive at a different conclusion. The motion
    judge noted that the financial statements that were provided were all of the
    available financial statements (as the appellants explained, financial
    statements for the period ending January 30, 2019 had not yet been prepared).
    Again, in the absence of cross-examination, the motion judge was entitled to
    accept the reasonable inference that these documents provided a fair
    representation of the corporate appellants financial circumstances at the time
    of the motion.

C.

Section
12 of the
Libel and Slander
    Act

[24]

The moving parties assert that the motion
    judge, under r. 61.06(1)(b), with reference to r. 56.01(1)(f), ought to have
    awarded security for costs under s. 12 of the
Libel
    and Slander Act.
Rule
    56.01(1)(f) provides that the court may make such order for security for costs
    as is just where it appears that a statute entitles the defendant or respondent
    to security for costs. Section 12(1) of the
Libel
    and Slander Act
provides
    for security for costs in an action for a libel in a newspaper or in a
    broadcast where certain criteria are met.

[25]

Without determining whether security for costs
    of an appeal (and not just an action) can be awarded under this provision, I
    agree with the motion judge that the factors to be considered for security for
    costs in this court would nonetheless be applicable. Section 12 does not
    provide an automatic right to obtain in this court security for costs of a
    trial which has already taken place, where such security would not otherwise be
    awarded.

D.

Other Good Reason

[26]

Finally, I agree with the motion judge that
    there was no other good reason to order security for costs of the appeal in
    this case. His reasons for refusing security under r. 61.06(1)(c) are
    summarized above at para. 19. While the list of reasons justifying security
    under r. 61.06(1)(c) is open-ended, the other good reason must be related to
    the purpose for ordering security: that the respondent is entitled to a measure
    of protection for costs. The other good reason should be fairly compelling,
    as resort is to this provision when the respondent has been unable to obtain
    security under the other two categories, and security for costs under r.
    61.06(1)(c) should not be made routinely:
Combined Air Mechanical Services
    Inc. v. Flesch
, 2010 ONCA 633 (In chambers), 268 O.A.C. 172, at para. 8.
    Examples include a finding of fraud, and steps taken by an appellant to put
    their assets out of reach of creditors:
York University v. Markicevic
,
    2017 ONCA 651, at para. 58.

E.

Disposition

[27]

Accordingly, the motion was dismissed, and costs
    were awarded to the appellants in the agreed and inclusive amount of $7,500.

Released: DMP

DEC 06 2019

K. van Rensburg J.A.

I agree. David M. Paciocco J.A.

I agree. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Health
    Genetic Centre Corp. (Health Genetic Center) v. New Scientist Magazine, 2019
    ONCA 977

DATE: 20191212

DOCKET: C66385

Juriansz, Pepall and Miller JJ.A.

BETWEEN

Health Genetic Center Corp. o/a Health
    Genetic Center and Yuri Melekhovets a.k.a. Iouri Melekhovets

Plaintiffs (Appellants)

and

New Scientist Magazine,
Peter Aldhous, and Reed Business Information Ltd.

Defendants (Respondents)

Gil Zvulony, for the appellants

Sandra Barton and Erin Farrell, for the
    respondents

Heard: December 5, 2019

On appeal from the judgment of Justice Thomas
    R. Lederer of the Superior Court of Justice, dated December 7, 2018, with
    reasons reported at 2018 ONSC 7224.

REASONS FOR DECISION

A.

Introduction

[1]

Dr. Melekhovets began selling a prenatal
    paternity test to the public in 2001. Unlike other paternity tests that obtain the
    DNA of the fetus from the womb, the appellants test was non-invasive in that
    it purported to extract the DNA of the fetus from a sample of the mothers
    blood.

[2]

Dr. Melekhovets claimed that he and his
    corporation were defamed by the publication of an article in New Scientist
    magazine in December 2010. The article was the product of an 18-month
    investigation by the respondents. It criticized Dr. Melekhovets and the test
    for yielding unreliable results.

[3]

At the 14-day trial, the respondents led
    evidence that Dr. Melekhovets lacked the expertise to develop the test. They
    alleged that Dr. Melekhovets did not validate the test before putting it on the
    market, that the test ran on flawed methodology, and that the test reported
    incorrect results to several customers who used it to determine the paternity
    of an unborn child. The trial judge rejected Dr. Melekhovets unsupported
    assertions that the test was scientifically sound and that the respondents were
    motivated by malice. He concluded that the respondents had established the
    defences of justification, fair comment, responsible communication, and
    qualified privilege and dismissed the appellants action.

[4]

Dr. Melekhovets and his corporation appeal the
    trial decision. They also seek leave to appeal the trial judges costs award of
    $1,478,766.64: 2019 ONSC 575, at para. 17.

B.

Appeal Proceedings

[5]

The appellants first filed a notice of appeal on
    January 3, 2019, alleging in excess of 25 legal and factual errors in the trial
    judgment. The notice was filed by Dr. Melekhovets trial counsel.

[6]

The trial judge rendered his costs award on
    January 22, 2019. The appellants filed a supplementary notice of appeal on January
    29, 2019, seeking leave to appeal the costs award and alleging errors in that
    award. This supplementary notice of appeal was also filed by trial counsel.

[7]

The appellants retained new counsel and filed another
    supplementary notice of appeal on May 27, 2019. This third notice of appeal
    withdrew all the substantive grounds of appeal in the initial notice and set
    out a single ground of appeal, namely that the appellants did not receive a
    fair trial because the trial judges conduct of the trial and his reasons for
    decision gave rise to a reasonable apprehension of bias.

[8]

On appeal, the respondents sought to introduce
    fresh evidence in the form of an affidavit by a lawyer who attended most of the
    trial hearings when she was an articling student. We ruled that a significant
    part of the tendered fresh evidence was inadmissible because it related to the
    appellants conduct after the trial. We regarded other parts of the tendered
    fresh evidence to be unnecessary as they related to matters evident from the trial
    transcripts and the correspondence already within the appeal materials.

C.

Analysis

[9]

The appellants recognize that they bear the onus
    of establishing that an informed person viewing the matter realistically and
    practically  and having thought the matter through  would conclude that it
    was more likely than not that the trial judge, whether consciously or
    unconsciously, would not decide fairly:
Stuart Budd & Sons Limited v.
    IFS Vehicle Distributors ULC
, 2016 ONCA 60, 129 O.R. (3d) 37, at para. 47.

[10]

The appellants also recognize that their burden is
    a heavy one, as the strong presumption of judicial impartiality is not easily
    displaced:
Stuart Budd
, at para. 48.

[11]

We raise one additional principle. An apprehension
    of bias should be raised as soon as it is reasonably possible to do so:
R.
    v. Curragh Inc
., [1997] 1 S.C.R. 537, at para. 11. This principle protects
    the integrity of the courts authority:
Curragh Inc.
, at para. 11. It
    also ensures a full record, and prevents counsel from keeping allegations of
    bias in reserve and deploying them tactically upon receipt of an unfavourable
    decision. Furthermore, as Donald J.A. of the Court of Appeal for British Columbia
    has observed, the genuineness of the apprehension becomes suspect when it is
    not acted on right away:
Eckervogt v. British Columbia
, 2004 BCCA 398, 30
    B.C.L.R. (4th) 291, at para. 48.

[12]

In their written materials, the appellants rely
    on numerous instances of alleged bias in the trial judges conduct of the
    hearing and his interaction with counsel. Each of these instances, considered
    on its own, seems petty in an appeal alleging bias. However, the appellants assert
    that the cumulative effect of each instance must be considered in light of the
    trial judges decision and reasons. In oral argument, the appellants counsel
    expressly conceded that the cumulative effect of the trial judges conduct
    during the trial itself would be insufficient to establish a reasonable
    apprehension of bias.

[13]

The appellants likened their position to that of
    the appellants in
Stuart Budd
, the main authority on which they relied. In
    that case, the appellants raised the reasonable apprehension of bias argument for
    the first time on appeal, and this court concluded that the motion judges comments
    and conduct during the hearing, considered together with his reasons for
    decision, gave rise to a reasonable apprehension of bias. We accept that where
    a judges decision and reasons are necessary to support an apprehension of bias,
    the appeal may be the earliest occasion on which the ground could reasonably be
    asserted.

[14]

In this case, the appellants did not raise the bias
    allegation immediately upon appealing, but only in their third notice of appeal.
    We observe that the first two notices of appeal, which were filed by trial
    counsel, raised no issue of bias. While the test is an objective one, the
    appellants have filed no evidence that either they or their counsel, who were
    present at trial and observed the trial judges conduct in person, held a
    subjective apprehension of bias.

[15]

It is also telling that the appellants withdrew
    all the substantive grounds of appeal they first put forward. Thus, they seek
    to assert their position on appeal that the trial judges findings are tainted
    by bias while avoiding a review of the evidence on which those findings are
    based. It seems to us there is good reason to regard the ground of reasonable
    apprehension of bias advanced by the appellants as tactical in nature.

[16]

Given the appellants concession that the trial
    judges decision and reasons are necessary to ground the reasonable apprehension
    of bias argument, we find it unnecessary to discuss each of the alleged
    instances of bias at the trial, which the appellants itemized meticulously in
    their pleadings. We focus on the instances that the appellants addressed in
    oral argument.

[17]

One instance involved the trial judges acceptance
    of cough drops from the respondents counsel, which the appellants allege prompted
    him to show her extra courtesy the next day of trial. The appellants counsel placed
    great emphasis on the cough drops. In fact, he advanced the alternative
    argument that the trial judges acceptance of the cough drops, which he
    described as a gratuity, was on its own sufficient to establish a reasonable
    apprehension of bias.

[18]

We first dispose of the alternative argument. It
    is clear from the transcript that the trial judge was not well on the day respondents
    counsel gave him cough drops. The trial judge was too sick to attend the hearing
    the next day. When he returned the following day, he apologized for having
    cancelled court on little notice to the parties. The appellants counsel would
    not agree that the trial judges acceptance of cough drops from counsel was
    inconsequential. However, he did accept that it would be inconsequential for a
    trial judge to accept a tissue from counsel. We fail to see any meaningful
    distinction between cough drops and a tissue. We have no hesitation in
    concluding that any apprehension of bias flowing from the acceptance of the
    cough drops is unreasonable.

[19]

The only other instance addressed in oral
    argument was the trial judges comment that the appellants trial counsel was
    too young to know the usual practice with respect to sealing orders. The
    transcript makes clear that the trial judge was considering the breadth of the proposed
    sealing order and wished to see case law. The appellants trial counsel
    proceeded to address the usual practice, to which the trial judge responded
    that counsel was too young to know the usual practice, adding that he made the
    comment to lighten the load. The trial judge then commented positively on
    counsels description of the practice. While it would have been preferable for the
    trial judge to have avoided any reference to counsels age, this exchange does
    not contribute to the allegation of reasonable apprehension of bias.

[20]

All the instances on which the appellants rely must
    be considered in the context of the trial judges manner of dealing with all
    counsel throughout the trial:
Stuart Budd
, at para. 49. In a trial of
    any length, it is all too easy to cherry-pick individual off-hand remarks by the
    trial judge. For example, the appellants took us to pp. 3175-76 of the
    transcripts, which cover a brief exchange occurring at the start of the 14
th
day of the hearing, to support his argument that the trial judge displayed
    extra courtesy to the respondents counsel at the next hearing day after he
    accepted her cough drops. We observe that immediately following the passage on
    which that argument rests, the trial judge showed a special courtesy to
    appellants counsel, Mr. Donald, by conveying to him a personal salutation from
    a justice of the Federal Court of Appeal.

[21]

This was a trial in which the issues were
    exceedingly technical and hotly contested. The trial judge and the parties were
    under strain to complete the evidence, which included testimony from several expert
    witnesses, in the allotted time. The court sat during extended hours on several
    occasions. The trial judges comments to counsel during the trial may have been
    informal, sometimes unnecessary, and occasionally inadvisable (such as his
    comment on counsels youth). However, considered cumulatively and in full
    context, we are not persuaded that his comments are evidence of partiality or differential
    treatment toward the respondents counsel.

[22]

It remains to consider whether the trial judges
    reasons cast a different light on his conduct of the trial. The appellants
    counsel complains that the trial judge, in his reasons, was far more critical of
    Dr. Melekhovets than was the original magazine article. He offers no authority for
    the proposition that the trial judge fell into legal error by drawing harsh
    conclusions from the voluminous record before him.

[23]

The appellants do not attack the trial judges findings
    that the defences of fair comment, responsible communication, and qualified
    privilege were established. Nor do the appellants mount a direct attack on his
    finding of the defence of justification. They merely argue the trial judge
    failed to recognize Dr. Melekhovets right to commercialize his work. As we
    read his reasons, the trial judge observed that Dr. Melekhovets relied on his
    right to commercialize his work to excuse his failure to meet the shifting evidentiary
    burden to counter the respondents evidence that the paternity test was unreliable.

[24]

In his decision spanning 179 paragraphs, the
    trial judge carefully sets out his findings and the evidence that supports
    them. His reasons for decision provide no basis to regard his conduct of the
    trial in a different light. Considered together, his conduct and his reasons do
    not support a reasonable apprehension of bias against the appellants.

D.

Disposition

[25]

The appeal is dismissed. Leave to appeal costs
    is denied.

[26]

The respondents are entitled to a net costs
    order in the amount of $45,000, inclusive of disbursements and applicable tax,
    on account of the appeal. This amount reflects a reduction for their failed
    motion for leave to admit fresh evidence.

R.G. Juriansz J.A.

S.E. Pepall J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hilson v. 1336365 Alberta Ltd., 2019 ONCA 1000

DATE: 20191218

DOCKET: C65298

Doherty, Sharpe and Roberts JJ.A.

BETWEEN

Janet Louise Hilson

Respondent
(Plaintiff)

and

1336365 Alberta Ltd., 1336367 Alberta Ltd.,
1336364 Alberta Ltd., 1320950 Alberta Ltd.,
1336366 Alberta Ltd.,
Ross Charles Lightle

and Barbara Lightle

Appellants
(Defendants)

Jonathan L. Rosenstein, for the appellants

Howard W. Reininger, for the respondent

Heard: October 30, 2019

On appeal from the judgment of Justice Richard A. Lococo
    of the Superior Court of Justice, dated March 26, 2018, with reasons reported
    at 2018 ONSC 1836, 95 R.P.R. (5th) 279.

By the Court:

A.

INTRODUCTION

[1]

The panel that originally
    heard this appeal ordered that the appeal be re-heard by a differently
    constituted panel:
2019 ONCA 653.
That panel withdrew the reasons it had
    released in error after the original hearing. No submissions were made to us
    with respect to those reasons and this panel has not read or considered those
    reasons in coming to the following conclusions.

B.

background

[2]

The respondents claim against the appellants,
    Ross and Barbara Lightle, is based upon certain guarantees. The guarantees
    relate to 25 mortgage loans given by the respondent to the named corporate
    entities formed by the appellants to invest in 25 separate interests in a
    residential real estate development known as Godstone. The mortgages went
    into default and the respondent sued the appellants on their guarantees.

[3]

There were two types of guarantee. The mortgages
    themselves contained guarantees (the covenant guarantees) and the appellants
    executed five separate instruments by which they personally guaranteed the
    amounts owing on the 25 mortgages (the stand-alone guarantees).

[4]

The trial judge found the appellants liable on
    the five stand-alone guarantees, rejecting their argument that the claim was
    barred by the
Limitations Act
,
2002, S.O. 2002, c. 24. He found that as the evidence only proved
    that they had authorized the registration of the 1336367 Alberta Ltd. mortgages,
    they were only liable on the covenant guarantees for those mortgages.

[5]

The respondent had sued the lawyer who had acted
    for her on these and other transactions for negligence. The allegations of
    negligence included but were not limited to failure to obtain proper security
    for her mortgage investments. That action was settled for a global sum. The
    trial judge reduced the amount owing on the guarantees by 50% to account for
    the proceeds of the settlement and to avoid double recovery.

C.

iSSUES

[6]

The following issues arise on this appeal.

[7]

First, the appellants submit that the trial
    judge erred in finding that the applicable statutory limitation period for the
    claim on the stand-alone guarantees was ten years pursuant to the
Real
    Property Limitations Act
, R.S.O. 1990, c. L.15, and not
    the two-year period in the
Limitations

Act
.

[8]

Second, the appellants submit that the trial
    judge erred by reducing the amount owing by only 50% to account for the
    proceeds of the settlement and argue that the proper reduction is 100%.

[9]

Third, by cross-appeal, the respondent submits
    that the trial judge erred by reducing on account of the settlement the amount
    owing by as much as 50%. The respondent argues that there should no reduction
    on account of the settlement, or if there is a reduction, it should only be 28.8%.

[10]

Fourth, by cross-appeal, the
    respondent argues that the trial judge erred in dismissing the claims based
    upon four of the five covenant guarantees.

D.

ANALYSIS

(1)

Limitation Period

[11]

The appellants submit that the respondents
    claim is governed by the
Limitations Act

and, as the respondents claim was brought more than two years after
    the claims on the guarantees arose, her claim is statute barred.

[12]

The trial judge rejected that submission and
    found that the respondent had brought her claim within the applicable
    limitation period, namely ten years, as her claim was governed by the

Real
    Property Limitations Act
,
s. 43(1):

No action upon a covenant contained in an
    indenture of mortgage
or
any
    other instrument
made

on or after July 1, 1894
to repay the whole or part of any money secured by a mortgage
shall

be commenced
    after the later of,

(a) the expiry of 10 years after the day on which
    the cause of action arose; and

(b) the expiry of 10 years after the day on which
    the interest of the person liable on the covenant in the mortgaged lands was
    conveyed or transferred. [Emphasis added]

[13]

The crucial question is whether the stand-alone
    guarantees fall within the emphasized words: any other instrument  to repay
    the whole or part of any money secured by a mortgage.

[14]

Instrument is
    routinely used to describe a formal legal document in writing: P.G. Osborn,
A
    Concise Law Dictionary
, 5th ed. (London:
    Sweet and Maxwell, 1964), at p. 171; David M. Walker,
The Oxford
    Companion to Law
(Oxford: Clarendon
    Press, 1980), at pp. 626-27; Daphne A. Dukelow and Betsy Nuse,
The
    Dictionary of Canadian Law
(Toronto: Carswell, 1991), at p. 523. The word instrument is not defined in
    the
Real Property Limitations Act.

[15]

In support of their argument that instrument should
    be given a narrower meaning that does not embrace the stand-alone mortgage
    guarantees, the appellants make two submissions.

[16]

First, they submit that the language of s. 43(1)
    must be read in the light of the circumstances that existed at the time of its
    predecessors enactment in 1939 and that instrument should be narrowly
    interpreted to deal only with those specific circumstances.

[17]

Second, they argue that the interpretation of
    the word instrument in the
Real Property Limitations Act

should be governed by the definition of that same word in the
Registry

Act
, R.S.O. 1990, c. R.20, s. 1, limiting the
    meaning to instruments affecting title to land and executed with the requisite
    formalities to allow for registration.

[18]

In our view, the trial judge properly rejected
    both submissions.

[19]

We deal first with the historical argument.

[20]

Prior to 1893, the limitation period to enforce
    a mortgage was ten years. However, the limitation period to enforce the
    covenant to pay the mortgage was the 20-year period that applied to
    specialties. That was because the covenant was contained within a sealed
    document and a sealed document was a specialty.

[21]

The legislature removed that anomaly by amending
    the
Limitations Act
in 1893 to exclude
    covenants contained in a mortgage from the definition of specialty, with the
    result that both claims to enforce the mortgage and claims on the covenant were
    from that point governed by the same limitation period.

[22]

In 1939, the legislature amended the
Mortgages

Act
to make a new owner who purchased from the
    original mortgagor and was liable to indemnify the mortgagor for the mortgage
    debt directly liable to the mortgagee for the debt secured by mortgage.

[23]

A corresponding amendment in 1939 to what would
    become the
Real Property Limitations Act
, s.
    43(1) introduced the words or any other instrument that are at issue on this
    appeal. The appellants argue that as this language was used to accommodate the
    new provision in the
Mortgages

Act
making the new owner liable to the mortgagee, it can have no wider meaning
    today and therefore must be restricted to covenants contained within mortgages.

[24]

We are unable to accept that submission.

[25]

First, there is no legislative history to
    support the narrow meaning. At the time, there was no Hansard of the legislative
    debates. The appellants can point to no record of committee reports or
    background studies to explain the evolution or purpose of the amendment.

[26]

Second, even assuming that the appellants
    contention regarding the immediate purpose of adding the words any other
    instrument is plausible, the plain meaning of those words does not require or
    support such a narrow interpretation. If the legislature had truly intended to
    limit the meaning to covenants by subsequent purchasers, it could easily have
    said so. Instead the legislature used general language that can readily be
    interpreted to embrace stand-alone guarantees.

[27]

Third, we agree with the trial judge, at para.
    51, that there is no justification for having different limitation periods
    depending on whether the guarantee covenant is in the mortgage or in a separate
    document. Giving any other instrument the narrow reading sought by the
    appellants would introduce an anomalous distinction between identical
    guarantees. It would also create an awkward distinction between the limitation period
    to enforce a mortgage and the limitation period to enforce a closely related
    promise to pay the debt secured by the mortgage. The legislature removed a
    similar distinction that existed before 1893 and it is difficult to see why the
    legislature would want to create a similar distinction in 1939.

[28]

Fourth, we do not accept the submission that the
    appellants contention is supported by the principles of statutory
    interpretation. The argument that when interpreting the word instrument we
    should rigidly adhere to the specific problem that motivated its enactment
    would be contrary to the
Interpretation

Act
,
R.S.O. 1990,
c.
    I.11,
s. 4:
The
    law shall be considered as always speaking and, where a matter or thing is
    expressed in the present tense, it is to be applied to the circumstances as
    they arise, so that effect may be given to each Act and every part of it
    according to its true intent and meaning.
This
    direction should be read together with s. 10 that all statutes
shall be deemed to be remedial ... and shall accordingly
    receive such fair, large and liberal construction and interpretation as will
    best ensure the attainment of the object of the Act according to its true
    intent, meaning and spirit. See also Ruth Sullivan,
Statutory
    Interpretation
,
3rd ed. (Toronto: Irwin Law, 2016), at pp.
    120-1.
Unless the language of an enactment compels us
    to do so, we should avoid interpreting legislation in a way that produces
    impractical and unjust results.

[29]

We turn to the appellants submission that the
    meaning of instrument in the
Real Property Limitations Act
should be governed by the definition of instrument in the
Registry

Act
.

[30]

It is hardly surprising that the
Registry

Act
defines instrument as meaning instruments
    affecting title to land and executed with the requisite formalities to allow
    for registration. That is what the
Registry

Act
is all about  creating a public record of formal documents that
    affect interests in land to ensure the integrity of title to land and to allow
    third parties to investigate title. If an instrument does not affect title to
    land, there is no reason to clutter the public record by registering it. Section
    43(1) of the
Real Property Limitations Act
has
    a very different purpose, namely, to establish an appropriate limitation period
    for claims arising under and in relation to mortgages. That purpose does not
    engage the same concerns as those arising under the
Registry

Act
and it has no relationship to registrability
    of documents. The legislature did not incorporate the
Registry

Act
definition in relation to s. 43(1) as it did
    in another situation where incorporation made sense to do so: see the
Land
    Registration Reform Act
,
R.S.O. 1990, c. L.4, s. 1.

[31]

For these reasons, we reject the submission that
    the trial judge erred in concluding that the applicable limitation period for
    the claims on the stand-alone guarantees was ten and not two years.

[32]

This makes it
    unnecessary for us to deal with the respondents argument that the stand-alone
    guarantees did affect title because a guarantor who makes a payment to
    discharge to mortgage debt acquires an equitable right to redeem the mortgage.

(2)

Covenant Guarantees

[33]

As we have dismissed the appeal with respect to
    the stand-alone guarantees, it is unnecessary for us to consider the respondents
    cross-appeal, arguing that the trial judge erred in dismissing the claims based
    upon four of the five covenant guarantees.

(3)

Credit for the settlement proceeds

[34]

The respondent sued her solicitor and her
    investment advisor, claiming that as a result of their negligence, she suffered
    losses on the Godstone mortgages and other similar real estate investments. The
    total amount of the claims against the solicitor for the several investments on
    which the solicitor acted for the respondent was $4,156,799. The respondent claimed
    approximately $6 million against the investment advisor who had been involved
    in more investments than the solicitor. The respondents total claim against
    the solicitor was settled for $1.2 million net of legal fees. The settlement
    funds were not attributed to any particular transaction or acts of negligence. The
    claim against the investment advisor, who is now bankrupt, remains outstanding.

[35]

It was common ground before the trial judge that
    the respondents claim on the stand-alone guarantees had to be reduced on account
    of the settlement, to avoid double recovery. The appellants took the position
    that as the respondent had led no evidence to establish the validity of the
    claims in relation to the other investments, their claim on the stand-alone guarantees
    should be reduced by 100% of the settlement. The respondent took the position
    that since there was no attribution of the settlement funds to any particular
    transaction or act of negligence, the reduction should only be approximately 16%,
    derived by calculating the ratio between the amount owing on the guarantees and
    the total amount of the claims against both the solicitor and the claim against
    the investment advisor.

[36]

The trial judge rejected both positions and
    determined that 50% of the settlement should be allocated to reduce the amount
    owing on the guarantees.

[37]

On the cross-appeal, the respondent makes two
    arguments.

[38]

First, the respondent submits that there should
    be no reduction in the claim on the guarantees to account for the settlement. The
    trial judge erred in reducing the claim by 50% when there was no evidence or principled
    basis to allow such an allocation. Alternatively, if there is to be a reduction
    on account of the settlement, it should be for 28.8% rather than 50%, based on
    the ratio between the amount owing on the guarantees and the total amount of
    the claims against only the solicitor.

[39]

The respondents arguments essentially rest on
    the fact that the claim against the appellants is a claim under guarantees for
    a debt owing and yet to be collected, while the claim against the solicitor was
    for damages in negligence at large without any allocation to the respondents
    loss arising from unenforceable guarantees. The negligence alleged included the
    failure to ensure properly enforceable guarantees to secure the mortgages and
    the loss claimed included the amount secured by the guarantees. The respondent
    contends that the negligence claim cannot reduce the amount owing on the debt
    and the issue of double recovery only arises in relation to the negligence
    claim when and if the respondent actually recovers what she is owed on the
    guarantees.

[40]

Although the argument that there should be no reduction
    of the guarantee claim because of the settlement was advanced by the respondent
    late in the day, the issue of double recovery is advanced in the respondents
    factum (at paras. 62-74) and in oral argument. The argument that there should be
    no reduction of the judgment based on the settlement is open to the respondent
    based on the evidentiary record. It is therefore an argument with which we can properly
    deal on appeal.

[41]

In our respectful view, the trial judge was led
    astray by the trial submissions of the parties. The facts of this case do not
    at this point engage the double recovery or double satisfaction principle. The
    trial judges determination that a 50% reduction was appropriate was entirely
    speculative.

[42]

The appellants argument rests on the submission
    that as a matter of law the amount owed under the stand-alone guarantees can be
    reduced by the recovery in the settlement of the negligence claim against the
    respondents solicitor. Assuming, without deciding, that the appellants
    submission is sound in law, we are satisfied that it fails on the evidence in
    this case. It is the appellants burden to demonstrate that their liability under
    the guarantees has been reduced by satisfaction of the guaranteed debt. In our
    view, they have not met their burden in this case.

[43]

The rule against double recovery in negligence is a corollary of
    the fundamental principle of full and fair compensation. As McLachlin J.
    explained in
Cunningham v. Wheeler; Cooper v. Miller; Shanks v. McNee
,
    [1994] 1 S.C.R. 359, at pp. 368-69, [t]
he
    fundamental principle is that the plaintiff is entitled to damages in an amount
    which will return the plaintiff to the position the plaintiff would have been
    in had the accident not occurred, in so far as money is capable of doing this.
    The corollary is that the compensation must be fair to both the plaintiff and
    the defendant. The ideal is to achieve compensation that is full and fair  awarding
    damages for all the plaintiff's actual losses, and no more. The watchword is
    restoration; what is required to restore the plaintiff to his or her
    pre-accident position.
Double
    recovery is not permitted
 (emphasis
    added).

[44]

The rule against double recovery derives from
    both common law and equitable principles. At common law, recovery against one
    wrongdoer barred action against another while equity provided a remedy against
    unjust enrichment. The rule is commonly applied in tort actions where two
    wrongdoers are responsible to compensate the plaintiff for a loss. The plaintiff
    is entitled to pursue claims against both tortfeasors but cannot recover more
    than his or her loss: recovery against one wrongdoer will reduce the amount the
    plaintiff can recover from the other.

As explained in
Treaty Group Inc. v. Drake International
    Inc.
(2005)
,
36 C.C.L.T.
    (3d) 265 (ON SC), at para. 7, citing
Cuttell v. Bentz
(1985), 65 B.C.L.R. 273 (C.A.):
The important point however is that it
    is clear that one cannot recover a loss twice. (at p. 277) This is because, as
    Lambert J.A. explained at p. 283, The rationale of the rule is that the
    claimant should not be permitted to receive in compensation a total amount greater
    than the loss he has suffered.

[45]

We agree with the respondents submission that
    her claim for the guaranteed debt owed to her by the appellants was neither
    barred nor diminished by reason of her claim in negligence against her
    solicitor and that the guaranteed debt should not be reduced on account of the
    settlement of the respondents claim against her solicitor.

[46]

The related point is that the rule is against
    double
recovery
. It does not preclude a
    plaintiff from pursuing different defendants for the same loss and only
    precludes a plaintiff from recovering more than he or she lost. Here, there is
    no basis in the evidence to conclude that the respondent has recovered anything
    on the debt guaranteed by the appellants. Indeed, the trial judges finding that
    the standalone guarantees are valid and enforceable is not consistent with his
    finding that 50% of the settlement should be attributed to the claim on the guarantees.

[47]

There is no dispute that the respondent has
    recovered nothing under the guarantees. Recovery against the appellants will
    depend not only upon the outcome of this appeal but also upon the solvency and
    means of the appellants to pay the debt they owe. Until the respondent actually
    achieves full or substantial satisfaction of the debt she is owed, there can be
    no question of double recovery.

[48]

Accordingly, we allow the cross-appeal on this
    issue and set aside that portion of the trial judges judgment reducing the
    amount owing to the respondent on account of the settlement with the solicitor.

E.

DISPOSITION

[49]

For these reasons, we dismiss the appeal, allow
    the cross-appeal on the double recovery issue and substitute for the judgment
    given below judgment in the respondents favour for the full amount owing under
    the stand-alone guarantees.

[50]

The respondent is entitled
    to her costs of the appeal, fixed at $25,000 inclusive of disbursements and H.S.T.

Released: December 18, 2019 (D.D.)

Doherty J.A.

Robert J. Sharpe
    J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hutton v. The Manufacturers Life Insurance Company
    (Manulife Financial), 2019 ONCA 975

DATE: 20191212

DOCKET: C66558

Strathy C.J.O., Sharpe and Roberts JJ.A.

BETWEEN

Leisa Hutton

Appellant

and

The Manufacturers Life Insurance Company c.o.b.
    as Manulife Financial

Respondent

John Philp and Aron Zaltz, for the appellant

Amir Tamari and Sophia Zaidi, for the respondent

Heard: October 28, 2019

On appeal from the order of Justice Alfred J. OMarra of
    the Superior Court of Justice, dated January 16, 2019, with reasons reported at
    2019 ONSC 279.

Strathy C.J.O.:

[1]

The issue on this appeal is whether the court
    has jurisdiction over the appellants claim against her long-term disability
    (LTD) insurer or whether the claim is subject to grievance and arbitration
    under her unions collective agreement with her employer.

[2]

The motion judge found that the court had no
    jurisdiction and granted the insurers summary judgment motion to dismiss the
    action. For the reasons that follow, I agree, and would dismiss the appeal.

I.

Factual background

[3]

The appellant was employed full-time as a laboratory
    technician at Quinte Healthcare Corporation (QHC). She was a member of the
    Ontario Public Service Employees Union (OPSEU), the exclusive bargaining
    agent on behalf of all employees in her bargaining unit. QHC and OPSEU were
    parties to a collective agreement governing the terms and conditions of
    employment of all unionized employees of QHC.

[4]

QHC contracted with the respondent, The
    Manufacturers Life Insurance Company (Manulife), to provide group benefits,
    including life insurance and LTD benefits, to eligible employees.

A.

The appellants accident and LTD claim

[5]

The appellant was injured in an automobile
    accident in August 2011. She claimed that she was disabled as a result of her
    injuries and sought long-term disability benefits under the terms of the
    collective agreement. As explained in more detail below, she received benefits
    for about 17 months before Manulife determined that she was no longer eligible
    for LTD benefits. After Manulife denied her benefits, she filed a formal grievance
    against her employer. The grievance settled in September 2015. Prior to the
    settlement, however, the appellant commenced this action against Manulife.

[6]

As the collective agreement is central to the
    issue on this appeal, I will set out its key provisions before returning to the
    narrative.

B.

The collective agreement

[7]

The collective agreement between OPSEU and QHC provides
    that an eligible QHC employee is entitled to LTD benefits under the Hospitals
    of Ontario Disability Income Plan (HOODIP) or an equivalent plan (Art. 15.02).
    QHC pays 75% of the premiums and the employee pays the balance. Any disputes are
    to be resolved by grievance and arbitration (Art. 15.04(a)). It also provides
    for resort to the insurance companys appeal process prior to filing a
    grievance (Art. 15.04(b)). The material provisions are:

ARTICLE 15  SICK LEAVE AND LONG-TERM
    DISABILITY

NOTE: Articles 15.01  15.09 apply to full time employees only.

15.01 The Hospital [QHC] shall provide a
    short-term sick leave plan at least equivalent to that described in the 1992
    Hospitals of Ontario Disability Income Plan (HOODIP) brochure.

Copies of the HOODIP brochure will be made
    available to employees upon request.

15.02 The Hospital will pay seventy-five
    percent (75%) of the billed premium towards coverage of eligible employees
    under the long term disability plan (HOODIP or equivalent); employees shall pay
    the balance of the billed premiums through payroll deduction.

15.03 No sick pay benefit is payable under HOODIP
    for the first fifteen (15) hours of absence for the sixth (6
th
) and
    subsequent period(s) of absence in the same fiscal year (April 1
st
through
    March 31
st
).

15.04 (a)
Any dispute which may arise
    concerning an employee's entitlement to short-term or long-term benefits under
    HOODIP may be subject to grievance and arbitration under the provisions of this
    Agreement.

(b)
If a claim for long-term disability is
    denied, the employee must fully comply with the carrier's Medical Appeal
    Process prior to filing a grievance, provided that the Process is completed
    within sixty (60) days of its inception, unless that time is extended by mutual
    agreement of the Hospital and OPSEU.
[Emphasis added].

C.

HOODIP

[8]

A copy of the OPSEU Guide to the Hospitals of
    Ontario Disability Income Plan (HOODIP) (the OPSEU Guide) was produced on
    the motion and was referred to by the motion judge in his reasons. The motion
    judge found that HOODIP, although separate from the collective agreement, had
    been incorporated by reference in it.

[9]

The OPSEU Guide indicates the following:

·

HOODIP
    was created in 1968 to provide uniform disability income protection for all members
    of participating employers;

·

hospitals
    that are members of the Ontario Hospital Association can participate in the
    HOODIP plan;

·

OPSEU
    members are eligible to be plan members of HOODIP if their employer is a member
    of the Ontario Hospital Association and participates in HOODIP;

·

in
    general, an employer will contract with an insurance company or a third party
    administrator to assist in the adjudication of short term and long term HOODIP
    benefits;

·

if
    an employee moves to another hospital that does not participate in the plan,
    his or her coverage will terminate;

·

an
    employer who does not participate in HOODIP is required to guarantee equivalent
    benefits to its members;

·

the
    LTD part of HOODIP is funded by the employer as an insured benefit  the
    insurance company signs a contract with the employer to provide the program at
    a certain cost; and

·

if
    an LTD claim is denied, the employee is required to follow the insurance
    companys internal appeal process, before grieving the dispute.

[10]

The OPSEU Guide also provides:

You have the right to grieve any dispute on
    whether you are entitled to short or long term benefits under the HOODIP plan
    (Article 15 of the Central Collective Agreement).

D.

The appellants LTD claim

[11]

In January 2012, the appellant applied to
    Manulife for LTD benefits. Her claim was initially approved, and she received
    benefits from March 19, 2012 to August 22, 2013. However, after a review of her
    file by Manulife in 2013, she was advised that her condition no longer met the
    definition of total disability under the Manulife policy. The definition
    stipulated that an employee would be entitled to LTD benefits where their
    injury or illness prevented them from performing the essential duties of their
    own occupation during the two years immediately following the date of
    disability, and any occupation they were qualified for or could reasonably
    become qualified for after two years. At the two-year mark, the appellants
    disability was determined not to prevent her from performing the essential
    duties of any occupation. She was therefore no longer eligible to receive LTD
    benefits.

[12]

On December 17, 2013, the appellant filed a
    grievance with QHC, following the grievance procedure set out in the collective
    agreement. Her grievance stated: I grieve that the Employer has violated
    Article 15 of the collective agreement by denying my claim for long term
    disability benefits. Her desired settlement was [f]ull redress, including
    approval for LTD benefits as well as anything else an arbitrator deems
    appropriate.

[13]

On September 2, 2014, OPSEU requested that
    Manulife reconsider its decision to terminate the appellants LTD benefits.
    Manulife agreed, despite the fact that the deadline for appeal had passed. However,
    on November 10, 2014, Manulife advised the appellant that the termination of
    benefits was upheld and that its decision was final.

[14]

Almost a year later, on August 19, 2015, with
    her grievance still outstanding, the appellant commenced this action against
    Manulife. She claimed, among other things, breach of contract, entitlement to LTD
    benefits, and punitive damages of $500,000 for bad faith.

[15]

A few weeks later, on September 1, 2015, the day
    her grievance was scheduled to be heard, the appellant settled her grievance
    with QHC and OPSEU. The settlement provided, among other things, for $30,000
    for general damages and not for loss of income, and $31,800 less statutory
    deductions, allocated over three years. The motion judge found that the $31,800
    was for loss of income. The terms of the settlement did not prevent the
    appellant from pursuing her claim against Manulife. In September 2017, she also
    commenced an action against her union, OPSEU, and the two OPSEU lawyers who
    represented her in the grievance and settlement, claiming damages for
    negligence in the amount of $1,500,000.

[16]

Manulife brought a summary judgment motion to
    dismiss the appellants action on the ground that the court lacked jurisdiction
    over the claim, as it arose out of the collective agreement between QHC and
    OPSEU. The claim was subject to exclusive arbitral jurisdiction under the
    collective agreement.

II.

The motion judges reasons

[17]

On summary judgment, the motion judge agreed
    with Manulife, holding that the appellants entitlement to LTD benefits fell
    within the exclusive grievance and arbitration provisions of the collective
    agreement and was, therefore, subject to arbitral jurisdiction.

[18]

The motion judge undertook an analysis of
    whether or not the appellants dispute about LTD benefits was within the
    exclusive arbitral jurisdiction under the collective agreement, or in the
    circumstances of this case, the inherent jurisdiction of the court. The test,
    set out in
Weber v. Ontario Hydro
, [1995] 2 S.C.R. 929, requires the
    court to determine whether the dispute, in its essential character, arises
    from the interpretation, application, administration or violation of the
    collective agreement: at para. 52. If it does, the dispute is solely within
    the jurisdiction of the arbitrator.

[19]

The motion judge concluded that the appellants entitlement
    to LTD benefits, and QHCs obligation to provide them, were rooted in Article
    15 of the collective agreement. The dispute involved the interpretation, application,
    or administration of the collective agreement. The fact that the benefits were
    paid or administered under the Manulife policy did not change that
    determination.

[20]

He found that the collective agreement
    incorporated HOODIP by reference, and expressly provided for the resolution of
    LTD disputes under Article 15. On this point, he stated, at para. 44 of his
    reasons:

HOODIP, separate from the collective agreement, although
    incorporated by reference, sets out the terms required for benefits, such as
    the qualifying criteria of "total disability" for LTD and the amount
    of income receivable depending on length of service of the employee. The
    specific Manulife policy contracted by QHC is not referenced in the collective
    agreement because, as the central collective agreement notes, local employers
    may change the insurance carrier at any time. It is also noted in the OPSEU
    Guide to HOODIP, that the employee has the right to dispute any grievance about
    entitlement to LTD under Article 15.

[21]

In undertaking his analysis, the motion judge
    referred to the categories set out in Donald J.M. Brown and David M. Beatty,
Canadian
    Labour Arbitration
, 3rd ed. (Aurora, Ont: Canada Law Book, 1998) (
Brown
    and Beatty
), which were adopted and applied in the decisions of this court
    in
Barber v. Manufacturers Life Insurance Company (Manulife Financial)
,
    2017 ONCA 164, 136 O.R. (3d) 198, at para. 9, leave to appeal refused, [2017]
    S.C.C.A. No. 150, and
London Life Insurance Co. v. Dubreuil Brothers
    Employees Assn.
(2000), 49 O.R. (3d) 766, at para. 10, leave to appeal
    refused, [2000] S.C.C.A. No. 496.

[22]

The
Brown and Beatty
categories are set
    out below. The motion judge found that the claim fell within
Brown and
    Beatty
category 2, where the collective agreement stipulates that the
    employer is obliged to provide certain medical or sick-pay benefits, but does
    not incorporate the plan into the agreement or make specific reference to it. He
    thus concluded that any dispute as to [LTD] entitlements under the collective agreement
    was properly within the jurisdiction of an arbitrator to determine.

III.

Submissions of the Parties

[23]

The appellant submits that the motion judge
    erred in finding that QHC was contractually liable to pay the LTD benefits. She
    claims this was an error because, not only was there no evidence that QHC was
    responsible for payment of benefits, its only contractual obligation under
    Article 15 was to provide an LTD plan equivalent to HOODIP and to pay a portion
    of the premium. In contrast, there was evidence that Manulife was responsible
    for the administration of the policy and the payment of claims. This misapprehension
    led the motion judge to incorrectly categorize the claim as falling within
Brown
    and Beatty
category 2, rather than category 3. Category 3 was more
    appropriate because the collective agreement only obliged the employer to
    procure the policy and pay a portion of the premium. Further, as the collective
    agreement did not provide any details of the Manulife benefit plan, it cannot
    reasonably be held that QHC agreed to pay those benefits itself.

[24]

The appellant also contends that, for a benefit
    entitlement dispute to be arbitrable under the terms of the collective
    agreement, it must arise under HOODIP or an equivalent plan. However, in this
    case, as HOODIP and the Manulife policy have different definitions of total
    disability, they cannot be considered to be equivalent plans. Thus, while a
    claim as to whether QHC failed to provide the benefits promised under HOODIP
    would be arbitrable, her claim about whether she meets the definition of total
    disability under the Manulife policy is inarbitrable because it arises under
    the terms of the policy, not the collective agreement. The Manulife policy is
    distinct from the collective agreement, and disputes arising from it should be
    dealt with by the courts.

[25]

Manulifes answer, in substance, is that,
    pursuant to Article 15.04 of the collective agreement, LTD disputes are to be
    resolved first through the insurers appeal process and, if not resolved, then by
    grievance and arbitration under the collective agreement, not through the
    courts. The appellant followed that process. She invoked the grievance
    procedure and settled her claim against QHC. She has no right to access the
    court.

IV.

Analysis

[26]

There are two issues on this appeal: (a) the
    standard of review; and (b) whether the motion judge erred in finding that the
    appellants claim was subject to exclusive arbitral jurisdiction.

A.

Standard of review

[27]

Neither party addressed the standard of review
    applicable to this appeal.

[28]

In
Barber
, this court affirmed the
    dismissal of an employees lawsuit against Manulife for LTD benefits because
    the claim was subject to arbitration under the collective agreement. The court observed,
    at para. 7, that since the resolution of the appeal turned on the
    interpretation of the collective agreement, which was a negotiated agreement rather
    than a standard form contract, the question was one of mixed fact and law and
    the palpable and overriding error standard of review applied:
Sattva
    Capital Corp. v. Creston Moly Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at
    paras. 50-55;
Ledcor Construction Ltd. v. Northbridge Indemnity Insurance
    Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23, at paras. 21, 24. See also
Morriseau
    v. Sun Life Assurance Company of Canada
, 2017 ONCA 567, 70 C.C.L.I. (5th)
    11, at para. 9, leave to appeal refused, [2017] S.C.C.A. No. 361.

[29]

However, while, like
Barber
, this
    appeal can be regarded as involving issues of contract interpretation, it can
    also be viewed as asking whether the dispute in question is subject to the
    jurisdiction of the court or an arbitrator. Determinations of jurisdiction
    under rule 21.01(3)(a) of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, are legal determinations and are subject to a correctness standard of
    review:
Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada)
,
    2017 ONCA 526, at para. 18. In
London Life
, this court applied a
    correctness standard in circumstances similar to this: at para. 14.

[30]

Despite the potential tension between the two
    tests, as I conclude that the motion judges decision was correct, and in the
    absence of full argument, I do not find it necessary to determine the appropriate
    standard of review.

B.

Did the motion judge err in finding the claim was arbitrable?

[31]

Section 48(1) of the
Labour Relations Act,
    1995
, S.O. 1995, c. 1, Sched. A, provides that disputes arising from a
    collective agreement shall be resolved through binding arbitration:

Every collective
    agreement shall provide for the final and binding settlement by arbitration,
    without stoppage of work, of all differences between the parties arising from
    the interpretation, application, administration or alleged violation of the
    agreement, including any question as to whether a matter is arbitrable.

[32]

In
Weber
, the Supreme Court confirmed
    that mandatory arbitration clauses, such as s. 48(1) (then s. 45(1)),
    generally confer exclusive jurisdiction on labour tribunals to deal with all
    disputes between the parties arising from the collective agreement: at para.
    67.

[33]

In determining whether a matter falls within the
    exclusive arbitral jurisdiction under a collective agreement, the Supreme Court
    of Canada has outlined that the key question is whether the dispute, in its
    essential character, arises from the interpretation, application,
    administration or violation of the collective agreement:
Weber
, at
    para. 52.

[34]

Elaborating on the nature of this inquiry, the
    Supreme Court in
Regina Police Assn. Inc. v. Regina (City) Board of Police
    Commissioners
, 2000 SCC 14, [2000] 1 S.C.R. 360, at para. 25, held:

To determine whether a dispute arises out of the collective
    agreement, we must therefore consider two elements: the nature of the dispute
    and the ambit of the collective agreement. In considering the nature of the
    dispute, the goal is to determine its essential character. This determination
    must proceed on the basis of the facts surrounding the dispute between the
    parties, and not on the basis of how the legal issues may be framed. Simply,
    the decision-maker must determine whether, having examined the factual context
    of the dispute, its essential character concerns a subject matter that is
    covered by the collective agreement. Upon determining the essential character
    of the dispute, the decision-maker must examine the provisions of the
    collective agreement to determine whether it contemplates such factual
    situations. It is clear that the collective agreement need not provide for the
    subject matter of the dispute explicitly. If the essential character of the
    dispute arises either explicitly, or implicitly, from the interpretation,
    application, administration or violation of the collective agreement, the
    dispute is within the sole jurisdiction of an arbitrator to decide. [Internal
    citations omitted.]

[35]

In order to aid in the application of these
    principles within the context of benefit entitlement disputes, this court has
    adopted the
Brown and Beatty
categories:
Barber
, at para. 9;
London
    Life
, at para. 10.

[36]

The categories are helpful in assisting
    decision-makers to determine whether agreements, such as pension, insurance,
    and other benefit plans provided by employers can be appropriately considered
    to form part of the collective agreement. The authors of
Brown and Beatty
,
    echoing the Supreme Courts language in
Regina Police Assn.
, have suggested
    that whether such plans form part of a collective agreement, depends upon the
    surrounding circumstances, together with the specific language used in the
    collective agreement:
Brown and Beatty
, at 4:1400
.
The four
    categories are:

1.

where the
    collective agreement does not set out the benefit sought to be enforced, the
    claim is inarbitrable.

2.

where the
    collective agreement stipulates that the employer is obliged to provide certain
    medical or sick-pay benefits, but does not incorporate the plan into the
    agreement or make specific reference to it, the claim is arbitrable;

3.

where the
    collective agreement only obliges the employer to pay the premiums associated
    with an insurance plan, the claim is inarbitrable; and

4.

where the
    insurance policy is incorporated into the collective agreement, the claim is
    arbitrable.

[37]

The
Brown and Beatty
categories were
    described in
London Life
as helpful. However, while the categories
    can indeed be helpful, they should not mask the essential question, which is to
    determine whether benefit plans that are ancillary to the collective agreement
    can be characterized as constituting or forming part of a collective
    agreement so as to be enforceable by arbitration. This is primarily a question
    of interpretation of the collective agreement. As
Brown and Beatty
acknowledge,
    it is necessary in every case to assess the particular provisions of the
    collective agreement which the parties themselves have negotiated, and to
    understand them in the general context of the collective agreement:
Brown and
    Beatty
, at 4:1210, 4:1400 (citing
Coca-Cola Bottling Ltd. v. U.F.C.W.
(1994), 44 L.A.C. (4th) 151, at p. 155). While the categories can be of
    assistance in helping decision-makers understand the impact of their
    conclusions regarding the interpretation of a collective agreement, they must
    not distract from the primary exercise at hand: determining whether the essential
    character of the dispute arises either explicitly, or implicitly, from the
    interpretation, application, administration or violation of the collective
    agreement:
Regina Police Assn
., at para. 25.

[38]

In my view, as a matter of contract
    interpretation, the motion judge was correct in his conclusion in this case.
    The collective agreement referred only to HOODIP and contemplated that
    employees would be entitled to the level of coverage provided by HOODIP. The employers
    obligations under the HOODIP plan formed part of the collective agreement. This
    alone is enough to conclude that the grievance and arbitration provisions of
    the collective agreement apply to LTD disputes.

[39]

A helpful decision on this point is
Pilon v.
    International Minerals and Chemical Corp. (Canada) Ltd.
(1996), 31 O.R.
    (3d) 210 (C.A.), a case that bears some similarity to this one. In that case,
    the collective agreement between Mr. Pilons employer and his union provided
    for a group insurance plan, which included short- and long-term disability benefits.
    The cost of all benefits, other than LTD benefits, were to be paid for by the
    employer. LTD benefits were to be provided by the insurer through a plan
    administered by the employer and paid for by the employees through salary
    deductions. The collective agreement did not define the eligibility for
    disability benefits, but the collective agreement incorporated by reference the
    terms of a benefits handbook that was distributed to employees, which set out
    the definition of total disability and the terms of the coverage.

[40]

When the employer refused to process Mr. Pilons
    claim against the insurer for LTD benefits, he claimed directly from the
    insurer. When his claim was denied, he commenced an action against the insurer.

[41]

Relying on
St. Anne Nackawic Pulp &
    Paper v. CPU
, [1986] 1 S.C.R. 704, which, as it noted, was confirmed in
Weber
,
    this court affirmed the dismissal of the action. It held that Mr. Pilons
    entitlement to the LTD benefits arose from the collective agreement. The court
    noted, at p. 214, that:

The Supreme Court of Canada has clearly held that it would
    subvert the collective bargaining relationship, and the statutory scheme under
    which it arises, to hold that matters addressed and governed by the Collective
    Agreement may nevertheless be the subject of action in the courts at common
    law.

[42]

Mr. Pilon had no right at all to the benefits in
    the absence of the group insurance scheme established by the collective
    agreement. The grievance and arbitration mechanism in the collective agreement
    governed the resolution of the matter.

[43]

Similarly, here, the language of the dispute
    resolution clause in the collective agreement puts the question beyond dispute.
    Article 15.04(a) expressly provides that any dispute concerning an employees
    entitlement to short-term or long-term benefits under HOODIP may be subject to
    grievance and arbitration under the provisions of this Agreement.

[44]

I would not accept the appellants submission
    that, because her dispute arises under Manulifes policy and not under HOODIP, Article
    15.04(a) is inapplicable. In my view, the words or equivalent in Article
    15.02 must be read into Article 15.04(a) to make all claims for LTD benefits
    arbitrable. QHC is contractually obliged to provide those benefits and must
    therefore be a party to any dispute concerning an employees entitlement.

[45]

HOODIP is a widely used benefit plan and submissions
    similar to those made by the appellant have been made before. In
Trenton
    Memorial Hospital v. Ontario Nurses Assn.
, [2000] O.L.A.A. No. 506, a
    hospital argued that the absence of the words or equivalent in the grievance
    clause meant that an arbitrator did not have jurisdiction to consider a
    grievance for LTD benefits under any plan except HOODIP itself. This was
    rejected by the arbitral board on the basis that the specific provision must be
    considered in the context of the section as a whole: at para. 13. The decision was
    affirmed by the Divisional Court: [2001] O.J. No. 2965.

[46]

The arguments were also rejected in
Woodstock
    General Hospital v. Ontario Hospital Nurses Assn.
, [2001] O.L.A.A. No.
    500. In the case, the employer argued that arbitration was available only for
    disputes under HOODIP and not for disputes under an equivalent plan. The arbitrators
    rejected the submission, in language I find persuasive, at paras. 12 and 13:

In our view, having reviewed both the disputed provisions and
    the article as a whole, the only interpretation which makes sense is one in
    which the words "or an equivalent plan" is read into Article 12.07.
    Indeed, if these words were not read into Article 12.07 then the plan could not
    be equivalent - something which the employer is obligated to provide - for
    there would be no collective agreement mechanism for the adjudication of
    disputes dealing with coverage. The language, of course, is central and it is
    the well-known intention of the parties that coverage be uniform. Our
    conclusion about the proper interpretation of the provision is independently
    arrived at following a review of the provision. However, it is also a
    conclusion in complete compliance with existing authority.

In that respect, we are in agreement with Arbitrator Thorne's
    decision, and reasons for decision, in
Trenton
, a finding recently
    upheld by the Divisional Court. As Arbitrator Thorne found, there was no need,
    in Article 12.07 to specifically refer to "an equivalent plan" for
    the provision, read as a whole clearly incorporates any equivalent plan. While
    employer counsel takes the position that the issue is still alive - the
    Divisional Court having dismissed the application purely on the basis of its
    finding that the decision was not patently unreasonable - we read the Court's
    endorsement somewhat more broadly. The Court, significantly in our view,
    concluded: "To give the collective agreement the meaning suggested by the
    applicant would be to ignore the provision of article 12.07." We reach the
    exact same conclusion.

[47]

Further support for these conclusions can be
    found in the decision of Lax J. in
Campos v. Sun Life Assurance Company of
    Canada
(2009), 77 C.C.P.B. 301 (Ont. S.C.). The case was a proposed class
    action, in which the putative representative plaintiff, a registered nurse,
    made a claim for LTD benefits provided under a policy obtained by her employer
    pursuant to a collective agreement which incorporated HOODIP. Only a portion of
    the collective agreement is reproduced in the judgment, but the terms are
    substantially the same as Articles 15.01, 15.02 and 15.04(a) of the collective
    agreement between OPSEU and QHC. Lax J. dismissed the action, finding that the
    plaintiffs claim was subject to arbitration.

[48]

In the course of her reasons, Lax J. reviewed
    the history of HOODIP at length at paras. 10-21. She noted, at para. 16, that
    the provisions of the collective agreement providing for grievance and
    arbitration of short-term or long-term benefits under HOODIP had been described
    by some labour arbitrators as strange, startling, unusual or unique.  She
    noted that there was no provision in the collective agreement providing for
    arbitration of disputes regarding other benefits provided in the group
    insurance policy, including life insurance and accidental death and
    dismemberment benefits.

[49]

The same is true here. In my view, the
    provisions of the collective agreement are strange and unique, because the
    employer has contractually bound itself to provide employees with the coverage
    described in HOODIP and to resolve coverage disputes by arbitration, even
    though the LTD coverage itself is provided by a third party. Were it necessary
    to do so, I would characterize this case as falling within
Brown and Beatty
category 4: the employer bound itself to provide the short-term and long-term
    disability coverage set out in HOODIP, which was incorporated into the
    collective agreement. While Manulifes policy provided the administrative and
    financial backstops to that coverage, the employees recourse was to the
    employer, under the collective agreement.

[50]

While the provisions of the collective agreement
    may be described as strange and unique, I can well understand why OPSEU may
    have negotiated terms such as these on behalf of hospital employees. It permits
    disabled employees to resolve their LTD disputes by grievance and arbitration
    with their employer, rather than by litigation against the insurer. The
    arbitration process is faster, more cost effective, and engages the experience
    of expert arbitrators.

[51]

In this case, while the appellant phrases her
    claim as a disagreement over whether she meets the definition of total
    disability under the Manulife plan, the true substance of her dispute is a
    disagreement with her employer over her entitlement to LTD benefits as outlined
    in the collective agreement. This clearly arises from the collective agreement
    and falls within the purview of an arbitrator to decide. Here, the dispute was
    resolved through the appeals and grievance process stipulated in the agreement.
    The appellant has no entitlement to resort to the court for additional
    compensation from the insurer.

V.

Order

[52]

For these reasons, I would dismiss the appeal,
    with costs to the respondent fixed at $7,500, inclusive of disbursements and
    applicable taxes.

Released: GS  DEC  12 2019

George R. Strathy C.J.O.

I agree. Robert J. Sharpe J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: King v. King, 2019 ONCA 950

DATE: 20191202

DOCKET: C66723

Lauwers, Paciocco and Fairburn
    JJ.A.

BETWEEN

Maria Trindade King

Applicant (Appellant)

and

Lawrence Robert King

Respondent
    (Respondent)

Jordan McKie and Jacob Damstra, for the
    appellant

Lawrence Robert King, acting in person

Heard and released orally: November 27, 2019

On appeal from the judgment of Justice Marc Garson of the Superior
    Court of Justice, dated February 19, 2019.

REASONS FOR DECISION

[1]

The appellant, Ms. King, argues that the trial
    judge erred in imputing an income of $50,000 to the respondent, Mr. King, for
    purposes of calculating spousal support and that the trial judge failed to pay
    due regard to Mr. Kings deliberate underemployment. We disagree. The trial
    judge stated, at para. 30: I do not accept [Mr. Kings] lengthy periods of
    self-imposed unemployment or underemployment.

He added at para. 32: I am prepared
    to find that he has been intentionally underemployed between February 2016 to
    present.

[2]

The trial judge gave cogent reasons for imputing
    an income figure of $50,000 which he set out at para. 33 of his reasons:

The amount of
    $50,000 is not some arbitrary or unreasonable figure. It is derived from the evidence
    I heard and accept that he is likely capable of earning an hourly wage of
    between $35 - $40/hour that is equivalent of approximately $75,000 annually and
    likely able to earn such income for at least two-thirds of the year, accounting
    for lay-offs and slowdowns. I also take into account his age, experience,
    skills, prior learning history and available job opportunities.

[3]

There is nothing unreasonable in this
    determination since Mr. King has experienced layoffs on occasion in the past,
    as the transcript shows. There is no palpable and overriding error, no legal
    error, nor any error in principle. The appeal is dismissed.

[4]

Costs to the respondent in the amount of $500,
    payable within 30 days.

P.
    Lauwers J.A.

David
    M. Paciocco J.A.

Fairburn
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kossta (Re), 2019 ONCA 1021

DATE: 20191223

DOCKET: C66758

Doherty, van Rensburg and Hourigan JJ.A.

IN THE MATTER OF: Stefanos Kossta

AN APPEAL UNDER PART XX.1 OF THE
CODE

Daniel R. Medd, for the appellant

Natalya Odorico, for the respondent, the Attorney
    General of Ontario

Michele Warner, for the respondent, the Person in Charge
    of the Centre for Addiction and Mental Health

Heard: December 18, 2019

On appeal from the disposition of the Ontario Review
    Board, dated March 6, 2019.

REASONS FOR DECISION

[1]

Stefanos Kossta was declared not criminally
    responsible on account of mental disorder (NCR) on November 13, 2015 in
    relation to a charge of dangerous operation of a motor vehicle. While
    experiencing a manic episode, he was speeding and swerving through traffic on
    Highway 401, close to the Qu
é
bec
    border. Mr. Kossta was initially detained at the Centre for Addiction and
    Mental Health (the Hospital), with the ability to reside in approved
    accommodations in the community.

[2]

Mr. Kossta appealed his most recent disposition:
    a conditional discharge that requires him, among other things, to abstain from
    alcohol and to refrain from driving a motor vehicle. He argued that the Boards
    conclusion that he continues to pose a significant threat to the safety of the
    public is unreasonable and is not supported by the evidence. At the conclusion
    of the hearing of the appeal, the court advised that the appeal would be
    dismissed with reasons to follow. These are our reasons.

[3]

Initially, Mr. Kossta was seeking an absolute
    discharge. However, based on certain information in the record concerning Mr.
    Kosstas drivers licence suspension identified by his counsel (which is
    addressed below), Mr. Kossta sought instead an order remitting the matter to
    the Board for a rehearing.

[4]

Mr. Kossta has a lengthy psychiatric history.
    His current diagnosis is schizoaffective disorder. He also has autism spectrum disorder,
    which contributes to his limited insight into his condition and symptoms. Mr.
    Kossta, who is supported by ODSP, has been living for many years in his
    brothers home. He has significant family support. As a result of Mr. Kosstas
    disorders, he has a history of wandering from home for days at a time,
    consuming too much alcohol, and engaging in reckless and self-harming
    behaviours. At times, including the occasion of the index offence, he would
    rent vehicles and drive away from the city. It is agreed that the only
    circumstances in which Mr. Kossta would pose a significant threat to public
    safety is if he were to operate a motor vehicle.

[5]

Mr. Kosstas counsel argued that, in concluding
    that he continued to pose a significant threat, the Board failed to link the
    risk factors of his challenging dual diagnosis, his limited insight, and his
    history of alcohol abuse to the risk that he would drive. The Board ignored the
    important fact that Mr. Kosstas drivers licence has been suspended and that the
    suspension is unlikely to be lifted in the foreseeable future. Although Mr.
    Kossta has expressed a desire to drive, there is no indication that he has done
    so since the index offence. Mr. Kossta responds positively to what the Board
    referred to as external controls, and the Board should have considered
    whether there was in fact a risk to public safety in the face of a licence
    suspension.

[6]

In our view, it was reasonable for the Board to
    conclude that Mr. Kossta, because of his psychiatric condition, remained a
    significant threat to public safety if he were to drive. This threat was best
    managed by the conditions the Board imposed, including the condition
    prohibiting Mr. Kossta from driving. The Boards conclusion was supported by
    Mr. Kosstas history, including the index offence. It was also supported by the
    opinion of Dr. Choptiany, Mr. Kosstas attending psychiatrist, that without the
    external controls of a Board disposition, Mr. Kossta was likely to consume
    alcohol, miss taking his medication, become manic, and put members of the
    public at risk of harm. Dr. Choptiany pointed to the experience in August 2017,
    when Mr. Kossta consumed alcohol and relapsed after the alcohol prohibition was
    lifted for one year. Mr. Kossta complied with the prohibition after it was
    reinstated. Dr. Choptiany also referred to the fact that Mr. Kossta is
    receiving one-on-one psychotherapy to learn to recognize his emotional states and
    manage them.

[7]

Although the Boards reasons do not address the licence
    suspension directly in its analysis, the fact of the suspension was addressed
    in evidence. Unfortunately, however, there was little information before the
    Board concerning Mr. Kosstas licence suspension. For example, the evidence did
    not address whether the licence suspension itself would remain in place, and
    whether it could act as an effective control to prevent the risk of harm by
    stopping Mr. Kossta from driving. Although the Board was informed that Mr.
    Kosstas licence had been suspended for medical reasons, it was unknown when
    and how the suspension had come about. Dr. Choptiany expressed confusion about
    the issue, and said he would need to get advice from the Hospitals legal
    department to know how to proceed.

[8]

Counsel for Mr. Kossta on appeal (not his
    counsel before the Board) fairly pointed out that, in the Boards reasons for
    its March 28, 2018 disposition, the Board referred to a CPIC report which stated
    that Mr. Kosstas drivers licence was suspended on 2005-08-06, for medical
    reasons, and that this was prior to the NCR finding. Appeal counsel questioned
    the reliability of that information in light of the fact that the index offence
    occurred in a rented car, and there was no indication that Mr. Kossta was
    charged with driving while his licence was suspended.

[9]

We have concluded that the Boards disposition
    was reasonable and supported by the evidence that was before it at the hearing.
    We are, however, concerned about the lack of information that was available to
    the Board concerning Mr. Kosstas licence suspension, including information
    that appears to have been available at the previous years hearing. Details of
    the timing and the circumstances leading to the suspension of Mr. Kosstas
    drivers licence, as well as his record of driving (or not) while his licence
    has been suspended should be obtained and made available to the Board for its
    next review (which is scheduled for February 24, 2020). This information will
    assist the Board in determining whether there is any reasonable prospect of Mr.
    Kossta ever having his licence reinstated, and whether the suspension itself
    could act as an effective external control. Ultimately, this is information
    that should be evaluated by the Hospital, and considered by the Board in
    assessing whether Mr. Kossta continues to pose a significant risk of harm to
    the public.

[10]

For these reasons, Mr. Kosstas appeal was
    dismissed.

Doherty J.A

K. van Rensburg
    J.A.

C.W. Hourigan
    J.A.