COURT OF APPEAL FOR ONTARIO

CITATION: Brown v. Baum, 2016 ONCA 325

DATE: 20160503

DOCKET: C60281

Feldman, Lauwers and Benotto JJ.A.

BETWEEN

Diana Brown

Plaintiff (Respondent)

and

Dr. Joseph Baum

Defendant (Appellant)

Cynthia B. Kuehl and Stuart Zacharias, for the appellant

Osborne G. Barnwell and Maxine Palomino, for the
    respondent

Heard: October 29, 2015

On appeal from the order of Justice Mew of the Superior
    Court of Justice, dated March 10, 2015, with reasons reported at 2015 ONSC 849.

Feldman J.A.:

INTRODUCTION

[1]

This appeal raises squarely the issue of discoverability and the
    commencement of the limitation period when a doctor continues to treat a
    patient to try to correct damage that occurred during or following surgery.

[2]

The respondent (plaintiff), Diana Brown, suffered severe complications
    following her breast reduction surgery, which was performed by the appellant,
    Dr. Joseph Baum, on March 25, 2009.

[3]

Ms. Brown brought an action against Dr. Baum alleging lack of informed
    consent (and negligence, but the latter claim was abandoned at the motion) on
    June 4, 2012, over three years after the initial surgery, but within two years
    of when Dr. Baum last treated her to correct the original problems. In her
    statement of claim, Ms. Brown alleges that Dr. Baum did not inform her of the
    risks or possible outcomes of undergoing breast surgery, and, in particular, of
    the risks that her obesity and smoking could pose.

[4]

Dr. Baum was unsuccessful on his
    summary judgment motion to dismiss the action as statute barred under the
Limitations Act, 2002
, S.O. 2002, c. 24
,
Sch. B. The motion judge found that as of July 2009,
    Ms. Brown knew she had suffered an injury that was caused or contributed to by an
    act or omission of Dr. Baum and therefore she met the first three limbs of
    discoverability, as set out in s. 5(1)(a)(i-iii) of the
Limitations
    Act, 2002
at that date
.

[5]

However, because Dr. Baum
    continued to treat Ms. Brown to ameliorate her complications, the motion judge
    found that the fourth limb, s. 5(1)(a)(iv), was not met because Ms. Brown did
    not know that
a proceeding would be an appropriate means to seek to
    remedy the injury, loss or damage she had suffered.
The limitation period did not commence until June 16, 2010, the date of
    Ms. Browns last ameliorative surgery by Dr. Baum. As a result, Ms. Browns
    statement of claim, issued on June 4, 2012, was issued within the limitation
    period.

RELEVANT FACTUAL BACKGROUND

[6]

The relevant factual history is clearly set out by Mew J. in his reasons
    and I can do no better than repeat that history here:

[7] Ms. Brown first had first seen Dr. Baum in 2004 concerning
    a possible tummy tuck operation. She ultimately had tummy tuck surgery on 22
    February 2008, which was performed by Dr. Baum.

[
8
] Following this surgery, there were,
    according to Ms. Brown, complications in that the stitching was open and
    oozing.

[
9
] Ms. Brown saw Dr. Baum in March 2008 for a
    follow-up after the tummy tuck surgery.  On that visit she also talked to
    Dr. Baum about possible breast reduction surgery to alleviate her back pain.

[
10
] Dr. Baums note of that attendance
    records that Ms. Brown weighed 325 lbs. at the time (based on what was reported
    by Ms. Brown).

[
11
] On 26 June 2008, Ms. Brown saw Dr. Baum
    again. He noted Needs to lose weight!!, Wants breast reduction and
    Endocrinologist. Dr. Baum referred Ms. Brown to Dr. Min Wong for an
    endocrinology consultation for assistance with weight loss in advance of breast
    reduction surgery. In his referral letter to Dr. Wong, Dr. Baum wrote: patient
    has been advised to lose weight before we proceed with breast reduction
    surgery. Dr. Wong subsequently reported that he had met with Ms. Brown and
    discussed with her a diet and exercise regimen as well as strategies to reduce
    weight.

[
12
] The plaintiff next saw Dr. Baum on 6
    November 2008. He noted that Ms. Browns weight was 280 lbs. (again, based on
    what Ms. Brown reported).

[
13
] On 11 November 2008, Dr. Baum dictated a
    consultation letter to Ms. Browns family doctor. After discussing her weight
    and aspects of her medical history, Dr. Baum wrote:

The nipple areola complex are quite large laterally and are
    displaced medially. It is also noted that she has a large lateral fold of skin
    and breast tissue and will require considerable lateral incisions. To
    complicate matters further, she is a smoker and I have informed her that she
    would have to be off cigarettes for a month pre operatively to decrease the
    risk of infection and wound dehiscence. We will make plans for surgery in the
    spring and I would suggest that she try her best to get the weight problem
    under control.

[
14
] Dr. Baum says that the contents of his
    letter accurately reflect his discussions with Ms. Brown, including the
    relation of smoking with the risks described although, he says, in lieu of the
    term wound dehiscence, for example, he would have said words to the effect of
    a problem with wound healing. Other than the letter to the family doctor,
    there is no other contemporaneous written record of what was discussed between
    Dr. Baum and Ms. Brown at that time.

[
15
] Ms. Brown had breast reduction surgery on
    25 March 2009. The day before her surgery, she completed a pre-admission,
    pre-anesthetic patient questionnaire in which she indicated that she was
    smoking eight cigarettes per day. Dr. Baums evidence is that he was not aware
    that, contrary to his instruction, Ms. Brown was continuing to smoke at that
    time.

[
16
] Following her surgery, Ms. Brown
    developed complications. She said that her wound had opened up the following
    day and she went to the Emergency Department at Brampton Civic Hospital. She
    saw Dr. Baum at 31 March 2009 and on 14 and 17 April 2009. Dr. Baums note of
    the attendance on 14 April 2009 states that Ms. Brown was still complaining of
    pain in both breasts and ? Fat, Necrosis.

[
17
] There was a another attendance at the
    Emergency Department on 27 April 2009 and on 6 May 2009 Dr. Baum performed
    further surgery, noting that the fat necrosis had affected both breasts. When
    examined for discovery Dr. Baum explained fat necrosis as:

A process where there is not enough blood supply going to
    the tissue. Breast tissue is made of skin, fat breast tissue.but if you lose
    the blood supply, its the fat that loses its integrity and if the fat loses
    its integrity, the fat cells die and that explains what the plaintiff describes
    as rotting flesh.

He went on to say that:

the fat goes from a solid state to a liquid state that and
    its foul smellingit looks like infectionits thick, its yellow, its
    terrible looking, has a terrible smell to it.

[
18
] There was a third surgery on 26 May
    2009. The operative note shows that the pre-operative diagnosis was fat
    necrosis right breast. It was recorded that necrotic fat material was
    dissected from the right breast.

[
19
] On 2 June 2009, there was additional
    cutting away of non-viable tissue.

[
20
] On 24 July 2009 there was more surgery.
    The operative note showed that the pre-operative diagnosis indicated bilateral
    breast deformities. Dr. Baum indicated that the purpose of the July operation
    was to reconstruct the areola by using a graft. Asked about what had been
    occurring up to the 24 July 2009 surgery, Dr. Baum explained that the plaintiff
    was having horrendous complications and that [he] was doing everythingto
    correct and that all of the subsequent operations were logical, systematic
    approaches to get [the plaintiff] back to some state of normalcy.

[
21
] On 12 August 2009 necrotic skin was
    removed from the reconstructed left areola.

[
22
] A progress note from Dr. Baum on 15
    September 2009 stated that the plaintiffs breasts were pancake shaped as she
    lost projection in both breast secondary to the fat necrosis. It was further
    noted that the plaintiff would require nipple-areola reconstruction and that
    Ms. Brown was not happy with the shape of her breasts. Dr. Baum noted that he
    would have to reconstruct the breast mounds to give them protrusion and that
    arrangements will be made for an ultrasound to be done of the breast to
    ascertain that the fat necrosis is contained.

[
23
] A consultation note of Dr. Baums
    indicates that on 24 March 2010 Ms. Brown was scheduled for bilateral reduction
    of both breasts following fat necrosis as well as a reconstruction of the
    nipples. However, due to her low haemoglobin, the operation was put off.

[
24
] On 16 June 2010 Dr. Baum performed a
    mastopexy in order to improve the shape of the plaintiffs breasts.

[
25
] A progress note from Dr. Baum dated 22
    June 2010 indicates that the plaintiffs wounds appeared to be healing well
    with no evidence of infection or fat necrosis. However, he also noted that Ms.
    Brown exhibited displeasure over the appearance of the nipples and had reverted
    to aggressive and profane language and that she again lacks insight as to the
    difficulty of correcting the problem. The note indicates that she will return
    to the office next week for suture removal and to discuss referring her to a
    tertiary breast reconstructive surgeon.

[
26
] A letter dated 20 September 2010,
    authored by Dr. Mitchell Brown, a specialist to whom the plaintiff was referred
    to for a second opinion, indicated that the result looks quite good and it was
    my opinion that [Ms. Brown] should leave things as-is.

[
27
] Ms. Brown completed signed consent forms
    prior to her various surgeries. With respect to the form signed by her on 25
    March 2009 her evidence, and that of her daughter, Stephanie Reid, is that Ms.
    Brown was presented with the consent form by Dr. Baums secretary. Ms. Brown
    testifies that It was never the case that Dr. Baum sat across from me at a
    desk and explained things to me and then asked me to sign. Ms. Reid, however,
    testifies that she recalls accompanying my mother to see Dr. Barum [
sic
]
    just before the surgery on her breasts. That was a conversation about what he
    was going to do during the surgery. It was not a detailed conversation. Di [
sic
]
    not last beyond half an hour.

[
28
] Ms. Brown and her daughter say that Dr.
    Baum did not ask Ms. Brown, immediately prior to her surgery, whether she was
    continuing to smoke. Dr. Baum says that subsequent to the 25 March 2009
    surgery, he learned that Ms. Brown had, in fact, continued to smoke. He says:

I do not recall how this came about however, upon
    discovering this I told Ms. Brown to stop smoking and that I believed the
    problems she was experiencing were a result of her smoking.

[
29
] In Dr. Baums operative report of 25 May
    2009 he stated:

I see no evidence of infection, however, I have again
    instructed her that she should refrain from smoking as I think this is the
    cause of the vascular compromise.

[
30
] Ms. Brown claims that Dr. Baum did not
    tell her, prior to her surgery in March 2009, that her weight and her smoking
    could affect her healing. She further claims that in none of the surgeries that
    followed did he say to her that the rotting of her breasts was because she was
    smoking or because she was overweight. She says:

He never gave me the choice not to proceed with the surgery.

She continues:

I had no idea that this surgery would lead to such suffering
    and such scarring mentally and physically. Dr. Baum left me the clear
    impression that the surgery would be no problem. He left me believing that I
    had nothing to worry about. I felt that this was a 100% success surgery. If Dr.
    Baum had said to me that my chances were low, less than 50%, I would not have
    done this surgery.

And further:

if I had the information that smoking and being obese would
    affect my healing, I would never have proceeded with this elective plastic
    surgery in March 2009. While I am not that sophisticated, I am surely not that
    silly to have blindly taken such risks of my health by continuing smoking and
    carrying around the weight. It was not as if I was dying and had to have this
    surgery in March 2009. This was something that could have been delayed until I
    was in a state that would assure a better result. As I stated, I did not have
    the opportunity to choose.

At no time did Dr. Baum tell me there could be
    complications which would require further surgeries. He never told me that once
    he completed the first surgery, he may have to do additional surgeries if
    certain things did not go right. The point is, I went into the surgery totally
    ignorant of what was to come.

[
31
] While Dr. Baum has no specific
    recollection of many of his discussions with Ms. Brown (and, regrettably,
    limited contemporaneous notes and correspondence), his evidence is that his routine
    discussion with every patient who is going in for this sort of surgery goes
    into all of the risks and possible complications.

[
32
] Ms. Brown has testified that in May 2009
    her breasts looked hideous and, in her mind, this was all because of the surgery
    performed by Dr. Baum. By July 2009 it was her belief that Dr. Baum had made a
    mistake or done something wrong. She testified that he didnt put my nipples
    back on and it was infected all this time. In the same timeframe, July 2009,
    she was frustrated because she felt that Dr. Baum had wronged her. She
    testified: Well, just looking at the  what hes done, it  just looking at
    the boobs, you can tell that they were not right. Anybody could tell that they
    werent right.

[
33
] On discovery, Ms. Brown said that she
    had had her daughter take the photographs of her breasts before and after the
    surgery. Asked why she had done this, she responded just in case. Pressed
    further the following exchange occurred:

Q. Just in case you ended up in a lawsuit like this one.
    Right?

A. Exactly.

Q. All right.

A. Exactly. Boy was I right.

[
34
] Yet despite her concerns, Ms. Brown
    continued to see Dr. Baum and underwent further surgeries performed by him.

[
35
] The statement of claim was issued on 4
    June 2012, approximately 23½ months after the plaintiffs last consultation
    with Dr. Baum and more than 38 months after her first surgery.

The decision of the motion judge

[7]

The motion judge first referred to s. 5 of the
Limitations Act, 2002
which sets out the conditions that determine when a claim is discovered:

5.(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first
    knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by
    or contributed to by an act or omission,

(iii) that the act or omission was that of the
    person against whom the claim is made, and

(iv) that, having regard to the nature of the
    injury, loss or damage, a proceeding would be an appropriate means to seek to
    remedy it; and

(b) the day on which a reasonable person with the
    abilities and in the circumstances of the person with the claim first ought to
    have known of the matters referred to in clause (a).

5.(2) A person with a claim shall be presumed to have
    known of the matters referred to in clause (1)(a) on the day the act or
    omission on which the claim is based took place, unless the contrary is proved.

[8]

The motion judge acknowledged the case law that states that
    in a medical malpractice case, in order to commence an action, a plaintiff does
    not need to know the precise cause of her injury, but only sufficient facts to
    base an allegation of negligence against the defendant medical personnel or
    hospital:
McSween v. Louis
(2000),
    132 O.R. (3d) 304, 2000 CanLII 5744 (C.A.), at para. 51
,
    Lawless v. Anderson,
2011 ONCA 102, at
    para. 36
, Khan v. Lee,
2014
    ONCA 889, at para. 17
.

[9]

In this case, based on the record, Ms. Brown knew by July 2009 that the
    operation had not gone well and she believed that Dr. Baum had done something
    wrong. The motion judge accepted that by July 2009, Ms. Brown knew the facts
    required by the first three of the four conditions in s. 5(1)(a) of the
Limitations
    Act, 2002
. He therefore focused on s. 5(1)(a)(iv): at what point did Ms.
    Brown first know that a proceeding would be an appropriate means to seek to
    remedy the injury, loss or damage she had suffered? Was it in July 2009, or in
    June 2010 after all of the remedial surgeries that Dr. Baum performed on her?

[10]

The motion judge found that the series of surgeries that Dr. Baum
    performed over the 13-month period from May 6, 2009 to June 16, 2010
    constituted Dr. Baums attempts to improve the outcome of the initial
    surgery. In fact, by September 2010, Dr. Mitchell Brown provided the second
    opinion that by that point in time the result looks quite good.

[11]

The appellant argued that the limitation period commenced either at the
    initial surgery in March 2009 or at the latest by July 2009, and that even if
    the respondent had wanted to refrain from commencing an action until she
    stopped seeing the appellant, there would have been time for her to have done
    so following the final consultation visit in June 2010. In other words, the
    respondent had two years to continue to be treated by Dr. Baum before she had
    to commence the action against him.

[12]

The motion judge rejected this submission, pointing out that the
    limitation period does not commence until the injured party first knows that an
    action is an appropriate remedy. Therefore, the issue was whether, during the
    period when her doctor was trying to fix the problems she felt that he had caused,
    she knew it was appropriate to sue him. In considering that issue, he referred
    to this courts decision in
Markel Insurance Company of Canada v. ING
    Insurance Company of Canada,
2012 ONCA
    218, 109 O.R. (3d) 652, at para. 34,

where Sharpe J.A. discussed
    the meaning of appropriate in the context of s. 5(1)(a)(iv):

I fully accept that parties should be discouraged from rushing
    to litigation or arbitration and encouraged to discuss and negotiate claims. In
    my view, when s. 5(1)(a)(iv) states that a claim is discovered only when
    having regard to the nature of the injury, loss or damage, a proceeding would
    be an appropriate means to seek to remedy it, the word appropriate must mean
legally appropriate.
To give appropriate an evaluative gloss,
    allowing a party to delay the commencement of proceedings for some tactical or
    other reason beyond two years from the date the claim is fully ripened and
    requiring the court to assess to tone and tenor of communications in search of
    a clear denial would, in my opinion, inject an unacceptable element of
    uncertainty into the law of limitation of actions.

[13]

The motion judge concluded that on the record in this case [i]t would
    be unreasonable and inappropriateto start the two-year limitation clock
    running against Ms. Brown while the defendants good faith efforts to achieve a
    medical remedy continued. In so finding, he emphasized that he was not finding
    as a rule that the limitation period will not commence until the doctor-patient
    relationship ends in every case where the relationship is ongoing after the
    injury, loss or damage has occurred  only that it might not, depending on the
    facts and circumstances of each case.

ISSUE

[14]

Did the motion judge err in law in his application of s. 5(1)(a)(iv) of
    the
Limitations Act, 2002
to the facts of this case?

ANALYSIS

[15]

On this appeal, the appellant challenges the finding by the motion judge
    that although by July 2009 Ms. Brown knew that an injury, loss or damage had
    occurred (undergoing breast reduction surgery without having been informed of
    the risks) and that the injury, loss or damage had been caused or contributed
    to by an act of Dr. Baum (his failure to inform her), she did not know that bringing
    a legal action would be an appropriate remedy. The appellant points to the fact
    that Ms. Brown was taking photographs of her breasts for months following the
    initial surgery just in case [she] ended up in a lawsuit like this one.

[16]

The appellant cites two errors it alleges Justice Mew made in his
    analysis. First, the appellant says that the motion judge erred in his
    interpretation of s. 5(1)(a)(iv) in stating, at para 50 of his reasons, that
    the point of the subsection is to delay the commencement of the limitation
    period until such time as initiating a proceeding is an appropriate remedy.
    The appellant argues that the motion judge erred by conflating a claim to a
    legal right with taking legal proceedings to pursue that right.

[17]

I do not agree that the motion judge erred in his interpretation of the
    section. I agree with the motion judge that the fourth condition of
    discoverability under the Act is met at the point when the claimant not only
    knows the factual circumstances of the loss she has suffered, but also knows that
    having regard to the nature of the injury, loss or damage, an action is an
    appropriate remedy. Once she knows that, she has two years to initiate that
    action.

[18]

The motion judges application of the subsection to the facts on this
    record was particularly apt: he concluded that because the doctor was
    continuing to treat his patient to try to fix the problems that arose from the initial
    surgery, that is, to eliminate her damage, it would not have been appropriate
    for the patient to sue the doctor then, because he might well have been
    successful in correcting the complications and improving the outcome of the
    original surgery. On the evidence of Dr. Brown, the specialist who provided Ms.
    Brown with a second opinion, by September 2010, Dr. Baum in fact was successful
    in ameliorating Ms. Browns damage.

[19]

Second, the appellant submits that the motion judge gave the term
    appropriate an evaluative gloss rather than applying the meaning of
    legally appropriate, contrary to this courts decision in
Markel
.
    Again I do not agree. The motion judge was entitled to conclude on the facts of
    the case that Ms. Brown did not know that bringing an action against her doctor
    would be an appropriate means to remedy the injuries and damage she sustained
    following her breast reduction surgery until June 16 2010, after Dr. Baum
    performed the last surgery.

[20]

Further, I am satisfied that the test in s. 5(1)(b) is met. A reasonable
    person in Ms. Browns circumstances would not consider it legally appropriate
    to sue her doctor while he was in the process of correcting his error and
    hopefully correcting or at least reducing her damage. Where the damages are
    minimized, the need for an action may be obviated.

[21]

I would also add this observation: the
Markel
case involved
    insurance transfer payments and considerations of the appropriateness of
    possibly delaying the commencement of legal action in order to negotiate a
    settlement. The considerations for when it is appropriate for a patient to delay
    suing her doctor when that doctor is continuing to treat her are quite
    different. I certainly agree with the motion judge that there are many factual
    issues that will influence the outcome. The fact that a number of recent cases
    (for example,
Tremain v. Muir (Litigation guardian of)
, 2014 ONSC 185,
Chelli-Greco v. Rizk
, 2015 ONSC 6963,
Novello v. Glick
, 2016
    ONSC 975 (Div. Ct.), and
Barry v. Pye,
2014 ONSC 1937) have considered
    this very issue with different outcomes is a testament to this approach.

[22]

The motion judge also suggests, as a reason why it is not appropriate to
    sue during continuing treatment to correct an injury, that in practice, a
    doctor would not continue treating a patient and trying to fix the injury he
    caused once the patient sued him. That raises the issue of the professional
    obligation of doctors to inform a patient when harm is done during the course
    of treatment. The Disclosure of Harm Policy (Policy Statement #5-10) of the
    College of Physicians and Surgeons of Ontario states:

INTRODUCTION

Despite best efforts, patients may incur harm during the
    delivery of health care. Harm is not always preventable nor is it necessarily
    an indicator of substandard care.

For the purpose of this policy, harm means an unintended
    outcome arising during the course of treatment, which may be reasonably
    expected to negatively affect a patients health and/or quality of life. This
    includes outcomes that occur as a result of individual or systemic acts or
    omissions. This also includes adverse events that result in unintended harm
    related to the care and/or services provided to the patient rather than to the
    patients underlying medical condition.

For the purpose of this policy, disclosure means the
    acknowledgement and discussion of an outcome with the patient or his or her
    substitute decision-maker.

The objective of disclosure is not the attribution of blame.
    Rather, disclosure should provide patients with the information they need to
    make autonomous, informed decisions about their health care.

POLICY

When a patient has sustained harm while under a physicians
    care, the physician must ensure that harm is disclosed to the patient or to his
    or her substitute decision-maker.
(
This is
    reinforced in Section 14 of the Canadian Medical Association Code of Ethics:
    Take all reasonable steps to prevent harm to patients; should harm occur,
    disclose it to the patient.)

[23]

When a doctor discloses to the patient that he has done harm in
    accordance with the policy, he would also report to the liability insurer.
    After that, the issue of further remedial treatment would likely be determined
    with input from the patient, the doctor and the insurer, including the
    possibility of a tolling agreement to address the limitation issue. As none of
    this occurred in this case, the court is not in a position to comment on these
    very practical issues.

Conclusion on Limitation Issue

[24]

In my view, the motion judge made no error in his approach to this
    issue. He considered all of the relevant case law, and applied it to the facts.
    He was entitled to find that Ms. Brown did not know that it was appropriate to
    sue Dr. Baum until after the last surgery he performed to try to correct the complications
    and improve the outcome of the original surgery. As the motion judge observed,
    it is not simply an ongoing treatment relationship that will prevent the
    discovery of the claim under s. 5. In this case, it was the fact that the
    doctor was engaging in good faith efforts to remediate the damage and improve
    the outcome of the initial surgery. This could have avoided the need to sue.

Issue of Cross-Appeal

[25]

In response to the respondents summary judgment motion, the appellant
    moved for partial summary judgment on the doctors liability for performing the
    surgery without obtaining informed consent. The motion judge dismissed that
    motion as well because the plaintiff had not provided expert evidence on
    aspects of the standard of care which she alleged Dr. Baum failed to meet and
    because he found that a trial of the issue of what the plaintiff would have
    done had she been given all of the required information was required. The
    motion judge also noted a significant evidentiary conflict between the
    plaintiff and the defendant as to what information the plaintiff was, in fact,
    given.  He ordered an expedited trial process to begin with a case management
    conference before him to define the issues and establish the facts not in
    dispute.

[26]

Counsel for Ms. Brown did not cross-appeal this dismissal, but sought
    leave of the court at the hearing to cross-appeal. The issue was argued briefly
    by both sides.

[27]

In my view, there is no basis to set aside the decision of the motion
    judge not to grant summary judgment on the claim. First there was no proper
    cross-appeal (although a late factum was filed by counsel for Ms. Brown) and no
    factum from counsel for Dr. Baum on the issue. However, had the cross-appeal
    been properly filed, I would not have granted it. Although the motion judge
    acknowledged that the doctor should have discussed the weight and smoking risk factors
    with Ms. Brown, he found that was not a sufficient basis to grant summary
    judgment on the informed consent issue. That is a discretionary decision by a
    motion judge based on the record before him. There is no basis to interfere
    with it.

Conclusion

[28]

I would dismiss the appeal with costs to the respondent in the amount of
    $12,500 inclusive of disbursements and HST. The cross appeal is also dismissed.

Released: KF MAY 3, 2016

K. Feldman J.A.

I agree. P. Lauwers
    J.A.

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


COURT OF APPEAL FOR ONTARIO

CITATION: Business Development Bank of Canada v. Aventura II
    Properties Inc., 2016 ONCA 408

DATE: 20160526

DOCKET: M46447 (C61854)

Feldman, Rouleau and Huscroft JJ.A.

BETWEEN

Business Development Bank of Canada

Applicant

and

Aventura
    II Properties Inc., Pavilion Sports Clubs Inc. Pavilion Sports Ice Inc.,
    Pavilion Sports Food and Beverage Inc.,

and
    Pavilion Aquatic Club Inc.

Respondents

Sean N. Zeitz, for the moving parties, Revital Druckmann
    and Jean-Jacques Myara

Catherine Francis, for the respondent, Duca Financial
    Services Credit Union Ltd.

Kelli Preston, for the respondent, Receiver, Pollard
    & Associates Inc.

Heard and released orally: May 17, 2016

ENDORSEMENT

[1]

The moving party seeks a review of the order of van Rensburg J.A. dated
    April 22, 2016, which denied leave to appeal to Ms. Druckmann under s. 193(e)
    of the
Bankruptcy and Insolvency Act
, RSC 1985, c B-3 and which
    ordered Mr. Myara to pay security for costs of the appeal.  Counsel for the
    moving parties advised the court that Mr. Myara relies on the grounds of appeal
    asserted by Ms. Druckmann.

[2]

The first issue is whether this court has jurisdiction to review a
    decision of a single judge granting or denying leave to appeal under s. 193(e)
    of the
BIA
.

[3]

We agree with the respondents that this court does not have jurisdiction
    to review the order.  We apply the decision of this court in
R. v. Scherba
,
    2001 CanLII 4208 (ON CA) where the court held that there is no right of review
    of a decision of a single judge to grant or deny leave under s. 839(1) of the
Criminal
    Code of Canada
, R.S.C. 1985, c. C-46.  The court based its decision on two
    grounds: the first was that the
Criminal Appeal Rules
, S.I./93-169, do
    not provide for such an appeal.  The
BIA
also does not provide for
    such an appeal.

[4]

The second ground was that s. 7(5) of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43, which gives a panel of the court the authority to review
    a decision of a single judge, does not apply to a leave motion, which must be
    decided by a panel. The analysis in the second ground applies equally to this
    case.  We add that having heard full submissions, we would not have granted leave.

[5]

The motion for leave is therefore dismissed.  Counsel advised that if
    leave is not granted to Ms. Druckmann, then Mr. Myara does not intend to post
    security for costs, the motion for review of that order may be dismissed, and
    the appeal should be quashed.  So ordered.

[6]

Costs to each of the respondents on the partial indemnity scale: to Duca
    Financial Services Credit in the amount of $15,699.44; to the Receiver in the
    amount of $13,700.00 in fees, plus $375.27 in disbursements.  The liability for
    costs will be joint and several to the two moving parties.

K.
    Feldman J.A.

Paul
    Rouleau J.A.

"Grant
    Huscroft J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: C.H. Robinson Worldwide Inc. v. Northbridge
    Commercial Insurance Corp., 2016 ONCA 364

DATE: 20160513

DOCKET: C60002

Laskin, Simmons, and Huscroft JJ.A.

BETWEEN

C.H. Robinson Worldwide Inc.

Applicant (Appellant)

and

Northbridge Commercial Insurance Corp.

Respondent (Respondent)

Michael D. Magonet, for the appellant

James Manson, for the respondent

Heard: January 25, 2016

On appeal from the order of Justice Carole J. Brown of
    the Superior Court of Justice, dated January 16, 2015, with reasons reported at
    2015 ONSC 232, 124 O.R. (3d) 390.

Laskin J.A.:

A. Overview

[1]

C.H. Robinson Worldwide Inc. appeals the dismissal of its application
    for insurance coverage from Northbridge Commercial Insurance Corporation.

[2]

Robinson is in the transportation business, and one of the things it
    does is arrange motor carrier services for its customers. In March 2013, it
    retained KLM Express to transport a cargo of food products from Ajax to
    Calgary. The KLM truck carrying the cargo was involved in a collision and the
    cargo was destroyed. Robinson sued KLM for the full value of the lost cargo.
    When KLM did not defend the action, Robinson obtained a default judgment against
    it for $223,701.85.

[3]

Robinson then sought payment from KLMs insurer, Northbridge, under s.
    132 of the
Insurance Act
, R.S.O. 1990 c. I.8. Section 132(1) entitled
    Robinson to recover the amount of its unsatisfied judgment from Northbridge,
    but subject to the same equities as the insurer would have if the judgment had
    been satisfied.

[4]

The application judge denied Robinson recovery. She held that KLMs
    insurance policy was void because when applying for coverage KLM had made a
    material misrepresentation to Northbridge. The misrepresentation relied on by
    the application judge was KLMs answer to the following question: Does the
    applicant have any contracts with shippers that stipulate limits of liability
    that are required to supercede the applicants standard Bill of Lading? KLM
    answered this question no.

[5]

Neither KLMs standard Bill of Lading nor evidence about it was put
    before the application judge. Nonetheless, she held that KLMs answer amounted
    to a misrepresentation because the contract between Robinson and KLM provided
    liability for actual loss or damage that was well in excess of the limited
    liability under the Uniform Conditions of Carriage:
Carriage of Goods
,
    O. Reg. 643/05. The application judge concluded the misrepresentation was
    material because it affected the premium KLM paid for coverage.

[6]

Robinson makes two submissions on appeal. First, it submits the
    application judge erred by finding a misrepresentation in the absence of any
    evidence about KLMs standard bill of lading. Second, it submits even if KLM made
    a misrepresentation, Northbridge failed to show that the misrepresentation was
    material to its underwriting process. I agree with Robinsons first submission.
    It is therefore unnecessary to address its second submission. I would allow the
    appeal, set aside the order of the application judge, and grant Robinson
    judgment in the amount of its judgment against KLM.

B. Background

[7]

Both the agreement between Robinson and KLM, and KLMs insurance coverage
    with Northbridge are relevant to the main issue on this appeal.

(1)

The Agreement between Robinson and KLM

[8]

On June 22, 2012, Robinson and KLM signed an Agreement for Motor
    Contract Carrier Services. The agreement was to be effective for one year, and
    to continue in effect from year to year unless terminated by either party.
    Paragraph 12 of the agreement stipulated that KLM would be liable for actual
    loss and damage to shipments arising from its performance of or failure to
    perform the services required by this contract; and further shall be liable
    for the full, actual value of the shipments tendered by Robinson.

[9]

On March 1, 2013, Robinson retained KLM under the terms of this
    agreement to transport a cargo of food products for one of its customers. When
    the cargo was destroyed in an accident, Robinson relied on paragraph 12 and obtained
    a default judgment against KLM for the full value of the lost cargo, $223,701.85.
    The record is silent on why KLM did not pay or defend Robinsons claim.

(2)

KLMs Insurance Coverage with Northbridge

[10]

Under paragraph 13 of its agreement with Robinson, KLM was required to
    procure and maintain at its own expense cargo insurance of at least $25,000
    per shipment. At the time it entered into the agreement, KLM had an existing
    policy of insurance with Northbridge, but the coverage period was to expire in
    August 2012. KLM therefore applied to renew its policy for a further year.

[11]

As part of the renewal application, Northbridge required KLM to complete
    a Small Business Fleet Transportation Insurance Survey (the Survey). KLMs
    answer to one of the questions on the Survey has given rise to this litigation.
    For convenience, I repeat the question and KLMs answer: Does the applicant
    have any contracts with shippers that stipulate limits of liability that are
    required to supercede the applicants standard Bill of Lading? KLM answered
    this question no.

[12]

Also of significance, in the Survey, KLM requested and paid for a policy
    limit of $250,000 per shipment, an amount exceeding Robinsons default judgment
    against it.

[13]

After it received the completed Survey, Northbridge renewed KLMs
    insurance coverage for a further year from August 2012 to August 2013.

[14]

The KLM insurance policy with Northbridge contained various conditions,
    one of which provided that the policy was void for material misrepresentation:

1) Misrepresentation and Fraud

The entire policy shall be void if, whether before or after a
    loss, you have concealed or misrepresented any material fact or circumstance
    concerning this insurance or the subject thereof, or the interest of any
    Insured therein, or in case of any fraud or false swearing by you relating
    thereto.

C. Did KLM Make
    a Misrepresentation in its Application for Insurance Coverage?

[15]

Robinson applied for an order that Northbridge pay the amount of the
    default judgment against KLM under s.132 of the
Insurance Act
. That
    section permits a judgment creditor (Robinson) with an unsatisfied judgment
    against a judgment debtor (KLM) to recover the amount of the judgment from the
    judgment debtors insurer (Northbridge).

132. (1) Where a person incurs a liability for injury
    or damage to the person or property of another, and is insured against such
    liability, and fails to satisfy a judgment awarding damages against the person
    in respect of the persons liability, and an execution against the person in
    respect thereof is returned unsatisfied, the person entitled to the damages may
    recover by action against the insurer the amount of the judgment up to the face
    value of the policy, but subject to the same equities as the insurer would have
    if the judgment had been satisfied.

(2) This section does not apply to motor vehicle
    liability policies.

[16]

Recovery under s. 132 is subject to the equities between the judgment
    debtor and its insurer. Thus, if KLM had paid Robinson and sought indemnity
    from Northbridge, but Northbridge would have had a defence to that indemnity
    claim, Northbridge could assert this defence to deny Robinson recovery of its
    judgment.

[17]

If KLM made a material misrepresentation to Northbridge when applying
    for insurance coverage, that material misrepresentation would void KLMs policy
    with Northbridge and give Northbridge a valid defence to Robinsons claim
    against it under s. 132 of the
Insurance Act
. The insurer has the onus
    of showing a material misrepresentation, and in this case the onus is
    significant: see, for example,
Fernandes v. RBC Life Insurance Co.
, 2008
    CarswellOnt 3998, 66 C.C.L.I. (4th) 115 (S.C.), at para. 7, affd 2009 ONCA
    864, 99 O.R. (3d) 627;
Commonwealth Insurance Co. v. York-Hannover
    Developments Ltd.,
1997 CarswellOnt
    680 (Gen. Div.), at para. 2, affd 1999 CarswellOnt 4309 (C.A.); and
Fidei
    Estate v. Sun Life Assurance Co. of Canada
, 1991 CarswellOnt 648, 5
    C.C.L.I. (2d) 224 (Gen. Div.).

[18]

Northbridge contends KLMs Survey answer that it did not have any
    contracts with shippers providing for liability exceeding liability in its
    standard Bill of Lading was a material representation. Northbridge claims the
    answer was a misrepresentation because in its contract with Robinson, KLM
    agreed to be liable for the actual or full value of any lost or destroyed
    shipment.

[19]

Northbridge did not produce its insureds standard bill of lading, nor did
    it lead any evidence of its terms. Nonetheless, it put forward two arguments to
    support its misrepresentation defence  one before the application judge, which
    she accepted, and one in this court. I do not agree with either of
    Northbridges arguments. In the absence of KLMs standard bill of lading,
    Northbridge has not met its onus of showing a misrepresentation.

[20]

Before the application judge, Northbridge relied on the Uniform
    Conditions of Carriage  General Freight, which are provided for in Schedule 1
    to O. Reg. 643/05 and deemed included in the agreement between Robinson and KLM
    under s. 191.01(1) of the
Highway Traffic Act
, R.S.O. 1990, c. H.8. Under
    s. 9 of the Schedule, the liability of a carrier such as KLM is limited to the
    lesser of:

·

The
    value of the goods at the place and time of shipment, and

·

$4.41
    per kilogram computed on the total weight of the shipment.

[21]

As the application judge noted, under s. 10 of the Schedule, parties can
    agree on a value for a shipment that exceeds the limited liability in s. 9. KLM
    and Robinson did so in their Agreement for Motor Carrier Contract Services by
    providing that KLM would be liable for the full or actual value of any lost or
    destroyed cargo. Had KLMs liability been limited by s. 9 to $4.41 per
    kilogram, it would have amounted only to $65,953.29.

[22]

In the light of the difference between the full value of the destroyed
    cargo and the value prescribed in s. 9 of the Schedule, the application judge
    found that Northbridges failure to produce KLMs standard bill of lading did
    not defeat its misrepresentation defence. Instead, she concluded at para. 23 of
    her reasons:

[T]he failure of Northbridge to produce the KLM standard bill
    of lading does not preclude Northbridge from making its misrepresentation
    argument. As stated above, regardless of KLMs standard bill of lading,
    liability will be limited by the
Carriage of Goods Regulation
unless
    modified by private contract.

[23]

I take a different view. The Uniform Conditions of Carriage are irrelevant
    in deciding whether KLM made a misrepresentation. Had Northbridge asked on its
    Survey:

Does the applicant have any contracts with shippers that
    stipulate limits of liability that are required to supersede the limited
    liability provided in s. 9 of the Uniform Conditions of Carriage?

And had KLM answered no to that question, its answer
    would have been a misrepresentation. But that is not the question Northbridge
    asked. Northbridge drafted the Survey and must accept the consequences of the
    answers to the questions it posed. The question in issue focused not on the Uniform
    Conditions of Carriage, but on KLMs standard bill of lading. As one was not produced,
    we do not even know whether KLM had a standard bill of lading, or if it did,
    what its terms were.

[24]

We can speculate that KLM did have a standard bill of lading that
    limited its liability to less than the full or actual value of any lost
    shipment. But Northbridge cannot rely on mere speculation to meet its onus to
    show a misrepresentation. Thus, in my opinion, the basis for the application
    judges finding of a misrepresentation cannot be supported. My opinion does not
    turn on the standard of appellate review. Even if the application judges
    finding is a finding of mixed fact and law and therefore entitled to deference,
    I would set it aside on the ground that is an unreasonable finding.

[25]

In this court, Northbridge put forward a different argument to support
    its misrepresentation defence. This argument is set out at paragraphs 45-47 of
    its factum:

45. Further, the appellants argument on this issue is not
    logically sound. Northbridge submits that the matter can also be resolved on a
    simple basis, as follows:

(a)

the Contract provided for
    full liability (i.e. 100% liability) on KLMs part for all shipments tendered
    to KLM by the appellant;

(b)

it follows therefore that
    the degree of liability stipulated by the Contract
must

have
superseded
    all other arrangements that could have been included on KLMs standard bill of
    lading where the degree of liability was less than 100%;

(c)

this is true regardless of
    whether KLMs standard bill of lading provided for a $2 per pound limitation, 50%
    liability, 75% liability, 99% liability, or something else;

(d)

the only case where the
    Contract would NOT supersede the liability provided for in KLMs standard bill
    of lading is where the bill of lading
itself
also provided for 100%
    liability;

(e)

in such a case, of course, both
    the Contract and KLMs standard bill of lading would provide for equal liability;

(f)

thus, KLMs
    response to the Survey question would have been true
if and only if
KLMs
    standard bill of lading contained a provision whereby KLM agreed to be fully
    liable for its shipments. In
all
other cases, KLMs response was
necessarily
    inaccurate
.

46. Northbridge submits that it would be commercially
    unrealistic for KLM to have agreed in its standard bill of lading to assume
    full liability for shipments in the event of a loss.

47. If KLMs standard bill of
    lading had provided for full liability, there would have been no need for the
    Contracts expanded liability provision.

[26]

Although superficially attractive, this argument also requires us to
    assume KLM had a standard bill of lading and to speculate about its terms.
    Presumably Northbridge, as KLMs insurer, was able to produce its insureds
    standard bill of lading if indeed one existed. Its failure to do so undermines
    its misrepresentation defence. In the absence of the very document that was the
    subject of the Survey question in issue, I am not persuaded Northbridge has
    shown KLMs answer to that question was a misrepresentation.

D. Conclusion

[27]

For these reasons, I would allow Robinsons appeal, set aside the order
    of the application judge, and grant Robinson judgment in the amount of its
    judgment against KLM (inclusive of interest and costs). Robinson is entitled to
    the costs of this appeal in the agreed on amount of $10,000 inclusive of
    disbursements and applicable taxes. If the parties cannot agree on the
    disposition of costs before the application judge, they may make brief
    submissions in writing.

Released: May 13, 2016 (J.L.)

John Laskin J.A.

I agree. Janet Simmons J.A.

I agree. Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Campbell v. Bruce (County), 2016 ONCA 371

DATE: 20160517

DOCKET: C59966

Doherty, MacPherson and Miller JJ.A.

BETWEEN

Stephen Campbell, Patti Campbell, and Liam
    Campbell and Jordann Campbell,
by their Litigation Guardian, Patti Campbell

Plaintiffs (Respondents)

and

The Municipal Corporation of the County of Bruce

Defendant (Appellant)

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

Peter W. Kryworuk and Alysia M. Christiaen, for the
    respondents

Heard: April 28, 2016

On appeal from the judgment of Justice M.A. Garson of the
    Superior Court of Justice, dated January 16, 2015, with reasons reported at
    2015 ONSC 230.

MacPherson
    J.A.:

A.

Introduction

[1]

The appellant, the Municipal Corporation of the County of Bruce,
    constructed a public park for people to ride on various trails and obstacles
    with their mountain bikes. The respondent, Stephen Campbell, fell while
    attempting to cross a constructed obstacle near the entrance of the park. He
    fractured his C6 vertebrae and was rendered quadriplegic.

[2]

Following a seven-day trial with seven witnesses, the trial judge found
    the municipality liable for Mr. Campbells injury. The trial judge also found
    that Mr. Campbell was not contributorily negligent with respect to the
    accident.

[3]

The municipality appeals. The appeal requires consideration of the
    concept of negligence as defined in the
Occupiers Liability Act
, R.S.O.
    1990, c. O.2 (the
OLA
). The appeal also raises the issue of
    contributory negligence.

B.

FACTs

(1)

The parties and events

(a)

The Park

[4]

In 2005, the municipality opened the Bruce Peninsula Mountain Bike
    Adventure Park (the Park). The Park consisted of a series of bike trails, as
    well as a skills development area with various wooden obstacles (the Trials
    Area) where riders could learn what to expect on the trails. The Park was open
    to the public with no admission fee and was unsupervised.

[5]

In designing and constructing the Park, the municipality heavily relied on
    the International Mountain Bike Association (the IMBA) for best practices and
    risk management. With respect to the construction of the Trials Area, the
    ground around each obstacle was solid limestone with a thin layer of soil on
    top. The municipality considered and rejected using mulch to soften the ground,
    as it was concerned about creating a false expectation for riders.

[6]

For the trails and obstacles in the Park, the municipality used a
    difficulty rating system similar to that of a ski hill (
i.e.
black
    diamond). Because this type of Park was new to Ontario, the municipality
    automatically increased the difficulty rating for each obstacle in the Trials
    Area by one (the easiest being black diamond).

[7]

The municipality installed signs that cautioned riders: (1) to ride
    within their ability and at their own risk; (2) that helmets are mandatory; and
    (3) to yield to other groups.

[8]

The municipality promoted the Park as a family venue. A promotional
    brochure for the Park contained a warning that mountain biking can be risky and
    that visitors should ride within their own abilities and at their own risk.

[9]

The municipalitys incident analysis and reporting system consisted of
    an email address and 1-800 number for people to self-report. There was no
    mechanism to collect and assess ambulance calls at the Park until after the
    respondents accident. The evidence at trial revealed that there were at least
    seven ambulance calls before the respondents accident, all for riders aged 40
    plus. One of those calls was for Ian Ross, who suffered a broken neck on a
    different, and more difficult, wooden obstacle three months before the
    respondents accident.

[10]

The Trials Area consisted of 10 wooden obstacles. The idea was that
    riders would try these obstacles to familiarize and test themselves for the
    terrain and obstacles they would encounter on the bicycle trails in the Park.

[11]

Two of the wooden obstacles in the Trials Area were called Pee Wee and
    Free Fall. Both were teeter-totter type structures. Free Fall was located
    directly behind Pee Wee so that riders could, but did not have to, try them
    consecutively a few seconds apart.

[12]

Pee Wee was a low teeter-totter structure with little elevation above
    the ground.

[13]

Free Fall was a steeper and higher teeter-totter structure. The rider
    would pedal the bicycle to ascend the wooden plank structure to its pivot point,
    which was 26 inches above the ground. At the pivot point, the teeter-totter
    would dip down and the rider would descend the other side of the plank
    structure until reaching the ground.

(b)

The accident

[14]

Mr. Campbell, his wife Patti, and his two children, Liam (aged 12) and
    Jordann (aged 10), rented a cottage in the municipality for a family holiday in
    August 2008. They saw a tourism brochure about the Park. Mr. Campbell was an
    active and athletic 43-year-old man with extensive mountain bike trail
    experience. He decided that the family would check out the Park.

[15]

The family arrived at the Park on August 6, 2008. They started in the Trials
    Area. While there, Mrs. Campbell fell off Pee Wee but was able to stabilize
    herself on a nearby tree. The family also rode on the trails in the Park. Mr.
    Campbell gave his helmet to his son who had forgotten his helmet. That evening,
    Mr. Campbell drove 30 minutes to Owen Sound and purchased two new helmets.

[16]

The next day, August 7, the Campbell family returned to the Park.
    Everyone wore a helmet. They went to the Trials Area again. Mr. Campbell went
    over Pee Wee successfully.

[17]

Mr. Campbell continued onto Free Fall. He did not have enough speed to
    make it over the pivot point. He started to fall. He tried to control his fall
    by popping a wheelie (staying on the bike and attempting to land it on its
    back wheel) to the right of Free Fall. In doing so, he kept his hands on the
    handlebars. Mr. Campbell went over the handlebars and landed on his head on the
    ground. He broke his neck. Sadly, he became quadriplegic.

(2)

The trial judgment

[18]

The trial proceeded on the issue of liability only. The governing law in
    the case was s. 3 of the
OLA
:

3. (1) An occupier of premises owes a duty to take
    such care as in all the circumstances of the case is reasonable to see that
    persons entering on the premises, and the property brought on the premises by
    those persons are reasonably safe while on the premises.

(2) The duty of care provided for in subsection (1)
    applies whether the danger is caused by the condition of the premises or by an
    activity carried on on the premises.

[19]

The trial judge was satisfied that the municipality had breached the
    duty it owed to Mr. Campbell under s. 3 of the
OLA
to ensure that he
    was reasonably safe while in the Park. He found that the municipality had
    breached its duty in five ways: (1) its failure to post proper warning signs;
    (2) its negligent promotion of the Park; (3) its failure to adequately monitor
    risks and injuries at the Park; (4) its failure to provide an adequate
    progression of qualifiers; and (5) its failure to make the Trials Area a
    low-risk training area.

[20]

The trial judge went on to find that each of the first four breaches of the
    duty were an independent cause of Mr. Campbells injuries. However, for the fifth
    breach, the trial judge found causation was not made out.

[21]

On four other issues, the trial judge found that the municipality did
    not breach its duty of care to Mr. Campbell: (1) its failure to post an
    instruction that a minimum speed was required; (2) its failure to employ an
    attendant at the Park; (3) its failure to obtain an engineering opinion on the
    design of Free Fall; and (4) by permitting the ground near Free Fall to be
    dangerously compacted.

[22]

Finally, the trial judge found that Mr. Campbell was not contributorily negligent
    in deciding to ride on Free Fall or in the manner in which he attempted to
    extricate himself from the situation once he started to fall.

[23]

The municipality appeals on all issues, including the duty and standard
    of care, causation and contributory negligence. The Campbells do not
    cross-appeal any of the conclusions of the trial judge that went against them.

C.

Issues

[24]

The appellant raises five issues:

(1)

Did the trial judge impose an incorrect and overly onerous duty of care?

(2)

Did the trial judge err in assessing the question of inherent risk?

(3)

Did the trial judge err in his analysis of the standard of care?

(4)

Did the trial judge err in his analysis of causation?

(5)

Did the trial judge err in his assessment of contributory negligence?

D.

Analysis

(1)

Duty of care

[25]

The appellant contends that the trial judge was required to assess its
    conduct in light of its duty to take reasonable care as an occupier. According
    to the appellant, the trial judge did not do this; instead his description of
    the appellants duty practically rendered the appellant an insurer and improperly
    focused on the nature of the respondents injury. The appellant points to the
    following passages in the trial judges reasons:

[216]  Given the role of the wooden features structures to
    allow riders to test and assess their level of skill, it is logically
    foreseeable that some riders, particularly novice and beginner, would pass the
    skills testing and others would fail (i.e. fall off the features). In my view,
    it is incumbent on the County to ensure that those who fail the test can do so
    safely.

[224] The County failed  to protect [Stephen Campbell] from
    catastrophic harm.

[26]

I do not accept this submission. The leading case dealing with duty of
    care under the
OLA
is
Waldick v. Malcolm
, [1991] 2 S.C.R.
    456. In that case, Iacobucci J. articulated the purpose of the
OLA
, at
    477:

The goals of the Act are to promote, and indeed, require where
    circumstances warrant, positive action on the part of occupiers to make their
    premises reasonably safe.

[27]

Iacobucci J. also discussed the contents of the duty of care under the
OLA
,
    at 472:

[T]he statutory duty on occupiers is framed quite generally, as
    indeed it must be. That duty is to take reasonable care in the circumstances to
    make the premises safe. That duty does not change but the factors which are
    relevant to an assessment of what constitutes reasonable care will necessarily
    be very specific to each fact situation  thus the proviso "such care as
in all circumstances of the case
is reasonable
".                                                            [Emphasis
    in original.]

[28]

The trial judge specifically cited and applied
Waldick
in his
    reasons for judgment. He considered the knowledge, decisions and actions of the
    appellant with respect to the design, construction and operation of the Trials
    Area of the Park.

[29]

In the context of an extensive discussion of these factors, I do not
    think that the trial judges use of the word ensure in the above passage
    equates to him saying that the municipality became in effect an insurer for
    all activities in the Park. Rather, a fair reading of the passage, in
    conjunction with the rest of the reasons on duty of care, is that ensure
    means take appropriate care.

[30]

Nor do I think that the trial judges use of the words catastrophic
    harm means the trial judge improperly inserted the nature of the potential
    harm to users of the Park into the analysis. In discussing duty of care under
    the
OLA
in
Kennedy v. Waterloo County Board of Education
(1999), 45 O.R. (3d) 1 (C.A.), Feldman J.A. said, at 11-12:

In
Veinot v. Kerr-Addison Mines Ltd.
, [1975] 2 S.C.R.
    311 at p. 317, 51 D.L.R. (3d) 533, Dickson J, speaking for the majority, quoted
    with approval several factors listed by Lord Denning on the issue of whether an
    occupier has taken reasonable care:

The following excerpt from Lord
    Denning's judgment [
Pannett v. McGuinness & Co. Ltd.
, [1972] 3
    W.L.R. 387] aptly expresses in my opinion the more salient points a judge
    should have in mind when considering intrusions upon land:

The long and short of it is that
    you have to take into account all the circumstances of the case and see then
    whether the occupier ought to have done more than he did. (1) You must apply
    your common sense. You must take into account the gravity and likelihood of the
    probable injury. Ultra-hazardous activities require a man to be ultra-cautious
    in carrying them out. The more dangerous the activity, the more he should take
    steps to see that no one is injured by it.

[31]

In my view, the trial judges reasons are consistent with this passage.

(2)

Inherent risk

[32]

The appellant submits that the trial judge was required to assess
    whether the risk that materialized in this case was within the inherent risks
    of the sport of mountain biking, both in general and in the particular use of
    Free Fall.

[33]

According to the appellant, the trial judge correctly recognized the
    principle of inherent risk and the fact that the respondent knew and acknowledged
    an inherent risk. However, the appellant says that the trial judge fell into
    error by using the respondents subjective inability to foresee the actual
    damage he sustained as somehow delineating the scope of inherent risk. The
    faulty reasoning, the appellant submits, is this:

[209] Although [Stephen Campbell] foresaw risk of some injury,
    he did not foresee the severity of the potential injury.

[34]

I am not persuaded by this submission. There is no doubt that the
    respondent, an experienced mountain biker, assumed the risk of riding on the
    bicycle trails in the Park.

[35]

However, the trial judge drew a distinction between the bicycle trails
    and the Trials Area in the Park. He referred to the evidence of Chris La Forest,
    the municipalitys Director of Planning and Economic Development and principal
    designer of the Park. The trial judge pointed out, at para. 133, that Mr. La Forest
    testified that he had attempted Free Fall more than 60 times and fallen off
    many times.

[36]

The trial judge described the respondents experience in this fashion:

[25] He had been trail riding since 1990. He had extensive road
    and trail experience, yet no experience with wooden technical features or
    apparatus (except perhaps riding over a bridge in a swampy trail area).

[37]

The trial judge then concluded:

[193] I was struck by the dual risks associated with Free Fall,
    namely riding too slow and losing momentum or riding too fast and being
    launched off the end of the feature. Balancing on the board was also critical
    to success.

[194] [Chris La Forest] was insistent that users of the park
    needed to self-assess. Yet, I am troubled by how novice riders
or riders with trail experience but not features experience
,
    can self-assess when they may not be aware of all of the skills required to
    successfully manoeuver the feature.

[223] In all of the circumstances of this case, I am satisfied
    that the County has breached its duty to adequately warn [Stephen Campbell] of
    the dangers of Free Fall, that an ordinary person, exercising common sense,
    could not perceive or appreciate. [Emphasis added.]

[38]

I do not see a problem with any of this reasoning. In my view, it
    properly delineated the meaning of inherent risk in this case.

(3)

Standard of care

[39]

The appellant contends that the trial judge did not articulate the
    standard of care to which the municipality was subject. The trial judge referred
    to Free Fall as a hidden or unexpected hazard, but did not spell out the actual
    nature of the hazard. Nor did the trial judge indicate what the municipality
    could have done to avoid liability.

[40]

I disagree. The trial judge clearly identified the nature of the
    problems posed by Free Fall, including: (1) riding too slow and losing momentum;
    (2) riding too fast and being launched off the end of the structure; and (3) failing
    to appreciate that, in the case of a fall on Free Fall, the rider must,
    contrary to ones natural instincts, immediately release ones grip on the bike
    and jump clear of the falling bike.

[41]

On the question of what the appellant could have done differently, the
    trial judge was clear and concise:

[220] There were no instructional signs, no requirements to
    complete an easy trail or Pee Wee on multiple occasions prior to attempting
    Free Fall, no warning of serious injury, and no instruction on how to extricate
    oneself from the feature.

[42]

The appellant also challenges the trial judges four individual findings
    that it breached the reasonable standard of care of an occupier. These four
    breaches are in relation to the municipalitys: (1) failure to post proper
    warning signs; (2) negligent promotion of the Park; (3) failure to adequately
    monitor risks and injuries in the Park; and (4) failure to provide an adequate
    progression of qualifiers in the Trials Area.

[43]

On the warning sign issue, the appellant submits that the trial judge
    did not identify the actual signs the municipality should have posted to meet
    its standard of care.

[44]

I disagree. The trial judge said:

[242] The hazard that [Stephen Campbell] faced was unexpected
    and not readily apparent to [him]. The County could have and should have placed
    warning signs regarding risk of serious injury and the level and type of
    expertise required to ride this feature without serious injury.

[276] A single black diamond is insufficient to identify this
    risk. Unlike on many parts of the trail, a rider has no opportunity to place
    their feet down on the ground if they lose momentum or balance on Free Fall.
    There are no posted instructions on how to dismount, or on whether to maintain
    control of the bike.

[45]

On the promotion of the Park issue, the appellant makes a similar
    complaint; it says that the trial judge did not specify what warning should
    have been in its brochure promoting the Park.

[46]

Again, I disagree. The trial judge said:

[289] The brochure should have contained more detailed warnings
    about the skill level required to use the features as well as the risks of
    injury from being off the ground.

[47]

On the monitoring risks issue, the appellant points to the trial judges
    statement at para. 296: I am not sure what steps would have been taken had the
    County been aware of the Ian Ross accident on the day it occurred. The
    appellant asserts that if a trier of fact cannot ascertain what an appropriate
    standard of care would be, there can be no breach.

[48]

I do not accept this submission. In my view, the appellant misapprehends
    the comment in paragraph 296 by suggesting that it speaks to an inability to
    articulate an appropriate standard of care.

[49]

The reality is that several riders had been injured, including seriously
    injured, on the wooden obstacles in the Trials Area before the appellants
    accident. The trial judge described the appellants knowledge of, and
    non-reaction to, these injuries in this fashion:

[160] [Chris La Forest] agreed there was no formal manual or booklet
    or policy regarding the use or maintenance of the features. Rather, these were
    operational issues addressed on a daily basis.

[161] He also agreed that the incident analysis and reporting
    system consisted of an email address and a 1-800 number for persons to report
    such incidents. There was no box at the park for forms.

[162] There was also no mechanism to collect and assess
    ambulance calls at the park until after the accident.

[163] In reviewing an Ambulance Incident Report for the park,
    he agreed that he was not aware of earlier incidents at the park before the
    accident.

[50]

In my view, all of these points are responsive to the standard of care
    issue and support the conclusion the trial judge reached at paragraph 297:

[297] It is hard to conceive that in a sport where injury is
    very common and falling is almost a certainty at some point in time, that a
    system would not be in place to monitor serious injuries.

[51]

Finally, the appellant asserts that the trial judge did not specify what
    would constitute an adequate progression of obstacles in the Trials Area.

[52]

I am not persuaded by this submission. Pee Wee and Free Fall were very
    close to each other. There was a natural progression from one to the other. In
    his testimony, Mr. La Forest said that Pee Wee and Free Fall were the two
    obstacles most likely to be ridden in tandem. The respondent felt like this
    was the next thing to do as he had done Pee Wee just fine and Free Fall lined
    up behind it and it seemed like the next thing to try (para. 38). The trial
    judge accepted this evidence and concluded:

[307] Suggestions were made by the County that you could turn
    around and ride Pee Wee again and simply by-pass Free Fall by taking the alternate
    paths on either side.

[308] Although these options were available, after carefully
    reviewing the photos of these features, I conclude that they were built in such
    a way that Free Fall was the next logical progression after Pee Wee and that
    coming off of Pee Wee delivered the rider to the start of Free Fall.

(4)

Causation

[53]

The test for causation in a negligence action is the but for test
    the plaintiff must show on a balance of probabilities that but for the
    defendants negligent act, the injury would not have occurred:
Ediger v.
    Johnston
, 2013 SCC 18, [2013] 2 S.C.R. 98, at para. 28;
Clements v.
    Clements
, 2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 8, 13;
Resurfice
    Corp. v. Hanke
, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 21-22.

[54]

The trial judge applied this test and found that the appellant caused
    the respondents injury with respect to the four breaches of the standard of
    care addressed above.

[55]

The appellant challenges all four of these conclusions on causation. The
    appellant submits that the trial judge: (1) assessed causation based on a reasonableness
    standard and not the but-for test; and (2) failed to make actual findings of
    causation. I will consider these challenges but, importantly, I must do so
    under the umbrella of the standard of review enunciated by Rothstein and
    Moldaver JJ. in
Ediger
, at para. 29:

Causation is a factual inquiry (
Clements
, at paras. 8
    and 13). Accordingly, the trial judges causation finding is reviewed for
    palpable and overriding error (
H.L. v. Canada (Attorney General)
, 2005
    SCC 25, [2005] 1 S.C.R. 401, at paras. 53-56).

I also observe, as the appellant acknowledged at the
    hearing, that the appellant can succeed on the appeal only if he demonstrates
    that
none
of the causation conclusions can stand.

[56]

On the warning sign issue, the appellant submits that the respondent had
    to prove that a specific and different outcome would have transpired had different
    signs been posted. However, because the necessary signs were not specified by
    the trial judge and the respondent was not asked about how he would have
    reacted to such additional signage, the appellant submits this could not be
    established.

[57]

I disagree. The trial judge clearly found that the respondents injury
    would not have occurred if more detailed signage had been posted:

[250]  I have little doubt had more detailed signage been in
    place  the decisions made by [Stephen Campbell] would have been different and
    the injuries would not have occurred.

[253] A sign instructing how to reduce or minimize injuries
    when falling would have allowed [Stephen Campbell] to abandon the feature in a
    different manner.

[265] Given that [Stephen Campbell] was at the park primarily
    for the trails, I am satisfied that a more detailed warning sign would have
    impacted [him] and his decision to attempt Free Fall.

[58]

I see no palpable and overriding error in the trial judges findings
    that would warrant appellate intervention.

[59]

On the promotion of the Park issue, the appellant submits that the trial
    judge did not specify how a different warning would have affected the behaviour
    of the respondent. As such, causation was not made out.

[60]

Again, I disagree. The trial judge highlighted the care that the
    respondent and his family took to determine whether to attend the Park:

[173] He and his wife were experienced mountain bikers and
    relied on the promotional brochure, the 1-800 number and conversations with
    tourist representatives in deciding to visit the park.

[287] [Stephen Campbell] and his wife carefully reviewed the
    brochure and even called the 1-800 number.

[288] I am satisfied that like Ian Ross earlier, [Stephen
    Campbell] believed the park was a safe and fun venue for families.

[61]

The trial judge clearly found that the respondents decision to attend
    the park was influenced by the promotion of the park as a family venue.
    Accordingly, it was open to the trial judge to conclude that the respondents
    injuries would not have occurred if the park was promoted more accurately:

[290] In all of the circumstances, I am satisfied that the
    promotion of the park breached the duty of care owed by the County to [Stephen
    Campbell], and but for that breach, the accident and the resultant injury would
    not have occurred.

[62]

On the monitoring risks issue, the appellant submits that the trial
    judge inappropriately associated the Ian Ross incident with the incident
    involving the respondent. The appellant submits there is no basis for finding
    that the municipality would have changed Free Fall in response to an accident
    on a different obstacle.

[63]

In my view, the trial judge was entitled to find that had the
    municipality adequately monitored previous accidents, and been aware of the
    number of accidents at the Park and on Free Fall in particular, actions would
    have been taken that would have prevented the respondents injuries. Given the
    factual nature of the causation inquiry, deference is owed to the trial judges
    conclusion that:

[300] If the County had maintained an effective and complete
    history of injuries and accidents at the park, they would have been in a better
    position to determine whether the wooden features posed a danger, and could
    have taken steps to identify and define the risks of injury or accident by
    users of the park.

[303] I am satisfied that the failure to adequately monitor
    risks at the park breached the duty of care owed by the County to [Stephen
    Campbell], and but for that breach, the accident and the resultant injury would
    not have occurred.

[64]

Finally, on the adequate progression of obstacles issue, the appellant
    submits that there was no basis on which to conclude that moving Free Fall
    farther away from Pee Wee would have prevented the respondent from attempting
    it.

[65]

I do not accept this submission. The trial judge considered the impact
    of having the two obstacles so close together:

[259] They were in tandem. When I examined the photo, it struck
    me that they were built to ride one after the other.

[308] Although the [alternate paths] were available, after
    carefully reviewing the photos of these features, I conclude that they were
    built in such a way that Free Fall was the next logical progression after Pee
    Wee and that coming off of Pee Wee delivered the rider to the start of Free
    Fall.

[66]

Given these findings, I defer to the trial judges conclusion that:

[312] In all of the circumstances, I am satisfied that the
    County has breached its duty of care in failing to have an adequate progression
    of qualifiers, and but for that failure, [Stephen Campbell] would not have
    attempted the feature or sustained the resultant injury.

[67]

In summary, on all four causation points the trial judges analysis is
    far removed from attracting the label palpable and overriding error. The
    trial judge clearly applied the but-for test, and not a standard of
    reasonableness as alleged by the appellant.

(5)

Contributory negligence

[68]

The trial judge held that the respondent was not contributorily
    negligent for the injury he sustained:

[336] In accepting that the risks of Free Fall were not readily
    apparent, I am unable to find fault with [Stephen Campbell] for failing to be
    more capable in his attempts to extricate himself from the emergency situation
    he faced.

[337] I am satisfied that it was the County who created the
    emergency situation which led to the accident and that [Stephen Campbell] cannot
    be expected in the agony of the moment to make a perfect manoeuvre, in this
    case a wheelie, to avoid the accident. The suggestion by the County that [he]
    had ample time to both make an assessment of the situation and decide on a
    course of action is simply not supported by the evidence before me. [Stephen
    Campbell] cannot be criticized or found liable for failing to be more capable
    in his attempt to extricate himself from the emergency situation he faced as a
    result of the actions of the County.

[69]

The trial judges decision on contributory negligence is one of mixed
    fact and law and is entitled to deference, absent a palpable and overriding
    error: see
Waldick
, at 480.

[70]

The appellant challenges the trial judges assessment of contributory
    negligence on three bases.

[71]

First, the appellant asserts that in this passage the trial judge
    focused his inquiry exclusively on the respondents actions in attempting to
    exit Free Fall. The appellant submits that this is too narrow an approach. The
    duty to take reasonable care for ones own safety does not materialize only
    when a situation of peril arises. Rather, the duty extends to the respondents
    decision to try to ride Free Fall.

[72]

I do not accept this submission. Earlier in his reasons relating to
    contributory negligence, the trial judge said:

[334] In finding that the County breached its duty under s.
    3(1) of the
OLA
, I have already concluded that the risks of Free Fall
    were a hazard and not readily apparent. As such, [Stephen Campbell] would have
    lacked foresight of the severe consequences of his behaviour.

[73]

I see no basis for interfering with this factual finding. It explains
    why the trial judge then focused on the respondents thinking and actions once
    he was in peril on Free Fall and not on his prior decision to attempt to ride
    Free Fall.

[74]

Second, the appellant contends that the trial judges conclusion that
    the respondent was not contributorily negligent is inconsistent with his trial
    counsels admission during closing submissions:

THE COURT: So, are you going to give me a percentage breakdown?
    Like, is your breakdown 100/0?

MR. MURRAY: No. I probably should give a range of breakdowns.

THE COURT: Right.

MR. MURRAY: I would suggest pending on the way Your Honour find
    the facts, that at the low end it would be 50 percent; so a 50/50 split.

THE COURT: All right.

MR. MURRAY: And you know, at the higher end I would say
    because there are some elements with respect to Mr. Campbell, you know, always
    be sure under all circumstances that he knew what he was doing and knew how to
    do it  that it would be comparable to the finding in the water slide case; it
    would be an 80/20 split.

THE COURT: So, I guess the issue is  is, you know, how long or
    how  at what point along the risk continuum is he prepared to place himself.

MR. MURRAY: Mm-hmm.

THE COURT: So, clearly its  its not perhaps zero because he
     hes prepared to accept certain risks and

MR. MURRAY: I would concede that.

THE COURT: he  he wouldnt mountain bike if he wasnt
    prepared

MR. MURRAY: Exactly.

THE COURT: to accept certain risks

MR. MURRAY: Yes. Well, thats why I  I guess I put it at, you
    know, from 50/50 to 80/20 as

THE COURT: Right.

MR. MURRAY: the spectrum.

[75]

The appellant contends that in these passages the respondents trial
    counsel explicitly conceded that, at best, his client should obtain an 80/20
    liability split. The respondents position is that the subject matter of this
    discussion is not the apportionment of liability; the discussion relates to a
    different subject, namely, the respondents own thinking, converted to
    percentages, about how much risk he was willing to assume in engaging in
    mountain biking at the Park.

[76]

I think that both interpretations are possible. In the end, I am not
    prepared to say that trial counsels portion of the discussion with the trial
    judge amounts to a formal admission of some liability. I note that in his
    closing submission, the appellants trial counsel did not claim that the
    respondents trial counsels preceding submission amounted to an admission that
    his client was at least 20 per cent responsible for the accident.

[77]

As well, I observe that trial counsel prefaced his remarks with pending
    on the way Your Honour finds the facts. On the findings of fact as ultimately
    made by the trial judge, the respondent did not contribute to the accident.
    There was no carelessness on his part, either in his decision to try to ride
    Free Fall or in his actions to try to prevent a fall once he was in peril on
    Free Fall.

[78]

Third, the appellant submits that the trial judges conclusion on
    contributory negligence is inconsistent with an observation he made very early
    in the judgment:

[4] [Stephen Campbell] overestimated his ability and
    underestimated his skill required to successfully ride this teeter-totter
    feature known as Free Fall. The consequences arising from his fall were
    catastrophic.

[79]

I do not read this passage in the manner suggested by the appellant. In
    my view, the trial judge was simply observing that, as it turned out, the
    respondent did not have the skill to successfully navigate Free Fall. The legal
    analysis relating to the consequences of the accident emerge in the following
    339 paragraphs.

[80]

In summary, I see no palpable and overriding error in the trial judges
    appreciation of the evidence and conclusion on the issue of contributory
    negligence.

E.

Disposition

[81]

I would dismiss the appeal. I would award the respondents their costs of
    the appeal fixed at $25,000, inclusive of disbursements and HST.

Released: May 17, 2016 (D.D.)

J.C. MacPherson J.A.

I agree. Doherty J.A.

I agree. B.W. Miller J.A.


WARNING

THIS IS AN APPEAL UNDER THE

CHILD AND FAMILY SERVICES ACT

AND IS SUBJECT TO S. 45 OF THE ACT WHICH
    PROVIDES:

45(7)  The court may make an order,

(a) excluding a particular media representative
    from all or part of a hearing;

(b) excluding all media representatives from all
    or a part of a hearing; or

(c) prohibiting the publication of a report of the
    hearing or a specified part of the hearing,

where the court is of the opinion that the presence
    of the media representative or representatives or the publication of the
    report, as the case may be, would cause emotional harm to a child who is a
    witness at or a participant in the hearing or is the subject of the proceeding.

45(8)  No person shall publish or make public
    information that has the effect of identifying a child who is a witness at or a
    participant in a hearing or the subject of a proceeding, or the childs parent
    or foster parent or a member of the childs family.

45(9)  The court may make an order prohibiting the
    publication of information that has the effect of identifying a person charged
    with an offence under this Part.

COURT OF APPEAL FOR ONTARIO

CITATION: Childrens Aid Society of Ottawa v. A.V., 2016 ONCA
    361

DATE: 20160512

DOCKET: C60959

Rouleau, Pardu and Benotto JJ.A.

BETWEEN

The Childrens Aid Society of Ottawa

Applicant (Respondent)

and

A.V.

Respondent (Respondent)

and

S.M.

Respondent (Appellant)

AND BETWEEN

A.V.

Applicant (Respondent)

and

S.M.

Respondent (Appellant)

Gordon S. Campbell, for the appellant S.M.

Marie-Hélène Godbout and Yanik S. Guilbault, for the
    respondent A.V.

Tracy Engelking, for the respondent the Childrens Aid
    Society of Ottawa

Jennifer Gallagher, for the Officer of the Childrens
    Lawyer

Heard: May 4, 2016

On appeal from the orders of Justice Marc Labrosse of the
    Superior Court of Justice, dated August 7, 2015.

ENDORSEMENT

[1]

The appellant is the father of two girls, now 11 and 13. He appeals an
    order of the Family Court granting the mother (the respondent A.V.) sole
    custody of the girls with supervised access to him and allowing the Childrens
    Aid Society of Ottawa (the respondent CAS) to withdraw its Protection
    Application. The Office of the Childrens Lawyer (OCL) joins the respondents in
    asking that the appeal be dismissed.

[2]

The appellant and A.V. divorced in 2012. The divorce order provided for
    joint custody with a shared parenting arrangement. Ongoing disputes between the
    parents rendered the arrangement unworkable and CAS became involved on December
    5, 2013. CAS commenced a Protection Application and sought a finding that the
    children were in need of protection because of the conflict between the parents
    and the possible exposure of the girls to parental alienation. CAS initially
    sought an order that the children be placed in the care and custody of both
    parents on the same terms as their joint custody order for six months, subject
    to CAS supervision. The OCL was appointed to represent the children.

[3]

During the course of the protection proceedings, the parties consented
    to an assessment under s. 54 of the
Child and Family Services Act
,
    R.S.O. 1990, c. C.11. The assessment was conducted by Dr. Worenklein, who
    issued a report on March 31, 2014. Dr. Worenkleins opinion was that the
    appellant was alienating the children against their mother and that the
    situation was extremely volatile and high-conflict. He recommended that, in the
    event the alienation persists, the mother be granted full custody with
    supervised access to the appellant.

[4]

The appellant refused to accept Dr. Worenkleins recommendations. In
    response to the report and the appellants reaction, CAS sought to amend the Protection
    Application to place the children in the custody of the mother with supervised
    access to the appellant. The mother then brought a motion to change the final
    divorce order to grant her sole custody. The appellant brought a cross-motion
    for sole custody. A temporary order was made on April 16, 2014 placing the
    children in the custody of the mother pending the hearing of the motion to
    change the custody provisions in the divorce order. CAS sought to withdraw the Protection
    Application on the basis that if the mother was granted sole custody and the
    fathers access was supervised, the children would not be in need of protection.

[5]

Labrosse J. seized himself of both the protection and the motion to
    change actions. He presided over a number of case conferences dealing with
    procedural matters. On August 27, 2014, he ordered that the motion to change,
    the cross-motion, and the CAS withdrawal be argued simultaneously. His
    endorsement further said:

I will render my decision on the Motion to Change and Cross-Motion
    and the CAS will then have the opportunity to proceed with the request to
    withdraw or not. If the CAS does not proceed with the request to withdraw, I
    will render a decision on the Temporary Care and Custody Motion.

[6]

No appeal was taken from this order and the parties proceeded to a
    hearing before Labrosse J. over the course of three days between December, 2014
    and June, 2015.

[7]

Labrosse J. concluded that the divorce order should be varied; the
    mother was to have sole custody and the father was to have supervised access to
    the children. He then determined that the children were not in need of
    protection and allowed CAS to withdraw its Protection Application.

[8]

The appellant raises several grounds of appeal:

·

The
    motions judge erred in finding a material change in circumstances warranting a
    variation of the custody arrangement in the divorce order;

·

The
    motions judge erred in ordering the two actions be argued simultaneously;

·

The
    motions judge erred by not holding a hearing in connection with the CAS
    motion to withdraw pursuant to s. 47(1) of the CFSA and then further erred by failing
    to specifically find that the children were not in need of protection;

·

The
    motions judge violated s. 54(8) of the CFSA by considering the evidence of Dr.
    Worenklein on the motion to change.

ANALYSIS

(1)

Material Change in Circumstances and the Variation of the Order

[9]

The test for varying an order under s. 17 of the
Divorce Act,
R.S.C.
    1985, c. 3 (2nd Supp.) was set out by the Supreme Court of Canada in
Gordon
    v. Goertz
, [1996] 2 S.C.R. 27, at para. 13. The judge must be satisfied
    that: (1) there is a change in the condition, means, needs or circumstances of
    the child and/or the ability of the parents to meet the needs of the child; (2)
    the change must materially affect the child; and (3) the change was not
    foreseen or could not have been reasonably contemplated by the judge who made
    the initial order.

[10]

The motions judge made detailed findings in connection with the
    appellants inability to set aside the parental conflict and meet the needs of
    the children. The change materially affected the children and was not
    contemplated when the joint custody order was made, as it was not reasonably
    foreseeable at the time that the relationship between the parties would reach
    the level of dysfunction demonstrated by the evidence.

[11]

The motions judge then proceeded to do a fresh inquiry into the best
    interests of the children. He concluded that the appellant had embarked on a
    campaign to alienate the children from their mother. The detailed findings of
    fact are grounded in the evidence and do not require appellate intervention.

(2)

The Simultaneous Proceedings

[12]

The August 27, 2014 order to hear the child protection and custody
    proceeding simultaneously was not appealed. Even if it had been, we would
    conclude that it was a proper exercise of the motions judges discretion and
    exactly what is contemplated by the
Family Law Rules,
O. Reg. 114/99
.
The Rules impose a duty on the court to deal with cases justly by
    controlling the process of the case and by dealing with as many aspects of the
    case as possible on the same occasion: r. 2(5)(d) and (f); and r. 12(5).

(3)

The Withdrawal of the CAS Protection Application

[13]

The appellant argues that the motions judge did not hold a full hearing
    pursuant to s. 47(1) of the CFSA prior to allowing CAS to withdraw its
    protection application. Section 47(1) of the CFSA states:

47. (1) Where an application is made
    under subsection 40 (1) or a matter is brought before the court to determine
    whether the child is in need of protection, the court shall hold a hearing to
    determine the issue and make an order under s. 57.

[14]

We reject this submission. The law is clear that a hearing in a child
    protection matter may take many forms, depending upon the circumstances. It may
    proceed on consent, take the form of a motion seeking leave to withdraw, a motion
    for summary judgment, or a trial:
Catholic Childrens Aid Society of
    Metropolitan Toronto v. O. (L.M.)
(1997), 149 D.L.R. (4th) 464 (Ont.
    C.A.);
Children and Family Services for York Region v. J.G.S.
(2004),
    246 D.L.R. (4th) 562 (Ont. S.C.);
Children's Aid Society of
    Hamilton-Wentworth v. K.B.,
2002 CanLII 61224 (Ont. S.C.), at para. 35;
    and
Family Law Rules
, r. 16(2).

[15]

During oral submissions, counsel for the appellant acknowledged that the
    hearing may be on affidavit evidence only but submits that the motions judge
    erred in not allowing cross-examination. The motions judge considered and
    rejected the appellants request, having determined that there were no issues
    that could be advanced by cross-examination. The decision to allow questioning
    is within the discretion of the motions judge:
K.B.,
at para. 35; and
Family
    Law Rules
, r. 16. We note as well that the appellant could have questioned
    witnesses before the hearing and did not do so.

[16]

The appellant further submits that a proper hearing was not held because
    the motions judge never made a finding that the children were not in need of
    protection. He argues that once CAS initiates a protection hearing, the court
    before which the proceeding is brought must make a determination as to whether
    a child is or is not in need of protection.

[17]

Contrary to the appellants submission, the motions judge did make a
    finding that the children were not in need of protection. Under the heading,
    Should the Society be permitted to withdraw its Protection Application? the
    motions judge reviewed the evidence and concluded at para. 115: I am satisfied
    that there are no protection concerns, provided that the Mother has sole
    custody and that the Fathers access continues to be supervised.

(4)

The Motions Judges Use of the Evidence of Dr. Worenklein in Considering
    the Motion to Change

[18]

The court may order an assessment in the course of a child protection
    proceeding pursuant to s. 54(1) of the CFSA. Section 54(8), however, precludes
    the use of the assessment report in any other proceeding except in child
    protection proceedings and other limited circumstances, unless on consent. The
    appellant submits that a new hearing is required because evidence from
    Dr. Worenkleins report was considered by the motions judge when he
    determined the change of custody.

[19]

We disagree with this submission for two reasons. First, the motions
    judge took care to separate the findings made on the Protection Application from
    the motion to change. He highlighted in his reasons the abundance of evidence,
    much of which has been provided by the [appellant], that demonstrated the
    indicia of alienation. He based his conclusion that the appellants attempt to
    alienate the children from their mother and his decision to grant the mother
    sole custody on the evidence before him, including affidavits and audio
    recordings, which largely came from the appellant. In any event, he observed
    that the report was not conclusive on the issue of custody.

[20]

Second, in a lengthy affidavit filed in the custody proceeding, the
    appellant himself put many parts of Dr. Worenkleins report into evidence. The
    appellant was critical of the doctors failure to rule out the abuse allegations
    the appellant had previously made against the mother. The appellant cannot now raise
    the issue that the evidence was inadmissible.

DISPOSITION

[21]

The appeal is dismissed with costs payable by the appellant to the
    respondent A.V. in the amount of $12,500, to the CAS in the amount of $6,000,
    and to the OCL in the amount of $2,000. These costs  totalling $20,500 - are
    inclusive of disbursements and HST.

Paul
    Rouleau J.A.

G.
    Pardu J.A.

M.L. Benotto J.A.