COURT OF APPEAL FOR ONTARIO

CITATION: Ramdath v. George Brown College of Applied Arts and
    Technology, 2015 ONCA 921

DATE: 20151224

DOCKET: C59349

Feldman, Cronk and Huscroft JJ.A.

BETWEEN

Katrina Ramdath, Zsolt Kovessy and Ashish Singh

Plaintiff (Appellants/

Respondents by way of
    cross-appeal)

and

The George Brown College of Applied Arts and
    Technology

Defendant (Respondent/

Appellant by way of
    cross-appeal)

Won J. Kim and Aris Gyamfi, for the
    appellants/respondents by way of cross-appeal

Robert B. Bell, Michael C. Smith and Jonathan Chen, for
    the respondent/appellant by way of cross-appeal

Heard: May 7, 2015

On appeal from the order of Justice Edward P. Belobaba of
    the Superior Court of Justice, dated June 25 and August 8, 2014, with reasons
    reported at 2014 ONSC 3066 and 2014 ONSC 4215.

Feldman J.A.:

Introduction

[1]

This appeal tests the interaction between class actions and consumer
    protection legislation, and the ability to award aggregate damages to a class
    with a consumer protection claim

[2]

The
    appellants are students who enrolled in a post-graduate program in
    International Business Management at George Brown College (GBC) in 2007 and
    2008. They commenced a class action against GBC for negligent
    misrepresentation, breach of contract and unfair practice under the
Consumer
    Protection Act
,
2002
, S.O. 2002, c. 30, Sch. A. The action was based
    on the misleading statement in GBCs course calendar that program graduates
    would have the opportunity to complete three industry designations/certifications
    in addition to the GBC graduate certificate. In fact, students were required to
    complete additional courses, and/or work experience as well as exams at their
    own expense, in order to fulfill the requirements for the industry designations.

[3]

The
    class action has proceeded in stages. First, the class action was certified.
    Then a common issues trial was held where the court found that the course
    calendar statement was a negligent misrepresentation and a breach of the unfair
    practices provision of the
Consumer Protection Act
. That decision was
    appealed to this court and upheld. The next stage was the damages trial. At
    that trial, the court awarded aggregate damages for the statutory cause of
    action, but removed one cohort of students from the certified class. The
    appellants appeal the change to the class composition and the respondent cross-appeals
    the aggregate damages award.

[4]

This
    was the first award of aggregate damages at trial under s. 24 of the
Class
    Proceedings Act
,
1992
, S.O. 1992, c. 6 in an Ontario class
    action, and the propriety of the award is strongly disputed. For the reasons
    set out below, I would uphold the aggregate damages award. I would also restore
    the third cohort of students to the certified class, but refer the issue of their
    damages back to the trial judge.

Facts and judicial history

[5]

The
    named plaintiffs represent three cohorts of students who registered at GBC for
    the 8-month post-graduate program in International Business Management. The
    students began the program in September 2007 (the first cohort), in January
    2008 (the second cohort) and in September 2008 (the third cohort).

[6]

The
    course calendar for the 2007-8 and 2008-9 academic terms contained the
    following description of the program:

The International Business Management post-graduate program
    provides students with the opportunity to complete three industry designations/certifications
    in addition to the George Brown College Graduate Certificate.

[7]

In
    fact, in order to obtain the three industry designations following graduation,
    students were required to take additional courses and/or obtain work experience
    and write exams, all at additional expense.

[8]

The
    trial judge found at the common issues trial that when the students discovered
    this, they were very disappointed. They would have had a much better chance of
    obtaining a job in international business management with the industry
    designations. They said that they could not afford the additional time and
    expense to pursue the accreditations on their own. The evidence of the three
    representative plaintiffs was that they already had post-secondary educational
    accreditations, and they took the program to have the opportunity to complete
    the industry designations.

[9]

Upon
    learning that they would not be receiving the industry designations, students
    in the second cohort made a group complaint to the program advisor at a meeting
    on July 23, 2008. Following the meeting, GBC quickly changed the on-line
    version of the calendar to remove the impugned information. While the revised on-line
    version was effective from July 30, 2008, the hard copy of the calendar was not
    corrected and reprinted until later.

[10]

Students in the
    first and second cohorts also filed a written complaint with the GBC
    administration on August 1, 2008. In response, GBC took the position that the
    calendar was neither inaccurate nor misleading. Nevertheless, GBC proceeded to
    obtain some accommodation in cost from at least one of the industry designating
    bodies for the affected students to be able to obtain their industry
    designations.

[11]

In early October
    2008, the plaintiffs brought a class action against GBC claiming three causes
    of action in relation to the course calendar statement: negligent
    misrepresentation, breach of contract and unfair practice under the
Consumer
    Protection Act
.

[12]

A certification
    hearing was held before Strathy J., as he then was. He certified the action as
    a class proceeding in 2010. The class was defined to include all the students, two-thirds
    of whom were foreign students, who had registered in the program in one of the
    three cohorts covered by the statement of claim. The certification judge
    certified common issues relating to each of the three causes of action but
    declined to certify the proposed common issues on damages: see 2010 ONSC 2019,
    at paras. 114-121.

[13]

The common
    issues trial proceeded before the trial judge in 2012: see 2012 ONSC 6173. The
    evidence consisted only of affidavits and read-ins. The trial judge found that the
    plaintiffs had proved both the statutory unfair practice claim and the common
    elements of the negligent misrepresentation claim.

[14]

At that stage,
    the trial judge made a number of findings of fact and mixed fact and law that
    were necessary to decide the common issues of liability.

[15]

First, he
    decided the meaning of the impugned representation in the course calendar. This
    was important for the damages trial because it determined the extent of what
    was promised and not delivered by GBC.

[16]

Based on an
    analysis of the evidence regarding the full relevant content of the calendar,
    together with the evidence from the students and from the program advisor, the trial
    judge concluded that the impugned representation meant that the students would
    have the opportunity, during the program, to complete all the requirements for
    the industry designations. However, they would still have to pay for and pass
    the industry final exams and pay the applicable annual membership fees. He based
    this conclusion in part on the admission requirements for the program, which
    stated that the tuition fee for the program did not include the cost of
    association memberships or examinations. That suggested that such memberships
    and examinations would have to be taken and paid for separately.

[17]

Second, the
    trial judge determined that the students were consumers within the meaning of
    the
Consumer Protection Act
.

[18]

He then turned
    to the nine common issues that had been certified. In relation to the
Consumer
    Protection Act
claim, which is the only claim relevant to this appeal, the
    trial judge found, first, that GBC had engaged in an unfair practice under s.
    14(1) of the
Consumer Protection Act
by making a false, misleading or
    deceptive representation; and, second, that the class members were entitled to
    a remedy under s. 18 of the
Consumer Protection Act
. In particular, he
    stated at para. 77, tracking the language of s. 18(2):

[77] Because rescission is no longer possible, the class
    members are entitled to recover the amount by which the students payment under
    the agreement with GBC exceeded the value of the Program provided, or to
    recover damages, or both.

[19]

He also observed:
    1) the
Consumer Protection Act
does not require proof of reliance or
    inducement, as long as the students entered into the consumer transaction after
    the unfair practice occurred; and 2) because rescission was no longer possible,
    monetary compensation was the remedy. The quantum of the compensation would be
    determined at the damages trial.

[20]

The common
    issues decision was appealed to this court, which upheld the decision of the
    trial judge: see 2013 ONCA 468. Concerning reliance, this court explained, at
    para. 15:

[W]e do not view the [
Consumer Protection Act
] as
    requiring proof of reliance in order to establish that there has been an unfair
    practice and that there is entitlement to a remedy under the Act. Section 18(1)
    of the [
Consumer Protection Act
] clearly provides that a consumer who
    enters into an agreement after or while a person has engaged in an unfair
    practice is entitled to any remedy that is available in law, including
    damages. Proof of reliance is not a prerequisite.

Despite this clear statement, reliance continued to be
    an issue as the proceeding progressed, including on this appeal.

[21]

The next stage
    was the damages trial, the subject of this appeal. The main issue before the
    trial judge was whether and to what extent the class should be awarded
    aggregate damages under s. 24(1) of the
Class Proceedings Act
. However,
    before conducting that analysis, the trial judge addressed a number of
    preliminary matters that would affect the entitlement to and calculation of
    damages. The findings on some of those issues are part of the subject of this
    appeal and cross-appeal.

[22]

The first issue raised
    by GBC was, again, the role of reliance, this time in the context of proof of
    causation of the damages claimed for an unfair practice under the
Consumer
    Protection Act
. The entitlement to damages under the Act is provided in s.
    18(1) and (2):

18. (1) Any agreement, whether written, oral or implied,
    entered into by a consumer after or while a person has engaged in an unfair
    practice may be rescinded by the consumer and the consumer is entitled to any
    remedy that is available in law, including damages.

(2) A consumer is entitled to recover the amount by which the
    consumers payment under the agreement exceeds the value that the goods or
    services have to the consumer or to recover damages, or both, if rescission of
    the agreement under subsection (1) is not possible,

(a) because the return or restitution of the goods or services
    is no longer possible; or

(b) because rescission would deprive a third party of a right
    in the subject-matter of the agreement that the third party has acquired in
    good faith and for value.

[23]

The trial judge
    reiterated that a student who entered into an agreement with GBC and enrolled
    in the program after the unfair practice occurred is entitled to damages,
    whether or not the student relied on the representation or was induced by it to
    enter into the agreement: In other words, even class members who never read or
    relied on the misrepresentation in the GBC course calendars would still be
    entitled to a damages remedy (para. 16).

[24]

GBCs position
    was that, nevertheless, s. 18(2) did not vitiate the need to establish
    causation in order to prove damages and that causation could only be proved on
    an individual basis, linked back to individual reliance on the
    misrepresentation. This was the theme of GBCs entire position both at the
    damages trial and on this appeal: damages can only be assessed on an individual
    basis and cannot be aggregated.

[25]

Without deciding
    whether proof of causation was necessary, as GBC argued, the trial judge found
    that a sufficient causal connection for the purposes of s. 18(2) had already
    been established and was contained in three findings from his common issues
    decision and from the appeal decision:

1)

It was the opportunity
    to obtain the three industry designations and not the program itself that
    initially attracted the plaintiffs to GBC;

2)

The plaintiffs claim
    they would not have enrolled in the program but for the representation about
    the industry designations. For the representative plaintiffs and for the
    students they represent, the value of the program was the opportunity to obtain
    the three designations in addition to the GBC graduate certificate;

3)

The promise of the three
    industry designations made the program very attractive to prospective students.

[26]

The trial judge added
    that, from a common sense point of view, students applying for an eight month
    graduate course, especially if they are coming from foreign countries, would
    most likely review the program description before applying and paying a
    substantial tuition (para. 19). He concluded that if causation were necessary,
    it had been established for the class.

[27]

He then turned
    to the measure of damages. Both sides had agreed that damages should be
    assessed by the tort measure: putting the students into the position they would
    have been in had the wrong not been committed. The parties also agreed on a
    damages formula to determine the amount of compensation owed to the students:
    direct costs plus indirect costs minus residual value. Direct costs would be
    reasonably foreseeable expenses the students incurred to take the program,
    including tuition and books, plus travel costs for foreign students. Indirect
    costs would include lost income during the course and costs caused by delayed
    entry into the marketplace. The residual value of the program, deducted to
    prevent over-compensation, would be the value of the GBC graduate certificate
    without the three industry designations.

[28]

Finally, before
    turning to the issue of aggregate damages, the trial judge determined two
    issues regarding the composition of the class that had been raised by GBC at
    the common issues trial and deferred to the damages trial.

[29]

The first was
    whether the students who did not complete the course and either dropped out or
    failed should still be included in the class and entitled to damages. The trial
    judge found that they were still victims of the unfair practice and therefore
    still part of the class, but they may have suffered a different quantum of damages
    than students who graduated from the program.

[30]

The second was
    whether the third cohort  the students who began the program in September 2008
     should remain as part of the class. The trial judge found that the program advisor,
    Professor Kohli, had orally advised this cohort at the beginning of the term about
    the correction to the course calendar regarding the opportunity to obtain the
    industry designations. During this window at the start of classes, students
    were able to withdraw from the program and receive a refund of tuition. Therefore,
    the trial judge concluded, the students in the third cohort who continued with
    the program were not victims of the unfair practice and were not entitled to a
    remedy under s. 18(2). It is that finding that is the sole issue on the main
    appeal. I will turn to that issue now.

The appeal: Did the trial judge err
    by excluding the third cohort from the certified class?

[31]

In my view, the
    trial judge made a number of errors of law as well as a palpable and overriding
    error of fact which undermine his analysis of this issue.

[32]

In approaching
    the issue, the trial judge noted that when the certification judge included the
    third cohort in the class, he had assumed that some of the students in the
    third cohort relied on the uncorrected print version of the calendar when they
    applied to the program in the spring and summer of 2008. The trial judge then
    identified his task to be to determine whether that assumption was valid.

[33]

In fact, whether
    the certification judges assumption was valid was irrelevant to the damages
    trial. When the certification judge referred to reliance in his 2010 decision that
    decided the composition of the class, he was considering three claims by the
    plaintiffs. One of those claims was negligent misrepresentation, where
    reasonable reliance is an element of the cause of action:
Queen v. Cognos
    Inc.
, [1993] 1 S.C.R. 87, at p. 110. Following certification, in the
    common issues trial, the trial judge determined, this court agreed, and the
    trial judge restated in the damages decision, that it is not necessary to prove
    reliance in order to establish an unfair practice claim under the
Consumer
    Protection Act
. Therefore, once the plaintiffs elected to pursue only
    their
Consumer Protection Act
claim at the damages trial, reliance on
    the misrepresentation was no longer in issue.

[34]

Despite this, the
    trial judge moved on to discuss the evidence of the third cohorts reliance on
    the misrepresentation. He stated that GBC had corrected its website calendar
before
the third cohort entered into their agreements with GBC and paid their tuition
    for the program that began in September, 2008 (at para. 33; emphasis in
    original).

[35]

This was an
    error. All but four of the students who applied to the program had applied
    while the original website representation was in place. The record discloses
    that many of these students had enrolled and paid tuition before the correction
    to the calendar. Even for the four students who applied after the website
    correction, the printed version of the course calendar still contained the
    misrepresentation when they applied. There is no suggestion in the record that
    any one of the students who commenced the program in September 2008 had not
    entered into an agreement with GBC and made some payment toward tuition.

[36]

In short, all
    students in the third cohort were subject to the unfair practice and entitled
    to a remedy under the Act.

[37]

The trial judge
    next accepted the affidavit evidence given by Professor Kohli that he met with
    the third cohort in the first two weeks of their program, within the 10-day
    course withdrawal period, and orally corrected the requirements to obtain the
    industry designations. Contrary to the appellants submission, he was clearly
    entitled to do so. The trial judge explained why he had rejected Professor
    Kohlis same affidavit evidence at the common issues trial as it applied to a
    similar meeting he claimed to have had with the first two cohorts. The trial
    judge explained that he had previously rejected Professor Kohlis evidence that
    he had orally corrected the error in the course calendar to the first two
    cohorts because there was evidence to the contrary that was supported by events.
    In contrast, the trial judge accepted the professors evidence that he
    corrected the error for the third cohort in September 2008 for a number of
    reasons: first, his statement was uncontradicted by any student who was there; second,
    it made sense that he did so in September following the complaint by the first
    two cohorts and the website correction; and third, there were no complaints about
    the error from any member of the third cohort, as there had been from the other
    two.

[38]

Based on his
    finding that GBC orally corrected the misrepresentation that was still in the
    printed course calendar to the students in the third cohort, the trial judge
    concluded, at para. 37, that the third cohort should be excluded from the
    class:

Having heard this correction, the third cohort students who may
    have applied on the basis of the misrepresentation in the printed course
    calendars had the opportunity to withdraw within the ten-day withdrawal period
    and get a full refund of their tuition. Those that remained in the Program, having
    heard the correction, cannot fairly be described as the victims of an unfair
    practice. The third cohort class members are therefore not entitled to a
    section 18(2) damages remedy.

[39]

In my view, this
    conclusion must be set aside. To the extent the conclusion suggests that the
    students were only subject to an unfair practice because they relied on the
    misrepresentation, it is an error of law to exclude the third cohort from the
    class on that basis. As indicated above, a claim under the
Consumer
    Protection Act
based on an agreement entered into following an unfair
    practice does not require any reliance on or even knowledge of the unfair
    practice: see also
Matoni v. C.B.S. Interactive Multimedia Inc. (Canadian
    Business College)
, 2008 CanLII 1539 (Ont. S.C.) at para. 149, in addition
    to para. 15 of the common issues appeal reasons, para. 79 of the common issues
    trial reasons, and para. 109 of the certification reasons.

[40]

Alternatively,
    if the trial judge is saying that the unfair practice was effectively nullified
    for the third cohort by the professors oral correction, that oral correction came
    too late to have any legal effect. Because the students entered into their
    agreements with GBC after the unfair practice occurred and before the
    correction, their claim under the
Consumer Protection Act
had already
    crystallized.

[41]

Finally, the
    trial judges conclusion suggests that the third cohort had the opportunity to
    withdraw from the course and obtain a full refund during a 10-day withdrawal
    period offered by GBC, and not having done so, they cannot claim to be victims
    of an unfair practice. This raises the issues of rescission and reduction of
    loss.

[42]

Dealing first
    with rescission. The trial judge erred by saying that students could withdraw
    during the 10-day period and obtain a full refund. In fact, foreign students were
    required to forfeit a $500 administration fee upon withdrawal while domestic students
    were subject to a $100 administration fee. More significantly, however, his suggestion
    is not consistent with the damages formula that was agreed upon by the parties
    and accepted by the trial judge. That formula anticipates that a student who is
    entitled to be made whole in respect of the unfair practice will be reimbursed not
    only for tuition, but for other out-of-pocket expenses such as textbooks and
    travel costs.

[43]

Nor would
    withdrawing from the course necessarily be the best way for students to reduce
    their loss at that point in time. Another and arguably better approach would
    have been to proceed with and complete the program, then attempt to obtain one
    or more of the industry designations. In fact, the chart prepared by GBC that
    describes all the cohorts, and that is reproduced by the trial judge at para.
    30 of his reasons, shows that all students in the third cohort who graduated
    from the program went on to obtain at least one of the industry designations. Though
    the trial judge found that the industry designations had little value for
    entry-level job seekers, the fact that these students chose to obtain an
    industry designation suggests that the value of the program to them may be
    considerably higher than to students in the first two cohorts.

[44]

In summary, in
    my view, the trial judge erred in law by finding that the third cohort is
    excluded from the class and not entitled to damages under s. 18(2) of the
Consumer
    Protection Act
. Like the other cohorts, the third cohort entered into
    agreements with GBC following an unfair practice. To the extent that the
    misrepresentation in the course calendar was orally corrected by Professor
    Kohli, that correction, coming when it did, had no legal effect on the
Consumer
    Protection Act
claim.

[45]

Furthermore, a
    consequential effect of excluding the third cohort from the class was that it
    would have prevented them from pursuing damages on an individual basis, which
    the trial judge observed was an option left open in the plaintiffs most recent
    litigation plan (damages reasons, at para. 50).

[46]

Having found
    that the third cohort remains part of the class, I will defer the issue of
    their damages until I have addressed the cross-appeal on the issue of aggregate
    damages.

The cross-appeal: Did the trial
    judge err in his award of aggregate damages?

[47]

I have already
    outlined some of the facts and findings of the trial judge at the damages
    trial. In order to address the issues raised by GBC on the cross-appeal, it is
    necessary to focus on a number of his key findings on aggregate damages.

[48]

The plaintiffs
    entered the damages phase of the proceeding on the basis of a strategic
    decision to proceed only on the
Consumer Protection Act
claim for
    damages under s. 18(2), and to claim aggregate damages based on the unfair
    practice, which did not require proof of reliance by any of the class members.
    GBCs position was, nevertheless, that those damages could still only be
    assessed on an individual basis, and that they were dependent on individual
    causation, mitigation and individual expenditures for the direct costs of
    taking the program.

[49]

The trial judge,
    an experienced class action judge, commenced his reasons by disclosing his
    approach, which was that aggregate damages are essential to the continuing
    viability of the class action and should be more the routine than the
    exception in order to realize the potential for the class action to enhance
    access to justice (at para. 1).

[50]

He referred to
    s. 24(1)(c) of the
Class Proceedings Act
,

which provides:

The court may determine the aggregate or a part of a
    defendants liability to class members and give judgment accordingly where,

(c) the aggregate or a part of the defendants liability to
    some or all class members can reasonably be determined without proof by
    individual class members.

[51]

He pointed out
    that s. 24(1)(c) requires only that all or part of a defendants monetary
    liability be able to be reasonably determined without proof by individual class
    members. The same degree of accuracy as in an ordinary action is not required. Therefore,
    the aggregate damages methodology will be reasonable if some members of the
    class are over-compensated and some are under-compensated, as long as the
    defendants total liability is not over-stated.

[52]

On the key issue
    of the type of evidence a court should require in order to make an aggregate
    assessment, the trial judge suggested the following overarching proposition, at
    para. 46:

The court may award aggregate damages under s. 24(1)(c) of the
    CPA if the evidence put forward by class counsel is sufficiently reliable to
    permit a just determination of all or part of the defendants monetary
    liability without proof by individual class members.

[53]

Because the
    plaintiffs had decided to pursue an aggregate damages claim, the trial judge
    denied GBC the opportunity to examine for discovery the individual members of
    the class, ruling that such discovery was premature. The plaintiffs proposed
    that aggregate damages could be assessed by dividing the class into three
    groups: the international students who graduated from the program; the domestic
    students who graduated from the program; and the students who did not graduate.
    The trial judge accepted that the students who did not graduate were entitled
    to recover the same direct costs as those who completed the program but held that
    if any of them had received any refund of tuition, the amount of the refund would
    be deducted from the award to any such student, in order to prevent double
    recovery.

[54]

Both sides
    presented expert evidence on whether aggregate damages could or should be
    awarded. The plaintiffs expert was Dr. Charette, a labour economist and
    professor at the University of Windsor, whose reports set out a methodology for
    assessing aggregate damages. GBCs expert was Dr. Becker, an American economic consultant,
    who was critical of Dr. Charettes analysis and urged individual assessments.

[55]

GBC moved to
    exclude Dr. Charettes evidence as not meeting the criteria for the admission
    of expert evidence set out in
R. v. Mohan
, [1994] 2 S.C.R. 9, and as
    flawed, unscientific and unreliable. The trial judge found that he did not have
    to decide the motion because he did not rely on any of the impugned analytic
    portions of Dr. Charettes evidence.

[56]

The trial judge
    then turned to the agreed formula to assess damages (direct costs plus foregone
    income and the cost of delayed entry into the workforce  minus residual value) and
    whether the evidence led to prove the components of the formula was
    sufficiently reliable to allow a just determination of GBCs liability without
    proof of individual loss.

[57]

The first
    component of the formula was direct costs, which he defined as the reasonably
    foreseeable out-of-pocket expenses incurred by class members, including tuition
    and books and supplies, along with extraordinary living expenses associated
    with the program and return air fare costs for foreign students. The trial
    judge noted that requiring individual proof was not practical given the passage
    of seven years and the unlikelihood that the students would have retained
    receipts. He then turned to the reliability of the information that was
    presented to the court.

[58]

The trial judge identified
    the following three subcategories where the evidence of quantum was not in
    dispute: 1) application, administration and tuition fees; 2) student
    association fees; and 3) health and medical insurance fees for foreign
    students. He was also able to find sufficiently reliable evidence to
    substantiate the costs of textbooks and supplies and for the costs of air
    travel of foreign students.

[59]

For the textbooks
    and supplies costs, the trial judge estimated an average cost per student of
    $400. To do so, he referred to three indicators: the mid-point of the cost
    range for text books of $900 that was suggested by GBC in its Guide for
    International Students, the fact that Ms. Ramdath had paid $500 for her new
    books and supplies, and the fact that some students purchase used textbooks. As
    GBC offered no evidence on the point and because the amount arrived at was less
    than half the average cost suggested by GBC in its own Guide for International
    Students, the trial judge found it reasonable to fix that cost at $400.

[60]

For the costs of
    air travel for foreign students, the trial judge used a weighted average of the
    round-trip economy fares from the capital cities of the 14 countries of origin
    of the foreign students in the class, based on data taken from Expedia and
    Tripadvisor, two internet travel services. The trial judge noted that GBC
    objected to the accuracy of the data but offered no evidence to the contrary.
    GBC also suggested that some of the foreign students did not return to their
    home countries, but it presented neither any evidence of how their student
    visas could have been changed nor any information as to how many remained in
    Canada.

[61]

The trial judge
    concluded that the evidence for each of these five categories of costs was
    sufficiently reliable to permit a just determination of GBCs liability for
    those costs without the necessity of individualized evidence.

[62]

In contrast, he
    was unable to come to the same conclusion about other direct costs, such as
    living expenses, and about the indirect costs. He rejected the additional
    direct costs claims because the amounts were either not proved or not properly
    associated with enrolment in the program. Concerning indirect costs, the trial
    judge rejected the methodology for assessing foregone income and the cost of
    delayed workplace entry suggested by Dr. Charette, finding it to be based on
    unreliable assumptions that would result in an unjust determination of GBCs aggregate
    liability.

[63]

The last
    component of the agreed damages formula was the deduction of the residual value
    of the program, if it could be reasonably determined on an aggregate basis without
    proof from the individuals in the class. To do that, the trial judge accepted
    and relied on the evidence led by GBC from its witness, Mr. Trevor Stewart, an
    experienced recruiter and job placement specialist.

[64]

Mr. Stewart
    surprised the court when he testified that the three industry designations had
    no value for entry-level job seekers in the trade area.

[65]

Based on that
    evidence, the trial judge concluded that the original premise that he and the
    certification judge had initially accepted -  that the value of the course to
    each student would depend on the students individual career goals and the use
    of the designations for those individual goals - no longer applied. Nor was
    mitigation of loss by seeking the designations at a later date relevant if the
    designations had no value. Rather, the residual value was measurable by the job
    market value of the program alone without the industry designations, which was particularly
    applicable to a course that was intended to lead to an entry-level job.

[66]

GBC argued that
    because the industry designations added no value, the program was worth 100
    percent of its cost even without the opportunity to obtain the designations.

[67]

The trial judge concluded
    that the key point for determining the market value of the program was whether
    the GBC certificate leads to actual jobs in the international business area. He
    rejected the usefulness of the survey evidence that was presented by GBC from
    students who were very content with the course. He also rejected as
    unpersuasive the fact that the program remains oversubscribed without the designations,
    because subscription does not translate into jobs.

[68]

He accepted the
    evidence of GBCs witness, Mr. Stewart, that entry level job applicants are
    measured primarily not by any accreditations or designations they have earned but
    by their personal attributes, their activities and leadership skills. Mr.
    Stewart acknowledged some value to the certificate, as with any educational
    degree or diploma, in demonstrating a commitment to education and the ability
    to actually complete a program. As well, the GBC program provided students with
    a knowledge base and a baseline level of competency.

[69]

Applying this evidence
    to the class, the trial judge observed that 80 percent of students could already
    show commitment to education because they had a university or college degree
    before commencing the GBC program, while those who did not get jobs in the area
    did not benefit from the knowledge base. However, he rejected the plaintiffs
    submission that the program had no measurable market value and therefore no
    residual value, because of the benefit to members of the class for whom this
    was their only diploma and for those who did obtain a job in the field. He
    concluded that the residual value was within a range of 15 to 20 percent of the
    cost of the program, but allowed both parties the opportunity to make further
    written submissions.

[70]

Following
    receipt of those submissions, the trial judge issued an addendum to his reasons:
    see 2014 ONSC 4215. In their supplementary submissions, the plaintiffs
    continued to argue that the residual value of the program was nothing, or at
    most, 10 percent, and that any residual value should be deducted only from the
    class members who did not have a previous degree. GBC maintained its position
    that the residual value of the program was 100 percent.

[71]

After
    considering the further submissions and reassessing the evidence in light of
    those submissions, the trial judge concluded that the residual value of the
    program was not 15 to 20 percent but 10 percent. He observed, at para. 7 of the
    addendum, that this was his best estimate based on the evidence, and that the
    quality of the evidence and the lack of evidence from GBC made the task
    somewhat frustrating.

[72]

However, because
    he wanted to err in favour of GBC, his ultimate finding was that the residual
    value of the program without the three industry designations was about 15%.

Issues raised on the cross-appeal

[73]

GBC raises five issues,
    which I will set out in full and which I will address. However, the overall
    effect of the cross-appeal is to challenge the entire basis on which the trial
    judge proceeded to assess damages on an aggregate basis and to maintain the
    position it has taken throughout, which is that damages can only be assessed on
    an individual basis. As such, I will first address the trial judges general approach
    to the aggregate damages award under the
Consumer Protection Act
,

before
    addressing the individual issues raised by GBC.

[74]

The five issues
    raised by GBC are as follows:

a) The trial judge erred in law by permitting students who
    failed and did not successfully complete the B411 Program to remain members of
    the class.

b) The trial judge erred in law by determining aggregate
    damages based on proof from a select few individual class members. Individual
    evidence could not in law be taken as representative for all class members.

c) The trial judge erred in law by basing the net aggregate
    award on an unfair practice that was transformed from the finding at the common
    issues trial as opportunity to complete some of the requirements of the three
    industry designations to a requirement that the Program was to lead to actual
    jobs in the international business area.

d) The trial judge erred in law by refusing to rule on
    admissibility of the expert testimony of Dr. Charette, finding that such
    testimony was not necessary to the determination of the aggregate damages
    issue, and then in the Judgments relied upon evidence of Dr. Charette in
    determining aggregate damages, while ignoring the expert evidence of Dr.
    Becker.

e) The trial judge erred by eliminating or reversing the plaintiffs
    onus to prove damages caused by the defendant's unfair practice while at the
    same time denying George Brown any right to discovery.

[GBC cross-appeal factum, at para. 25.]

Aggregate Damages

[75]

Section 24(1) of
    the
Class Proceedings Act
is the section that allows the court to assess
    and award aggregate damages where the conditions set out in subsections (a),
    (b) and (c) are met. The section provides:

24. (1) The court may determine the aggregate or a part of a
    defendants liability to class members and give judgment accordingly where,

(a) monetary relief is claimed on behalf of some or all class
    members;

(b) no questions of fact or law other than those relating to
    the assessment of monetary relief remain to be determined in order to establish
    the amount of the defendants monetary liability;

(c) the aggregate or a part of the defendants liability to
    some or all class members can reasonably be determined without proof by
    individual class members.

[76]

I endorse the
    trial judges view that it is desirable to award aggregate damages where the
    criteria under s. 24(1) are met in order to make the class action an effective
    instrument to provide access to justice. I also agree with his focus, at para.
    47, on the legislatures choice of a reasonableness standard for determining
    aggregate liability and with the three criteria he sets out to ensure that both
    sides are treated fairly by the assessment:

1)

whether the
    non-individualized evidence presented by the plaintiff is sufficiently reliable;

2)

whether use of the
    evidence will result in unfairness or injustice to the defendant, such as
    overstatement of its liability: see
Healey v. Lakeridge Health Corp
.,
    2010 ONSC 725, 72 C.C.L.T. (3d) 261, at para. 284, affirmed 2011 ONCA 55, 103 O.R.
    (3d) 401; and

3)

whether the denial of
    an aggregate approach will result in a wrong eluding an effective remedy and
    a denial of access to justice: see
Markson v. MBNA Canada Bank
, 2007
    ONCA 334, 85 O.R. (3d) 321 at para. 42, leave to appeal refused [2007] S.C.C.A.
    No. 346.

[77]

Using those
    criteria to assess the evidence presented, the trial judge analyzed the
    components of an award that would properly compensate each class member for
    enrolling in the program following the unfair practice, and carefully assessed
    which of those components could and which could not be assessed on an aggregate
    basis. His approach was careful and measured, striving to achieve the access to
    justice and efficiency goals of the
Class Proceedings Act
while
    ensuring compliance with s. 24(1).

[78]

Finally, although
    the quantification of damages was not originally certified as a common issue,
    the trial judge was not precluded from invoking the aggregate damages provision
    after finding liability:
Pro-Sys Consultants Ltd. v. Microsoft Corporation
,
    2013 SCC 57, [2013] 3 S.C.R. 477, at para. 134.

Damages as a remedy for a statutory claim under the
Consumer
    Protection Act

(a)

The question before the trial judge

[79]

The specific
    question before the trial judge was whether aggregate damages could be awarded in
    this case as the remedy for an unfair practice under s. 18(2) of the
Consumer
    Protection Act
. It therefore involved the interaction between the
Consumer
    Protection Act
and the
Class Proceedings Act
.

[80]

Section 18(2) of
    the
Consumer Protection Act
describes the remedy that a consumer is
    entitled to after entering into an agreement following an unfair practice,
    where rescission is not possible:

18(2) A consumer is entitled to recover the amount by which the
    consumers payment under the agreement exceeds the value that the goods or
    services have to the consumer or to recover damages, or both, if rescission of
    the agreement under subsection (1) is not possible[.]

[81]

The trial judge
    had already found at the common issues trial that rescission was not possible.

[82]

At the damages
    trial, the parties had agreed that the court should evaluate damages based on
    the tort measure, that is, the award should put the plaintiffs into the
    position they would have been in had the wrong not been committed. However,
    they could not agree on two key related issues:

1)

Even without reliance
    as an element of establishing an unfair practice, is an award of damages
    dependent on a causal connection between each plaintiffs claimed damages and
    the misrepresentation?

2)

In determining the
    amount of damages, does the court have to determine on an individual basis what
    each of the plaintiffs would have done but for the misrepresentation?

[83]

In other words,
    although GBC had agreed that the tort measure of damages should apply, its
    position was that the tort measure would work only if damages were assessed on
    an individual and not an aggregate basis. GBC linked the measure of damages
    suffered by each plaintiff to how much each relied on or was induced by the
    misrepresentation to enter into the agreement.

[84]

The trial judge
    concluded that he could avoid answering both questions. He gave three reasons:

1)

Some leading
    commentators had said that the tort measure was the appropriate one for
    assessing damages for negligent misrepresentation under modern consumer
    protection laws;

2)

Reliance is not
    necessary for entitlement to a remedy for an unfair practice under the
Consumer
    Protection Act
; and

3)

A sufficient
    causal connection had already been established for the purposes of a remedy
    under s. 18(2) of the Act by factual findings he had previously made based on
    evidence from the three representative plaintiffs.

[85]

In particular,
    he had found, extrapolating from the evidence of the representative plaintiffs,
    that
all
class members were attracted to the GBC program not by the
    graduate certificate they would receive, but by the opportunity to obtain the
    three industry designations. As I discuss below, the latter finding was an
    error, but ultimately did not affect the cogency of the result.

(b)

The role of reliance in causation and the measure of damages

[86]

The
Consumer
    Protection Act
came into force in 2005. It replaced the
Business
    Practices Act
, R.S.O. 1990, c. B.18, which was enacted in 1974. The latter
    Act also contained a remedy of rescission and damages for an unfair practice
    where a consumer entered into an agreement following a false, misleading or
    deceptive representation: ss. 2 and 4(1). Unlike under the
Consumer
    Protection Act
, the
Business Practices Act
remedy was only
    available where the consumer was induced to enter into the agreement by the
    misrepresentation.

[87]

That inducement
    requirement was removed from the new Act. A consumer who enters into an
    agreement following a misrepresentation is entitled to rescind the agreement
    and to claim damages with no inquiry into whether the consumer relied on the
    misrepresentation or was induced by it into entering into the agreement.

[88]

Reliance on a
    misrepresentation will not normally be a common issue in a class action, as it
    will depend on the individual history of each consumer: see
e.g.

McKenna
    v. Gammon Gold Inc.
, 2010 ONSC 1591, 88 C.P.C. (6th) 27, at para. 161,
    leave to appeal on this issue refused 2010 ONSC 4068 (Div. Ct.); and
Mouhteros
    v. DeVry Canada Inc.
(1998), 41 O.R. (3d) 63 (Gen. Div.), at pp. 72-73, as
    well as the Supreme Courts reference to the ruling of the certification judge
    on this issue in
Canadian Imperial Bank of Commerce v. Green
, 2015 SCC
    60, at paras. 124-125.
[1]
By removing any requirement for reliance or inducement, common issues that are
    determinative of whether there is liability for a
Consumer Protection Act
claim
    can be certified, as they were in this case.

[89]

The removal of
    the need for inducement or reliance is consistent with and facilitates the use
    of the
Consumer Protection Act
as a basis for class actions. Section 8
    of the
Consumer Protection Act
specifically contemplates class
    proceedings in respect of a consumer agreement and proscribes the ability to
    opt out of that right. The Supreme Court of Canada has recently endorsed the
    use of class actions to achieve the goals of similar legislation in Quebec: see
    generally
Richard v. Time Inc.
, 2012 SCC 8, [2012] 1 S.C.R. 265 and
Bank
    of Montreal v. Marcotte
, 2014 SCC 55, [2014] 2 S.C.R. 725.

[90]

GBC argued, both
    at trial and on appeal, that to claim and be awarded damages under s. 18(2), a
    consumer still needs to establish causation. I agree. However, the necessary
    causal link is the link between the damages and the agreement, i.e. that the
    consumer suffered damages that flowed from entering into an agreement after or
    while an unfair practice was occurring. What is not required is a causal link
    between the actual unfair practice and the damages. That is because damages are
    payable regardless of reliance. To require the causal link suggested by GBC
    would reintroduce the need for reliance or inducement into the remedy for an
    unfair practice. It would therefore be wrong in law.

[91]

In this regard,
    the trial judge made two analytical errors in response to submissions by GBC on
    causation. First, he erred in suggesting that because the three representative
    plaintiffs took the program in order to obtain the industry designations, he
    could attribute the same motivation to all members of the class. A court cannot
    extrapolate from the motivation of one person to a conclusion respecting
    others. As discussed above, proof of reliance must be based on evidence of the
    experience of each individual class member. An attempt to use individual
    evidence of damage as the foundation for an award of aggregate damages was similarly
    disapproved by this court in
Fulawka v. Bank of Nova Scotia
, 2012 ONCA
    443, leave to appeal refused [2012] S.C.C.A. No. 326.

[92]

The trial judge
    also erred by suggesting that causation for the purpose of a damages award
    under s. 18(2) was established because there was group reliance on the
    misrepresentation about the industry designations. As discussed, the right to
    the damages remedy for an unfair practice under the
Consumer Protection Act
arises from entry into the agreement. Damage and compensation for it are based
    on the plaintiffs change in position, not on any reliance on the unfair
    practice. Because the award of aggregate damages was based on entering into the
    agreement and not on reliance, these errors did not affect the outcome.

[93]

To summarize my
    conclusions on this issue, there is no merit to the submission by GBC that the
    trial judge erred by awarding some aggregate damages and by not requiring
    individual proof of reliance in order to quantify and award damages. In a
    statutory claim for an unfair practice under the
Consumer Protection Act
,
    reliance is not a component of the claim.

(c)

Application of the damages principles

[94]

In my view, it
    was open to the trial judge to accept the parties agreement to use the tort
    measure of damage, and also to apply their agreed formula. In his text,
The
    Law of Damages
, referred to by the trial judge, Professor Waddams
    discusses the measure of damages in statutory remedies for misrepresentation,
    including the Ontario
Consumer Protection Act
. He explains that the
    language of s. 18(2) that prescribes the compensation entitlement for a
    plaintiff, together with the availability of

punitive and exemplary
    damages in s. 18(11), give a court complete flexibility to award whatever
    damages would be appropriate at common law including the restitutionary
    measure. Having said that, he would reject using the contractual measure: see
    Steven M. Waddams,
The Law of Damages
, loose-leaf, 2nd ed. (Toronto:
    Canada Law Book, November 2015 release at paras. 5.690 to 5.700).

[95]

The plaintiffs will
    receive compensation for what they paid based on recovery of the direct
    expenses incurred for tuition, books and travel. Deducted from that is the
    value of what they received from GBC, which was the residual value of the
    course measured as a percentage of the direct costs of the program. The agreed-upon
    formula for damages will put the plaintiffs back into the position they were in
    before they entered into the agreement, except for having taken the course and
    paid what it was actually worth.

Other Issues

[96]

I turn now to
    the five specific issues raised by GBC in its factum.

(a)

Students who failed or withdrew

[97]

GBC submits that
    it was an error for the trial judge to permit students who either failed or
    withdrew from the program to remain in the class because they could never have
    obtained the industry designations.

[98]

This argument
    misapprehends the reason the trial judge maintained this group in the class. He
    concluded that they qualified for damages because they entered into their
    agreements with GBC following the unfair practice. Their direct costs were the
    same as those of the other members of the class. However, the trial judge recognized
    that a deduction from their damages of any tuition refunds they received would
    be required to ensure that they were not doubly compensated. I would also
    deduct the residual value of the program. Their failure to complete the program
    and obtain the residual value cannot be attributed to GBC.

(b)

Fulawka

error

[99]

GBC next submits that the trial judge erred in his
    assessment of aggregate damages by relying on the evidence of individual
    plaintiffs and extrapolating from that evidence for the whole group, contrary
    to this courts decision in
Fulawka
at paras. 135-137, 139 and 142. As
    an example, GBC objected to the trial judges use of Ms. Ramdaths evidence
    that she paid $500 for new text books as part of the evidence he used to
    estimate the average cost of textbooks for the class.

[100]

I
    do not agree with this submission. The trial judge looked for reliable
    evidence, in order to reasonably determine components of aggregate damages,
    as required by s. 24(1)(c).  The average textbooks cost from the GBC Guide for
    International Students was $900. The use he made of the evidence from Ms.
    Ramdaths affidavit was to test the cost figure he arrived at. He concluded his
    analysis of the textbooks component by observing that the $400 amount he
    determined was less than half of the amount suggested for the cost of textbooks
    in GBCs Guide for International Students. His reasoning and conclusion were
    reasonable.

[101]

Other
    pieces of evidence to which GBC objects amount to an attack on evidentiary
    decisions made by the trial judge that attract significant deference from this
    court. The trial judge properly instructed himself on the test he had to apply,
    which included that, ultimately, the damages awarded could not amount to an
    overstatement of the defendants liability. There is no basis to now inquire
    into each evidentiary decision he made while applying that test. I would not
    give effect to these objections.

(c)

Residual value methodology

[102]

GBC
    further objects to the method the trial judge used to assess the residual value
    of the program. It argues that the trial judge was required to focus on the
    value of the unfair practice as a component of the value of the program;
    instead, he determined that the residual value of the program should be
    measured based on the ability of its graduates to obtain actual jobs in
    international business.

[103]

The
    problem with this submission is that the trial judge was led onto this path by
    the evidence of GBCs expert, Mr. Stewart. He opined that neither the industry
    designations nor the program certificate itself had any significant value to employers
    looking to fill entry-level positions in the industry. The trial judge had
    found that obtaining such a job was the main purpose for taking the program.

[104]

The
    trial judge was certainly entitled to accept and rely on this evidence. The
    assessment of damages is within the sole province of the trial judge, and attracts
    considerable deference from this court: see
Ksiazek v. Halton (Police
    Services Board)
, 2010 ONCA 341, 267 O.A.C. 58, at para. 16 and
Naylor
    Group Inc. v. Ellis-Don Construction Ltd
., 2001 SCC 58, [2001] 2 S.C.R.
    943, at para. 80. In this case, the trial judges conclusion was based on the
    evidence and was made in accordance with s. 18(2) of the
Consumer
    Protection Act
and s. 24(1) of the
Class Proceedings Act.

[105]

Contrary
    to another submission by GBC, the trial judge was entitled to reject as
    unhelpful for the purpose of valuation, as he did, the subjective evidence of
    some students who had opted out of the class or enrolled in later cohorts, that
    they found the program very valuable. Similarly, he was entitled to give little
    or no weight to the evidence of another GBC expert, Dr. Becker, that there was
    benefit to the course for a student over his or her lifetime, and to focus
    instead on the value of the program in obtaining entry-level jobs upon
    graduation.

[106]

Essentially,
    GBC is objecting on appeal to the trial judges decisions regarding what weight
    to give to the evidence of the witnesses and to the methodology he chose for determining
    the residual value of the program. I note that the trial judge observed a
    number of times that GBC was less than helpful in the presentation of evidence
    that was available to it but that it chose not to present. Before coming to a
    final decision on residual value, in order to ensure fairness, particularly to
    GBC whose program was being valued, the trial judge gave the parties an
    opportunity to make further written submissions, and issued an addendum to his
    reasons on this point.

[107]

In
    my view, the trial judge was entitled to make the evidentiary decisions he did.
    His conclusions are entitled to deference.

(d)

Improper reliance on expert evidence

[108]

GBCs
    next ground of appeal is that the trial judge erred by relying on aspects of
    Dr. Charettes evidence after saying that he would not do so. The trial judge
    stated in his main reasons that, given his approach, he did not have to decide
    on GBCs motion to exclude Dr. Charettes reports: I do not rely on any of the
    impugned analytical portions in the Charette reports or his in-court testimony
    (at para. 13). The clear implication from this statement is that he might rely
    on other parts of the reports and in-court evidence that were not impugned.

[109]

The
    trial judge did refer to Dr. Charette in the subsequent addendum to his reasons
    dealing with the residual value of the program. He was addressing the issue of
    how many graduates of the program had obtained jobs in their field, based on
    survey data presented by GBC, and how many of those were looking for other
    jobs, which the trial judge viewed as an indicator of job dissatisfaction. He
    attributed that dissatisfaction to low salary levels compared to young
    university graduates in Ontario, as disclosed by census data. Dr. Charette had
    opined that the low salary levels could be indicative of a negative impact on
    the earning level of a student with a university degree who then took a college
    diploma program.

[110]

This
    was one observation (together with three others that were not based on Dr.
    Charette) that appeared to contribute to the trial judges conclusion that the
    residual value of the program was lower than he had previously believed, and
    was probably 10 percent of direct costs, not 15 to 20 percent as he had stated
    in his initial reasons. However, he emphasized that the residual value could
    only be a best estimate based on the evidence presented, and again commented on
    the quality of the evidence (or lack thereof) presented by GBC (addendum, at
    para. 7). In order to ensure fairness to GBC, he concluded that the residual
    value was 15 percent of the direct costs of the program.

[111]

The
    trial judge also referred to Dr. Charettes evidence in his initial reasons on
    damages, both in respect of flight costs and on the significance to residual
    value of the programs continued oversubscription, despite not including the
    industry designations.

[112]

I see no error in these three
    references. The trial judge was well aware of his own initial ruling and therefore
    confined his references to what he viewed as the unimpugned portions of Dr.
    Charettes evidence. It is also clear that in each case, he treated Dr.
    Charettes evidence, at most, as confirmatory rather than as the sole basis for
    any finding. For example, in respect of the significance of the
    oversubscription issue, the trial judges reference began, at para. 79: As
    Professor Charette explained, and as all of us understand,

[113]

I would not give effect to this
    ground of appeal.

(e)

Denial of examination for discovery

[114]

The
    fifth alleged error by the trial judge was denying GBC the ability to examine
    each class member for discovery in order to obtain individual evidence on such
    issues as who travelled back home after graduation, what the residual value of
    the program was to each student, the actual expenditures by each for textbooks,
    who tried to mitigate, and who would not have taken the industry exams in any
    event. GBC asserts that the effect of this ruling was to shift the onus of
    proof.

[115]

This
    ground is essentially another attack on the trial judges conclusion that he
    could award aggregate damages based on direct costs minus residual value. To
    the extent that this ground targets the accuracy of the aggregate damages
    award, that factor is addressed in the trial judges formulation by ensuring
    that the defendants overall liability is not overstated, even if some members
    of the class may be over- or under-compensated on individual expenditures.

Conclusion

[116]

I
    would allow the appeal and reinstate the third cohort into the class. I would
    dismiss the cross-appeal and affirm the aggregate damages award to the first
    two cohorts, subject to the deduction of residual value for the students who
    did not complete the program. As the trial judge did not address the application
    of the aggregate damages calculation to the third cohort, based on the
    available evidence about that cohort, including how many of them were able to
    obtain one or more industry designations, I would refer the assessment of
    damages in relation to the third cohort back to the trial judge.

[117]

As
    the appellants were successful on the appeal and substantially successful on
    the cross-appeal, I would award costs fixed at $17,000, inclusive of
    disbursements and HST to the appellants, respondents by cross-appeal.

Released: KNF December 24, 2015

K. Feldman J.A.

I agree. E.A. Cronk J.A.

I agree. Grant Huscroft J.A.

[1]
It should be acknowledged that reliance as a common issue may not be
    impossible. I can imagine a situation, for example, where one of the recitals
    to a consumer agreement states that the consumer has read and relied on a
    previous document, so that the recital itself provides the proof of reliance. See
    for another example
Cannon v. Funds for Canada
, 2012 ONSC 399, at
    para. 351.


COURT OF APPEAL FOR ONTARIO

CITATION: Reisher (Re) 2015 ONCA 929

DATE: 20151231

DOCKET: C59881

Laskin, Hourigan and Pardu JJ.A.

IN THE MATTER OF: JANET REISHER

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

Katherine Stewart, for the respondent Crown

Gavin S. MacKenzie, for the respondent Person in Charge
    of the Centre for Addiction and Mental Health

Heard: August 25, 2015

On appeal against the disposition of the Ontario Review
    Board, dated October 31, 2014, with reasons reported at
Reisher (Re)
,
    [2014] O.R.B.D. No. 2814.

Laskin J.A.:

A.

Introduction

[1]

Janet Reisher appeals the Ontario Review Boards refusal to grant her an
    absolute discharge. The overriding question on this appeal is: Did the Board
    err in finding that Ms. Reisher remains a significant threat to the safety of
    the public?

[2]

In 2002, Ms. Reisher was found not criminally responsible on account of
    mental disorder on charges of carrying a dangerous weapon and assault causing
    bodily harm. She attacked two strangers with a pocket knife, one after another,
    while being driven by paranoid delusions. From 2002 until November 2013, she
    was detained at the Centre for Addiction and Mental Health, often with
    privileges that allowed her to live outside the Hospital. In November 2013 the
    Board granted Ms. Reisher a conditional discharge.

[3]

At her annual review hearing in October 2014, Ms. Reisher sought an
    absolute discharge. The Board refused to order one; instead, it ordered the
    continuation of her conditional discharge. Relying mainly on the evidence of
    Ms. Reishers psychiatrist, Dr. Duff, the Board held, at para. 14:

[T]he accused remains a significant risk to the safety of the
    public.  She has a lengthy history of noncompliance with medication while in
    the community. She has limited insight into her mental illness and the
    relationship between non-compliance with medication and aggression. She lacks a
    concrete plan for follow-up if absolutely discharged.

[4]

Ms. Reisher makes two submissions on appeal. First, she submits that the
    Board erred in two ways in its application of the test for significant threat
    to public safety: it failed to consider whether Ms. Reisher could be supervised
    under the civil mental health system, and it wrongly focused on her historical
    non-compliance with medication, her limited insight into her mental illness,
    and her lack of a concrete plan, instead of asking whether she was likely to
    commit a serious criminal offence if absolutely discharged. Second, Ms. Reisher
    submits that the Boards finding that she remains a significant threat to
    public safety was unreasonable.

[5]

If we were to agree with Ms. Reishers first submission, she would be
    entitled to a new hearing. If we were to agree with her second submission, she
    would be entitled to an absolute discharge.

B.

Background

(a)

Personal circumstances

[6]

Ms. Reisher was 44 years old at the time of the hearing before the
    Board. She was born in the Ukraine and came to Canada in 1991. She completed
    grade 11 and then spent six months at Seneca College, studying cosmetics and
    makeup artistry.

[7]

For some time, Ms. Reisher has lived in her own apartment in a building
    on Bathurst Street in Toronto. Her rent is subsidized by Jewish Family and
    Child Services. According to the Hospital report, she likes the building and
    the neighbourhood. Over the years, Ms. Reisher has had a variety of short-term
    jobs, including waitressing and cleaning private homes. In July 2014, she began
    to volunteer at the Bernard Betel Centre, answering the phone once a week for
    up to two hours.

[8]

While under the Boards jurisdiction, Ms. Reisher has given birth to two
    daughters  the first in February 2009 and the second in September 2010. Ms.
    Reishers mother takes care of the children, but Ms. Reisher visits them
    frequently.

[9]

Ms. Reisher has no history of substance abuse and, apart from her index offences,
    has never been charged with a criminal offence.

(b)

Psychiatric history and the index
    offences

[10]

Ms.
    Reisher has been diagnosed with schizo-affective disorder  bipolar type. She
    has had a long and troubled psychiatric history.

[11]

She
    began seeing a psychiatrist when she was 18. She was hospitalized in her early-
    to mid-twenties for depression and mania. Between 1996 and 2001, she was
    admitted to the North York General Hospital 13 times, both voluntarily and
    involuntarily.

[12]

The
    index offences took place in October 2001. Ms. Reisher first threatened to kill
    a taxi driver, while waiving a four-inch pocket knife. She then fled to a
    nearby apartment building. There, she knocked on the door of a unit occupied by
    a 92-year-old man whom she did not know. When he opened the door, she stabbed
    him twice in the chest and slashed his hand as he was trying to defend himself.

[13]

After
    being found not criminally responsible, Ms. Reisher was detained at the Centre
    for Addiction and Mental Health. When exercising community living privileges,
    she often had to be readmitted to the Hospital. On one occasion, she assaulted
    a member of her treatment team. The following year, she assaulted her
    boyfriends roommate; he refused to press charges.

[14]

However,
    a major change occurred, beginning in May 2011. Since then, Ms. Reisher has
    lived continuously in the community, in her Bathurst Street apartment, and has
    had no major incident requiring her readmission to the Hospital. Nor has she
    engaged in any assaultive behaviour. Dr. Duff attributes this major change to a
    change in Ms. Reishers medication, which I will discuss below.

(c)

Ms. Reishers failure to comply with
    her medication regime

[15]

Ms.
    Reisher has a history of failing to take her required medication. Typically,
    she would fail to do so after she was released from or eloped from the Hospital.
    And, typically, her non-compliance would lead to a rapid deterioration in her
    mental health and to symptoms of paranoia.

[16]

Beginning
    in March 2009, her medication regime was changed. She began taking a bi-weekly
    injectable anti-psychotic medication, which is administered at a clinic. She
    supplemented this long-lasting medication with daily oral tablets, which she
    took at home. Dr. Duff agreed that the injectable medication was a turning
    point in her treatment, as it allowed her to be maintained in the community
    without readmission to the Hospital.

[17]

Nonetheless,
    even during the year leading up to her last Board hearing, at least twice Ms.
    Reisher did not take her oral tablets. And on both occasions she demonstrated
    symptoms of paranoia.

[18]

In
    March 2014, Ms. Reisher told her nurse she was concerned about a male tenant
    living upstairs. She believed that the tenant was getting into her apartment at
    night, stealing things, and injecting her, and she believed she could hear him recording
    his own voice. In response, Ms. Reisher changed the locks to her apartment. Her
    paranoia disappeared when the male tenant moved out of the building. Shortly
    after this episode, a nurse found four oral tablets in Ms. Reishers apartment
    that should not have been there. Ms. Reisher claimed they were extras, but,
    as Dr. Duff explained, the Hospital nurses do not leave extra tablets.

[19]

In
    July 2014, Ms. Reisher told her treatment team she was getting very little
    sleep because of a conflict with her on again, off again boyfriend Camillo. She
    called him an evil, bad man and claimed that the Hospital was forcing her to
    have a relationship with him. A week after this incident, a nurse discovered
    eight extra tablets in her apartment.

(d)

The Boards 2013 Disposition

[20]

At
    Ms. Reishers 2013 annual review, the Hospital sought a continuation of her
    detention order. The Board rejected the Hospitals position and ordered a
    conditional discharge. The Boards reasons, however, emphasized the importance
    of maintaining Ms. Reisher under its jurisdiction.

[21]

The
    Board said that Ms. Reisher needed frequent monitoring to ensure that she was
    complying with her medication regime and that her mental state was stable.
    Absent a Board disposition, the risk of her failing to take her medication would
    be high, and, correspondingly, the risk of her violently reoffending would
    increase.

[22]

Still,
    despite her need for a high level of supervision and her lack of insight into
    her mental illness, the Board concluded that Ms. Reishers risk to public
    safety could be managed under a conditional discharge. The Board noted that, if
    Ms. Reisher did not take her medication and if her mental condition then
    deteriorated, under a conditional discharge the Hospital could still respond
    rapidly in one of two ways: by securing her involuntary admission to a hospital
    under the
Mental Health Act
, R.S.O. 1990, c. M.7; or, as she had
    consented to a condition requiring that she accept the treatment recommended by
    her psychiatrist, by returning her to the Centre for Addiction and Mental
    Health for breach of this condition. The Board concluded that consistent
    compliance with medication is crucial to risk management of Ms. Reisher:
Reisher
    (Re)
, [2013] O.R.B.D. No. 3146, at para. 44.

(e)

Ms. Reishers lack of insight into
    her mental illness and her lack of a concrete plan

[23]

As
    the Board observed in its 2013 disposition, Ms. Reisher continues to have
    limited insight into her mental illness. She claims that she does not get sick
    and refuses to acknowledge that she needs ongoing monitoring. When Dr. Duff
    asked her what she would do about taking her medication if she were granted an
    absolute discharge, she said she might go to a psychiatrist, or perhaps her
    family doctor, once a month.

C.

Analysis

(i)

Did the Board misapply the test for
    significant threat to public safety?

[24]

If
    an NCR accused is not a significant threat to public safety, then, under the
Criminal
    Code
, R.S.C. 1985, c. C-46, the accused is entitled to an absolute
    discharge. In
Winko v. British Columbia (Forensic Psychiatric Institute)
,
    [1999] 2 S.C.R. 625, the Supreme Court of Canada discussed the meaning of a
    significant threat to the safety of the public, at para. 57:

[T]he threat posed must be more than speculative in nature; it
    must be supported by evidence. The threat must also be significant, both in
    the sense that there must be a real risk of physical or psychological harm
    occurring to individuals in the community and in the sense that this potential harm
    must be serious. A miniscule risk of a grave harm will not suffice. Similarly,
    a high risk of trivial harm will not meet the threshold. Finally, the conduct
    or activity creating the harm must be criminal in nature. [Citations omitted.]

[25]

The
    Board can thus only maintain jurisdiction over an NCR accused if the person
    poses a significant risk of committing a serious criminal offence:
Winko
,
    at para. 57.

[26]

Ms.
    Reisher submits that the Board misapplied this test in two ways: first, by
    failing to consider whether she can be managed under the civil mental health
    system; and second, by failing to focus on the test from
Winko
, and
    instead focusing on her history of failing to take her medication, her lack of
    insight into her mental illness, and her lack of a concrete plan if absolutely
    discharged. For the reasons that follow, I do not agree with either branch of
    Ms. Reishers submission.

(a)

Did the Board err by failing to
    consider whether Ms. Reisher could be managed under the civil mental health
    system?

[27]

Ms.
    Reisher submits that the terms of her conditional discharge could be replicated
    by a Community Treatment Order (CTO) under s. 33.1 of the
Mental Health Act
.
    She contends that the Board erred by failing to consider this option. In
    support of her submission she relies on this courts decision in
R. v.
    Stanley
, 2010 ONCA 324, 100 O.R. (3d) 81, where this court substituted an
    absolute discharge for the conditional discharge ordered by the Board on the
    ground the appellant could be managed under a CTO.

[28]

I
    do not accept Ms. Reishers submission for four reasons. First, Ms. Reisher did
    not raise the possibility of a CTO before the Board. She led no evidence in
    support of CTO and she did not ask for one in her submissions. And it is the
    Board, not this court, that should consider whether Ms. Reisher can be managed
    under a CTO.

[29]

Second,
    even though the possibility of a CTO was not expressly raised before the Board,
    I think it is safe to assume the Board implicitly rejected a CTO as an alternative
    to a conditional discharge. The Board is an expert tribunal and is well aware
    of the mechanisms under the
Mental Health Act
. Indeed, in its 2013
    disposition, the Board averted to the possibility of involuntary admission to a
    hospital under the
Mental Health Act
as one way to manage Ms.
    Reishers risk under a conditional discharge.

[30]

Third,
    although, as counsel for the Hospital acknowledged, one could craft a CTO that
    closely replicates the terms of Ms. Reishers conditional discharge, Ms.
    Reisher would have to consent to a CTO.  The Board has no jurisdiction to order
    an absolute discharge and then to require that the accused enter into a CTO.
    The Hospital report and Dr. Duffs evidence before the Board show that Ms.
    Reisher is resistant to monitoring and to any form of compulsion. Thus, it is
    unlikely she would consent to a CTO, and, even if she did, a CTO has to be
    renewed every six months, giving her periodic opportunities to opt out.

[31]

Fourth,
    Ms. Reishers psychiatric history weighs against the appropriateness of a CTO
    for her. When she misses only one or two doses of her required medication, she
    tends to decompensate very quickly. When she experiences symptoms of her
    illness, she can be returned to a secure treatment unit more quickly under the
    terms of a conditional discharge than under any of the
Mental Health Act
provisions.

[32]

Ms.
    Reishers situation differs from that of the appellant in
Stanley
in
    two important ways. First, Mr. Stanley had a track record of consistently complying
    with his medication regime for several years. Second, on his appeal, the
    Hospital led fresh evidence from Mr. Stanleys psychiatrist, who testified that
    he had issued a CTO for Mr. Stanley and that he was satisfied Mr. Stanley would
    adhere to its terms. On the basis of the fresh evidence, this court concluded
    that Mr. Stanley no longer posed a significant threat to the safety of the
    public and it thus ordered that he be discharged absolutely. This sort of
    evidence is lacking in the present case. Although recently Ms. Reisher has done
    much better in taking her medication, Dr. Duff remains concerned Ms. Reisher has
    only done so under Hospital supervision. And we have no evidence from Dr. Duff
    that Ms. Reisher would adhere to a CTO. Rather, the evidence suggests the
    contrary.

[33]

I
    would not give effect to this ground of appeal.

(b)

Did the Board err by failing to focus on the test from
Winko
?

[34]

Ms.
    Reisher submits that, instead of focusing on whether she poses a significant
    risk to commit a serious criminal offence, the Board focused on her history of
    failing to comply with her medication regime, her limited insight into her
    mental illness, and her lack of a concrete plan if absolutely discharged. I do
    not agree with this submission.

[35]

Ms.
    Reishers history of non-compliance, her limited insight, and her lack of a
    concrete plan were all considerations that led the Board to conclude she
    remains a significant threat to public safety.  In reaching this conclusion,
    the Board relied on the evidence of Dr. Duff, who testified about Ms. Reishers
    limited insight and her potential to act violently if freed from Board
    supervision:

I guess you can see in her -- in the history of the index
    offence in particular that she was, that it was violent, obviously serious,
    and, and, and, and, and so shes got the potential to act on delusions and to
    act in a very dramatic and violent way. She continues not to have full insight
    about that and as soon as she becomes paranoid, what insight she has is worse.
    Theres, theres less insight; she gets angrier. And, and if she were not under
    the ORB I, I think that her -- it would become very difficult to follow her in
    a safe manner in, in the community. Shed be a challenge to, to, to care for in
    a safe way.

Shes very defensive. I think, so without the oversight of, of,
    of the ORB I think that probably she would go back to being unstable the way
    she was before and now we know for sure that there is this potential for
    serious violence when shes ill. So I think theres that risk is always there.

[36]

Dr.
    Duff also expressed concern about Ms. Reishers lack of a concrete plan, a
    consideration that is relevant in assessing an accuseds risk to public safety:
    see
Winko
, at para. 61. Dr. Duff testified:

Well, I would be very concerned about what would happen if she
    had an absolute discharge. if she had an absolute discharge what kind of
    follow up would she think was reasonable and, and that I thought she should
    have a team of, at least, of people who could come and visit her; an ACT team
    preferably. And she got very upset with that. So she does not think that she
    really needs any oversight. She doesnt really think shes at any risk of, of
    relapse.

So I, I would be very concerned about, about her ability to
    keep to -- to maintain the monitoring that she needs and to maintain the
    medication that she needs to stay well.

[37]

In
    the light of this evidence from Ms. Reishers psychiatrist, which the Board was
    justified in relying on, I see no error in its application of the test for
    significant threat to public safety. I would therefore not give effect to this
    ground of appeal.

(ii)

Was the Boards finding
    unreasonable?

[38]

A
    review boards finding that an NCR accused is a significant threat to public
    safety is entitled to deference on appeal. An appellate court asks not whether
    the Boards finding was correct, but whether it was reasonable. Ms. Reisher
    submits that the Boards finding was unreasonable. I do not accept her
    submission.

[39]

Although
    the Boards reasons are brief, they reasonably justify its finding that Ms.
    Reisher remained a significant threat to the safety of the public. The evidence
    of Dr. Duff, which I quoted earlier, supports the Boards finding.

[40]

Ms.
    Reisher committed the index offences  serious and violent offences  when she
    experienced paranoid delusions after failing to take her medication. And Dr.
    Duff testified that her paranoia is under the surface and could resurface fairly
    quickly. Yet Ms. Reisher continues to believe she is not at risk to act
    violently and she does not require any monitoring.

[41]

Thus,
    while acknowledging that Ms. Reisher is more stable than she has been in the
    past, the Board was justifiably concerned that, without its supervision, Ms.
    Reisher was at risk of going off her medication, of decompensating, and of
    violent recidivism. The Board summed up its assessment of Ms. Reishers risk as
    follows, at para. 15:

Ms. Reisher must be commended, as the last two years have been
    the most stable under the jurisdiction of the ORB. However, she requires the
    treatment team to ensure that she is compliant with medication, and that she is
    not experiencing paranoia or acting out aggressively. Therefore, the
    Conditional Discharge remains the necessary and appropriate Disposition.

[42]

On
    the evidence before it, the Boards conclusion was reasonable. I would not give
    effect to this ground of appeal.

D.

Conclusion

[43]

The
    Board did not misapply the test for significant threat to the safety of the
    public. Nor was its finding that Ms. Reisher remains a significant threat
    unreasonable. I would therefore dismiss her appeal.

Released: December 31, 2015 (JL)

John
    Laskin J.A.

I
    agree C.W. Hourigan J.A.

I
    agree G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: RREF II BHB IV Portofino, LLC v. Portofino
    Corporation, 2015 ONCA 906

DATE: 20151221

DOCKET: M45402 (C60169)

MacPherson, Sharpe and van Rensburg JJ.A.

BETWEEN

RREF II BHB IV Portofino, LLC

Applicant

and

Portofino Corporation

Respondent

Tony Van Klink, for the appellant, BDO Canada Limited,
    Receiver of Portofino Corporation

Gino Morga, Q.C., for the respondent, Remo Valente Real Estate
    (1990) Limited

David A. Taub, for RREF II BHB IV Portofino, LLC

Heard: December 17, 2015

ENDORSEMENT

[1]

The respondent, Remo Valente Real Estate (1990) Limited (Valente) is
    the plaintiff in a pending civil action. Valente obtained a pre-trial order requiring
    the defendant, Portofino Corporation (Portofino), to post security for its
    claim of oppression and breach of contract. Valente succeeded at trial on the
    oppression claim but that judgment was reversed on appeal and the contract
    claim was remitted for trial. A further order (of Quinn J.) was made in the
    civil action, that the security, consisting of a letter of credit, continue in
    place.

[2]

Before the contract claim was tried, the appellant was appointed by the
    court as Portofinos receiver pursuant to s. 243 of the
Bankruptcy and
    Insolvency Act
, R.S.C. 1985, c. B-3

(the BIA) at the request of
    a secured creditor, Bank of Montreal. The banks security in Portofino was
    assigned to RREF II BHB IV Portofino, LLC. The receivership order expressly provided
    that the civil action was not stayed.

[3]

The appellant receiver then moved for an order to release the security.
    The motion was brought in two proceedings: for advice and directions in the
    receivership proceedings and for the variation of the order of Quinn J. in the
    civil action, so that the letter of credit could be cancelled. The motion
    judge, Carey J., declined to cancel the letter of credit. The appellant seeks
    to appeal that order to this court. The order is a single order, styled in both
    the civil action and the receivership proceedings.

[4]

The appellant contends that it has a right to appeal this interlocutory
    order under sections 193(a) or (c) of the BIA on the basis that the order was
    made in the receivership. However, in July 2015 the appellant brought a motion
    before a single judge of this court in chambers seeking leave to appeal the
    order under s. 193(e) of the BIA. In argument, the appellant asserted that
    it had a right of appeal (without leave) under sections 193(a) and (c), but
    requested leave to appeal, if necessary.

[5]

In deciding the appellants motion, the chambers judge expressed doubt
    as to whether the provisions of the BIA relied upon were applicable, suggesting
    that the proper appeal route was to the Divisional Court. He denied leave to
    appeal under s. 193(e) of the BIA and concluded there was no right to appeal
    under ss. 193(a) and (c). He did not quash the appeal, nor was he asked to
    do so.

[6]

The appellant now submits that, as a single judge, the chambers judge
    had no jurisdiction to make an order that had
the effect
of quashing
    its appeal: see
TFP Investments Inc. (Trustee of) v. Singhal
(1993), 3
    C.B.R. (3d) 225 (Ont. C.A.). Needless to say, that position is inconsistent
    with the appellants approach to the motion before the chambers judge, where
    all aspects of s. 193 were argued. Nevertheless, we agree that a single judge
    has no jurisdiction to quash an appeal and that only a panel of three judges
    can conclusively rule that this court does or does not have jurisdiction.

[7]

However, in our view, the appellants contention that an appeal lies to
    this court is misconceived.

[8]

The order appealed from is interlocutory. Under s. 19(1)(b) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, the appeal of an interlocutory order
    is to the Divisional Court, with leave.

[9]

Section 193 of the BIA authorizes the appeal of both interlocutory and
    final orders to this court, in the circumstances outlined in (a) through (d),
    or with leave of the court, under (e), but only an order made by a bankruptcy
    court judge is subject to the appeal routes in s. 193 of the BIA. Section 183
    provides that a bankruptcy court has jurisdiction in bankruptcy and in other
    proceedings authorized by the BIA.

[10]

The
    appellant says Carey J. was acting in proceedings authorized by the BIA,
    because one of the motions resulting in his order was a motion for directions
    in the receivership. This would mean that, simply by bringing the motion in
    both the civil action and the receivership, the appellant would have open the
    route to appeal to this court under s. 193 of the BIA
.

[11]

We
    disagree. Although the order under appeal was made at the request of a
    receiver, and styled in the receivership as well as the civil action, the
    relief sought was against the plaintiff in the civil action, and involved an
    attempt to vary an order made by another judge in that proceeding. The
    substance of what the receiver was seeking was a variation under rule 59.06 of
    the order of Quinn J., which was an order made in the civil action.

[12]

The
    act of styling the motion in the receivership as well as the civil action did
    not give the appellant automatic access to the appeal routes under the BIA. The
    jurisdiction of the court is governed by the substance of the order made. The
    order dismissed a motion to vary an order made in a civil action, and required
    the continued posting of security in that action. This was not an order in
    proceedings authorized by the BIA. As such, the proper route of appeal is to
    the Divisional Court, with leave.

[13]

As
    this court has no jurisdiction to entertain the appeal, the appeal is quashed.

[14]

The
    appellant receiver shall pay the costs of the respondent Valente, fixed at
    $5,000, inclusive of disbursements and applicable taxes. Although RREF II BHB
    IV Portofino, LLC appeared and supported the appellants position, no costs
    were sought by or from this party.

J.C. MacPherson J.A.

Robert J. Sharpe J.A.

K. van Rensburg J.A


COURT OF APPEAL FOR ONTARIO

CITATION: Skeene (Re), 2015 ONCA 878

DATE: 20151210

DOCKET: C59996

Doherty, Pepall and Tulloch JJ.A.

IN THE MATTER OF KWASI
    SKEENE

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti, for the appellant, Kwasi Skeene

Karen Papadopoulos, for the respondent Crown

Gavin S. MacKenzie, for the Centre for Addiction and
    Mental Health

Janice Blackburn, for the Person in Charge of Waypoint
    Centre for Mental Health Care

Heard: December 7, 2015

On appeal against the disposition of the Ontario Review
    board, dated January 23, 2015.

APPEAL BOOK ENDORSEMENT

[1]

The Board had uncontroverted evidence from the hospital staff (CAMH)
    that the appellant could not be effectively treated any longer at CAMH.  They
    recommended transfer to Waypoint.

[2]

The Boards reasons reveal a full appreciation of the evidence.  We
    cannot say that the Boards determination was unreasonable in the sense
    described in
R. v. Owen
.

[3]

The appeal is dismissed.