COURT OF APPEAL FOR ONTARIO

CITATION: Starz (Re), 2015 ONCA 318

DATE: 20150508

DOCKET: C57133 and C57915

Gillese and Lauwers JJ.A. and Speyer J. (
ad hoc
)

IN THE MATTER OF:  Glen Michael Starz

AN APPEAL UNDER PART XX.1 OF THE
CODE

Glen Michael Starz, appearing in person

Jill R. Presser and Bernadette Saad, appearing as
amicus
    curiae

Janice Blackburn, for the respondent, the Person in
    Charge of the Centre for Addiction and Mental Health

G. Choi, for the respondent, the Attorney General of
    Ontario

Heard: December 15 and 16, 2014

On appeal against the dispositions of the Ontario Review
    Board dated April 17, 2013, and August 27, 2013, with reasons reported at 2013
    CarswellOnt 15549.

Gillese J.A.:

[1]

In
R. v. Conway
, 2010 SCC 22, [2010] 1 S.C.R. 765, the Supreme
    Court held that the Ontario Review Board (the Board) is a court of competent
    jurisdiction that can decide issues under the
Canadian Charter of Rights
    and Freedoms

arising in the course of its proceedings.  A number of
    important and significant questions have arisen as the Board strives to discharge
    its obligation to decide
Charter

issues.  This appeal requires
    the court to address a number of those questions, include the following.

[2]

Can the Board hear a
Charter

application separately from
    the annual disposition review with which it is associated?  If the Board
    renders a decision on a
Charter

application separately from an
    annual review disposition, is there a right of appeal to this court from the
Charter

decision?  Is a delay in hearing an annual disposition review a breach of
    an NCR accused persons s. 7
Charter

rights?   Must the Board
    use an inquisitorial process when it hears a
Charter
application?  What
    remedies are available to the Board in the event that it finds a breach of an
    NCR accused persons
Charter

rights?

OVERVIEW

[3]

Mr. Starz was under the Boards jurisdiction.  In accordance with s. 672.81(1)
    of the
Criminal Code
, R.S.C. 1985, c. C-46, the Board was to have
    heard the annual review of Mr. Starzs 2011 disposition by the end of December
    2012.  However, that hearing did not take place until April of 2013.

[4]

As part of that annual review hearing, Mr. Starz brought a
Charter
application
    in which he alleged that the delay in the hearing breached his s. 7 rights.  He
    sought the remedies of declaratory relief, damages and costs.

[5]

The Board dismissed Mr. Starzs
Charter

application, on
    the basis that there had been no breach of his s. 7 rights.  The Board also
    held that it did not have the jurisdiction to grant the remedies that Mr. Starz
    sought.

[6]

Mr. Starz, with the aid of
amicus curiae
, appeals.  He contends
    that the Board erred in both of these determinations.

[7]

For the reasons that follow, I would dismiss the appeal.

[8]

This appeal was heard together with
Chaudry (Re)
, 2015 ONCA 317.
    In
Chaudry
, the Board came to the opposite conclusion about its
    jurisdiction to award costs as a remedy for a breach of
Charter
rights.

background

The Index Offence and NCR
    Designation

[9]

In July 2008, Glen Michael Starz (the appellant) was riding the
    streetcar when he noticed an elderly woman nearby. According to Mr. Starz, she
    was looking at him in a funny way, which distressed him. He pushed her face into
    the window of the streetcar with a closed fist and then exited the streetcar
    (the index offence). According to the official account of the incident, Mr.
    Starz punched the victim in the throat with a closed fist.

[10]

On
    September 4, 2008, Mr. Starz was found not criminally responsible by reason of
    mental disorder on a charge of assault arising from the index offence.  He was
    diagnosed with schizophrenia, paranoid type, with a differential diagnosis of
    substance-induced psychotic disorder.

[11]

Mr.
    Starz remained under the Boards jurisdiction until October of 2014 when he was
    absolutely discharged.

[12]

The
    Centre for Addiction and Mental Health (CAMH) is the hospital that treated
    and supervised Mr. Starz while he was under the Boards jurisdiction.

The Events Leading to the
    Appeal

[13]

This
    appeal arises from events surrounding Mr. Starzs 2012 annual disposition review.
    For ease of reference, I will refer to such reviews simply as annual reviews.

[14]

The
    chain of events begins with Mr. Starzs 2011 annual review, the hearing of which
    took place on December 14, 2011.  By disposition dated December 22, 2011 (the
    2011 Disposition), Mr. Starz was granted a conditional discharge.  The conditions
    of his discharge required him to reside at a fixed address in Toronto, report to
    CAMH weekly, and abstain from the non-medical use of alcohol and drugs.

[15]

Subsection
    672.81(1) of the
Criminal Code

required the Board to hold an
    annual review within twelve months of making the 2011 Disposition.  It reads as
    follows:

672.81(1)  A Review Board shall hold a hearing not
    later than twelve months after making a disposition and
every twelve months
    thereafter for as long as the disposition remains in force
, to review any
    disposition that it has made in respect of an accused, other than an absolute
    discharge under paragraph 672.54(
a
).

[16]

Thus,
    Mr. Starzs next annual review should have taken place no later than December
    of 2012.  However, it did not take place until April of 2013.

[17]

In
    a disposition dated April 17, 2013 (the 2012 Disposition), the Board again
    ordered that Mr. Starz be conditionally discharged, under similar conditions to
    those in the 2011 Disposition.  One difference in the conditions is that the
    2012 Disposition expressly permitted Mr. Starz to travel outside of Canada for
    up to 12 days, with CAMHs prior consent.  Mr. Starz had that same privilege while
    under the 2011 Disposition, although the 2011 Disposition did not expressly say
    so.

[18]

When
    it became apparent that his 2012 annual review would not be heard within twelve
    months after his 2011 Disposition, Mr. Starz brought an application to the
    Board in which he alleged that the delay violated his rights under s. 7 of the
Charter
.
    He asked that the Board order costs, damages and declaratory relief, pursuant
    to s. 24(1) of the
Charter
.

[19]

Mr.
    Starzs
Charter

application was meant to be heard in conjunction
    with his 2012 annual review but, due to scheduling difficulties, it was not
    heard until the summer of 2013.  In a ruling dated August 27, 2013 (the
Charter
Decision), after finding that Mr. Starzs
Charter

rights had
    not been breached and that it had no jurisdiction to grant the relief that he
    sought, the Board dismissed the application.

[20]

Mr.
    Starz then appealed both the 2012 Disposition and the
Charter

Decision.
    After his 2013 annual review, Mr. Starz abandoned his appeal against the 2012
    Disposition but continued to pursue his appeal against the
Charter
Decision.

[21]

The
    Attorney General raised a question about this courts jurisdiction to hear a
    stand-alone appeal from the
Charter

Decision, that is, to
    hear an appeal from the
Charter

Decision without also hearing
    an appeal from a disposition. In response, Mr. Starz resurrected his appeal
    against the 2012 Disposition for the limited purpose of determining
    jurisdictional issues arising from the Board having heard and decided his annual
    review separately from his
Charter
application.

The Hearing of the
Charter
Application

[22]

As
    previously mentioned, Mr. Starzs 2011 annual review took place in December 2011.
    In November 2012, through his counsel Bernadette Saad, Mr. Starz began asking the
    Board to set a date for his next annual review.

[23]

On
    February 13, 2013, the Board gave Ms. Saad a series of dates from which she
    could choose a hearing date, beginning with March 5, 2013.  She selected March
    5, 2013.

[24]

On
    February 28, 2013, Mr. Starz served his notice of application for relief
    pursuant to ss. 7 and 24(1) of the
Charter
, supported by his affidavit
    sworn February 27, 2013.  This was done after the hearing date of March 5, 2013
    had been selected by Ms. Saad and a notice of hearing had been served on the
    parties advising them of the March 5 hearing date.

[25]

On
    March 1, 2013, Mr. Starz was arrested after he was found in possession of
    alcohol contrary to the terms of his 2011 Disposition.  As a result, his
    meeting with the CAMH psychiatrist responsible for preparing the hospital
    report in advance of his hearing on March 5

was delayed.

[26]

The
    parties appeared before the Board on March 5, 2013.  They all asked that the
    Board adjourn the hearing of the 2012 annual review and the
Charter

application, both of which were meant to be heard that day.  Ms. Saad, on
    behalf of Mr. Starz, asked for an adjournment because CAMH had only delivered
    the hospital report that morning. Counsel for CAMH and the Attorney General
    sought an adjournment because they had not been given the requisite 15 days
    notice of Mr. Starzs
Charter
application.

[27]

The
    Board adjourned Mr. Starzs annual review and his
Charter
application to
    April 4, 2013.  Although annual review hearings are normally scheduled for 1.5
    hours, the whole day was set aside so that both matters could be heard in
    tandem.

[28]

On
    April 4, 2013, the Board began by hearing the annual review.  Mr. Starz argued
    that he should be discharged absolutely. The Board disagreed because it found that
    he remained a significant threat to public safety.  It concluded that the least
    onerous and least restrictive disposition was a continuation of Mr. Starzs conditional
    discharge, on substantially the same terms as the 2011 Disposition.  The Board
    rejected Mr. Starzs request that it remove the prohibition against Mr. Starzs
    use of alcohol.  In the 2012 Disposition, the Board also directed that Mr.
    Starzs next annual review take place before December 31, 2013.

[29]

While
    the Board had intended to hear Mr. Starzs
Charter
application immediately
    following his annual review on April 4, it was unable to because the annual review
    hearing lasted the full day.  The Board canvassed a number of potential dates
    for the
Charter

application to be heard by the same panel and
    found that July 8, 2013 met the schedules of all concerned.  Consequently, it adjourned
    the hearing of the
Charter
application to July 8, 2013.

[30]

As
    previously noted, based on the hearing on April 4, on April 17 the Board made
    the 2012 Disposition.

[31]

Prior
    to the hearing of the
Charter

application on July 8, in
    compliance with a Board direction respecting disclosure of evidence, CAMH
    provided Ms. Saad and the Attorney General with the affidavit of Dr. Padraig Darby
    of CAMH.

[32]

On
    July 8, the same panel of the Board reconvened to hear the
Charter

application.
    The parties disagreed about the admissibility of certain evidence, particularly
    the testimony of Dr. Darby and a series of emails regarding scheduling of the
    hearing date.  Counsel for CAMH advised that she would not call Dr. Darby nor
    tender his affidavit. She advised that Dr. Darby would not attend the
Charter

application hearing unless compelled to do so.

[33]

Counsel
    for Mr. Starz then asked the Board to summons Dr. Darby.  The Board refused,
    saying that Dr. Darbys evidence would not assist in determining the main
    issues before it, namely, whether Mr. Starzs s. 7 rights had been violated and
    whether it had the jurisdiction to order the relief which Mr. Starz sought.

[34]

The
    Board also declined to admit into evidence a number of emails regarding the scheduling
    of Mr. Starzs 2012 annual review. CAMH and the Attorney General had refused to
    consent to their admission, arguing that they had not been given proper notice
    that the appellant sought to put the emails in evidence, and that their
    admission would be prejudicial. The Board found that CAMH and the Attorney
    General would be prejudiced if they were required to meet a new case at such a
    late date.

[35]

Four
    exhibits containing email correspondence relating to the selection of the annual
    review hearing date were admitted on consent.  The Board also had before it the
    appellants affidavit and his
viva voce
testimony, as well as the
    evidence heard on April 4.  Through his evidence, Mr. Starz indicated that he had
    hoped to receive an absolute discharge at his 2012 annual review and so was
    frustrated, stressed and anxious when that annual review was delayed.

Events Following the
Charter
Decision

[36]

The
    2012 Disposition required that Mr. Starzs next annual review hearing be held
    prior to December 31, 2013.  That occurred, with the hearing taking place on
    December 9, 2013.  By disposition dated December 18, 2013, Mr. Starz was
    conditionally discharged on substantially the same conditions as the 2012
    Disposition.

[37]

Following
    Mr. Starzs next annual hearing in October of 2014, Mr. Starz was absolutely
    discharged.

THE BOARDS REASONS FOR THE
CHARTER
DECISION

[38]

March
    5, 2013  the date originally scheduled for Mr. Starzs 2012 annual review
    was 74 days beyond the twelve-month period stipulated in s. 672.81(1).  Because
    on March 5 the annual review hearing was adjourned to April 4, 2013, the actual
    hearing of Mr. Starzs 2012 annual review was 104 days beyond the twelve-month
    period.

[39]

For
    the purposes of this appeal, I will assume that the delay in the hearing of Mr.
    Starzs 2012 annual review was the 104-day period (the Delay).  However, for
    the purposes of the
Charter

application, it appears that the delay
    was only 74 days.  I say this as all parties requested an adjournment on March
    5, 2013, and the adjournment that was granted was due, in part, to the fact
    that Mr. Starz had not given the requisite 15 days notice of his
Charter
application.

[40]

The
    Board found that Mr. Starz had not been deprived of liberty or security of the
    person under s. 7 of the
Charter
for the following reasons.  The 2011
    Disposition remained in effect until the 2012 Disposition was made (see s. 672.63
    of the
Criminal Code
).  The 2011 Disposition granting Mr. Starz a
    conditional discharge was extremely liberal, allowing Mr. Starz to live in
    the community, albeit with the requirement that he meet with his case worker
    once a week and refrain from using alcohol or drugs.

[41]

The
    Board found that the major source of Mr. Starzs discomfort was his inability
    to have a drink of alcohol with his family and friends and his embarrassment
    when he faced questions from his friends about his inability to drink.
    However, it noted, although Mr. Starz had sought the removal of the prohibition
    against consumption of alcohol, both the 2011 and 2012 Dispositions continued
    the prohibition based on the medical evidence that Mr. Starzs use of alcohol
    or substances would lead to decompensation and violent behaviour, thereby
    compromising public safety.

[42]

Regarding
    the security of the person claim, the Board relied on
New Brunswick
    (Minister of Health and Community Services) v. G.(J.)
,
[1999] 3
    S.C.R. 46, and observed that, for a restriction of security of the person to be
    made out, the state action must have a serious and profound effect on the
    persons psychological integrity.  The Board found that Mr. Starzs situation
    did not rise to that level.

[43]

The
    Board also concluded that it did not have the jurisdiction to grant the
    requested
Charter
relief, namely, a declaration that Mr. Starzs rights
    had been violated, an order for damages against CAMH or the Crown, and a costs
    order.

[44]

In
    reaching this conclusion, the Board relied on
Conway
, at para. 85, in
    which the Supreme Court stated that whether a tribunal has the jurisdiction to
    grant particular remedies under s. 24(1) of the
Charter

depends
    on the statutory scheme that governs the tribunal and the scope and nature of
    the Boards statutory mandate and function.

[45]

The
    Board observed that its functions are to: hold initial and annual hearings for
    both NCR accused and accused who are unfit to stand trial; determine issues of
    fitness and significant threat; and determine the least onerous and least
    restrictive dispositions that are consistent with public safety. Its mandate is
    animated by the twin goals of protecting the public and minimizing intrusions
    on the liberty interests of those under its jurisdiction.

[46]

The
    Board concluded that it was ill-suited to deal with questions of damages and
    costs, and that such determinations were not appropriate to its functions and
    powers.  Further, the Board viewed declaratory relief as uniquely within the
    jurisdiction of the courts and observed that it was open to the appellant to
    seek such remedies from the appropriate court.

THE ISSUES

[47]

The
    appellant submits that the Board erred:

·

in finding that there was no breach of his s. 7 rights;

·

in holding that it had no jurisdiction to grant costs, damages,
[1]
or declaratory relief under s. 24(1) of the
Charter
; and

·

by failing to use an inquisitorial approach when it heard his
Charter
application.

PRELIMINARY MATTERS GOING TO JURISDICTION

[48]

Before
    addressing these issues, there are two preliminary matters going to
    jurisdiction which must be decided.  First, because Mr. Starz has been
    absolutely discharged and the Board no longer has jurisdiction over him, is the
    appeal moot?  If so, should this court nonetheless decide the issues raised on
    the appeal?  Second, what are the jurisdictional consequences of the Board
    having bifurcated the hearing of Mr. Starzs annual review from its hearing of
    Mr. Starzs
Charter

application?  Did the Board lose
    jurisdiction to hear the
Charter

application as a result of that
    bifurcation?  Does this court have jurisdiction to hear an appeal from a
    decision flowing from a stand-alone
Charter

application?

Mootness

[49]

The
    appellant takes the position that the appeal is not moot.  He contends that
    even though he is no longer under the Boards jurisdiction, he suffered prejudice
    from the breach of his
Charter

rights and he is entitled to
    have the appeal against the
Charter

Decision heard.  If the
    appeal is moot, relying on
Borowski v. Canada (Attorney General)
, [1989]
    1 S.C.R. 342, he urges this court to exercise its discretion to hear it.

[50]

CAMH
    submits that the appeal is moot but asks that it be heard nonetheless.

[51]

The
    Attorney General also submits that the appeal is moot but is not opposed to the
    appeal being heard.

[52]

Assuming
    that the appeal is moot, in my view, this court should exercise its discretion
    and hear it.  This appeal raises issues of importance not only to the appellant
    but for NCR accused persons generally, and for the Board. This case raises the
    issues of the proper approach to be taken by the Board when deciding
Charter
claims and the
Charter

remedies that it can order.
    Furthermore, because review hearings are heard annually, these issues are
    generally evasive of review.

[53]

In
Mazzei v. British Columbia (Director of Adult Forensic Psychiatric
    Services)
, 2006 SCC 7, [2006] 1 S.C.R. 326, the Supreme Court exercised
    its discretion to hear an appeal from a Board disposition for similar reasons.
    At para. 15 of
Mazzei
, the court explained:

[B]ecause the impugned order is capable of repetition, yet
    evasive of reviewthe appeal should still be heard.  The issue here (the
    Boards powers) remains unresolved and is likely to come before the courts
    again.  Yet it is evasive of review in terms of requiring a live dispute
    between parties in an adversarial context; this is because new orders are
    continuously crafted, and as is the case here, a controversial order may be
    quickly overtaken by subsequent orders.  This Court should therefore exercise
    its discretion (as per
Borowski
) to hear this appeal.

[54]

I
    would conclude by pointing out that any concerns relating to judicial economy are
    well met in this case.  The issues raised on this appeal are likely to arise
    again and they can be determined effectively: the record is sufficient, the appeal
    takes place within an appropriately adversarial context, and the issues have
    been fully developed and argued (see
Borowski
, at pp. 358-63).

The Bifurcated Hearing

[55]

As
    previously explained, because Mr. Starzs 2012 annual review hearing took
    longer than anticipated, his
Charter
application was heard separately
    from it. The annual review hearing took place on April 4, 2013, with the 2012 Disposition
    being released on April 17, 2013, and reasons following on May 3, 2013.  Mr.
    Starzs
Charter
application was heard on July 8, 2013, with the
Charter

Decision and reasons being released on August 27, 2013.

[56]

As
    I will explain, in my view, neither the Board nor this court lost jurisdiction
    as a result of these events.

1.  The Boards Jurisdiction

[57]

Two
    questions have been raised in respect of the Boards jurisdiction.  Did the
    Board have the jurisdiction to hear Mr. Starzs
Charter
application
    separately from his annual review hearing?  Once the Board issued the 2012 Disposition,
    did it lose jurisdiction to hear what had become a stand-alone
Charter
application?

[58]

In
    my view, the Board did not hear the
Charter

application
    separately from Mr. Starzs 2012 annual review hearing.  Rather, the correct
    characterization for what transpired is that Mr. Starzs 2012 annual review
    hearing took place over the course of two days, April 4, 2013 and July 8, 2013,
    with the second of those two days being devoted to hearing oral argument on the
Charter

application.  Thus, the
Charter

Decision
    is a part of the disposition flowing from Mr. Starzs 2012 annual review.  Accordingly,
    the Board did not hear the
Charter

application as a stand-alone
    matter and it had jurisdiction to decide it, despite having already issued the
    2012 Disposition.

[59]

The
    Board is a court of competent jurisdiction that is entitled to decide
Charter

issues that arise in the course of its proceedings:
Conway
, at
    para. 84.  In the present case, Mr. Starz brought his
Charter

application
    in the course of his annual review.  The Board decided the
Charter

application
    as part of its statutory power to conduct annual review hearings and render
    dispositions, pursuant to Part XX.1 of the
Criminal Code
.  Thus, in my
    view, from a legal perspective the
Charter

application was part
    of the 2012 annual review.

[60]

The
    same is true from a factual perspective.  A review of the sequence of events
    bears out that the
Charter

application was part of Mr. Starzs 2012
    annual review.

[61]

Ms.
    Saad selected March 5, 2013 as the date for Mr. Starzs 2012 annual review
    hearing.  On February 28, 2013, she served the
Charter

application
    documents, in which she asked that the application be heard with Mr. Starzs 2012
    annual review.  The
Charter

application was made returnable the
    same date as the annual review, namely, March 5.

[62]

The
    same panel of the Board remained seized throughout Mr. Starzs 2012 annual
    review hearing.  And when that panel decided the
Charter

application,
    it took into consideration evidence that it had heard during the first day of the
    annual review.

[63]

I
    do not accept that because the Board issued the 2012 Disposition prior to hearing
    the
Charter
application, it lost jurisdiction over the latter.  The
Charter

application was brought and decided as part of Mr. Starzs 2012 annual
    review hearing.

[64]

I
    would go further and commend the Board for giving priority to the annual review
    part of the hearing and for issuing the 2012 Disposition as promptly as
    possible.  Had the Board waited until it could release the 2012 Disposition and
    the
Charter

Decision simultaneously, the appellant would have
    had to wait an additional four months to receive his disposition.  That disposition
    relaxed his conditions, albeit minimally.  Thus, Mr. Starz was not prejudiced
    by the bifurcation of the hearing  he benefitted from it.

[65]

Regardless,
    however, of whether a disposition increases or relaxes the liberty interests of
    the accused person, it is important that dispositions be rendered in as timely
    a fashion as possible.  As this court observed in
Saikaley (Re)
, 2012
    ONCA 92, 109 O.R. (3d) 262, at para. 72, [a]ll institutions responsible for
    the vulnerable community of detained NCR patientsare obliged to ensure that
    the hearings to which patients are entitled are conducted and a decision is
    rendered as expeditiously as is practicable. Each disposition provides the
    Board with the opportunity to meet its mandate of protecting the public while maximizing
    the NCR accused persons liberty:
Winko v. British Columbia (Forensic
    Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para. 44.  The Board is
    required by s. 672.81(1) to review dispositions every twelve months.  The Board
    should strive to meet that mandate as closely as possible to the legislated
    twelve-month period.  By giving the 2012 Disposition promptly  and not waiting
    until it could also give its decision on Mr. Starzs
Charter
application
     the Board did precisely that.

[66]

In
    short, in my view, the Board acted properly in hearing the annual review first
    and in issuing its disposition promptly.  This did not cause the Board to lose
    jurisdiction to hear the
Charter
application associated with that annual
    review.

2.  This Courts Jurisdiction

[67]

The
    jurisdiction of this court to hear appeals in matters involving mental disorder
    comes from s. 672.72(1) in Part XX.1 of the
Criminal Code
.  Subsection
    672.72(1) permits a party to appeal to this court against a disposition made
    by the Board.
[2]
Section 672.72(1) reads as follows:

Any party may appeal against a disposition made by a
    court or a Review Board, or a placement decision made by a Review Board, to the
    court of appeal of the province where the disposition or placement decision was
    made on any ground of appeal that raises a question of law or fact alone or of
    mixed law and fact.

[68]

As
    I have just explained, Mr. Starzs 2012 annual review hearing consisted of two
    parts.  The first part led to the 2012 Disposition, in which the Board made a
    disposition that ensured the conditions imposed on Mr. Starz were the least
    onerous and least restrictive consistent with public safety.  The second part
    of the annual review hearing led to the
Charter

Decision, in
    which the Board ruled on the
Charter

application which Mr.
    Starz had brought as part of his annual review.

[69]

On
    this reasoning, the
Charter

Decision is a part of the disposition
    flowing from Mr. Starzs 2012 annual review hearing.  As we have seen, s.
    672.72(1) gives this court the jurisdiction to hear an appeal from such a
    disposition.  Accordingly, it has the jurisdiction to hear an appeal from the
Charter

Decision.

[70]

I
    note that my conclusion is consistent with this courts existing practice. In
Conway
    (Re)
, 2012 ONCA 519, 111 O.R. (3d) 605, the NCR accused person brought a
Charter
application in the course of a Board hearing that included his annual review, a
    restriction of liberties hearing, and a review of a prior disposition. The
    Board issued a new disposition and dismissed the
Charter
application. On
    appeal, this court reviewed the Boards
Charter
decision and dismissed
    the appeal.

DID THE BOARD
    ERR IN FINDING THAT MR. STARZS SECTION 7 RIGHTS HAD NOT BEEN BREACHED?

The Appellants Position

[71]

The
    appellant submits that the Board erred in finding that the Delay did not breach
    his s. 7
Charter

rights.  He contends that the liberty interest
    protected by s. 7 is engaged by the mere possibility of imprisonment
    detention need not be mandatory.  He says that whether a particular delay
    triggers s. 7 must be determined in light of the context and circumstances of
    an individual case.

[72]

The
    appellant also submits that the Board failed to consider his actual deprivation
    of liberty.  He says the Delay prolonged the time during which he was subject
    to the risk of detention in hospital or jail for violating the terms of the
    conditional discharge contained in the 2011 Disposition.  Furthermore, during
    the Delay, the appellant was required to live under the more restrictive terms
    of the 2011 Disposition.  The 2012 Disposition, while still a conditional
    discharge, increased his autonomy because it lessened his reporting
    requirements and provided that he could travel outside of Canada for up to 12
    days, with CAMHs prior consent.  The Delay caused him to lose that increased
    autonomy for 104 days.  As well, during the Delay he lost the opportunity to be
    absolutely discharged.

[73]

The
    appellant further argues that the Board erred by failing to consider the deprivation
    of security of his person, in the form of the impact of the Delay on his psychological
    integrity.

[74]

Finally,
    the appellant says, it is a principle of fundamental justice that the liberty and
    security of an NCR accused person be impaired as little as possible while still
    ensuring the protection of the public.  Therefore, the deprivation of his
    liberty and security interests caused by the Delay offended the principles of
    fundamental justice.

Analysis

[75]

I
    see no error in the Boards finding that the Delay did not violate the appellants
    s. 7 rights.

[76]

Not
    every delay in holding an annual review hearing within the statutory timeline will
    result in a finding that the NCR accused persons s. 7
Charter

rights
    have been breached.  To establish a violation of s. 7, the claimant must first show
    that the impugned state conduct interfered with or deprived him or her of life,
    liberty or security of the person.  The claimant must then show that the
    deprivation was not in accordance with the principles of fundamental justice:
Carter
    v. Canada (Attorney General)
, 2015 SCC 5, 17 C.R. (7th) 1, at para. 55.
    If the claimant proves a violation of s. 7, the state is required to prove
    under s. 1 of the
Charter
that the deprivation can be demonstrably
    justified in a free and democratic society:
Carter
, at para. 94.

[77]

In
    the Board context, the NCR accused persons liberty interest is impacted by
    more than just the choice among the three primary dispositions, namely, an
    absolute discharge, a conditional discharge, and a hospital detention.  A
    variation in the conditions of a conditional discharge can have serious
    ramifications for his or her liberty interest:
Penetanguishene Mental
    Health Centre v. Ontario (Attorney General)
, 2004 SCC 20, [2004] 1 S.C.R.
    498, at para. 24.  Accordingly, where the Board imposes conditions on an NCR
    accused person as part of a conditional discharge, the package of conditions,
    taken as a whole, must be the least onerous and least restrictive conditions
    consistent with public safety, the accuseds mental condition and other needs,
    and his or her eventual reintegration into society:
Penetanguishene
,
    at paras. 3, 56, 71.  The least onerous and least restrictive standard does not
    violate s. 7 because it ensures that the NCR accuseds liberty is trammelled no
    more than necessary to protect public safety:
Winko
, at para. 71.

[78]

It
    was the appellants burden to establish that the Delay led to a breach of his
    s. 7 rights.  That is, the appellants burden was to prove that the Delay
    deprived him of liberty or security of the person in a manner that did not
    respect the principles of fundamental justice.  He failed to discharge that
    burden.

[79]

I
    will first consider whether the Delay engaged the appellants liberty interest
    under s. 7.  The appellant says his liberty interest was engaged because,
    during the Delay, he lived under more restrictive conditions than were
    determined necessary under the 2012 Disposition.  During the Delay, the 2011
    Disposition continued in force: s. 672.63.  The conditions in the 2012 Disposition
    differed from those in the 2011 Disposition in three ways:

1.  The 2011
    Disposition required the appellant to report to the Hospital not less than once
    per week.

The 2012 Disposition
    required the appellant to report to the Hospital not less than once every two
    weeks.

2.  The 2011 Disposition
    required the appellant to notify the Board within 24 hours of any change of
    address or telephone number.  In place of this condition, the 2012 Disposition permitted
    the appellant to travel outside of Canada for up to 12 days, with the
    Hospitals consent.

However, as the Boards
    reasons for the 2012 Disposition indicate, the appellant had already been free
    to travel outside of Canada under the 2011 Disposition and the inclusion of
    this condition was to simply clarify that.

3.  The 2011 Disposition
    required the Hospital to notify the Board and the police if Mr. Starz
    contravened its terms and if he were arrested for a breach or anticipated
    breach, he was to be delivered to the Hospital.

The 2012 Disposition did not
    include this condition.

[80]

These
    changes in conditions in the 2012 Disposition do not, in themselves, establish
    that the Delay resulted in a deprivation of liberty under s. 7 of the
Charter
.
     Consider, for instance,
Cunningham v. Canada
, [1993] 2 S.C.R. 143,
    where the appellant, a prisoner, had a high expectation that he would be
    released on mandatory supervision on a certain date. A legislative amendment
    reduced that expectation of liberty by curtailing the probability of the
    appellants release on mandatory supervision.  The Supreme Court ultimately
    concluded that the amendment engaged the appellants s. 7 liberty interest.
    However, in drawing that conclusion, McLachlin J. (as she then was) made the
    following observation, at p. 151:

I conclude that the appellant has suffered deprivation of
    liberty.  The next question is whether the deprivation is sufficiently serious
    to warrant
Charter
protection.  The
Charter
does not protect
    against insignificant or trivial limitations of rights. It follows that
    qualification of a prisoners expectation of liberty does not necessarily bring
    the matter within the purview of s. 7 of the
Charter
.  The
    qualification must be significant enough to warrant constitutional protection.

[81]

In
    this case, the changes in conditions were minor. As the Board stated, both
    during and after the Delay, the appellant was living in the community on a
    conditional discharge subject to very liberal conditions.  Thus, even if the
    2012 annual review hearing had been held before the end of December 2012, and
    the 2012 Disposition with its slightly more liberal conditions been in place earlier,
    the appellant did not suffer a deprivation of liberty significant enough to
    warrant constitutional protection.

[82]

Further,
    it is speculative to posit that the appellant would have been given an absolute
    discharge earlier but for the Delay.  In this regard, it is noteworthy that Mr.
    Starz met the significant threat threshold in his annual hearing in April 2013
    and his following annual review hearing in December 2013.  Indeed, the appellant
    did not receive an absolute discharge until October of 2014.

[83]

Furthermore,
    for a restriction of security of the person to be made out, the impugned state
    action must have a serious and profound effect on a persons psychological
    integrity  it must cause something greater than ordinary stress and anxiety:
G.(J.)
,
    at para. 60.  The Board did not fail to recognize the appellants emotional,
    physical and psychological reaction to the Delay. Rather, the Board found that
    the impact of the Delay on the appellants psychological integrity was not sufficiently
    severe to amount to a restriction on the security of his person.

[84]

I
    see no basis on which to interfere with that finding.

[85]

On
    the appellants testimony, he was frustrated and stressed by the Delay and sometimes
    found it difficult to sleep.  He was also embarrassed by his inability to drink
    alcohol with his family and friends.  It was open to the Board to find that these
    consequences did not constitute a serious and profound effect on Mr. Starzs
    psychological integrity.

[86]

Finally,
    I would not accede to the submission that the statutory requirement that an
    annual review be held no later than twelve months following a prior disposition
    is an established principle of fundamental justice.  In
Winko
,

the
    Supreme Court considered whether s. 672.54 violated the s. 7 principles of
    fundamental justice through vagueness, overbreadth, or by improperly placing
    the onus on the accused to prove lack of dangerousness.  The court concluded
    that s. 672.54 did not violate s. 7.  In drawing its conclusion, the Supreme
    Court did not conclude that the annual review requirement was a stand-alone
    principle of fundamental justice.  Rather, the requirement of an annual review hearing
    was but one of the many statutory protections of the NCR accused persons
    liberty interests that led to the scheme under Part XX.1 being found not to
    infringe s. 7.

[87]

Furthermore,
    while s. 672.81(1) does mandate that the Board hold an annual review hearing
    every twelve months to review a disposition, that timing requirement is not
    absolute.  For example, s. 672.81(1.1) empowers the Board to  extend the time
    for holding a disposition review hearing to a maximum of 24 months, on consent
    of the NCR accused person and the Attorney General, if the accused person is represented
    by counsel.  And, s. 672.63 expressly provides that a disposition remains in
    force until the Board holds a hearing and makes another disposition.

DID THE BOARD ERR IN ITS RULING ON REMEDIES?

[88]

In
    my view, the Board did not err in finding that it did not have the authority to
    grant the remedies of costs, damages and declaratory relief.

[89]

In
    the companion case of
Chaudry
, I review
Conway
, the leading Supreme
    Court case on the Boards authority to order remedies under s. 24(1) of the
Charter
.
    Rather than repeating the analysis in
Chaudry
,

I will summarise
    it.

[90]

The
    Board is a court of competent jurisdiction and, therefore, can decide questions
    of law, including
Charter

issues, arising in the course of its
    proceedings.  To determine whether it can grant the particular remedies sought
    by the appellant is a matter of discerning legislative intent, through a
    consideration of the Boards statutory mandate, structure and function.

[91]

In
Conway
, the Supreme Court analysed the Boards mandate, structure and
    functions.  That analysis can be summarized as follows.  The Board is
    established, and governed by, Part XX.1 of the
Criminal Code
.  It is a
    specialized statutory tribunal with ongoing supervisory jurisdiction over the
    treatment, assessment, detention and discharge of those accused persons who
    have been found not criminally responsible by reason of mental disorder.  The
    review board regime is intended to reconcile the twin goals of protecting the
    public from dangerous offenders and treating the NCR accused person fairly and
    appropriately, with due regard for the paramount consideration of public safety.

[92]

The
    Boards statutory mandate is to manage and supervise the assessment and
    treatment of all such persons in Ontario by holding annual hearings and making
    dispositions.  Its functions and tasks call for significant expertise and the
    Boards membership reflects this.

[93]

As
    discussed more fully below, the Boards role in making dispositions under s.
    672.54 is inquisitorial, not adversarial:
Winko
, at para. 54.  Accordingly,
    when making dispositions under s. 672.54, the Board is required to search out
    and consider all relevant evidence, including evidence that supports
    restricting the accuseds liberty, to meet public safety needs, and evidence
    that supports increasing the accuseds liberty.

Costs

[94]

As
    I explain in
Chaudry
,
in my view, introducing the potential for
    costs orders would detract from the Boards ability to meet its statutory
    mandate and functions.  The potential of a costs order would inevitably raise
    the stakes for the party facing the allegations, heighten the adversarial tenor
    of the proceedings, and prolong Board hearings.  Consequently, if costs orders are
    available, hearings are likely to become more adversarial and less
    inquisitorial, and divert attention away from the twin goals of public safety
    and the fair treatment of NCR accused persons.  Moreover, the Boards expertise
    is in how best to manage a patients risk to the public.  Its expertise is not
    in assessing and fixing costs.

Damages

[95]

In
    my view, this same reasoning applies to the question of damages.  I see nothing
    in Part XX.1 that indicates that Parliament intended to empower the Board to
    make orders for damages.  Just as in the case of claims for costs, the
    potential for making an order for damages would bring an adversarial tenor to
    Board hearings, which would detract from the inquisitorial approach the Board is
    to take and which would divert the Boards attention from the twin goals of
    public safety and the fair treatment of NCR accused persons.

[96]

I
    would add this.  Because the time necessary to quantify damages is often great,
    if the Board engaged in that process, it could seriously erode the Boards
    overall functioning.  As I have already explained, the Board is to decide
Charter

issues arising in the course of its proceedings.  Thus, if the Board were
    required to delve into the quantification of damages during such proceedings as
    annual reviews, the Board would necessarily have less time in which to fulfil
    its statutorily mandated duty to review an NCR accused persons disposition every
    twelve months:
Criminal Code
, ss. 672.81(1) and 672.83(1).  As
    emphasized above, it is vital that the Board strive to fulfill its duty within
    the legislated twelve-month period.  It does not make sense to give the Board
    the power to order a remedy when there is every likelihood that the proper
    exercise of that power would erode its ability to fulfill its primary mandate.

[97]

Indeed,
    this case makes that very point.  This court was told that annual review
    hearings are normally scheduled for 1.5 hours.  To accommodate Mr. Starzs
Charter

application, the Board set aside a full day for his annual review hearing.
    Despite that additional time, the hearing could not be completed in the
    allotted time.  As we have seen, an additional full day was required, despite
    no evidence being adduced on costs or damages.

[98]

If
    the Board did not have statutory remedial powers at its disposal, it might be
    that the power to order costs or damages could be implied so that the Board
    could meaningfully address
Charter

breaches.  However, as I
    explain below, that is not the case:  the Board has an arsenal of statutory
    remedial powers.

[99]

It
    is apparent from the Board reasons that the panel of the Board that heard this
    case shares these concerns.  It concluded that: (1) the Board is ill-suited to
    deal with questions of damages and costs; and (2) such determinations are not
    appropriate to the Boards functions and powers.

[100]

I agree.

Declaratory Relief

[101]

I now turn to
    whether the Board can grant declaratory relief.

[102]

A declaratory
    judgment is a formal statement by a court pronouncing upon the existence or
    non-existence of a legal state of affairs  it is restricted to a declaration
    of the parties rights and does not order any party to do anything:
Harrison
    v. Antonopoulos

(2002), 62 O.R. (3d) 463 (S.C.), at para. 27;
Monks
    v. ING Insurance Co. of Canada
, (2005), 76 O.R. (3d) 146 (S.C.), at para.
    12.  In other words,

[t]he essence of a declaratory judgment is a declaration,
    confirmation, pronouncement, recognition, witness and judicial support to the
    legal relationship between parties without an order of enforcement or execution.
[3]

[103]

Particularly in
    the constitutional context, a declaration is, in effect, an
in rem
vindication of an individuals or groups
Charter
claim which can apply
    equally for and to the community at large: H. Scott Fairley, Private Law
    Remedial Principles and the Charter: Can the Old Dog Wag this New Tail? in
    Jeffrey Berryman, ed.,
Remedies: Issues and Perspectives
(Scarborough:
    Carswell, 1991), at p. 323.  By definition, a declaration necessarily
    transcend[s] the immediate interests of the parties who originally sought
    relief:
ibid.
As Professor Roach observes in
Constitutional
    Remedies in Canada
, loose-leaf, 2d ed. (Toronto: Canada Law Book, 2014), at
    para. 12.370, declarations enable courts to state general principles of law,
    while leaving it to the government to decide the precise steps necessary to
    comply with the Constitution.

[104]

I make these
    observations about the nature of declaratory relief to distinguish declarations
    from orders.  There is no question that the Board has the power to make
    findings  such as that the applicants
Charter

rights have
    been breached.  There is also no question that the Board has the power to make
    orders in relation to the parties before it.  (This power is discussed more
    fully below.)  But, the question is not whether the Board can make findings or
    orders.  The question is whether the Board can grant declaratory relief.

[105]

Bearing in mind
    that a declaration has a broader import and transcends the immediate interests
    of the party who sought such relief, in my view, the Board does not have such a
    power.  Once again, this conclusion flows from the analysis mandated by
Conway
.
    Before turning to that analysis, it is helpful to place the discussion in
    context.

[106]

It is
    well-established that an administrative tribunal cannot make a general
    declaration of invalidity, although it may treat an impugned provision as
    invalid for the purposes of the matter before it.  As the Supreme Court said in
Cuddy Chicks Ltd. v. Ontario (Labour Relations Board)
, [1991] 2 S.C.R.
    5, at p. 17:

[A] formal declaration of invalidity is not a remedy which
    is available to the Board.
Instead, the Board simply treats any impugned
    provision as invalid for the purposes of the matter before it.
Given that
    this is not tantamount to a formal declaration of invalidity, a remedy
    exercisable only by the superior courts
, the ruling of the Board on a
Charter
issue does not constitute a binding legal precedent, but is limited in its
    applicability to the matter in which it arises.

[107]

Peter W. Hogg
    explains in
Constitutional Law of Canada
, loose-leaf, 5th ed. (Supp.)
    (Toronto: Carswell, 2007), at pp. 40-52 to 40-53:

[A] decision by a tribunal that a law is unconstitutional is no
    more than a decision that the law is inapplicable in the particular case.  It
    is not a binding precedent.  According to the [Supreme] Court, only superior
    courts have the power to issue binding declarations of invalidity that will
    invalidate a law with general effect.

[108]

It is also clear
    that a court can give a declaratory remedy so long as it has jurisdiction over
    the issue at bar, the question before the court is real and not theoretical,
    and the person raising it has a real interest to raise it:
Canada (Prime
    Minister) v. Khadr
, 2010 SCC 3, [2010] 1 S.C.R. 44, at paras. 46-48.

[109]

Bearing in mind
    that declaratory relief is materially different from both orders and general
    declarations of invalidity, I return to the question at hand: can the Board
    grant declaratory relief?  Based on the
Conway

analysis, in my
    view it cannot.

[110]

The Board is
    entitled to decide
Charter

questions that arise in the course
    of its proceedings:
Conway
, at para. 84.  It follows that the Board is
    entitled to make findings that an NCR accused persons
Charter
rights
    have been infringed, and can order appropriate remedies.

[111]

Once again,
    however, a review of the Boards statutory mandate, structure and function does
    not show that Parliament intended to empower the Board to grant declaratory
    relief.  I will not repeat the description of the Boards mandate, role and
    functioning, set out above.  The essential point for this discussion is that
    the Boards focus is necessarily on the NCR accused person before it.  Its role
    is not to make broad or general pronouncements but, rather, to ensure that the particular
    NCR accused person is subject to the least onerous and least restrictive
    conditions consistent with public safety.  To that end, the Board has the power
    to make remedial orders directed at the particular NCR accused person.  Making declarations
     given their broader range and purpose  would necessarily divert the Boards
    attention from the person before it because it would have to consider the
    broader implications for a broader group.  Not only would it detract from the
    Boards primary role and functions, it is likely to protract proceedings before
    the Board.  And, importantly, as I will now explain, the power to grant
    declaratory relief is not necessary because the Board has a sufficient
    statutory arsenal of remedies.

The Statutory Arsenal of Remedies

[112]

Having concluded
    that the Board does not have the power to grant declaratory relief, damages or
    costs, it is important to harken to the comments of Abella J., at para. 103 of
Conway
:
Charter

rights can often be effectively vindicated through the
    exercise of statutory powers and processes.

[113]

The Boards statutory
    powers provide it with a robust arsenal of remedies.  To begin, the Board has
    the statutory authority to redress any aspect of a conditional discharge that does
    not meet the least onerous and least restrictive standard.  As this court
    observed in
Saikaley
, at para. 46, the Board has the power to include
    conditions in a disposition that are flexible, individualized and creative, in
    order to supervise the NCR accused person in a responsive,
Charter
-compliant
    fashion.

[114]

Moreover, as a
    remedy for
Charter
infringements, it is open to the Board to provide
    hospitals with guidance on their obligations under the
Criminal Code
and
Charter
.  For example, in
Saikaley
, the NCR accused
    persons s. 7
Charter
rights were infringed by a significant delay in
    holding a restriction of liberty hearing.  The Boards
Charter
remedy
    was a reiteration and interpretation of the requirements for a timely
    restriction of liberty hearing.  In particular, the Board advised that a notice
    of a restriction of liberty from a hospital should be in writing and contain
    details of the increased restriction.

[115]

Furthermore, the
    Boards power to make orders also provides it with an effective and flexible
    remedy to redress a
Charter

breach.  This case provides a good
    example of this power and its utility as a remedy.  In the 2012 Disposition,
    the Board ordered that Mr. Starzs 2013 annual review hearing was to be held
    within 8 months of the delayed 2012 hearing.  This exercise of the Boards
    statutory powers had the effect of putting Mr. Starz back on the review
    schedule that he would have been on, absent the Delay.

DID THE BOARD ERR
    IN ITS APPROACH TO HEARING
CHARTER
APPLICATIONS?

[116]

The appellant submits
    that the Board erred by failing to adopt an inquisitorial approach in
    conducting the hearing of the
Charter
application. While acknowledging
    that the burden of proof rests on the applicant to establish the breach of his
    or her
Charter

rights, the appellant argues that the
    inquisitorial model mandated by Part XX.1 of the
Criminal Code
should
    extend to
Charter
hearings as well. He contends that this will ensure
    fairness to the vulnerable accused person and allow such persons to assert their
Charter

rights in an accessible forum. In this case, he submits
    that failure to implement an inquisitorial approach led the Board to err by
    excluding relevant emails on the basis of inadequate notice and failing to
    inquire into whether Dr. Darbys evidence would be of assistance.

[117]

I do not accept
    that the Board erred in the manner in which it conducted the
Charter

application.

[118]

In reaching this
    conclusion, I begin from the well-established rule that, outside of the Board context,
    the
Charter

claimant bears the burden of proving that his or
    her
Charter

rights have been infringed.  In
R. v. Collins
,
    [1987] 1 S.C.R. 265, at p. 277, Lamer J. stated:

The appellant, in my view, bears the burden of persuading the
    court that her
Charter
rights or freedoms have been infringed or
    denied.  That appears from the wording of s. 24(1) and (2), and most courts
    which have considered the issue have come to that conclusion. The appellant
    also bears the initial burden of presenting evidence.  The standard of
    persuasion required is only the civil standard of the balance of probabilities.

See also, more recently,
Carter
, at para. 80.

[119]

I then ask: does
    the fact that the application is brought within the context of the Ontario
    Review Board alter the legal framework for the determination of
Charter

applications?  In my view, it does not.  The inquisitorial nature of a
    Board hearing is intrinsically linked to its function in making a disposition
    pursuant to s. 672.54  not to the determination of a
Charter

application
    brought within the annual review process.

[120]

In
Winko
,
    the Supreme Court discussed the regime for dealing with persons with mental
    disorders created by Part XX.1 of the
Criminal Code
, and observed that
    it created an inquisitorial regime that departs from the traditional
    adversarial model.  At para. 54, McLachlin J. (as she then was), states:

The regimes
departure
from the traditional adversarial
    model underscores the distinctive role that the provisions of Part XX.1 play
    within the criminal justice system.  The Crown may often not be present at the
    hearing.  The NCR accused, while present and entitled to counsel, is assigned
    no burden.  The system is inquisitorial.  It places the burden of reviewing
all
relevant evidence on both sides of the case on the court or Review Board.  The
    court or Review Board has a duty not only to search out and consider evidence
    favouring restricting NCR accused, but also to search out and consider evidence
    favouring his or her absolute discharge or release subject to the minimal
    necessary restraints, regardless of whether the NCR accused is even present....The
    legal and evidentiary burden of establishing that the NCR accused poses a
    significant threat to public safety and thereby justifying a restrictive
    disposition always remains with the court or Review Board.  [Emphasis in
    original.]

[121]

The inquisitorial
    process cannot be separated from the fact that under s. 672.54 of the
Criminal
    Code
, no party has a legal onus.  The Board must search out and consider
    evidence relevant to the appropriate disposition for the accused person. Accordingly,
    the Board bears the legal and evidentiary burden of establishing whether the
    NCR accused poses a significant threat to public safety and, if so, of determining
    the least onerous and least restrictive disposition for the NCR accused person.
    In other words, because the parties bear no onus, the onus is on the Board, and
    as a result, the Board must adopt an inquisitorial procedure when acting under
    s. 672.54.

[122]

A
Charter
application
    is fundamentally different from a disposition under s. 672.54.  A
Charter
application alleges wrongdoing and entails establishing some degree of
    fault-finding and/or liability. I do not accept that alleging a
Charter
breach places an onus on the Board to search out evidence about the conduct of
    the employees of parties who would otherwise make their own decisions on how to
    respond to the allegations.  The process must be fair to all parties, not just
    the NCR accused person.

[123]

Consider, for
    example,
Runnalls (Re)
, 2013 ONCA 386, 107 W.C.B. (2d) 582, where the
    appellant argued that the Board erred in failing to address his
Charter
applications.  The appellant had made no submissions in support of his
Charter
applications before the Board.  One of his
Charter
applications
    alleged a violation of s. 8, without providing particulars; the other
    application did not specify which
Charter
right was breached.  This
    court dismissed the appeal, concluding that the Board did not err in its
    treatment of the appellants
Charter
applications.  This court makes
    no suggestion in
Runnalls
that the Board was required to search out
    evidence touching on the
Charter
allegations.  While the court is not
    explicit on this point,
Runnalls
supports the conclusion that the
    Board need not adopt an inquisitorial approach to
Charter
applications.

[124]

However, as the
    Attorney General observes, there may be cases where the same evidence bears on
    both the accuseds
Charter
application and on the appropriate
    disposition for the accused.  In those situations,
Winko
requires the
    Board to maintain its inquisitorial function in relation to all evidence
    relevant to the NCR accuseds disposition under s. 672.54, even if some of that
    evidence is relevant to a
Charter
application.

[125]

To the extent
    that there is a concern about an unrepresented NCR accused person having the
    burden to prove a
Charter

claim, without the help of an
    inquisitorial Board, I note that this can be addressed through s. 672.5 of the
Criminal
    Code
.
Section 672.5 sets out the procedure for Board hearings to
    make or review dispositions.  Subsection 672.5(7) gives the accused person the
    right to be represented by counsel and s. 672.5(8) requires the Board to assign
    counsel to act for the accused person wherever the interests of justice so
    require.  Furthermore, under s. 672.5(8.1), where counsel is assigned under s.
    672.5(8), and the accused does not receive legal aid, the Attorney General must
    pay counsels fees and disbursements to the extent the accused cannot pay.

[126]

Finally, I do
    not accept that the Board erred by failing to admit various scheduling emails
    and Dr. Darbys evidence on the second day of the hearing.

[127]

Decisions as to
    the admissibility of evidence and the form in which evidence should be
    presented are within the Boards discretion.  This court is to intervene only
    if the Boards decision is unreasonable or deprived the appellant of a fair
    hearing:
Conway (Re)
, 2012 ONCA 519, 111 O.R. (3d) 605, at para. 10.
    See also
Robertson (Re)
, 2012 ONCA 889, 104 W.C.B. (2d) 702, at para.
    2, where this court stated that the Board has the right to control its own
    processes within the fairness parameters established by the case law.

[128]

The Boards
    evidentiary rulings in the present case do not run afoul of these requirements.
    Rather, as the Boards reasons demonstrate, there were cogent reasons for refusing
    to admit the evidence in question.  Furthermore, as the
Charter

Decision
    makes clear, at the first of the two hearing days, the Board heard evidence
    relating to the Delay.

[129]

A final word is
    in order in respect of Dr. Darbys affidavit, which the appellant sought to
    introduce by way of fresh evidence.  As in my view the Board made no error in
    refusing to issue a summons for Dr. Darbys testimony, I would not admit the
    fresh evidence on appeal.

DISPOSITION

[130]

Accordingly, I
    would dismiss both the application to admit fresh evidence and the appeal.

Released: May 8, 2015 (E.GE.G.)

E.E. Gillese
    J.A.

I agree. P. Lauwers J.A.

I agree. Speyer J. (
ad hoc
)

[1]
On appeal, Mr. Starz did not pursue his claim for damages.

[2]
A fuller discussion of the definition of disposition, and its effect on this
    courts appellate jurisdiction, can be found in the companion case of
Chaudry
,
    at paras. 50 and following.

[3]
Lazar Sarna,
The Law of Declaratory Judgments
, 3d ed. (Toronto: Thomson
    Carswell, 2007), at p. 3.


COURT OF APPEAL FOR ONTARIO

CITATION: The Canada Trust Company v. Potomski, 2015 ONCA 324

DATE: 20150508

DOCKET: M45044 (C60375)

Pardu J.A. (In Chambers)

BETWEEN

The Canada Trust Company

Plaintiff (Respondent)

and

Robert Joseph Potomski

Defendant (Moving Party/Appellant)

Robert Joseph Potomski, acting in person

Jeffrey Kukla, for the respondent

Heard: May 4, 2015

ENDORSEMENT

[1]

The appellant moves for a stay of enforcement of a writ of possession
    granted in a mortgage action and for an extension of time to perfect his
    appeal.

[2]

The appellant granted a mortgage to the respondent on January 20, 1992.
    The mortgaged property is located in Windsor, Ontario. Under the terms of the
    mortgage agreement, the respondent is entitled to recover its costs associated
    with the mortgage, such as fees and disbursements incurred in enforcement
    proceedings, from the appellant.

[3]

On April 27, 2011, the appellant entered a mortgage renewal agreement
    with the respondent. This agreement provided that the Property Tax Payment
    amount will be adjusted annually in accordance with our procedures. These
    procedures permitted the respondent to increase or decrease the monthly
    Property Tax Payment in order to reimburse the respondent for amounts debited
    to the Tax Account for the appellants benefit. The Tax Account is an account
    on the respondents books in relation to the mortgage. Such adjustments would
    change the quantum of the appellants monthly mortgage payments.

[4]

The respondent claims the appellant defaulted on the mortgage six times
    between 2005 and 2008. Following the appellants November 2008 default, the
    respondent issued a notice of sale and eventually obtained an order for summary
    judgment, including costs on a substantial indemnity basis. Although the
    respondent did not exercise its power of sale and the mortgage was ultimately
    renewed, a $13,278.20 deficit was added to the appellants Tax Account in July
    2011. This was the amount claimed by the respondent for its costs on the
    summary judgment proceedings. The appellants monthly mortgage payments were
    increased to reflect the $13,278.20 cost award.

[5]

The appellant again defaulted on the mortgage on October 17, 2011. The
    appellant made payments on October 14, 2011 and November 17, 2011, which were
    applied to outstanding amounts owing for previous missed payments. The
    appellant did not make any further payments between November 17, 2011 and the
    motion before Platana J. on September 22, 2014.

[6]

In December 2011, after attempting to make a mortgage payment, the
    appellant was informed that the quantum of his monthly mortgage payment had
    increased by about 25 per cent. After making multiple inquiries, he was told
    that his monthly payments had been increased to account for the $13,278.20 deficit
    in his Tax Account. The appellant claimed he did not know what liability the
    deficit represented. He continued to make inquiries with the respondent
    regarding the reason for the increase to his monthly payments and did not pay his
    monthly mortgage payments. The respondent issued a notice of sale on June 15,
    2012. According to the respondent, as of May 21, 2013, the amount owing by the
    appellant under the mortgage was $51,732.74.

Justice Platanas Orders

[7]

The respondent brought a motion for summary judgment seeking payment in
    the amount of $51,732.74 plus interest, possession of the mortgaged property,
    leave to obtain a writ of possession for the property, and post-judgment
    interest.

[8]

The appellant did not dispute that the amount charged to his Tax Account
    was accurate. However, he argued that he was not required to make his monthly
    mortgage payments because the respondent did not respond to his repeated
    inquiries into why the monthly amount had increased and what the deficit in the
    Tax Account represented.

[9]

While Platana J. agreed that the respondent did not fully and
    adequately reply to the appellants request for information and that there was
    a possible lack of clarity on the respondents website about the function of
    the Tax Account, he found that this was not a defence to the appellants
    default. The mortgage agreement was clear that costs incurred by the respondent
    in enforcing the mortgage would be charged to the appellant. Justice Platana
    also found that there was clear evidence the appellant was aware of the
    $13,278.20 cost award against him and that this had not been paid. Although the
    amount owed by the appellant for the cost award was added to the Tax Account
    rather than immediately collected, it did not follow that the appellant was not
    required to pay this amount to the respondent. Justice Platana found the
    appellant was in default on the mortgage and granted the respondents motion
    for summary judgment on October 14, 2014.

[10]

After
    reasons on the motion were released, but before the issue of costs was determined,
    Platana J. received a fax from the appellant. The fax requested that Platana J.
    stay his decision to allow the appellant time to file a proper appeal and a
    stay motion within the appeal process. In his reasons on costs, Platana J.
    noted that he had received this fax and held that this was not the appropriate
    process for obtaining a stay. He declined to grant the appellants request on
    the ground that ordering a stay prior to any appeal being filed would effectively
    amount to an extension of time to file the appeal. Justice Platana awarded
    costs to the respondent on the summary judgment motion in the amount of $10,500
    plus HST, for fees, and $2,267.90 inclusive for disbursements.

Notice of Appeal to Divisional Court

[11]

The
    appellant filed a notice of appeal, dated November 28, 2014, from the orders of
    Platana J. in the Divisional Court. In his notice of appeal the appellant
    sought the following relief: an order extending time to file the appeal; an
    order that the respondent give explicit reasons for the increase in mortgage
    payments of approximately $100.00 per month; punitive damages in an
    unspecified amount and permission to continue his [mortgage] payments at the
    same amount as they were in November 2011. The appellant also sought [c]onfirmation
    the decisions of Mr. Justice T.A. Platana are automatically stayed.

[12]

The
    notice of appeal again argued that the amount requested by the Respondent has
    not been verified as fact and that the Respondent has not put forth the
    reason why, in December, 2011, the monthly mortgage payments of the Appellant
    were raised by approximately $100.00.

Certificate of Stay

[13]

The
    respondent obtained a writ of possession on March 29, 2015.

[14]

The
    registrar of the Divisional Court (South West Region) appears to have issued a
    certificate of stay of Platana J.s orders pending appeal. The copy filed by
    the appellant is dated April 10, 2015. That same day the appellant received an
    email from the Enforcement Office of the Ministry of the Attorney General
    informing him that the certificate of stay he filed with the Sheriffs Office
    did not comply with rule 63.02(1) of the
Rules of Civil Procedure
and
    therefore was not sufficient to stay enforcement. This email also informed the
    appellant that because a writ of possession is not an order for the payment of
    money, the automatic stay on delivery of a notice of appeal under rule 63.01
    did not apply. The email specifically stated that [a] stay order must be
    obtained.

Order of Gates J.

[15]

The
    appellant brought a motion before the Divisional Court to stay the March 29,
    2015 writ of possession. On April 15, 2015, Gates J. granted the stay on the
    following conditions:

1)

The appellant file a notice of appeal of the order of Platana J., dated
    October 14, 2014, with the Ontario Court of Appeal;

2)

The appellant perfect his appeal in the Court of Appeal immediately;

3)

The appellant pay the cost order granted by Platana J. immediately (in
    the amount of $14,132.90);

4)

The appellant pay the costs of the motion before Gates J. immediately
    (in the amount of $4,234.02).

[16]

Justice
    Gates specified that execution of the writ of possession would only be stayed
    if the appellant fulfilled these obligations by 4:30 p.m. on May 4, 2015.

Motion Before the Court of Appeal

[17]

The
    appellant says he filed a notice of appeal with the Court of Appeal. He brought
    this motion to stay the orders of Platana J., or alternatively, to stay
    execution on the writ of possession. He also sought an extension of time to
    perfect his appeal.

[18]

The
    appellant has not complied with two conditions set out in the order of Gates J.
    Specifically, he has not perfected his appeal to this court or paid the cost
    award ordered by Platana J. (in the amount of $14,132.90). He did not seek
    leave to appeal the order of Gates J.

Applicable Rules of Civil Procedure

[19]

Rule
    63.01 provides that delivery of a notice of appeal from a final order stays,
    until disposition of the appeal, any provision of the order for the payment of
    money.

[20]

Rule
    63.02(1) provides that a final order may be stayed on such terms as are just by
    either an order of the court whose decision is to be appealed or by an order of
    a judge of the court to which a motion for leave to appeal has been made or to
    which an appeal has been taken.

[21]

Rule
    63.02(3) provides that a stay granted under subrule (1) may be set aside or
    varied on such terms as are just by a judge of the court to which an appeal may
    be or has been taken.

[22]

Rule
    63.03(1) provides that where an order is stayed, no steps may be taken for its
    enforcement, except with leave of a judge of the court to which an appeal has
    been taken.

Test for Staying an Order Pending Appeal

[23]

The
    test for staying an order pending an appeal under rule 63.02 of the
Rules
is
    set out by the Supreme Court of Canada in
RJR-Macdonald Inc. v. Canada
    (Attorney General)
, [1994] 1 S.C.R. 311, at p. 334. Under this test the
    appellant must demonstrate:

1)

There is a serious issue to be tried;

2)

He will suffer irreparable harm if the stay is not granted; and

3)

The balance of convenience favours granting the stay.

[24]

In
    analyzing these factors the overarching question is whether the interests of
    justice call for a stay:
Longley v. Canada (Attorney General)
, 2007
    ONCA 149 [In Chambers], at para. 15.

[25]

In
    my view, the appellant has not demonstrated that a stay is appropriate. He has
    not identified any error in the reasoning of the summary judgment motion judge.
    As pointed out by Platana J.:

There are really no facts in dispute. The Defendant has not
    disputed that any of the charges to the Property Tax Account are inaccurate.

None of the evidence in the Defendants affidavits dispute that
    he has not paid the amounts claimed by the Plaintiff. Further, there is clear
    evidence that the Defendant was aware of the various costs awards made against
    him and that these have not been paid.

[26]

The
    appellant has not paid the regular mortgage payments since late in 2011. There
    is no evidence that he took any steps to perfect his appeal filed in the
    Divisional Court. Rule 61.09 provides that where no transcript of evidence is
    required for the appeal, the appeal must be perfected within thirty days after
    filing the notice of appeal. In the absence of any explanation for the failure
    to perfect the appeal by December 28, 2014, I infer that the purpose of filing
    the appeal was to delay enforcement of the judgment. The appellant advises that
    Justice Gates told him that that appeal was in the wrong court, presumably
    because the final order of Platana J. is for an amount that exceeds $50,000.

[27]

Undoubtedly,
    enforcement of the writ of possession will be troublesome for the appellant. However,
    in this case I am not convinced that the balance of convenience or the
    interests of justice call for a stay of enforcement of the judgment for
    possession and the writ of possession.

Extension of time to perfect appeal

[28]

In
    determining whether to grant leave to extend the time to perfect an appeal, it
    is useful to consider the test applicable to extending time to file a notice of
    appeal:
Mauldin v. Cassels Brock & Blackwell LLP
, 2011 ONCA 67 [In
    Chambers], at para. 5;
Monteith v. Monteith
, 2010 ONCA 78 [In
    Chambers], at para. 11. The relevant factors are:

1)

Whether the appellant had an intention to appeal within the relevant
    period;

2)

The length of the delay and the explanation for the delay;

3)

Any prejudice to the respondent;

4)

The merits of the appeal; and

5)

Whether the "justice of the case" requires granting an
    extension.

See
Rizzi v. Marvos
(2007), 85 O.R. (3d) 401
    (C.A. [In Chambers]), at para. 16;
Kefeli v. Centennial College of Applied
    Arts & Technology
(2002), 23 C.P.C. (5th) 35 (Ont. C.A. [In
    Chambers]), at para. 14.

[29]

Justice
    Gates ordered the appellant to perfect his appeal in the Court of Appeal
    immediately. The appellant did not explain why he has not done so. Thirty days
    have not yet elapsed from the date of Gates J.s order, and necessarily from
    the date (unknown to me) of filing of the notice of appeal in this court. If
    the appellant wishes to pursue his appeal he may yet perfect it in accordance
    with the
Rules
. In view of the circumstances outlined above, including
    the apparent absence of merit to the appeal, the delay which has already
    occurred and the absence of any explanation for a failure to perfect, I see no
    need to make any further order extending the time to perfect the appeal. I do
    note that while Gates J. made an order directing the appellant to file a notice
    of appeal in the Court of Appeal well beyond the time limit for doing so set
    out in the
Rules
, rule 3.02(3) provides that an order extending a time
    prescribed by the
Rules
for an appeal to an appellate court may be made
    only by a judge of the appellate court.

[30]

For
    these reasons, the motion by the appellant is dismissed. The parties may make
    brief written submissions regarding the costs of this motion, to be submitted
    no later than May 20, 2015.

G. Pardu J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Thompson 28 Co. Ltd. v. Buote, 2015 ONCA 376

DATE: 20150525

DOCKET: C59709

MacPherson, Cronk and Gillese JJ.A.

BETWEEN

Thompson 28 Co. Ltd. and
    Robert Jewett

Applicants (Respondents)

and

John David Buote

Respondent (Appellant)

John David Buote, acting in person

Jonathan Mesiano-Crookston, for the respondents

Heard: May 22, 2015

On appeal from the judgment of Justice Kevin W. Whitaker
    of the Superior Court of Justice, dated October 30, 2014.

ENDORSEMENT

[1]

The appellant John Buote appeals the judgment of Whitaker J. of the
    Superior Court of Justice dated October 30, 2014 declaring that a Memorandum of
    Settlement dated April 29, 2014 is a binding contract between the parties.

[2]

Mr. Buote, an Ontario tax lawyer, and Thompson 28 Co. Ltd., a Manitoba
    corporation, and Robert Jewett, the sole officer and director of Thompson 28,
    had a fairly lengthy solicitor-client relationship. Eventually, this relationship
    foundered and litigation ensued in Manitoba. First in 2013 and again in April
    2014, the parties tried to resolve their differences.

[3]

On April 29, 2014, the parties signed a Memorandum of Settlement. In the
    memorandum, the parties selected the law of Ontario and granted exclusive
    jurisdiction to the courts of Ontario.

[4]

The appellant refused to comply with one term of the Memorandum of
    Settlement relating to the date for a transfer to the respondent company of his
    shares in the company. The respondents brought an application seeking a
    declaration that the Memorandum of Settlement was binding and effective.

[5]

Whitaker J. granted the application. In brief reasons, he concluded that
    a neutral and objective party would conclude on the language of the April 29,
    2014 document that the parties have entered in a binding agreement to resolve
    all outstanding issues I conclude that the settlement is a binding contract
    and should be upheld as such.

[6]

On appeal, the appellant contends that the application judge erred by
    concluding that the Memorandum of Settlement was a binding contract. As we
    understand his argument, he makes two points in support of this ultimate
    conclusion.

[7]

First, the appellant submits that the application judge ignored part of the
    test for contract formation, namely, whether there was sufficient certainty as
    to the Memorandums essential terms: see
UBS Securities Inc. v. Sand
    Brothers Canada Ltd.
, 2009 ONCA 328.

[8]

We do not accept this submission. The application judge examined the
    words of the Memorandum of Settlement (a two-page document), which are quite
    straightforward and easy to understand, especially for an experienced tax
    lawyer, and concluded that the parties had reached a binding contract, as
    attested by the appellants signature. This is not a case of a long,
    complicated document with multiple possible meanings for some of its
    provisions.

[9]

Second, the appellant contends that the application judge did not have
    proper regard to all the evidence, focussing instead on the words of the
    Memorandum.

[10]

Aside
    from the obvious point that the
sine qua non
of contract
    interpretation is the words of the contract, there is nothing to suggest that
    the application judge did not review and consider the relevant evidence,
    including affidavits, exhibits, and the behaviour and actions of the parties
    before and after the Memorandum was signed.

[11]

We
    add this observation. The terms of the Memorandum are entirely inconsistent
    with the appellants claim that there were other outstanding rights and
    obligations between the parties that were unaffected by the settlement (for
    example, the loan guarantee and indemnity arrangements between the parties).
    The Memorandum clearly and unambiguously provides that it pertains to all
    outstanding disputes between the parties that no other amounts will be payable
    to [the appellant] other than as provided for under the Memorandum, and that
    the documents necessary to document an April 1, 2012 share transfer would be
    signed by the appellant. The appellant, an experienced tax lawyer, did not object
    to these terms at the time of execution of the Memorandum. It is not open to
    him to do so now.

[12]

The
    appeal is dismissed. The respondents are entitled to their costs of the appeal
    fixed at $12,000, inclusive of disbursements and applicable taxes.

J.C. MacPherson J.A.

E.A. Cronk J.A.

E.E. Gillese
    J.A.