COURT OF APPEAL FOR ONTARIO

CITATION: Chaudry (Re), 2015 ONCA 317

DATE: 20150508

DOCKET: C57503

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

IN THE MATTER OF: Baber Javed Chaudry

AN APPEAL UNDER PART XX.1 OF THE
CODE

Michelle OBonsawin and Barbara Walker Renshaw, for the
    appellant the Person in Charge of the Royal Ottawa Mental Health Centre
    Member of the Royal Ottawa Health Care Group

Michael Davies, for the respondent Baber Javed Chaudry

Grace Choi, for the respondent Attorney General of
    Ontario

Heard:  December 15, 2014

On appeal from the Amended Decision of the Ontario Review
    Board, dated August 22, 2013, with reasons reported at [2013] O.R.B.D. No. 1956.

Gillese J.A.:

[1]

Does this court have the jurisdiction to hear an appeal from a decision
    rendered by the Ontario Review Board (the Board) after a restriction of
    liberty hearing?  Does the Board have the power to order costs as a remedy
    under the
Canadian Charter of Rights and Freedoms
?  Can the Board make
    a costs order on its own motion?  This appeal must answer these important
    questions.

OVERVIEW

[2]

In 2006, Baber Javed Chaudry was found not criminally responsible on
    account of mental disorder in respect of two charges of assault and ordered
    detained within the secure forensic unit of the Royal Ottawa Mental Health
    Centre (the Hospital).

[3]

As mandated by s. 672.81(1) of the
Criminal Code
, R.S.C. 1985,
    c. C-46, the Board held annual hearings to review Mr. Chaudrys detention.

[4]

Prior to the events that triggered the Boards restriction of liberty
    hearing that is the subject matter of this appeal, Mr. Chaudry had an annual
    disposition hearing on July 5, 2012.  Following that hearing, the Board made a
    disposition in which it ordered that Mr. Chaudry be detained within the Secure Forensic
    Assessment Unit of the Hospital, with privileges that included living in the
    community in Hospital approved accommodation.  Mr. Chaudry was approved to live
    in the community with his mother and sister.

[5]

Less than a month after that annual review hearing, Mr. Chaudrys mental
    state had deteriorated and he had become threatening towards his mother.  The Hospital
    issued a warrant of committal, dated August 2, 2012, and asked for police assistance
    in having Mr. Chaudry returned to it.

[6]

Mr. Chaudry was then re-admitted to the Hospitals Secure Forensic Assessment
    Unit, where he remained for approximately two months before being released back
    into the community.

[7]

The Board held a restriction of liberty hearing.

[8]

Through counsel, Mr. Chaudry brought an application within that
    proceeding, asking the Board to find that the Hospital had infringed his
    section 7
Charter
rights by: (1) mishandling his re-admission; (2)
    failing to notify the Board of his restriction of liberty in a timely way; and
    (3) detaining him on a more secure ward than was necessary and failing to
    extend appropriate privileges during his hospitalisation.  Counsel for Mr.
    Chaudry initially also sought an order that the Hospital pay the costs of his
Charter
application.  However, at the outset of the Board hearing, Mr. Chaudry
    withdrew his request for costs.

[9]

Before the Board, the Hospital did not dispute that its failure to give
    timely notice of Mr. Chaudrys restriction of liberty violated his s. 7
Charter

rights.  However, it submitted that it had already reviewed its procedures
    and taken the necessary steps to ensure that this problem would not repeated.
    Apart from this, the Hospital denied that Mr. Chaudrys
Charter
rights
    had been infringed by its conduct.

[10]

The
    Board concluded that Mr. Chaudrys s. 7
Charter

rights had been
    breached because the last two weeks of his detention on the Secure Forensic
    Assessment Unit did not represent the least onerous and least restrictive
    decision.  It was on the basis of this breach that the Board then ordered the Hospital
    to pay Mr. Chaudry $500 in costs.

[11]

The
    Hospital appeals.  It contends that the Board erred both in concluding that Mr.
    Chaudrys
Charter

rights had been violated and in making a
    costs order against it.  The Attorney General of Ontario supports the Hospital
    on both matters.

[12]

Mr.
    Chaudry takes the opposing view on both matters and, further, asks that the
    appeal be quashed for lack of jurisdiction.

[13]

In
    my view, this court has jurisdiction to hear the appeal.  Furthermore, for the
    reasons that follow, I would allow the appeal.

[14]

This
    appeal was heard in conjunction with
Starz
(Re)
, 2015 ONCA 318,
    which also raises issues about the Boards jurisdiction to award remedies for
Charter
violations.  In the two cases, the Board reached opposite conclusions about
    its ability to make costs orders.

BACKGROUND

The Index Offences

[15]

Mr.
    Chaudrys index offences are two counts of assault.

[16]

The
    first count of assault related to an incident in May 2006 when Mr. Chaudry went
    to his mothers home and asked her for money to pay for insurance.  When she
    refused, Mr. Chaudry punched her on the side of the face and back of the head.
    She suffered minor injuries.

[17]

The
    second count of assault arose from an incident in August 2006 when Mr. Chaudry
    was living in a shelter.  He assaulted another resident by pushing his lit
    cigarette into the victims calf and burning him.

Diagnosis and History of
    Disposition Orders

[18]

Mr.
    Chaudry was diagnosed with a psychotic disorder in 2000.  On October 4, 2006, when
    he was 27 years old, Mr. Chaudry was found not criminally responsible on
    account of mental disorder in respect of the index offences.  He has remained
    under the jurisdiction of the Board since that time.  His current diagnoses are
    schizophrenia and cannabis dependence.

[19]

Mr.
    Chaudry resides in the community with his mother and sister. He has lived with them
    while subject to detention orders.

[20]

At
    the time of his first hearing before the Board, Mr. Chaudry was detained at the
    Hospital, but he was later discharged to live at a local group home. In 2008,
    the Hospital contemplated recommending an absolute discharge but reconsidered
    after Mr. Chaudry resumed cannabis use. In 2009 and 2010, Mr. Chaudry was
    granted conditional discharges.  However, in 2010, he relapsed and resumed
    using cannabis.  He was voluntarily re-admitted to the Hospital where he
    remained from October 2010 to January 2011.  He was then discharged and
    returned home to live with his mother and sister.

[21]

In
    April 2011, Mr. Chaudry went on a trip to Pakistan with his mother and sister.
    Unfortunately, he forgot his medication.  Although his medication was couriered
    to him, he went almost two weeks without it.  When he returned to Canada, he
    reported auditory hallucinations and decreased sleep.  Following his annual
    hearing in June 2011, the Board ordered that Mr. Chaudry be detained in the
    Hospital with privileges up to and including living in the community.

[22]

At
    Mr. Chaudrys 2012 annual review, the Board accepted the parties joint
    submission that he continued to pose a significant threat to the safety of the
    public.  By disposition dated July 5, 2012 (the 2012 Disposition), the Board ordered
    that Mr. Chaudry be detained within the Secure Forensic Assessment Unit of the Hospital,
    with privileges that included living in the community.

Circumstances Leading to Mr.
    Chaudrys Re-admission to Hospital

[23]

Following
    the 2012 Disposition, Mr. Chaudry continued to reside with his mother and
    sister.  However, his condition began to deteriorate.  In the week preceding
    his re-admission to the Hospital, Dr. Ward and members of Mr. Chaudrys family
    observed that he was showing signs of increased psychosis, grandiose delusions
    and bizarre persecutory ideation.  Dr. Ward was Mr. Chaudrys attending
    psychiatrist and had been since 2006.  During an interview with Dr. Ward, Mr.
    Chaudry said that he was a Superior Court judge and discussed a grand plan for
    himself and the universe.

[24]

Dr.
    Ward was concerned that Mr. Chaudrys behaviour was similar to the behaviour
    that Mr. Chaudry exhibited at the time of the index offences.  On July 24,
    2012, she gave Mr. Chaudry a prescription for a new medication and discussed
    with him the possibility of his re-admission to the Hospital.

[25]

On
    July 28, 2012, Dr. Ward received an email from Mr. Chaudrys sister, who is a
    medical doctor.  In her email, Mr. Chaudrys sister said that he had
    deteriorated since the 2012 Disposition.  He was increasingly disturbed by
    voices and he could be heard to be shouting loudly and telling them to shut
    up.  She said that she and his mother had never seen Mr. Chaudry as disturbed
    and angered by the voices that he was hearing.  She noted that he was also
    easily aggravated and very aggressive, particularly towards their mother.  She
    indicated that both she and Mr. Chaudrys mother supported his re-admission
    into the Hospital.

[26]

On
    August 2, 2012, a bed became available at the Hospital. A forensic outpatient nurse
    contacted Mr. Chaudry and asked him to voluntarily return to the Hospital.  At
    first Mr. Chaudry said that he needed a day to prepare, and then he said that it
    would be a week before he would be ready. When the nurse told Mr. Chaudry that
    Dr. Ward wanted him admitted immediately, he became extremely angry and verbally
    abusive.

[27]

Dr.
    Ward was concerned that if she asked Mr. Chaudrys mother or sister to bring
    him into the Hospital he might pose a threat to them so she sent a Form 49 warrant
    of committal to the police, asking that they apprehend Mr. Chaudry and bring
    him to the Hospital.

[28]

Although
    the Form 49 ordered that Mr. Chaudry be brought to the Hospital, the Hospitals
    cover letter stated that if the police were unable to take Mr. Chaudry to the
    Hospital between the hours of 8:00 a.m. and 5:00 p.m., they should take him to
    the Ottawa Hospital, Civic Campus (the Civic Campus), for medical clearance.
    The Hospital has since changed its procedures to provide that when the police
    rely on a Form 49, the patient is to be taken to the Hospital no matter what
    time of day he or she is apprehended.

Mr. Chaudrys Re-admission and
    Detention

[29]

The
    police apprehended Mr. Chaudry at his home on the evening of August 2. They handcuffed
    him and took him to the Civic Campus.  There, a doctor was called to do an
    assessment of Mr. Chaudry.

[30]

Mr.
    Chaudrys mother and sister had followed the police to the Civic Campus.  They waited
    there with Mr. Chaudry and the police.

[31]

At
    approximately 11:30 p.m., the police removed Mr. Chaudrys handcuffs and left.
    Eventually, a doctor assessed Mr. Chaudry and sent him and his family to the
    Hospital.  When they arrived at the Hospital, the doors were locked.  At the
    insistence of Mr. Chaudrys mother, Mr. Chaudry was admitted at approximately
    1:30 a.m.

[32]

Dr.
    Ward testified that Mr. Chaudry was even more delusional at the time of his
    re-admittance than he had been prior to her decision to have him re-admitted.
    He remained acutely psychotic until the middle of September.

[33]

Mr.
    Chaudry was housed in the Secure Forensic Assessment Unit from the time of his
    re-admission on August 3, 2012, until October 2, 2012, when he was discharged
    and resumed living at his mothers home. During his previous Hospital stay, Mr.
    Chaudry had been detained in the Forensic Rehabilitation Unit.

[34]

Dr.
    Ward testified that patients in the Secure Forensic Assessment Unit have access
    only to a specific yard and gym.  They are not permitted privileges such as
    access to other units in the Hospital or its grounds.

[35]

In
    the Forensic Rehabilitation Unit, however, patients may be permitted to visit
    other parts of the Hospital or its grounds, or even to enter the community if
    their condition warrants this privilege.

[36]

Dr.
    Ward testified that while Mr. Chaudrys condition justified his admission to,
    and detention in, the Secure Forensic Assessment Unit for much of his period of
    hospitalization, towards the end of that period he could have been transferred
    to the Forensic Rehabilitation Unit. He was not transferred because there were
    no beds available in the Forensic Rehabilitation Unit.

The Restriction of Liberty Hearing

[37]

Section
    672.56(2)(b) of the
Criminal Code
required the Hospital to notify the
    Board that it had, for a period exceeding seven days, significantly increased
    the restrictions on Mr. Chaudrys liberty.  The Hospital failed to give the
    Board the required notice.  According to Dr. Ward, this failure was due to inadvertence
    on the Hospitals part when a key member of its staff was away on holidays.

[38]

On
    September 26, 2012, Mr. Chaudrys counsel informed the Board of the situation
    and requested a restriction of liberty hearing.

[39]

The
    Board held a hearing into the restriction of Mr. Chaudrys liberty on May 27,
    2013.  At that time, the Board also considered Mr. Chaudrys application for a
    determination that his
Charter
rights had been violated by the manner
    of his re-admission to, and continued detention in, the Hospital.  Although Mr.
    Chaudry sought, in his application, an order requiring that the Hospital pay
    the costs of the application, he abandoned that request at the hearing.
    Consequently, the Hospital did not address the costs issue in its submissions
    to the Board.

THE BOARD DECISIONS

[40]

By
    decision dated May 30, 2013 (the Initial Decision), the Board stated that the
    restriction of Mr. Chaudrys liberty by re-admission to the Hospital was
    warranted, andrepresented the least onerous and least restrictive decision.  The
    Initial Decision also affirmed that the 2012 Disposition remained appropriate.

[41]

In
    reasons dated August 1, 2013 (the Board Reasons), the Board gave reasons for its
    decision in this matter.  The Board reiterated its determinations in the
    Initial Decision and explained why it had reached them.  It explained that the
    restriction on Mr. Chaudrys liberty by re-admission to the Hospital was reasonable
    and warranted, given his condition at that time.  It also found that the Hospitals
    decision to request police assistance in apprehending Mr. Chaudry was justified.
    It observed that in light of comments made by Mr. Chaudry, it was reasonable for
    the Hospital to have been concerned that Mr. Chaudry did not wish to be
    hospitalized and, based on Mr. Chaudrys decompensated and increasingly
    aggressive state, it was reasonable for the Hospital to have been concerned for
    his mothers safety. The Board found that the Hospital was justified in using a
    Form 49 to have Mr. Chaudry brought in by police.  It further found that it had
    no concerns about the police actions.

[42]

The
    Board went on to indicate that it was significantly disturbed and concerned
    by the inappropriate way in which Mr. Chaudry had been re-admitted to the
    Hospital.  It referred to the delay between Mr. Chaudrys apprehension and his
    re-admission to the Hospital, and the way Mr. Chaudry and his family were
    treated by the Hospital staff when they arrived.  The Board found that this chain
    of events was the result of the Hospitals decision to request that Mr. Chaudry
    be brought to the Civic Hospital if he were not apprehended between the hours
    of 8:00 a.m. and 5:00 p.m.

[43]

The
    Board said that Mr. Chaudry ought to have been taken directly to the Hospital where
    personnel and procedures should have been in place for a quick admission.  It
    concluded on this issue by noting that the Hospital had made significant
    changes to its policies and procedures in regard to re-admission, and was hopeful
    that the new procedures would ensure that similar events were not repeated.

[44]

The
    Board concluded that Mr. Chaudrys detention in the Secure Forensic Assessment
    Unit was justified at the time of re-admission, given his medical condition.
    However, it stated that Mr. Chaudrys continued detention in that unit up to
    the time of his discharge, and his inability to exercise privileges he would
    otherwise have been entitled to exercise, were not warranted and reasonable
    and constituted a violation of his rights under s. 7 of the
Charter
.

[45]

The
    Board noted that it was unaware of any precedent in which the Board had ordered
    costs to a party on a
Charter
application.  However, it concluded that
    allowing costs was the only available remedy for the violation of Mr. Chaudrys
Charter
rights.  It then ordered the Hospital to pay the sum of $500 in
    costs to Mr. Chaudrys counsel.

[46]

On
    August 22, 2013, the Board issued an amended decision which reflected the Board
    Reasons (the Amended Decision). The Amended Decision stated that while Mr.
    Chaudrys initial re-admission to the Hospital was warranted, his continued
    detention on the Secure Forensic Assessment Unit was not the least onerous and
    least restrictive decision, contrary to s. 7 of the
Charter
.

THE ISSUES

[47]

The
    Hospital raises three issues on appeal.  It submits that the Board:

1.  erred in finding that
    Mr. Chaudrys continued detention on the Secure Forensic Assessment Unit was
    not the least onerous and least restrictive disposition and was contrary to s.
    7 of the
Charter
;

2.  does not have the jurisdiction
    to award costs as a remedy under s. 24(1) of the
Charter
; and

3.  erred in ordering costs against
    the Hospital on its own motion.

[48]

Mr.
    Chaudry raises a further issue.  He submits that there is no statutory right of
    appeal from the Amended Decision and, therefore, this court is without
    jurisdiction and the Hospitals appeal must be quashed.

[49]

Because
    Mr. Chaudrys submission goes to the threshold question of whether this court
    has the jurisdiction to hear the Hospitals appeal, I will deal with it
    first.

DOES THIS COURT HAVE JURISDICTION TO HEAR THE APPEAL?

[50]

As
    I will explain, a careful review of the relevant legislative provisions leads
    to the conclusion that this court has jurisdiction to hear an appeal from a
    Board decision rendered after a restriction of liberty hearing.

The Right to Appeal a Board
    Disposition to this Court

[51]

This
    courts jurisdiction to hear appeals in matters involving mental disorder comes
    from s. 672.72(1) of the
Criminal Code
, which gives a party the right
    to appeal a Board disposition to this court:

672.72
(1)
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.   [Emphasis added.]

[52]

Disposition
    is defined in s. 672.1(1) to mean an order made by aReview Board under section
    672.54

[53]

Section
    672.54 refers to, among other things, a Board disposition made under s. 672.83:

672.54 Where a court or Review Board makes a
    disposition under  section  672.83 .
[1]

[54]

In
    the present case, as I will explain, the Board made the Amended Decision under s.
    672.83.  Because disposition in s. 672.1(1) is defined to mean a Board order
    made under s. 672.54 and s. 672.54 refers to a Board disposition made under s.
    672.83, the Amended Decision falls within the statutory definition of disposition
    and this court has jurisdiction to hear an appeal against it.

The Amended Decision is a
    Disposition under s. 672.83

[55]

I
    will now explain how it is that the Amended Decision is a disposition by the
    Board under s. 672.83.

[56]

Section
    672.56(1) gives the Board the power to delegate to the person in charge of the hospital
    the authority to direct that the restrictions on an accused persons liberty be
    increased or decreased. Such a direction is deemed to be a Board disposition:

672.56 (1)
A Review
    Board
that makes a disposition in respect of an accused under paragraph
    672.54(
b
) or (
c
)
may delegate to the person
    in charge of the hospital authority to direct that the restrictions on the
    liberty of the accused be increased or decreased
within any limits and
    subject to any conditions set out in that disposition,
and
    any direction so made is deemed for the purposes of this Act to be a
    disposition made by the Review Board
.  [Emphasis added.]

[57]

In
    the present case, by means of para. 2 of the 2012 Disposition, the Board
    delegated to the Hospital the authority described in s. 672.56(1), namely, the
    authority to direct that the restrictions on Mr. Chaudrys liberty be increased
    or decreased subject to certain conditions.

[58]

Under
    s. 672.56(2)(b), the Hospital was required to give notice to the Board because
    it had significantly increased the restrictions on Mr. Chaudrys liberty and
    the increased restrictions had remained in force for more than seven days:

(2) A person who increases the restrictions on
    the liberty of the accused significantly pursuant to authority delegated to the
    person by a Review Board shall

(b) give notice of the increase as soon as is
    practicable to the accused and, if the increased restrictions remain in force
    for a period exceeding seven days, to the Review Board.

[59]

Section
    672.81(2.1) required the Board to hold a hearing to review the Hospitals
    decision to significantly increase Mr. Chaudrys liberty restrictions:

672.81(2.1) The
    Review Board shall hold a hearing to review a decision to significantly
    increase the restrictions on the liberty of the accused, as soon as practicable
    after receiving the notice referred to in subsection 672.56(2).

[60]

As
    I have explained, s. 672.56(1) deemed the Hospitals decision to increase the
    restrictions on Mr. Chaudrys liberty to be a Board disposition (the deemed
    Board disposition).  When the Board held the hearing as required under s.
    672.81(2.1), s. 672.83(1) required the Board to review the deemed Board disposition
    and make any other disposition that it considered appropriate:

672.83
(1)
At a hearing held pursuant to section 672.81the Review Board
    shall
, except where a determination is made under subsection 672.48(1)
    that the accused is fit to stand trial,
review the
    disposition made in respect of the accused and make any other disposition that
    the Review Board considers to be appropriate in the circumstances
.  [Emphasis
    added.]

[61]

As
    required by s. 672.83(1), the Board reviewed the deemed Board disposition.  The
    result of that review was the Amended Decision.  Thus, the Amended Decision was
    the disposition that the Board considered to be appropriate, in the
    circumstances.  In the Amended Decision, the Board confirmed the Hospitals
    decision to re-admit Mr. Chaudry and ordered that the 2012 Disposition
    continue.

[62]

Although
    the Board called the Amended Decision a decision  not a disposition  and
    although the style of cause of the Amended Decision refers to a hearing held
    pursuant to section 672.81(2.1), in fact, the Amended Decision is the Boards
    disposition made pursuant to s. 672.83.

[63]

To
    be clear, in my view, for this court to have jurisdiction over the appeal, it
    was not necessary that the Board order the 2012 Disposition to continue. When  the
    Board reviews a disposition at a restriction of liberty hearing under s.
    672.83(1), it must make the disposition that [it] considers appropriate.
    Accordingly, whatever disposition it makes pursuant to s. 672.83(1) is subject
    to appeal under s. 672.72(1).

Summary and Concluding Remarks on
    this Issue

[64]

In
    sum, therefore, because:

-

s.
    672.1(1) defines disposition to mean a Board order made under s. 672.54,

-

s.
    672.54 refers to a Board disposition under s. 672.83, and

-

s.
    672.83 requires the Board to review the deemed Board disposition made under s.
    672.56(1) and make such disposition as it considers appropriate,

the Amended Decision falls within the statutory
    definition of disposition in s. 672.1(1).  Thus, this court has jurisdiction to
    hear the Hospitals appeal against that disposition (i.e. the Amended Decision)
    under s. 672.72(1) of the
Criminal Code
.

[65]

I
    would add two final comments.

[66]

First,
    this interpretation accords with the courts past practice of hearing appeals
    of Board decisions arising from restriction of liberty hearings: see, for
    example,
Re Saikaley
, 2012 ONCA 92, 109 O.R. (3d) 262.  Second, this
    interpretation is consistent with the legislative intent underlying Part XX.1 of
    the
Criminal Code
, which is to give NCR accused persons the right of
    appeal from Board decisions that affect their liberty interests.

[67]

For
    these reasons, I would reject Mr. Chaudrys request that the Hospitals appeal
    be quashed for want of jurisdiction.

DID THE BOARD ERR IN FINDING THAT MR.
    CHAUDRYS CONTINUED DETENTION ON THE SECURE FORENSIC ASSESSMENT UNIT WAS NOT
    THE LEAST ONEROUS AND LEAST RESTRICTIVE DISPOSITION AND CONTRARY TO SECTION 7 OF
    THE CHARTER?

[68]

In
    its Amended Decision, the Board stated that Mr. Chaudrys continued detention
    on the [Secure] Forensic Assessment Unit did not represent the least onerous
    and least restrictive decision, contrary to section 7 of the
Charter

    (the Finding).  From the Board Reasons, it appears that the Finding is based
    on the Boards view that in the last two weeks of Mr. Chaudrys stay in the
    Hospital, while housed in the Secure Forensic Assessment Unit, Mr. Chaudry should
    have been given the privileges associated with detention on the Forensic
    Rehabilitation Unit.

[69]

The
    Hospital submits that the Finding was unreasonable and unsupported by the
    evidence. It contends that the Board did not conduct any analysis of whether Mr.
    Chaudrys detention in the relevant two-week period met the least onerous and
    least restrictive standard.  In this regard, the Hospital notes that the least
    onerous and least restrictive standard is informed by a number of factors,
    including the treatment needs of the accused and the need to protect the
    public.  The Hospital further submits that the Boards s. 7 finding is devoid of
    analysis and unfounded in the evidence.

[70]

Mr.
    Chaudry argues that the Finding was proper and reasonable, based on Dr. Wards
    own testimony that in the last two weeks of his detention, he could have been housed
    in the Forensic Rehabilitation Unit but was not moved there because no beds were
    available.  He submits that the Board was entitled to conclude from this
    evidence that his liberty had been infringed to a greater extent than necessary
    to protect public safety.  Given this conclusion, Mr. Chaudry says that a
    finding that his s. 7 rights had been breached was inevitable.

[71]

I
    would accept the Hospitals submission on this issue.

[72]

As
    I have explained above, when the Hospital exercised its delegated authority to
    direct that the restrictions on Mr. Chaudrys liberty be increased, it acted
    pursuant to s. 672.56(1).  In the exercise of that delegated authority, any
    restrictions that the Hospital placed on Mr. Chaudry had to fall within the
    envelope of conditions enumerated by the Board in the 2012 Disposition.  The
    Hospital was required to give due regard to Mr. Chaudrys liberty interest in
    light of the twin goals of public safety and treatment:
M.L.C. v. Ontario
    (Review Board)
, 2010 ONCA 843, 104 O.R. (3d) 450, at paras. 27-28.
    Further, the Hospital was obliged to ensure that the conditions it imposed met the
    least onerous and least restrictive standard:
M.L.C.
, at para. 45.

[73]

Similarly,
    when the Board reviewed the Hospitals decision to significantly restrict Mr.
    Chaudrys liberty pursuant to s. 672.81(2.1), it was required to determine
    whether the Hospitals decision met the least onerous and least restrictive
    standard:
M.L.C.
, at para. 46.

[74]

If
    the Hospitals decision met the least onerous and least restrictive standard,
    then there was no violation of Mr. Chaudrys s. 7 rights.  This conclusion
    follows from the Supreme Courts reasoning in
Winko v. British Columbia
    (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at para. 71, that
    the least onerous and least restrictive standard does not violate s. 7. The
    court held that the standard is not overbroad and ensures that the NCR
    accuseds liberty will be intruded upon no more than is necessary to protect
    public safety.

[75]

Thus,
    the question for the Board was whether, in failing to give Mr. Chaudry the
    privileges associated with detention on the Forensic Rehabilitation Unit during
    the last two weeks of his hospitalization, the Hospital breached the least
    onerous and least restrictive standard.  The Board concluded that it had.  In
    my view, it erred in reaching that conclusion.

[76]

To
    begin, it is not clear to me that the Board tested the Hospitals decision
    against the least onerous and least restrictive standard.  Although the words least
    onerous and least restrictive appear in the Amended Decision, they do not
    appear in the Board Reasons.  Rather, at page 19 of the Board Reasons, the
    Board states that Mr. Chaudrys continued detention on the Secure Forensic
    Assessment Unit without being able to exercise privileges that he otherwise
    would have been entitled to exercise was not reasonable and warranted.  Later
    on that same page, the Board again states that Mr. Chaudrys inability to
    exercise the privileges that his condition would have warranted was not
    warranted and reasonable, and therefore violated Mr. Chadurys s. 7 rights.
    With respect, the Board was required to assess whether the Hospitals decision
    to significantly restrict Mr. Chaudrys liberty satisfied the least onerous and
    least restrictive standard, and not whether the decision was warranted and
    reasonable.

[77]

In
    any event, however, the Finding is not supported by the evidence.

[78]

Dr.
    Ward testified that Mr. Chaudry was acutely psychotic until two weeks prior to
    his discharge.  During the period of acute psychosis, he had significant
    hallucinations, irritability and disorganization and could not be transferred
    to the Forensic Rehabilitation Unit.  While on the Secure Forensic Assessment
    Unit, Mr. Chaudry had visits with his family and he had access to a large yard,
    the gym and treatment groups.  He did not have access to the rest of the
    Hospital or its grounds.

[79]

Once
    Mr. Chaudrys condition began to improve, the Hospital promptly began planning
    to discharge him to the community.  Although Mr. Chaudry was well enough to
    have been transferred to the Forensic Rehabilitation Unit in the last two weeks
    of his Hospital stay, there were no beds available in the Forensic
    Rehabilitation Unit at that time.

[80]

Dr.
    Ward testified that the Hospital does not have secure access to its grounds
    (apart from the grounds to which Mr. Chaudry had access), which means that its
    grounds are basically open to the public.  A patient that has access to those
    grounds has the potential to obtain contraband, such as drugs.  Dr. Ward explained
    that allowing a patient to go back and forth between the two units creates a risk
    that contraband will move between them.  Thus, giving Mr. Chaudry access to the
    Hospital grounds would have created the risk that contraband such as drugs
    could be moved into the Secure Forensic Assessment Unit.  Illegal drugs on the
    Secure Forensic Assessment Unit, in which seriously ill patients are resident,
    poses a safety risk to the other patients on that unit and to the staff who
    care for them.

[81]

In
    my view, public safety concerns include concerns about other patients and
    Hospital staff.  Thus, Dr. Wards evidence demonstrates that, in establishing
    Mr. Chaudrys privileges in the last two weeks of his hospitalization, the
    Hospital carefully considered and balanced Mr. Chaudrys treatment needs with
    public safety concerns.  The restrictions were no more than what was necessary
    to protect public safety.

[82]

A
    concluding comment is in order.  On several occasions, the Board has exhorted the
    Hospital to find a way to allow the NCR accused person to exercise the
    privileges that his or her condition warrants, even if the person is detained
    on the Secure Forensic Assessment Unit because of a lack of beds in the
    Forensic Rehabilitation Unit: see, for example,
Williams (Re)
, [2008]
    O.R.B.D. No. 1883, at para. 21;
Dasilva
(Re)
, [2011] O.R.B.D.
    No. 1088, at para. 24; and

Baragengana (Re)
, [2013] O.R.B.D.
    No. 669, at para. 30. In those cases, the particular security concerns
    expressed by Dr. Ward do not appear to have been raised.  Based on that evidence,
    I have concluded that Mr. Chaudrys privileges were limited no more than
    necessary to protect public safety.  Nothing I have said, however, is intended
    to diminish the strength of the Boards exhortations that the Hospital find a
    way to allow NCR accused persons to exercise the privileges their condition
    warrants.

[83]

In
    the circumstances of this case, however, as I have explained, the Hospital met
    the least onerous and least restrictive standard and, therefore, there was no
    breach of Mr. Chaudrys s. 7 rights.

[84]

Accordingly,
    I would allow this ground of appeal.

DOES THE BOARD HAVE JURISDICTION TO
    AWARD COSTS AS A REMEDY UNDER S. 24(1) OF THE
CHARTER
?

[85]

The
    Hospital submits that the Board does not have the jurisdiction to award costs
    as a remedy under s. 24(1) of the
Charter
.

[86]

I
    agree.  In my view, given the statutory framework governing the Board,
    including its mandate, structure and functions, Parliament did not intend that
    the Board be empowered to order costs as a s. 24(1) remedy.

The Boards Remedial Jurisdiction:
    General Principles

[87]

Section
    24(1) of the
Charter
provides:

Anyone whose rights or freedoms, as guaranteed by
    this Charter, have been infringed or denied may apply to a court of competent
    jurisdiction to obtain such remedy as the court considers appropriate and just
    in the circumstances.

[88]

In
R. v. Conway
, 2010 SCC 22, [2010] 1 S.C.R. 765, at paras. 81-82, the
    Supreme Court set out two questions that must be addressed when a remedy is sought
    from an administrative tribunal under s. 24(1) of the
Charter
:

1.  Does the tribunal have
    the jurisdiction to decide questions of law?

2.  If so, can the tribunal
    grant the particular remedy being sought?

[89]

Conway
itself, at para. 84, answered the first question in the affirmative in respect
    of the Board.  As a quasi-judicial body with significant authority over a
    vulnerable population, the Board is a court of competent jurisdiction with
    authority to decide questions of law and
Charter
questions that arise
    in the course of its proceedings.

[90]

I
    turn, therefore, to the second question.  In the present case, that question becomes:
    can the Board make a costs order as a s. 24(1) remedy for a
Charter

breach?

[91]

Justice
    Abella explains, at para. 82 of
Conway
,

that answering the
    second question is necessarily an exercise in discerning legislative intent:

[W]hat will always be at issue is whether the remedy sought is
    the kind of remedy that the legislature intended would fit within the statutory
    framework of the particular tribunal.  Relevant considerations in discerning
    legislative intent will include those that have guided the courts in past
    cases, such as the tribunals statutory mandate, structure and function (
Dunedin
    [R. v. 974649 Ontario Inc.
, 2001 SCC 81, [2001] 3 S.C.R. 575]).

The Statutory Framework which
    Governs the Board

[92]

Are
    costs orders the kind of remedy that the legislature intended would fit within
    the Boards statutory framework?  Let us begin by considering the statutory
    framework that governs the Board, including its mandate and functions.

[93]

The
    Board was established by, and operates under, 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.

[94]

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.  It sits in five-member panels that include the
    chairperson (a judge or a person qualified for or retired from the bench), a
    psychiatrist, and a second psychiatrist or a person with training and
    experience in the field of mental health who is entitled to practice medicine
    or psychology:
Conway
,
at para. 95, and
Criminal Code
,
    ss. 672.38(1), 672.39, 672.4(1).

[95]

The
    Boards method is inquisitorial, not adversarial:
Winko
, at para. 54.
    In the Board proceedings, the NCR accused bears no onus of proof. Rather, the
    Board is required to search out and consider all relevant evidence, including
    evidence that supports restricting the accuseds liberty and evidence that supports
    increasing the accuseds liberty.

Analysis

[96]

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, with a shift in focus
    away from the twin goals of public safety and the fair treatment of NCR accused
    persons.  The Boards expertise is in how best to manage a patients risk to
    the public:
Conway
, at para. 95.  Its expertise is not in assessing
    and fixing costs.

[97]

Moreover,
    as Abella J. noted in
Conway
, at para. 103,
Charter

rights
    can be effectively vindicated through the exercise of statutory powers and
    processes. In this case, the statutory powers given to the Board provide it
    with a sufficient arsenal of remedies.

[98]

As
    explained above, pursuant to ss. 672.81(2.1) and 672.83(1), the Board reviewed
    the Hospitals decision to significantly restrict Mr. Chaudrys liberty (the
    deemed Board disposition) and had the power to make any other disposition that
    it considered appropriate, in the circumstances.  Accordingly, the Board had
    the power to redress any aspect of Mr. Chaudrys detention that did not meet
    the least onerous and least restrictive standard.

[99]

Further,
    the Board can make findings and non-binding recommendations, which would
    provide guidance to hospitals on the proper discharge of their obligations.

[100]

That this can be
    an effective remedy is borne out by the facts of this case.  By the time the
    Board heard this matter, the Hospital had already investigated what had taken place,
    and reviewed its procedures and policies both for admitting individuals on
    detention orders and for notifying the Board about restriction of liberty
    hearings.

[101]

Indeed, the
    Hospital had already implemented important changes both to its procedures for
    such re-admissions and to ensure that notice is properly given. Under the new
    admission procedure, when the Hospital requests that the police apprehend a
    patient, the police are to bring the patient to the Hospital at any time of
    day. (Recall that under the old procedure, at the Hospitals direction, the
    police took Mr. Chaudry to the Civic Campus because he was apprehended after
    5:00 p.m.)

[102]

Furthermore, under
    the new notice procedure, when the Hospital issues a Form 49 warrant of
    committal, a letter advising the Board of this is immediately drafted and
    placed in the patients file. That letter is then automatically sent to the
    Board seven days later, pursuant to s. 672.56(2)(b).

[103]

Although I have concluded
    that the Boards statutory mandate, structure and functions are not consistent
    with any legislative intent that the Board have the power to award costs, my
    conclusion does not undermine the important role that the Board plays in
    respect of
Charter

issues.  The Board has the jurisdiction to
    apply the
Charter

to issues that arise in the proper exercise
    of its statutory functions.  This ensures that the Board will play a primary
    role in determining
Charter

issues that fall within its
    specialised jurisdiction.

[104]

I would conclude
    on this ground of appeal by observing that, in my view, the Board erred in relying
    on
R. v. 974649 Ontario Inc.
, 2001 SCC 81, [2001] 3 S.C.R. 575

(
Dunedin
)

when it ordered the Hospital to pay costs.

[105]

In
Dunedin
,
    the respondents were charged under the Ontario occupational health and safety legislation
    with failing to comply with safety requirements on a construction project.
    They sought Crown disclosure but, ultimately, had to bring a motion to obtain it.
    A justice of the peace, acting under the
Provincial Offences Act
,
    R.S.O. 1990, c. P.33 (the

POA
), heard the motion and ordered
    disclosure.  He also ordered the Crown to pay costs of the motion to the
    respondents.  The Supreme Court upheld the costs order, ruling that justices of
    the peace acting under the
POA
have the power to make costs orders
    against the Crown for
Charter

breaches.

[106]

In my view, there
    are two crucial differences between the statutory mandates, functions and
    powers of a provincial court operating under the
POA
, and the Board
    operating under Part XX.1 of the
Criminal Code
.  The first is that s.
    90(2) of the
POA

expressly empowers provincial courts to make
    orders for the payment of costs in certain circumstances.  The second is that the
    use of costs orders by the provincial courts to discipline untimely disclosure is
    integrally related to their function as quasi-criminal trial courts:
Dunedin
,
    at para. 93.

[107]

Neither of these
    considerations applies to the Board.  There is no equivalent provision in Part
    XX.1 of the
Criminal Code
to s. 90(2) of the
POA
,

nor is
    the Board a quasi-criminal court that determines the guilt or innocence of
    accused persons.  Rather, the Boards supervisory jurisdiction is over the
    treatment and assessment of those persons who have been found by a court to be
    unfit to stand trial or not criminally responsible by reason of mental
    disorder.

[108]

For these
    reasons, I would allow this ground of appeal.

DID THE BOARD ERR IN ORDERING COSTS
    AGAINST THE HOSPITAL ON ITS OWN MOTION?

[109]

At the beginning
    of the Board hearing, Mr. Chaudry, through his counsel, made it clear that he
    was not seeking the costs of his
Charter
application.  As a result, the
    Hospital made no submissions on that matter.  Nonetheless, the Board made a
    costs order against the Hospital.

[110]

Mr. Chaudry
    submits that, in making the costs order, the Board did not deprive the Hospital
    of procedural fairness because its process is inquisitorial and the Board is
    obliged to arrive at the conclusion it thinks proper, no matter what position
    the parties have taken.

[111]

I would not
    accept this submission. In my view, the Board owed the Hospital a duty of procedural
    fairness. It breached that duty by making the costs order on its own motion,
    without giving the Hospital notice that it might be subject to such an order,
    and without giving the Hospital the opportunity to make submissions on the
    matter.

[112]

In
Kachkar
    (Re)
, 2014 ONCA 250, 309 C.C.C. (3d) 1, this court considered the
    circumstances in which the Board owes a duty of procedural fairness to the
    parties before it. At para. 39, Goudge J.A., writing for the court, quoted the
    following from
Cardinal v. Director of Kent Institution
, [1985] 2
    S.C.R. 643, at p. 653:

This Court has affirmed that there is, as a general common law
    principle, a duty of procedural fairness lying on every public authority making
    an administrative decision which is not of a legislative nature and which
    affects the rights, privileges or interests of an individual.

[113]

In
Kachkar
,
    the parties made a joint submission on the accuseds disposition. The Board
    accepted the joint submission, but also granted the accused additional privileges.
    On appeal, the Crown argued that it was denied procedural fairness because it
    was not given the opportunity to make submissions on the additional privileges.
    This court disagreed.  It held that the Crown was not entitled to procedural
    fairness in those circumstances for two reasons. First, the Crown was not an
    individual. Second, the Crown was not advancing before the Board an interest
    it could claim as its own:
Kachkar
, at para. 44. The Crowns
    interest  ensuring that the Board made a disposition that was the least
    onerous and least restrictive disposition consistent with public safety  was
    the public interest, not a private interest:
Kachkar
, at paras.
    43-44.

[114]

The facts of the
    present case, however, are materially different from those in
Kachkar
.
    The Board is clearly a public authority and it made an administrative decision
    when it ordered costs against the Hospital.  The Hospital, for the purposes of
    the duty of procedural fairness analysis, is a person whose rights or interests
    have been affected by the Board decision. Unlike the Crown in
Kachkar
,
    the Hospitals interest in avoiding the costs order is an interest that it can
    claim as its own.  The costs order is a significant decision and, as it adversely
    affects the Hospitals interests, the Hospital would have legitimately expected
    to have been heard on the matter before the Board decided it.

[115]

See also
Elster
    (Re)
,
2011

ONCA 701, [2011] O.J. No. 4947, and
Osawe
    (Re)
, 2015 ONCA 280, [2015] O.J. No. 2050.  In
Elster
, this court
    set aside a condition of a disposition order, in part because the Board had
    imposed the condition without having first heard from the parties on the
    matter.  In
Osawe
, this court set aside the Boards disposition
    because it rejected a joint submission without giving notice to the parties
    that it was inclined to so do.

[116]

Accordingly, in
    my view, the Board owed the Hospital a common law duty of procedural fairness
    in relation to the matter of costs.  The Board breached that duty by failing to
    give the parties the opportunity to address the matter before deciding it.

[117]

I would add
    this.  While it is procedural fairness that dictates setting aside the costs
    order in this case, concern for the integrity of the Boards decision-making
    process leads to a similar conclusion.  Enabling the parties to be heard on
    matters that affect their rights, privileges or interests ensures that the
    Board has the necessary information to properly consider and decide such matters.

[118]

Accordingly,
    even if the Board has the power to make an order as to costs, I would set aside
    the costs order in question on the basis of the Boards breach of its duty of
    procedural fairness.

DISPOSITION

[119]

For these reasons,
    I would allow the appeal, set aside the Amended Decision, including the costs
    order, and reinstate the Initial Decision.

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

Eileen E. Gillese J.A.

I agree. P. Lauwers J.A.

I agree. C.M. Speyer J. (ad
    hoc)

[1]
Section 672.54 of the
Criminal Code
was amended in 2014. The previous version of s. 672.54, in force at the time of
    the Board hearing and quoted above, reads as follows:

Where a court or Review Board
    makes a disposition under subsection 672.45(2) or section 672.47 or 672.83, it
    shall, taking into consideration the need to protect the public from dangerous
    persons, the mental condition of the accused, the reintegration of the accused
    into society and the other needs of the accused, make one of the following
    dispositions that is the least onerous and least restrictive to the accused:

(a) where a verdict of not
    criminally responsible on account of mental disorder has been rendered in
    respect of the accused and, in the opinion of the court or Review Board, the
    accused is not a significant threat to the safety of the public, by order,
    direct that the accused be discharged absolutely;

(b) by order, direct that the
    accused be discharged subject to such conditions as the court or Review Board
    considers appropriate; or

(c) by order, direct that the
    accused be detained in custody in a hospital, subject to such conditions as the
    court or Review Board considers appropriate.


COURT OF APPEAL FOR ONTARIO

CITATION: D.G. v. A.F.,
    2015 ONCA 366

DATE: 20150521

DOCKET: C59175

Laskin, Lauwers and Hourigan JJ.A.

BETWEEN

D.G.

Respondent (Appellant)

and

A.F.

Respondent (Appellant)

D.G., acting in person

A.F., acting in person

Heard:  April 10, 2015

On appeal from the order of Justice Francine E. Van Melle
    of the Superior Court of Justice, dated July 11, 2014, with reasons reported at
    2014 ONSC 4193.

ENDORSEMENT ON COSTS

[1]

The appellant was unsuccessful on this appeal (
2015
    ONCA 290)
. The respondent claims costs in the amount of $800, which is
    mostly disbursements. The appellant submits a costs outline seeking about
    $900.  This shows that the respondents claim is not unreasonable.

[2]

There is no reason in the circumstances why the ordinary costs rule
    should not apply. The successful respondent is entitled to his costs fixed in
    the amount of $800, payable within 30 days under the
Rules
    of Civil Procedure
.

John Laskin J.A.

P. Lauwers J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Frost v. Canada (Attorney General), 2015 ONCA 386

DATE: 20150529

DOCKET: C59684

Simmons, Juriansz and van Rensburg JJ.A.

BETWEEN

James Frost

Appellant

and

Attorney General of Canada

Respondent

Brian A. Callender, for the appellant

Michael Sims and Jim Kapches, for the respondent

Heard: March 10, 2015

On appeal from the order of Justice Robert J. MacKinnon of the
    Superior Court of Justice, dated September 17, 2014, with reasons reported at
    2014 ONSC 5666.

Juriansz J.A.:

[1]

The appellant is currently an inmate at Beaver Creek Institution, a
    federal correctional facility. He was arrested and charged in 2003 with
    conspiracy to import cocaine. He was first convicted in 2007 and sentenced in
    2008, but successfully appealed both conviction and sentence in 2010. In 2011,
    after a retrial, the appellant was once again convicted and sentenced to
    penitentiary.

[2]

On March 28, 2011, seven months before the appellant was convicted and
    sentenced a second time, the
Abolition of Early Parole Act,
S.C. 2011,
    c. 11 (
AEPA
) came into force and effect. The
AEPA
abolished
    the accelerated parole review (APR) regime that was previously available
    under the
Corrections and Conditional Release Act
, S.C. 1992, c. 20 (
CCRA
).
    As per s. 10(1) of the
AEPA
, APR is no longer available to any
    offender sentenced to penitentiary before, on or after March 28, 2011, the date
    the
AEPA
came into effect.

[3]

The appellant appeals from the dismissal of his application for
habeas
    corpus.
In that application, he sought a declaration that, by virtue of s.
    11(i) of the
Charter,
he is entitled to the APR regime in place at the
    time he committed the offences for which he was sentenced to penitentiary
.
He says that the application judge erred in finding that the application of the
AEPA
to his case was prospective and did not result in a variation of
    punishment within the meaning of s. 11(i) of the
Charter.

[4]

This appeal was heard together with
Canada (Attorney General) v.
    Lewis
, 2015 ONCA 379. Like the appellant, the respondents in
Lewis
were
    non-violent offenders who were convicted and sentenced to their first
    penitentiary term after the enactment of the
AEPA
for offences
    committed before its enactment. In
Lewis
this court found that the
    abolition of APR had the effect of appreciably increasing the amount of time
    the respondents would be incarcerated in comparison to what they would have
    expected under the regime in place at the time they committed their offences.
    This increase in incarceration was a variation in punishment within the meaning
    of s. 11(i) of the
Charter
and was not justified under s. 1 of the
Charter.

[5]

Based on the reasoning in
Lewis,
I would allow the appellants
    appeal and order that the appellant is eligible for APR in accordance entitled
    to the APR regime previously in place.

Released: May 29, 2015

(PR)

R.G. Juriansz J.A.

I agree Janet
    Simmons J.A.

I agree K. van
    Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gajewski (Re), 2015 ONCA 332

DATE: 20150811

DOCKET: C59245

Gillese, Tulloch and Lauwers JJ.A.

IN THE MATTER OF:  BARTOSZ GAJEWSKI

AN APPEAL UNDER PART XX.1 OF THE
CODE

Bartosz Gajewski, appearing in person

Anita Szigeti, for the appellant

Joanne Stuart, for the Crown

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

Heard: May 6, 2015

On appeal against the disposition of the Ontario Review
    Board dated, July 16, 2014.

APPEAL BOOK ENDORSEMENT

[1]

Mr. Gajewski suffers from delusional disorder. He has been found not
    criminally responsible for the index offences of forcible confinement and assault.
    By disposition dated July 16, 2014, the Board ordered that Mr. Gajewski
    continue to be detained on the Secure Forensic Unit at CAMH.

[2]

Mr. Gajewski appeals and asks that he be ordered detained on the less
    secure unit, that is, the General Forensic Unit at CAMH. He says he has been a
    model institutional citizen in the year prior to the 2014 hearing and
    disposition and detention on the more secure unit was largely designed to
    punish him for refusing to engage with his treatment team.

[3]

In light of Mr. Gajewskis continued refusal to communicate and engage
    with his treatment team, the Board did not act unreasonably in finding that the
    threshold risk to public safety remains. Because of his refusal to engage with
    his treatment team, the Hospital is unable to assess Mr. Gajewskis mental
    state on a day-to-day basis or to manage his risk. In our view, it was not
    unreasonable for the Board to find that it would be impossible to increase Mr. Gajewskis
    privileges without the ability to assess the risk associated with that
    increase.

[4]

Further, detention on the more secure unit is warranted because
    inability to assess risk to the public safety means that Mr. Gajewski is
    limited to escorted passes. Because of the higher staff-to-patient ratio on the
    more secure unit, Mr. Gajewski will actually enjoy more passes than if he were
    detained on the less secure unit.

[5]

Accordingly, the appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Global Food Traders Inc. v. Massalin, 2015 ONCA 362

DATE: 20150521

DOCKET: C59862

MacPherson, Gillese and van Rensburg JJ.A.

BETWEEN

Global Food Traders Inc. and Xela International
    Inc.

Plaintiffs (Respondents)

and

Fernando Massalin
,
    Maria Massalin, Tifco Foods, Inc., 2091399 Ontario Inc. and Latinamerican Foods
    Inc.

Defendants (Appellant)

Elaine Peritz and Sarah Turgeon, for the appellant

Martin Mendelzon, for the respondents

Heard: May 19, 2015

On appeal from the judgment of Justice James M. Spence of
    the Superior Court of Justice, dated December 18, 2014.

ENDORSEMENT

[1]

In April 2012, Global Food Traders (GFT) and Latinamerican Foods Inc.
    (LAFI) entered into a purchase agreement under which GFT sold its trademarks
    and customer base to LAFI for $500,000, payable by 50 post-dated cheques for
    $10,000 each (the Agreement).

[2]

Mr. Massalin, the sole officer, director and controlling mind of LAFI,
    executed the Agreement on behalf of LAFI.

[3]

Below the signatures of the parties to the Agreement, there is the
    following statement:

The undersigned is executing this Agreement solely in
    connection with his obligations as set forth in Section 1 of this Agreement.

[4]

Mr. Massalin personally signed below this statement.

[5]

The relevant part of section 1 of the Agreement can be found in its last
    two sentences, which read as follows:

The Purchase Price shall be payable in 50 equal monthly
    installments of $10,000 commencing April 30, 2012 by post-dated cheques.
If
    Mr. Massalins obligations are called upon pursuant to this Section he shall
    within three days provide the Seller with immediately available funds to cover
    any bounced or NSF cheques
.  [Emphasis added.]

[6]

GFT performed in accordance with the Agreement.  However, after
    receiving $140,000, the balance of LAFIs post-dated cheques were not
    honoured.  GFT sued.

[7]

LAFI is currently in receivership.

[8]

At the motion below, there was no dispute raised as to LAFIs failure to
    pay or the amount owing under the Agreement.

[9]

By judgment dated Dec 8, 2014, GFT was granted partial summary judgment
    against Mr. Massalin.  The motion judge found that the guarantee in para. 1
    of the Agreement was valid and enforceable.

[10]

Mr.
    Massalin appeals.  He submits that:

1.

the motion must be remitted for rehearing because the motion judge gave
    no reasons for decision;

2.

the decision is flawed because the motion judge failed to make a finding
    of liability as against LAFI; and

3.

the motion judge erred in finding that s. 1 of the Agreement constituted
    a guarantee.

[11]

We
    do not agree.

[12]

We
    reject the appellants submission that the motion judges reasons are
    inadequate.  While brief, the reasons convey the reasoning below as to the
    meaning of s. 1.

[13]

We
    see no merit in the appellants second submission.  On the motion below, the
    appellant did not dispute the amounts which GFT stated LAFI owed under the
    Agreement. Moreover, we do not accept that without a finding of liability
    against LAFI, there can be no finding of liability on the personal guarantee
    and because LAFI is in receivership, there can be no finding of its liability
    absent leave of the court or consent of the receiver. A personal guarantee
    provides a contracting party with recourse if the principal debtor is unable to
    pay, even where the principal debtor goes bankrupt:
Royal Building
    Supplies Ltd. v. Tabrco Management Ltd. et al
, 2006 CarswellOnt
    8900(S.C.), affd 2007 CarswellOnt 831 (C.A.)  and
Setanta Sports Na Ltd.
    v. Score Television Network Ltd.
, 2009 CanLII 41213 (Ont. S.C.).

[14]

Finally,
    while the word guarantee is not used in section 1, it is clear from that
    section and underscored by the statement at the foot of the Agreement, that
    section 1 contains Mr. Massalins personal guarantee of LAFIs payment
    obligations under the Agreement.  Indeed, although Mr. Massalin baldly denies
    that section 1 contains a personal guarantee, he offers no other explanation
    for what meaning could be given to the last sentence of that section or for why
    he signed the Agreement in his personal capacity.  While there is a lack of
    precision in the wording of section 1, there can be no misapprehension as to
    what the parties were agreeing to when they executed the Agreement.  Mr.
    Massalin, the sole director, officer and controlling mind of LAFI, a closely
    held corporation, was providing his personal guarantee to pay any amounts
    required to cover LAFIs bounced or NSF cheques under the Agreement.

[15]

We
    note, as well, that the record shows that Mr. Massalin acknowledged his
    liability both before and after signing the Agreement in his personal capacity.

[16]

Accordingly,
    the appeal is dismissed with costs to the respondent fixed at $6,930, all
    inclusive.

J.C.
    MacPherson J.A.

E.E.
    Gillese J.A.

K.
    van Rensburg J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Gold Leaf Products
    Ltd. v. Pioneer Flower Farms Ltd., 2015 ONCA 365

DATE: 20150522

DOCKET: C59064

Strathy C.J.O., LaForme and Tulloch JJ.A.

BETWEEN

Gold Leaf Garden Products Ltd.

Plaintiff (Respondent)

and

Pioneer Flower Farms Ltd.
,

Henk Sikking Sr. and
    Henk Sikking Jr.

Defendants (
Appellant
)

Joanna Nairn and Jonathan Rosenstein, for the appellant

R. Leigh Youd, for the respondent

Heard: May 15, 2015

On appeal from the judgment of Justice J. Christopher
    Corkery of the Superior Court of Justice, dated June 12, 2014.

ENDORSEMENT

[1]

Pioneer Flower Farms Ltd. (Pioneer) and Gold Leaf Garden Products Ltd.
    (Gold Leaf) entered an agreement whereby Gold Leaf would solicit new
    customers for Pioneer. In return, Pioneer was to pay Gold Leaf a 5% commission
    on sales to customers it brought in. Pioneer later terminated the agreement.

[2]

The parties disagreed on whether Pioneer was required to pay Gold Leaf
    ongoing commissions post-termination for sales to those customers Gold Leaf had
    brought in. Gold Leaf brought an action seeking the commissions for sales
    following the termination of the agreement.

[3]

On Gold Leafs motion for summary judgment, the motion judge held that
    the agreement required Pioneer to continue to pay Gold Leaf the commissions.
    Pioneer appeals and raises three issues, which we conclude have no merit.

(i)

Interpretation of the Agreement

[4]

On the first issue  the interpretation of the agreement  the motion
    judge found that para. 5 could be read in two alternative ways. First, that
    commission will be paid only during the period of the agreement. Or second,
    that commission will be paid only for new clients brought to Pioneer during the
    period of the agreement. Read in the latter way, para. 5 would not terminate
    commission from those customers recruited during the agreement who continued to
    purchase from Pioneer. The motion judge chose the second reading.

[5]

Pioneer says that given the two possible readings, the motion judge
    should have found ambiguity. Once he found ambiguity, the rules of construction
    should have led the motion judge to treat para. 5 as a qualification of the
    general term providing for the payment of commissions. We disagree.

[6]

The motion judge found that the first interpretation creates
    inconsistencies between para. 5 and the remainder of the agreement,
    specifically paras. 4 and 7. He found that the second interpretation was
    correct because it gives reasonable meaning to each of the terms of the
    agreement. In other words, he determined the objective intentions of the
    parties, which is the goal of contractual interpretation:
Creston Moly
    Corp. v. Sattva Capital Corp.
, 2014 SCC 53, [2014] 2 S.C.R. 633, at para.
    49.

[7]

Pioneer has not satisfied us that the motion judge made any error.
    Accordingly, the motion judges interpretation is entitled to deference and
    this ground of appeal is dismissed.

(ii)

Non est factum

[8]

On the second issue of
non est factum
, the law says a person
    who fails to exercise reasonable care in signing a document is precluded from
    relying on this defence:
Marvco Color Research Ltd. v. Harris
, [1982]
    2 S.C.R. 774, at p. 785. Henk Sikking Jr. did not read the agreement when he
    signed it on behalf of Pioneer. He accordingly failed to exercise reasonable
    care in signing the agreement. The motion judge was correct in holding that the
    defence was unavailable to Pioneer. This ground of appeal is dismissed.

(iii)

Set-off

[9]

Finally, on the third issue of set-off, Pioneer submits that the motion
    judge, prior to hearing the summary judgment motion, misdirected Pioneers
    counsel such that he reasonably believed the court would not decide the
    question of equitable set-off on summary judgment. Because of this reasonable
    belief, Pioneer says that it led no evidence on the issue of set-off. It was
    therefore denied natural justice when the motion judge dismissed the defence.

[10]

Pioneer
    has filed what it refers to as fresh evidence consisting of its motion
    solicitors affidavit and his understanding as to what transpired before the
    court below. Transcripts of the proceedings on December 7, 2012 are attached as
    appendices. While the affidavit is not proper fresh evidence, we take no issue
    with the filing of the transcripts for consideration on this appeal. Pioneers
    factum and oral arguments sufficiently convey the interpretation that Pioneer
    submits this court should take from the transcripts. We disagree with Pioneer.

[11]

The
    motion for summary judgment did not proceed on December 7, 2012 as scheduled.
    However, at the hearing, the parties and the motion judge discussed the
    possibility of bifurcating the proceedings between set-off and the rest of the issues.
    Gold Leaf sought to bifurcate the proceedings, to which Pioneer said it could
    not consent. The motion judge did not agree to bifurcate and did not appear to
    see bifurcation as necessary. Furthermore, the order from the December 7
    hearing does not order bifurcation.

[12]

On
    April 10, 2013, Gold Leaf filed a Fresh as Amended Notice of Motion for summary
    judgment. Under grounds, the Notice asserted that [t]here is no genuine issue
    requiring a trial with respect to the defence. The Notice did not identify any
    particular defences. It requested summary judgment or, if appropriate, partial
    summary judgment. In our view, a reasonable solicitor would have read the
    Notice as denying all defences, set-off or otherwise, and asking for as much
    relief on summary judgment as possible.

[13]

In
    sum, as Pioneer did not agree to bifurcation and the motion judge did not order
    it, Pioneer should have known that set-off had not been split off from the rest
    of the issues. Taking the Notice and the absence of a bifurcation order together,
    Pioneer should have known that set-off was at play in the summary judgment
    motion.

[14]

Pioneer,
    in response to the summary judgment motion, was required to put its best foot
    forward  to lead trump or risk losing  and it failed to do so. It was not
    denied procedural fairness with respect to equitable set-off. It knew or ought
    to have known that this issue was before the motion judge.

Disposition

[15]

For
    these reasons, the appeal is dismissed. Gold Leaf is awarded its costs of the
    appeal in the agreed upon amount of $12,500, inclusive of disbursements and
    HST.

G.R. Strathy C.J.O.

H.S.
    LaForme J.A.

"M.
    Tulloch J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Growmark Inc. v. Clark (Hamland Farms), 2015 ONCA
    308

DATE: 20150504

DOCKET: C59216

Simmons, Gillese and Rouleau JJ.A.

BETWEEN

Growmark Inc.

Respondent (Plaintiff)

and

Bruce Clark and Elizabeth Clark carrying on
    business in partnership under the firm name and style of Hamland Farms

Appellant (Defendants)

Donald R. Good, for the appellant

John M. Skinner, for the respondent

Heard: May 1, 2015

On appeal from the judgment of Justice Garson of the Superior
    Court of Justice, dated July 18, 2014.

APPEAL BOOK ENDORSEMENT

[1]

Counsel for the appellant is not present at 11:30 a.m.  Counsel for the
    respondent advises that this date was cleared with counsel for the appellant
    and notice sent by the court.  He has checked with his office and no messages
    have been received from counsel for the appellant.  He has also checked with
    the office of counsel for the appellant and was told counsel is at a meeting.

[2]

In all the circumstances, the appeal is dismissed as abandoned.  Costs
    to the respondent on a partial indemnity scale fixed in the amount of $7,500,
    inclusive of disbursements and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Hoang v. Mann Engineering Ltd., 2015 ONCA 300

DATE: 20150501

DOCKET: C59356

Doherty, Pepall and van Rensburg JJ.A.

BETWEEN

K. Matthew Hoang

Appellant (Plaintiff)

and

Mann Engineering Ltd., Aris Building
    Technologies, Cartwright Management, Mann Enterprises, Wu Ventures, Hay Solar
    Ltd. And Gigajoule Research and Development Ltd. (carrying on business as the
    Mann Group)

Respondents (Defendants)

K. Matthew Hoang, appearing in-person

Jeff C. Hopkins and Justin Tetreault, for the respondents
    (defendants)

Heard:  April 24, 2015

On appeal from the order of Justice Carole J. Brown of
    the Superior Court of Justice, dated August 22, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The appeal challenges factual findings.

[2]

The appellant asserts that the employment relationship was governed by
    the April 21, 2011 offer letter.  The trial judge rejected this argument.  She
    found that the appellant did not accept the terms of the offer letter meaning
    there was no amended employment contract and that the earlier mutual
    agreement was the only operative contract of employment (see paras. 81-82).  These
    findings are justified on the trial record.

[3]

The appellant challenges the finding of just cause for termination.  On
    the trial judges findings, the appellants dismissal was fully justified (see
    para. 74).  On the trial judges findings, the appellant repeatedly conducted
    himself in a manner which rendered his continued employment a virtual
    impossibility.  Once again, those findings are justified on the evidence.

[4]

In our view, the appellant has a valid point in respect of the $6,250.
    As we read the record, the respondent did purport to deduct that amount from
    the final payment made to the appellant.  Although the record is not entirely
    clear on the point, we are satisfied that the respondent treated this as a
    deduction from wages.  In doing so, the respondent ran afoul of s. 13 of the
Employment
    Standards Act
.

[5]

The other issues raised by the appellant need not be
    addressed in light of our ruling on the factual issues.  We should, however,
    indicate that the breach of the
Employment Standards Act
is far from egregious and would not attract any
    damage consequences.

[6]

The appeal is allowed and the trial
    judgment varied to order payment of $6,250 to the appellant.  In light of the
    mixed success, and in accordance with the positions of the parties, we would
    award costs of $5,000 to the respondent, inclusive of disbursement and all
    relevant taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Hull v. Metropolitan Toronto Condominium
    Corporation No. 721, 2015 ONCA 307

DATE: 20150504

DOCKET: C59692

Simmons, Gillese and Rouleau JJ.A.

BETWEEN

Thomas Ian Hull

Applicant (Appellant)

and

Metropolitan
    Toronto Condominium Corporation No. 721,

Marshall Cohen and Bill
    Deluce

Respondents (Respondents in Appeal)

Michael A. Spears and Michael John Campbell, for the
    appellant

Lea Nebel and Varoujan Arman, for the respondents

Heard and released orally: April 28, 2015

On appeal from the judgment of Justice Kevin W. Whitaker
    of the Superior Court of Justice, dated October 28, 2014.

ENDORSEMENT

[1]

The appellant appeals from an order dismissing his application for
    relief under ss. 134 and 135 of the
Condominium Act, 1998
, S.O. 1998,
    c. 19.

[2]

For several reasons, we accept the appellants submissions that the
    application judges reasons are inadequate.

[3]

First, the reasons fail to reflect that the application judge
    appreciated the issues raised on the application. Although the application
    judge lists six issues that were in play, his list is both incomplete and
    inaccurate. For example, the application judge described one of the issues as
    being that the appellant was coerced and pressured into supporting a special
    assessment when the appellants actual objection was that the special
    assessment was not properly authorized and that the condominium corporation
    should not have filed a lien against his property for failing to pay the
    assessment.

[4]

Second, the application judge failed to set out the correct legal test
    for relief under s. 135 of the
Condominium Act
. The Act stipulates
    that the court may make an order if the court determines that the conduct of
    an owner, [or] a corporation  is  oppressive or unfairly prejudicial to the
    applicant or unfairly disregards the interests of the applicant. To the extent
    that the application judge referred to a test, he made the conclusory statement
    that he was not persuaded that the [appellant] has been treated unfairly, in
    bad faith or in a discriminatory fashion. At a minimum, the application judge
    erred by failing to refer to the unfairly disregards the interests of the
    applicant branch of the test, which was central to the issues on the
    application before him.

[5]

Third, while the application judge concluded that there had been no
    breaches of the Act, he gives no basis for this conclusion. To reach this
    conclusion, he would have had to have made findings of fact, and this would have
    necessitated resolving conflicts in the evidence. This was not done. Moreover,
    this conclusion appears to be contradicted by the application judges earlier
    statement that deficiencies the appellant complained of had been remedied by
    the time the application was heard.

[6]

Finally, the remedies under the
Condominium Act
are
    discretionary. Beyond expressing a conclusion, there is no indication in the
    application judges reasons as to how and on what basis he exercised any
    discretion.

[7]

In these circumstances, where the application judges reasons contain
    virtually none of the components necessary to resolve this matter, fairness
    dictates that the application be remitted for a fresh hearing with costs of the
    initial hearing reserved to the judge on the new hearing.

[8]

Costs of the appeal are to the appellant on a partial indemnity scale
    fixed in the amount of $15,000 inclusive of disbursements and applicable taxes.

Janet Simmons
    J.A.

Eileen E. Gillese J.A.

Paul Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hunter-Rutland Inc. v. Huntsville (Town), 2015 ONCA
    353

DATE: 20150519

DOCKET: C59493

Strathy C.J.O., LaForme and Tulloch JJ.A.

BETWEEN

Hunter-Rutland Inc.

Respondent (Plaintiff)

and

The Corporation of the Town of Huntsville

Appellant (Defendant)

William A. Chalmers, for the appellant

Daniel J. Wyjad, for the respondent

Heard: May 12, 2015

On appeal from the order of Justice Thomas M. Wood of the
    Superior Court of Justice, dated October 9, 2014
,
with reasons
    reported at 2014 ONSC 5902 (CanLII).

ENDORSEMENT

[1]

Hunter-Rutland Inc. (HRI) was a commercial tenant of the Town of
    Huntsville (the Town). HRI defaulted on rent, was evicted from the premises,
    and was given 30 days to remove its possessions. HRI removed all its
    possessions except for a router. The Town later sold the router and applied the
    funds to a charity. HRI commenced an action for conversion and negligence in
    respect of the Towns disposal of the router.

[2]

The Town brought a motion for summary judgment arguing that the
    limitation period expired. HRI did not serve any notice of motion and did not
    seek any relief other than the dismissal of the Towns motion.

[3]

The motion judge granted summary judgment in favour of HRI and directed
    that damages be assessed at a later date under rule 20.05. The Town appeals the
    order.

[4]

We would dismiss the appeal for the following reasons.

[5]

First, there was nothing wrong with the motion judge granting judgment
    in favour of HRI in all the circumstances of this case. Had HRI brought its own
    motion for summary judgment, it is difficult to see how the argument and
    evidence would have been different given the scope of the issue involved. The
    jurisprudence supports the conclusion that a motion judge, on summary judgment
    motions, has the power to grant judgment for or against the moving party: see
Whalen
    v. Hillier
(2001), 53 O.R. (3d) 550 (C.A.).

[6]

Thus, in the absence of any prejudice, and given the monetary claims in
    issue, this was an entirely fair process that resulted in a just adjudication
    of the disputes between the parties.

[7]

Second, we agree with the motion judge; the claim was discovered when
    the respondent learned of the sale. That is to say, the alleged wrongful
    conduct was related to the Towns handling of the sale of the router, not its
    seizure. The motion judge was, therefore, correct in holding that the
    limitation period had not expired.

[8]

Third, even if the router became the property of the Town by virtue of
    clause 6.2 of the lease, the Town was nevertheless obligated by clause 10.10 to
    apply the proceeds of the sale to rent arrears. Moreover, the Town was
    obligated to sell the router at a reasonable price pursuant to s. 53 of the
Commercial
    Tenancies Act
, R.S.O. 1990, c L.7.

[9]

For the sake of clarity, and as acknowledged by the respondent, the Town
    may rely on all the defences and arguments otherwise available to a party on
    the assessment of damages. Specifically, they are not constrained from doing so
    by paras. 48 and 52(4) of the motion judges reasons.

[10]

Finally,
    HRI is awarded its costs of the appeal in the agreed upon amount of $13,500,
    inclusive of disbursements and HST.

G.R. Strathy C.J.O.

H.S.
    LaForme J.A.

"M.
    Tulloch J.A."


COURT OF APPEAL FOR ONTARIO

CITATION: Jacob v. Playa El Agua Development Limited
    Partnership, 2015 ONCA 372

DATE: 20150525

DOCKET: C59761

MacPherson, Cronk and Gillese JJ.A.

BETWEEN

Jose-Bernard Jacob

Plaintiff (Appellant)

and

Playa El Agua
    Development Limited Partnership, Playa El Agua Development General Partner
    Ltd.,
Morris, Rose, Ledgett, The Estate of John Church
,
    Torcat, Michael Paterson,
Harvey Wortsman, Hwa Lee
,
    Dennis Derry, and Seaviewdevelopments de Venezuela C.A.

Defendants(Respondents)

Robert A. Maxwell, for the appellant

Jack B. Berkow and Ranjan Das, for the respondents
    Morris, Rose Ledgett and Harvey Wortsman

David A. Brooker, for the respondents the Estate of John
    Church and Hwa Lee

Heard and released orally: May 21, 2015

On appeal from the Order of Justice Darla A. Wilson of
    the Superior Court of Justice, dated November 19, 2014.

ENDORSEMENT

[1]

The appellant Jose-Bernard Jacob appeals the Order of D. Wilson J. of
    the Superior Court of Justice dated November 19, 2014 dismissing this action
    against these four defendants.

[2]

The action, which relates to a property transaction in Venezuela, was
    commenced by the appellant in 1998. By the autumn of 2014, it had still not
    come to trial. There is a long list of steps, missteps, inactivity and silence
    during the 16-year life of the action. All of it was documented in the
    well-organized and comprehensive reasons of the motion judge. The overwhelming
    majority of the missteps, inactivity and silence clearly rest at the feet of
    the appellant, as the motion judge found.

[3]

The well-established test is that an action should not be dismissed for
    delay unless: (1) the delay is intentional and contumelious; or (2) there is an
    inordinate, inexcusable delay, for which the plaintiff or his lawyer is
    responsible, which gives rise to a substantial risk that a fair trial might not
    now be possible: see
Langenecker v. Sauvé
, 2011 ONCA 803, at paras.
    6-7.

[4]

It is the second branch of the test that is in issue on this appeal.
    There can be no question that the delay in this case was inordinate. In
Langenecker
,
    Doherty J.A. said, at para. 8, that there can be no doubt that 15 years from
    the commencement of the action to the motion to dismiss constitutes inordinate
    delay. Obviously, the same comment applies to a 16-year delay.

[5]

In our view, the delay was as clearly inexcusable as it was inordinate.
    The motion judge documented a long list of missteps and omissions involving
    answering undertakings, producing documentation, serving expert reports on both
    liability and damages, and other matters. Moreover, as the motion judge found,
    credibility was a central issue in this action in which allegations of fraud
    and conspiracy were made against several of the defendants, including the
    respondents. She also carefully considered the issue of prejudice, including
    the fact that two of the principal defendants had died during the actions long
    life.

[6]

In summary, we are in substantial agreement with the motion judges
    reasons. The appellants attack, both procedural and substantive, on those
    reasons is unpersuasive. The motion judge was right to invoke and apply to this
    action what Lauwers J.A. said in
Wallace v. Crates Marine Sales Ltd.
,
    2014 ONCA 671, at para. 22: [T]here comes a time, in short, when enough is
    enough, and the civil justice system will no longer tolerate inordinate and
    inexplicable delay.

[7]

The appellant also appeals the costs order made by the trial judge. We
    see no basis for interfering with her costs award. It is neither plainly wrong
    nor tainted by an error in principle.

[8]

The appeal is dismissed. The respondents are entitled to their costs of
    the appeal fixed at $12,000 (Morris, Rose, Ledgett and Harvey Wortsman) and
    $7,000 (Hwa Lee and the Estate of John Church), both inclusive of disbursements
    and applicable taxes.

J.C. MacPherson J.A.

E.A. Cronk J.A.

E.E. Gillese
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Jiang v. Jade-Kennedy Development Corporation, 2015
    ONCA 369

DATE: 20150522

DOCKET: M44935 (C58683)

Epstein, Pepall and Benotto JJ.A.

BETWEEN

Runquan Jiang

Plaintiff (Appellant)

and

Jade-Kennedy
    Development Corporation
,

Tradeworld
    Realty Inc., and Philip K.S. Ching

Defendants (Respondent in appeal)

John OSullivan, for the appellant

Stephen Schwartz, for the respondent Jade-Kennedy
    Development Corporation

Heard: April 28, 2015

ADDENDUM

[1]

The appellant brought a motion asking the panel to reconsider its
    decision.   The panel declined to address an issue that was not part of the
    directed issue before the trial judge.

[2]

After considering the written submissions of the parties, we will not
    reconsider the decision rendered.

[3]

Upon reviewing the Endorsement, we wish to make a change to the second
    sentence in paragraph 10.  The words The
Act
requires that should be
    deleted.  The sentence should read The disclosure statement provides that the
    plan

[4]

The motion is dismissed with costs to the respondent fixed at $500.00
    inclusive of HST and disbursements.

Gloria Epstein J.A.

S.E. Pepall J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: King v. 1416088 Ontario Ltd. (Danbury Industrial),
    2015 ONCA 312

DATE: 20150504

DOCKET: C58694

Simmons, Gillese and Rouleau JJ.A.

BETWEEN

Jack King

Plaintiff (Respondent)

and

1416088 Ontario Ltd., c.o.b. as Danbury Industrial and
    Danbury Sales Inc.

and 1416087 Ontario Ltd. c.o.b. as Danbury Appraisal and
    2184493 Ontario

Ltd. c.o.b. as Danbury Solutions and 986866 Ontario Ltd. c.o.b.
    as Danbury

Capital and/or DSL Commercial

Defendants (Appellants)

R. G. Chapman, for the appellants

Matthew A. Fisher and Bram A. Lecker, for the respondent

Heard: April 30, 2015

On appeal from the judgment of Justice Graeme Mew of the Superior
    Court of Justice, dated March 25, 2014, with reasons reported at 2014 ONSC
    1445, 16 C.C.E.L. (4th) 331.

ENDORSEMENT

[1]

Jack King worked as an accountant for the Danbury group of companies from
    September 1973 to October 2011, a period of 38 years.  His employment was
    terminated without cause.  The Danbury group has carried on a liquidation and
    auctioneering business in Toronto for decades through various corporations.

[2]

Mr. King was formally employed by a series of different Danbury
    corporations.  In 1981, Mr. King entered into an agreement with the Danbury
    company that was his formal employer at that time.  Under the terms of the
    agreement, he was entitled to retirement compensation of $736.60 per month, for
    life, so long as he continued to be employed with the company or its successors
    until he was 65 (the pension agreement).

[3]

At the time his employment was terminated, Mr. Kings formal employer
    was the appellant 1416088 Ontario Ltd., carrying on business as Danbury
    Industrial.  Two months later, the appellant company 986866 Ontario Ltd.,
    carrying on business as Danbury Capital and/or DSL Commercial (DSL), held an
    auction and was operating a liquidation and auctioneering business using the
    Danbury name and premises.  Mr. King had assisted with the groundwork
    necessary for DSLs start-up prior to the end of his employment with the
    Danbury group.

[4]

The president of Danbury Industrial (Mr. Kings formal employer at the
    time of termination) was David Ordon.  The president of DSL is Davids son,
    Jonathan Ordon.  All of the employees of Danbury Industrial, with the exception
    of David Ordon, were terminated at the same time.  David Ordon and five other
    former Danbury Industrial employees were later hired by DSL.  Mr. King was not.

[5]

When Mr. Kings employment was terminated, he was nearly 73 years of
    age.  He was given no compensation for the wrongful termination  no pay in
    lieu of notice, no statutory termination pay, no vacation pay and no pension
    payments.

[6]

Mr. King sued various Danbury corporations (the appellant companies)
    for which he had worked over his career.  Part of his claim, including that
    part relating to the
Employment Standards Act
, 2000
, S.O. 2000,
    c. 41

(the
ESA
), was settled before trial.

[7]

At trial, the issues to be decided were: (1) which of the appellant
    companies were liable for payment of the amounts that Mr. King was owed; and
    (2) whether Mr. King was entitled to the retirement compensation promised under
    the pension agreement.

[8]

The trial judge found that all of the appellant companies were Mr.
    Kings common employer, and so were jointly and severally liable for the monies
    owed to Mr. King.  The trial judge also found that the pension agreement was
    valid and that all of the appellant companies were liable for the benefits due
    under that agreement.

[9]

On appeal, the appellant companies contend that the trial judge erred in
    both of these determinations.

[10]

The
    court found it unnecessary to call on the respondent and dismissed the appeal
    with reasons to follow.  These are the promised reasons.

ANALYSIS

[11]

The
    appellant companies first submit that, apart from Danbury Industrial, they were
    not Mr. Kings employer.  They say that there was insufficient evidence of
    common control for the trial judge to have found that they were Mr. Kings
    common employer.  In particular, they say that DSL should not be liable because
    it did not even begin operating until some months after Mr. Kings employment
    had been terminated.

[12]

We
    do not agree.

[13]

We
    see no error in the trial judges conclusion that there was a sufficient
    relationship among the appellant companies that they should be regarded as one,
    for the purpose of liability for the wrongful termination of Mr. Kings
    employment.

[14]

There
    is no dispute that the trial judge set out the applicable legal principles from
    this courts decision in
Downtown Eatery (1993) Ltd. v. Ontario
(2001), 54 O.R. (3d) 161 (C.A.).  The trial judge made clear findings of fact
    that supported his conclusion and demonstrated the interconnections among the
    Danbury businesses and Mr. Kings contributions to them all.

[15]

Moreover,
    his findings make it clear that although DSL was owned by Jonathon Ordon and may
    not have formally started operating until after Mr. Kings employment was terminated,
    Mr. King did work for DSL prior to its formal launch.  Paragraphs 50 to 51 of
    the trial judges reasons are instructive in this regard.  They read as
    follows:

DSL has too many attributes in common with other companies who
    have traded under the Danbury name to escape from liability to the plaintiff.

DSL is the current incarnation of the business that the
    plaintiff worked for over a period of 38 years.  Far from there being clear
    water between the termination of the business by Danbury Industrial and the
    recommencement of business by DSL, the groundwork for DSLs start-up was
    already being laid, with the assistance of the plaintiff, in October 2011 while
    the plaintiff continued to be formally employed by Danbury Industrial. Indeed,
    from May 2010 to October 2011, David Ordons company (Danbury Industrial) had
    been using the Danbury name and goodwill even though Jonathan Ordons company
    (866 Inc.) [
i.e.
, DSL] was the sole holder of the license to use the
    name.  This further supports the interconnectedness of the entities.

[16]

The
    appellant companies second and third submissions relate to s. 4 of the
ESA
.
    These submissions are irrelevant because the
ESA
issue was resolved
    prior to trial and forms no part of the judgment under appeal.  In any event, however,
    we do not accept the appellant companies submission that the principles in
Downtown
    Eatery

are modified by s. 4 of the
ESA
.

[17]

The
    appellant companies fourth submission is that Mr. King is entitled to enforce
    the pension agreement only against the Danbury company that was a party to it.
    The appellant companies contend that the trial judge erred in finding them
    liable to Mr. King under that agreement.

[18]

Again,
    we would not accept this submission.  Once the trial judge found that the pension
    agreement was valid and that Mr. King had provided essentially the same
    services throughout his 38 years of service, in light of his findings on the
    matter of common employer, it follows that the appellant companies were jointly
    and severally liable for the amounts owing under that agreement.  The fact that
    the appellant companies did not execute the pension agreement does not relieve
    them of liability.

DISPOSITION

[19]

Accordingly,
    the appeal is dismissed with costs to the respondent, fixed at $15,000, all
    inclusive.

Janet Simmons J.A.

E.E. Gillese J.A.

Paul
    Rouleau J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lawlor v. Walton, 2015 ONCA 358

DATE: 20150520

DOCKET: C59868

Weiler, Cronk and Pepall JJ.A.

BETWEEN

Linda Lawlor and Linda Mills

Plaintiffs (Appellants)

and

Pamella
    Walton and Latoya Johnson and

Marjorie
    Johnson

Defendants (Respondents)

Howard Gerson, for the appellants

Granville N. Cadogan, for the respondents

Heard: May 11, 2015

On appeal from the order of Justice P.H. Howden of the
    Superior Court of Justice, dated December 11, 2014.

ENDORSEMENT

[1]

The appellants appeal from the motion judges ruling on the respondents
    motion under Rules 21 and 25.11 of the
Rules of Civil Procedure
.  The
    motion judge concluded that the appellants action was an impermissible
    collateral attack on an October 27, 2010 decision of the Deputy Director of
    Titles under the
Land Titles Act
, R.S.O. 1990 c. L.5 (the Land Titles
    Decision), which the appellants failed to appeal.  Accordingly, the motion
    judge granted the respondents motion and dismissed the appellants action.

[2]

The appellants appeal.  For the following reasons, we conclude that the
    appeal must be allowed.

[3]

The motion judge noted in his reasons that, in their statement of claim,
    the appellants sought an order granting them an extension of time within which
    to appeal the Land Titles Decision.  However, the motion judge did not address
    the merits of whether the appellants had satisfied the test for an extension of
    time or whether such an extension should be granted.

[4]

The record before the motion judge also included a decision by Spies J.
    of the Superior Court of Justice, dated February 2, 2014, acquitting the
    appellant Linda Lawlor of fraud in relation to the transactions at issue in the
    appellants action.  Justice Spies core factual findings at Ms. Lawlors
    criminal trial are diametrically at odds with the Deputy Directors findings in
    the Land Titles Decision.

[5]

Of course, the factual findings at the criminal trial were in no way
    binding on the motion judge.  Ms. Lawlors acquittal at her criminal trial merely
    established that the Crown had failed to prove, to the requisite criminal
    standard, that she had engaged in fraud in relation to the property at issue.
    Nonetheless, the findings in the criminal proceeding were relevant to an
    assessment of the full circumstances of this case, especially where they ran
    contrary to the inculpatory findings on the same or similar issues in the Land
    Titles Decision.  The motion judge, however, made no mention of the criminal
    proceeding, or of the extensive reasons of the trial judge in that proceeding.

[6]

Further, the record before this court provides some support for the
    appellants claim that procedural fairness at the hearing before the Deputy
    Director of Titles was compromised.  Contrary to the motion judges view, there
    is evidence at this appeal hearing that service on the appellants of notice of
    the hearing before the Deputy Director may have been defective.  It is also uncontested
    that the appellants participated only on the second day of the hearing before
    the Deputy Director and that they were afforded no opportunity to question the
    respondents witnesses who had testified in the appellants absence.

[7]

In our view, in many respects, neither side in this dispute has conducted
    this litigation in accordance with the proper procedures contemplated under the
Rules of Civil Procedure
.  That said, we are persuaded that the
    appellants conduct prior to and at the hearing before the motion judge is
    consistent with the view that their request for an extension of time within
    which to appeal the Land Titles Decision was a live issue.

[8]

Finally, we note that the findings of fraudulent conduct made against
    the appellants in the Land Titles Decision are most serious.  In addition, the
    practical effect of that decision is to require the appellant Linda Lawlor to
    vacate the home where she has resided for approximately eight years.

[9]

In all the circumstances, the interests of justice require that the
    appellants request for an extension of time to appeal the Land Titles Decision
    be heard on the merits, on a proper record.

[10]

Accordingly,
    the appeal is allowed and the appellants action is reinstated, without
    prejudice to renewal by the respondents of their Rule 21 motion, if so
    advised.  If the appellants intend to proceed with a motion for an extension of
    time within which to appeal the Land Titles Decision, they shall serve and file
    their motion, on proper materials, in the Superior Court of Justice within 45
    days from the date of the release of these reasons, failing which they will be
    deemed to have abandoned any extension of time request.

[11]

In
    the unusual circumstances of this case, no award of the costs of the appeal is
    appropriate.

K. M. Weiler
    J.A.

E.A. Cronk
    J.A.

S.E. Pepall J.A.