COURT OF APPEAL FOR ONTARIO

CITATION: Esgin (Re), 2017 ONCA 1022

DATE: 20171228

DOCKET: C63517

Sharpe, Watt and Roberts JJ.A.

IN THE MATTER OF: Burhan Esgin

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant, Burhan Esgin

Andrew Cappell, for the respondent, the Attorney General
    of Ontario

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

Heard and released orally: December 20, 2017

On appeal from the disposition of Ontario Review Board,
    dated February 24, 2017, with reasons dated March 10, 2017.

REASONS FOR DECISION

[1]

The appellant submits that the Ontario Review Board erred by failing to
    impose what he contends was the least onerous and the least restrictive
    disposition necessary to protect the public, namely, a conditional discharge.

[2]

In our view, the Board reasonably determined that given the admitted
    risk to public safety posed by the appellant, the least onerous and least
    restrictive disposition was a detention order with community living privileges
    at the discretion of the hospital as recommended by the appellants treatment
    team.

[3]

We were advised by counsel for the Attorney General that the appellant
    is now living in the community with his mother pursuant to that order.

[4]

The Board found that while the appellant has made considerable progress
    in the past year, he had continued to encounter difficulty in complying with
    rules. As his treating physician explained, given the appellants history of
    non-compliance with prescribed medication and alcohol use when residing in the community,
    a pattern of failure to comply with rules is a matter of concern.

[5]

The appellant submits that his rule violations are a product of his
    addiction to nicotine. Board considered and rejected that contention. The
    hospital report includes other rule violations not related to smoking within
    the relevant reporting period. The Board found that there were very concerning
    behaviours that go well beyond simply violating smoking prohibitions.

[6]

The Boards conclusion that the appellants behaviour demonstrated a
    degree of impulsivity which directly affects the management of the risk he
    poses was reasonably supported by this record. The Boards disposition allows
    the appellant to live in the community at the discretion of the hospital and
    permits the hospital to act should the pattern of non-compliance with medication
    or alcohol use recur. It was open to the Board to conclude that this
    disposition was the least onerous and least restrictive in the circumstances.

[7]

Accordingly, the appeal is dismissed.

Robert J. Sharpe
    J.A.

David Watt J.A.

L.B. Roberts
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fogel v. Chiriatti, 2017 ONCA 1000

DATE: 20171218

DOCKET: C62429

MacPherson, Pepall and Paciocco JJ.A.

BETWEEN

Karen Fogel

Applicant (Respondent)

and

Giovanni Chiriatti

Respondent (Appellant)

Anthony Di Battista, for the appellant

Grant Gold, for the respondent

Heard: December 13, 2017

On appeal from the judgment of Justice Nancy L. Backhouse
    of the Superior Court of Justice, dated June 16, 2016, with reasons reported at
    2016 ONSC 3986, and the costs order, dated September 28, 2016.

REASONS
    FOR DECISION

[1]

The appellant, Giovanni Chiriatti, appeals from the June 16, 2016
    judgment of Backhouse J. granting the respondent, Karen Fogel, sole custody of
    the parties son.  He also appeals from the trial judges matrimonial home valuation,
    division of the notional proceeds of sale, and treatment of the parties
    chattels.  Lastly, he seeks leave to appeal the $125,000 costs award made in favour
    of the respondent.

[2]

The parties cohabited for 14 years and separated in May 2014.  They have
    one child, a son, born July 5, 2007. At the time of trial, the respondent was 36
    years of age, the appellant was 53, and their son was nine.

[3]

On appeal, the appellant raises seven issues.

[4]

First, the appellant challenges the award of custody in favour of the
    respondent, saying that the trial judge failed to consider relevant evidence,
    considered irrelevant evidence, and misapplied the best interests of the child
    test.  He submits that the trial judge inappropriately found that he was
    opposed to a psychoeducational assessment for their son in circumstances where
    he had received little prior notice of the scheduled assessment, simply wished
    to canvas different options, and was given an inadequate opportunity to provide
    an informed consent for the assessment.  In a similar vein, he submits that the
    trial judges finding relating to their sons tooth extraction focussed on the
    wrong issue.  He also submits that the trial judge erroneously determined that
    both the psychoeducational assessment and the tooth extraction were necessary,
    rather than determining what parenting arrangement would be in the sons best
    interests.  Additionally, the appellant challenges the trial judges rejection
    of his proposal for a week about access arrangement, which he argues was
    inconsistent with the trial judges finding that he was an important part of
    his sons life.  He complains that the trial judge also failed to consider that
    the stability in the respondents living arrangements was attributable to him,
    because he had consented to the respondent having exclusive possession of the
    home.

[5]

We do not accept these submissions.

[6]

The trial judge found the appellant to be lacking in any credibility and,
    in contrast, accepted the evidence of the respondent.  This determination was
    open to the trial judge to make.  Fundamentally, the appellant failed to put
    his sons best interests ahead of his own.  The trial judge did not make a
    determination on the necessity of either a psychoeducational assessment or a
    tooth extraction.  Rather, she used the appellants refusal to agree as
    evidence that he put his conflict with the appellant ahead of the needs of his
    son.  She relied not only on the evidence of the respondent, but on that of two
    independent witnesses as well.  She found that the respondent is the better
    parent and better suited to make decisions for the child.  The finding that the
    appellant is an important part of his sons life and his consent to exclusive
    possession did not preclude the granting of custody to the appellant.  The
    trial judge properly applied the best interests of the child test and concluded
    that those interests were best met by a custodial order in favour of the
    respondent.

[7]

This was not an appropriate case for joint custody.  The respondent
    provided a stable environment and had been the primary parent both before and
    after separation.  Significantly, the parties acknowledged that they could not
    communicate on substantive issues relating to their son.  The trial judges reasons
    were well supported by the facts, and her decision is discretionary in nature
    and entitled to deference:
Van de Perre v. Edwards
, 2001 SCC 60, [2001]
    2 S.C.R. 1014, at para. 13.  We see no reason to interfere with the judgment as
    it relates to custody and access.

[8]

Second, the appellant submits that the trial judge erred in her
    valuation of the matrimonial home.

[9]

We reject this submission.  The trial judge considered the evidence of
    the two real property valuation experts put forward by the parties and
    preferred the opinion of the respondents expert over that of the appellant.
    The trial judge did not substitute her opinion for that of the experts.
    Rather, she weighed the evidence about the value of the home with the expert
    evidence regarding a comparable property and the impact of a swimming pool.
    She accepted the opinion of value proffered by the respondents expert, which
    she was entitled to do.  In any event, the upward adjustment she made favoured
    the appellants position.

[10]

Third, the appellant submits that the trial judge improperly permitted
    the respondent an adjustment resulting from the respondents $100,000 payment
    towards the property.  He argues that the consent order of Wilson J. dated May
    16, 2016 finalized the apportionment of the respective shares of the home and
    the $100,000 was credited to the respondent at paragraph 3(a) of the consent
    order.  In oral argument, he conceded that the adjustment could have been made
    by Wilson J. but not by the trial judge; by that time, it was too late.

[11]

Paragraph 3(a) of Justice Wilsons May 16, 2016 order provided that the
    respondent was to receive $100,000, being the prepayment of the mortgage paid
    by the respondent out of funds she received from an inheritance, from the
    average of the two appraised values of the property as at May 30, 2014.  The
    mortgage, line of credit, and notional real estate commission of four percent
    were also to be deducted from the average of the appraised values.  Justice
    Wilson then provided that the balance was to be notionally divided between the
    parties, however, they each would be entitled to seek further adjustment from
    the others respective notional share of the proceeds subject to proper documentary
    proof.  At trial, the respondent called expert evidence on an additional
    adjustment of $40,951.  The trial judge accepted this expert evidence and
    ordered the adjustment.  Based on the language of Wilson J.s order, further
    adjustments were permissible. We would not give effect to this ground of
    appeal.

[12]

Fourth, the appellant takes issue with the trial judges order that an
    amount reflecting ten years of child support and s. 7 expenses under the
Federal
    Child Support Guidelines
, S.O.R./97-175 be secured to the respondent as a
    fund from the appellants share of the notional house proceeds.  The appellant
    submits that the trial judge failed to give proper reasons, awarded security in
    spite of the fact that the appellants support payments were up to date prior
    to trial, and that he had contributed $8,000 to his sons private school fees.
    She also failed to consider the appellants evidence at trial that he would pay
    support.  He complains that he is unable to benefit from any present value or
    any future increase in value of the $211,560 that is secured by the order.

[13]

We would not give effect to this ground of appeal.  The appellant had
    paid no child support since separating from the respondent in May 2014 other
    than some private school and camp fees.  He also stopped paying support
    contrary to the terms of an order to which he had consented after only three
    months, and failed to pay outstanding private school fees and s. 7 expenses
    despite being ordered to do so.  It was only when the parties attended a court
    conference immediately before the trial that he made a payment on account of
    child support arrears and outstanding school fees. The evidence of
    non-compliance supported the trial judges conclusion that there was no
    likelihood that the appellant would pay child support or s. 7 expenses in the
    future, and that security in the form of a fund was required.  Given that the
    order was for security (as opposed to a lump sum payment), the appellants
    remaining arguments have no merit. We would not give effect to this ground of
    appeal.

[14]

Fifth, the appellant submits, and the respondent accepts, that the trial
    judge made a $15,156 calculation error relating to child support arrears.  The
    error was only noticed by the parties on January 17, 2017, when the motion for
    security for costs for the appeal was brought.  Paragraph 8 of the judgment shall
    be amended by deleting the sum of $33,731 and substituting the sum of $18,575
    ($33,731 less $15,156 = $18,575).  This is based on the number of months
    between the date of separation and the date of judgment being 25 months rather
    than the 37 months calculated by the trial judge, which provided the respondent
    with an extra 12 months or $15,156 of arrears of support.

[15]

Sixth, the appellant submits that the trial judge erred in neglecting to
    address the division of chattels despite being requested to do so.  He
    maintains that he made a claim for division of chattels in his pleadings.

[16]

We would not give effect to this ground of appeal.  The trial judge
    considered the four financial statements filed by the appellant.  The
    appellants itemization of chattels was only included in one of the four
    financial statements.  The trial judge found that there was little
    documentation to support who had paid for the items claimed by the appellant, what
    had been paid, or current values.  On the basis of the evidence before her, it
    was open to the trial judge to disallow this claim.

[17]

Lastly, we see no reason to interfere with the trial judges discretionary
    costs award.  She properly considered the relevant factors set out in the
Family
    Law Rules
, O. Reg. 114/99.  Although the respondent sought full indemnity
    costs of approximately $237,000, the trial judge reduced the claim to $125,000.
    She was entitled to do so, and her costs award is owed considerable deference:
McNaughton
    Automotive Ltd. v. Co-operators General Insurance Co
., 2008 ONCA 597, O.R.
    (3d) 365, at para. 27.

[18]

For these reasons, the appeal is dismissed, except that paragraph 8 of
    the June 16, 2016 judgment is to be amended to replace the sum of $33,731 with
    the sum of $18,575.

[19]

The appellant shall pay the respondent her costs of the appeal fixed in
    the amount of $20,000 inclusive of disbursements and applicable tax, on a
    partial indemnity scale.

J.A. MacPherson J.A.

S.E. Pepall J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Frohlich v. Ferraro, 2017 ONCA 978

DATE: 20171213

DOCKET: C62262

Hourigan and Brown JJ.A. and Himel J. (ad hoc)

BETWEEN

Craig Frohlich

Plaintiff/Defendant in Appeal

and

John Ferraro and Diane Ferraro

Defendants/Appellants in Appeal

G. Edward Oldfield and Christian Ferraro, for the
    appellants

James Bennett and Christopher Clemmer, for the
    respondent

Hear and released orally: December 11, 2017

On appeal from the judgment of Justice Clayton Conlan of
    the Superior Court of Justice, dated May 19, 2016.

REASONS FOR DECISION

[1]

This appeal is about a property dispute between two cottage owners. At
    trial, the court declared that the appellants had entered and trespassed on the
    dry land portion of the respondents water lot. A permanent injunction was
    issued restraining the appellants from entering upon any part of the
    respondents property not covered by water. The appellants counterclaim for an
    easement over that land was dismissed.

[2]

On appeal, the
    appellants raise a number of new arguments in support of their request that a
    judgment be granted declaring that the property boundaries are subject to their
    riparian rights, or, in the alternative, granting an easement, or, in the
    further alternative, declaring a mistrial. They also seek to adduce fresh
    evidence regarding property boundaries.

[3]

In summary, the
    appellants submit that the trial judge erred in failing: to consider the issues
    of riparian rights and accretion, the high water mark, and the intentions of
    the original sub-dividers; to provide sufficient reasons; and, to find on the
    evidence that an easement had been established.

[4]

We do not give effect to
    any of these grounds of appeal.

[5]

The issues of riparian
    rights (either the appellants or the Crowns), accretion, the high water mark
    and the intentions of the original sub-dividers were not argued at trial.
    Indeed, in their written trial submissions, the appellants stated issues of
    riparian rights, erosion and accretion do not applyas they do not have a water
    boundary, in law, to their property. We would not give effect to any of these
    grounds of appeal. The appellants are attempting to fundamentally alter their
    case post-trial. In so doing, they have not offered any credible explanation
    regarding why these issues were not raised at trial. It would be grossly unfair
    to the respondent to force him to respond to an entirely new case on appeal. As
    the proposed fresh evidence is tendered in support of these new arguments, we
    decline to grant leave to admit it.

[6]

With respect to the
    sufficiency of reasons, the appellants make a series of arguments to the effect
    that the reasons raise more questions than provide answers and are therefore
    insufficient. We disagree. For example, t
here was no need for the trial judge to make a finding about
    lot boundaries as the appellants conceded the area of the water lot at trial.
    Similarly, the appellants contention that the trial judge failed to consider
    what use they could make of certain structures is inconsistent with their
    position at trial that there is no effort to seek to build, linger or do
    anything on the plaintiffs land ... except travel for the purpose of accessing
    the water. In short, we are not satisfied that the trial judge failed to
    provide sufficient reasons on any relevant issue.

[7]

On the issue of the
    easement, the appellants primary submission is that the trial judge erred on
    the question of permission because he conflated the issue of the easement
    regarding an island in the water lot with the issue of an easement for access to
    the water. At trial, the appellants did not argue that there were multiple
    easements; they argued that there was one. The trial judge considered that
    argument. The trial judge made findings of fact regarding permission that were
    open to him on the record. He correctly applied the law to the facts he found
    and ruled against the appellants. We see no error in that analysis.

[8]

The appeal is dismissed.
    The appellants shall pay the costs of the appeal to the respondent in the
    all-inclusive sum of $20,000.

C.W. Hourigan J.A.

David Brown J.A.

Himel J.


COURT OF APPEAL FOR ONTARIO

CITATION: Hussain v. Royal Bank of Canada, 2017 ONCA 956

DATE: 20171206

DOCKET: C63399

Simmons, Brown and Fairburn JJ.A.

BETWEEN

Alamgir Hussain
and
    Jesmin Ara

Appellant

and

Royal Bank of Canada

Respondent

Alamgir Hussain, in person

Amanda Jackson, for the respondent

Heard: November 30, 2017

On appeal from the judgment of Justice Kim A.
    Carpenter-Gunn of the Superior Court of Justice, dated January 25, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The motion judge granted summary judgment
to the
    Royal Bank of Canada for amounts owing by the appellant on a line of credit, an
    overdraft lending agreement and two Visa cards. She also dismissed the
    appellant's counterclaim and awarded substantial indemnity costs to the Bank
    fixed in the amount of $60,000.

[2]

We see no merit in the appellant's arguments
    that she erred in doing so.

[3]

The Bank's action was commenced in May 2009,
    well within the applicable limitation period. The length of time it took the
    Bank to bring its summary judgment motion is not a defence to the substantive
    claim. The motion judge gave extensive reasons responding to the appellant's
    submissions concerning the impact of delay on interest and costs. We see no
    basis on which to interfere.

[4]

In oral submissions the appellant acknowledged
    that he owed the principal amounts claimed under the debt instruments.

[5]

The motion judge fully considered the
    appellant's arguments concerning the impact of the double mortgage payments
    initially collected by the Bank and subsequently refunded.  The appellant has
    demonstrated no error in her findings on this issue.

[6]

The Canadian
Charter of Rights and
    Freedoms
has no application to this case.

[7]

Any comments made by the pre-trial judge(s),
    were brought to the motion judge's attention only in relation to costs by way
    of the offers to settle that were submitted. This did not contravene the Rules
    of Civil Procedure.

[8]

The appeal is therefore dismissed.  The costs of
    the appeal are to the Bank in the amount of $5,000 inclusive of disbursements
    and applicable taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Lee v. McGhee, 2017 ONCA 997

DATE: 20171219

DOCKET: M48532 (C64335)

Hourigan, Brown JJ.A. and Himel J.
(ad hoc)

BETWEEN

Byeongheon Lee

Respondent (Responding Party)

and

Doc McGhee, McGhee Entertainment, Capital
    Security and Investigations, Canadian Tire Centre,
Gene
    Simmons
and Kiss

Moving Party
(Respondents)

Robin Brown, for the moving party

Byeongheon Lee, appearing in person

Heard and released orally: December 13, 2017

ENDORSEMENT

[1]

The appellant attended a Kiss concert at the Canadian Tire Centre in
    Ottawa on July 25, 2013. He was removed from the arena by security staff. He
    commenced an action claiming damages as a result of discrimination, harassment,
    intentional infliction of nervous shock, mental distress, loss of income, loss
    of reputation and loss of business.

[2]

The claims against the defendants McGhee Entertainment and Kiss were
    dismissed by Hackland J. on November 22, 2016 for failing to disclose a cause
    of action.

[3]

The respondent Simmons brought a motion to dismiss under rule 21.01(1)(b)
    as disclosing no cause of action which was granted by Labrosse J. He held that
    the sole claim against Simmons was alleging discrimination and that the effect
    of s. 46.1(2) of the
Ontario Human Rights Code
was to prohibit an
    action solely on an infringement of a right under Part 1 of the
Code
.
    The appellant appeals that order but does not assert any alleged error of law.

[4]

Simmons brings a motion to quash the appeal under s. 134(3) of the
Courts
    of Justice Act
alleging that the appeal is devoid of merit. A court will
    seldom exercise its power to quash an appeal because it is manifestly devoid of
    merit, as this will usually require full argument on all grounds the appeal
    raised: see,
Schmidt v. Toronto Dominion Bank,
(1995) 24 O.R. (3d) 1 (C.A.).

[5]

We see no reason to depart from that principle.

[6]

Motion to quash the appeal is dismissed. The appeal of this matter shall
    be heard on February 8, 2018 for one hour. Respondent shall serve and file a
    factum by January 19, 2018. Costs of this motion are reserved to the panel
    hearing the appeal.

C.W. Hourigan J.A.
David Brown J.A.
Himel J.


COURT OF APPEAL FOR ONTARIO

CITATION: Li v. Li, 2017 ONCA 942

DATE: 20171204

DOCKET: C63610

Pardu, Trotter and Paciocco JJ.A.

BETWEEN

Yao Wei Li, William Li also known as Fee Liann
    Li, Charles Li also known as Fee Sang Li, Lily Li also known as Fee Lee Chen
    and Linda Li also known as Fee Thao Linda Li

Plaintiffs (Respondents)

and

Yao Chao Li also known as Yao Chao Lee

Defendant (Appellant)

Shawna Sosnovich and Christopher Statham, for the
    appellant

H. David Marks, Q.C. and Corey Bergstein, for the
    respondents

Heard: November 15, 2017

On appeal from the order of Justice Frederick Myers of
    the Superior Court of Justice, dated March 10, 2017.

REASONS FOR DECISION

[1]

This is an appeal from the dismissal of a motion for summary judgment
    brought by the appellants, as defendants in the action. The appellant had
    sought to end an action on the basis of a previously dismissed lawsuit brought
    by the respondent against the appellant in India relating to the same cause of
    action.

[2]

The appellant invoked the doctrines of
res judicata
and abuse
    of process in aid of the summary judgment motion, but relied primarily on a
    provision of the Indian
Civil Procedure Code
, Order 23, Rule 1(4),
    that provides a substantive right to prevent attempts at relitigating claims
    that are dismissed as abandoned, without the leave of an Indian court. The
    parties agreed that this Indian law applied, and that leave had not been obtained
    in this case.

[3]

The motion judge denied the motion, disposing finally of the res
    judicata and abuse of process defences and ordering that the matter be relisted
    for trial. The key factor in each of the motion judges rulings was that the
    respondent had never been served in the Indian action, and no disposition had
    ever been made on the merits of the respondents claim. These facts drove each
    of the motion judges rulings.

[4]

We dismiss the appeal. The appellant has not demonstrated that the
    motion judge erred in his treatment of Order 23, Rule 1(4). The onus was on the
    appellant to establish the foreign rule of law it sought to rely upon. The
    motion judge was not satisfied on the expert evidence presented by the
    appellant that Indian Order 23, Rule 1(4) applied. He preferred and accepted
    the view of the respondents experts interpretation of an Indian decision,
Dalmia
    Cement (Bharat) v Uthandi alias Peria Uthandi

AIR 2005 MAD 457,
    holding that Order 23, Rule 1(4) does not operate where a suit is dismissed as
    not pressed before the opposing party has been served. In the absence of
    evidence establishing the meaning of the term dismissed as not pressed, the
    motion judge was not persuaded that the respondents suit would be caught by
    the rule, given that the appellant had never been served. On the basis of the
    evidence before the motion judge, we find no error in that determination.

[5]

Nor is there any basis for finding that the motion judge erred in not
    applying the doctrines of res judicata or abuse of process. As indicated, the
    Indian lawsuit terminated without the appellant ever having been served with
    the action. The motion judge made no error in finding that the Ontario suit
    would not involve relitigation, or an abuse of Ontarios civil processes.

[6]

The appeal is dismissed with costs to the respondent in the amount of
    15,601.46, inclusive of disbursements and HST.

G. Pardu J.A.

G. Trotter J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lord v. Clearspring Spectrum Holdings L.P., 2017
    ONCA 1016

DATE: 20171222

DOCKET: C63787

Doherty, Benotto and Miller JJ.A.

In
    The Matter Of Spectrum Health Care (GP) Inc.

And In The Matter Of
    Spectrum Health Care Employeeco Inc.

BETWEEN

Lori Lord

Applicant (Respondent in Appeal)

and

Clearspring
    Spectrum Holdings L.P. (As Successor in Interest to

Callisto
    Capital III L.P.) and Clearspring Capital Partners (US) L.P.

(Formerly
    Callisto Capital (US) III L.P.)

Respondents (Appellants)

Arthur Hamilton and Jed Blackburn, for the appellants

Robert Staley, Alan Gardner and William Bortolin for the
    respondents

Heard: December 18, 2017

On appeal from the judgment of Justice Fred Myers of the Superior
    Court of Justice, dated April 12, 2017.

REASONS FOR DECISION

[1]

The parties to this appeal were involved in a commercial dispute
    concerning the operations of Spectrum Health Care  a company co-founded by the
    respondent Lori Lord. They signed a Governance Agreement which gave Lord
    certain rights concerning the replacement of members of the Board of Directors
    of Spectrum. Her application to the Superior Court to enforce those rights was
    granted.

[2]

The respondents appeal submitting that the application judge:  (i) erred
    in interpreting the contract; (ii) should have stayed the application in
    accordance with the arbitration clause in the shareholders agreement; and
    (iii) erred in his alternative findings regarding the oppression remedy and
    interim injunction.

[3]

When interpreting the Governance Agreement, the application judge
    considered the factual matrix of the agreement, the inter-relationship of the
    parties and the shareholders agreement. He concluded that the appellants were
    in breach of their obligation under the Governance Agreement. He also concluded
    that there was no conflict with the shareholders agreement. The Governance
    Agreement was a stand-alone document independent of the shareholders
    agreement. On that basis, the arbitration clause did not apply. Although his
    interpretation of the Governance Agreement was sufficient to resolve the issue,
    he went on to determine, in the alternative, that Lords oppression remedies
    would apply. Further, he concluded that had he sent the matter to arbitration,
    he would have issued an interim injunction.

[4]

The threshold issue here is the application judges interpretation of
    the Governance Agreement.

[5]

In our view, the application judge did not err in his interpretation of
    the Governance Agreement. He made clear, thorough and extensive findings of
    fact which he correctly applied to the law. We see no palpable and overriding
    error or mistake of law.

[6]

Nor did the application judge err with respect to the alternate
    remedies. He concluded that an injunction was appropriate because damages would
    be impossible to calculate and proof of damages would be well-nigh
    impossible. We also agree with his analysis as to the oppression remedy. Lord
    had the reasonable expectation that the commitments made by the respondents
    would be honoured and failure to do so would prejudice her.

[7]

Accordingly, the appeal is dismissed.

[8]

If the parties do not agree on costs, they may provide brief written
    submissions by January 15, 2018.

Doherty J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Maracle III v. Miracle, 2017 ONCA 950

DATE: 20171205

DOCKET: M48520

Pardu J.A. (In Chambers)

BETWEEN

Andrew Maracle III and Jasmin Johnson

Moving Parties (Proposed Appellants)

and

Sir Andrew Clifford Miracle

Responding Party (Respondent)

Sean Dewart, for the moving parties

Richard Watson, for the respondent

Heard: December 4, 2017

On a motion to extend the time to
    seek leave to appeal from the judgment of Justice Stanley J. Kershman of the
    Superior Court of Justice dated October 10, 2017, with reasons for judgment
    reported at 2017 ONSC 5876, dismissing an application to set aside an arbitral
    award.

ENDORSEMENT

[1]

The moving parties, Andrew Maracle III and
    Jasmin Johnson, seek leave to extend the time to move for leave to appeal a
    decision of the Superior Court of Justice, confirming an arbitral award in
    favour of the responding party, Sir Andrew Clifford Miracle. That decision was
    dated October 10, 2017.

[2]

The moving parties former counsel (not counsel
    on the appeal) mistakenly thought he had 30 days following October 10, 2017 to
    serve a notice of motion seeking leave to appeal, rather than 15 days as
    prescribed by r. 61.03.1(3) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194. In this case, the former counsel attempted
    service of a notice of appeal in which he sought an extension of time to seek
    leave to appeal on November 2, 2017.

[3]

The parties agree on the applicable principles
    governing this motion as described at paras. 14 and 15 of
Reid v.
    College of Chiropractors
, 2016 ONCA 779:

The test on a motion
    to extend time is well-settled. The governing principle is whether the justice
    of the case requires that an extension be given:
Rizzi v. Mavros
, 2007 ONCA 350
, 85 O.R. (3d) 401, at para. 17;
Enbridge Gas Distribution
    Inc. v. Froese
, 2013 ONCA 131, 114 O.R. (3d) 636, at para.
    15. Each case depends on its own circumstances. The relevant considerations
    include:

a)

whether
    the moving party formed a
bona fide
intention to seek leave to appeal
    within the relevant time period;

b)

the
    length of, and explanation for, the delay in filing;

c)

any
    prejudice to the responding party, caused, perpetuated or exacerbated by the
    delay; and

d)

the
    merits of the proposed appeal.

See
Rizzi
,

at para. 16;
Froese
, at
    para. 15.

This court has held that lack of merit alone can be a sufficient
    basis on which to deny an extension of time, particularly in cases such as this
    where the moving party seeks an extension of time to file a notice of leave to
    appeal, rather than an extension of time to file a notice of appeal:
Miller
    Manufacturing and Development Co. v. Alden
, [1979] O.J. No. 3109 (C.A.),
    at para. 6;
Froese
, at para. 16.

[4]

The responding party concedes that the failure
    to meet the deadline occurred as a result of the moving parties lawyers error
    and that there is no prejudice flowing from that short delay.

[5]

The responding partys position is that the
    moving parties are unlikely to get leave to appeal. On that ground, it submits
    leave to extend the time to file a notice of motion for leave to appeal should
    be refused.

[6]

The moving party, Andrew Clifford Maracle III,
    and the respondent are son and father. These parties signed a partnership
    agreement to run a business selling cigarettes and gasoline. That agreement
    contained a mandatory arbitration clause. The father sued the son, alleging
    that the son had misappropriated the profits from the partnership. The father
    also sued Jasmin Johnson, the sons wife, alleging that she signed cheques on
    the partnerships account without having signing authority. Ms. Johnson was not
    party to the partnership agreement.

[7]

The father made wide ranging claims against Ms. Johnson
    in his statement of claim relating to the partnership, including allegations
    that both moving parties breached their fiduciary duty to the Plaintiff by
    taking the Plaintiffs share of the partnerships assets and profits and by
    furthering their own interests over those of the Plaintiff. These Defendants
    also conspired to defraud and committed conversion by taking the Plaintiffs
    partnership assets and profits. He sought a tracing order, an accounting of
    profits, and claimed a constructive trust over the moving parties assets.

[8]

On May 9, 2016, Scott J. of the Superior Court
    of Justice made a consent order that the plaintiff and the defendants, Maracle
    and Johnson, will attend binding arbitration in Kingston, ON.

[9]

The moving parties and the responding party signed
    an arbitration agreement dated October 7, 2016, acknowledging that the
    Plaintiff and the Defendants have agreed to proceed to an arbitration of their
    dispute.

[10]

The arbitrator made a substantial award in
    favour of the father against the son. He refused to make any findings in
    relation to the dispute between the father and his daughter-in-law because she
    was not a party to the partnership agreement, despite the agreement of all
    parties that they would submit their disputes to binding arbitration. The
    arbitrator did not invite submissions from the parties on his final decision to
    decline to exercise jurisdiction over the disputes involving Ms. Johnson. The
    moving parties submit that this was procedurally unfair.

[11]

As the above review of the pleadings illustrate,
    the allegations against Ms. Johnson were inextricably intertwined with the disputes
    related to the partnership and the accounting of profits. On its face, the
    dispute between Ms. Johnson and the father fell within the terms of the
    arbitration agreement that both parties signed. It is arguable that the
    arbitrator did not act with procedural fairness when he declined to arbitrate the
    disputes between the father and Ms. Johnson in the absence of submissions from
    the parties. There is no indication that any of the parties raised this issue
    of excluding Ms. Johnson from the issues to be dealt with by the arbitrator.

[12]

Section 46(1) of the
Arbitration Act,
    1991
, S.O. 1991, c. 17
provides that a court may set aside an arbitral award if a party
    was not treated fairly, or if the arbitration procedures did not comply with
    the Act.

[13]

The application judge indicated that he did not see
    what benefit would be gained by an arbitration between Clifford and Jasmin,
    and concluded that going to trial in relation to the dispute between Jasmin and
    the father would not result in duplication, inconsistent findings or multiple
    proceedings. This conclusion may be doubtful, given the pleadings that connect
    the partnership issues with the other claims against Ms. Johnson.

[14]

The responding party argues that his son cannot
    possibly be affected by the arbitrators refusal to deal with the claims
    against his Ms. Johnson. Given the extent to which the claims against each moving
    party are intertwined, I disagree with this submission.

[15]

I recognize that the moving parties may face a
    more rigorous test for leave, given that this motion for leave to appeal asks
    for a second review of an arbitral decision. However, I am persuaded that given
    the brevity of the delay, and the absence of prejudice, the interests of justice
    in this case requires the moving parties be given an opportunity to persuade
    this court that leave should be granted.

[16]

Given the state of the record, I am not prepared
    to attach any conditions to the extension of time. Moreover, given my analysis
    above, I do not need to rule on the admissibility of certain emails containing
    references to settlement discussions in the record since they were not
    considered in making this decision.

[17]

The motion is allowed and the moving parties are
    given 10 days from the date of release of this decision to file a motion for
    leave to appeal from the decision of Kershman J. dated October 10, 2017.

[18]

Costs should follow the result. Costs are fixed
    in the moving parties favour at $3,568.53, payable within 30 days.


COURT OF APPEAL FOR ONTARIO

CITATION: McGregor v. Peel Children's Aid Society, 2017 ONCA
    976

DATE: 20171212

DOCKET: C63864

Strathy C.J.O., Juriansz and Huscroft JJ.A.

BETWEEN

Tanzea McGregor

Plaintiff (Appellant)

and

Childrens Aid Society of the Region of Peel,
    Toronto Police Service, Robertson House, Christine Steele and Tracy Severiano

Defendants (Respondents)

Matthew Tubie, for the appellant

Fred Fischer, for the respondents Robertson House,
    Christine Steele and Tracy Severiano

Heard: December 7, 2017

On appeal from the judgment of Justice Kenneth G. Hood of
    the Superior Court of Justice, dated May 10, 2017.

REASONS FOR DECISION

[1]

The appellant appeals the order of the motion
    judge enforcing a settlement agreement she made with the respondents.

[2]

The settlement released the respondents from all
    causes of action and claims for damages, costs, and interest arising from the
    allegations in an action numbered CV-15-541151, and agreed to dismissal of the
    action, in exchange for the respondents agreement not to seek the costs they
    incurred in responding to the action. In addition, the respondents agreed not
    to make any claim or commence or maintain any action or proceeding in
    connection with CV-15-541151 or any matter covered by the release.

[3]

The appellant says that she intended to release
    the respondents from another, identical action, CV-15-540944, and that the
    motion judge misapprehended her evidence.

[4]

The motion judge found that the appellant, who
    was represented by counsel, executed a release that clearly indicated that it
    was in relation to CV-15-541151 and that it was a complete release of all
    causes of action and claims for damages in the action. Her signature was
    witnessed by her counsel, Mr. Adema, who forwarded the executed release to the
    respondents. The appellant did not deny that Adema was her counsel at the
    relevant time.

[5]

The motion judge found, further, that there was
    no evidence the appellant was misled by her counsel or was incapable of
    understanding the release she executed. The only evidence concerning the
    alleged mistake was the appellants assertion in her responding materials that
    Adema had prepared the release in error. However, the motion judge noted that
    the release materials were prepared by counsel for the respondents, not Adema.
    Furthermore, the appellant took no steps to claim that the release was executed
    in error.

[6]

These findings were open to the motion judge on
    the record before him, and there is no basis for this court to interfere with
    them.

[7]

The motion judge did not misapprehend the
    evidence. He was aware of the appellants second action but was not satisfied
    that the appellant made a mistake that would allow him to exercise his
    discretion not to enforce the settlement. His reasons adequately explain his
    decision.

[8]

The appeal is dismissed. The respondent is entitled to
    $1500 in costs, inclusive of taxes and disbursements.

G.R. Strathy
    C.J.O.

R.G. Juriansz
    J.A.

Grant Huscroft
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Montepeque v. State Farm Mutual Automobile
    Insurance Company, 2017 ONCA 959

DATE: 20171207

DOCKET: C61477

Laskin, Feldman and Juriansz JJ.A.

BETWEEN

Carlota Montepeque
, Alberto Barquin and
    Francisco Barquin

Plaintiffs (
Appellant
)

and

State Farm Mutual Automobile Insurance Company

Defendant (Respondent)

Karl Arvai, for the appellant

Chris Paliare and Tina Lie, for the respondent

Heard: August 22, 2017

On appeal from the judgment of Justice Alissa K. Mitchell
    of the Superior Court of Justice, dated November 17, 2015.

Laskin J.A.:

A.

introduction

[1]

In an early November morning in 2008, sometime after midnight, the
    appellant, Carlota Montepeque, was driving her car east on a two-lane highway
    in London, Ontario. She had two passengers. As she approached a curve in the
    road, she claimed that another car travelling west crossed the center line into
    her lane. She swerved to the shoulder to avoid a collision, lost control of her
    car, and rolled into a ditch. She suffered injuries to her neck, shoulders,
    back, and right knee.

[2]

The driver of the other car did not stop and was never identified.
    Montepeque therefore sued her own car insurer, the respondent, State Farm, for
    damages under the unidentified motorist coverage in her car insurance policy. Her
    action was tried before a jury for 17 days. One of the passengers testified and
    corroborated Montepeques account of the accident. State Farm called no evidence
    on liability, but took the position that there was no unidentified car at all,
    or if there was one, it did not cross over into Montepeques lane.

[3]

The first question that the jury was asked to answer was the central question
    on the issue of liability. This question read: Did the negligence of an unidentified
    driver cause or contribute to the accident that occurred on November 23, 2008?
    The jury answered no. Montepeques action was thus dismissed. The jury had,
    however, answered yes to question 9, which asked whether Montepeques
    evidence of the involvement of an unidentified automobile was corroborated.
    Whether the jurys answer to these two questions were inconsistent is the main
    issue on the appeal.

[4]

Montepeque raises that issue and three other issues on her appeal.

1.

Should the verdict be set aside as unjust and unreasonable because the
    jurys answers to questions 1 and 9 were inconsistent?

2.

Did the trial judge err in her charge to the jury? Montepeque contends
    that the trial judge erred in three ways:

·

She did not properly charge the jury on the standard of care in
    an emergency situation;

·

She did not properly charge the jury on the burden of proof; and

·

Her charge was unbalanced and unfair.

3.

Does the conduct of counsel for State Farm during the trial warrant this
    courts intervention?

4.

If the answer to question 1, 2, or 3 is yes, should this court grant
    judgment for Montepeque in the amount of damages assessed by the jury ($449,900)
    or order a new trial?

[5]

I would answer no to questions 1, 2 and 3, and would therefore dismiss
    Montepeques appeal.

B.

details of the accident and the events leading up to it

[6]

Sometime between 11:00 and 11:30 P.M., the evening before the accident,
    Montepeque and her friend Rosa Dominguez went to Tiger Jacks, a bar in London,
    Ontario. They stayed only a short time. Montepeque said that she did not drink at
    all at Tiger Jacks. But while there, she and Dominguez ran into an
    acquaintance of hers, a man named Francesco Pimentel. He suggested that they go
    to another bar in a small town outside London, where his friend was playing
    music. The other two agreed. Montepeque drove.

[7]

The evidence is unclear on how long it took the three to get to the
    second bar. Montepeque testified that it took some time and agreed that it
    was more than 10 minutes, while Dominguez said that it took around 40 minutes. Pimentel
    did not testify at trial.

[8]

The evidence is also unclear on how long the three stayed at the second
    bar. Montepeque said they were there for 10 to 15 minutes. Dominguez said they
    only looked around and then left. The accident occurred on their return to
    London. Again the record is unclear when exactly the accident occurred, but on
    the evidence it seemed to have been sometime between 12:30 and 2:30 A.M.

[9]

Both Montepeque and Dominguez testified about Montepeques driving
    speed, the weather, the road conditions, when the oncoming car was visible, and
    what caused the accident.

[10]

Montepeque
    said that she was driving at 85 km/hour, just above the speed limit of 80 km/hour.
    She said that she was unfamiliar with the highway and was taking directions
    from Pimentel. She also testified that the weather was clear and the road
    conditions were good. Dominguez confirmed the speed at which Montepeque was
    driving, but said that the weather was foggy and the road was wet.

[11]

Montepeque
    testified that she first saw an oncoming car about half a block away, as she
    was approaching a gradual curve in the two lane highway. At the time, she
    agreed that the other car looked like it was in its lane. Only when the other
    car was exactly in front of her  she estimated about one metre away  did
    she notice that it had crossed into her lane.

[12]

Montepeque
    and Dominguez gave somewhat conflicting versions of the accident. Montepeque
    said that the headlights from the other car blinded her. She got scared and
    panicked. She heard Dominguez yelling be careful! She closed her eyes and
    veered her car to the right, causing her to lose control when she hit either
    snow or gravel on the shoulder. She did not open her eyes until after her car
    had rolled over in the ditch. When she was asked how far into her lane the
    other car had come, she replied: the only memory I have is the lights in front
    of me coming toward me. She agreed that they were headlight to headlight.
    She thought that the other car was going faster than hers.

[13]

Dominguez,
    on the other hand, testified that when she first saw the other car, it was in
    the middle of the road. She initially thought that the other car would go
    back into its lane, but when she realized it wouldnt, she told Montepeque to
    be careful. She said that at this point, Montepeque was already breaking and
    turning right to avoid the other car. She said Montepeque lost control of her
    car after hitting black ice.

[14]

Constable
    Josh McCallum investigated the accident. He arrived at the scene shortly after
    2:29 A.M. and immediately took witness statements and prepared a motor vehicle
    accident report. He said that Montepeque and her two passengers gave generally
    consistent accounts of what had occurred. He agreed with Montepeque that the
    weather conditions were good and the road was clear. He also said that
    Montepeques breath did not smell of alcohol. He examined the road and said he saw
    skid marks from Montepeques car, but not from the other car.

C.

issues

(1)

Should the verdict be set aside because the jurys answers to questions 1
    and 9 were inconsistent?

[15]

The
    jury answered no to question 1, the fundamental question whether the
    negligence of an unidentified driver caused or contributed to the accident. The
    inconsistency on which Montepeque relies is the jurys answer to another
    question, question 9, which was required because of her claim under her
    unidentified motorist coverage policy with State Farm.

[16]

As
    the other driver was never identified, Montepeque claimed under s. 5 of the
    Ontario Automobile Policy and OPCF 44R Family Protection Coverage. Under s.
    5.2.1 of the Ontario Automobile Policy, an insured claimant has a legal right
    to recover as damages from the owner or driver of an uninsured automobile an
    amount up to the limits in this Section. Section 5.7.1.1 limits coverage to
    the minimum limits for automobile liability insurance in the jurisdiction in
    which the accident happens, which in Ontario is $200,000.

[17]

Section
    3 of OPCF 44R provides an insured claimant with excess coverage for an amount over
    $200,000, up to the amount that the claimant is legally entitled to recover
    from a driver or owner of an unidentified automobile. But to receive the excess
    coverage amount from ones insurer, the claimant must meet an additional
    evidentiary requirement. The claimants own evidence of the involvement of
    the unidentified automobile must be corroborated by other material evidence. OPCF
    44R defines other material evidence to mean either independent witness
    evidence or physical evidence indicating the involvement of an unidentified
    automobile.

[18]

At
    trial, Montepeque claimed an amount against State Farm that was available to
    her only through her excess coverage policy under OPCF 44R. Question 9 was not
    originally included in the jury charge. In a post-charge conference with the
    trial judge, Montepeques counsel asked for a new question, which addressed the
    additional evidentiary requirement of OPCF 44R, to be added to the list of
    questions for the jury to answer. The trial judge agreed, and put question 9
    for the jury as follows:

Is there independent witness evidence or physical evidence to
    corroborate the evidence of Ms. Montepeque, indicating the involvement of an
    unidentified automobile?

[19]

The
    jury answered this question yes. As there was no physical evidence, the jury
    must have concluded that Dominguezs evidence corroborated Montepeques
    evidence of the involvement of an unidentified automobile.

[20]

Before
    this court, Montepeque submits that the jurys answer to question 1 (the
    negligence of the driver of an unidentified car did not cause or contribute to
    the accident) and its answer to question 9 (Montepeques evidence of the
    involvement on an unidentified automobile was corroborated by other material
    evidence) are inconsistent. She contends that this inconsistency yielded an
    unjust and unreasonable result.

[21]

To
    deal with this issue, Montepeque could have brought a motion at the end of the
    trial under r. 52.08(1)(c) of the
Rules of Civil Procedure
[1]
.
    That subrule gives a trial judge discretion to direct that an action be retried
    with another jury where the jury answers some but not all of the questions
    directed to it or gives conflicting answers, so that judgment cannot be granted
    on its findings. Montepeque did not bring a motion under r. 52.08(1)(c).
    Nonetheless, she is not precluded from raising on appeal an inconsistency in
    the jurys answers.

[22]

However,
    the standard of appellate review becomes relevant. In a civil case, an
    appellate court has a very limited right to set aside the verdict of a jury for
    unreasonableness. Where the trial judges charge is fair and accurate, and
    correctly states the applicable law, the jurys verdict will be set aside only
    where it is so unreasonable and unjust that no jury reviewing the evidence as a
    whole and acting judicially could have reached it: see
Lazare v. Harvey
,
    2008 ONCA 171.

[23]

This
    standard for appellate intervention is stringent. But like the rest of us,
    civil juries are not infallible. On occasion they make mistakes. If I were
    convinced that the jurys answers to questions 1 and 9 were irreconcilable, I
    would hold that its verdict was so unjust and unreasonable that appellate
    intervention was warranted. But I am not so convinced.

[24]

At
    trial, Montepeques position was that the driver of the unidentified car was
    negligent by failing to remain in his or her own lane and instead crossing into
    Montepeques lane, and that the drivers negligence caused or contributed to
    the accident. Montepeque also took the position that she was not contributorily
    negligent because she did the only thing that she could do in the
    circumstances to avoid a head-on crash. State Farms position was two-pronged.
    First, State Farm argued that there never was another car. Second, and in the
    alternative, it argued that if there was another unidentified car, the driver
    did not cross into Montepeques lane and therefore was not negligent.

[25]

By
    its answer to question 9 the jury must have rejected State Farms contention
    that there was no unidentified car, and instead concluded that an unidentified
    car was there and was involved in the incident. But by its answer to question
    1, the jury must have disbelieved Montepeques and Dominguezs evidence that
    the unidentified car crossed the centre line, and thus concluded that the cars
    driver was not negligent
[2]
.
    Those two conclusions are not inconsistent; they are reconcilable.

[26]

Questions
    1 and 9 address different issues. Question 1 asks whether Montepeque proved on
    a balance of probabilities that the driver of the unidentified car caused the
    accident by crossing the center line. Question 9 does not deal with
    Montepeques onus of proof or with causation. It simply asks whether there was
    corroboration for Montepeques evidence of the involvement of an unidentified
    car.

[27]

Legal
    causation and mere involvement differ. The latter could have existed
    without the former. There was evidence that supported the jurys answer to
    question 1, and yet, at the same time, supported its answer to question 9. In other
    words there was evidence that an unidentified car was involved, but
    Montepeque had failed to prove that its driver had crossed the center line.

[28]

The
    following pieces of evidence support the consistency of the jurys answers to
    questions 1 and 9:

·

Montepeque was unfamiliar with the highway, yet she was driving
    above the speed limit;

·

She admitted that the other car was in its proper lane at least
    up to a half a block away from her;

·

She claimed that she reacted when the other car was exactly on
    top of her or one metre away, a claim that was implausible because if the cars
    were that close, she could not have avoided a collision;

·

She also said that she closed her eyes as she swerved to the
    right, casting doubt whether she really saw the position of the other car;

·

She could not tell how far the other car came into her lane,
    likely because its headlights blinded her, leading to the reasonable inference
    that the other car may not have been in her lane at all;

·

Montepeques evidence and Dominguezs evidence conflicted on what
    caused the accident. Montepeque said she lost control as she swerved to avoid
    the other car; Dominguez said that Montepeque lost control only after she
    braked and slid on some black ice. This conflict may have caused the jury to
    disbelieve both accounts of how the accident happened;

·

The other car did not leave any skid marks, from which the jury
    could infer that its driver did not need to take evasive action because the car
    was in its proper lane.

[29]

The
    jurys answers to questions 1 and 9 were consistent, and reconcilable on the
    evidence. For that reason the jurys verdict was not unreasonable.

[30]

As
    an aside, I note that because of its answer to question 1, the jury did not need
    to answer question 9. The likely explanation why the jury answered it is that
    question 9 was not initially put to the jury. As I mentioned, Question 9 was
    only added at the request of Montepeques counsel to address Montepeques
    eligibility for excess coverage. This context explains why the trial judge did
    not stipulate in her instructions to the jury that it did not have to answer
    question 9 if its answer to question 1 was no.

(2)

Did the trial judge err in her charge to the jury?

[31]

As
    I said in the introduction, Montepeque submits that the trial judges jury
    charge contains three errors:

·

It did not properly charge the jury on the standard of care in an
    emergency situation;

·

It did not properly charge the jury on the burden of proof; and

·

It was unbalanced and unfair.

[32]

I
    would not give effect to any of three branches of Montepeques submission. Two
    points of context are important.

[33]

First,
    the trial judge gave counsel a draft of her charge and invited comments on it
    before she gave it to the jury. Of the three concerns about the charge now
    raised on appeal, Montepeques trial counsel raised only the first concern with
    the trial judge, and seemed satisfied with the way the trial judge resolved his
    concern.

[34]

In
    a civil case, the failure to object at trial is usually fatal on appeal because
    it is an indication that trial counsel did not regard as important or
    necessary the additional direction now asserted:
Marshall v. Watson Wyatt
    & Co.
(2002), 57 O.R. (3d) 813 (C.A.), at para. 15. An appellate court
    can still give effect to an objection to an aspect of a trial judges jury
    charge raised for the first time on appeal, but only if not giving effect to
    the objection would cause a miscarriage of justice: see
Kerr v. Loblaws
    Inc.
, 2007 ONCA 371,
224 O.A.C. 56
, at para. 32;
    and
Courts of Justice Act
,
R.S.O. 1990, c. C.43, s. 134(6).

[35]

Second,
    as this court has often said, a trial judges charge need not be perfect to
    withstand appellate intervention. Recently in
Hansen v. Williams
, 2014
    ONCA 118, at para. 11, citing
Brochu v. Pond
(2002), 62 O.R. (3d) 722
    (C.A.), at para. 68, this court concisely stated the standard of appellate
    review of a trial judges civil jury charge as follows:

The trial judges charge did not need to be perfect. Absent an
    error that amounts to a substantial wrong or a miscarriage of justice, or
    circumstances where the interests of justice otherwise so require, a new trial
    will not be ordered.

(a)

The standard of care in an emergency situation

[36]

Montepeque
    submits that, because she was facing an emergency situation when she saw the
    oncoming unidentified car, the trial judge should have instructed the jury that
    Montepeque could not be expected to act as she might in calmer circumstances.
    Before the trial judge, Montepeque wanted an instruction similar to the agony
    of the moment instruction approved by the British Columbia Supreme Court in
Soto
    v. Peel
, 2013 BCSC 409, at para. 92:

[W]here the plaintiff is compelled to make a quick decision in
    the agony of the moment he is not expected to take into account all the
    considerations that a calmer appraisal of the situation might present to the
    mind. Perfect foresight and presence of mind are not required. This rule,
    sometimes called the agony of the moment rule, is merely a particular
    application of the rule that the standard of care required of both plaintiff
    and defendant is that of a reasonable [person].

[37]

The
    trial judges draft charge did not contain an express agony of the moment
    instruction. Instead, it contained the following sentence, to which Montepeque
    objected: [A driver] must take proper precautions to guard against risks,
    which might reasonably be anticipated to arise from time to time as she
    proceeds on her way. Montepeques counsel specifically objected to the phrase
    from time to time, as to him it did not capture the emergency nature of the
    situation facing his client. He proposed that the trial judge eliminate the
    phrase he had objected to, and instead only include the words against risks
    which might reasonably be anticipated. If she did that he said I can live
    with it.

[38]

The
    trial judge agreed with this proposal, as did State Farms counsel. The trial
    judge then charged the jury as Montepeques counsel had proposed:

I will now first address first the issue of liability and
    dealing specifically with the operation of a motor vehicle; a driver of a motor
    vehicle must exercise at all times the same manner of care and caution as might
    be expected in like circumstances of a reasonably careful driver. He or she
    must take proper precautions to guard against risks, which might reasonably be
    anticipated to arise. This degree of care and nothing more is expected of her.
    She is not asked to maintain a standard of care of perfection or to take
    extravagant precautions. A drivers only duty is to anticipate what is
    reasonably likely to happen.

[39]

I
    see no error in this charge. It captured Montepeques duty in an emergency
    situation by stressing that she was not held to a standard of perfection, and
    was only obliged to guard against risks that she might reasonably anticipate
    would arise. The jury, using its common sense, would have had no difficulty in
    appreciating the circumstances in which Montepeque said she found herself.

(b)

The burden of proof

[40]

By
    crossing the center line of a road, a driver breaches s. 148(1) of
Highway
    Traffic Act
[3]
.
    A driver who breaches s. 148(1) is
prima facie
negligent and bears the
    onus of explaining that the accident could not have been avoided by the
    exercise of reasonable care: see
El Dali v. Panjalingam
, 2013 ONCA 24,
    113 O.R. (3d) 721, at paras. 17-18.

[41]

The
    trial judge charged the jury that Montepeque had the burden of establishing on
    a balance of probabilities that the negligence of the driver of the
    unidentified car caused her injuries. But Montepeque points out, correctly,
    that the trial judge did not expressly charge the jury on the shifting onus
    applicable to a driver who has breached the
Highway Traffic Act
. That
    is, the trial judge did not instruct the jury that if the unidentified car crossed
    the center line, the burden of proof shifted to the cars driver to disprove
    negligence. Montepeque contends that the trial judges failure to do so was an
    error of law, for which we should set aside the jurys verdict. I do not accept
    Montepeques contention.

[42]

It
    would have been preferable for the trial judge to have expressly charged the
    jury on the shifting burden of proof. But that instruction was not asked for at
    trial. And the trial judges actual instruction conveyed the essence of the
    parties positions. The trial judge charged the jury:

State Farm alleges there was no second vehicle or,
    alternatively, that if there was another vehicle it was not being driven in a
    negligent manner that is
at no time was the other vehicle in, or partially
    in, Ms. Montepeques lane of traffic
. [Emphasis added.]

[43]

State
    Farms consistent position throughout the trial was that, if the jury found
    that there was another car, its driver did not cross the center line into
    Montepeques lane. State Farm never took the position that if the other driver
    did cross the center line, that driver was nonetheless not negligent. As is at
    least implicitly evident in the trial judges charge, State Farm effectively conceded
    that if the other driver crossed the center line, the other driver was
    negligent. I am satisfied that the jury would have understood State Farms
    position. Thus, the trial judges failure to charge the jury expressly on the
    shifting burden of proof did not cause a miscarriage of justice.

[44]

I
    add one other point on the burden of proof. In one section of her factum,
    Montepeque states that the trial judge failed to charge the jury on the
    potential negligence of the unidentified driver in approaching with high beam
    headlights. Montepeque did not plead in her statement of claim that the use of
    high beams amounted to negligence. Nor did her counsel mention high beams in his
    closing address to the jury. He argued the case solely on the ground that the
    unidentified driver was negligent in crossing the center line into Montepeques
    lane. The trial judge cannot be criticized for failing to instruct the jury on
    an issue neither pleaded nor argued.

(c)

Unbalanced and unfair charge?

[45]

Montepeque
    submits that the trial judges charge did not review the evidence and positions
    of the parties in a fair and balanced way. I do not agree.

[46]

The
    trial judges charge on the parties positions and the evidence was relatively
    brief, but it was adequate. She summarized the evidence in a balanced way. That
    summary did not deprive Montepeque of a fair trial.

[47]

Moreover,
    counsel for Montepeque had the opportunity both before and after the charge was
    given to comment on the summary of the evidence on liability. He had one minor
    objection to the trial judges failure to include a piece of evidence. He did
    not suggest that the summary was unfair or unbalanced. Again his failure to
    object is telling. I can do no better than quote the words of this court in
Caton
    v. Devecseri Estate
, 2
014
    ONCA 52, at para 4:

[I]n our view, read as a whole, the charge was not unbalanced
    or unfair to the appellant. The trial judge carefully summarized the
    appellants evidence and his position on the question of liability. The
    appellants counsel, like other counsel, was actively involved in reviewing and
    commenting upon the trial judges draft charge. The appellants counsel did not
    object to the trial judges instruction on concurrent liability or object on
    the basis of the overall fairness of the charge. This strongly suggests that
    this experienced counsel saw no overall imbalance or unfairness in the charge
    on the basis now urged before this court. At the end of the day, we are satisfied
    that this jury would have understood that it was free to accept or reject any
    of the liability theories advanced by the respondents against the appellant.

[48]

I
    would not give effect to Montepeques submissions on the trial judges charge
    to the jury.

(3)

Did the conduct of counsel for State Farm during the trial warrant this
    courts intervention

[49]

Montepeque
    argues that the conduct of State Farms counsel at trial  not Mr. Paliare or
    Ms. Lie - was inappropriate. Combined with the jurys findings, Montepeque
    argues that counsels conduct created an appearance of unfairness warranting
    appellate intervention. I do not accept this argument.

[50]

Montepeque
    calls into question the following conduct of State Farms trial counsel:

·

Humorous remarks to the jury on two occasions at the elevator
    lobby outside the courtroom;

·

Humorous remarks during the cross-examination of Montepeques
    witnesses; and

·

Two misrepresentations witnesses made in the presence of the jury.

[51]

This
    conduct prompted Montepeques counsel to bring a motion to strike the jury. The
    trial judge dismissed the motion and, after the jurys verdict, gave reasons
    for her ruling. Montepeque does not directly challenge the trial judges ruling
    or her findings on the conduct of State Farms trial counsel. Instead she asks
    this court to reconsider that counsels conduct afresh.

[52]

As
    I will discuss, to the extent the conduct of State Farms trial counsel was
    inappropriate, the trial judge adequately addressed Montepeques concerns.

(a)

The two incidents at the elevator lobby

[53]

What
    occurred at the elevator lobby on the two occasions that Montepeque relies on
    is disputed. Montepeque claims that on each occasion, State Farms trial counsel
    made a joke in the presence of the jury, which caused the jury to laugh.
    Montepeques counsel expressed concern with the jury feeling some connection
    perhaps or some connection with  with defence counsel that they dont have
    with me. State Farms trial counsel denied that he had talked to or engaged
    with any juror. He told the trial judge that he had been joking with his
    associate and the court services officer, while they and the jury were waiting
    for the elevator.

[54]

In
    her ruling, the trial judge found that she lacked the evidence to resolve the
    dispute. At para. 15 of her reasons, she held that there is no proper evidence
    before me which might allow me to consider any prejudice to the plaintiff
    arising from [State Farms trial counsels] interaction with the jury outside
    the courtroom.

[55]

Nonetheless,
    when Montepeques counsel raised his concern, the trial judge asked State
    Farms trial counsel to steer clear of the jury and give them a wide berth
    to avoid any future issues. She also discussed with both counsel whether she should
    address the matter specifically in her charge. Counsel for Montepeque
    responded: Only in a general way. Im not asking that Your Honour address it
    specifically.

[56]

The
    trial judge did as Montepeques counsel requested. She added to her charge to
    the jury a specific direction that the jury decide the case solely on the
    evidence, not on the conduct of the lawyers:

You must not decide this case on a preference for the
    presentation style, demeanor or personality of any particular lawyer involved
    in this case. Whether or not you agreed with the approach taken by a particular
    lawyer with regards to questions asked, the length of examination, the order of
    witnesses or the evidence called in support of his or her clients case should
    not and must not affect your decision-making. Only the evidence is relevant and
    not the manner in which it was elicited.

(b)

Humorous remarks in the courtroom

[57]

Montepeques
    counsel also complained about counsel for State Farms allegedly humorous
    remarks during his cross-examination of Montepeques witnesses. In her ruling
    the trial judge appropriately found that counsels use of humour during
    cross-examinations was hardly a basis to strike the jury:

[State Farms counsels] editorializing during his
    cross-examination of the plaintiffs witness is one feature of his litigation
    style. I suspect he uses his sense of humour as a tool for effective
    cross-examination with the hope it endears him to the witness and he is
    therefore able to elicit the evidence he wants. Whatever the reason, it is
    hardly grounds for striking the jury that a collateral benefit is that he also
    endears himself to the jury or some of its members. Both my opening and closing
    instructions expressly address this issue. Because of the concern expressed by [Montepeques
    counsel], additional language was added to my closing charge to further address
    this issue. I must presume the jury will act as instructed. There is no reason
    to doubt their ability to abide by my instruction and to deliver a verdict
    based solely on the evidence without influence by extraneous matters.

[58]

Moreover,
    the trial judges direction to the jury (which I referred to above) to decide
    the case based on the evidence and not on the conduct of the lawyers adequately
    addressed any concern arising from the way in which State Farms trial counsel conducted
    cross-examinations. And, as the trial judge properly noted in her ruling, she
    had no reason to doubt the jurys ability to follow her instructions.

(c)

The two alleged misrepresentations

[59]

Finally,
    Montepeque contends that State Farms trial counsel, in the presence of the
    jury, made two misrepresentations  one concerning a letter sent from
    Montepeques counsel to him, the other concerning the scheduling of witnesses.
    Montepeque further contends that these misrepresentations caused her
    irreparable prejudice.

[60]

The
    two incidents in question occurred on the same day. The first incident occurred
    when State Farms trial counsel referred to a shot across the bow  a letter
    sent from Montepeques counsel  that prevented State Farms experts from
    speaking with a trial witness. Montepeque alleges that these comments were
    likely to inflame the jury.

[61]

The
    second incident arose after Montepeques counsel had cross-examined State Farms
    first witness on damages. State Farms trial counsel then announced that he
    would be calling one further witness, a doctor. According to Montepeque, State
    Farms trial counsel created the impression that there had been discussions
    between counsel resulting in an agreement that would dispense with the need to
    call any additional witnesses on Montepeques pecuniary damages claim. The
    trial was then adjourned for several days to accommodate a jurors
    unavailability. When the trial resumed, State Farms trial counsel served a new
    economic loss report and announced that he would be calling five more witnesses.
    Montepeque alleged that this conduct created the impression Montepeque had
    acted unreasonably and was unwilling to reach an agreement that would allow
    State Farm to call one witness as opposed to five.

[62]

As
    the trial judge recognized, State Farms trial counsel should have made his
    statements in the absence of the jury. But the trial judge, correctly in my
    view, rejected the suggestion that either statement in any way prejudiced
    Montepeque. She ruled at paras. 12-14 :

While ideally the comments of [State Farms trial counsel]
    addressing future scheduling made on October 28
th
should have been
    made in the absence of the jury, they were directed to the court, not the jury.
    The extent to which any of the jurors was listening to these comments is
    unknown. Certainly, none of the jurors would have known the context for [State
    Farms trial counsels] comment shot across the bow and I cannot imagine any
    juror attributing any ill-will to the plaintiff in the absence of such context.

There is no evidence to support the plaintiffs submission that
    [State Farms trial counsel] intended to goad the jury into thinking the
    parties were collaborating to reduce the remaining evidence to be called when
    in fact they were not, so as to prejudice the plaintiff. The defendant is
    entitled to call such witnesses as may be required to answer the plaintiffs
    case. Defendants counsel perhaps may be criticized for being overly ambitious
    in his estimate of the number of witnesses needed to make the defendants case
    as it appears that upon reflection during the break in trial, the defendant
    reassessed its case and determined additional evidence was needed. This is the
    defendants right.

There is no basis to conclude or infer that extending the trial
    time to accommodate five rather than one defence witness would incense the jury
    to the prejudice of the plaintiff. I have found this jury to have been most
    understanding, patient and accommodating throughout the trial. They appear
    attentive, conscientious and eager to fulfill and complete their duties no
    matter how long the trial may take.

[63]

I
    see no error in the trial judges ruling.

[64]

I
    conclude that this court has no basis to intervene because of the conduct of
    State Farms trial counsel. Any concerns that arose from his conduct were appropriately
    dealt with by the trial judge. I would not give effect to Montepeques
    submissions on this issue.

(4)

Should the court grant judgment for Montepeque in the amount of damages
    assessed by the jury or order a new trial

[65]

In
    the light of my answers to the first three questions, it is unnecessary to address
    this issue.

D.

conclusion

[66]

I
    conclude as follows:

·

The jurys answers to questions 1 and 9 were not inconsistent;

·

The trial judge did not err in her charge to the jury; and

·

The conduct of trial counsel for State Farm does not warrant our
    intervention.

[67]

I
    would therefore dismiss the appeal, with cost fixed at $20,000 inclusive of
    disbursements and HST.

Released: J.L. December 7, 2017

John Laskin J.A.

I agree. K. Feldman J.A.

I agree. R.G. Juriansz J.A.

[1]
R.R.O. 1990, Reg. 194.

[2]

Because the jury found that the driver of the unidentified car
    was not negligent, it did not need to answer whether Montepeque was
    contributorily negligent.

[3]

R.S.O. 1990 c. H.8.


COURT OF APPEAL FOR ONTARIO

CITATION: Ohenhen (Re), 2017 ONCA 960

DATE: 20171207

DOCKET: C60572

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

IN THE MATTER OF: Julius Ohenhen

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Jill R. Presser, for the appellant,
    Julius Ohenhen

Amy Alyea, for the respondent, the Attorney General of
    Ontario

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

Heard: November 9, 2017

On appeal from the Disposition of the Ontario Review
    Board, dated May 7, 2015, with reasons dated June 1, 2015, reported at [2015]
    O.R.B.D. No. 1168.

L.B. Roberts J.A.:

[1]

The appellant confines his appeal to the refusal of the
    Ontario Review Board (the Board) to grant the systemic remedies sought by him
    under s. 24(1) of the
Canadian Charter of Rights and Freedoms

for the violation of his s. 8 right to be free from unreasonable
    search and seizure. The respondents concede that the appellants s. 8 right was
    violated when unauthorized urine samples were seized from him, but contend that
    the Board did not have jurisdiction to grant the requested systemic remedies.

[2]

The appellant does not appeal from the Boards
    finding that his ss. 7, 9 and 10
Charter
rights were not violated. Nor does he seek to overturn the Boards disposition that
    he remain detained at the Centre for Addiction and Mental Health (CAMH). That
    decision was overtaken by the Boards subsequent disposition order dated November
    1, 2016, which was issued following the next annual review hearing. The appellant
    appealed from the latter order; this courts judgment with respect to that
    appeal is under reserve.

[3]

I would dismiss this appeal for the reasons that follow.

(i)

Mootness of the appeal

[4]

The parties agree that the present appeal is moot because
    the disposition order under appeal was overtaken by the November 1, 2016 order.
    The respondents argue that this court should not exercise its jurisdiction to
    hear the appeal.

[5]

I disagree. This appeal raises the significant issue of
    the scope of the Boards remedial powers under s. 24(1) of the
Charter
, which is a matter of importance not only to the appellant but to NCR
    accused persons generally and to the Board:
Starz (Re)
, 2015 ONCA 318,
[
2015
]
O.J. No. 2331, at para. 52,
leave
    to appeal refused, [2016] S.C.C.A. 459
.

[6]

This is an important question capable of
    repetition, which could prove difficult to review, given the annual review
    process for the Boards dispositions. Moreover, the record is sufficient and
    the issue has been fully developed and argued. The Supreme Court in
Mazzei
    v. British Columbia (Director of Adult Forensic Psychiatric Services)
, 2006 SCC 7,
[
2006
]
1 S.C.R. 326, at para. 15, exercised its discretion
    to hear an appeal from a superseded disposition for similar reasons. In
Starz
    (Re)
, at paras. 52-54, this court adopted the reasoning from
Mazzei
, and determined that the appeal should
    be heard even though the appellant had since been granted an absolute discharge
    and was no longer under the Boards jurisdiction.

[7]

Accordingly, I would exercise this courts discretion
    to hear this appeal.

(ii)

Factual and procedural background

[8]

On June 11, 2007, the appellant was found not
    criminally responsible on account of a mental disorder (NCR) on charges of
    intimidation and criminal harassment. As a result, he was admitted to CAMH as
    an in-patient on August 17, 2007. When his annual review hearing was held on February
    26 and April 27, 2015, the appellant had been accepted into a community
    residence that provides a high level of support and supervision.

[9]

In advance of the hearing, the appellant brought an
    application for a declaration that his s. 8 right, among other
Charter
rights, had been breached because CAMH staff took three urine
    samples from him without lawful authority under his disposition. On February
    18, 2014, the Board had removed the previous requirement from his disposition that
    the appellant provide urine samples. The appellant provided urine samples on
    February 27 and March 16, 2014, because he was unaware that the February 18
    disposition removed the previous obligation to provide samples. He refused to
    provide urine samples when requested to do so on two occasions in July, 2014. He
    gave a urine sample on January 8, 2015 because, he alleged, the nurse
    threatened to withhold his privileges if he failed to do so.

[10]

On
    his application, the appellant sought both the individual remedy of a
    declaration that his
Charter
rights had been violated, as well as the
    following systemic remedies in relation to CAMH administrative processes and
    protocols:

(i)

a direction to CAMH to overhaul
    its processes to ensure that dispositions and reasons of the Board in respect
    of each of their clients are delivered to, received and reviewed by front-line
    staff charged with the care, observation, treatment or supervision of the
    client;

(ii)

a direction to CAMH to implement
    a quality assurance protocol to ensure its staff are in fact familiar with the
    terms and conditions of each of their clients disposition orders;

(iii)

a direction to CAMH to create a
    protocol, process or policy on what steps staff must take before approaching a
    client to request a urine sample, to inform themselves about whether they have
    the authority to make the request, and what they must advise the client with
    respect to the clients right to refuse to provide a sample, as well as what
    the sample will be screened for specifically, whether illicit substances or
    medication compliance, or whatever use the requester intends to make of the
    sample; and

(iv)

a direction to CAMH to provide
    education to all front-line staff to dispel any notion that all NCR accused
    persons under the Boards supervision are prohibited from the use of alcohol or
    substances, or must subject themselves to, or provide samples of their bodily
    fluids for, any screening for substances, or for any other purpose.

[11]

The respondents conceded and the Board found that the appellants s.
    8
Charter
right was infringed when the urine
    samples were taken after the requirement had been removed from the appellants
    most recent disposition. The Board granted the individual remedy requested by
    the appellant, finding that his s. 8
Charter
right had been breached.
[1]

[12]

However, the Board determined that it did not have jurisdiction to
    grant the systemic remedies requested by the appellant. In the alternative, the
    Board concluded that even if it did have such jurisdiction, it would not
    exercise it in this case primarily because CAMH had already implemented almost
[2]
all of the steps that were
    being requested by the appellant.

(iii)

Analysis

[13]

I
    agree with the respondents that the Board does not have the jurisdiction to
    grant the systemic remedies requested by the appellant.

[14]

It
    is well established that the Board is a court of competent jurisdiction, and
    that it is entitled to determine
Charter
issues that arise in the
    course of Board proceedings in relation to individual NCR accused persons:
R.
    v. Conway,
2010 SCC 22, [2010] 1 S.C.R. 765, at para. 84;
Chaudry (Re)
,
    2015 ONCA 317, [2015] O.J. No. 2332, at para. 103, leave to appeal refused, [2016]
    S.C.C.A. No. 460. Accordingly, as this court concluded in
Starz (Re)
,
    at para. 110: It follows that the Board is entitled to make findings that an
    NCR accused persons
Charter
rights have been infringed, and can order
    appropriate remedies.

[15]

However,
    Parliament did not imbue the Board with free remedial rein:
Conway
,
    at para. 97. As this court explained in
Starz (Re)
, in the context of
    declaratory orders, the Board does not have jurisdiction to make the kind of
    broad orders that go beyond the circumstances of the individual NCR accused person
    before it. The courts analysis at para. 111 applies with equal force to the
    present case:

The essential point for this discussion is that the Boards
    focus is necessarily on the NCR accused person before it. Its role is not to
    make broad or general pronouncements but, rather, to ensure that the particular
    NCR accused person is subject to the least onerous and least restrictive
    conditions consistent with public safety. To that end, the Board has the power
    to make remedial orders directed at the particular NCR accused person. Making
    declarations  given their broader range and purpose  would necessarily divert
    the Boards attention from the person before it because it would have to
    consider the broader implications for a broader group. Not only would it
    detract from the Boards primary role and functions, it is likely to protract
    proceedings before the Board.

[16]

The
    role of the Board is to determine the appropriate disposition for each
    individual NCR accused person who appears before it. Its jurisdiction does not
    extend to the kind of systemic, institutional orders sought here. The Boards
    statutory mandate as a specialized tribunal under Part XX.1 of the
Criminal
    Code
is the ongoing supervision of the treatment, assessment, detention
    and discharge of NCR accused persons in a responsive,
Charter
-compliant
    fashion, with the broad power to attach individualized conditions:
Conway
,
    at para. 94;
Chaudry (Re)
, at para. 93. In particular, the Board can make
    appropriate orders to ensure that the
Charter
rights of individual NCR
    accused persons are respected, and that its dispositions in relation to those
    individuals are followed.

[17]

While
    the Boards jurisdiction does not extend to the imposition of systemic changes
    on the institutions in which NCR accused persons are detained, practically
    speaking, its orders may still affect institutional practices and procedures as
    they relate to an individual NCR accused person. The Board has the power to bind
    hospital authorities and to impose binding conditions regarding or supervising the
    medical treatment of the individual NCR accused persons who reside there:
Mazzei
,
    at para. 39.

[18]

If
    CAMH had taken no steps to remedy the
Charter
breaches in this case,
    the Board would have had the jurisdiction to make appropriate remedial orders,
    so long as they were in relation to the appellant. This could logically include
    orders that would affect CAMHs processes and protocols as they related to the
    appellant, to ensure that the content of his disposition was known and
    respected in order to obviate the risk of further breaches occurring. This is
    consistent with the Boards mandate under the NCR regime, which as explained
    above, directs the Boards focus to the specific NCR accused person before it
    in each case, pursuant to an individualized assessment-treatment model:
Mazzei
,
    at para. 28;
Starz (Re)
, at para. 111. The Board has the power to
    redress any aspect of the appellants detention that does not meet the least
    onerous and least restrictive standard:
Chaudry (Re)
, at para. 98.

[19]

I
    also observe that, while the Board does not have the jurisdiction to order at
    large that an institution make broad, systemic changes to its processes, it is
    open to the Board to make findings and non-binding suggestions as to what
    should be done to rectify systemic problems:
Chaudry (Re)
, at para.
    99.

Disposition

[20]

The
    Board did not err in determining that it lacked jurisdiction to grant the
    systemic remedies requested by the appellant. Accordingly, I would dismiss the
    appeal.

Released: December 7, 2017

L.B. Roberts J.A.

I agree G.R. Strathy C.J.O.

I agree Doherty J.A.

[1]

The Board initially issued a declaration that the appellants
    s. 8
Charter
right had been breached. However, after reviewing this
    courts decision in
Starz (Re)
, 2015 ONCA 318, the Board revised its
    June 1, 2015 reasons to a make a finding to the same effect.

[2]
The appellant submits that CAMH did not implement the important step of
    occasional random checks to ensure that staff were collecting urine samples in
    a
Charter
-compliant manner and in accordance with the dispositions of
    NCR accused persons.