COURT OF APPEAL FOR ONTARIO

CITATION: Rogers & Company Professional Corporation v.
    Beer,

2019 ONCA 514

DATE: 20190619

DOCKET: C66127

Sharpe, Brown and Roberts JJ.A.

BETWEEN

Rogers & Company Professional Corporation

Respondent / Applicant

and

Indira Beer and Derek Beer

Appellants / Respondents

No one appearing for the appellants

Ethan Rogers and Krysten Fisher, for the respondent

Heard: June 18, 2019

On appeal from the order of Justice L.K. McSweeney of the
    Superior Court of Justice, dated October 25, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The appellants did not appear again today.  The registrar sent the
    appellants a copy of the courts endorsement by email, indicating that the
    appeal had been adjourned to today.  The appellants have not contacted the
    court to determine the status of the appeal.

[2]

On our view of the written material, this appeal has no hope of
    success.  In these circumstances, the appeal is dismissed.

[3]

The respondents are awarded costs fixed at $12,417.89, inclusive of
    disbursements and taxes.


COURT OF APPEAL FOR ONTARIO

CITATION: Royal Bank of Canada v. Peter, 2019 ONCA 537

DATE: 20190626

DOCKET: C66317

Huscroft, Trotter and Zarnett JJ.A.

BETWEEN

Royal Bank of Canada

Plaintiff/Respondent

and

Lisa Peter also known as Fu Ping Lisa Peter, also
known as Lisa Fuping Peter, also known as Lisa Fu Ping Peter, Lily John
Enterprises Inc

Appellant/Defendant

Lisa Peter, self-represented

Lindsay Kirk, for the respondent

Heard: June 24, 2019

On appeal from the judgment of Justice D.K. Grey of the Superior
Court of Justice, dated November 21, 2018.

APPEAL BOOK ENDORSEMENT

[1]

This was an appropriate case for summary judgment. The respondent
acknowledged it had no claim against Mr. Peter, but the motion judges finding
that there was no dispute that Ms. Lisa Peter and the corporation were liable
for the debt is supported by the record, and we see no error requiring
intervention.

[2]

The appeal is dismissed. Costs to the respondent of $1,000 inclusive of
taxes and disbursements.


COURT OF APPEAL FOR ONTARIO

CITATION: Shuttleworth v. Ontario (Safety, Licensing Appeals
    and Standards Tribunals), 2019 ONCA 518

DATE: 20190621

DOCKET: C65981 and C65995

Tulloch, Hourigan and Fairburn JJ.A.

C65981

BETWEEN

Mary Shuttleworth

Applicant (Respondent)

and

Safety,
    Licensing Appeals and Standards Tribunals Ontario and

Licence Appeal Tribunal

Respondents (Respondents)

and

Peel Mutual Insurance Company

Respondent (Appellant)

C65995

AND BETWEEN

Mary Shuttleworth

Applicant (Respondent)

and

Safety,
    Licensing Appeals and Standards Tribunals Ontario and

Licence
    Appeal Tribunal

Respondents
    (Appellants)

and

Peel Mutual Insurance Company

Respondent (Respondent)

Sunil Mathai and Domenico
    Polla, for Safety, Licensing Appeals and Standards Tribunals Ontario and
    Licence Appeal Tribunal

Cynthia Verconich, for Peel
    Mutual Insurance Company

Gary Mazin and Vasiola
    Bibolli, for Mary Shuttleworth

Heard: April 24, 2019

On appeal from the order of the Divisional Court (Justices
    Julie A. Thorburn, Michael K. McKelvey, and Frederick L. Myers), dated June 20,
    2018, with reasons reported at 2018 ONSC 3790.

Hourigan J.A.:

Introduction

[1]

Mary Shuttleworth was injured in a car accident on September 28, 2012.
    In December 2014, she applied to her insurer, Peel Mutual Insurance Company
    (Peel), for a determination that her accident injuries resulted in
    impairments that met the statutory threshold for a catastrophic impairment as
    defined in the
Statutory Accident Benefits Schedule
,
O. Reg. 34/10
(the
SABS
). When the
    parties were unable to agree whether the threshold was met, she sought a
    hearing before the Licence Appeal Tribunal (the LAT). At the time, the LAT was
    a part of a cluster of tribunals known as
the
    Safety, Licensing Appeals and Standards Tribunals Ontario (SLASTO).
On
    April 21, 2017, LAT vice-chair Susan Sapin released a decision determining that
    the threshold was not met.

[2]

Approximately two months later, Ms. Shuttleworths counsel received an
    anonymous letter stating that, before the decision was released, it was reviewed
    and changed by Linda Lamoureux, the executive chair of SLASTO. The letter
    claimed that in Ms. Sapins initial decision, Ms. Shuttleworths injuries
    qualified as a catastrophic impairment, but when Ms. Lamoureux reviewed the
    decision, she altered it and determined that Ms. Shuttleworth did not meet the
    threshold. The letter also indicated that Ms. Sapin was reluctant to sign the
    decision.

[3]

Ms. Shuttleworth attempted to obtain information about the process
    followed in her case. This was met by a broad claim of adjudicative privilege
    asserted by the LAT. However, the LAT did produce some emails without
    attachments, which it relied on in support of its position that there was no
    interference with Ms. Sapins decision. Having obtained no meaningful
    information regarding the serious charges in the anonymous letter, Ms.
    Shuttleworth brought an application for judicial review.

[4]

The Divisional Court granted Ms. Shuttleworths application for judicial
    review and set aside the LATs decision. While it made no finding of any actual
    impropriety, the court held that the LATs decision-making process did not meet
the minimum standards required to ensure both the existence and
    appearance of adjudicative independence.

[5]

The LAT and SLATSO appeal the order of the Divisional Court, as does
    Peel (the appellants). They assert that the court erred in law in finding
    that there was a reasonable apprehension of lack of independence in relation to
    Ms. Sapin. As I will explain below, I do not accept this submission and would
    dismiss the appeal.

Facts

[6]

Ms. Shuttleworth suffered physical and psychological injuries as a
    result of her motor vehicle accident. A finding that she was catastrophically
    impaired would entitle her to enhanced benefits. Peels assessments determined
    that Ms. Shuttleworths impairment of the whole person (WPI) fell below the
    55% threshold for catastrophic impairment provided in the
SABS
,
while an assessment that Ms. Shuttleworth commissioned confirmed that she met
    the threshold. She applied to the LAT under s. 280 of the
Insurance Act
,
    R.S.O. 1990, c. I.8, to resolve the dispute.

[7]

To promote efficiency, the
Adjudicative Tribunals Accountability
,
Governance and Appointments Act
, 2009, S.O. 2009, c. 33, Sched. 5,
    s. 15 (
ATAGAA
), allows two or more adjudicative tribunals to be
    designated as a cluster by regulation. Until January 1, 2019, the LAT was
    part of SLASTO.
[1]

Ms. Lamoureux was appointed as executive chair
    of SLASTO, pursuant to s. 16 of
ATAGAA
.
The LAT acquired jurisdiction over disputes in respect of the
SABS
on April 1, 2016. Ms. Shuttleworths case was the
    first catastrophic impairment decision that the LAT was to release.

[8]

On April 21, 2017, Ms. Sapin ruled that Ms. Shuttleworths WPI was 51%
    and that Ms. Shuttleworth was, therefore, not catastrophically impaired. If Ms.
    Shuttleworths WPI was assessed at 53%, it would have been rounded up to 55%
    and she would have been found catastrophically impaired. Ms. Shuttleworth did
    not request a reconsideration of the decision and did not appeal.

[9]

Approximately two months after the decision was released, Ms.
    Shuttleworths counsel received an anonymous letter advising that the decision
    was reviewed and changed by Ms. Lamoureux before its release. The letter
    stated:

I have heard from reliable
    source that Sapins initial decision was that this was a catastrophic
    impairment. This decision then went up for review and the ED Linda Lamoureux changed
    the decision to make the applicant not catastrophically impaired.

Thought you should
    know that the decision was not made by an independent decision maker who heard
    the evidence.

I was also told that Sapin hesitated to sign this
    order.

[10]

After receiving the anonymous letter and being denied further
    information by the LAT, Ms. Shuttleworths counsel made an access to
    information request. In response to that request, the LAT refused to produce
    the drafts of the decision, which could have resolved the issue. Instead, it
    made limited disclosure, including of internal emails. The respondent did not
    pursue further disclosure.  In one email of particular note, dated April 11,
    2017, Ms. Sapin wrote to Ms.
Lamoureux as follows
:

I just wanted to thank you for your helpful
    review of this decision and to let you know that I have met with Liz and am
    working on revising it (for the umpteenth time, this was
not
a
first
draft!)
    to re-organize it a bit, tighten it up and clarify some points in keeping with
    your suggestions. And try to make it shorter.

I also wanted to point out that this will take
    more time, and although I will do my best to meet Karens recent deadlines for
    this and my three other decisions, I just wanted to advise in advance that the
    deadlines may be affected somewhat.

[11]

Ms.
Lamoureux
responded the same day, she wrote:

Susan thank you for your note. This is a complex
    case. I had the benefit of reading it after a great deal of work on your part
    and after legal review. I recall stopping by your desk on a few occasions where
    you indicated you were struggling with a CAT case  no wonder given the issues
    at play. I do appreciate your understanding and willingness to work with legal
    and myself to ensure the best possible decision. You must be a fan of Justice Laskins
    as he takes a similar approach. This is an important decision, one that will be
    referenced. I suspect it will receive a great deal of attention.

Although I am concerned about the delay already
    experienced by the applicant and the further delay that will ensue because of
    my comments, I do appreciate your understanding of the importance of ensuring
    quality decision writing, and your willingness to accept constructive
    feedback. At the end of the day, the people we serve benefit.

[12]

On June 21, 2017,
Ms. Shuttleworth
filed an
    application for judicial review. She argued that the LAT had failed to remain
    neutral in its decision-making process and sought an order reversing the
    decision or referring the matter back to the LAT for a rehearing.

[13]

On
    the application for judicial review, Benson Cowan, Head of Legal Services for
    SLASTO, affirmed an affidavit explaining the LATs decision review process. His
    uncontested evidence was that an adjudicator is expected to send the decision
    for peer review upon completing the draft. However, there was no means to
    compel adjudicators to participate and no means to prevent an adjudicator who
    declined to participate from releasing the decision. According to Mr. Cowan, in
    some situations, the review proceeds through a total of four phases: (1) peer
    review by the duty vice-chair; (2) legal review by the SLASTO Legal Services
    Unit; (3) a second peer review by the executive chair; and (4) a review by the
    files case management officer. The Legal Services Unit would only send the
    decision to the executive chair in rare instances such as when a decision
    involved a novel, contentious, precedent-setting, or high profile issue.

[14]

Finally,
    Mr. Cowan provided some evidence about the operation of the peer review process
    in the case at bar. He stated that the adjudicator submitted her decision for
    peer review by the duty vice-chair and then to the Legal Services Unit for
    legal review. Mr. Cowan sent the decision to the executive chair for review
    because it was the first catastrophic impairment decision that the LAT was
    going to release.

Decision of the Divisional Court

[15]

The
    Divisional Court accepted that an adjudicators discussion of a draft decision
    with colleagues does not in and of itself breach the rules of natural justice.
    It relied on
Khan v. College of Physicians & Surgeons of Ontario
(1992), 9 O.R. (3d) 641 (C.A.), for the principle that some outside influence
    on reason writing is permissible and accepted. However, the court emphasized
    that the institutional consultation procedure must be designed to safeguard a
    decision-makers ability to independently decide the facts and the law. It
    relied on
Ellis‑Don Ltd. v. Ontario (Labour Relations Board)
,
    2001 SCC 4, [2001] 1 S.C.R. 221, at para. 29, for the propositions that the
    consultation procedure cannot be imposed by a superior level of authority,
    consultation must be limited to questions of policy and law, and
    decision-makers must remain free to decide independently even on questions of
    policy and law.

[16]

The
    Divisional Court was unable to find that the adjudicator lacked actual
    independence. It held that, as Ms. Shuttleworth elected not to cross-examine
    Mr. Cowan, there was no evidence to refute his evidence that the reviewers do
    not question the facts and evidence and do not comment on the policy choices or
    outcome, that there is no means to compel adjudicators to participate in peer
    review, or that the adjudicator has complete discretion to accept or reject any
    suggested revisions. This evidence, coupled with the presumption of regularity
    that applies to administrative proceedings, meant that Ms. Shuttleworth failed
    to prove a lack of actual independence.

[17]

Notwithstanding
    the foregoing, the Divisional Court concluded that there was a reasonable
    apprehension of a lack of independence. The LAT breached the rule of
    consultation from
Ellis-Don
because the executive chair imposed a
    review that was not requested by the adjudicator. The court emphasized that
    peer review or other consultative processes must be accompanied by robust
    protections to safeguard adjudicative independence. It stressed that there was
    no formal or written policy protecting the adjudicators right to decline to
    participate in a review by the executive chair or make changes proposed by the
    executive chair. The court found the absence of this policy significant
    because ss. 7-8 of
ATAGAA
required it and because its existence would
    safeguard the appearance of propriety. Accordingly, it concluded that the LAT
    subjected the decision to a peer review process that lacked the required
    safeguards of adjudicative independence.

[18]

It
    is important to note that, in reaching its conclusion, the Divisional Court
    made a number of factual findings about the review process, none of which are
    challenged on appeal:

(1)

The SLASTO
    Legal Services Unit generally sent decisions to the executive chair without
    assent or input from the adjudicators;

(2)

In this
    particular case, the adjudicator did not request the consultation with the
    executive chair and the executive chair only informed the adjudicator of her review
    after it had already taken place;

(3)

There was
    no formal or written policy protecting the adjudicators right to decline to
    participate in the review by the executive chair or to decline to make changes
    proposed by the executive chair;

(4)

A manual describing
    the tribunals procedure made no reference to the voluntariness of the peer
    review process; and,

(5)

By virtue
    of reappointment powers granted to the executive chair under s. 14(4) of
ATAGAA
,
    she exercised a superior level of authority within the administrative
    hierarchy.

[19]

In
    the result, the Divisional Court granted Ms. Shuttleworths application, set
    aside the adjudicators decision, and referred the matter back to the LAT for a
    new hearing.

Analysis

[20]

The
    appellants submit that the Divisional Court erred by: (a) incorrectly articulating
    and applying the test for reasonable apprehension of bias; (b) wrongly applying
    the trilogy of Supreme Court of Canada cases involving the preparation of
    reasons by administrative tribunals; (c) mistakenly finding that ss. 7 and 8 of
    the
ATAGAA
required SLATSO to have written consultation procedures; (d)
    failing to conduct a holistic analysis as mandated by
Khan
; and (e)
    conducting an incorrect analysis regarding reasonable apprehension of lack of adjudicative
    independence in relation to Ms. Sapin. These issues will be considered below.

(a)

Test for a Reasonable Apprehension of Bias

[21]

In
    the overview section of its reasons, the Divisional Court stated,
Justice must not only be done; it must be seen to be
    done. In the absence of a properly limited, voluntary consultative process, an
    informed, cautious observer would have a reasonable basis to believe that the
    decision did not reflect the independent decision of the adjudicator.

[22]

The
    appellants submit that the Divisional Court misapplied the test for reasonable
    apprehension of bias by introducing the concept of a cautious observer. This,
    they argue, is novel and inconsistent with the test for reasonable apprehension
    of bias articulated in
Valente v. The Queen
, [1985] 2 S.C.R. 673, which
Ellis‑Don

confirms applies to the tribunal context.

[23]

The
    test for a reasonable apprehension of bias or lack of independence in respect
    of an administrative tribunal is whether the apprehension is a reasonable one,
    held by reasonable and right minded persons, applying themselves to the
    question and obtaining thereon the required information:
IWA v.
    Consolidated‑Bathurst Packaging Ltd.
, [1990] 1 S.C.R. 282, at p.
    334. The question is thus whether an informed person, viewing the matter realistically
    and practically  and having thought the matter through would think that it is
    more likely than not that the decision-maker would decide fairly:
Consolidated-Bathurst
,
    at p. 334. The Supreme Court recently confirmed this test in
Yukon
    Francophone School Board, Education Area #23 v. Yukon (Attorney General)
,
    2015 SCC 25, [2015] 2 S.C.R. 282.

[24]

I
    would not give effect to the appellants submission that the Divisional Court
    applied the incorrect test. The appellants seize on the Divisional Courts passing
    reference to a cautious observer. It is unfortunate that the term was used,
    as it may appear to introduce an unknown element to the test. However, on a
    review of the courts reasons as a whole, it is plain that it correctly
    articulated the test for a reasonable apprehension of a lack of independence at
    para. 50 of its reasons and cited the relevant authorities on the issue. At
    paras. 62 and 65, the court applied that test and found a reasonable
    apprehension of a lack of independence without making reference to a cautious
    observer.

[25]

In
    my view, the Divisional Court did not apply a novel test for reasonable
    apprehension of a lack of independence. Accordingly, this ground of appeal
    should fail.

(b)

Application of the Trilogy

[26]

The
    Supreme Courts trilogy of cases on consultations in the course of preparing
    reasons for a decision
Consolidated-Bathurst, Tremblay v. Quebec
    (Commission des affaires sociales)
, [1992] 1 S.C.R. 952, and
Ellis-Don
 sets out a framework of considerations for assessing whether there is a
    reasonable apprehension of bias or lack of independence.

[27]

The
    guiding principle from the trilogy is that the decision-maker must be free to
    decide cases in accordance with his own conscience and opinions:
Consolidated-Bathurst
,
    at p. 332.
Consolidated-Bathurst
establishes that discussions with
    colleagues are permissible even though they raise the possibility of moral
    suasion, and that adjudicators are entitled to consider the opinion of their
    colleagues in the interest of adjudicative coherence: at pp. 331-33. The court
    also recognized that consultation could allow the adjudicator to benefit from
    the acquired experience of the entire board and foster coherence in the boards
    jurisprudence: at pp. 326-28. At the same time, the court concluded that any
    procedure or practice that unduly restricted independence would be contrary to
    the rules of natural justice: at p. 323. Accordingly, procedures that
    effectively compel or induce decision-makers to decide against their own
    conscience and opinions are impermissible: at p. 333.

[28]

To
    reconcile the demands of decision-making by administrative tribunals with
    procedural fairness, the court held that full-board consultation was
    permissible if accompanied by appropriate safeguards. As Gonthier J. stated,
    the question is whether the safeguards attached to this consultation process
    aresufficient to allay any fear of violations of the rules of natural
    justice:
Consolidated-Bathurst
, at para. 53.
Consolidated-Bathurst
establishes that the fact that the boards chair or other board members lack
    any
de jure
power to impose their opinion on other board members is
    not a sufficient safeguard, as procedures may still effectively compel or
    induce members to decide against their conscience and opinions: at p. 333.
    Accordingly, the court must examine the actual structure of the machinery
    created to promote collegiality and determine the
actual situation
prevailing in the body in question:
Tremblay
, at pp. 968 and 973 (emphasis
    in original).

[29]

The
    Supreme Court also outlined specific rules that govern the practice of
    full-board consultation. In
Consolidated-Bathurst
, the court found it
    obvious that no outside interference may be used to compel or pressure a
    decision maker to participate in discussions on policy issues raised by a case
    on which he must render a decision: at p. 332. Likewise, in
Tremblay
,
    the court found that the tribunal presidents ability to refer a matter for
    plenary discussion without the permission of the adjudicator was a sufficient
    basis to find an appearance of a lack of independence: at p. 974. As a result,
Ellis-Don
held that it was a basic principle that only the adjudicators could request
    consultation and that their superiors in the administrative hierarchy could not
    impose it on them: at para. 29. This conclusion is consistent with leading
    treatises. As Sara Blake states in
Administrative Law in Canada
, 6th
    ed. (Toronto: LexisNexis, 2017), at pp. 116-117:

A process for compulsory consultation is not acceptable. The
    decision to consult must be up to the decision makers. It should not be imposed
    on them. If they do not wish to consult, they must be truly free to choose not
    to do so. Compulsory consultation creates an appearance [of] constraint on their
    freedom to decide the case.

[30]

The
    appellants attempt to distinguish the LATs review process from the full-board
    meetings the trilogy considered on two bases. First, they submit that the
    review process was purely focused on the quality of the written decision, unlike
    the full-board meetings that involved reviewing policy choices and the ultimate
    result. Second, they submit that the same moral suasion concerns are not
    present in the review process because only a maximum of four reviewers are
    involved and it is a simple editorial exercise. I would reject these
    submissions for the following reasons.

[31]

First,
    it is inaccurate to characterize the review process as a purely qualitative or
    editorial exercise. Mr. Cowans evidence was that reviewers did comment on
    whether the correct legal test and jurisprudence has been identified and
    applied.
Ellis-Don
emphasized that the procedural safeguards were
    required to protect a decision-makers ability to decide questions of law
    independently from compulsion by other members of the tribunal: at para. 29.

[32]

Second,
    the fact that fewer people were involved in the review than in the full-board
    consultations the trilogy considered does not assist the appellants. The fact
    remains that the executive chair occupies the most superior level of authority
    within the LAT and SLATSO. It should be recalled that the executive chair
    undertakes any reconsideration of the LAT adjudicators decisions and holds
    power over the reappointment of individual adjudicators under s. 14(4) of
ATAGAA
.
    That subsection provides:

Chair to recommend appointments, reappointments

(4) No person shall be appointed or reappointed to an
    adjudicative tribunal unless the chair of the tribunal, after being consulted
    as to his or her assessment of the persons qualifications under subsections
    (1) and (2) and, in the case of a reappointment, of the members performance of
    his or her duties on the tribunal, recommends that the person be appointed or
    reappointed.

[33]

The
    appellants submit that the moral suasion concern related to the executive
    chairs power over reappointment would be equally strong even if the
    adjudicator requested review by the executive chair. This submission should be
    rejected. As
Tremblay
and
Consolidated-Bathurst
recognize,
    adjudicators are more likely to feel free to decide according to their own
    conscience and opinions if the consultation occurs at their own request:
Consolidated-Bathurst
,
    at pp. 334-335 and
Tremblay
, at p. 974.

[34]

Third,
    it is also important to note that this court and other courts have found the
    principles from the trilogy on full-board consultation relevant to cases
    dealing with other review processes for draft decisions. In the context of
    review of draft reasons by counsel to a disciplinary committee, this court in
Khan
relied on
Tremblay
for the principle that compulsion to consult with
    others may cause the appearance of independence to be lost:
Khan
, at pp.
    673-74. Similarly, in
Bovbel v. Canada (Minister of Employment and
    Immigration)
, [1994] 2 F.C. 563 (C.A.), the Federal Court of Appeal relied
    on
Consolidated-Bathurst
and
Tremblay
to evaluate whether the
    Immigration and Refugee Boards practice of encouraging board members to submit
    their reasons for review by staff lawyers gave rise to a reasonable
    apprehension of bias.

[35]

I
    would therefore reject the submission that the Divisional Court erred in its
    application of the trilogy.

(c)

Written Procedures

[36]

The
    appellants submit that the Divisional Court erred in holding that the absence
    of a written peer-review policy was significant on the basis that ss. 7-8 of
ATAGAA
required such a policy. These sections provide as follows:

Member accountability framework

7 (1) Every adjudicative tribunal shall develop a
    member accountability framework.

Contents

(2) The member accountability framework must contain,

(a) a description of the functions of the members,
    the chair and the vice-chairs, if any, of the tribunal;

(b) a description of the skills, knowledge,
    experience, other attributes and specific qualifications required of a person
    to be appointed as a member of the tribunal;

(c) a code of conduct for the members of the
    tribunal; and

(d) any other matter specified in the regulations
    or in a directive of the Management Board of Cabinet

Approval

(3) The member accountability framework must be
    approved by the tribunals responsible minister.

Publication,
    Amendment and Review of Public Accountability Documents

Publication of public accountability documents

8 Every adjudicative tribunal shall make its public
    accountability documents, approved as required by section 3, 4, 5, 6 or 7, as
    the case may be, available to the public.

[37]

The
    appellants argue that the text of s. 7 of
ATAGAA
does not include a
    requirement for a written peer-review policy and that SLASTO has adopted all
    the required documents. Their position is that the documents codify the
    principle of adjudicative independence and address the roles of members and vice-chairs
    in the peer-review process. Nor, they argue, does the case law demand a written
    peer-review policy. They note that in

Consolidated‑Bathurst

and
Ellis-Don
, the Supreme Court upheld the Ontario Labour
    Relations Boards practice of full-board consultation even though the board
    lacked a written policy codifying the procedural safeguards in that process.

[38]

I
    accept that ss. 7-8 of
ATAGAA
do not require SLATSO to publish a
    written peer review policy. Section 7(2) of
ATAGAA
only requires a tribunal
    to describe the functions of the members, the skills and qualifications
    required to be appointed a member, and a member code of conduct. SLATSO did
    publish a code of conduct, as well as descriptions of the vice-chair and member
    positions. The appellants are also correct that the Supreme Court upheld the
    Ontario Labour Relations Boards practice of full-board consultations in

Consolidated-Bathurst
and
Ellis-Don
despite the Boards lack of a written policy governing
    those consultations, and that the Supreme Court found a reasonable apprehension
    of bias in
Tremblay
even though there was a written policy that
    protected adjudicative independence.

[39]

Despite
    the foregoing, the Divisional Court was still entitled to find the absence of
    such a policy significant when it considered the adequacy of LATs procedural
    safeguards. The absence of a formal policy protecting the adjudicators right
    to decline to participate was significant in an environment where the procedure
    manual made no reference to the voluntariness of review by the executive chair
    and Mr. Cowans own evidence was that adjudicators were expected to participate
    in the review process. While Mr. Cowans evidence was that there was no means
    to compel adjudicators to participate, he did not give evidence that SLATSO
    communicated to adjudicators that they were free not to have their drafts
    reviewed by the executive chair. The principal safeguard the appellants point
    to is the executive chairs inability to lawfully compel the adjudicator to
    change her mind. However,
Consolidated-Bathurst
establishes that this
    is not a sufficient safeguard: at p. 333.

[40]

Further,
    the absence of a written policy on full-board consultations in
Consolidated-Bathurst
and
Ellis-Don
and its presence of such a policy in
Tremblay
do not assist the appellants. The Ontario Labour Relations Boards practice of
    full-board consultations was well-known to board members and litigants before
    the board, as it was described in a 1971 government report and in legal
    treatises:
Consolidated-Bathurst
, Sopinka J., dissenting (but not on
    this point), at pp. 290-91. In particular, both board members and litigants
    knew that only the hearing panel could request a full-board meeting and it
    could not be centrally imposed: Gonthier J., writing for the majority, at pp. 316-17.

[41]

In
    contrast, in this case, the Divisional Court found there was no evidence that
    adjudicators were aware that they had the right to refuse a review by the
    executive chair and that the process gave them no opportunity to refuse: at
    para. 28. The absence of a written policy was thus significant because it
    confirmed that the LAT had not communicated to adjudicators that they had the
    right to refuse. As for
Tremblay
, all it establishes is that a formal
    policy that protects adjudicative independence will not be an adequate
    safeguard if it is disregarded in practice: at pp. 972-73. The presence of the
    formal policy likely would have been a relevant consideration in
Tremblay
but for the evidence that the tribunal was disregarding it in practice.

[42]

The
    SLASTO code of conduct and the position descriptions for the member and
    vice-chair positions undermine the appellants position. The appellants point
    to the guarantee of adjudicative independence in these documents. However, the code
    of conduct simply states that [m]embers should be independent in
    decision-making and makes no mention of a members right to refuse a review by
    the executive chair. This provides no evidence to undermine the Divisional Courts
    finding that members were not advised of their right to refuse. Moreover, the
    member position description confirms the Divisional Courts finding that
    members were expected to submit their decisions for peer review and were not
    advised of their right to refuse. Under the heading Key Duties, the
    description states A Member, where appropriate submits draft decisions for,
    and participates in, peer and other decision reviews before they are issued in
    accordance with SLASTO policy.

(d)

Holistic Analysis

[43]

The
    appellants submission that the Divisional Court failed to apply the holistic
    approach from
Khan
is unfounded. It is important to recognize that the
    court in
Khan
did not purport to undermine the holding in
Tremblay
that imposed consultation is generally inappropriate and did not suggest that
    it is merely one factor among others. To the contrary, Doherty J.A. found
Tremblay
an appropriate starting place, quoted from it, and relied on it for the
    proposition that the result of compulsory consultation is that the appearance
    of independence may be lost:
Khan
, at pp. 673-74.

[44]

In
Khan
the court considered all of the factual circumstances of the
    case. Similarly, the Divisional Court recognized the need to look at all the
    circumstances. At paras. 38-39, it stated it was necessary to assess the
    specific circumstances and review the five factors from
Baker v. Canada
    (Minister of Citizenship and Immigration)
, [1999] 2 S.C.R. 817, to
    determine the level of procedural fairness required.

[45]

In
    addition, the review process in this case lacked the guarantees that led
    Doherty J.A. to find in
Khan
that the discipline committees use of
    counsel in the drafting process did not give rise to a reasonable apprehension of
    lack of independence. Doherty J.A. stressed that counsels involvement could
    not have had any coercive effect because counsel was the servant of the
    Committee and his involvement was not mandatory, and was entirely under the
    control of the Committee:
Khan
, at p. 674. In contrast, the executive
    chair was the superior of the adjudicator with power over her reappointment,
    not the adjudicators servant.

[46]

In
    summary, I would reject this ground of appeal on the basis that the Divisional
    Court conducted an analysis of all of the circumstances of the case. I will
    consider in the next section of my reasons the adequacy of that analysis.

(e)

Overall Analysis

[47]

The
    appellants position is that the case before the LAT was an important,
    precedent-setting matter, and that it was thus an appropriate case for the executive
    chairs limited decision review role, which is consistent with her statutory
    responsibility in s. 20(1) of
ATAGAA
to ensure the LAT performs its
    duties and functions. The appellants submit that the Divisional Courts finding
    that there was no evidence that the adjudicator did not make her decision
    independently should have led the court to conclude that the executive chairs
    review of the draft decision did not raise a reasonable apprehension of a lack
    of independence. They argue that the uncontested evidence was that peer
    reviewers do not question the facts, evidence, policy choices, or result in a
    decision, and that adjudicators have complete discretion to accept or reject
    any suggested revisions. As a result there is no danger of moral suasion of the
    kind discussed in
Ellis-Don
. Had the Divisional Court properly
    examined the facts of this case, the appellants submit, it would have found
    that a reasonable observer would conclude that the peer review adequately safeguards
    adjudicative independence.

[48]

I
    am not persuaded that the Divisional Court erred in its conclusion that there
    was a reasonable apprehension of a lack of independence on the facts of this
    case. I reach this conclusion for the following reasons.

[49]

First,
    the Divisional Court correctly found that the executive chairs imposition of
    the review on the adjudicator breached the rules set out in the trilogy. The
    Divisional Court found as a fact that the adjudicator was expected to send the
    decision for peer review: at para. 28. It also found that, as was the general
    practice, the legal department sent the decision to the executive chair without
    the adjudicators prior knowledge or assent. The adjudicator was only informed
    of the review after it had taken place: at paras. 28, 57-58. The Divisional
    Court thus correctly concluded that the Tribunal violated the rule from the
    trilogy because a superior level of authority imposed consultation on the
    adjudicator.

[50]

I
    do not agree with the appellants arguments that the Divisional Court erred in
    fact by finding that consultation was imposed. The appellants submit that the
    executive chair did not impose the review on the adjudicator because it was
    staff counsel that forwarded the decision to the executive chair. The fact
    remains that, by deciding to provide comments on the decision without seeking
    the adjudicators permission, the executive chair imposed the review on the
    adjudicator. I likewise disagree with the argument that Mr. Cowans evidence
    that the LAT lacked the legal power to force an adjudicator to participate in
    the peer review process meant that consultation was not imposed. Mr. Cowan
    forwarded the decision to the executive chair and the executive chair provided
    comments without seeking the adjudicators consent. As Ms. Shuttleworth
    submits, the adjudicators freedom to decline the review does not assist her
    because she was never given the opportunity to decline and was instead
    presented with the executive chairs review as a
fait accompli
.

[51]

Second,
    the Divisional Court found that the breach was significant because of the power
    of the SLATSO executive chair.
Consolidated-Bathurst
recognized the
    possibility that a tribunal chair could exert moral suasion over tribunal
    members: at p. 333. Similarly,
Tremblay
stressed the control the
    tribunal president exercised over the consultation process in finding a reasonable
    apprehension of bias: at p. 973-74; see also

David Mullan,
Administrative
    Law
(Toronto: Irwin Law, 2001), at p. 344.

[52]

The
    Lieutenant Governor in Council could not reappoint the adjudicator without the
    executive chairs recommendation:
ATAGAA
, s. 14(4). This power over
    reappointment is significant, as the Divisional Court found: at paras. 14-15,
    28. The New Brunswick Court of Appeal has twice held that Ministers or Members
    of the Legislative Assembly should not be permitted to represent a claimant
    before a tribunal because the tribunals members owe their re-appointment to
    the provincial cabinet:
Chipman Wood Products (1973) Ltd. v. Thompson

(1996), 181 N.B.R. (2d) 386 (C.A.);
Fundy Linen Service Inc. v. New
    Brunswick (Workplace Health, Safety & Compensation Commission)
, 2009
    NBCA 13, 341 N.B.R. (2d) 286. Legal commentators have also recognized the power
    of the executive chair and the potential danger the chairs control over
    reappointments poses to the independence of individual adjudicators: Gus Van
    Harten et al,
Administrative Law: Cases, Text, and Materials
, 7th ed.
    (Toronto: Emond, 2015), at p. 529; Mullan, at pp. 343-344.

[53]

Third,
    the Divisional Court correctly concluded that the review process lacked the
    appropriate procedural safeguards. The court stated that peer review processes
    must be accompanied by robust protections to safeguard adjudicative
    independence: at para. 66. This is consistent with the trilogy: see
Consolidated-Bathurst
,
    at p. 341. One of the factors the court considered in this regard was the lack
    of a written policy protecting the adjudicators right to decline a review.
    However, the Divisional Court considered other relevant factors in drawing its conclusion.
    At para. 28, it stressed that the procedure manual made no reference to the
    voluntariness of the peer review process and that there was an expectation that
    adjudicators subject their decisions to review. There was thus no evidence that
    the Tribunal had ever communicated to adjudicators that they were free to
    decline to participate in a review by the executive chair and considerable
    evidence tending to show that adjudicators were expected to participate in such
    a review.

[54]

The
    Divisional Courts finding of a reasonable apprehension of a lack of
    independence was supported by the facts of this case. The Divisional Court
    found, based on the emails, that the adjudicator did make changes following the
    executive chairs comments: at para. 57. The Divisional Court further found
    that those changes were significant, as the executive chair believed they were
    important enough to justify further delay: at para. 61.

[55]

In
    addition, the executive chair became involved without the adjudicators
    consent. The Divisional Court appropriately gave weight to the fact that the
    executive chair imposed the review and the adjudicator was only informed of it
    after it took place. It considered this evidence cumulatively with the lack of
    a formal written policy to protect the adjudicators right to decline to
    participate and the lack of evidence as to the nature of the changes stemming
    from the review.

[56]

In
    summary, there is no basis for appellate interference with the Divisional
    Courts analysis of the issue of a
reasonable
    apprehension of a lack of independence. In my view, that analysis is correct.

Disposition

[57]

For
    the foregoing reasons, I would dismiss the appeal. On a new hearing before the
    LAT, Ms. Shuttleworth and Peel have agreed to rely only on evidence available
    at the time of the original hearing so no party would be in a better position.

[58]

The
    parties have agreed on costs in the event Ms. Shuttleworth is successful. Those
    costs are fixed in the all-inclusive total sums of $2,500 against the LAT and
    SLASTO, and $6,250 against Peel.

Released: C.W.H. June 21, 2019

C.W. Hourigan J.A.

I agree. M. Tulloch J.A.

I agree. Fairburn J.A.

[1]
All the tribunals formerly in SLASTO now belong to a larger cluster entitled
    Tribunals Ontario:
Adjudicative Tribunals and Clusters
, O. Reg.
    126/10.


COURT OF APPEAL FOR ONTARIO

CITATION: Southside Construction Management Limited v.
    Ingersoll (Town), 2019 ONCA 459

DATE: 20190604

DOCKET: C66254

Feldman, MacPherson and Simmons JJ.A.

BETWEEN

Southside
    Construction Management Limited

Applicant

(Appellant)

and

The Corporation of the Town of Ingersoll

Respondent

(Respondent in Appeal)

John D. Goudy, for the appellant

Kelly Nenniger, for the respondent

Heard: May 27, 2019

On appeal from the
    judgment of Justice A. Duncan Grace of the Superior Court of Justice, dated
    November 1, 2018, with reasons reported at 2018 ONSC 6561.

REASONS FOR DECISION

[1]

Southside Construction Management Limited appeals from a judgment
    dismissing its application for a declaration concerning the interpretation of s.
    12.3.9.2.4 of Town of Ingersoll, by-law No. 04-4160,
Zoning By-Law
.

[2]

Southside owns an approximately 33-acre parcel of vacant land in
    Ingersoll. The land is adjacent to Highway 401 and is designated generally as a
    Highway Commercial Zone (HC) under s. 12 of the
Zoning By-La
w
.
    In addition, a site-specific provision, s. 12.3.9, designates the land as
    Highway Commercial Zone 9 (HC-9).

[3]

Under the general provisions applicable to the HC Zone, Southsides land
    is subject to a lot coverage cap of 40% for buildings. However, s. 12.3.9.4,
    specifically applicable to the HC-9 zone, also imposes a cap on the gross
    leasable commercial floor area of a community shopping centre. Section
    12.3.9.2.4 of the
Zoning By-Law
reads as follows:

The
gross leasable commercial floor area
for a
    community shopping centre containing
permitted uses
in the HC-9 Zone
    shall not be greater than
4,645 m
2
(50,000
    ft
2
). [Italics in original.]

[4]

Community shopping centre is not defined in the
Zoning By-Law
.
    However, Shopping Centre is defined in the definition section of the
Zoning
    By-Law
, s. 4, which reads, in part, as follows:

In this By-law, unless the context requires otherwise:

SHOPPING CENTRE, means a
building
or group of
buildings
designed, developed, owned and managed as a unit containing six or more
    separated spaces for lease or
occupancy
by commercial
uses
or
business
    or professional offices
. [Italics in original.]

[5]

Relying largely on a submission that a community shopping centre must
    be a type of shopping centre  and therefore consist of six or more separated
    spaces  Southside sought a declaration that s. 12.3.9.2.4 of the
Zoning
    By-Law
does not prohibit development for permitted uses greater than
4,645 m
2
(50,000 ft
2
)
where the development consists of five or fewer separate spaces for lease or
    occupancy.

[6]

The application judge dismissed Southsides application. He noted that
    the genesis of the current provisions in s. 9.3.3.1 of the County of Oxford Official
    Plan (the Official Plan) and s. 12.3.9 of the
Zoning By-Law
(the
    site-specific zoning provision) applicable to Southsides land was a 2006
    proceeding before the Ontario Municipal Board (the OMB).

[7]

In that proceeding, the OMB exempted Southsides land, shown in a
    Service Commercial area of the Official Plan, from a pre-existing Official Plan
    requirement for a retail market impact study for developments over 25,000
ft
2
.
However, a
    requirement for such a study for developments over 50,000
ft
2

remained.

[8]

Section 9.3.3.1 of the Official Plan now provides, in part, as follows:

Community shopping areas offering a range of goods and services
    which cater to the convenience shopping and service needs of community
    residents and the traveling public are a permitted use in the Service
    Commercial designation.

Community shopping areas are permitted to locate in the Service
    Community designation immediately adjacent to the Highway 401 corridor. Such
    community shopping areas will have between 930 and 4,645 square meters (10,000
    to 50,000 square feet) of
gross leasable commercial floor area
.

Development proposals above 4,645
    square meters (50,000 square feet) of
gross leasable commercial floor area
per site will require the preparation of a retail market study ...This impact
    study should evaluate the potential to locate the use in the Central Area as a
    first priority...

[9]

Considering the
Zoning By-Law
as a whole and in the context of
    the applicable Official Plan provisions, the application judge rejected
    Southsides argument that a community shopping centre must be a type of shopping
    centre as defined in s. 4 for three main reasons.

[10]

First, he noted that under s. 2.3.3 of the
Zoning By-Law
the
    definition provisions in s. 4 are to apply to italicized text. No part of the
    phrase community shopping centre in s. 12.3.9.2.4 is italicized.

[11]

Second, he noted that, albeit not italicized, shopping centre appears
    elsewhere in s. 12, namely in s. 12.3.10.1, another site-specific provision of
    the
Zoning By-Law
applicable to a different parcel of land, designated
    as HC-10. He reasoned that some meaning for the term community must have been
    intended and community cannot be merely superfluous. The definitions portion
    of the
Zoning By-Law
provides that the definitions apply unless the
    context requires otherwise; use of the term community changes the context.

[12]

Third, he interpreted the scale limitation in s. 9.3.3.1 of the Official
    Plan as applying to the square footage of a structure accommodating a community
    shopping area without regard to the number of units that the structure would
    contain. In his view, nothing in the Official Plan suggested the number of
    units in such a development was of concern.

[13]

Southside raises three issues on appeal.

[14]

First, Southside argues that the application judge erred by rendering
    the definition of shopping centre in s. 4 of the
Zoning By-Law
surplusage. According to Southside, apart from the definition provision,
    shopping centre appears in only three other places in the
Zoning By-Law
,
    all of which are in s. 12, and two of which use the term community shopping
    centre. Southside argues that it makes little sense to define the term
    shopping centre but use it to mean something other than the definition. It
    makes much more sense that, wherever used together, the words shopping centre
    would have the defined meaning. Accordingly, a community shopping centre must
    be a form of shopping centre.

[15]

We are not persuaded by this argument. As we have said, the application
    judge identified another provision of s. 12 of the
Zoning By-Law
that
    uses the exact term shopping centre, albeit without italics. Particularly
    when considered in light of the application judges other reasons, we see no
    error in his conclusion that some meaning must be ascribed to the word community
    when associated with shopping centre.

[16]

Second, Southside argues that the application judge erred by treating
    the policies in the Official Plan, rather than the terms of the
Zoning By-Law
,
    as the applicable law.

[17]

According to Southside, as written, the
Zoning By-Law
caps
    gross leasable commercial floor area only for a community shopping centre
    which, because it is a type of shopping centre, must contain six or more
    separated spaces. Where a development contains less than six separated spaces,
    the general 40% coverage cap for buildings applies. This, it says, is consistent
    with Official Plan policies concerning Service Commercial Areas, which are
    intended to accommodate large commercial uses with large site requirements not
    suited to Ingersolls Central Area (i.e., the downtown). Applying a
4,645 m
2
(50,000 ft
2
)
    gross leasable commercial floor area cap to five or fewer individual uses would
    undermine the planned function of Service Commercial Areas as set out in the
    Official Plan.
The application judge erred by finding, in effect, that a
    defined term in the
Zoning By-Law
cannot apply because it does not
    appear in the Official Plan without considering whether application of the
Zoning
    By-Law
definition would conflict with the Official Plan.

[18]

We do not accept this argument. The application judge cited the
    applicable case law concerning the interrelationship between zoning by-laws and
    official plans and their interpretation:
Aon Inc. v. Peterborough (City)
,
    1 M.P.L.R. (3d) 225;
Sarnia (City) v. River City Vineyard Christian
    Fellowship of Sarnia
, 2015 ONCA 494, 42 M.P.L.R. (5th) 1. In our view, the
    application judge did no more than read the
Zoning By-Law
in its
    entire context and interpret it as required under the relevant authorities.
    Considered in context, it would have made no sense to read the by-law as imposing
    a relatively small size limit on a structure with six or more units but no size
    limit other than the 40% lot coverage cap on a structure with five or fewer
    units.

[19]

Third, Southside argues that in rejecting its interpretation of the
Zoning
    By-Law
, the application judge rendered the term community shopping
    centre vague to the extent that s. 12.3.9.2.4 becomes void for uncertainty.

[20]

We reject this argument. There is no requirement that every term in a
    zoning by-law be precisely defined. Where words are not defined, they can be
    interpreted in accordance with their grammatical and ordinary meaning and the
    context in which they are used. Southside has not demonstrated how s.
    12.3.9.2.4 meets the requirements of the void for vagueness test.

[21]

The appeal is dismissed with costs to the respondent on a partial
    indemnity scale fixed in the amount of $6,600 inclusive of disbursements and
    taxes.

K. Feldman J.A.

J.C. MacPherson J.A.

Janet Simmons J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Strachan (Re), 2019 ONCA 481

DATE: 20190611

DOCKET: C66283

Feldman, van Rensburg and Huscroft JJ.A.

IN THE MATTER OF: Deron Strachan

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant, Deron Strachan

Gerald Brienza, for the respondent, Her Majesty the
    Queen

Kathryn Hunt, for the Person in Charge of the Centre for
    Addiction and Mental Health

Heard: June 7, 2019

On appeal against the disposition of the Ontario Review
    Board dated, November 15, 2018.

REASONS FOR DECISION

[1]

The
    appellant appeals from the November 15, 2018 Ontario Review Board (the Board)
    disposition ordering his detention pursuant to a hybrid order, which allows him
    to transition from a secure forensic unit to a general forensic unit, with the
    privilege of community living as appropriate.

[2]

The
    appellant was found not criminally responsible on account of mental disorder (NCR)
    on April 2, 2013 for a number of offences including sexual assault. He suffers
    from schizophrenia and experiences a range of symptoms including paranoid
    delusions.

[3]

The
    appellant was on a conditional discharge from May 31, 2016 to November 15,
    2018, but was admitted to the Centre for Addiction and Mental Health (CAMH)
    pursuant to Form 1 under the
Mental Health Act
,
R.S.O. 1990, c. M.7,
after he missed the
    monthly injection of his medication. He was detained in the hospital on a Form
    3 until his release on October 18, 2018. Subsequently, he decompensated rapidly
    and on October 22, 2018 was returned to hospital on a Form 1. He was held on a
    Form 3 and then a Form 4.

[4]

On
    October 18, 2018, the hospital requested an early hearing to review the
    appellants disposition. The Board concluded that the appellant continues to
    represent a significant risk to the safety of the public and that a hybrid
    order was appropriate.

[5]

The
    appellant submits that the Boards decision not to order a conditional
    discharge was unreasonable, describing his failure to take his medication and
    his actions as an aberration and highlighting his prior conditional discharge
    dispositions.

[6]

We
    disagree.

[7]

The
    appellant was returned to his conditional discharge following his first
    discharge from the hospital but decompensated quickly. He demonstrated
    paranoid, aggressive, and threatening behaviour. He was agitated, swore at
    staff, and damaged furniture at the LOFT residence where he used to live. His
    behaviour required not only his return to the hospital, but also his seclusion
    on three occasions while he was hospitalized because of the risk that he posed
    to others.

[8]

The
    Board considered whether a conditional discharge was appropriate, given the
    ability of the appellant to be returned to hospital under the
Mental Health
    Act.
It concluded, in essence, that there was no air of reality to a
    conditional discharge order. This conclusion is well supported in the record.
    The appellant was simply not in a position to be in the community at the time
    of the hearing.

[9]

The
    Boards conclusion that a hybrid order was appropriate and that secure detention
    was required until the appellant was sufficiently stabilized to move to a
    general detention order was reasonable, and there is no basis for this court to
    interfere with it.

[10]

The appeal is
    dismissed.

K. Feldman J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher
    Dentistry Professional Corporation), 2019 ONCA 469

DATE: 20190607

DOCKET: C65542

Lauwers, Pardu and Nordheimer JJ.A.

BETWEEN

Jasmine Theberge-Lindsay

Plaintiff (Respondent)

and

3395022 Canada Inc. o/a Kutcher Dentistry
    Professional Corporation

Defendant (Appellant)

Chris Dockrill, for the appellant

Ryan Kornblum, for the respondent

Heard: April 8, 2019

On
    appeal from the judgment of Justice Victoria R. Chiappetta of the Superior
    Court of Justice, dated May 25, 2018, with reasons reported at 2018 ONSC 3222.

REASONS FOR DECISION

[1]

Ms. Theberge-Lindsay, the respondent, began working in Dr. Kutchers
    dental practice in 1993. Over the succeeding years, Dr. Kutcher restructured
    his dental practice in various ways to minimize income taxes and split income.
    To maintain her employment with Dr. Kutcher, Ms. Theberge-Lindsay was required
    to sign a series of employment agreements starting in 1999, all of which
    limited her entitlement for wrongful dismissal to the minimum required by the
Employment
    Standards Act, 2000
, S.O. 2000, c. 41
.

[2]

In December 2012, Dr. Kutcher, via his practices most recent corporate
    vehicle, terminated Ms. Theberge-Lindsays employment without cause. She was
    given one weeks salary as the
Employment Standards Act, 2000
minimum,
    since she had signed her most recent employment agreement only in 2011.

[3]

The trial judge made the following finding, at para. 19:

At all times between 1993 and
    December 20, 2012 the plaintiffs employment as a hygienist for Dr. Kutchers
    practice continued uninterrupted. It was Dr. Kutcher who consistently signed
    her pay cheques. The cheques were issued from Dr. Kutcher personally from 1993
    to 1999, by 339 from 1999 to 2011 and by Kutcher Dentistry Professional
    Corporation in 2012.

[4]

The trial judge made the following determination, at para. 39:

In my view, none of the three
    employment contracts signed by the plaintiff are enforceable. Each of the
    contracts fail respectively for lack of consideration. The evidence clearly
    demonstrates that the intention of Dr. Kutcher was that each of the three
    contracts needed to be signed or the plaintiff could not continue to be
    employed with his practice. While there is no evidence of threat or duress, Dr.
    Kutcher was firm in his testimony that continued employment was conditional on
    the signing of the agreements. The plaintiff and Ms. Graham both testified to
    their understanding of this fact pertaining to the 2011 agreement. The
    plaintiff received no more from signing each of the three agreements but for
    continued employment. The fact that she received independent legal advice
    pertaining to the 2011 agreement does not negate this fact. Further, the three
    agreements, if enforceable, would substantially reduce the plaintiffs
    entitlements on termination.

[5]

Based on her finding that Ms. Theberge-Lindsay was wrongfully dismissed,
    the trial judge assessed her damages in lieu of reasonable notice at common law
    at 15 months.

[6]

The trial judges legal conclusions are firmly grounded in this courts
    jurisprudence, which she set out in paras. 36 and 37. On this basis, we reject
    the appellants argument that the 2011 employment agreement is binding on Ms.
    Theberge-Lindsay and obliges her to accept one weeks salary as the
Employment
    Standards Act, 2000
minimum for wrongful dismissal.

[7]

However, the appellant argues that, even accepting this courts
    jurisprudence, the trial judge erred in failing to take proper account of Ms.
    Theberge-Lindsays resignation from her employment in 2005.

[8]

The trial judges factual findings regarding the resignation are set out
    at paras. 8-10 of her decision:

By correspondence dated March 28, 2005 the plaintiff tendered
    her resignation to Dr. Kutcher effective July 7, 2005. She was engaged to be
    married to a gentleman who lived in Guelph, Ontario. The plaintiff had secured
    alternative employment in Guelph to be commenced after July 7, 2005. During the
    notice period and prior to her effective day of resignation, in or about May
    2005, the plaintiff ended her engagement and advised Dr. Kutcher of her
    intention to remain employed as a dental hygienist working in his office. The
    plaintiff testified that Dr. Kutcher told her that he was pleased to hear it as
    he did not want her to leave.

On June 30, 2005 the plaintiff was presented with and signed an
    employment agreement between herself and [339] (the 2005 agreement). The 2005
    agreement limited the liability of [339], should it terminate the plaintiff
    without cause, to notice or payment in lieu of notice in accordance with the
ESA
.
    Again, the plaintiff testified that she reviewed the agreement with Dr. Kutcher
    prior to signing it.  Her evidence is that Dr. Kutcher advised her not to worry
    about the termination provision as it was never going to happen. Dr. Kutcher
    denies he made this statement. Dr. Kutcher signed the 2005 agreement on behalf
    of [339]. The plaintiff continued her employment with Dr. Kutcher without
    interruption between March 28, 2005 and June 30, 2005. There were no changes to
    the terms and conditions of her employment as a result of the 2005 agreement.

Throughout the period of notice of
    resignation and prior to the effective date of resignation, Dr. Kutcher
    commenced the process of hiring a hygienist. He advertised the position for a
    cost of $365.94, received resumes and conducted interviews. All resumes
    presented to the court were addressed to Dr. Kutcher, not Mrs. Kutcher. No
    offers of employment were made as Dr. Kutcher testified that he was getting the
    sense from the plaintiff that things were not working with her fiancé.

[9]

In dealing with the effects of Ms. Theberge-Lindsays 2005 resignation,
    the trial judge held, at paras. 29-30:

Separately, by correspondence dated March 28, 2005 the
    plaintiff advised that her last day working for the practice of Dr. Kutcher was
    to be July 7, 2005. Her resignation was rescinded well prior to July 7, 2005. The
    evidence demonstrates that the plaintiff was happy to remain employed with the
    practice of Dr. Kutcher and Dr. Kutcher was happy that she was to do so. The
    plaintiff continued with her responsibilities for the practice consistently and
    without interruption after March 28, 2005.  Dr. Kutchers efforts to replace
    the plaintiff were brief and uncostly. A record of employment was never issued
    at this time. By correspondence dated February 20, 2006, for the purposes of
    the plaintiff obtaining financing, Dr. Kutcher penned a letter to whom it may
    concern, confirming her employment in our office since 1993.

The evidence demonstrates that the
    retraction of the resignation was accepted by Dr. Kutcher and that the
    circumstances of the 2005 resignation had no impact on the plaintiffs
    continuity of service with the practice of Dr. Kutcher. It further indicates
    that that at least in February 2006, Dr. Kutcher was prepared to recognize the
    continuity of the plaintiffs employment with his practice since 1993,
    independent of both her rescinded resignation and his use of 339 [the new
    corporate vehicle].

[10]

The
    appellant argues that the 2005 resignation broke the chain of Ms.
    Theberge-Lindsays employment since 1993. She was required on June 30, 2005 to
    sign a new employment agreement in order to be re-hired July 1, 2005.
    Consequently she is, at best, entitled to the
Employment Standards Act,
    2000
minimum notice measured from the date that she was re-hired in 2005.

[11]

We
    agree with the appellants submissions that Ms. Theberge-Lindsays unequivocal resignation
    and re-hiring in 2005 marked a break in the employment relationship after which
    an entirely new contract was reached between her and Dr. Kutcher. There was
    consideration for that new employment contract, that is, Ms. Theberge-Lindsays
    offer to again be employed by Dr. Kutcher and his acceptance of her offer to
    again employ her. On this basis,
the
Employment Standards Act, 2000
minimum notice is the maximum amount to which
    the respondent is entitled, measured from 2005. On this basis, she is entitled
    to 7.5 weeks of salary at $1,204 per week, less $1,200 severance already paid.

[12]

Ms.
    Theberge-Lindsays obligation to mitigate her damages does not apply to the
    statutory entitlement:
Brake v. PJ-M2R Restaurant
(2017), 135 O.R.
    (3d) 561 (C.A.), at para 111. Consequently, we do not address the mitigation
    issue.

[13]

The
    appeal is allowed and the judgment varied in accordance with para. 11 of these
    reasons. If the parties cannot agree on the costs, then they may make
    submissions not more than three pages in length on a ten-day turnaround
    starting with the appellant.

P. Lauwers J.A.

G. Pardu J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher
    Dentistry Professional Corporation), 2019 ONCA 550

DATE: 20190628

DOCKET: C65542

Lauwers, Pardu and Nordheimer JJ.A.

BETWEEN

Jasmine Theberge-Lindsay

Plaintiff (Respondent)

and

3395022 Canada Inc. o/a Kutcher Dentistry
    Professional Corporation

Defendant (Appellant)

Chris Dockrill, for the appellant

Ryan Kornblum, for the respondent

Heard:  in writing

On appeal from the judgment of
    Justice Victoria R. Chiappetta of the Superior Court of Justice, dated May 25,
    2018, with reasons reported at 2018 ONSC 3222.

COSTS ENDORSEMENT

[1]

On June 7, 2019, we released our decision in which we allowed the appeal
    and varied the judgment below accordingly.  We invited the parties to make
    written submissions on the costs of the appeal and of the trial.  We have now
    received and reviewed those submissions.

[2]

The appellant seeks its costs of the appeal in the amount of $11,000 on
    the basis that it was successful on its appeal.  The appellant also seeks its
    costs of the trial in the amount of $10,000 on the basis that the respondents
    recovery was modest, sufficiently so that it would have fallen within the
    jurisdiction of the Small Claims Court. The respondent accepts that the
    appellant is entitled to its costs of the appeal but submits that those costs
    should be fixed at $10,000. The respondent says that the costs award of $15,000
    at trial in her favour should remain for a net amount due to the respondent of
    $5,000.

[3]

We would fix the costs of the appeal at $10,000 in favour of the
    appellant. We would make no order as to the costs of the trial. While
    admittedly the respondent was successful at trial, her success, as found by
    this court, was very limited.  She also recovered an amount that would have been
    within the jurisdiction of the Small Claims Court. On that latter point, we
    note that r. 57.05(1) of the
Rules of Civil Procedure,
R.R.O. 1990,
    Reg. 194 expressly provides that where a plaintiff recovers an amount within
    the monetary jurisdiction of the Small Claims Court, the court may order that
    the plaintiff shall not recover any costs.

[4]

In the end result, we order that the appellant shall recover its costs
    of the appeal fixed at $10,000, inclusive of disbursements and HST, and that
    there be no award of costs of the trial.

P.
    Lauwers J.A.
G. Pardu J.A.
I.V.B. Nordheimer J.A.