COURT OF APPEAL FOR ONTARIO

CITATION: Donovan v. Waterloo
    Regional Police Services Board, 2019 ONCA 845

DATE: 20191025

DOCKET: C66718

Hoy A.C.J.O., van Rensburg and Roberts JJ.A.

BETWEEN

Kelly Lynn Donovan

Plaintiff/Responding Party (Appellant)

and

Waterloo Regional Police Services Board and Bryan
    Larkin

Defendants/Moving Parties (Respondents)

Kelly Lynn Donovan, acting in person

Donald B. Jarvis and Cassandra Ma, for the respondents

Heard: October 11, 2019

On appeal from the order
    of Justice Michael T. Doi of the Superior Court of Justice, dated March 20,
    2019, with reasons reported at 2019 ONSC 1212.

REASONS FOR DECISION

I.

OVERVIEW

[1]

The appellant appeals from the motion judges order dismissing her
    action against the respondents under r. 21.01(1)(b) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, without leave to amend, and ordering her
    to pay costs to the respondents. For the reasons that follow, we allow the
    appeal, set aside the order of the motion judge, and grant the appellant leave
    to further amend her Amended Statement of Claim in respect of the claim against
    Bryan Larkin.

II.

bACKGROUND

[2]

In her Amended Statement of Claim, the appellant alleges that the
    respondents breached the terms of a Release and of a confidentiality provision
    contained in a settlement agreement (the Agreement), dated June 8, 2017. Under
    the Agreement, the appellant resigned her employment in June 2017, as a police
    officer with the respondent Waterloo Regional Police Services Board (the
    Board). She seeks damages against the Board and Bryan Larkin, the Chief of
    the Waterloo Regional Police Service.

[3]

The appellant alleges that the respondents (1) breached the Release by
    appealing her claim for benefits to the Workplace Safety and Insurance Board
    (WSIB) arising from a workplace injury; and (2) breached the confidentiality
    provisions of the Agreement by delivering an affidavit sworn by Chief Larkin,
    containing information about the Agreement, in defence of a class proceeding
    against the Board.

[4]

The motion judge struck the claim related to the WSIB appeal on the
    basis that an employer cannot contract out of the
Workplace Safety and
    Insurance Act, 1997
, S.O. 1997, c. 16, Sched. A (WSIA). Pursuant to the
    Release, the Board, among other things, release[s] and forever discharge[s]
    [the appellant] from any and allappeals. The appellant pleads that she applied
    to the WSIB in April 2017, before signing the Release, for benefits related to
    post-traumatic stress disorder (PTSD). After the Board signed the Release, it
    submitted an appeal of the WSIBs decision.

[5]

The motion judge accepted that it was at least arguable that the Release
    captured the Boards review of the WSIBs initial entitlement decision: at
    para. 20. His decision that it was plain and obvious that the Amended Statement
    of Claim failed to disclose a cause of action in respect of the alleged breach
    of the Release was based on his conclusion that the result was governed by this
    courts decision in
Fleming v. Massey
, 2016 ONCA 70, 128 O.R. (3d)
    401, leave to appeal refused, [2016] S.C.C.A. No. 113. The motion judge
    concluded that
Fleming
made it abundantly clear that the Release
    cannot operate to preclude the Board, or the [appellant] from exercising
    rights and discharging obligations under the WSIA, because as a matter of
    law, parties cannot contract out of the scheme under the WSIA: at para. 23.
    The motion judge also concluded that the privative clause in s. 118(4) of the WSIA,
    which provides, in relevant part, that an action or decision of the WSIB under
    the Act cannot be restrained by a court process or procedure, would preclude
    the appellants claim for breach of the Release in relation to the WSIB
    proceedings: at paras. 24-25.

[6]

The motion judge struck the claim related to the breach of
    confidentiality because he concluded that it could not be based solely on an
    affidavit prepared for a court proceeding. The Agreement required the parties, except
    where required by law, to keep the terms and existence of [the Agreement] in
    absolute and strict confidence at all times. While the motion judge found, at
    para. 33, that it seems less clear whether Chief Larkins affidavit
    sufficiently preserves the [appellants] confidentiality, he concluded that
    because his affidavit was used in defending a class action in court, it was
    covered by absolute privilege. Accordingly, the motion judge concluded that the
    appellants claim had no reasonable chance of success.

[7]

The motion judge further concluded that the pleading contained
    insufficient allegations to establish an independent cause of action against
    Bryan Larkin with respect to either of the appellants claims.

III.

aNALYSIS

[8]

We are not persuaded that it is plain and obvious that the appellants
    claims against the Board cannot succeed. We agree with the motion judge that
    the appellant did not plead a tenable claim against Chief Larkin, but in the
    circumstances of the case we would allow the appellant leave to amend this
    claim.

(1)

The Breach of Release Claim

[9]

As already indicated, the motion judge made his order dismissing the
    appellants action without leave to amend under r. 21.01(1)(b).  As a result,
    and as he acknowledged in his reasons, he could not consider anything extrinsic
    to the Amended Statement of Claim which was not referenced in the claim.
    Moreover, he had to accept the pleaded facts as true for the purpose of the r.
    21 motion.

[10]

On
    a generous reading of the Amended Statement of Claim, the appellant had applied
    for and had been receiving WSIB benefits at the time the Agreement containing
    the Release was signed. She pleads, at paras. 9-10, that she was diagnosed with
    PTSD in December 2015, and that, starting in February 2017, she could not
    attend work due to the severity of her PTSD symptoms. She pleads that in April
    2017 she applied to the WSIB for benefits and that her claim was approved: at
    para. 11. Indeed, she pleads at para. 19 that after her resignation she
    continued to receive benefits from WSIB in the form of psychological
    treatment. The appellant pleads, at para. 20, that in August 2018 she was made
    aware by WSIB that on January 11, 2018 the Board submitted an appeal of her
    claim.

[11]

Fleming
was a case that involved uninsured employment under Part X of the WSIA. At
    issue was the enforceability of a waiver signed by Fleming, who was injured in
    a go-kart race in which he was the race director. The waiver purported to
    release all of the respondents from liability for all damages associated with participation
    in the event. This court concluded that Fleming was an employee, and that the
    waiver contravened s. 114 of the WSIA, which provides specifically that workers
    who are not insured under the workers compensation scheme, like Fleming, are
    permitted to sue their employers for workplace accidents. The court concluded
    that enforcement of the waiver would constitute a contracting out of the
    protections of the WSIA, and that contracting out of this protection would be contrary
    to public policy. At para. 34, Juriansz J.A. wrote the passage that the motion
    judge relied on:

Considering the sweeping overriding of the common law made by
    workers compensation legislation and the broad protection it is designed to
    provide to workers in the public interest,
it would be
    contrary to public policy to allow employers and workers to contract out of its
    regime
, absent some contrary legislative indication. [Emphasis added.]

[12]

However,
    Juriansz J.A. also wrote, at para. 45, that, [r]eading the WSIA as a whole, it
    is apparent its objective is to ensure injured workers have access to
    compensation.

[13]

The
    Release is not plainly contrary to the WSIAs objective, as identified by
    Juriansz J.A. Nor have the respondents identified any express statutory
    provision that the Release would contravene.

[14]

Respectfully,
    it is not plain and obvious that
Fleming
would stand in the way of the
    appellants claim in this case. Again, on the facts pleaded by the appellant, following
    her resignation, she continued to receive benefits from the WSIB in the form of
    psychological treatment, and it was not until several months after the parties
    signed an Agreement in respect of her resignation, which included the Release,
    that the Board initiated an appeal to the WSIB, to challenge her entitlement to
    benefits. This is very different from the
Fleming
case where the
    waiver signed by the employee violated a provision of the WSIA specifically
    providing for the employees right of action.

[15]

And
    with respect to the motion judges conclusion based on the privative clause in s.
    118(4) of the WSIA, in our view it is not plain and obvious that the
    appellants action in respect of the Release would contravene the WSIBs
    exclusive jurisdiction to determine matters set out in s. 118 of the WSIA and
    the privative clause contained in that section.

(2)

The Breach of Confidentiality Claim

[16]

Nor
    is it plain and obvious that Chief Larkins affidavit is subject to absolute
    privilege and that, accordingly, the appellants claim has no reasonable
    prospect of success.

[17]

There
    is arguably an important competing interest at stake that weighs against
    absolute privilege: there is a confidentiality provision that is part of a
    settlement agreement. There is an overriding public interest in favour of
    settlement; promoting settlements contributes to the effective administration
    of justice in this province:
Sable Offshore Energy Inc. v. Ameron
    International Corp.
, 2013 SCC 37, [2013] 2 S.C.R. 623, at para. 11. This
    is not a situation where a party seeks to rely on the provisions of a
    confidentiality agreement to shield itself from claims. Moreover, the statement
    at issue was not made by counsel and it is not apparent that it was necessary
    for the respondents to include the information that allegedly breached the
    Agreement in the affidavit for the Board to defend against the certification
    motion.

[18]

We
    conclude, as this court did in
Amato v. Welsh
, 2013 ONCA 258, 305
    O.A.C. 155, at paras. 68-69, 97, that because this matter arguably involves
    competing interests and privileges, it should be decided with an evidentiary
    record and not on a pleadings motion.

(3)

The Claim against Chief Larkin

[19]

The
    appellants claim against him is pleaded in contract and is based only on the
    fact that he swore the affidavit and signed the Release and Agreement on behalf
    of the Board. The appellant did not plead any facts showing that the Chiefs actions
    were tortious: see e.g.,
Odhavji Estate v. Woodhouse
, 2003 SCC 69,
    [2003] 2 S.C.R. 263.

[20]

However,
    the appellant represents herself in this matter. Having concluded that the
    motion judge erred in striking her claims against the Board, we would grant her
    leave to amend her claim against Chief Larkin to plead how his actions were
    tortious.

IV.

disposition

[21]

Accordingly,
    we would allow the appeal and set aside the order of the motion judge. If the
    appellant seeks costs of this appeal and of the motion before the motion judge,
    she shall, within 14 days, serve on the respondents and file with this court brief
    written submissions, including proof of any disbursements she has incurred and
    seeks to recover. The respondents shall serve on the appellant and file with
    this court their responding submissions within 10 days thereafter.

Alexandra Hoy
    A.C.J.O.

K. van Rensburg J.A.

L.B. Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Esposito
    (Re), 2019 ONCA 847

DATE: 20191025

DOCKET: C66704

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

IN THE MATTER OF:
    Edda Esposito

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the appellant Edda
    Esposito

Gavin MacDonald, for the respondent Her Majesty the
    Queen

Kathryn Hunt, for the respondent Centre for Addiction
    and Mental Health

Heard: October 4, 2019

On appeal against the disposition of
    the Ontario Review Board dated December 27, 2018, with reasons reported on
    January 17, 2019.

REASONS FOR DECISION

Overview

[1]

The appellant, Ms. Edda Esposito, appeals from the order of the Ontario
    Review Board dated December 27, 2018 that she be detained in the General
    Forensic Unit at the Centre for Addiction and Mental Health (CAMH) in Toronto.

[2]

Ms. Esposito came under the Boards jurisdiction on September 20, 2017,
    when she was found not criminally responsible on account of mental disorder on
    charges of possession of a weapon for dangerous purposes, assault with a
    weapon, and aggravated assault. She continues to be detained following two
    subsequent Review Board orders.

[3]

On November 14, 2017, the Board rendered a Hybrid Order with initial
    detention in the Secure Forensic Unit at CAMH, with an array of privileges as
    well as the ability to be transferred to the General Forensic Unit. A
    subsequent Review Board hearing was convened on December 13, 2018, which
    resulted in the current detention order which is the subject of this appeal.

[4]

Ms. Esposito appeals the decision of the Board on the following bases:

a.

That the Board erred in fact and in law by failing to render a
    disposition that is necessary, appropriate and least restrictive;

b.

That the disposition ordered is unreasonable on the evidence.

Facts

[5]

Ms. Esposito is a 63-year-old woman, and the mother of four adult
    children. She was originally diagnosed with schizophrenia in 1990.

[6]

The index offence occurred on September 11, 2016, when Ms. Esposito, in
    a delusionary state, believed her father to be the devil and attacked him while
    he was asleep in his bed. At the time, Ms. Esposito and her father had resided
    together for two years. At approximately 7:30 a.m., Ms. Espositos father awoke
    to her entering his room while brandishing a fork. She approached him while he
    laid in his bed and began stabbing him with the fork. Ms. Esposito stopped her
    attack only after her father was able to escape by running outside their condo,
    and a concerned neighbour intervened.

[7]

As a result of the altercation, the appellants father sustained
    numerous cuts and lacerations to his face and nose and required hospitalization
    as a result of a piece of metal being lodged in his eye.

The Ontario
    Review Board Hearing

[8]

Following the appellants NCR verdict, the Board concluded that she
    represented a significant threat to the public safety, and that the necessary
    and appropriate, least onerous and restrictive disposition available on the
    evidence was a detention order on a general level, with privileges up to and
    including residence in the community in accommodation approved by the Person in
    Charge of CAMH.

[9]

At the last Board hearing, the hospital recommended that Ms. Espositos
    detention continue as she is still a significant threat to the public. Ms.
    Esposito sought an absolute discharge, or in the alternative, a conditional
    discharge. The Board rejected her position and accepted the submissions of the
    hospital and the Crown and found that Ms. Esposito continued to pose a
    significant threat to the public.

[10]

The
    hospitals recommendation was supported by the evidence of the attending
    psychiatrist, Dr. Shaheen Darani. The evidence indicated that Ms. Esposito was
    still experiencing active symptoms of her illness, which included beliefs that
    her co-patients were molesters and/or murderers and that her mother was a
    witch. She also continued to harbour a belief that her son-in-law was a
    molester. The evidence also indicated that, while Ms. Esposito accepted the
    fact that she suffers from schizophrenia, she stated that she will cease taking
    her medication if she is released, because she believes that the disease was
    inflicted on her through an electrical shock or a witchs spell and she plans
    to seek out a priest so he can perform an exorcism.

[11]

According
    to Dr. Darani, Ms. Esposito is especially vulnerable to the use of prescribed
    opiate-based medications to alleviate her pain. Dr. Darani noted that the use
    of narcotics has exacerbated Ms. Espositos symptoms in the past, and that the
    use of narcotics was an exacerbating factor at the time of the index offence,
    as it led to her non-adherence to medication and rendered her a real risk to
    the public. Ms. Esposito has specifically stated to Dr. Darani that once in the
    community, she will seek out any doctor who will be prepared to prescribe her
    pain medication.

[12]

Two
    of Ms. Espositos children were in support of the hospitals recommendation for
    a detention order on the General Forensic Unit with the ability to reside in
    the community in approved accommodation, and they both agreed with the hospital
    and the treatment team that it would be best for their mother to be placed in
    supportive housing. One of Ms. Espositos sons indicated that he would be
    willing to have his mother reside with him and that he was prepared to
    supervise her with respect to her medication and her mental status, but he also
    resides with Ms. Espositos elderly mother who is the subject of one of Ms.
    Espositos delusionary beliefs that her mother is a witch.

Analysis

[13]

Ms.
    Esposito asks this court to set aside the Boards detention order, and instead
    order an absolute discharge, or, in the alternative, order a conditional
    discharge. Failing that, she asks for a new hearing before a differently
    constituted panel.

[14]

We
    find no error in the Boards reasoning or disposition. As such, there is no
    basis for this court to intervene.

[15]

The
    Board was obliged to determine the necessary and appropriate disposition for
    Ms. Esposito, given her particular circumstance, pursuant to s.  672.54 of
    the
Criminal Code
. This meant the Board had to determine, in light of
    the evidence, what was the least onerous and least restrictive disposition that
    was appropriate for Ms. Esposito. This entailed conducting a risk assessment to
    determine whether she continued to pose a significant threat to the safety of
    the public as outlined in
Winko v. British Columbia (Forensic Psychiatric
    Institute)
, [1999] 2 S.C.R. 625. To find significant threat, there must be
    a foreseeable and substantial risk of physical or psychological harm that is
    serious and beyond trivial or annoying:
R. v. Ferguson
,

2010 ONCA 810, 264 C.C.C. (3d) 451.

In the words of the court in
Winko,
a miniscule risk of even
    grave harm will not suffice.

[16]

In
    applying the test in
Winko
, the Board made the following observations
    at para. 62 of its decision:

The Board regards the recentness
    of the index offence; the severity of the harm and physical danger of the index
    offence as well as the current continuation of active symptoms of her major
    mental illness that include similar themes of that in the index offence as
    going beyond the test as set out in
Winko
to establish significant
    threat. Add to this the stated intention of Ms. Esposito to cease taking
    medication when discharged, leads inextricably to the conclusion of significant
    threat.

[17]

The
    Board then considered what was the least onerous and least restrictive
    disposition that would be appropriate for Ms. Esposito, based on the evidence,
    and concluded that nothing short of a detention order would mitigate the risk.
    The Board specifically addressed Ms. Espositos submissions regarding her
    request for a conditional discharge and articulated why such a disposition was
    inappropriate. At para. 66 of its decision, the Board noted that it must
    consider whether the risk to the public can be safely managed under terms
    imposed as part of a conditional discharge and not simply focus on the risk
    that Ms. Esposito will breach any term of the order. The Board then set out
    its reasons for rejecting Ms. Espositos request, and outlined the evidence
    that militates against a conditional discharge:

the evidence establishes that Ms.
    Esposito will view a discharge as a license to stop taking medication and she
    will absolutely experience an exacerbation of her symptoms, which will put her
    at very real risk to her family members as well as to members of the community
    who could be brought into her delusional system. Terms of a discharge will not
    sufficiently provide adequate incentive for Ms. Esposito to adhere to
    medication and psychiatric follow up. As well intentioned and loving as her
    family is, given the gravity of the recent index offence in the face of years
    of chronic use of illicit substances and medication non-adherence, at this
    critical time, the family is not in a position to manage the risk, and expose
    her mother to that risk as well and the community.

[18]

The
    Board noted that Ms. Espositos counsel had raised the possibility of a
    conditional discharge including a term of consent to treatment. However, it
    found that Ms. Espositos stated intention to discontinue her medication if she
    were discharged rendered this an unworkable solution.

[19]

The
    Board also considered whether the risk management provisions under the
Mental
    Health Act
, R.S.O. 1990, c. M.7, which would apply if it ordered a
    conditional discharge, would adequately mitigate any threat to society from the
    appellants release. It concluded that the
Mental Health Act
was not
    sufficient to manage the risk, due to the level of structure and supervision
    Ms. Esposito required. This included risks from any event of non-compliance
    with conditions.

[20]

The
    Board therefore concluded that a conditional discharge was not appropriate. It
    considered Ms. Espositos possible consent to treatment, the implausibility of
    her actual compliance with treatment, and the inadequacy of the
Mental
    Health Act
provisions to manage the risk. This conclusion was reasonable:
R.
    v. Breitwieser
, 2009 ONCA 784, 99 O.R. (3d) 43.

[21]

Based
    on all these factors, the Board found that Ms. Esposito continues to pose a
    significant threat to the safety of the public as defined by the Supreme Court
    of Canada in
Winko
. A conditional discharge would not be sufficient to
    manage this risk.

Conclusion

[22]

In
    our view, based on the overwhelming evidence before the Board, this was a
    reasonable disposition, and there is no basis to interfere. The evidence which
    was presented before the Board clearly indicates that the appellant continues
    to pose a significant threat to the safety of the public, and as such, a detention
    order was necessary. Neither an absolute or a conditional discharge would
    mitigate the present risk of significant threat pose by Ms. Esposito, given her
    current psychological state. The Boards decision is owed a significant degree
    of deference and we have not been persuaded that it was unreasonable.

[23]

The
    appeal is dismissed.

G.R. Strathy C.J.O.

Doherty J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Fung v. Decca Homes Limited, 2019 ONCA 848

DATE: 20191025

DOCKET: C66680

Feldman, Fairburn and Jamal JJ.A.

BETWEEN

Gary Fung

Applicant (Respondent)

and

Decca Homes Limited and Javad Akbari Balderlou
    a.k.a. Javad Akbari-Balderlou a.k.a. Javad Akbari

Respondents (Appellants)

Tariq Muinuddin, for the appellants

David Schatzker, for the respondent

Heard and released orally: October 22, 2019

On appeal from the order of Justice William S. Chalmers
    of the Superior Court of Justice, dated February 28, 2019.

REASONS FOR DECISION

[1]

The respondent overpaid the appellants for work done on a construction
    project. The appellants agreed. Accordingly, the appellants wrote the
    respondent a $150,000 cheque, the amount of the overpayment, but asked that the
    respondent not cash the cheque.

[2]

The parties later entered into a demand promissory note for that same
    amount. An irrevocable direction was given to a law firm to pay that amount to
    the respondent from the proceeds of other properties once sold. The appellants
    admitted that the respondents overpayment had been directed into those properties.

[3]

The respondent believed that the appellants had abandoned his project when,
    among other things, the appellants failed to respond to a series of the
    respondents emails. The respondent made a written demand on the note. When it
    was not paid, the respondent brought an application for payment. That
    application was granted.

[4]

The appellants say that the application judge erred by failing to take
    into account an oral agreement that is said to have modified the written
    promissory note. That oral agreement is said to have been made at the same time
    that the note was entered into.

[5]

We see no error in the application judges application of the parole
    evidence rule in the circumstances of this case:
Hawrish v. Bank of
    Montreal
,
[1969] S.C.R. 515,

at p. 520. Even if there was a
    collateral oral agreement, something that is disputed by the respondent, that
    oral agreement could not contradict the written agreement. Accordingly, we agree
    with the application judge that the written agreement prevails and that the
    respondent could enforce the note. It was contingent on nothing.

[6]

The appellants also raise for the first time in oral submissions the
    absence of consideration for the personal indemnity. We do not accept this argument.
    The indemnity specifically states that it was given for consideration and made
    under seal.

[7]

The appeal is dismissed with costs to the respondent in the amount of
    $5,000, inclusive of disbursements and HST.

K.
    Feldman J.A.

Fairburn
    J.A.

M. Jamal
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Goldsmith, Borgal & Company
    Ltd. v. Banerjee Goel Medicine Professional Corporation, 2019 ONCA 849

DATE: 20191024

DOCKET: C66509

Feldman, Fairburn and Jamal
    JJ.A.

BETWEEN

Goldsmith, Borgal & Company
    Ltd.

Plaintiff/Respondent

and

Banerjee Goel Medicine
    Professional Corporation, Lopita Banerjee, MD personally and Sanjeev Goel, MD
    personally, carrying on Business as the Healing Place Clinic, also known as A
    Healing Place, and Wise Elephant Family Health Team

Defendants/Appellants

Rajneesh Sharda, for the appellants

Robert Kostyniuk, for the respondent

Heard and released orally: October 24, 2019

On appeal from the order of Justice Nancy
    Dennison of the Superior Court of Justice, dated December 3, 2018.

APPEAL BOOK ENDORSEMENT

[1]

This appeal is from the order of Dennison J.
    finding that a settlement had been reached between the parties by the
    appellants letter of acceptance of June 15, 2017. The motion judge rejected
    the submission that the respondents letter of June 19, 2017 amounted to a
    repudiation of the acceptance. The motion judge accepted that the June 19
    letter referred in error to a different offer to settle from May 2017, not the offer
    that was accepted from November 2016.

[2]

We see no error in the findings of the motion
    judge and no basis to interfere with her conclusion or her order.

[3]

The appellant also seeks leave to appeal the
    costs of the motion of $14,428.14. This is a discretionary decision by the
    motion judge to which considerable deference is accorded. In our view there was
    no error of law or in the exercise of discretion that would allow this court to
    interfere.

[4]

The appeal including the request for leave is
    dismissed with costs in the agreed amount of $11,500, inclusive of
    disbursements and HST.


WARNING

Prohibitions under the
Child,
    Youth and Family Services Act
, 2017, S.O. 2017, c.14, Sched. 1 apply to
    this decision:

Prohibition
    re identifying child

87
(8)
    No person shall publish or make public information that has the effect of
    identifying a child who is a witness at or a participant in a hearing or the
    subject of a proceeding, or the childs parent or foster parent or a member of
    the childs family.

Prohibition
    re identifying person charged

(9) The court may make an order
    prohibiting the publication of information that has the effect of identifying a
    person charged with an offence under this Part.

Transcript

(10) No person except a party or a partys lawyer shall be given
    a copy of a transcript of the hearing, unless the court orders otherwise.

Offences re publication

142
(3)

A person who contravenes subsection 87 (8) or 134 (11) (publication of identifying
    information) or an order prohibiting publication made under clause 87 (7) (c)
    or subsection 87 (9), and a director, officer or employee of a corporation who
    authorizes, permits or concurs in such a contravention by the corporation, is
    guilty of an offence and on conviction is liable to a fine of not more than
    $10,000 or to imprisonment for a term of not more than three years, or to both.

COURT OF APPEAL FOR ONTARIO

CITATION: L.M. v. Peel Children's Aid Society, 2019 ONCA 841

DATE: 20191025

DOCKET: C66744

Hoy A.C.J.O., Tulloch and Jamal JJ.A.

BETWEEN

L.M.

Appellant/Respondent
(Appellant)

and

Childrens Aid Society of the Region of Peel

Respondent/Moving Party
(Respondent)

and

Office of the Childrens
    Lawyer

Respondent/Independent Party
(Respondent)

Jessica Gagné, for the appellant L.M.

Laura Shaw and Jenna Persaud, for the Childrens Aid
    Society of Peel Region

Ian Ross and Martha Heder, for the Office of the
    Childrens Lawyer

Heard: September 9, 2019

On appeal from the order
    of Justice Jamie K. Trimble of the Superior Court of Justice, dated March 15,
    2019, with reasons reported at 2019 ONSC 1566, dismissing an appeal from the
    order of Justice Patrick W. Dunn of the Ontario Court of Justice, dated January
    30, 2018.

Jamal J.A.:

I.

introduction

[1]

This appeal addresses the use of summary judgment to decide whether children
    should be placed in extended society care (formerly known as Crown wardship)
    and whether a birth parent should be given access to children in extended
    society care under the newly-enacted
Child, Youth and Family Services Act,
    2017
, S.O. 2017, c. 14, Sched. 1 (
CYFSA

). This court
    recently addressed some of these issues in
Kawartha-Haliburton Childrens
    Aid Society v. M.W.
, 2019 ONCA 316, 432 D.L.R. (4th) 497.

[2]

The
CYFSA
made major changes to the statutory scheme for child
    protection in 2018 by, amongst other things, significantly expanding the test
    for access to children in extended society care by focussing on the best
    interests of the child and respect for the childs views and wishes, and by
    emphasizing the special considerations that apply to children of Indigenous
    heritage:
Kawartha
, at para. 4.

[3]

In this case, at first instance, the Ontario Court of Justice granted summary
    judgment to make the three young children of the appellant L.M. (the mother
    or appellant) Crown wards without access to her under the former
Child
    and Family Services Act
, R.S.O. 1990, c. C.11 (
CFSA
), which was
    in force at the time. In deciding against access, the motion judge took judicial
    notice that many if not most adoptive parents would not want relations with a
    birth parent, and would not proceed with an adoption if there was an access
    order.

[4]

The Ontario Superior Court affirmed this decision and again applied the
CFSA
 though by the time of the appeal hearing the
CFSA
had been repealed
    and replaced with the
CYFSA
. The appeal judge also relied on the Divisional
    Courts decision in
Kawartha-Haliburton Childrens Aid Society v. M.W.
,
    2018 ONSC 2783, on the approach to summary judgment in child protection matters
     a decision that was later overturned by this court. The appeal judge
    acknowledged that judicial notice could not be taken of the fact that an access
    order would impair the childrens prospects for adoption, but reached the same
    conclusion by relying on common sense and informed experience.

[5]

For the reasons that follow, I would allow the appeal in part. The
    appeal judge applied the wrong legal framework by relying on the
CFSA
and the principles stated in the Divisional Courts decision in
Kawartha
,
    rather than the
CYFSA
and this courts subsequently released decision in
Kawartha
.

[6]

Applying the correct legal framework to the motion judges undisputed child-protection
    findings, I conclude that it is still appropriate to place the children in
    extended society care.

[7]

With respect to the access issue, having concluded that the test for
    judicial notice was not met, it was an error of law for the appeal judge to rely
    on common sense and informed experience to conclude that access would
    necessarily impair the childrens adoption prospects. Facts that are not
    subject to judicial notice should generally be established by direct evidence
    or admissions.

[8]

Moreover, fresh evidence tendered by the Office of the Childrens Lawyer
    (OCL) suggested that an access order would not, as a general matter, impair
    the childrens adoption prospects. However, it is not necessary to rule on the admissibility
    of this evidence in view of the concession on appeal of the Childrens Aid
    Society of the Region of Peel (Peel CAS) that some form of access between the
    appellant and the children would be in the childrens best interests.

[9]

I would therefore order that the appellant be provided with access to
    the children. As the evidence in the record is insufficient for this court to
    address the nature or extent of that access, I would remand those issues to the
    Ontario Court of Justice to be determined on an expedited basis.

II.

Background Facts

[10]

The
    appellant is the mother of three young children who have been involved with
    various Childrens Aid Societies for most of their lives: R.D., aged 9, who has
    autism; S.S., aged 4; and E.M., aged 3.

[11]

R.D.
    was born in April 2010 and was soon apprehended by the Toronto Childrens Aid
    Society (Toronto CAS). In December 2011, the Ontario Court of Justice found R.D.
    to be in need of protection under the
CFSA
because of a risk of physical
    harm and sexual molestation. The court found that:

·

the appellant has limited intellectual abilities and did not know
    that she was pregnant until her ninth month of pregnancy (thus limiting her prenatal
    care);

·

the appellants doctor had advised that she would need parenting
    classes and may be unintentionally neglectful of her child; and

·

R.D.s father was a convicted sex offender who had abducted,
    confined, and raped a 15-year-old girl with his brother, and posed a high risk
    for recidivism, especially with children. The appellant also admitted that another
    former boyfriend was a paedophile and had assaulted children in front of her,
    but she had not contacted the police.

[12]

The
    court found ample evidence that the appellant posed child protection concerns.
    For example, during an assessment visit with the Toronto CAS, the appellant dropped
    a glass bottle of baby food, which broke, and then tried to remove shards of
    glass in order to salvage R.D.s lunch. The court found that the appellant seems
    blind to protection concerns that are around her, or that she generates by her
    own behaviour.

[13]

In
    February 2012, the appellant married E.S. Her first child, R.D., was returned
    to her care and the care of E.S., with E.S. as the principal caregiver, under
    the supervision of the Toronto CAS.

[14]

In February
    2014, the family moved to Halton Region, and the Halton Childrens Aid Society
    (Halton CAS) assumed jurisdiction.

[15]

In
    February 2015, the appellants second child, S.S., was born.

[16]

In
    November 2015, E.S. died of a sudden heart attack. Following his death, the
    appellant moved with her two children to her aunts home in Peel Region.

[17]

In
    December 2015, the Halton CAS obtained a temporary order placing the children, R.D.
    and S.S., under the Halton CASs supervision and requiring the appellant to
    live with her aunt and to not be alone with the children for more than five
    hours per week. The Peel CAS also became involved in monitoring the childrens
    placement with her aunt.

[18]

In
    April 2016, the appellant accidentally burned S.S. (then about one-year old) on
    her face while removing a hot tray from the oven with her in a front-facing
    baby carrier. The appellant did not take S.S. to the doctor for several days, even
    though her aunt repeatedly urged her to do so. The appellant initially blamed
    R.D. for causing the burns, but later admitted that it was her fault.

[19]

The
    aunt ultimately asked the appellant and her children to move out by mid-May 2016
    because R.D. was disruptive and hard to control. The appellant planned to move
    in with J.M., with whom she had begun a relationship in early 2016.

[20]

Before
    she did so, the Peel CAS apprehended the children and placed them in its care, with
    supervised access to the appellant twice per week. The same day, the appellant moved
    in with J.M. and his three children.

[21]

In
    June 2016, the appellants third child, E.M. (whose father was E.S.), was born.
    The Peel CAS apprehended him and placed him in a foster home.

[22]

In
    August 2016, the appellant married J.M., who sometimes accompanied her on
    access visits with the children.

[23]

In
    May 2017, the Peel CAS served applications to have the three children made
    Crown wards without access. The Peel CASs motion for summary judgment was
    heard in November 2017.

III.

Prior decisions

(1)

Ontario Court of Justice

[24]

The
    appellants position on the summary judgment motion was that her three children
    should be placed with her and J.M. under supervision. The position of the OCL (which
    represented only the two eldest children, who were old enough to express
    preferences) was that the children should be made Crown wards with no access to
    the appellant but with access to each other.

[25]

In
    January 2018, the motion judge granted summary judgment and made the children
    Crown wards without access.

[26]

The
    motion judge noted that all three children had been in care for longer than the
    statutory timelines under s. 70 of the
CFSA
and could not remain in
    care any longer: R.D. for over 4½ years, and S.S. and E.M. for almost 1½ years.
    The only options were to make the children Crown wards or to return them to the
    appellant, with or without supervision. Almost two more years have passed since
    the motion judges decision.

[27]

The motion
    judge found, on consent, that S.S. and E.M. were in need of protection. As the
    parties disputed whether R.D. was still in need of protection, the court
    reviewed the evidence as to the appellants and J.M.s parenting abilities.

[28]

The
    motion judge relied on the affidavits of five caseworkers who supervised a
    total of 74 access visits between April 2016 and July 2017 and attended at the
    appellants home. The evidence showed that while the appellant had some
    strengths, there were reocurring themes of absence of caregiving skills.

[29]

The motion
    judge made numerous child-protection findings. He noted that any one of his
    concerns did not justify removing the children from the appellant and that in other
    cases such concerns might be addressed. But that was not the case here. In over
    17 months of supervised access, there were no signs of improvement in any of
    them, but rather a pattern of neglect and harm by omission:

·

The appellant could not supervise all three children alone.
She required constant support and was often unaware that one child had wandered
    off. She often placed R.D. in charge of his siblings when she left the room, even
    though he suffered from attention deficit hyperactivity disorder, oppositional
    defiant disorder, autism spectrum disorder, and a learning disability. CAS
    workers frequently intervened during access visits to ensure the childrens
    safety. While J.M. helped when he was around, he was not a consistent support
    and did not get along with R.D.

·

The appellant did not consistently recognize safety concerns
    and required constant basic instructions and safety reminders.
This was an
    important  if not the most important  concern. There were numerous instances
    where the children were at risk in the appellants care, even in supervised
    settings.

·

The appellant consistently failed to read, match, and respond
    to her childrens needs.
Examples included missing feeding cues and
    becoming frustrated with R.D. when he requested attention.

·

The appellants constant struggles with hygiene placed the
    children at risk of disease.
Washing facilities in J.M.s house were
    inadequate, as the shower and sink in the bathroom did not work. Despite the
    counselling of CAS workers, the situation never improved. The appellant could
    not address her own personal hygiene or teach her children effective hygiene.

·

The appellants consistently unsanitary residence posed a
    health risk for the children.
On scheduled visits, the residence was
    consistently very dirty and unsanitary, with garbage and clutter around the
    living area; on unscheduled visits, the residence was in a deplorable state, including
    instances of garbage, clutter, filthy carpets, dirt, exposed wires and foul
    odours, reflecting J.M.s poor self-management and self-care skills. Despite
    repeated warnings, the appellant and J.M. did not clean or make their house
    safe and it would be posing a health risk to the children if they lived there.

·

The appellant sometimes had difficulty putting her childrens
    needs ahead of her own.
While she could be attentive to her children, often
    she was not: she missed access visits because she stayed up too late, took smoke
    breaks and left supervisors to care for her children, and used visits to talk
    to the supervisors rather than to her children.

·

The appellant had limited cognitive ability, with intellectual
    functioning permanently in a low range of capacity.
Taken alone this was
    not determinative, as many intellectually-challenged individuals can be very
    effective parents. Unfortunately, however, the appellant was not one of those
    people, nor was she assisted by another able caregiver.

·

Because of her limitations, the appellant had never parented
    alone and had always been assisted by others.
Her current spouse J.M. has
    also had serious parenting issues.

·

J.M. was not an effective co-parent.
He missed many access
    visits with the appellant, and when he did attend, he was often disengaged. He
    also did not have a good history of parenting his other children. The Peel CAS
    had an open file on his 13-year-old son, who had missed large amounts of school
    without good reason, read well below his grade level, wore dirty clothes and
    had poor personal hygiene, and whose asthma was aggravated by the poor sanitary
    condition of J.M.s house. The motion judge found that J.M. cannot be trusted
    to facilitate learning by the appellants three children and that they would
    not be safe in the appellants and J.M.s care.

·

The appellant was sometimes dishonest.
Examples included when
    she burned S.S. (initially blaming her son) and refused to take her for medical
    treatment for several days, and when she prevaricated about her smoking and household
    cleaning. The motion judge found that [t]ruthfulness of a parent is very
    important when s/he is under a supervision Order. If the parent cannot be
    trusted to tell the truth, any child in that parents care is at risk.

[30]

The
    motion judge also concluded that there was no triable issue as to whether the
    appellant should be provided with access to the children. He noted that s.
    59(2)(2.1) of the
CFSA
provided that a court shall not make an access
    order under s. 58 with respect to a Crown ward unless the court is satisfied that
    the relationship between the person and the child is beneficial and meaningful
    to the child (s. 59(2)(2.1)(a)), and that access will not impair the childs
    future opportunities for adoption (s. 59(2)(2.1)(b)).

[31]

The motion
    judge found that the appellants existing relationship with her children did
    not deliver a significant positive advantage to any child, and that it was the
    obligation of [the appellant] to establish that there should be an access
    Order, and she did not do so. He also found that while there were no
    prospective adoptive parents at present, the court could take judicial notice
    that many if not most adoptive parents would not want relations with a birth
    parent, and would not proceed with an adoption if there was an access order.
    He therefore refused the appellant access because she had not proved that the
    childrens prospects for adoption would not be impaired by access.

[32]

The
    motion judge therefore granted summary judgment and made the children Crown
    wards without access. He noted that he was not asked to decide sibling access
    after ordering Crown wardship and did not do so.

(2)

Appeal to the Ontario Superior Court of Justice

[33]

The
    appeal was argued in December 2018 and dismissed in March 2019. The appeal
    judge noted that both the original motion and the appeal were argued under the
CFSA
,
    which was in force when the motion judges decision was released. The appeal
    judge noted that nobody had argued that the
CYFSA
, which was in force
    as of April 30, 2018, applied to the appeal. He then proceeded to apply the
CFSA
.

[34]

The appeal
    judge held that the motion judge applied the correct test to determine Crown
    wardship by way of summary judgment, as set out in the Divisional Courts
    decision in
Kawartha
. The appeal judge found that
Hryniak v.
    Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, had made summary judgment more
    available in all areas of the law, including child protection. Like the
    Divisional Court in
Kawartha
, the appeal judge concluded that the pre-
Hryniak
authorities applying a higher standard for summary judgment in child protection
    cases were no longer good law.

[35]

The
    appeal judge noted that, by virtue of s. 59(2.1) of the
CFSA
, the appellant
    bore the burden of proof to obtain post-Crown wardship access: to show on a
    balance of probabilities that she and the children have a beneficial
    relationship and that a continued relationship with her would not interfere
    with their adoption.

[36]

The
    appeal judge also held that the motion judge did not err in finding that most
    adoptive parents would not proceed with an adoption if the birth parents have
    an access order. The appeal judge noted that there was some evidence to support
    this observation, and that it was common sense and reflected the informed
    experience of courts dealing with adoption matters.

(3)

The appellant has had ongoing access to the children

[37]

Since
    January 2018, when the order for Crown wardship without access was made, the appellant
    has had weekly access visits with the children at the offices of the Peel CAS with
    its consent.

[38]

On
    April 29, 2019, this court issued a consent order allowing the appellant to continue
    these weekly access visits pending the disposition of this appeal.

IV.

Issues on Appeal

[39]

The
    appellant raised seven issues, but they reduce to two core questions:

1.

Did the appeal judge err in upholding the motion judges decision to
    grant summary judgment to make the children Crown wards?

2.

Did the appeal judge err in upholding the decision to deny the appellant
    access to the children?

V.

Analysis

(1)

Did the appeal judge err in upholding the motion judges decision to grant
    summary judgment to make the children Crown wards?

[40]

Like
    the motion judge, the appeal judge determined the issue of Crown wardship by
    applying the
CFSA
rather than the
CYFSA
, and applied the Divisional
    Courts decision in
Kawartha
regarding the principles of summary
    judgment in child protection matters. In my view, the appeal judge erred in law
    in both respects.

(a)

The
CYFSA
 not the
CFSA
 applied to the appeal

[41]

First, the appeal court erred by applying the
CFSA
rather than the
CYFSA
.

[42]

The appeal was heard on December 10, 2018, but the
CYFSA
had come into force and replaced the
CFSA
on April 30, 2018. A
transitional regulation, O. Reg. 157/18, which came into force the
    same day, provides at s. 11(1) that [a] proceeding commenced under Part III of
    the old Act but not concluded before the day this section comes into force is
    continued as a proceeding commenced under Part V of the Act.

[43]

This court in
Kawartha
recently interpreted this
    transitional regulation and applied the
CYFSA
to an appeal where the
    proceeding had been commenced under the
CFSA
. This court concluded
    that the Divisional Court erred in applying the
CFSA
where its decision was
    released a week after the
CYFSA
came into force: paras. 5, 42. This court
    held that a proceeding is not concluded until a decision is rendered,
    including any appeals: at para. 41. This conclusion was supported by the plain wording
    of the transitional regulation, the paramount purpose of the Act to promote
    childrens best interests, and the need to permit all children to benefit from
    what the legislature had clearly decided was a preferable approach: at para.
    38.

[44]

Similarly, here, the
CYFSA
rather than the
CFSA
applied to the appeal. The appeal was heard several months after the
CYFSA
came into force and the
CFSA
had been repealed. While the proceeding
    had been commenced under the
CFSA
, it had not concluded before April
    30, 2018  hence the
CYFSA
applied.

(b)

Summary judgment principles in child protection
    matters: the
Kawartha
decision

[45]

Second,
    the appeal judge erred by applying the Divisional Courts decision in
Kawartha
regarding the principles of summary judgment in child protection matters. In
    fairness to the appeal judge, the Divisional Courts decision in
Kawartha
had not yet been overturned at the time he made his decision. Nonetheless, this
    court has since overturned the Divisional Courts decision.

[46]

This
    court held that [t]he Divisional Court ignored
Hryniaks
direction
    that no genuine issue requiring a trial will exist only when the judge is able
    to reach a fair and just determination on the merits on a motion for summary
    judgment:
Kawartha
, at para. 63.

[47]

This
    court also concluded that the Divisional Court erred in stating that pre-
Hryniak
cases in the child protection context set the bar for summary judgment too high
    and were therefore not good law after
Hryniak
. This court stated that
    both before and after
Hryniak
, the approach to summary judgment in the
    child protection context was and remains highly cautionary: at para. 74.

[48]

A highly
    cautious approach to summary judgment in child protection cases is warranted because
    of the serious interests at stake. As the Supreme Court has recognized, [t]he interests
    at stake in the custody hearing are unquestionably of the highest order. Few
    state actions can have a more profound effect on the lives of both parent and
    child:
New Brunswick (Minister of Health and Community Services) v. G.(J.)
,
    [1999] 3 S.C.R. 46, at para. 76. In child protection cases the
Charter
rights to personal security of both parents and children are often engaged,
    many of whom are vulnerable litigants disproportionately afflicted by poverty
    and other forms of marginalization:
Kawartha
, at paras. 63-69. Caution
    in this context promotes
Hryniaks
principle of reaching a fair and
    just determination on the merits:
Kawartha
, at para. 76.

[49]

This
    court in
Kawartha
,
at para. 80, summarized the approach to
    summary judgment in child protection proceedings as follows:

1.

Hryniaks
fairness principles for summary judgment must be applied recognizing the
    distinctive features of a child protection proceeding. In determining whether
    there is a genuine issue requiring a trial the court must exercise caution and
    apply the objectives of the
CYFSA
including the best interests of the
    child.

2.

The burden of
    proof is on the party moving for summary judgment. Although, r. 16(4.1) sets
    out the obligation of the respondent to the motion to provide in an affidavit
    or other evidence, specific facts showing that there is a genuine issue for
    trial this does not shift the ultimate burden of proof. Even if the
    respondents evidence does not establish a genuine issue for trial, the court
    must still be satisfied on the evidence before it that the moving party has
    established that there is no genuine issue requiring a trial.

3.

The court must
    conduct a careful screening of the evidence to eliminate inadmissible evidence.
    The court should not give weight to evidence on a summary judgment motion that
    would be inadmissible at trial.

4.

Judicial
    assistance must be provided for self-represented litigants. In particular,
    judges must engage in managing the matter and must provide assistance in
    accordance with the principles set out in the
Statement of Principles on
    Self-represented Litigants and Accused Persons
(2006) (online) established
    by the Canadian Judicial Council.

5.

The special considerations that apply to Indigenous children must be
    part of every decision involving Indigenous children.

[50]

Kawartha
clearly recognized that summary judgment may be appropriate in the child
    protection context. Respectfully, I therefore do not agree with the Manitoba
    Court of Appeals recent comment that, [i]mplicit in
Kawartha
-
Haliburton
is the view, expressed as a caution, that even with a proper initial
    assessment, the summary judgment process cannot ensure a fair and just
    determination in a prompt and proportionate manner:
Dakota Ojibway Child
    and Family Services v. MBH
, 2019 MBCA 91, at para. 146. Instead, the cautious
    approach enunciated in
Kawartha
neither precludes the use of summary
    judgment in child protection matters, nor suggests a different summary judgment
    test in this context.

[51]

In
    my view, both provinces appellate courts agree that, as the Manitoba court also
    stated in that case, [w]hile summary judgment is available for child
    protection proceedings, it is not appropriate in all cases: para. 155. Thus,
    in some child protection cases, summary judgment can ensure a fair and just
    determination in a prompt and proportionate manner, while in other cases it cannot
    do so. Each case must be decided based on the issues and evidence presented. As
    noted in
Hryniak
, at para. 59: [w]hat is fair and just turns on the nature
    of the issues, the nature and strength of the evidence and what is the
    proportional procedure.

[52]

Moreover,
    the summary judgment test applied in child protection cases remains the same as
    in other cases. As set out in
Hryniak
, at para. 49, [t]here will be
    no genuine issue requiring a trial when the judge is able to reach a fair and
    just determination on the merits on a motion for summary judgment. But the
    test must still be applied in context and sensitive to the particularly high
    stakes and
Charter
rights of parents and children implicated in child
    protection cases.

(c)

Should this court apply the correct legal framework to the uncontested
    factual findings?

[53]

The
    appeal judge thus erred in law by applying the
CFSA
rather than the
CYFSA
,
    and by applying the Divisional Courts decision in
Kawartha
. The next question
    is whether this court should remand the matter to the Ontario Court of Justice
    to apply the correct legal framework to the uncontested factual findings, or
    whether this court should itself do so. The OCL urged this court to apply the
    correct legal framework, submitting that the legal errors do not alter the
    clear conclusion that the only order in the childrens best interests is for
    them to remain in the Societys extended care. I agree.

[54]

This
    court has jurisdiction to apply the correct legal framework to the evidence. Section
    134(1)(a) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43, authorizes
    an appeal court to make any order or decision that ought to or could have been
    made by the court or tribunal appealed from.

[55]

In
    my view, this court should exercise this jurisdiction here because: (1) the motion
    judges factual findings relevant to this appeal are uncontested and this court
    is therefore able to apply the proper legal framework to them; and (2) these
    proceedings were commenced more than two years ago and the children have been
    in interim society care well beyond the statutory time limits under s. 122 of
    the
CYFSA
,

making it especially important to give the children
    certainty as to their status as soon as reasonably possible: see

Catholic

Childrens

Aid

Society

of

Metropolitan

Toronto

v
.
M.(C.)
,
[1994] 2 S.C.R. 165, at p.
    206.

(d)

Applying
    the test for extended society care under the
CYFSA

[56]

I turn,
    then, to the test for whether the children should be placed in extended society
    care under the
CYFSA
. This involves two broad inquiries: (1) whether
    the child is in need of protection; and (2) whether placement of the child in
    extended society care is in the childs best interests and the court is satisfied
    that intervention through a court order is necessary to protect the child in
    the future:
CYFSA
, s. 101(1), paragraph 3.

[57]

The court
    determines whether a child is in need of protection by applying the criteria
    in s. 74(2), which include, for example, the risk that a child is likely to
    suffer physical harm from a parents failure or pattern of neglect to adequately
    care for, provide for, supervise or protect the child (ss. 74(2)(b)(i) and (ii)).

[58]

The
    court determines whether the order for extended society care is in the childs
    best interests by applying the criteria in s. 74(3) of the
CYFSA
, which
    include, for example, the childs views and wishes (s. 74(3)(a)), the
    importance of preserving the childs cultural identity and connection to the
    community in the case of a First Nations, Inuk, or Métis child (s. 74(3)(b)), and
    other relevant circumstances of the case (s. 74(3)(c)), including the risk of
    harm to the child if the child is returned to or allowed to remain in the care
    of a parent (s. 74(3)(c)(x)) and the degree of risk that justified the finding
    that the child is in need of protection (s. 74(3)(c)(xi)).

[59]

In
    this case, the motion judge noted that the parties accepted that S.S. and E.M. were
    in need of protection under the
CFSA
. The court also found all three
    children to be in need of protection because of a risk that they would likely
    suffer physical harm (
CFSA
, s. 37(2)(b)). Those conclusions are owed
    deference by this court:
D.D. v. Children's Aid Society of Toronto
,
    2015 ONCA 903, 344 O.A.C. 89, at paras. 29-30, leave to appeal refused, [2016]
    S.C.C.A. No. 61. On appeal to this court, those findings would apply equally
    under ss. 74(2)(b)(i) and (ii) of the
CYFSA
.

[60]

In
    any event, in my view, the motion judges factual findings summarized at
    paragraph 29 above confirm that there is no genuine issue requiring a trial that
    all three children are likely to suffer physical harm as a result of the
    appellants inability to adequately care for, provide for, supervise, or
    protect them.

[61]

I therefore
    conclude that all three children are in need of protection within the meaning
    of s. 74(2) of the
CYFSA
.

[62]

This
    leaves the question of whether placing the children in extended society care is
    in the best interests of the children. I agree with the submissions of the Peel
    CAS and the OCL that, in view of the unchallenged factual findings of the
    motion judge, there is a substantial risk of harm to the children if they are
    returned to the appellant, even with J.M.s assistance as a co-parent.

[63]

The
    appellant nevertheless contends that some of the motion judges language
    regarding J.M.s suitability as a co-parent is not definitive, suggesting that the
    matter should have been left for trial. The appellant highlights the motion
    judges statement that he was not as confident as the appellant as to J.M.s
    parenting ability, that the affidavit evidence had only raised serious doubts
    about how the children might fare under his care, and that the motion judge was
    only apprehensive about the possibility of J.M. co-parenting.

[64]

I acknowledge
    that the motion judges language was slightly more tentative in these instances.
    Elsewhere, however, he did not mince words. He found that J.M. cannot be
    trusted to facilitate the childrens learning and that J.M.s ability to
    co-parent was not a triable issue because the children would not be safe if
    left under his supervision.

[65]

In
    my view, when the correct legislation and summary judgment test are applied to
    the factual findings and with the requisite caution in the child protection
    context, there is no genuine issue requiring a trial as to whether J.M. would
    be an effective or safe co-parent for the children.

[66]

For
    these reasons, I agree with the OCL and the Peel CAS that the children should
    be placed in extended society care pursuant to the
CYFSA
.

(2)

Did the appeal judge err in upholding the decision to deny the appellant
    access to the children?

[67]

The
    second issue is whether the appeal judge erred in denying the appellant access
    to the children once they were made Crown wards.

[68]

As
    with the decision to make the children Crown wards, the appeal judge applied
    the
CFSA
rather than the
CYFSA
,
and applied the Divisional Courts decision in
Kawartha
.
The appeal judge concluded that the appellant did not
    meet her onus to establish that there should be an access order.
He also concluded
    that the motion judge was entitled to assume that the childrens prospects for
    adoption would be impaired with an access order in place, even if the test for
    judicial notice of this fact could not be met, as this was common sense and
    reflected the informed experience of courts dealing with adoption matters. In
    my view, the appeal judge erred in four respects.

(a)   The appeal judge applied the wrong legislation

[69]

First,
    the appeal judge applied the wrong legislation. As already noted, he should have
    applied the
CYFSA
rather than the
CFSA
to the access issue.

[70]

As
    this court explained in
Kawartha
, at paras. 44-61, the
CYFSA
significantly changed the considerations for access to children in extended
    society care:

·

Under the old
CFSA
, the test for access to a Crown ward was
    strict (s. 59(2.1)). The onus was on the person seeking access (usually the
    parent) to establish that the relationship was meaningful and beneficial. There
    was a presumption against access and opportunities for adoption were
    prioritized over other considerations.

·

Under the new
CYFSA
, the best interests of the child now
    govern the analysis, which includes consideration of the childs views and
    wishes. Under s. 105(5) of the
CYFSA
, the court shall not make an
    access order unless it is satisfied that it is in the best interests of the
    child, having regard to comprehensive factors identified in s. 74(3). Thus, access
    is to be ordered for a child with otherwise excellent adoptive prospects if it
    is in the childs best interests.

(b)   The appeal judge applied the wrong principles for
    summary judgment in child protection matters

[71]

Second,
    the appeal judge erred in law by determining the access issue on summary
    judgment by applying the Divisional Courts decision in
Kawartha
. This
    error has already been addressed above.

(c)   The appeal judge erred by placing an onus on the appellant
    to justify an access order

[72]

Third,
    the appeal judge erred in law by placing an onus on the appellant to establish
    that there was a genuine issue requiring a trial as to whether there should be
    an access order. This court in
Kawartha
clarified that the burden of
    proof remains on the Society as the moving party for summary judgment. Even if
    the appellants evidence did not establish a genuine issue for trial, the
    court must still be satisfied on the evidence before it that the moving party
    has established that there is no genuine issue requiring a trial: at para. 80.

(d)   The appeal judge erred by finding that an access
    order would necessarily impair the childrens future prospects for adoption

[73]

Finally,
    the appeal judge erred in finding as a fact that an access order would necessarily
    impair
these
childrens future prospects for adoption.

[74]

The
    appeal judge began by correctly noting that the test in
R. v. Find
, 2001
    SCC 32, [2001] 1 S.C.R. 863, for taking judicial notice of this fact was not
    met. As stated in
Find
, at para. 48: [j]udicial notice dispenses with
    the need for proof of facts that are clearly uncontroversial or beyond
    reasonable dispute. The threshold is strict. A court may properly take
    judicial notice of facts that are either: (1) so notorious or generally accepted
    as not to be the subject of debate among reasonable persons; or (2) capable of
    immediate and accurate demonstration by resort to readily accessible sources of
    indisputable accuracy.

[75]

The supposed
    fact that many if not most potential adoptive parents are less inclined to
    adopt if the birth parents have access to a child in extended society care
    cannot meet the test for judicial notice. This fact is not notorious or generally
    accepted, nor capable of immediate demonstration. As will be seen, it also may
    well be wrong.

[76]

Having
    accepted judicial notice could not be taken of this fact, the appeal judge
    found that this factual finding was still justified because: (1) there was
    evidence before the motion judge that access would undermine the prospects for adoption;
    and (2) courts have set out several reasons based on common sense and informed
    experience as to why adoptive parents would be less likely to adopt if birth
    parents have access. In my view, the appeal judge erred on both points.

[77]

First,
    the evidence on the motion did not suggest that access would undermine the prospects
    for the adoption of these particular children. It merely suggested that one of
    the key factors in determining whether post-adoption face-to-face contact is
    appropriate is whether the birth parent will undermine the adoptive placement. In
    this case, there was no evidence that the appellant would undermine an adoptive
    placement and, to the contrary, she had good relations with the childrens
    foster parents and the Peel CAS personnel. Even if face-to-face access were inappropriate
     and I make no such determination  the court must still consider all forms of
    access, ranging from regular face-to-face access to an exchange of gifts,
    cards, and letters that may be vetted by the childrens caregivers for
    appropriateness.

[78]

Second,
    given that the appeal judge acknowledged that the test for judicial notice
    could not be met, it was an error for him to rely solely on common sense and
    informed experience to effectively hold that granting a parent access to a
    child in extended society care would impair the childs adoption prospects. Facts
    that are not subject to judicial notice should generally be established by
    direct evidence or admissions:
R. v. Spence
, 2005 SCC 71, [2005] 3
    S.C.R. 458, at paras. 61-68;
R. v. Williams
, [1998] 1 S.C.R. 1128, at
    p. 1155-1156; and
R. v. Le
, 2019 SCC 34, at paras. 83-85. In the
    present context, common sense and informed experience alone cannot meet the
    statutory evidential burden in s. 105(5) of the
CYFSA
regarding the best
    interests of the particular children to whom access is sought.

[79]

The
    appeal judge was also not entitled to rely on findings made in other cases,
    such as the potential for having to deal with difficult birth parents and the deterrent
    effect an access order might have on some adoptive parents. Each case must be
    decided on its own facts, not based on findings made in other cases.

[80]

Thus,
    in my view, the appeal judge erred in finding that an access order was
    inappropriate in this case.

[81]

Given
    this conclusion, it is not necessary to address the proposed fresh evidence of
    the OCL in the form of the affidavits of the Executive Director of the Adoption
    Council of Ontario and an associate professor of law and social work at the
    University of Toronto. These affidavits emphasized the potentially significant
    benefits to children of access orders and how such orders do not impair the
    prospects for adoption.

(e)

Should
    this court decide the issue of access?

[82]

Having
    decided that the appeal judge erred in ordering no access, the question becomes
    whether this court should decide the issue afresh. As noted, under s. 105(5) of
    the
CYFSA
, the best interests of the child govern the analysis.

[83]

The OCL
    moved to adduce fresh evidence on appeal addressing the childrens preferences about
    ongoing contact with their mother. This consisted of the affidavit of Ms. Tina Hinsperger,
    a clinical agent for the OCL, who met with the children three times between
    April and July 2019, including at an access visit between the children and
    their mother. She noted that:

·

R.D. expressed his love for his mother and was clear in his views
    and preferences that he wanted to continue to have access with his mother;

·

It was not possible to ascertain S.S.s views given her young age;

·

At the end of one visit, E.M. (who was not represented by the OCL)
    opened his arms wide and gave his mother a big hug and a kiss. He also kissed
    his brother and sister goodbye; and

·

R.D. and S.S. then left the building holding their mothers
    hands while walking towards the foster mothers vehicle.

[84]

Section
    121(6) of the
CYFSA
provides that the court may receive further evidence
    relating to events after the appealed decision. This court has ruled that such fresh
    evidence should be admitted in a child protection proceeding if it: (a) could
    not have been adduced before; (b) is highly relevant in that it provides the
    court with an accurate picture of the situation at hand; (c) is potentially
    decisive to the childs best interests; (d) is credible; (e) is uncontroverted;
    and (f) updates evidence submitted between the time of the prior hearings and
    the appeal. A flexible approach should be taken, given the need for accurate
    and up-to-date information concerning the childs best interests: see
Children's
    Aid Society of Toronto v. P.M.
, 2015 ONCA 695, 71 R.F.L. (7th) 44, at
    paras. 22-23.

[85]

In
    my view, Ms. Hinspergers affidavit meets the test for admitting further
    evidence on appeal pursuant to s. 121(6) of the
CYFSA
. Ms. Hinspergers
    affidavit relates to recent visits between the appellant and the children and evinces
    R.D.s preference for ongoing access. This evidence is admissible under the flexible
    approach to admitting fresh evidence in child protection cases because it could
    not have been adduced before; it is highly relevant in that it provides the
    court with an accurate picture of the situation at hand; it is potentially
    decisive to the childs best interests; it is credible and uncontroverted; and it
    updates evidence submitted between the time of the prior hearings and the
    appeal.

[86]

Ms. Hinspergers
    evidence suggests that some form of access would be in the childrens best
    interests. This is at least R.D.s preference. All the children appear to have strong
    emotional ties to the appellant.

[87]

On
    appeal, the Peel CAS also conceded that an access order would be appropriate as
    being in the childrens best interests.

[88]

I
    would therefore order that the appellant have access to the children. I have,
    however, concluded that the evidence in the record is insufficient for this
    court to address the nature or extent of that access, and would remand those issues
    to the Ontario Court of Justice to be determined on an expedited basis. At the
    same time, I would strongly encourage the parties to agree to the terms of the appellants
    access without further litigation.

[89]

It appears that sibling access was requested on summary judgment. If
    it is still the position of the OCL that sibling access is appropriate, then
    this should be addressed at any future access hearing or by agreement.

VI.

Costs

[90]

The Peel
    CAS did not seek costs, but the appellant did.

[91]

The
    appellant was provided with state-funded counsel for her appeal to the appeal
    judge by order of the Ontario Superior Court:
Childrens Aid Society v. L.M
.
,
    2018 ONSC 3633, 11 R.F.L. (8th) 143. The Peel CAS opposed the state-funding
    request, and costs were awarded against it:
Childrens Aid Society v. L.M
.
,
    2018 ONSC 7170. The Peel CAS has been granted leave to appeal the costs order to
    the Divisional Court.

[92]

The
    appellant has achieved some success on the appeal. She was entirely successful on
    the appeal of the access order and partially successful on several points of
    law as to the Crown wardship determination that the Peel CAS did not concede. Considering
    all the circumstances, including the substantial assistance that Ms. Gagnés submissions
    provided to this court, I would award the appellant costs payable by the Peel
    CAS fixed at $10,000, inclusive of applicable taxes and disbursements.

VII.

Disposition

[93]

For
    these reasons, I would allow the appeal in part. I would confirm the order for
    extended society care, grant the appellant access to the children, but remand the
    issues of the nature and extent of that access to the Ontario Court of Justice
    to be determined on an expedited basis, with costs to the appellant payable by
    the Peel CAS fixed at $10,000 (inclusive of applicable taxes and disbursements).
    Pending further order of the Ontario Court of Justice or on consent of the
    parties, I would also continue this courts order providing the appellant with
    weekly supervised access visits to the children at the offices of the Peel CAS.

Released: AH  OCT 25, 2019

M. Jamal J.A.

I agree. Alexandra Hoy
    A.C.J.O.

I agree. M. Tulloch
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: La Rose Bakery 2000 Inc. v.
    Intact Insurance Company, 2019 ONCA 850

DATE: 20191025

DOCKET: C66517

MacPherson, Pepall and Lauwers JJ.A.

BETWEEN

La Rose Bakery 2000 Inc.

Plaintiff (Appellant)

and

Intact Insurance Company and Unity Realty &
    Insurance Inc.

Defendants (Respondents)

Mauro Marchioni, for the appellant

Jeffrey R. Goit, for the respondent Intact Insurance
    Company

Lesley E. Albert, for the respondent Unity Realty &
    Insurance Inc.

Heard: October 21, 2019

On appeal from the judgment of Justice Thomas R. Lederer
    of the Superior Court of Justice, dated December 12, 2018, with reasons
    reported at 2019 ONSC 236.

REASONS FOR DECISION

[1]

The appellant, La Rose Bakery 2000 Inc., appeals from the December 12,
    2018 judgment dismissing its action against the respondent, Intact Insurance
    Company (Intact), seeking coverage for losses resulting from an ice storm in
    December 2013.

A.

Background Facts

[2]

The appellant operates a commercial bakery in a shopping plaza in
    Etobicoke. A power outage occurred in December 2013. There was no physical
    damage to the plaza or to the bakery, and no repairs to any buildings or
    structures were needed. Power was restored without any intervention by the
    owner of the plaza or the appellant.

[3]

The appellant made a claim under its policy of insurance with Intact but
    Intact refused coverage. The appellant then commenced an action against Intact for
    payment for losses relating to stock spoilage and business interruption. Intact
    defended, relying on exclusions in the policy.

[4]

The appellant also sued Unity Realty & Insurance Inc. (Unity), the
    insurance broker, for damages for negligence for failing to ensure that the
    appellant was properly insured. Unity denied liability pleading that the policy
    provided appropriate coverage in accordance with the appellants needs and
    available products. It cross-claimed against Intact for contribution and
    indemnity relying on the contents of the appellants statement of claim against
    Intact.

[5]

Intact moved for summary judgment seeking a dismissal of the appellants
    claims against it. The motion was served on Unity but it took no position and did
    not appear on the return of the motion. However, Unity did agree with Intact
    that if the summary judgment motion were successful, it would consent to a
    dismissal of its cross-claim against Intact. Counsel for the appellant was so
    advised but this fact was not brought to the motion judges attention.

B.

Motion Judges Decision

[6]

The motion judge determined that the exclusionary clauses governing stock
    spoilage and business interruption in the policy precluded coverage for the
    losses claimed. He accordingly granted summary judgment dismissing the appellants
    action against Intact.

C.

Grounds of Appeal

[7]

The appellant appeals from that order.

[8]

First, it submits that the motion judge erred by disregarding the
    principles relating to partial summary judgment described in
Butera v.
    Chown, Cairns LLP
, 2017 ONCA 783
, 137 O.R. (3d) 561, and
    its progeny.

[9]

We disagree.

[10]

The
    motion disposed of the entire action between the appellant and Intact. In
    addition, as noted by the motion judge, Unity, a party to the litigation, had
    been served with the summary judgment motion material, and would be bound by
    the outcome. There was no real risk of duplicative proceedings or inconsistent
    factual findings. The action was readily bifurcated and the cost of the
    litigation would be reduced, not increased. Furthermore, although not before
    the motion judge, Unity had agreed to consent to a dismissal of its cross-claim
    against Intact based on the outcome of the summary judgment motion. Summary
    judgment in favour of Intact was appropriate in these circumstances.

[11]

Second,
    the appellant submits that the motion judge erred in his interpretation of the insurance
    policy and in deciding the motion in the absence of expert evidence.

[12]

The
    motion judge found that the exclusion clauses precluded coverage. The exclusion
    for the stock spoilage claim stated that coverage did not cover loss or damage
    resulting from partial or total interruption to the supply of electricity,
    arising from loss or damage to any electrical transmission lines or
    distribution lines or their supporting structures, except for those located on
    the premises. The appellant concedes that the loss or damage was to
    electrical transmission lines or distribution lines or their supporting
    structures. Intact filed evidence that supported its position that the loss or
    damage was to lines or structures not located on the premises. As such, it was
    open to the motion judge to conclude that the exclusion provision applied to
    exclude coverage for the stock spoilage. The appellant failed to file evidence
    that showed that the loss or damage occurred on its premises. It was incumbent
    on the appellant to put its best foot forward. The motion judge did not err in
    interpreting the policy without the benefit of expert evidence.

[13]

Similarly,
    the motion judges conclusion that the exclusion provision precluded coverage
    for business interruption losses is unassailable.

[14]

For
    these reasons, the appeal is dismissed. As agreed by the appellant and the
    respondent, the appellant shall pay costs to the respondent fixed in the amount
    of $5,000 inclusive of disbursements and applicable tax. There will be no order
    of costs relating to Unity.

J.C. MacPherson J.A.

S.E. Pepall J.A.

P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lee v. Yeung, 2019 ONCA 825

DATE: 20191017

DOCKET: C66663

Rouleau, Huscroft and Nordheimer
    JJ.A.

BETWEEN

Henry
    Lee, P. Eng.

Appellant

and

Simon Yeung, P. Eng., Broker of
    Record for Homelife New World Realty and Homelife New World Realty Inc.

Respondents

Henry Lee, in person

Michael Crystal and Alejandro
    Jaramillo, for the respondents

Heard and released orally: October 15, 2019

On
    appeal from the judgment of Justice Shaun S. Nakatsuru of the Superior Court of
    Justice, dated February 7, 2019.

REASONS FOR DECISION

[1]

Mr. Lee appeals from the dismissal of his
    application for damages arising out of his exclusion from some WeChat groups that
    were related to his occupation as a real estate agent. He also sought a
    declaration that the WeChat groups belonged to the respondent Homelife.

[2]

We would dismiss the appeal.

[3]

First, an application is not the appropriate
    proceeding for advancing a damages claim of the type put forward here. That
    fact alone would justify the dismissal of the application. Second, and in any
    event, there is no error shown in the application judges conclusion that
    neither of the bases advanced by Mr. Lee for his claim had a proper evidentiary
    foundation. There is simply an absence of evidence to support either a claim
    for intentional interference with economic relations or a civil conspiracy or a
    declaration of the type sought. Mr. Lees reliance on the Competition Act does
    not remove any of those failings.

[4]

Finally, the application judge dealt fairly with
    all of the evidentiary issues raised. These were all matters within the
    discretion of the application judge and no error is shown. Further, Mr. Lee
    never sought an adjournment of the application to address any of these issues.

[5]

The appeal is dismissed. Costs to the respondent
    fixed in the amount of $3500 inclusive of disbursements and HST.

Paul Rouleau J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lopes Limited v. The Guarantee Company of North
    America, 2019 ONCA 853

DATE: 20191028

DOCKET: C66643

Feldman, Fairburn and Jamal JJ.A.

BETWEEN

Lopes Limited

Plaintiff (Respondent)

and

The Guarantee Company of
    North America
and Gorf
Manufacturing/Contracting Ltd.

Defendant (Appellant)

G.L. Sonny Ingram, for the appellant

Kenneth W. Movat and Maxwell Reedijk, for the respondent

Heard and released orally: October 23, 2019

On appeal from the
    judgment of Justice Peter J. Cavanagh of the Superior Court of Justice, dated January
    31, 2019, with reasons reported at 2019 ONSC 804, 89 B.L.R. (5th) 339.

REASONS FOR DECISION

[1]

This is an appeal from a decision granting the
    respondent summary judgment under a labour and materials payment bond issued by
    the appellant.

[2]

The respondent claimed against the appellant
    under a payment bond for unpaid invoices for work completed under a subcontract
    with Gorf Manufacturing/Contracting Limited (Gorf), the general contractor
    for a construction project. Gorf abandoned the project and a new general
    contractor was engaged. The respondent then successfully bid to complete work
    that remained under the original subcontract and was paid more for the
    completion subcontract than it would have received for that work under the
    original contract with Gorf. The respondent nevertheless claimed against the
    appellant under the payment bond for the unpaid invoices for the completed work
    for Gorf.

[3]

The appellant did not dispute that the claim
    fell within the terms of the payment bond, but argued that the respondent was
    not entitled to claim thereunder because it had not suffered any damages. It asserted
    that the respondent had fully mitigated its damages by concluding the
    completion subcontract for the remaining work on terms more favourable than
    under the original subcontract. The motion judge rejected this argument and
    granted summary judgment under the payment bond in the amount of $183,824.23.

[4]

The appellant says that the motion judge erred
    in his application of the principles of mitigation of damages to the facts of
    this case. It asserts that the amounts received under the completion subcontract
    should be considered as mitigation of any damages incurred for the unpaid work,
    and that a trial was needed to determine the damages actually incurred by the
    respondent. We do not agree.

[5]

The case law is clear: the plaintiff [has] the duty
    of taking all reasonable steps to mitigate the loss consequent on the breach,
    and [this] debars him from claiming any part of the damage which is due to his
    neglect to take such steps

:
Cockburn v. Trusts and Guarantee Co
.
(1917), 55 S.C.R. 264, at p. 267, citing
British
    Westinghouse Electric Co. v. Underground Electric Railways Co
.
, [1912] A.C. 673 (H.L.), at p. 689.
    The motion judge both stated and applied this test correctly.

[6]

Here, the respondents decision to bid on and
    enter into a new completion subcontract was not an action taken to mitigate the
    loss consequent on the breach that was Gorfs failure to pay for the completed
    work. The respondent would have secured the benefits flowing from the
    completion subcontract regardless of Gorfs failure to pay for the completed
    work. It was Gorfs abandonment of the subcontract, not its failure to pay for
    completed work, that created the necessity for the completion subcontract. In
    short, as the motion judge correctly held, the respondents successful bid for
    the completion subcontract was not consequent on Gorfs failure to pay its
    invoices.

[7]

The appeal is therefore dismissed, with costs to
    the respondent in the agreed-upon amount of $12,500 inclusive of taxes and
    disbursements.

K.
    Feldman J.A.
Fairburn J.A.
M. Jamal J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: McGregor (Re), 2019 ONCA 835

DATE: 20191021

DOCKET: C66362

Feldman, Trotter and Zarnett JJ.A.

IN THE MATTER OF: Romeo McGregor

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant Romeo McGregor

Erica Whitford, for the respondent Crown

Janice Blackburn, for the Person in Charge of St.
    Josephs Healthcare Hamilton

Heard and released orally: October 16, 2019

On appeal from the disposition of the Ontario Review Board
    dated November 29, 2018, with reasons dated December 17, 2018.

REASONS FOR DECISION

[1]

The appellants position, put succinctly by Ms. Szigeti, is that the
    reasons of the Board fell into the error identified by this court in its most
    recent Board appeal decision in
Abdulle (Re)
, 2019 ONCA 812, at para.
    8, where the court stated:

It is incorrect to conflate the risk of relapse in mental
    illness with the risk to public safety:
Hammoud (Re)
, 2018 ONCA 317, at
    para. 9. The requirement to read the reasons and record as a whole does not
    overcome this improper conflation. If the appellant is to be detained, there
    must be specific findings that he would be at risk of committing serious crimes
    that would pose a danger to the public upon his release. The Board did not make
    those findings in its reasons.

[2]

The appellant submits that the reasons of the Board on the issue of
    significant risk conflate significant risk of relapse with significant risk of
    reoffending and therefore significant risk to the public. Counsel refers us to
    para. 28 of the reasons of the Board which state:

Having heard and considered all the evidence and the
    submissions from all the parties, the Board found Mr. McGregor remains a
    significant threat to the safety of the public. We make this finding on the
    basis of the evidence of Dr. Adams and the Hospital Report that indicates he
    suffers from a major mental illness and diagnoses of Substance-induced Psychosis
    (currently in remission), Antisocial Personality Disorder, Alcohol Use Disorder
    and Cannabis Use Disorder. Mr. McGregors history indicates he has a long
    history of criminal and antisocial behaviour as set out in the Hospital Report
    (page 11). This record indicates a high degree of antisocial behaviour which
    has given rise to assessment of risk profiles indicating the level of risk Mr.
    McGregor poses to public safety. This is especially true as noted by Dr. Adams
    if he continues to abuse substances, notably, alcohol and cannabis.

[3]

We do not accept the appellants submission. We are satisfied that Dr.
    Adams was clear in her evidence that the serious index offence of sexual
    assault was caused by the appellants psychosis which was fueled by substance
    abuse; and because, when given the opportunity in the community in the year
    leading up to the Board hearing he did abuse substances, he has a high risk of
    relapse into psychosis and a high risk that he could then reoffend. His history
    of acting out violently, although not demonstrated in the last three years,
    substantiates that risk analysis, as do his actuarial test scores, which
    indicate a high risk to offend. The Board accepted Dr. Adams evidence, as it
    was entitled to do.

[4]

The appellant also appeals on the basis that the Board failed to give
    sufficient reasons for failing to grant a conditional discharge. In our view
    the Board accepted Dr. Adams opinion that the
Mental Health Act
R.S.O.
    1990, C.M.7 provisions would not be adequate to protect the public in the event
    the appellant abused substances in the community, and therefore release on
    conditions was not an appropriate disposition. See para. 12 of the reasons.

[5]

We see no error in the Boards conclusion or its reasons. The appeal is
    therefore dismissed.

K.
    Feldman J.A.

G.T.
    Trotter J.A.

B.
    Zarnett J.A.