COURT OF APPEAL FOR ONTARIO

CITATION: Morreale v. Romanino, 2017 ONCA 359

DATE: 20170503

DOCKET: C62280

Strathy C.J.O., Gillese and Pardu JJ.A.

BETWEEN

Giustina Morreale

Plaintiff (Appellant)

and

Elisabeth Romanino

Defendant (Respondent)

Maurice W. Pilon, for the appellant

Nick A. Porco, for the respondent

Heard: April 20, 2017

On appeal from the order of Justice Cory A. Gilmore of
    the Superior Court of Justice, dated May 25, 2016, with reasons reported at
    2016 ONSC 3427.

Gillese J.A.:

[1]

Did a daughter exert undue influence over her parents, which resulted in
    them making an
inter vivos

gift to her of the bulk of their
    assets?  That question lies at the heart of this case.

BACKGROUND IN BRIEF

[2]

Nicola Ruccia and Lavina Ruccia had two children: daughters Giustina
    Morreale (the appellant) and Elisabeth Romanino (the respondent).  At the
    time of trial, the appellant was 64 years of age and the respondent was 59.

[3]

The appellant left her parents home when she was 20, to get married.
    The appellant always had a good relationship with her parents but there was a
    falling-out between Mr. Ruccia and the appellants husband in 2003.  After
    that, Mr. Ruccia never saw or spoke to the appellants husband again, until at
    his bedside on the evening of his death.

[4]

The respondent lived with her parents all of her life, even after she
    married in 2003.  She cared for them and this caregiving increased as the
    Ruccias aged.

[5]

In 1995, the Ruccias executed mirror wills, leaving everything to one
    another on death.  The wills provided that when the survivor died, two-thirds of
    the Ruccias interest in a property on Beck Drive was to go to the respondent
    (who already had a one-third interest in the property) and one-third was to go
    to the appellant.  The residue of the Ruccias estate was to be divided equally
    between their two daughters.

[6]

Mr. Ruccia was diagnosed with cancer in 2008 and his health began to
    fail.  The respondent and her husband cared for him at home.  He required
    considerable care in the months preceding his death.  He died on March 5, 2009,
    and Mrs. Ruccia passed away a few months later on October 19, 2009.

[7]

Following the Ruccias deaths, the appellant learned that her parents
    had made an
inter vivos

gift of their only significant capital asset
    to her sister, the respondent.  That asset was their equity in a property on Beck
    Drive in which they had lived, together with the respondent and her husband.

[8]

The Ruccias did not have an interest in the Beck Drive property at the
    time of their deaths because it had been sold in 2006.  Prior to its sale,
    title to the Beck Drive property was joint, with the Ruccias owning a two-thirds
    interest and the respondent owning a one-third interest.

[9]

When the Beck Drive property was sold, the Ruccias had equity of approximately
    $162,000 in it.  That money was used towards the purchase of a property on
    Russell Stover Court.  The Ruccias continued to live with the respondent and
    her husband, at the Russell Stover property, until their deaths.  Title to the
    Russell Stover property was taken in the joint names of the respondent and her
    husband alone  the Ruccias were not on title.

[10]

There was no evidence that the Ruccias received independent legal advice
    on the sale of the Beck Drive property or the purchase of the Russell Stover
    property.  The same lawyer acted for both the Ruccias on the one hand and for the
    respondent and her husband on the other, on the sale of the Beck Drive property
    and the purchase of the Russell Stover property.

[11]

The appellant started this proceeding in which she alleged, among other
    things, that the gift of the Ruccias equity in the Beck Drive property to the
    respondent was the result of undue influence.  By the time of trial, this was
    the sole issue to be determined.

[12]

Following trial, the action was dismissed.

[13]

The trial judge referred to the relevant legal principles in
Geffen
    v. Goodman Estate
, [1991] 2 S.C.R. 353, noting that the equitable doctrine
    of undue influence was developed not to save people from the consequences of
    their own folly but to save them from being victimized by other people.  She
    also observed that, while it is natural to presume that influence will exist in
    a relationship in which trust and confidence is reposed in the donee by the
    donor, the factual underpinning of the process leading up to the gift must be
    examined in the context of equity protecting the weak or momentarily weak, not
    from bad bargains, but from the abuse of trust, confidence or power.

[14]

The trial judge found that the circumstances and the respondents
    relationship with her parents had the capacity to create undue influence.
    However, she found that the presumption of undue influence did not arise
    because it was not possible to find any specific act of coercion or domination
    that would lead to a presumption of undue influence.

[15]

The trial judge further concluded that even if the presumption did
    arise, based on her findings of fact, the presumption was rebutted.

THE ISSUES

[16]

On appeal, the appellant submits that the trial judge erred in:

1. concluding that the
    presumption of undue influence did not arise because she found no specific act
    of domination or coercion on the part of the respondent; and

2. giving an inadequate analysis
    of why, if the presumption did arise, it had been rebutted.

ANALYSIS

[17]

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

[18]

Before addressing the specific issues that are raised, I make the
    following general observation.  The trial judge canvassed the relevant legal principles
    and thoroughly reviewed the evidence.  She made numerous factual findings, all
    of which were solidly grounded in the evidence.  Appellate deference is owed to
    the factual findings of the trial judge  it is not for this court to retry the
    case or substitute its view of the evidence for that of the trial judge, absent
    palpable and overriding error:
Omcon Investments Limited v. 1100828 Ontario
    Limited
, 2012 ONCA 154, at para. 2.

1.       The Presumption of
    Undue Influence Did not Arise

[19]

At para. 73 of her reasons, the trial judge stated:

I find that in these circumstances, and despite the special
    relationship that existed, it is not possible to find any specific act of
    coercion or domination that would lead to a presumption of undue influence.

[20]

The appellant points to this sentence and submits that it demonstrates
    an error in law on the part of the trial judge because there is no need for a
    finding of a specific act of coercion or domination in order for the
    presumption to arise.

[21]

I agree.  In this regard it is important to distinguish between the
    presumption of undue influence and actual undue influence.  In this case, the
    trial judge was addressing the question of whether the presumption of undue
    influence arose, not whether there had been undue influence exerted by the
    respondent over her parents.  There is no need for a finding of a specific act
    of coercion or dominion in order for the presumption to arise. Whether a
    persons free will was overborne by an act of coercion or fraud is a question
    of actual undue influence:
Keljanovic Estate v. Sanseverino

(2000),
    186 D.L.R. (4th) 481 (Ont. C.A.), at para. 61.

[22]

In the case of voluntary gifts, whether the presumption of undue
    influence arises begins with an examination of the relationship between the parties
    and the first question to be addressed, in all cases, is whether the potential
    for domination inheres in the nature of the relationship itself:
Geffen
,
    at p. 378.  This test embraces those relationships that equity has already
    recognized as giving rise to the presumption, including parent and child:
Geffen
,
    at p. 378.

[23]

However, while the test embraces relationships that have been recognized
    as giving rise to the presumption, it is not enough to simply show that such a
    relationship exists.  Even for such relationships, the presumption does not
    arise unless it has been established that there is the potential for one person
    to dominate the will of another.  The test requires the trial judge to consider
    the whole of the relationship between the parties to see if there is the
    potential for domination, rather than looking for a specific act of coercion or
    domination.

[24]

Despite the impugned statement, in light of the trial judges findings, I
    would not interfere with the trial judges determination that the presumption
    did not arise in this case.  Far from the respondent having the potential to dominate
    the will of her parents, the trial judge saw Mr. Ruccia as the dominant party
    in the financial transactions between the Ruccias and the respondent.

[25]

The trial judge was very aware of the family dynamic.  She recognized
    that the respondent lived with her parents all of her life and that, as the
    Ruccias aged, they became more and more dependent on the respondent and, eventually,
    her husband as well.  However, the trial judge found that Mr. Ruccia told the
    appellant that she would receive less from their estate than would her sister
    and that he wanted to ensure that her husband would get no money from his
    estate.  And, importantly, the trial judge found that Mr. Ruccia was a
    strong-willed individual who made all the financial decisions as between him
    and his wife and that he was so meticulous in respect of his personal financial
    affairs that he required the respondent  to provide him with receipts for all
    bank transactions that she performed on his behalf.

[26]

Given that Mr. Ruccias mental capacity was not in issue and in light of
    the trial judges findings as to the strength of his will in all things,
    including those financial, the trial judge made no error in concluding that the
    presumption of undue influence did not arise in this case.

2.       If the Presumption Arose, It Had Been Rebutted

[27]

After explaining why she found that the presumption of undue influence
    did not arise, the trial judge stated that if she were wrong and the
    presumption did arise, based on her findings, she would find that the
    presumption had been rebutted.  The appellant submits that this was an
    inadequate analysis on the part of the trial judge.

[28]

Counsel for the appellant makes two specific complaints.  First, he says
    that the trial judge erred in relying on Mr. Ruccias strong personality as a
    ground for finding that the presumption had been rebutted.  He contends that
    just because Mr. Ruccia had a strong personality, it did not mean that Mr.
    Ruccia understood the nature and consequences of his financial decisions.
    Second, he submits that, as the Ruccias did not have independent legal advice
    during the real estate transactions involving the Beck Drive and Russell Stover
    properties, the trial judge should have drawn an adverse inference from the
    respondents failure to call as a witness the lawyer who acted on those
    transactions.

[29]

I do not agree.

[30]

In finding that the presumption had been rebutted, the trial judge did
    not place undue reliance on Mr. Ruccias strong personality.  It is correct
    that the trial judge took into consideration the undisputed evidence that Mr.
    Ruccia was a strong-willed man to the very end, who played a dominant role in
    the family.  As I have explained, that consideration is relevant to the
    question of whether the presumption of undue influence arose because it speaks
    to the issue of the potential for domination.  However, it is also relevant to
    whether the presumption was rebutted, if found to have arisen.

[31]

In any event, the trial judge also made findings in respect of Mr.
    Ruccias approach to financial matters.  It was undisputed that Mr. Ruccia was
    acutely aware of his financial affairs and that, as between him and his wife,
    he was in charge of all financial matters and made all financial decisions.
    The trial judge alluded to these findings and, as I have already explained, she
    specifically found that Mr. Ruccia was meticulous in overseeing his personal
    financial affairs.  The trial judge further found that Mr. Ruccia carefully
    reviewed his monthly statements.  Additionally, as the trial judge noted, Mr.
    Ruccia was of sound mind throughout his life.

[32]

In the circumstances, I see nothing inadequate in the trial judges
    analysis, which included her consideration of Mr. Ruccias nature and personality.

[33]

I also reject the appellants contention that the trial judges analysis
    fell short because she failed to draw an adverse inference from the
    respondents failure to call the lawyer who acted for the Ruccias and the
    respondent on the sale of the Beck Drive property and the purchase of the
    Russell Stover property. In my view, this contention cannot stand in light of
    the fact that independent legal advice is not required in order to rebut the
    presumption of undue influence:
Bank of Montreal v. Duguid

(2000),
    47 O.R. (3d) 737 (C.A.), at paras. 26-27.

DISPOSITION

[34]

For these reasons, I would
    dismiss the appeal with costs to the respondent fixed at $6,000, all inclusive.

Released: G.R.S. May 4, 2017

Eileen
    E. Gillese J.A.

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

I
    agree. G. Pardu J.A


COURT OF APPEAL FOR ONTARIO

CITATION: OrthoArm Incorporated v. GAC International LLC,
    2017 ONCA 418

DATE: 20170524

DOCKET: C60969

MacFarland, van Rensburg and Huscroft JJ.A
.

BETWEEN

OrthoArm Incorporated

Plaintiff (Appellant)

and

GAC International, LLC

Defendant (Respondent)

Andrea J. Sanche and Daniella Murynka, for the appellant

J. Alan Aucoin and Ankita Kapur, for the respondent

Heard: February 13, 2017

On appeal from the judgment of Justice Wendy M. Matheson
    of the Superior Court of Justice, dated August 13, 2015, with reasons reported
    at 2015 ONSC 5097, and from the costs order, dated October 23, 2015, with
    reasons reported at 2015 ONSC 6539.

van Rensburg J.A.:

[1]

The appellant commenced an action against the respondent for damages and
    other relief for breach of a licensing agreement. The action went to trial. The
    principal issue, which was decided against the appellant, was whether the
    respondent infringed the appellants patent in respect of an orthodontic
    bracket. The issue in this appeal is whether the trial judge made a reversible
    error in dismissing the appellants action, and in awarding costs in favour of
    the respondent. I conclude that there was no such error, and therefore would
    dismiss the appeal.

A.

Facts

[2]

The background to the action is set out in detail in the comprehensive
    reasons of the trial judge. It is sufficient for the purpose of the appeal to
    provide only the following brief outline.

[3]

The principal of the appellant, OrthoArm Incorporated (OrthoArm),
    invented a type of orthodontic bracket. The bracket is self-ligating, which
    means that it is self-locking, using clips rather than elastic bands to trap
    the archwire (the wire conforming to the dental arch in a patients mouth).
    There are many types of self-ligating brackets. OrthoArms bracket is covered
    by U.S. Patent No. 5,630,715 (the 715 Patent).

[4]

In 1997, OrthoArm licensed the worldwide rights to manufacture, use,
    market, and sell products covered by the 715 Patent to the respondent GAC
    International, LLC (GAC). Under the agreement, OrthoArm was entitled to receive
    a license fee based on net sales of such products (the License Agreement).
    The License Agreement governed the parties relationship regarding the OrthoArm
    brackets until the 715 Patent expired on May 20, 2014.

[5]

In 2007, GAC began to market and sell orthodontic brackets it had
    developed with a third party manufacturer, without accounting to OrthoArm for
    profits under the License Agreement. OrthoArm alleged that these brackets (the
    Accused Products) were an extension of its original invention and were covered
    by the 715 Patent. GAC denied the allegation, and claimed that the Accused
    Products were developed by the third party in accordance with its own U.S.
    patent. OrthoArm commenced an action against GAC for breach of the License
    Agreement and to recover unpaid royalties and other damages.

B.

Trial Decision

[6]

The issue at trial was whether the Accused Products were covered by the
    715 Patent and therefore infringed OrthoArms patent. Because the 715 Patent is
    a U.S. patent, the trial proceeded on the basis of American patent law.

[7]

The first task for the trial judge was to determine the applicable U.S.
    patent law, as a question of fact. The trial judges second task was to
    construe the claims, which define the limits of the patent, to determine their
    meaning. Next, she had to undertake an infringement analysis and determine
    whether all of the elements of each of the patent claims contained in the 715
    Patent were present in the Accused Products. If even one element of a claim is
    not found in an Accused Product, the product does not infringe the patent
    claim. Finally, if she found infringement of the 715 Patent, the trial judge
    was to determine damages and other relief.

[8]

Two expert witnesses, both U.S. patent attorneys, provided evidence
    about U.S. patent law, including the principles of construction of patent
    claims. They also testified about the construction of the particular claims in
    the 715 Patent. This evidence was in the nature of submissions they would make
    to a U.S. judge if they were counsel appearing at a Markman hearing (the
    first step in a U.S. patent infringement action when the judge hears evidence
    and submissions and construes the claims at issue as a matter of law, before
    the issue of infringement goes to the trier of fact).

[9]

GAC argued at trial that four elements of nine claims in the 715
    Patent were not found in the Accused Products. The trial judge rejected GACs arguments
    on the first three elements, however she accepted the argument that the fourth
    element  a slidable locking shutter  was not present in the Accused
    Products.

[10]

The wording that the trial judge had to construe describes the shutter
    in the orthodontic bracket that locks the archwire. The trial judge focussed on
    the wording of claim 1, which provides as follows:

A twin edgewise orthodontic bracket for attaching an archwire
    to a tooth comprising:
a slidable locking shutter movable between open and
    closed positions having a guide bar slidably received in said occlusal-gingival
    opening,
a locking body for engaging said locking recess without covering
    the labial or lingual faces of the sets of occlusal and gingival tie wings when
    in closed position, and
an extension arm connecting said guide bar to said
    locking body and movable between said sets of tie wings, wherein said locking
    shutter is slidably mounted on said bracket between open and closed positions.
[Emphasis
    added.]

[11]

Although the trial judge focused her analysis on the language
    contained in claim 1, she noted that every claim in the 715 Patent contains
    language identical or similar to the requirement of a slidable locking shutter
    movable between open and closed positions wherein said locking shutter is
    slidably mounted on said bracket between open and closed positions.

[12]

The trial judge interpreted slidable locking shutter to mean that the
    shutter must
only
slide in moving between the open and closed
    positions to trap the wire.
She concluded that
    the term slidable, and its variations used in the claims, are all connected
    with the movement of a locking shutter that has a guide bar that is slidably
    received in the occlusal-gingival (bite-gum) opening of the bracket.
The
    trial judge stated at para. 60:

The ordinary, common sense construction of this aspect of the
    claims, as used in the claims and in the specification, requires a sliding
    motion from the open position to the closed position, not just for part of the
    movement between the open to the closed position. In the phrase slidable
    locking shutter movable between open and closed positions, the word slidable
    ordinarily relates to the word movable. There are numerous other references
    in the claims and specification to the slidable motion. For example, claims
    also refer to the locking shutter being slidably mounted on said bracket
    between open and closed positions, and a locking means slidably carried by
    the bracket member between open and closed positions and said locking means
    being slidable between open and closed positions,. The other words used, and
    the figures, are consistent with the conclusion that the sliding motion must
    take the locking shutter from the open to the closed position and back again.
    The only thing in the claims, or the entire patent for that matter, that gives
    the locking shutter the ability to slide between the open and closed positions,
    is the guide bar sliding in the occlusal-gingival opening.

[13]

The trial judge applied this construction of the claims in the 715
    Patent to the Accused Products. She found that there is a small sliding action
    when the locking shutter is moved in the Accused Products within the
    occlusal-gingival opening but, for the most part, the locking shutter moves
    from open to closed position and back through a rotating motion (at para. 61).
    The trial judge rejected the appellants argument that the locking shutter
    movement need not be entirely a sliding motion, and could include rotational
    movement. She concluded that, since all of the claims in the 715 Patent include
    the slidable locking shutter element, the Accused Products do not infringe
    any of the claims, and she therefore dismissed the appellants action.

[14]

The trial judge awarded costs against the appellant of $300,000 for fees
    and $90,000 for disbursements, plus HST.

C.

Issue on Appeal

[15]

There is no question as to the correctness of the trial judges
    statement of the applicable legal principles. The parties agreed on the
    relevant U.S. patent law principles, including the principles of patent
    interpretation. The appellant, however, asserts that the trial judge erred in
    the application of these principles in construing the claims in the 715 Patent,
    and therefore in her conclusion that the Accused Products did not infringe the claims.

[16]

The appellant contends that the trial judge erred in concluding that the
    patent claims required a slidable locking shutter that may
only
be
    moved from open to closed positions and back again by way of a sliding motion.
    The appellant says that, when properly construed, nine of the claims in the 715
    Patent cover the Accused Products, which has a locking shutter that both slides
    and rotates.  Therefore, the question before this court is whether a bracket
    that contains a locking shutter with a slight amount of sliding followed by
    rotation on a pivot point infringes the appellants patent.

[17]

OrthoArm also requests leave to appeal the trial judges costs award.

D.

Discussion

[18]

The standard of review is correctness, as the construction of patent
    claims is a question of law:
Mylan Pharmaceuticals ULC v. AstraZeneca
    Canada Inc.
, 2012 FCA 109, 101 C.P.R. (4th) 275, at para. 20. However, the
    evidentiary assessments that trial judges make in reaching conclusions on the
    construction of the patent are entitled to deference:
Mylan Pharmaceuticals
,
    at para. 20. The issue on appeal concerns only the trial judges construction
    of the claims in the 715 Patent. No one challenges the trial judges factual
    finding that the Accused Products locking shutter slides slightly but, for the
    most part, moves between the open and closed positions through a rotating
    motion. Accordingly, the standard of review on this appeal is correctness.

[19]

The appellants principal argument is that the trial judge erred in not
    applying the plain and ordinary meanings of the words slidable, movable and
    between when she interpreted a slidable locking shutter movable between open
    and closed positions to mean a locking shutter slidably movable from the open
    to the closed position and back again. The appellant says that movable
    between open and closed positions is properly construed as meaning the locking
    shutter must be capable of moving between the open and closed positions,
    whether through a sliding or rotating movement, or both. The appellant argues
    that the trial judges construction of the claims erroneously gave the words movable
    and between narrow meanings and imported limitations not found in the claims.

[20]

The appellants other arguments, which will also be addressed below,
    were either referred to in the appellants factum and not expanded upon in oral
    argument, or raised briefly in oral argument.

(1)

Meaning of Movable, Slidable and Between

[21]

First, the appellant says that the trial judge erred in equating the
    word movable with slidable and in failing to give these words their common,
    ordinary and distinct meanings. The appellant says that the word movable is
    broader than slidable, and describes various motions, including both sliding
    and rotating. The appellant points to the different dictionary meanings of the
    adjectives slidable, meaning able to slide or be slid, and movable, meaning
    capable of being moved, and asserts that movable cannot mean movable only
    by sliding. Rather, the term movable captures both a sliding and a rotating
    motion.

[22]

The appellant also takes issue with the trial judges interpretation of
    the words between open and closed positions as meaning from open to the closed
    position and back again. The appellant says that the trial judge erred by concluding
    that the sliding motion must take the locking shutter
from
the open
to
the closed position. The appellant submits that the word between describes a
    spatial movement that is more flexible than from/to and leaves room for
    variations in movement when the locking shutter is opened and closed. The
    appellant refers to the dictionary meaning of between as at, into or across
    the space separating [two objects, places or points] and says that, if the
    locking shutter is movable between the two positions, it is simply movable at,
    into or across the space separating the open and closed positions. In other
    words, it need not be slidable across the entire space, from one position to
    the other, but slidable at some point between those positions.

[23]

The respondent asserts that the appellant is advocating interpretations
    of the words slidable, movable and between that are divorced from the specification
     which is the entirety of the patent, including the text and figures of the
    patent claims  by relying on dictionary definitions, a form of extrinsic
    evidence. The term slidable and its variations all refer to the movement of a
    locking shutter that is connected to a guide bar that is slidably received in
    the occlusal-gingival opening of the bracket, and moves between the open and
    closed positions.

[24]

Further, the respondent contends that the appellant did not rely on
    dictionary meanings of words in the claim at first instance and, in any event, it
    was unnecessary for the trial judge to consider this extrinsic evidence because
    the plain meaning can be derived from the intrinsic evidence in the
    specification.

[25]

I agree with the respondents submissions. It is not sufficient to
    simply look at the words slidable, movable and between in isolation or in
    the abstract. The words must be considered within the context, which is the
    specification:
Phillips v. AWH Corp.
415 F. 3d 1303 (Fed. Cir. 2005,
en
    banc
). In
Retractable Technologies, Inc. v. Becton, Dickinson and
Company,
    653 F. 3d 1296 (Fed. Cir. 2011), at p. 1305, cited by the trial judge here, the
    U.S. Court of Appeals for the Federal Circuit exhorted that the court must
    strive to capture the scope of the actual invention, rather than strictly
    limit the scope of claims to disclosed embodiments or allow the claim language
    to become divorced from what the specification conveys is the invention. In
    this case, it is unnecessary to resort to dictionary meanings, particularly because
    doing so isolates the words in question and gives them a meaning divorced from
    the context of the claims within the specification.

[26]

The trial judge did not ignore the fact that slidable and movable
    are two different words with different meanings. Nor did she interpret the word
    movable too narrowly. Rather, she interpreted the terms in the context of the
    specification. She looked at how the terms were employed together in claim 1,
    as well as in the other claims that were part of the specification, noting that
    the claims also referred to the locking shutter being slidably mounted on said
    bracket between open and closed positions and a locking means slidably
    carried by the bracket member between open and closed positions.

[27]

The term between, in the context in which it is used, means from a
    point to a point. The trial judge correctly concluded that the words and the
    figures were consistent with the conclusion that the sliding motion must take
    the locking shutter from the open to the closed position and back again. She
    observed that the only thing that gives the locking shutter the ability to
    slide between the open and closed positions is the guide bar sliding in the
    occlusal-gingival opening. In this context, between does carry the meaning of
    from and to, and does not reasonably carry the alternative meaning argued by
    the appellant of at, into or across.

[28]

The trial judge interpreted the claims language to capture the scope of
    the actual invention. I see no error here and agree with the trial judges
    analysis.

(2)

Consideration of Figures 38 and 39

[29]

The appellant asserts that the trial judge, in construing the claims in
    the 715 Patent, failed to consider or give effect to the intrinsic evidence in
    the specification. In particular, the trial judge ignored figures 38 and 39,
    which depict an embodiment of the 715 Patent with a locking shutter that both
    slides and rotates.

[30]

The figures cannot, however, be considered without their corresponding description,
    which is included in the specification. The description states, [a]ccordingly,
    the guide arm is slidably received in the opening to permit occlusogingival
    movement of the closure member. The description does not refer to the
    rotational movement that the appellant contends is apparent in the figures.

[31]

As such, figures 38 and 39 offer no assistance in construing what is
    meant by a slidable locking shutter movable between open and closed
    positions.

(3)

Reference to CAD Drawings

[32]

Third, the appellant contends that the trial judge erred in analyzing
    the computer-aided design (CAD) drawings of the Accused Products, which were
    excerpted in her reasons, rather than by reference to the Accused Products themselves
    in determining whether the Accused Product infringed the claims of the 715
    Patent. The CAD drawings, which are static, exaggerate the rotational movement
    of the locking shutter and minimize the sliding movements. Such evidence, which
    is extrinsic, may only be used to assist the court to understand a claim; it
    cannot vary or contradict the language of the claim itself. The appellant
    further contends that the trial judge erroneously relied on the CAD drawings to
    vary the claim language to require that the locking shutter only slide from the
    open to the closed positions.

[33]

I am not persuaded by this argument. The Accused Products are very small.
    The parties provided the court with enlarged models of the Accused Products,
    which were referred to by the witnesses and examined by the trial judge. The
    CAD drawings were provided as part of the respondents expert report and
    referred to in argument. There is nothing in the trial judges reasons to
    suggest that she used the CAD drawings of the Accused Products to determine the
    movement of the Accused Products, or to construe or vary the claim language.
    The CAD drawings appear in her reasons following her analysis construing the
    claims, and only as an illustration.

(4)

Improvement on the Claims of the 715 Patent

[34]

Next, the appellant says that the trial judge failed to consider whether
    the Accused Products were an improvement on the claims of Patent 715, in
    which case they would violate the patent. The appellant says that the
    additional rotational movement of the locking shutter is an improvement on the
    necessary sliding function of the shutter.

[35]

There is no merit to this contention, which was not pressed in oral
    argument. The 715 Patent is not for a self-ligating orthodontic bracket, but
    only for a certain type of self-ligating bracket with an engagement mechanism
    a locking shutter  for retaining wire, as defined in the patent. The Accused
    Products utilize a different type of engagement mechanism than the one covered
    by the 715 Patent. The Accused Products are a rotating bracket, not a better
    type of slidable bracket.

(5)

Failure to Consider All Nine Claims

[36]

The appellant asserted in oral argument (but not in its factum) that the
    trial judge erred by failing to consider each of the nine claims alleged to
    have been infringed by the respondent. The appellant submits that some of the
    claims did not contain the same language as claim 1, and that the trial judge
    needed to construe each of the other claims and determine whether they were
    infringed, even though the respondent succeeded in respect of claim 1.

[37]

I note that the trial (and the appeal for that matter) proceeded on the
    basis that each of the nine claims contains similar language as in claim 1, and
    that the construction issue was whether the words describing the locking shutter
    were meant to describe only a sliding movement, or whether rotational movement
    was included.

[38]

In any event, the appellant did not explain how, if the trial judge was
    correct in her construction of claim 1 and her conclusion that the Accused
    Products did not infringe that claim, she might have arrived at a different
    interpretation and conclusion with respect to any of the remaining eight
    claims.

[39]

There is no merit to this argument.

E.

Costs

[40]

The appellant says that the costs awarded to the respondent were
    disproportionate for a trial that lasted only four days, where such costs
    greatly exceeded its own partial indemnity costs. The appellant also says that
    the trial judge erred in not taking into account its success in resisting three
    of the four defences raised by the respondent, and reducing the amount of costs
    awarded to the respondent accordingly.

[41]

The trial judges reasons demonstrate that she considered and applied
    the relevant factors under rule 57.01 of the
Rules of Civil Procedure,
R.R.O.
    1990, Reg. 194. She addressed the appellants concern about proportionality
    when she awarded the respondent less than 65% of its claim for partial
    indemnity costs. She took this into consideration, stating that GACs bill of
    costs in comparison to OrthoArms, for a four day trial, is the most
    significant factor justifying a substantial decrease in the amount sought (at para.
    20).

[42]

As for the appellants contention that this was a case of divided
    success, and warranted a reduction in the costs awarded to the respondent, I disagree.
    The respondent was entirely successful in the proceedings. It would have been
    an error for the trial judge to focus on individual issues in the litigation
    and to disregard the overall success achieved by the respondent:
W
esbell
    Networks Inc. v. Bell Canada
, 2015 ONCA 33, [2015] O.J. No. 279, at
    paras. 20-21.

[43]

Eastern Power Ltd. v. Ontario Electricity Financial Corp
., 2012
    ONCA 366, [2012] O.J. No. 2414, a case relied on by the appellant, does not
    contradict this general principle. In
Eastern Power
, this court
    allowed an appeal of the dismissal of a number of claims at trial, with the
    result that a new trial was ordered but only on one of the claims that was
    worth a relatively small part of the amount originally claimed. The court recognized
    that when a party succeeds on appeal, that success ordinarily must be imputed
    as success at trial (at para. 16). However, the court concluded that on the
    particular facts of this case, [the appellants] success on appeal does not
    transform it into the successful party at trial (at para. 16). This court
    confirmed the general rule against distributive costs awards, but reduced the
    trial costs in part to reflect the success on the one issue on appeal. There
    are no similarities between that case and the present, which would warrant any
    reduction in the respondents trial costs, nor does
Eastern Power

establish
    any general rule that would assist the appellant.

[44]

Neither argument presents strong grounds upon which [this court] could
    find that the judge erred in exercising [her] discretion:
Brad-Jay
    Investments Ltd. v. Szijarto
(2006), 218 O.A.C. 315 (C.A.), at para. 21.
    Accordingly, leave to appeal costs is refused.

F.

Disposition

[45]

For these reasons, I would dismiss the appeal, with costs to the respondent
    fixed at $25,000, inclusive of HST and disbursements.

Released: (KVR) May 24, 2017

K. van Rensburg J.A.

I agree. J. MacFarland J.A.

I agree. Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Parsons v. Komer, 2017 ONCA 407

DATE: 20170523

DOCKET: C60992

Gillese, Benotto and Roberts JJ.A.

IN THE MATTER OF an application under subsection 32(1) of the
Health
    Care Consent Act, 1996
, S.O. 1996, c. 2, Schedule A, as amended.

AND IN THE MATTER OF Stephen Parsons A patient at the Waypoint
    Centre for Mental Health Care  Provincial Penetanguishene, Ontario

BETWEEN

Stephen Parsons

Applicant (Appellant)

and

Dr. B. Komer

Respondent (Respondent)

Thomas Whillier, for the appellant

James P. Thomson, for the respondent

Heard: November 23, 2016

On appeal from the order of Justice Mary E. Vallee of the Superior
    Court of Justice, dated August 18, 2015, dismissing an appeal from the order of
    the Consent and Capacity Board, dated March 12, 2015.

Benotto J.A.:

[1]

The Consent and Capacity Board found Stephen Parsons incapable of
    consenting to treatment with antipsychotics and mood stabilizers. He argued on
    appeal to the Superior Court of Justice that the Board had erred and also
    infringed his right to procedural fairness because the Board failed to follow
    its own procedural guidelines. The appeal judge dismissed his appeal. Mr.
    Parsons again submits -now before this court - that the Board did not follow
    its own guidelines and thus infringed his right to procedural fairness

[2]

I do not agree. The Boards guidelines provide for a preliminary
    mini-inquiry when the subject of an application refuses to obtain legal
    representation.  Mr. Parsons did not refuse to obtain legal representation. No
    further inquiry was necessary.  Mr. Parsons was not denied legal representation
    and his rights to procedural fairness were not infringed.

A.

facts

(1)

Background

[3]

On November 30, 2013, Mr. Parsons was charged with possession of a
    weapon for a dangerous purpose. On January 16, 2015, he was found not
    criminally responsible due to a mental disorder. He was detained at the
    Waypoint Centre for Mental Health Care in Penetanguishene. On January 27, 2015,
    Dr. Komer found Mr. Parsons incapable of consenting to treatment. Mr. Parsons
    appealed the finding to the Board.

(2)

Attendances before the Board

[4]

A hearing before the Board was scheduled for February 3, 2015. Mr.
    Parsons attended. He was self-represented. A Patient's Rights Advisor suggested
    to Mr. Parsons that he request an adjournment to arrange for counsel. Mr.
    Parsons did so. The Board Chair asked him if he wanted to have counsel
    appointed for him. He said that he would prefer to obtain his own counsel. The
    hearing was adjourned for fifteen days so that he could obtain counsel.

[5]

On February 18, 2015, the hearing resumed. Mr. Parsons attended without
    a lawyer. The following exchange took place:

Chair: And I see that you don't have a lawyer with you...

Parsons: I...

Chair: ... the last time you were before (sic) I granted you an
    adjournment so that you could retain a lawyer, so what's your intention today?

Parsons: I guess I'm going to have to continue with this. I
    talked to [the Patients Rights Advisor] and he filled out my legal aid
    application and he took the name down of the lawyer that I was to contact and
    he never filed the application or contacted the lawyer, so.

Chair: So are you prepared to represent yourself today?

Parsons: I am.

Chair: You seem prepared.

Parsons: To a point, yes I am actually prepared to represent
    myself, whether I'm actually going to succeed or even follow through in my
    efforts is unknown at this time.

Chair: Okay.

Parsons: But I'll try.

[6]

The hearing proceeded. The Chair explained the hearing process to Mr.
    Parsons: Dr. Komer would give evidence first, and then Mr. Parsons would have
    the chance to question him, as would the Board; Mr. Parsons would then have an
    opportunity to give evidence and state what his position was. The Board
    explained that the hearing would finish with final submissions from both Dr.
    Komer and Mr. Parsons, and that the Boards decision would be sent by fax to
    the hospital the next morning.

[7]

At the hearing, Dr. Komer testified
that Mr. Parsons suffered from a major mental illness requiring treatment with
    antipsychotic medications. He stated,

[I]ts clear that Mr. Parsons does have an illness, a mental
    condition, he lacks insight into that condition, although hes someone that
    does have the capacity in a general sense to understand what treatment can do
    for some, could understand, in general, that someone might have a condition
    like himself, might be delusional, but he doesnt have the ability to apply
    that to himself.

[8]

Dr. Komer also testified that Mr. Parsons did not want antipsychotic
    medications because they caused him dizziness, they had other side effects and
    he did not think he needed them.

[9]

The Chair invited Mr. Parsons to ask questions of Dr. Komer. Mr. Parsons
    did not ask a question, but instead made a long and incoherent speech. Once
    this was over, the Chair asked Mr. Parsons whether he had any more questions,
    and Mr. Parsons replied, [n]o, that's it, Your Honour. The Chair proceeded to
    question Dr. Komer. She then asked Mr. Parsons whether he had any more
    questions for the doctor. Mr. Parsons said he did not, but that he wished to
    make a statement. He gave another long speech.

[10]

The Chair then asked Mr. Parsons some questions and gave both Dr. Komer
    and Mr. Parsons the opportunity to make final submissions. Ultimately, in its
    decision released March 12, 2015, the Board upheld Dr. Komers finding that Mr.
    Parsons was incapable of consenting to treatment.

(3)

Appeal to the Superior Court

[11]

On appeal to the Superior Court, Mr. Parsons argued the evidence was
    insufficient to support the finding of treatment incapacity and the Board
    infringed his right to procedural fairness. The appeal judge  relying on the
    evidence of Dr. Komer and on Mr. Parsonss conduct  found that the Board did
    not err in its finding of incapacity.

[12]

The appeal judge then proceeded to consider Mr. Parsons submission that
    the Board had denied him procedural fairness. Mr. Parsons submitted that, on
    February 18, 2015, he did not say that he did not want a lawyer and, further,
    the Board failed to advise him that he could seek another adjournment to obtain
    counsel. He submitted that the Chair should have conducted an inquiry in
    accordance with the Boards own Policy Guideline. In the result, he was denied
    procedural fairness resulting in the Boards loss of jurisdiction.

[13]

The Boards Policy Guideline 2, dated September 1, 2007, deals with a self-represented
    person before the Board. It provides that the Board should act in accordance
    with principles aimed at assisting the self-represented person throughout the
    hearing. Paragraph 4 of Guideline 2 provides:

4.       The Board will strive to avoid adjournments as a
    general principle. When the subject of an application appears unrepresented,
    the panel of the Board hearing the application will decide whether or not to
    proceed without legal representation by conducting a preliminary mini-inquiry
    to establish:

(a)   Whether the subject of the application refuses to
    obtain legal representation at the time of the hearing; and if so

(b)   Whether
    the subject of the application has made an informed decision. The Board will
    not consider the objective wisdom of the choice once an informed choice has
    been made.

(c)   Whether
    the subject of the application does not want legal representation because he or
    she does not want to pay the fees for legal representation. [In which case,
    reference is made to Legal Aid]; and

(d)   Whether
    the subject of the application has already been granted adjournment(s) to
    obtain counsel.

[14]

The appeal judge concluded that the Chair did not specifically ask Mr.
    Parsons whether he was refusing to obtain legal representation; however, she
    noted that was not necessary because Mr. Parsons clearly indicated that he was
    prepared to represent himself.  In the result, no further inquiry was
    necessary. It would only have been required if Mr. Parsons stated that he
    refused to obtain representation. Accordingly, the appeal judge dismissed the
    appeal.

B.

Issues on Appeal

[15]

The only issue on appeal is whether the
    Board denied Mr. Parsons procedural fairness.
Mr. Parsons submits before
    this court that the appeal judge erred in concluding that he was not denied
    procedural fairness. He argues that the Board did not conduct a mini-inquiry in
    accordance with its Policy Guideline 2, and the Board should have advised Mr.
    Parsons that another adjournment was possible and that counsel or
amicus
    curiae
could be arranged for him.

C.

Analysis

[16]

The parties agree that the standard of review with respect to procedural
    fairness is correctness. Assuming that the parties are correct in their view,
    the issue before this court is whether the appeal judge correctly concluded
    that Board did not deny Mr. Parsons procedural fairness: Colleen M. Flood and
    Lorne Sossin,
Administrative Law in Context
, 2d ed. (Toronto: Emond
    Montgomery Publications, 2013), at p. 181; see also
Agraira v. Canada
    (Public Safety and Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R.
    559, at paras. 45-46.

[17]

The appeal judge reviewed the transcript from the Board hearing and
    concluded that Mr. Parsons said that he was prepared to represent himself. This
    question was put to Mr. Parsons directly:

Chair: So are you prepared to represent yourself today?

Parsons: I am.

[18]

The record demonstrates that Mr. Parsons was prepared to represent
    himself. I agree with the appeal judge that in the circumstances, it was not
    necessary for the Board to specifically ask whether Mr. Parsons was refusing to
    obtain legal representation because he clearly indicated to the Board that he
    was prepared to represent himself.

[19]

The record does not suggest that Mr. Parsons refused to obtain legal
    representation. Refusing to obtain legal representation is a pre-condition to proceeding
    with the mini-inquiry set out in Policy Guideline 2, which states that:

The Board will strive to avoid adjournments as a general
    principle. When the subject of an application appears unrepresented, the panel
    of the Board hearing the application will decide whether or not to proceed
    without legal representation by conducting a preliminary mini-inquiry to
    establish:

(a)

Whether the subject of the
    application refuses to obtain legal representation at the time of the hearing;
and if so

[Emphasis added.]

[20]

The words if so make it clear that the panel of the Board is only to
    proceed with the balance of the mini-inquiry if the subject refuses to obtain
    legal representation. As I have explained, Mr. Parsons did not refuse to obtain
    legal representation. It therefore follows that the Boards was not required to
    continue with the mini-inquiry.

[21]

I note the appeal judge acknowledged that, but for the finding that Mr.
    Parsons did not refuse to obtain legal counsel, a further inquiry would have
    been necessary. I would agree that this is the correct approach.

[22]

It is also significant to recall the context in this case: one
    adjournment had already been granted. The Boards guidelines require it to
    strive to avoid adjournments as a general principle. Also, the Board Chair
    explained the hearing process to Mr. Parsons and afforded Mr. Parsons several
    opportunities to ask questions; and Mr. Parsons was able to question Dr. Komer
    and make submissions.

[23]

Given these circumstances, I conclude that the Board did not deny Mr. Parsons
    procedural fairness at the hearing on February 18, 2015.

D.

Disposition

[24]

For the reasons set out above, I would dismiss the appeal.

M.L. Benotto J.A.

I agree. E.E. Gillese
    J.A.

Roberts J.A. (dissenting):

A.

Overview

[25]

This appeal concerns the right to a fair hearing
    for individuals with serious mental health issues and who are among the most
    vulnerable members of our society, namely the individuals who are the subjects
    of hearings before the Consent and Capacity Board of Ontario.

[26]

The appellant submits that his right to
    procedural fairness was breached because he was denied legal representation at
    his hearing before the Board.

[27]

I agree.  The Board failed to follow its own
    guidelines and breached its duty of procedural fairness to the appellant.

[28]

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

B.

Issues on appeal

[29]

The following issues arise on this appeal:

1.  Did the appeals judge err in her
    identification and application of the correct standard of review?

2.  Did the Board breach its duty of
    procedural fairness to the appellant?

C.

Analysis

(1)

Did the appeals judge identify and apply the correct standard of
    review of the Boards decision?

[30]

The appeals judge accepted the parties
    agreement that the standard of review of the Boards decision was
    reasonableness.  As a result, the appeals judge held that, absent an error of
    law or a palpable and overriding error, she could not interfere with the
    Boards decision.

[31]

It is well established that the standard of
    review in relation to the Boards weighing of the evidence and findings of fact
    is reasonableness, because of the Boards expertise and advantaged position:
Starson
    v. Swayze
, 2003 SCC 32, [2003] 1 S.C.R. 722, at paras.
    84-87.  There is no dispute that the appeals judge identified and applied the
    correct standard in concluding that there was sufficient evidence before the
    Board in support of its decision.  That issue is not pursued on appeal.

[32]

The parties submit on appeal that a standard of
    correctness should be applied to the question of whether the Board breached the
    appellants duty of procedural fairness.

[33]

Historically, compliance with the duty of
    procedural fairness has been regarded as a jurisdictional question and, as
    such, a question that must be answered correctly: see G. Huscroft, From
    Natural Justice to Fairness: Thresholds, Content, and the Role of Judicial
    Review, C. M. Flood and L. Sossin, eds.,
Administrative Law in
    Context
,

2nd ed. (Toronto:  Emond Montgomery, 2013), at pp. 181-82; and
Canada
    (Citizenship and Immigration) v. Khosa
, 2009 SCC 12,
[
2009
]
1 S.C.R. 339, at para. 43.  However, courts have sometimes given an
    administrative decision-maker a significant margin of deference in terms of the
    manner in which it has chosen to follow its own procedure, such that standards
    of correctness and deference are applied at the same time:
Mission
    Institution v. Khela
, 2014 SCC 24,
[
2014
]
1 S.C.R. 502, at paras. 79 and 89.

[34]

For the reasons that follow, I am of the view
    that it does not matter which standard of review is applied.  Under either a
    correctness or reasonableness standard, the appeals judge erred and the Boards
    decision should have been set aside.

(2)

Did the Board breach its duty of procedural
    fairness to the appellant?

[35]

The appellant submits that the Board breached
    its duty of procedural fairness. He argues that he was denied a fair hearing because
    it proceeded without his representation by counsel, which he had previously
    requested and never refused.

[36]

My analysis of this issue requires, first, a
    review of the general principles informing the scope of the Boards duty of
    fairness and the appellants right to a fair hearing. I will then apply these
    principles to the circumstances of the present case.

[37]

The duty of fairness essentially includes both the
    right to be heard and the right to an impartial hearing:
Re
    Therrien
, 2001 SCC 35,
[
2001
]
2 S.C.R. 3, at
    para. 82.  Beyond this, its content varies with the specific context.  The
    Supreme Court of Canada set out a non-exhaustive list of contextual factors that
    bear on its content in
Baker v. Canada,
[
1999
]
2 S.C.R. 817,
    at paras. 21-28:  (i) the nature of the decision being made and the process by
    which it is made; (ii) the nature of the statutory scheme and the role of the
    particular decision within it; (iii) the importance of the decision to those
    affected; (iv) the legitimate expectations of the person challenging the
    decision; and (v) the choices of procedure made by the agency itself.

[38]

There is no dispute that the Board owed the
    appellant a duty of procedural fairness.  The fact that its decision would
    intimately affect the rights, privileges and interests of the appellant,
    specifically his capacity to refuse treatment, gives rise to a duty of
    fairness:
Baker,
at para. 20.
As Major
    J. (writing for the majority) observed in
Starson
, at para. 75, the
    right to refuse medical treatment for mental illness is fundamental to a
    persons dignity and autonomy.

[39]

With respect to the appellants legitimate expectations and the choices
    of procedure made by the Boardin particular, its decision to proceed in the
    absence of legal counsel for the appellant
Baker
is again
    instructive.  In
Baker
, LHeureux-Dubé J. wrote that if the affected
    party has a legitimate expectation that a certain procedure will be followed,
    that procedure will be required by the duty of fairness. This doctrine is
    based on the principle that the circumstances affecting procedural fairness
    take into account the promises or regular practices of administrative
    decision-makers, and that it will generally be unfair for them to act in
    contravention of representations as to procedure: para. 26.

[40]

Proof of actual reliance on official representations as to procedure is
    not a requisite:
Canada (Attorney General) v. Mavi
, 2011 SCC 30, [2011]
    2 S.C.R. 504, at para. 68. In The Rt. Hon. Lord Woolf et al.,
De Smith's
    Judicial Review
, 7th ed., (London: Sweet & Maxwell, 2013), the authors
    state at s. 12-001 that [t]he protection of legitimate expectations is at the
    root of the constitutional principle of the rule of law, which requires regularity,
    predictability and certainty in governments dealings with the public.

[41]

The expectations of a party such as the appellant to legal
    representation during Board hearings are prescribed under s. 10 of the
Statutory
    Powers Procedure Act
, R.S.O. 1990, c. S.22, which provides that parties to
    a proceeding before the Board have the right to representation.  The duty of
    the Board to inquire into the question of legal representation, and the
    procedure to be followed by the Board in determining whether to issue an order
    to arrange for the legal representation of the individual who is the subject of
    an application, are detailed in the Boards Policy Guideline 2, dated September
    1, 2007, which my colleague has already referenced.  That the Board is
    empowered to appoint legal counsel, even if a patient refuses legal counsel,
    underscores the crucial importance of the assistance of counsel at consent and
    capacity hearings.

[42]

The fundamental need for the assistance of counsel for the vulnerable individuals
    who are the subjects of capacity hearings before the Board was eloquently
    described by Cronk J.A. for this court in
Gligorevic v. McMaster
, 2012
    ONCA 115, 109 O.R. (3d) 321.  In that case, this court held that ineffective
    assistance of counsel was available as a ground of appeal from a Board
    decision. While
Gligorevic
was not a procedural fairness case, in
    coming to this conclusion, Cronk J.A. made observations that are relevant to
    the present case and which demonstrate that the assistance of counsel is
    particularly important given the vulnerability of the patients before the Board.

[43]

Specifically, in
Gligorevic
, Cronk J.A. wrote for this court that,
    like a criminal proceeding where liberty is at risk, a treatment capacity
    hearing implicates a patients fundamental human rights. In a very real sense,
    an incapacity finding engages a patients liberty, dignity and right of
    self-determination with respect to medical treatment (para. 60).  She held
    that a Board capacity hearing must be viewed as an adversarial, adjudicative
    proceeding where fundamental human rights are engaged (para. 60). She went on
    to conclude that, when seen in this light, effective assistance by counsel at
    such hearings enhances the adjudicative fairness of the process (para. 61)
    because it ensures that the patient has the benefit of all available procedural
    protections.

[44]

In circumstances similar to the present case, the court in
Bon Hillier v. Milojevic
, 2010 ONSC 4514
, [2010]
    O.J. No. 3457 concluded that the lack of legal representation resulted in a
    failure of procedural fairness, even though the patient in that case had
    refused counsel.  As a result, an appeal was allowed from a Board decision finding
    the patient incapable of managing property. Trotter J. (as he then was) held that
    without counsel, Mr. Bon Hillier had been denied procedural fairness as he had
    not been given a fair opportunity to meaningfully challenge the opinion of the
    physician, for reasons that are equally apt in the present case.

[45]

Mr. Bon Hillier had refused counsel because he misunderstood that he
    would not be able to make personal representations.  As in the present case,
    the Board did not clear up his confusion. Trotter J.s observations about Mr.
    Bon Hilliers inability to undertake any meaningful appeal without
    representation mirror the appellants situation in the present case:  he was
    unfocused, verbose and grandiose, disorganized in his approach, easily
    thrown off of his train of thought, never to return to the issues he was
    struggling to pursue (para. 49).

[46]

Citing this courts decision in
R. v. Samra
, (1998), 41 O.R.
    (3d) 434, Trotter J. held that even though Mr. Bon Hillier had refused his own
    legal counsel, the Board should have canvassed the appointment of
amicus
counsel, who might have provided some type of representation when there is
    none (and where it really is needed to achieve fairness) (paras. 44-45).  As
    in the present case, given the challenges which Mr. Bon Hillier faced (not
    least his lack of understanding of legal principles), although it might not
    have been apparent at the outset of the hearing, it should have become clear as
    the hearing progressed that fairness could only be achieved with the involvement
    of counsel (para. 47).  Trotter J. concluded that all of this made it
    impossible for the patient to make submissions or to properly challenge his
    physicians opinion.  I find that such is the case here.

[47]

Applying these principles to the present case, as the appeals
    judge found, the Board was required to act in accordance with its own
    guidelines.  According to those guidelines, the appellant had a constitutional
    right to represent himself if he wished, regardless of whether or not he was
    likely to represent himself effectively.  However, and most significantly for
    the present case, the guidelines also required the Board to ascertain by way of
    a preliminary mini-inquiry whether the appellant was
refusing
legal counsel, not simply whether
    he was prepared to go ahead without counsel, and if so, to determine whether
    the appellant was making an informed decision in refusing counsel.

[48]

Moreover, even if the appellant had made an informed choice to refuse
    counsel or indicated that he was prepared to proceed without counsel (as the
    appeals judge found), to ensure a fair hearing, the Board was still obliged
    under its guidelines to, among other things, err on the side of providing
more, rather than less, assistance to the unrepresented person

    (emphasis in original), not only at the outset, but throughout the course of
    the hearing.

[49]

That was the procedure that the Board was required to follow and
    that the appellant had a reasonable expectation that the Board would follow.
    The Boards procedural guidelines serve to frame and define the reasonableness
    of the Boards actions.  In my view, the Board failed in this case to follow
    them in any meaningful or reasonable way.

[50]

I find that the Board did not follow its own
    guidelines in several important respects.  First, the Chair never asked the
    appellant whether he was refusing to obtain legal representation, although the
    Chair had a duty to do so in light of the appellants previous attendance and
    his express request for counsel.  It is plain and obvious from the appellants
    exchange with the Chair (see para. 5 above) that the appellant thought he had
    no choice but to go ahead without counsel. In response to the Chairs question
    as to whether he intended to retain counsel, the appellant stated, I guess Im
    going to have to continue with this.
I talked to Wade Stevenson and he
    filled out my legal aid application and he took the name down of the lawyer
    that I was to contact and he never filed the application or contacted the
    lawyer, so.
  The Chair should have made inquiries to clear up
    this confusion and to ensure that the appellant was making a free and informed
    decision to proceed without counsel.  Further, as the Board similarly failed to
    do in
Bon Hillier
, the Chair in the present
    case did not appear to consider whether, to ensure a fair hearing,
amicus
counsel should be appointed.  Instead of making the inquiries
    required by the Boards guidelines, the Chair effectively encouraged the
    appellant to go ahead without counsel, telling him that he looked prepared.

[51]

Even if the Chair had correctly determined that
    it was initially appropriate to proceed without legal representation for the
    appellant, it became immediately obvious that the appellant was not in fact
    prepared and that he was completely incapable of representing himself.  For
    example, when invited to question the respondent, the appellant did not
    question him.  Instead, he made lengthy, mostly incoherent, submissions
    concerning his objections to the respondents diagnosis and prescription of
    treatment for the appellant.  By the end of his submissions, the appellant
    became clearly irrational, making incomprehensible statements, such as:  Pardon
    my rather unorthodox expression, mam, but condition was a term on a dit on an
    itch [
sic
] which is a numbers game that I
    really dont want to enter into with you (p. 10).

[52]

The Chair did not at any time try to focus the
    appellants clearly unintelligible discourse, attempt to remind him of the
    procedure to be followed, or conduct a further inquiry into his ability to
    represent himself at the hearing.  Rather, when the appellant had concluded
    speaking, even though he had not asked a single question, the Chair simply
    asked him if he had any further questions for the respondent.

[53]

As the respondents counsel fairly conceded, the
    Boards duty of fairness does not end after the initial mini-inquiry required
    under the guidelines but must continue throughout the hearing in order to
    ensure procedural fairness.  The Boards continuing obligation, as confirmed by
    the appeals judge, is reflected in the following guidelines, which I reproduce
    again here for ease of reference:

·

Instruct and assist the unrepresented person
    throughout the hearing while ensuring fairness to the other parties.

·

Accommodate the unrepresented persons lack of
    familiarity with the process while respecting the rights of other parties.  The
    panel should err on the side of providing more, rather than less, assistance to
    the unrepresented person.

·

Ask the unrepresented person if he has any
    questions and encourage questions throughout the hearing.

[54]

The Board failed to follow its own guidelines
    and to satisfy its duty of fairness in this case.

[55]

The appellants serious deterioration and
    decompensation became patently obvious very quickly and worsened throughout the
    hearing.  This should not have come as a surprise.  The respondent testified
    that the appellant has schizophrenia, a major mental illness, which manifests
    itself in delusional and psychotic behaviour.  The appellant described himself
    as:  Frantic.  Yeah, Im a little frantic. Im in an environment that I cant
    escape (p. 9).  It is clear that the stress of having to represent himself in
    a hearing of such importance exacerbated the appellants already compromised
    ability to function.

[56]

It was also clear, as the appellant himself stated,
    that he was incapable of organizing himself or representing himself.  In the
    midst of the hearing, the appellant complained:  I am a little bit
    disorganized at this point in time because Ive been given markers as pens, so
    I cant really write much down, I end up with a massive amount of paper, I
    cant type anything, cant print anything.  Im having issues with not being
    able to actually be organized or even have a way to actually get to anything
    that allows me to be slightly organized (p. 21).

[57]

Upon hearing the appellants complaint, and when
    the appellant failed to pose any questions to the respondent and later did not
    make responsive submissions but simply engaged in an incoherent rant, the Chair
    should have intervened and conducted further inquiries to ascertain whether the
    appellant could continue the hearing without legal representation.  Again,
    under its guidelines, the Board is to
err on the side of providing
more, rather than less, assistance to the unrepresented person
.
The Chairs failure to provide such assistance resulted in
    procedural unfairness to the appellant.

[58]

I recognize that the right to counsel is not
    absolute, in that an individual must be diligent in attempting to secure
    counsel. In some cases, after multiple adjournments, it has been found proper
    for a hearing to continue without counsel: see R. W. Macaulay and J. Sprague,
Practice
    and Procedure Before Administrative Tribunals
, 5th ed.
    (Toronto: Carswell, 2016), at para. 12.27(a)(v).  For these reasons, the
    Boards guidelines allow it to proceed without legal representation for the individual
    who is the subject of the hearing.  However, the Boards discretion to proceed
    in such a fashion is tempered by the requirement that the inquiry described in
    the guidelines be otherwise followed.

[59]

Importantly, the instant case was not one of an applicant
    abusing the Boards process by requesting multiple hearings.  This was only the
    appellants second attendance before the Board and he provided a legitimate
    excuse for his not yet having retained counsel.  His lack of understanding of
    the process was obvious.

[60]

At the first hearing, the appellant had clearly
    indicated his desire to have counsel of his own choice.  He never wavered from
    that position.  Given that he was an involuntary inpatient, he was clearly
    dependent on the patient advisor to arrange counsel on his behalf and, as he
    advised the Board, this had not been done.  His response to the Chair to the
    effect that he might be prepared to proceed without counsel was not an informed
    choice but arose out of his confusion concerning his right to legal
    representation, which the Chair did not clarify.  It was also qualified by the
    appellants own uncertainty, his guess as to whether he would be able to
    manage by himself and his indication that he was willing to try.

[61]

Moreover, as the court held in
Bon
    Hillier
, to ensure a fair hearing, legal representation
    for the appellant or
amicus
counsel was
    required so that the appellant could meaningfully challenge the opinion of the
    respondent.  For example, there were the questions of the possible shifting of
    a diagnosis and the adverse effects of the proposed medication, which the
    appellant raised in the present case but was unable to pursue because of his
    deteriorating condition.  These issues served in
Starson
to inform and legitimize Professor Starsons refusal to take
    prescribed medications and his capacity to make that decision. On that basis,
    the Supreme Court of Canada upheld the decision of the Superior Court of
    Justice, as confirmed by the Court of Appeal, to overturn the Boards decision
    of incapacity.

[62]

In the present case, the appellants ability to
    meaningfully make such arguments was precluded by the Chairs failure to
    ensure, in the manner set out in the Boards guidelines, that the appellants
    choice to represent himself was freely made and fully informed, and by the Chairs
    failure to intervene in the course of the hearing when the appellants
    condition clearly deteriorated.  As a result, the appellant did not have a fair
    hearing.

[63]

I acknowledge that it is not an easy task for
    Chairs of the Board to balance the need to run an efficient and expedient
    hearing with their overarching duty to ensure procedural fairness.  There is
    good reason that adjournments are not readily granted, and whether the individuals
    who are the subjects of applications before the Board have already been granted
    adjournments to obtain counsel is a factor to be considered pursuant to the
    guidelines.  The capacity hearings before the Board are designed to be brought
    and disposed of quickly for the benefit of the individuals who are the subjects
    of applications, including the appellant.

[64]

However, in this case, the Board erred by
    allowing hearing expediency and efficiency to override the appellants
    fundamental right to a fair hearing.

D.

Disposition

[65]

For these reasons, I would allow the appeal and
    refer this matter to a new hearing, which should be expedited, before a
    different Consent and Capacity Board.  Pending the disposition of this matter
    before another Board, the certificate of the appellants incapacity shall
    stand.

Released: EEG MAY 23 2017

L.B. Roberts J.A.