COURT OF APPEAL
    FOR ONTARIO

CITATION: Kanak v. Riggin, 2018 ONCA 345

DATE: 20180309

DOCKET: C63856

Doherty, van Rensburg and Nordheimer JJ.A.

BETWEEN

Tracey Kanak

Plaintiff (Appellant)

and

Darryl Riggin

Defendant (Respondent)

Andrew Rogerson, for the appellant

Julian Porter, Q.C., for the respondent

Heard and released orally:  April 4, 2018

On appeal from the judgment of Justice Lucy McSweeney of
    the Superior Court of Justice, dated May 18, 2017 with reasons reported at 2017
    ONSC 2837.

REASONS FOR DECISION

[1]

The plaintiff appeals from the dismissal of her action after a five-day
    trial.  The principal claim was for defamation but there were other alternative
    causes of action advanced.

[2]

The trial judge gave careful and detailed reasons for her conclusions.
    She found that the statements made by the respondent were defamatory but, given
    that they were made in the context of providing an employment reference, they
    were subject to a defence of qualified privilege.  The trial judge also
    concluded that the plaintiff had failed to prove malice in the making of the
    statements so the defence of qualified privilege was not defeated.

[3]

There is no error in the legal principles applied by the trial judge.  Her
    conclusions are based on the facts as she found them.  There is no basis for
    this court to interfere with those findings, absent palpable and overriding
    error, of which there is none in this case.  The appeal on the merits cannot
    succeed.  In particular, on the hearsay issue the evidence was not adduced for
    the truth of its contents.  With respect to the rule in
Browne v. Dunn
(1893), 6 R. 67, H.L., we do not see that that principle was properly engaged
    in this case in either of the instances referred to by the appellant.

[4]

The appellant also challenges the quantum of costs awarded by the trial
    judge.  Costs are a matter of discretion and the appellant cannot show any
    error that the trial judge made in the exercise of her discretion.  That said,
    the parties have agreed that, in the circumstances of this case, the costs
    ought not to have included costs for the voluntary mediation.

Conclusion

[5]

The appeal on liability is dismissed.  Leave to appeal costs is granted
    and the costs award is reduced by the sum of $8,275.00.  The respondent is
    entitled to his costs of the appeal fixed in the amount of $16,000 inclusive of
    disbursements and HST.

Doherty J.A.

K. van Rensburg
    J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kaynes v. BP, P.L.C., 2018 ONCA 337

DATE: 20180405

DOCKET: C64363

Hourigan, Pardu and Huscroft JJ.A.

BETWEEN

Peter Kaynes

Plaintiff (Appellant)

and

BP, P.L.C.

Defendant (Respondent)

Bonnie Roberts Jones and Andrew Morganti, for the
    appellant

Laura K. Fric, Kevin O'Brien and Karin Sachar, for the
    respondent

Heard: April 3, 2018

On appeal from the judgment of Justice Paul Perell of the
    Superior Court of Justice, dated September 1, 2017.

REASONS FOR DECISION

Introduction

[1]

This appeal turns upon a consideration of the interaction between the
    limitation period found in s. 138.14 of the
Securities Act
, R.S.O.
    1990, c. S.5 (the
Act
), and s. 138.3(6) of the
Act
, which
    provides that multiple misrepresentations may be considered, at the discretion
    of the court, to constitute a single misrepresentation.

[2]

The appellant, a putative representative plaintiff in a class proceeding
    against the respondent BP, P.L.C. (BP), sued on fourteen alleged
    misrepresentations. Eleven of the misrepresentations were made more than three
    years before the action was commenced. He argued below that the claims based on
    those misrepresentations should not be ruled statuebarred on a r. 21.01(1)(a)
    motion because it is within the discretion of the judge hearing the leave
    application to treat them as a single misrepresentation.

[3]

The motion judge rejected that argument. He ruled that the claims based
    on the eleven misrepresentations were statute-barred pursuant to s.138.14.
    Further, he found that the statutory discretion to treat multiple
    misrepresentations as a single misrepresentation did not impact the limitation
    period analysis.

[4]

On appeal, the appellant advances the same statutory interpretation
    arguments made below and submits that the motion judge erred in law in his
    analysis. At the conclusion of the appellants counsels submissions we
    dismissed the appeal with reasons to follow. These are those reasons.

Background Facts

[5]

This proceeding has a lengthy and complex history. For present purposes,
    the following brief factual summary will suffice.

[6]

The appellant alleges that he acquired shares of BPs securities on
    January 28, 2008, April 29, 2008, and August 12, 2008, after reviewing BPs
    core documents that contained an alleged misrepresentation about BPs operating
    management system and its ability to respond to an oil spill in the Gulf of
    Mexico.  Deepwater Horizon, an oil rig operated by BP in the Gulf of Mexico,
    exploded on April 20, 2010 causing massive environmental damage. The disaster
    negatively impacted the value of BPs securities.

[7]

The appellant seeks to bring a class action on behalf of all Canadian
    residents who acquired BP equity securities during the period May 9, 2007 to
    April 23, 2010. The proposed class action is based solely on the statutory
    cause of action for secondary market misrepresentation provided for in s. 138.3
    of Part XXIII.1 of the
Act
.

[8]

The action was commenced on November 15, 2012 in Ontario. The next day,
    the appellant served his motion record seeking leave to proceed with his
    action. There followed a motion challenging the jurisdiction of the Ontario
    courts. This court eventually stayed the proceeding. An action was then commenced
    in Texas but the U.S. Federal Court dismissed it.  The stay was eventually
    lifted by order of this court.

[9]

The order that is the subject of this appeal is from a motion brought by
    BP under r. 21.01(1)(a) for a declaration that the appellants claim is
    statute-barred pursuant to s. 138.14 of the
Act
.

Motion Judges Decision

[10]

The
    motion judge found that it was plain and obvious that eleven of the
    misrepresentation claims that were based on documents released between May 8,
    2007 and February 26, 2010 were statutebarred. He further found that claims
    based on documents released between February 27, 2010 and April 23, 2010 were
    not statutebarred, as it was not plain and obvious that the class members will
    be denied leave
nunc pro tunc
to assert those claims.

[11]

The
    motion judge rejected the appellants submission that all of the
    misrepresentations should be treated as a single misrepresentation for purposes
    of calculating when the limitation period should begin to run. He found that
    such an interpretation would negative the policy choice made by the legislature
    in enacting the limitation period, would conflict with the scheme of the
Act
,
    and would be contrary to the legislative history of the
Act
because
    the provision regarding multiple misrepresentations was enacted to limit
    liability not expand it.

[12]

The
    sole issue on this appeal is whether the motion judge was correct in dismissing
    the claims based on documents released between May 8, 2007 and February 26,
    2010.

Analysis

[13]

The
    appellant submits that this case was not appropriate for determination as a
    Rule 21 motion. We disagree. In a case such as this where the parties agree
    that there are no material facts in dispute, it is an efficient use of court
    resources to determine limitations defences on a Rule 21 motion.

[14]

The
    limitation period in s. 138.14 reads as follows:

138.14 (1) No action shall be commenced under section
    138.3,

(a)     in the case of misrepresentation in a
    document, later than the earlier of,

(i)      three years after the date on which the
    document containing the misrepresentation was first released, and

(ii)      six months after the issuance of a news
    release disclosing that leave           has been granted to commence an action
    under section 138.3 or under comparable legislation in the other provinces or
    territories in Canada in respect of the same misrepresentation;

(b)     in the case of a misrepresentation in a
    public oral statement, later than the earlier of,

(i)      three years after the date on which the
    public oral statement containing the misrepresentation was made, and

(ii)      six months after the issuance of a news
    release disclosing that leave           has been granted to commence an action
    under section 138.3 or under comparable legislation in another province or
    territory of Canada in respect of the same misrepresentation; and

***

[15]

This
    is an event triggered limitation period, which commences on the making of the
    oral statement or the release of the impugned document. It is designed to run
    without regard to the plaintiffs knowledge of the facts giving rise to the
    cause of action:
Canadian Imperial Bank of Commerce v. Green
, 2015 SCC
    60, at paras. 66 and 180. The motion judge correctly found that for the eleven
    alleged misrepresentations made more than three years before the issuance of
    the appellants statement of claim the limitation period had expired.

[16]

The
    appellants primary submission on appeal is that s. 138.3(6) of the
Act
operates to extend the limitation period in the case of multiple
    misrepresentations. That subsection provides as follows:

(6) In an action under this section,

(a) multiple misrepresentations having common
    subject matter or content may, in the discretion of the court, be treated as a
    single misrepresentation; and

(b) multiple instances of failure to make timely
    disclosure of a material change or material changes concerning common subject
    matter may, in the discretion of the court, be treated as a single failure to
    make timely disclosure. 2002, c. 22, s. 185; 2004, c. 31, Sched. 34, s.12(7).

[17]

The
    appellant argues that treating the allege misrepresentations as a single
    misrepresentation would have the effect of extending the three-year limitation
    period for claims arising from the eleven out-of-time statements. In our view,
    the motion judge did not err in rejecting this argument. We reach this conclusion
    for the following reasons.

[18]

First,
    there is nothing in the language of s. 138.3(6) that suggests that it is
    intended to modify the clear event triggered limitation period provided in s.
    138.14.

[19]

Second,
    the appellant submits that the motion judge erred in failing to take into
    consideration the twin goals of investor protection and the deterrence of
    corporate misconduct in his interpretation the
Act
.  That view of the
    policy objectives of the
Act
is too narrow.  As Cote J. noted in
CIBC
,
    at para. 69, the policy considerations are more nuanced, Part
    XXIII.1 OSA strikes a delicate balance between various market
    participants. The interests of potential plaintiffs and defendants and of
    affected long-term shareholders have been weighed conscientiously and deliberately
    in light of a desired precise balance between deterrence and compensation.

[20]

Part
    of the balance struck by the three year event driven limitation period was to
    protect subsequent shareholders from claims based on alleged misrepresentations
    made to previous shareholders.

[21]

Third,
    we agree with the motion judges conclusion that the legislative history of s.
    138.3(6) demonstrates that it was enacted at as a consequence of an Ontario
    Securities Commission response to a Request for Comments. It is plain from that
    submission that the section was designed to protect issuers from multiple
    rights of action or multiple liability for essentially the same
    misrepresentation repeated on a number of occasions.

[22]

Finally,
    we note that even if the appellant is correct and s. 138.3(6) was intended to
    modify the limitation period analysis, it is arguable that in the case of
    multiple misrepresentations treated as a single misrepresentation the
    limitation period would run from the date the misrepresentation was first made.
    Subsection 138.14 mandates that the running of the limitation period commences
    when the document is
first
released. Applied literally in this case,
    the result would be that the limitation period for all fourteen
    misrepresentations commenced in 2007 and the claims based on all of the
    documents would be statute-barred.

Disposition

[23]

The
    appeal is dismissed. Costs of the appeal are payable by the appellant to the
    respondent in the agreed upon all-inclusive amount of $20,000.

C.W. Hourigan J.A.

G. Pardu J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Labanowicz v. Fort Erie (Town), 2018 ONCA 343

DATE: 20180410

DOCKET: C63405

Hourigan, Pardu and Huscroft JJ.A.

BETWEEN

Wanda Labanowicz

Plaintiff

(Respondent)

and

Corporation of the Town of Fort Erie

Defendant

(Appellant)

Christine Carter, for the appellant

Loretta Merritt and James Round, for the respondent

Heard: April 6, 2018

On appeal from the judgment of Justice Arthur Gans of the
Superior Court of Justice, dated January 27, 2017.

REASONS FOR DECISION

Introduction

[1]

The respondent
successfully sued the appellant municipality as a result of injuries she
sustained while riding a bicycle on a recreational path. She received a
judgment of approximately $995,000, inclusive of interest. The trial judge also
made an order for costs in her favour in the amount of $921,508.

[2]

On appeal, the
appellant submits that the trial judge made numerous errors, including an
incorrect interpretation of the
Occupiers Liability Act
, R.S.O. 1990, c. O 2, a failure to apply the but
for test, a jurisdictional error regarding the awarding of damages for loss of
income, and a failure to attribute any contributory negligence to the
respondent. It also seeks leave to appeal the costs award on the ground that
the amount awarded exceeded the reasonable expectations of the parties.

[3]

At the conclusion
of the appellants counsels submissions we dismissed the appeal and denied leave
to appeal the costs award, for reasons to follow. These are those reasons.

Facts

[4]

The appellant was
at all material times the occupier of the Friendship Trail (the Trail) in
Fort Erie, Ontario.

[5]

The appellant
installed wooden bollards at various points where the Trail intersects with
roads. The bollards consisted of two pieces: (i) a metal sleeve that is
embedded in ground, with a bracket that protrudes a few inches above the
surface, and (ii) a wooden post that fits into the metal sleeve, such that two
feet of the post is below ground and approximately four feet extends above
grade.

[6]

On July 31, 2006,
the respondent was riding her bicycle on the Trail. At the Cherry Hill
Boulevard intersection, a bollard had been removed leaving exposed its metal
bracket.  The front wheel of the respondents bicycle struck the bracket. After
making contact with the bracket, the respondent flew off her bicycle and
sustained injuries, including a brain injury. She was not wearing a helmet at
the time of the accident.

[7]

In 2012, the
respondents position with the Ontario public service was declared surplus. She
elected to choose redeployment within the public service, however she was
unable to obtain a new position. She grieved under her collective bargaining
agreement and her grievance was settled for a payment of $10,000 in general
damages.

[8]

After a five-week
trial devoted to the issues of liability and damages for lost income, the trial
judge found the appellant solely responsible for the accident and found, over
the jurisdictional objections of the appellant, that the respondent was
entitled to damages in the amount of approximately $737,000 for lost income.

Analysis

(i)

Occupiers Liability Act

[9]

The appellant
submits that the trial judge erred in his interpretation of s. 4 of the
Occupiers Liability Act
.
According to the appellant, in order to establish
liability under s. 4 of the
Act
, the trial judge was obliged to find that it acted
intentionally
with reckless disregard to the
safety of others.

[10]

This submission
finds no support in the wording of the subsection. The relevant provision is s.
4(1), which states:

The duty of care provided for in subsection 3(1) does
not apply in respect of risks willingly assumed by the person who enters on the
premises, but in that case the occupier owes a duty to the person to not create
a danger with the deliberate intent of doing harm or damage to the person or
his or her property and to not act with reckless disregard of the presence of
the person or his or her property. R.S.O. 1990, c.O.2, s.4 (1).

[11]

The suggestion
that the duty of care described in this subsection is contingent on a finding
of a deliberate intent to harm is not consistent with the words of the
subsection read
in their entire context and in their grammatical
and ordinary sense.

Clearly the subsection contemplates a duty of care not to
create a danger with a deliberate intent of causing harm
and
a duty of
care not to act with reckless disregard of the presence of the person or her
property.

[12]

The
interpretation urged upon us by the appellant also finds no support in the
jurisprudence.  For example, in the leading case
Cormack v. Mara (Township)
, [1989] O.J. No. 647, leave to
appeal refused [1989] S.C.C.A. No. 256, at p. 6, this court interpreted the
subsection to create two different duties of care,
[t]here is no suggestion
in this case that the appellant Township did create a danger with the
deliberate intent of doing harm or damage to the respondent. The issue is
whether in all of the circumstances, the respondent has proven that the appellant
Township did act with reckless disregard of the presence of the respondent
snowmobiler on its property.

[13]

The
court in
Cormack
concluded as follows
regarding the wording of s.4:

I conclude that under the
present wording of s. 4 of the
Occupiers' Liability Act
, the legislature has very significantly limited the
duty of care owed by an occupier of premises to a snowmobiler who is deemed to
accept all the risks of the premises. The phrase "act with reckless
disregard of the presence" of the snowmobiler means doing or omitting to
do something which he or she should recognize as likely to cause damage or
injury to the snowmobiler present on his or her premises, not caring whether
such damage or injury results.

[14]

The trial judge
applied the appropriate test and concluded that, the existence of an
unpainted, unlocked and relatively easily removable bollard which exposes a
housing or saddle above grade that has limited, if any, conspicuity amounts to
reckless disregard to the safety of the persons using the Trail. That was a
finding that was open to the trial judge and is owed deference by this court.
We are not satisfied that the trial judge made any palpable and overriding
error in reaching that conclusion.

(ii)

But For Test

[15]

The appellant
submits that the trial judge failed to apply the but for test in his analysis
of causation and damages. We disagree.

[16]

In terms of causation, the trial
judge stated, the plaintiff must establish that but for the negligence  read
reckless disregard  of the Town, her injuries would not have occurred.  We
note that the appellant conceded that the accident occurred because the
respondents bicycle came into contact with the empty bollard housing. The
trial judge accepted the expert evidence proffered by the respondent that given
the limited conspicuity of the housing she would not have had sufficient time
to avoid the collision had she spotted it. He concluded, this incident
occurred as a result of the Towns reckless disregard to the presence of
cyclists using the Trail. Reading his reasons as a whole, we are not satisfied
that the trial judge failed to apply the but for test with respect to
causation.

[17]

With regard to damages, the trial
judge found that the accident caused the respondent to lose income. He accepted
the evidence that her ability to function in her job was severely compromised
by the injuries she suffered. After she was surplussed, she was unable to
obtain a new position within the Ontario public service and the trial judge
accepted the expert evidence that her cognitive disabilities were so profound
as to render her unable to obtain and maintain competitive employment.  Again,
we are satisfied that the trial judges factual findings were well rooted in
the evidence.

[18]

We note, and the appellant concedes,
that while proof of loss of income before trial must be established on a
balance of probabilities, a plaintiff need only establish a real and
substantial risk of future pecuniary loss as indicated in
Graham v. Rourke
, (1991) 74 D.L.R. (4
th
) 1
at pp. 12-13. See also
Beldycki Estate v. Jaipargas
, 2012 ONCA 537 (CanLII), at paras. 73-75.

(iii)

Contributory Negligence

[19]

The appellant submits the trial judge
erred in finding that there was no contributory negligence given that: the
respondent failed to wear a helmet, she and her riding companion did not report
the missing bollard when they first rode past the Cherry Hill intersection
approximately 30 to 60 minutes before the accident, and the respondent failed
to keep a proper lookout.

[20]

We do not give effect to this
submission. The appellant did not establish a basis for a finding of
contributory negligence because it failed to adduce sufficient evidence to meet
its onus that something that the respondent did or did not do caused or
contributed to the accident or the severity of her injury. For example, the
appellant lead no admissible evidence that the failure of the respondent to
wear a helmet exacerbated her injuries.

(iv)

Lost Income

[21]

The appellant
submits that the Superior Court did not have jurisdiction to award damages for
loss of income to the respondent because she was a unionized employee, subject
to a collective bargaining agreement and her dispute with her employer was
previously dealt with by the appropriate tribunal.

[22]

In support of
this argument, the appellant relies upon s. 48(1) of the
Labour Relations Act
, 1995
, S.O. 1995, c.1, Sched. A., which
provides:

Every collective agreement shall provide for the
final and binding settlement by arbitration, without stoppage of work, of all
differences between the parties arising from the interpretation, application,
administration or alleged violation of the agreement, including any question as
to whether a matter is arbitrable.

[23]

We see no merit
in this argument. The provision concerns disputes as among an employer, a union,
and a unionized employee. There is nothing in the subsection that purports to
limit the rights of a unionized employees to sue a third party tortfeasor for
lost wages.

(v)

Costs

[24]

The appellant
conceded before the trial judge that in light of an offer to settle made by the
respondent, she is entitled to her costs on a partial indemnity basis to May
2016 and on a substantial indemnity basis thereafter.  However, the appellant
seeks leave to appeal the costs award on the ground that the trial judge erred
in law in failing to take into account the reasonable expectations of the
parties and in awarding costs that were neither fair nor reasonable.

[25]

The
test for leave to appeal a costs award is stringent. Leave to appeal will
not be granted, save in obvious cases where the party seeking leave convinces
the court that there are strong grounds upon which the appellate court could
find that the judge erred in exercising her discretion:
Alguire v. The Manufacturers Life
Insurance Company
, 2018 ONCA 202, at para. 36.  In the present case, we see no
basis to grant leave to appeal the costs award.

[26]

We reject that
submission that the trial judge failed to take into account the reasonable
expectations of the parties. To the contrary, he engaged in a detailed
examination of the conduct of this litigation. He concluded that the appellant
employed a scorched earth defence, where no issue was conceded and every
possible legal argument, no matter how tenuous, was advanced. The record amply
supported these findings.

[27]

The appellant is, of course, entitled
to employ whatever litigation strategy it deems fit. However, there are
consequences to such an aggressive strategy. The appellant took a calculated
risk that by engaging in a scorched earth defence it would either force the
respondent to settle her claim or it would ultimately succeed at trial on one
of the many defences it advanced.  That calculation was not borne out at trial.
The respondent must now live with the increased costs expectations that were
the consequence of its strategy. In our view, there is nothing unreasonable or
unfair in the costs awarded by trial judge.

Disposition

[28]

The appeal is
dismissed. Leave to appeal the costs award is denied. The appellant shall pay
the respondent her costs of the appeal on a partial indemnity basis in the
all-inclusive sum of $47,240.

C.W. Hourigan J.A.

G. Pardu J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Leuschner (Re), 2018 ONCA 398

DATE: 20180425

DOCKET: C64481

Hoy A.C.J.O., Sharpe and Nordheimer JJ.A.

IN THE MATTER OF: Ginger Leuschner

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant, Ginger Leuschner

Jennifer Epstein, for the respondent, the Attorney
    General of Ontario

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

Heard: April 13, 2018

On appeal from the disposition of Ontario Review Board,
    dated October 10, 2017, with reasons dated October 19, 2017.

REASONS FOR DECISION

[1]

The appellant came under the jurisdiction of the
    Ontario Review Board (the Board) after being found not criminally responsible
    in May, 2008. For the most part, she has been detained at the Centre for Addiction
    and Mental Health (CAMH) since that time. At her most recent review, the
    appellant sought an absolute discharge while the Hospital sought an order
    transferring her to secure custody from the General Forensic Unit.

[2]

The appellants index offences were assault,
    failure to attend court and failure to comply with a recognizance. In February,
    2008, the appellant ordered another woman on a snowy street to get out of her
    way and then punched that person in the back of the head.

[3]

The appellant, now 33 years old, has a history
    of substance abuse and a criminal record including four convictions for assault
    and one for assaulting a police officer. She has been diagnosed with severe
    borderline personality disorder with antisocial traits and cocaine dependence
    disorder.

[4]

During the past year, while detained at CAMH, the
    appellant absconded after receiving an indirect pass into the community. The
    police returned her to the unit, describing her as agitated, aggressive,
    kicking and spitting. Other incidents included striking a co-patient and hitting
    a staff member on the nose when attempting to strike a co-patient. On another
    occasion, she absconded and was returned by the police while disorganized and
    belligerent. She assaulted the police and admitted to using cannabis and
    cocaine. Several attempts in earlier years at community living failed after
    incidents of the appellant going AWOL and using illegal drugs.

[5]

The Hospital Report filed at the appellants
    most recent Board hearing states that the appellant continues to present a
    significant risk to the safety of the public, citing numerous clinical risk
    factors combined with the appellants history of assaulting a stranger,
    physical assaults on police officers and her impulsive anti-social tendencies
    leading to a high likelihood of violent recidivism.

[6]

The Board concluded that the evidence supported
    a finding that the appellant continues to present a significant threat to the
    safety of the public and rejected her submission that the appropriate
    disposition was an absolute discharge. The Board also rejected the Hospitals
    request for increased security and refused to make any change to the terms of
    the appellants disposition.

[7]

The appellant submits that:

1.

The Boards conclusion that she continues to
    pose a significant risk to the public is unreasonable;

2.

The Board erred by failing to consider a
    conditional discharge; and

3.

The Board erred by ignoring evidence that, given
    the nature of the appellants illness, hospitalization puts the appellant at
    risk.

Analysis

1.

Significant risk to the public

[8]

We are troubled by the fact that the appellant
    has now been detained for almost ten years following an assault that would not
    have attracted a lengthy custodial sentence and that she does not appear to be
    progressing towards community living. While we will have more to say about that
    aspect of the case, we do not accept the appellants submission that the
    Boards finding that she continues to pose a significant risk to public safety
    was unreasonable. The appellant has a significant history of assaultive
    behavior including several recent assaults on fellow patients and assaults on
    police officers. In July, 2016, the appellant absconded. The police found her
    in a known drug area and she kicked one police officer in the groin and
    scratched another officer when they returned her to CAMH. In another incident,
    the appellant kicked and spat on police called to deal with her after she went
    AWOL. The Hospital Report also contains other incidents of aggressive and
    violent behaviour including in interactions with the police, hospital staff and
    other patients.

[9]

The Hospital Report highlights a number of
    criminogenic risk factors in addition to this history of assaultive behaviour.
    These include substance abuse, impulsivity, characterological style notable for
    borderline antisocial features, disregard for authority, ongoing violation of
    rules, negative peer relations, lack of meaningful engagement supports, and
    negative attitudes towards the rehabilitation process.

[10]

The appellant does not challenge her diagnosis.
    In her own evidence, the appellant indicated that she would be willing to stay
    in another hospital for periods of time and agree to a Community Treatment
    Order. She agreed that she lacked support in the community, and testified that
    if discharged, she would taper off her medication, live in a shelter and that
    her illicit drug use would really depend on, on my headspace, how I feel.

[11]

On this record, it was entirely reasonable for
    the Board to conclude that there was a high likelihood that if discharged into
    the community, the appellant would likely return to a chaotic life-style,
    illegal drugs, and violent confrontations with others, including the police.
    While there is no indication that the likely level of assaultive behaviour
    would be sufficient to attract a lengthy sentence, it is not seriously disputed
    that assaultive behaviour, including assaults on the police when called to deal
    with the appellant, are likely to recur. It was open to the Board to conclude
    that this reaches the level of posing a serious risk to the public, in the
    words of this court: a foreseeable and substantial risk of physical or
    psychological harm to members of the public that is serious and beyond the
    trivial or annoying:
R. v. Ferguson
,
2010 ONCA 810, 264 C.C.C.
    (3d) 451, at para. 8.

[12]

We do not accept the submission that the Board
    erred by distinguishing the appellants case from
Wall
(Re)
, 2017 ONCA 713, 417 D.L.R. (4th) 124. That case involved an
    individual who continued to use illicit drugs and display rude and verbally
    abusive behaviour but had not committed an act of violence since 2004.
    Regrettably, the appellants history includes recent assaultive behavior.

[13]

Accordingly we reject the submission that the
    Boards finding that the appellant continues to pose a significant threat to
    public safety was unreasonable.

2.

Conditional discharge

[14]

Although the appellant did not seek a
    conditional discharge, it was incumbent upon the Board to consider the least
    onerous and restrictive disposition consistent with ensuring public safety.
    However, in the circumstances the Boards failure to specifically address the
    possibility of a conditional discharge is not material. We see no air of
    reality to the suggestion that the risk the appellant poses to the public could
    be managed on a conditional discharge. Previous attempts at community living
    have failed and the appellant has an established pattern of returning to drug
    use and violent conflict with the police.

3.

Risk of harm to the appellant

[15]

In oral argument, counsel for the appellant
    emphasized that prolonged hospitalization is counter-therapeutic for the
    appellant, and that the risk of harm of detaining the appellant in the hospital
    exceeded the risk of harm to the public if she were released. In
    cross-examination, the treating physician agreed that there was some support in
    the literature for the proposition that continued hospitalization of
    individuals suffering from borderline personality disorder could do more harm
    than good. The appellant complains that when the psychiatrist board member
    tried to explore this issue further, he was cut off by the Alternate Chair.

[16]

The appellant is clearly very frustrated with
    her treatment in the Hospital and the Hospital is also frustrated with the
    appellants behaviour and lack of progress. The record reveals one serious
    incident of self-harm that nearly led to the appellants death. The appellant
    appears to have made no progress after ten years of detention, and the prospect
    of her returning to health and the community remains elusive.

[17]

We agree with the Crown that, as a matter of
    law, the
Criminal Code
s NCR regime does not permit the Board or this
    court to engage in the kind of risk balancing exercise suggested by the
    appellant as a way of justifying an absolute discharge. If the appellant poses
    a significant risk to public safety, her detention is legally justified even if
    there appears to be a risk that her continued detention will cause her some
    harm.

[18]

On the other hand, it is very concerning that
    continued detention may be doing the appellant more harm than good. We agree
    with the Boards statement that some effort should be taken to break the cycle
    of a situation that has been frustrating to all:

The Board would like to see the Hospital work
    with Ms. Leuschner more closely and develop a one to one customized plan that
    meets her particular needs and her particular diagnosis. It may be that
    consultation with other professionals could assist, and it may be that a move
    to a more secure unit would be in her interest; however, other than containing
    her and preventing future AWOL attempts, it is unclear to us on this record how
    such a move at this time would assist in her reintegration or meet her other
    clinical needs. We appreciate the difficulty from all perspectives in finding
    the balance of freedom, structure and supervision for Ms. Leuschner.

Ms. Leuschner has had an inconsistent course
    on a variety of Dispositions and it is clear that everyone is frustrated at
    this point in time; however, the Board would like to see renewed effort at a
    clinical program that might break the cycle, short of placing Ms. Leuschner in
    a smaller locked unit.

[19]

We recognize that the issue of treatment impasse
    was not put to the treating physician in cross-examination before the Board. The
    Board is directed by the
Criminal Code
, s. 672.54 to take into account
    the mental condition of the accused, the reintegration of the accused into
    society and the other needs of the accused in addition to the paramount
    consideration of the safety of the public. The Board has a broad supervisory
    and inquisitorial role to search out and consider evidence favouring the
    accused:
Winko v. British Columbia (Forensic
    Psychiatric Institute),
[1999] 2 S.C.R. 625 at
    para. 54.

[20]

In our view, given the appellants ten year
    history of detention, the lack of progress the Hospital has made in improving
    her situation, and the risk that continuing down the same road may actually
    pose a risk of harm to the appellant, the Board erred by failing to make its
    recommendation mandatory.

[21]

Accordingly, we allow the appeal but only to this extent. The Person
    in Charge is directed to retain one or more appropriate independent
    professionals to review the appellants situation and to prepare a report in
    consultation with the appellants treatment team recommending the best course
    of treatment with a view to her eventual reintegration into the community. Such
    report is to be presented to the Board when completed to be considered on a
    fresh review and no later than the date of the appellants next annual review.

Alexandra Hoy A.C.J.O.

Robert
    J. Sharpe J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Liberty Silver Corp. v. Liberty Insurance
    Underwriters Inc., 2018 ONCA 327

DATE: 20180403

DOCKET: C64244

Pepall, Brown and Trotter JJ.A.

BETWEEN

Liberty Silver Corp.

Respondent

and

Liberty Insurance Underwriters Inc.

Appellant

John Nicholl and Kyle Magee, for the appellant

Geoff Adair and Gord McGuire, for the respondent

Heard: March 29, 2018

On appeal from the judgment of Justice Laurence A. Pattillo
    of the Superior Court of Justice, dated August 2, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The appellant insurer renews before this court the same argument it
    advanced below.   It again argues that there was no Claim against an Insured
    Person for a Wrongful Act nor was there a Loss within the Policys
    definition of those terms.

[2]

The application judge identified the relevant principles of
    interpretation. He considered each argument advanced by the appellant and gave
    detailed reasons for rejecting them. We see no error in his application of the
    governing interpretive principles to the language of Policy or to his findings
    regarding the effect of the March 29, 2016 agreement between Liberty Silver and
    its legal counsel. Accordingly, the appeal is dismissed.

[3]

The respondent is entitled to its costs of the appeal fixed at $16,000,
    all in.

S.E.
    Pepall J.A.
David Brown J.A.
G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Lucky Star Developments Inc. v. ABSA
    Canada International, 2018 ONCA 346

DATE: 20180409

DOCKET: C64342

Hourigan, Pardu and Huscroft JJ.A.

BETWEEN

Lucky Star Developments Inc.

Plaintiff (Appellant)

and

ABSA Canada International

Defendant (Respondent)

Americo Fernandes, for the appellant

Alex Van Kralingen and Mark Repath, for the
    respondent

Heard: April 5, 2018

On appeal from the order of Justice Bruce Thomas of the Superior
    Court of Justice, dated September 8, 2017, with reasons reported at 2017 ONSC
    4038.

REASONS FOR DECISION

[1]

The appellant appeals from the decision of the
    motion judge permitting it to file a third fresh as amended statement of claim,
    but precluding it from referring to five prior shipments or claiming damages in
    respect of those shipments from the respondent freight forwarder.

[2]

The motion judge found that the limitation
    period had expired in respect of the five prior shipments and that this
    constituted a prejudice that could not be compensated, thus barring the
    amendment.

[3]

The appellant argues that the motion judge
    erred:

1.

by failing to
    consider that the limitations period applies only to pleadings for unrelated
    statute-barred claims; and

2.

in
finding that new claims cannot be added to a claim that has already
    been commenced.

[4]

We do not agree.

[5]

The appellants argument that containers 1-5
    were part of the same claim because they involved breach of the same contract
    must be rejected. The appellants consent to the order striking this portion of
    the claim under r. 25.11 without leave to amend, on the basis that facts
    concerning these containers were irrelevant to its claim, is conclusive against
    this argument. The appellants submission that it did not instruct its counsel
    to consent to the order is irrelevant to this proceeding.

[6]

The motion judge found there was no evidence
    that the parties had agreed to waive the limitation period and no explanation for
    the appellant having consented to the order, only to attempt to resurrect it
    over four years later. He properly rejected the argument that special
    circumstances permitted the addition of a claim to a claim already commenced,
    citing this courts decision in
Joseph v. Paramount Canadas Wonderland
, 2008 ONCA 469, 90 O.R. (3d) 401
holding
    that the doctrine of special circumstances no longer exists. He made no error
    in doing so. We note that the appellants request that this court appoint a
    five-judge panel to reconsider
Joseph
was denied.

[7]

In oral submissions, the appellant argued that
    s. 4 of the
Limitations Act

2002, S.O.
    2002, c. 24, Sched. B does not apply to proceedings that have already been
    commenced, and so does not bar amendments under r. 26.01. We disagree. As the
    court noted in
Joseph
, the rules
    must be read in light of the Act and its purpose in establishing a basic
    limitation period in s. 4. Amendments adding claims after the limitation period
    has expired constitute prejudice.

[8]

The appeal is dismissed.

[9]

The respondent is entitled to costs of $12,700,
    inclusive of taxes and disbursements.

C.W. Hourigan J.A.

G. Pardu J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: MacIvor v. Pitney Bowes, 2018 ONCA 381

DATE: 20180419

DOCKET: C63579

MacFarland, Huscroft and Nordheimer JJ.A.

BETWEEN

Lenard MacIvor

Plaintiff (Appellant)

and

Pitney Bowes Inc. and
Manulife Financial

The
    Manufacturers Life Insurance Company

Defendants (
Respondent
)

Jeffrey Strype and Mark De Sanctis, for the appellant

Gordon Jermane and Veronica Mohan, for the respondent

Heard: March 20, 2018

On appeal from the judgment of Justice Andra Pollak of
    the Superior Court of Justice, dated March 7, 2017, with reasons reported at
    2017 ONSC 1550.

MacFarland J.A.
:

A.

Introduction

[1]

This is an appeal from a trial judgment holding that the appellant,
Lenard MacIvor, as a former
    employee of Pitney Bowes, had no coverage for his claim under the long term
    disability policy of the Manufacturers Life Insurance Company (the Manulife
    Policy).

[2]

The appellant suffered a traumatic brain injury and a severe back injury
    during a company sponsored event in Costa Rica on April 16, 2005. He was
    unaware of the permanent and disabling nature of his brain injury until after
    he had resigned his employment with Pitney Bowes.

[3]

Three issues are presented in this appeal: (1) whether the appellant, as
    a former employee of Pitney Bowes, is entitled to coverage under
the Manulife Policy
;
    (2) whether the appellant submitted a timely proof of claim; and (3) whether
    the one-year contractual limitation period in the policy bars the appellants
    claim.

[4]

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

B.

Background and Facts

[5]

Briefly stated, the material facts are as follows.

[6]

Following his accident, the appellant was off work for nearly four
    months and returned to work in August 2005. It is clear from the history and
    chronology set out in an Agreed Statement of Facts that his work performance
    deteriorated dramatically from what it had been. Paragraph 2 of the Agreed
    Statement of Facts set out the appellants employment history for the years
    preceding the accident where, between 1996 and 2005, he rose through the ranks,
    from junior sales representative to Division Sales Vice President, managing
    over 130 sales representatives.

[7]

He was a different man when he returned to his employment following the
    accident. Paragraph 5 of the Agreed Statement of Facts sets out the
    difficulties he encountered in resuming his employment. His responsibilities
    were continuously reduced and in frustration he quit his job at Pitney Bowes on
    August 11, 2008. Within days he took up employment with Samsung to perform a
    role similar to the one he held at Pitney Bowes before his accident.

[8]

The difficulties hed experienced in job performance before leaving
    Pitney Bowes soon became apparent and he was fired from Samsung in August 2009.
    He asked Samsung about making a Long Term Disability Claim and was told that, because
    his injury occurred when he was working for Pitney Bowes, he would have to
    apply under that policy. He tried to train as a real estate agent but his
    efforts resulted in overall failure.

[9]

It is apparent from the medical evidence summarized in the Agreed
    Statement of Facts, at paras. 13-14, that the appellant was, for a long time,
    unaware of the seriousness of his brain injury and in particular the permanent
    nature of that disability. As Dr. Lad recorded in his notes Mr. MacIvor
    thought that he would recover from the effects of his brain injury.

[10]

On
    September 9, 2010 the appellant applied for Long Term Disability benefits and
    provided proof of claim. On November 1, 2010 the respondent denied his claim. On
    April 11, 2011 he commenced this proceeding.

[11]

The
    parties agree the appellant is:

[U]nable to perform the essential and material duties of his
    regular occupation and for any occupation for which he was reasonably fitted,
    or could so become, by education, training or experience under the terms of the
    Manulife policy, and has been since the date of his injury in Costa Rica on
    April 16, 2005.

They further
agree
that as such, he meets the qualification for disability benefits as set out in
    the
Manulife
Policy. The respondent agrees
    that it received sufficient notice of the claim in April 2005.

[12]

There
    is no issue that the appellant had coverage while he was employed. The
    respondent argues however, that: [h]e had access to [Long Term Disability]
    benefits if he applied while he was employed and, therefore, covered. Once he
    was outside of this coverage and/or failed to meet the Policys terms, he no longer
    had entitlement to claim; and that [t]he policy indicates that coverage ends
    when employment ends.

[13]

The
    trial judge accepted this argument. She concluded, at para. 16, that the policy
    states in clear terms that there is no coverage for persons who are not
    employed by Pitney Bowes.

C.

Analysis

(1)

Issue #1: Is the appellant, as a former employee of Pitney
    Bowes, entitled to coverage under
the Manulife Policy?

[14]

The
    trial judges conclusion that the policy provided no coverage for former employees
    raises a question of law reviewable on a standard of correctness. It arises in
    the context of the interpretation of a standard form group policy insurance:
Ledcor

Construction Ltd. v. Northbridge Indemnity Insurance Co.
, 2016 SCC 37, [2016] 2 S.C.R. 23
.

[15]

The
    respondents position quite simply is that the Manulife Policy provides for
    coverage only during employment and that coverage ended when the appellant resigned
    from his position on August 11, 2008.

[16]

The
    language of the policy upon which the respondent relies to deny the appellants
    claim is found at p. 9 of the policy:

TERMINATION OF COVERAGE

Your coverage will terminate on the earliest of the following
    dates unless continuation of coverage is provided under the Extension of
    Coverage provision:

·

the day on which you cease to be Actively Employed;

[17]

Actively
    Employed is a defined term. There is no issue that the appellant ceased to be
    actively employed at Pitney Bowes on the date he quit, August 11, 2008.

[18]

In
Ledcor
, the Supreme Court summarized the governing principles of
    interpretation applicable to insurance policies. The primary interpretive principle
    is that where the language of the insurance policy is unambiguous, effect
    should be given to that clear language, reading the contract as a whole:
Ledcor
,
    at para. 49.

[19]

In
    my view, the language of the Manulife Policy when considered as a whole is
    clear; it means only that coverage does not continue when an employee begins
    working for another employer or after the employee has retired. The Termination
    of Coverage language relates to future claims, not claims that may have arisen
    during the course of the employees employment. In other words, if an
    employees claim arises as the result of an occurrence that takes place during
    their employment, the policy provides coverage. The additional words unless
    continuation of coverage is provided under the Extension of Coverage provision
    supports this conclusion.

[20]

Moreover
    the Manulife Policy also provides:

TOTAL DISABILITY BENEFITS

A Monthly Benefit will be paid if you become Totally Disabled
    while covered under the Long Term Disability Coverage and are under the
    continuing care of a physician.

[21]

The
    language of this provision confirms the entitlement to be paid a monthly
    benefit if the total disability occurs during the coverage period. I note that
    this provision contains no language indicating that it applies only to current
    employees.

[22]

Where
    the language of a policy is ambiguous, the general rules of contract
    construction must be employed to resolve that ambiguity:
Ledcor
, at
    para. 50. These principles include that the interpretation should not give
    rise to results that are unrealistic or that the parties would not have
    contemplated in the commercial atmosphere in which the insurance policy was
    contracted:
Ledcor
, at para. 50. If ambiguity still remains after
    applying the general principles, then the principle that coverage provisions are
    to be interpreted broadly, and exclusion clauses narrowly, may be considered:
Ledcor
,
    at para. 51.

[23]

These
    principles do not support the respondents position. The Manulife Policy does
    not contain the type of exclusionary language that terminates coverage for undiscovered
    disability claims the employee had and that originated during their employment,
    when their employment ceases. To so conclude would leave former employees, like
    the appellant, in the untenable position of having no disability coverage from
    either their former employer or any new employer. Such a result would be
    contrary to the very purpose of disability insurance and the plain meaning of
    the coverage provision.

[24]

Subject
    to the policy requirements to provide timely proof of claim and to commence the
    claim within the relevant limitation period, if the incident or illness
    occurred or arose during the currency of employment, coverage will be provided
    and the policy must respond: see
Smith v. Empire Life Insurance Co.
(1996)
, 19 C.C.E.L. (2d) 171 (Ont. Gen.
    Div.), at para. 16, leave to appeal refused, 1996 CarswellOnt 3896 (Div. Ct.),
    leave to appeal refused, 1996 CarswellOnt 3671 (C.A.);
Smith v. Empire Life
    Insurance Co.
(1998), 83 O.T.C. 140 (Gen. Div.);
Spring v. A. Saley
    & Associates Ltd.
(1997), 54 O.T.C. 149 (Gen. Div.), at para. 36, varied
    on other grounds (1999), 123 O.A.C. 175 (C.A.); and
Tarailo v. Allied
    Chemical Canada Long Term Disability
(1989), 68 O.R. (2d) 288 (Sup. Ct.),
    at paras. 25 & 43.

(2)

Issue #2: Did the appellant submit a timely proof of claim under the policy?

[25]

The
    policy requires that proof of claim be filed within 90 days of the date
    benefits would begin. Benefits would begin only when an employee is no longer
    receiving employment income. There is no dispute that the appellant continued
    to receive his salary equivalent as an employee of Samsung until he was fired
    in August 2009 (Agreed Statement of Facts, at paras. 7-9). When the appellant
    was fired from Samsung, he also received a termination package.

[26]

The
    record is anything but clear on the precise dates to which the Samsung package
    extended. We do not know what the pay period was and whether he was paid to the
    end of August 2009 or later. We know that the package represented eight months
    of salary. Assuming that payment began on September 1, 2009 he would have been
    paid through the end of April 2010 and thus became eligible to receive benefits
    on May 1, 2010.

[27]

Benefits
    under the policy are paid monthly in arrears. Accordingly, the date that
    benefits would begin was June 1, 2010 at the earliest. The appellants proof
    of claim was filed September 9, 2010. Based on the date of termination and the
    package that the appellant received from Samsung, the proof of claim appears to
    have been provided some 10 days after the required 90-day contractual period.

[28]

It
    would be most unfair, in my view, to permit the imperfect compliance with the
    90-day contractual period to defeat the appellants claim in the particular circumstances
    of this case. The appellant was injured during his employment when he was
    covered by a Long Term Disability policy, but did not appreciate the
    significance of his injury during his employment. The respondent has conceded
    the appellants total disability as of the date of the accident and that he
    enjoyed coverage under its policy at the time of his injury. The appellant left
    his employment sometime after he was injured but before he was aware of the
    extent of his injury. The imperfect compliance with the requirement to file the
    proof of claim form may only be a matter of 10 days at most. His employer and
    the insurer were aware that he had suffered a serious injury that included a
    brain injury at the outset. All of the foregoing facts have been known to the
    parties for years now.

[29]

Although
    relief from forfeiture pursuant to the provisions of the
Insurance Act
,
    R.S.O. 1990, c. I.8, or the
Courts of Justice Act
, R.S.O. 1990, c. C.43,

was not raised at
    trial, given the facts outlined above, it is in the interests of justice to
    grant that relief here.

(3)

Issue
    #3: Does the one-year limitation period in the policy apply?

[30]

The
    respondent alternatively relies on the one-year limitation period set out in the
    Manulife Policy to say that, in any event, the claim is out of time. Even on
    the appellants evidence, he became aware of his ability to claim in August
    2009. Accordingly, if the one-year contractual limitation period began tolling
    on that date, the claim issued in April 2011 is out of time.

[31]

The
    policy provides:

Legal Action

No legal action for the recovery of any claim may be brought
    against Manulife Financial until 60 days have elapsed from the date written
    proof of loss has been furnished to Manulife Financial. Any such action must be
    brought within one year after filing written proof of loss.

[32]

Proof
    of loss is not a defined term in the policy. I take this term to be a
    reference to written proof of claim which the policy requires to be received by
    Manulife Financial within 90 days of the date benefits would begin. The
    appellant filed his proof of claim on September 9, 2010 and his claim was denied
    by the respondent on November 1, 2010.

[33]

It
    is arguably unclear whether the policy language required the appellant to
    commence his action within one year of November 1, 2010, the date that Manulife
    denied the claim, or whether the one-year period runs from September 9, 2010, the
    actual date the proof of claim was submitted. Because the statement of claim
    was issued on April 11, 2011, it is not necessary to resolve that question as
    regardless of how the one-year contractual period is to be calculated, it was
    met on the facts of this case.

[34]

In
    any event, in view of this courts decision in
Kassburg v. Sun Life
    Assurance Company of Canada
, 2014 ONCA 922,
124 O.R. (3d) 171
,
it is unlikely that the one-year period of limitation would be upheld: see
    paras. 53-62.

[35]

The
    respondent argues that the appellant knew he had a claim while he was still
    employed at Pitney Bowes and ought to have brought his claim much earlier. It
    points to the fact that his awareness was sufficient to apply for WSIB
    benefits in 2005 and that he continues to receive those benefits.

[36]

This
    argument fails to take into account the fact that the appellant suffered not
    only a traumatic brain injury in April 2005 but that he also had a significant musculoskeletal
    injury and was unable to work for nearly four months after the accident. The
    focus of medical attention at the time the appellant suffered his injuries
    appears to have been on his severe back injury. There is nothing in the Agreed
    Statement of Facts that explains or details in any way what the WSIB payments
    relate to. What is clear, however, is that it was not until his discussion with
    personnel at Samsung that he became aware that the seriousness of his brain
    injury would prevent him from working in the future.

[37]

The
    only reasonable available conclusion on this record is that the appellant could
    not reasonably have appreciated he had a cause of action until the end of
    August 2009. The claim was therefore not discovered until that time:
Limitations
    Act, 2002
, S.O. 2002, c. 24, Sched. B, at s. 5. Even on that basis his
    action was commenced well within two years of that date. I would also note that
    he did not receive his CPP disability pension until May 2011.

D.

Conclusion and Disposition

[38]

For
    these reasons, I would allow the appeal, set aside the judgment of the trial
    judge and in its place issue a judgment in accordance with these reasons.

[39]

As
    agreed between the parties, costs to the appellant fixed in the sum of $8,000
    inclusive of disbursements and HST.

Released: April 19, 2018 (J. MacF.)

J. MacFarland J.A.

I agree. Grant Huscroft
    J.A.

I agree. I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mader v. McCormick, 2018 ONCA 340

DATE: 20180406

DOCKET: C64159

Hourigan, Pardu and Huscroft JJ.A.

BETWEEN

Larry Mader

Applicant (Appellant in Appeal)

and

Tracy McCormick

Respondent (Respondent in Appeal)

Glenda McLeod, for the appellant

Judy Byrne and Kaitlin Jagersky, for the respondent

Heard: April 4, 2018

On appeal from the final order of Justice Robert D.
    Reilly of the Superior Court of Justice, dated July 13, 2017 with reasons
    reported at 2017 ONSC 4283.

REASONS FOR DECISION

[1]

Larry Mader appeals from the decision of the
    Superior Court of Justice upholding the Ontario Court of Justice decision
    dismissing his motion to appoint private counsel for two children, L.M., soon
    to be 16 years old, and N.M., now 13 years old.

[2]

Mader and Tracy McCormick were married in 1999
    and separated in 2010. The parties negotiated a separation agreement providing
    for the childrens primary residence with the respondent mother, alternating
    weekends with the father, weekday access until 7:00 p.m. (later to 8:30 p.m.)
    on Mondays and Tuesdays and until 5:30 p.m. on Wednesdays and Thursdays.

[3]

In or about 2013, the appellant initiated a motion
    to vary access. In this proceeding, the Office of the Childrens Lawyer (OCL)
    was appointed for the children. The OCL at Office conducted an investigation
    and concluded that the children did not want to vary the existing access
    schedule. The appellant withdrew his motion for an increase in access in
    October 2014. He maintained a motion to decrease child support, based on an
    argument that there was a shared custody agreement. That motion was dismissed
    in January 2015. One year later, the appellant elected to retire. In December
    2015, he moved again to increase his time with the children and to decrease
    child support. He wanted half of his mid-week access visits extended to
    overnight visits. In May 2016, the appellant moved for an order appointing the
    Office of the Childrens Lawyer. That motion was dismissed and no appeal was
    pursued.

[4]

In August 2016, the appellant moved for an order
    appointing a private lawyer for the children, who proposed to conduct an
    investigation in the same way as would the Office of the Childrens Lawyer:

I treat my private
    retainers for children the same way I do with the OCL appointments. In other
    words, I seek collateral information that confirms or contradicts the views and
    preferences of the children, and I require access to the children as requested.

Whenever possible,
    I meet with the children outside of either party's home to maintain neutrality.
    I would initially meet with the children together to explain my role, but after
    that, I would usually meet with them independently, unless requested by both
    children.

I would want the
    order to indicate that as the children's lawyer, I would have full power to act
    for the children as though they were parties to the proceedings and then have
    the right to:

make a full and independent inquiry of all circumstances relating to
    the best interests of the children,

to receive copies of all professional reports and all records relating
    to the children,

have production and discovery according to the Rules,

the right to appear and participate in the proceeding including the right
    to examine and cross examine witnesses, call evidence, and make submissions to
    the Court, including submissions regarding the positions, views and preferences
    advanced on behalf of the children,

to take such appeal proceedings as deemed appropriate,

seek costs relating to the proceedings when appropriate, and

the usual attached Appendix A regarding the
    production of police records.

[5]

The motion judge noted that the custody issues
    did not involve mobility issues and that this was not a fresh custody
    application. She dismissed the motion for appointment of private counsel for
    the children for the following reasons:

(a)

the children had OCL counsel two years ago and
    at that time, indicated that they did not want any change in the visitation
    arrangement;

(b)

the children are not exhibiting any behavioral
    or academic issues that would point to unhappiness with their time spent in
    each parent's care;

(c)

in one text exchange, the father indicated that
    L.M. did not want to talk about the issue of increased access to her father;

(d)

the father's insistence that the children become
    involved in the court application by having counsel appointed is not child
    focused;

(e)

as young teenagers, the investigation of their
    teachers and other collateral sources may be embarrassing and uncomfortable to
    them;

(f)

these children should not be burdened with being
    asked about their wishes again, so soon after they were last involved with an
    OCL counsel;

(g)

L.M. and N.M. are well-functioning young people
    who enjoy spending each weekday with both parents. This is what they have known
    for the past 6 years.

[6]

On appeal to the Superior Court of Justice, the
    appeal judge observed that the motion judge had accurately reviewed the
    jurisprudence. He was satisfied that her decision was proper, concluded that
    there was no palpable and overriding error, and dismissed the appeal.

[7]

The appellant argues that the motion judge
    was obliged to appoint counsel for the children and failed to pay heed to the
United
    Nations Convention on the Rights of the Child,
Can. T.S. 1992 No. 3, and that the appeal
    judge erred in upholding the decision below

[8]

We do not agree.

[9]

Rule 4(7) of the
Family Law Rules
, O. Reg.114/99 provides that [i]n a case that involves a child who
    is not a party, the court may authorize a lawyer to represent the child, and
    then the child has the rights of a party, unless the court orders otherwise.
    The wording of the provision is permissive, not mandatory.

[10]

Article 3 of the
United Nations
    Convention on the Rights of the Child,
ratified by Canada
    in 1991, provides in part that [i[n all actions concerning children, whether
    undertaken by public or private social welfare institutions, courts of law,
    administrative authorities or legislative bodies, the best interests of the
    child shall be a primary consideration.

[11]

Article 12 of the same provides as follows:

1.
States Parties shall assure to the child who is capable of forming
    his or her own views the right to express those views freely in all matters
    affecting the child, the views of the child being given due weight in
    accordance with the age and maturity of the child.

2.
For this purpose, the child shall in particular be provided the
    opportunity to be heard in any judicial and administrative proceedings affecting
    the child, either directly, or through a representative or an appropriate body,
    in a manner consistent with the procedural rules of national law.

[12]

The decision whether or not to appoint a lawyer
    for children is a discretionary decision which should focus on the best
    interests of the children. Deference is owed to a motion judges assessment of
    the advantages and disadvantages of such an appointment:
Fiorito v.
    Wiggins
, 2014 ONCA 603.

[13]

As Fleury J. noted in
Reynolds v.
    Reynolds
,
[1996] O.J. No. 2230,
at para. 3:

This remedy [appointing
    a lawyer for the children] should not be available only for the asking. In as
    much as it implicates the children very directly in the entire litigation, it
    is a very blunt instrument indeed. It can cause untold harm to impressionable
    children who may feel suddenly inappropriately empowered against their parents
    in a context where the children should be protected as much as possible from
    the contest being waged over their future care and custody. All actions
    involving custody and access over children should be governed by one paramount
    consideration: no one should be allowed to act in a way that might endanger
    their well-being. The test of "the best interests of the children" as
    insipid and fluid as it might be, still remains the benchmark against which any
    person wishing to interfere in their lives should be measured.

[14]

We are not persuaded that the motion judge erred
    in balancing the childrens best interests or that the appeal judge erred in
    his consideration of the appeal. The appeal is dismissed with costs to the
    respondent fixed at $12,000 all-inclusive.

C.W. Hourigan J.A.

G. Pardu J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mott (Re), 2018 ONCA 404

DATE: 20180427

DOCKET: C64247

Strathy C.J.O., Watt and Epstein JJ.A

IN THE MATTER OF: Brandon Mott

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jonathan Fernandes, for the appellant

Katie Doherty, for the respondent
the
    Attorney General of Ontario

Julia A. Zamprogna Ball
è
s, for the respondent the Southwest Centre for Forensic Mental Health
    Care, St. Josephs Health Care London

Heard: April 25, 2018

On appeal against the disposition of the Ontario Review
    Board dated June 29, 2017.

REASONS FOR DECISION

[1]

On October 28, 2014, the appellant, Brandon Mott, was found not
    criminally responsible on account of mental disorder on a charge of theft
    under, contrary to the
Criminal Code
. He has been subject to the
    jurisdiction of the Ontario Review Board since that time. He is now 28 years
    old and has been diagnosed as suffering from a plethora of variegated
    psychological and neuropsychological illnesses.

[2]

In July 2015 the Board first ordered the appellant be detained. In June
    2016 the Board concluded that his detention was still necessary, and he was
    detained at the Southwest Centre for Forensic Mental Health, St. Josephs
    Health Care London (the Hospital) with privileges to enter the community with
    staff or an approved person and the ability to enter a substance abuse program.
    In September 2016, the appellant started to display signs of decomposition. He attempted
    to elope from the Hospital and exhibited behaviour consistent with symptoms of
    schizophrenia. However, the appellant also showed some improvement in certain
    areas.

[3]

In the review hearing that took place on June 21, 2017 the appellant
    conceded that he remained a significant risk to the community. A

joint
    submission

was put forward by the Hospital and agreed to by all parties
    that the appellants detention order continue with certain privileges. The Hospital
    recommended a disposition allowing the appellant to enter the community indirectly
    supervised and to have passes for up to 48 hours to enter the community
    accompanied by an approved person. The Hospital also recommended that the
    appellant attend and participate in a substance abuse treatment program. The
    Ministry of the Attorney General agreed with the Hospitals position. The only
    difference in the position taken by the appellant is that he wanted to have at
    least one 72 hour pass to stay with his mother in the community. Thus, the singular
    dispute before the Board was whether the appellant should receive 48 hour or 72
    hour passes into the community.

[4]

It was against this background that the Board considered the evidence of
    Dr. Desjardins, the appellants attending physician, and concluded that the
    appellant continued to be a significant threat to the safety of the public. The
    Board went on to recognize that the appellant had not been treated since May of
    2017, a situation that was about to change. The Board expressed the hope that
    upon receiving treatment the appellant would be able to participate in the
    privileges endorsed by the Hospital. Citing the evidence before it, with
    particular reference to that of the Hospital, the Board found that the most
    necessary and appropriate disposition was a detention order including the
    privileges requested by the Hospital, specifically: (i) the opportunity to
    enter the community of Elgin and Middlesex indirectly supervised; (ii) granting
    the appellant passes for up to 48 hours to enter the community of Southern
    Ontario accompanied by an approved person; and (iii) the opportunity for the
    appellant to participate in substance abuse treatment programs in Southern
    Ontario.

[5]

On appeal, the appellant attempts to resile from the joint position that
    a detention order should continue. He argues that the Board ignored his claims
    that his diagnosis is substance-induced psychosis, rather than a freestanding
    psychiatric issue. He submits that the Board misapprehended the evidence of his
    view of the connection between his use of drugs and psychotic symptoms, and
    mistakenly drew a negative inference concerning his insight into his illness.

[6]

We disagree. The Board was clearly aware that the appellant had long
    maintained that his psychotic behaviour was related to his illicit drug use. The
    Board was entitled to accept Dr. Desjardins view regarding the appellants
    diagnosis and conclude that his self-diagnosis evidenced his lack of insight into
    the nature of his mental illness. Moreover, the evidence before the Board was
    that the appellant suffered from a major mental illness, whatever the cause. There
    was ample evidence regarding the appellants mental status at the time of the
    hearing that provided an evidentiary foundation for the Boards findings: we
    see no indication that the Board ignored any relevant evidence.

[7]

The Boards conclusion that the appellant was a significant threat
    discloses no error. The Board was entitled to rely and act on counsels
    acknowledgment that the significant threat standard had been met: see
Kelly
    (Re)
,
2015 ONCA 95, at para. 6. In
Osawe (Re)
,
2015
    ONCA 280, this court recognized the important role joint submissions play in
    proceedings before the Ontario Review Board. We agree that the Boards
    procedures should encourage the use of joint submissions.

[8]

Against this background, the Board treated the significant risk issue in
    a sensible manner. Because the issue was not contested the Board did not
    belabour the question of significant risk in its reasons. However, the Boards
    finding of significant risk was nonetheless clear. Having considered all of the
    evidence, including that of the Hospital, the Board was satisfied that the
    appellant remained a significant threat to the safety of the public.

[9]

In these circumstances we are not persuaded that there is any basis to
    interfere with the Boards disposition.

[10]

Accordingly,
    the appeal is dismissed.

G.R. Strathy C.J.O.

David Watt J.A.

Gloria Epstein J.A.