CITATION:

R. v. Snyder, 2011
          ONCA 445

DATE: 20110610

DOCKET: C48284

COURT OF APPEAL FOR ONTARIO

Doherty, Feldman and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle Snyder

Appellant

Brian Snell, for the appellant

Craig Harper, for the respondent

Heard:  March 10, 2011

On appeal from the convictions
          entered by Justice D. Belch of the Superior Court of Justice on May 22, 2007.

Doherty J.A.:

I

OVERVIEW

[1]

The appellant was convicted of one count of
    robbery and one count of breaking and entering with intent to commit
    robbery.  He received a sentence of 29
    months.  The appellant appeals his
    convictions.

[2]

Counsel for the appellant advanced three
    submissions.  First, he argued that the
    trial judge erred in admitting, for its truth, an out-of-court statement made
    by a Crown witness, Kevin Doucette.  In
    that statement Doucette implicated the appellant in the robbery, but when he
    testified at trial, he denied knowing the appellant.  The trial judge held that the out-of-court
    statement was sufficiently reliable to justify its admission under the
    principled approach to the admissibility of hearsay evidence.

[3]

Counsels second argument rests on the alleged
    failure of the trial judge to adequately caution himself as to the dangers
    inherent in relying on the evidence of the two Crown witnesses, Doucette and
    Stuart Burgess.  Both had participated in
    the robbery, had criminal backgrounds, and were, by any definition, unsavoury
    witnesses.

[4]

Third, counsel submits that the affidavit of
    Stuart Burgess, sworn almost two years after the trial, should be admitted as fresh
    evidence on appeal.  At trial, Burgess
    testified that he committed the robbery at the appellants request in exchange
    for the forgiveness of a drug debt he owed to the appellant.  In the affidavit, Burgess recanted his trial
    testimony and claimed that the appellant had nothing to do with the robbery.  According to his affidavit, Burgess falsely
    identified the appellant because he was told to do so by others who were
    involved in the robbery.

[5]

I would dismiss the appeal.  The trial judge, no doubt influenced by trial
    counsels express concession that Doucettes statement was sufficiently
    reliable to justify its admission as an exception to the rule against hearsay,
    did not err in admitting the statement.  Nor does the record offer any support for the claim that the trial judge
    failed to take into account the self-evident dangers associated with acting on
    the testimony of Burgess and the statement of Doucette.  Finally, I would not admit the fresh evidence.  Burgesss affidavit, placed in the context of
    all of the statements he made, the evidence at trial and the cross-examination of
    Burgess on his affidavit, could not reasonably have affected the reliability of
    Burgesss trial testimony implicating the appellant.

II

THE FACTS

(a)

The robbery and arrests

[6]

On October 19, 2005, Burgess and Doucette pushed
    their way into a residence located in Kingston, Ontario.  They had reason to believe that a drug dealer
    lived in the residence and that they would find drugs and cash there.  In fact, the drug dealer had moved out about
    a month earlier, although his brother still lived there.

[7]

Burgess and Doucette entered the residence armed
    with lead pipes.  A melee ensued during the
    robbery.  Burgess was slashed across the
    face by one of the victims.  Doucette was
    also stabbed.  They fled the scene with a
    small amount of cocaine, cash and electronic items.

[8]

Burgess was bleeding profusely from the slash
    across his face.  His cohorts took him to
    the nearby hospital where, as it turns out, the police arrived shortly
    afterwards with the victims of the robbery.  The victims identified Burgess and he was arrested at the hospital.  Doucette was arrested the next morning.

[9]

Burgess and Doucette gave audiotaped statements
    to the police after their arrests.
[1]
In those statements, they both indicated that
    the appellant had asked them to commit the robbery.  Both Burgess and Doucette eventually pled
    guilty to the robbery.  Burgess testified
    at the appellants preliminary inquiry and implicated the appellant.

(b) Burgesss
    testimony

[10]

Burgess testified at trial that the appellant
    called him on the day of the robbery and offered to forgive a $600 drug debt if
    Burgess would take part in the robbery.  The appellant assured him that the robbery would yield money and drugs
    and that it would be a pushover.

[11]

According to Burgess, the appellant picked him
    up later that day outside of the hotel where Burgess lived.  They drove to a street near where the robbery
    was to occur.  Burgess testified that he,
    the appellant and Doucette sat in the backseat.  A man and a woman Burgess did not know were in the front seat.  The woman was driving.  Burgess and Doucette left the car and went to
    the residence to commit the robbery. The other three remained in the vehicle
    parked nearby.

[12]

Burgess described breaking into the residence
    and the ensuing melee during which he was slashed across the face and Doucette
    was stabbed.  According to Burgess, he
    and Doucette fled the scene of the robbery and ran back to the vehicle where
    the others were waiting.  Burgess testified
    that he gave the drugs he stole to the appellant and kept the money.

(c)  Doucettes evidence

[13]

When called to testify, Doucette could remember committing
    the robbery and being stabbed by one of the victims.  He could not recall whether anyone was with
    him during the robbery.  Doucette testified
    that he knew Stuart Burgess.  He insisted
    that he did not know and had never heard of the appellant.

[14]

The Crown was allowed to cross-examine Doucette
    on the contents of the audiotaped portion of the statement that Doucette gave
    when he was arrested the morning after the robbery.  Doucette repeatedly indicated that he was
    high on drugs when he made the statement, could not recall what he said, and
    could not comment on its truth. The trial judge admitted the statement under
    the principled exception to the rule against hearsay evidence.

[15]

In his statement, Doucette indicated that the
    appellant called him on the morning of the robbery and asked him to commit the
    robbery.  The appellant indicated that
    there were drugs and money available at the place that was to be robbed.  Doucettes statement was consistent with
    Burgesss trial testimony in many respects.  Like Burgess he described driving to the robbery from the hotel, in the
    back seat with Burgess and the appellant.  An unknown male and female sat in the front.  In his statement, Doucette described
    committing the robbery with Burgess and returning to the vehicle.  He indicated that both he and Burgess were
    injured in the robbery.  According to
    Doucettes statement, the appellant gave him some of the money stolen in the
    robbery.

[16]

Doucette was also confronted with a transcript
    of the proceedings at his guilty plea on the robbery charge.  In those proceedings, he admitted facts that
    were consistent with the contents of his statement.

(d)  The defence evidence

[17]

The appellant did not testify.  He did, however, call an alibi witness who
    indicated that the appellant was at home at the time of the robbery.  The trial judge also admitted the appellants
    statement to the police in which he told them he was at home at the time of the
    robbery.

III

THE GROUNDS OF APPEAL

(a) The admissibility of Doucettes statement

[18]

The appellant submits that the audiotaped
    portion of Doucettes statement to the police was not shown by the Crown to be
    sufficiently reliable to warrant its admissibility under the authority of
R. v. Khelawon
, [2006] 2 S.C.R. 787.  In his submissions, counsel for the appellant
    focussed on the appellants inability to effectively cross-examine Doucette on
    the contents of his statement.  Counsel
    submitted that as Doucette purported to have no recollection of making the
    statement, he could not be meaningfully questioned about the truth of its
    contents or his reasons for making it.  Counsel
    contends that without meaningful cross-examination, the other potential
indicia
of reliability could not carry
    the burden of admissibility.

[19]

The ability to cross-examine Doucette on his
    statement was an important consideration in assessing the reliability of that
    statement.  Clearly, Doucettes professed
    inability to recall making the statement was an impediment to
    cross-examination.  Crown counsels
    attempt to cross-examine him on the statement demonstrates the problems posed
    by Doucettes insistence that he could not recall making it.  Cross-examination on important aspects of the
    statement was, however, not entirely foreclosed.  Doucette could be cross-examined on what was
    the crucial part of his statement  the appellants alleged involvement in the
    robbery.

[20]

In his statement, Doucette could be heard identifying
    the appellant by name as the person who had put him up to the robbery.  In his trial testimony, Doucette said that he
    did not know the appellant and had never heard of him.  This inconsistency gave rise to the obvious
    question  how did Doucette come to name the appellant as the person who put
    him up to the robbery when, according to his testimony, he had never heard of
    the appellant?  Nothing in Doucettes
    professed inability to recall making the statement prevented full
    cross-examination on how he could name a person he claimed to have no knowledge
    of when he testified.

[21]

Counsel for the appellant did not question
    Doucette about the obvious and important inconsistency between his statement
    and his testimony.  I can only assume
    that he was not questioned because the answers would not have been helpful to
    the appellant.  Cross-examination on this
    issue was certainly possible but apparently not advisable.  Without a plausible explanation for
    identifying a person that he claimed never to have heard of, cross-examination
    of Doucette on the other details of his statement would have been of little
    assistance to the appellants cause.

[22]

I am satisfied that the trial judge correctly
    held that Doucettes statement was admissible for the truth of its
    contents.  I reach this conclusion independently
    of trial counsels concession that the statement was sufficiently reliable to
    be admitted as an exception to the hearsay rule.  I would add, however, that a concession like
    that made in this case must be given significant weight by this court.

(b)  Did the trial
    judge give himself an adequate
Vetrovec

    warning?

[23]

The appellant submits that because the trial
    judge expressly adverted to some of the reasons for approaching the evidence of
    Burgess and Doucette with caution, it must be assumed that he did not bear in
    mind the other reasons for approaching their evidence cautiously.  This argument assumes that a trial judge
    must, in his or her reasons, address
Vetrovec

    concerns in much the same manner as the trial judge does in his or her
    instructions to a jury.

[24]

There is no need to import the requirement of a
Vetrovec
 caution designed to alert juries
    to the danger of relying on the evidence of certain witnesses into a trial
    judges reasons for judgment.  Judges
    know the risks inherent in relying on witnesses like Burgess and Doucette.  It would be pure formalism to require judges
    to articulate those dangers in their reasons.

[25]

This was a straightforward, short, single-issue
    case.  The Crowns case depended on Burgesss
    testimony and Doucettes statement.  The
    credibility of both was open to question for several obvious reasons.  To argue that the trial judge did not properly
    scrutinize their evidence because he did not specifically enumerate all the
    reasons for that scrutiny is to suggest that he all but missed the central
    feature of the entire case.  It would
    take more than a simple failure by the trial judge to expressly advert to the
    dangers inherent in relying on the evidence of witnesses like Burgess and
    Doucette to convince me that he did not have regard to those dangers in
    deciding the case.

(c)  The admissibility of the fresh
    evidence

(i) The substance of the fresh evidence

[26]

On February 5, 2009, almost two years after he
    testified at the appellants trial, Burgess swore an affidavit in which he
    recanted his trial testimony.  In the
    affidavit he said:

Kyle Snyder was not involved in this robbery in any
    way whatsoever.  I met Kyle a number of
    times since we had a similar circle of friends, but I did not know him
    well.  We have never really spoken to
    each other.  I never bought drugs from
    Kyle Snyder, nor have I ever owed him money.  The reason I gave Kyles name is because the people who drove me to and
    from the scene told me to give his name as the person who planned the robbery
    if I was ever caught.

[27]

In the affidavit, Burgess alleged that his drug dealer,
    whom Burgess refused to identify, had recruited him to assist in the robbery.  Burgess stated that when the police interviewed
    him, he was high on cocaine and pain killers and the police pressed him for the
    names of other persons involved in the robbery until he gave them the
    appellants name.

[28]

In addition to Burgesss affidavit and his
    cross-examination on that affidavit, counsel filed a copy of Burgesss
    statement to the police on the night of the robbery, the proceeding on his
    guilty plea, and his testimony at the appellants preliminary inquiry.  These materials were not offered as
    freestanding fresh evidence but as context to assist in determining the
    admissibility of Burgesss affidavit.  Neither
    counsel suggested that those materials were not properly part of the fresh
    evidence motion.

[29]

Burgesss statement to the police on the night
    of the robbery was given under oath after Burgess was advised of his right to
    counsel. The interview was video recorded.  Burgess told the police that he had received a telephone call from a
    friend that afternoon.  Burgess owed the
    friend money from a marijuana transaction sometime earlier.  The friend offered to forgive the debt if Burgess
    would go to a residence with another person and stand there while the other
    person robbed the cocaine dealer who lived there.  Burgess initially said that he did not want
    to give the police the names of anyone else involved.

[30]

Burgess went on in his statement to describe
    being picked up in a motor vehicle and driven to the scene of the robbery.  He described the robbery, his injuries and
    his visit to the hospital.  Burgess did
    not place the person who he said had recruited him for the robbery in the
    car.  He referred to three other
    individuals in the car, including Doucette.

[31]

After Burgess had gone over the robbery in some
    detail, one of the police officers said:

You dont wanna tell us who the fellow that called
    you, you wont tell us his name

[32]

Burgess replied:

His name is Kyle Snyder.

[33]

Burgess explained that Snyder was a drug dealer
    from whom he had purchased marijuana some time earlier.  Burgess owed Snyder money as a result of that
    purchase.  As far as Burgess was aware,
    Snyder and Doucette had known each other in jail.  After Burgess identified Snyder as the person
    who solicited his assistance in the robbery, the police did not ask Burgess
    whether Snyder was in the car before and/or after the robbery.

[34]

Burgess testified at the appellants preliminary
    inquiry in May 2006, some seven months after he had been arrested and given his
    statement to the police.  Burgesss
    testimony was consistent with his statement, except in his testimony he placed
    the appellant in the car that had picked him up and driven him, Doucette and
    two others to the robbery scene and then to the hospital after the robbery.

[35]

At the preliminary inquiry, Burgess testified
    that he had seen the appellant in jail while awaiting trial.  The appellant had asked Burgess to testify on
    his behalf, but Burgess had refused.  Crown counsel asked Burgess whether he had been threatened while in
    custody.  Burgess answered:

Well, not necessarily.  Let them come and threaten me

Im  Im not scared of the threatening.

[36]

Eight months after testifying against the
    appellant at the appellants preliminary inquiry, Burgess entered a guilty plea
    on the robbery charge.  The facts read in
    to support the guilty plea identified Snyder as the person who enlisted Burgess
    to commit the robbery in exchange for forgiveness of a drug debt.  Burgess expressly stated that the facts read in
    were true and that he had nothing to add to them.  He also indicated that he had not been put
    under any pressure and was pleading guilty of his own free will, insisting that
    he wanted to take responsibility for his actions.

[37]

In speaking to sentence, Burgesss counsel
    stressed that Burgess had been cooperative with the police from the outset and
    that as a result of his cooperation he had been assaulted in the jail and
    eventually placed in protective custody.  The sentencing judge made it clear to Burgess that he had committed a
    very serious crime that would call for a penitentiary term but for his guilty
    plea and cooperation.  Burgess acknowledged
    the seriousness of the offence.  Having
    regard to the plea and the cooperation, the trial judge imposed a sentence of
    350 days, having taken into account 52 days of pre-trial custody.

[38]

Burgess testified at the appellants trial on
    April 2, 2007.  Once again, he indicated
    that the appellant had called him and arranged for him to participate in the
    robbery in exchange for the forgiveness of an outstanding drug debt.

[39]

Burgess completed the custodial portion of his
    robbery sentence on September 7, 2007.  However,
    he found himself back in custody in 2008 on unrelated matters.  While in custody in either late 2008 or early
    2009, Burgess was visited by a lawyer who he understood was an associate of counsel
    for the appellant.  According to Burgess,
    he had no idea how it was that this person came to see him in jail.  As he put it, the appearance of a lawyer came
    totally out of the blue.

[40]

In his cross-examination on his affidavit,
    Burgess explained that the lawyer told him that the appellant was still in
    custody and was appealing his sentence.  He asked Burgess some questions, apparently reading either from the
    trial transcript or disclosure materials.  Burgess immediately decided to tell this lawyer that his testimony was
    false and that the appellant had nothing to do with the robbery.  Burgess indicated that he felt badly about
    implicating an innocent person.

[41]

A representative of the appellant visited Burgess
    in jail on February 5, 2009.  Burgess
    signed the affidavit that was eventually tendered on the appeal.  According to Burgess, he did not read or even
    look at the affidavit before he signed it.  Burgess made it abundantly clear during his cross-examination on the
    affidavit that he did not care whether the affidavit was accurate.  He acknowledged that several paragraphs were in
    fact inaccurate.  He repeatedly insisted,
    however, that the appellant had nothing to do with the robbery.

[42]

Although Burgess was cross-examined on his
    affidavit at some length on two occasions by Crown counsel, the
    cross-examination was never completed.  On
    both occasions, Burgess became upset, declared that the questions were repetitive
    and left the cross-examination.

[43]

Apart from Burgesss explanation in his
    cross-examination, there is no evidence offered to explain the genesis of the
    recantation.  According to Burgess, he
    had told no one that he had falsely implicated the appellant before the visit
    from the appellants lawyer during which he recanted.
[2]
On Burgesss version of events, the
    recantation was the product of an unexpected, unexplained visit from the
    appellants lawyer that spontaneously precipitated previously unfelt pangs of
    conscience.

(ii)  The applicable legal principles

[44]

Section 683(1) allows an appellate court to
    receive evidence on appeal where it considers it in the interests of
    justice.  The broad discretion vested in
    the appellate court must be exercised having regard not only to the appellants
    interests in fully pursuing his appellate remedies, but also to the broader
    long-term interests of the administration of justice.  While it cannot be gainsaid that those
    interests are not served by maintaining verdicts that are shown to be
    unreliable through fresh evidence, those interests are also not served if the
    appellate process is routinely used to re-write the evidentiary trial record,
    often years after the trial.  Admitting
    fresh evidence on appeal of necessity undermines legitimate finality
    expectations.  That negative consequence
    is justified only if the overall integrity of the process is furthered.  Admitting evidence on appeal of facts that
    were litigated at trial is very much the exception to the accepted appellate
    process:
R. v. M.(P.S.)
(1992), 77
    C.C.C. (3d) 402 at p. 411 (Ont. C.A.).

[45]

The
    factors to be considered in exercising the discretion to receive fresh evidence
    have been set out in a long line of cases, most notably the often cited
R. v. Palmer and Palmer
, [1980] 1 S.C.R.
    759 at p. 775.  This court, in
Reference Re Truscott
(2007), 225 C.C.C.
    (3d) 321, at para. 92, described the exercise of the discretion as involving
    the answer to three questions:

·

Is the proffered evidence admissible under the
    rules of evidence applicable to criminal trials? [the admissibility
    requirement]

·

Is the evidence sufficiently cogent that it
    could reasonably be expected to have affected the verdict?  [the cogency requirement]

·

What is the explanation offered for the failure
    to produce the evidence at trial and how should that explanation affect its
    admissibility on appeal?  [the due
    diligence inquiry]

[46]

The first and third questions are easily
    answered on this appeal.  Burgesss evidence
    that the appellant was not involved in the robbery is admissible under the
    rules of evidence both as substantive evidence going to exculpate the appellant
    and as evidence impeaching the reliability of Burgesss trial testimony
    implicating the appellant:
R. v. Babinski
(1999), 135 C.C.C. (3d) 1
    (Ont. C.A.);
R. v. D.V.
(1995), 60
    B.C.A.C. 163 (C.A.);
R. v. Trudel
(2004), 182 C.C.C. (3d) 321 (Ont. C.A.).

[47]

The explanation for not producing Burgesss
    recantation at trial is obvious.  It did
    not exist until long after the trial.  The appellant has no due diligence problems in proffering this evidence
    on appeal.

[48]

The admissibility of Burgesss recantation comes
    down to whether it is sufficiently cogent that it could reasonably, when
    considered in the context of the rest of the evidence, be expected to have
    affected the verdict.  In
Reference Re Truscott
, at para. 100,
    this court described the cogency analysis in this way:

The cogency inquiry requires a qualitative
    assessment of the evidence proffered on appeal.
That evaluation must measure the probative
    potential of the evidence considered in the context of the entirety of the
    evidence admitted on appeal and heard at trial.
If the fresh evidence considered in this context could reasonably be
    expected to have changed the result at trial, the evidence is sufficiently
    cogent to justify its admission on appeal
[Emphasis added.]

[49]

There are features of Burgesss recantation that
    give it some potential probative value.  His recantation stands.  He has
    not, as in many of the other recantation cases, retracted his recantation and
    returned to the position he took at trial.  Burgesss recantation, like his trial evidence, also speaks directly to
    the appellants involvement in the robbery, the only live issue at trial.

[50]

The fact that evidence proffered on appeal has
    some potential probative value is not, however, enough to warrant its admission
    on appeal.  The appeal court must assess
    the potential value of that evidence.  The qualitative assessment referred to in
Truscott
demands a careful evaluation of the proffered evidence and
    the credibility of the witness.  That evaluation
    is not made with a view to determining the ultimate reliability and credibility
    of the evidence, but rather in the context of determining whether the proffered
    evidence is sufficiently cogent to warrant its admission on appeal.

[51]

The qualitative assessment begins by identifying
    the purpose or purposes for which the evidence is admissible.  As indicated above, Burgesss recantation is
    admissible for two purposes.  First, it
    is admissible as substantive evidence that the appellant was not involved in
    the robbery.  Burgesss recantation has
    value as substantive evidence only if it is credible.

[52]

Burgesss recantation is also admissible to
    impeach his trial testimony implicating the appellant.  An out-of-court statement made by a witness
    that is inconsistent with his or her trial testimony on a material matter can
    be put to that witness to challenge his or her credibility:
R. v.
    B. (K.G.)
, [1993] 1 S.C.R. 740 at pp. 755-56.  The out-of-court statement has potential
    impeachment value if it was made by the witness and is inconsistent with the
    trial testimony on a material matter.  Burgesss recantation undoubtedly meets both criteria.

[53]

A recantation can have impeachment value even if
    it is not believed.  Indeed, a
    demonstrably false recantation can have impeachment value.  I agree with the comment of Commissioner
    Kaufmann in his report on the Commission of Proceedings Involving Guy Paul Morin
    (1998), at pp. 1174-5:

The focus should not be placed only on the
    believability of the recantation, but also upon the believability of [the
    witnesss] original testimony, given the recantation.
[Emphasis added.]

[54]

As observed by Commissioner Kaufmann, the believability
    of the recantation is not the only question when its impeachment value is in
    issue.  That is not to say, however, that
    the credibility of the recantation is irrelevant.  In determining whether the recantation has
    sufficient impeachment potential to merit its admission on appeal, the appeal
    court must determine what a trier of fact could reasonably make of the
    recantation in its assessment of the credibility of that witnesss trial
    testimony.  The credibility of the
    recantation is relevant to that assessment.  Sometimes, the falsity of the recantation may enhance its potential
    impeachment value.  In other
    circumstances, a finding that the impeachment is palpably false may neutralize
    the impeachment potential of the recantation.  The impact of the falsity of the recantation on its impeachment value
    will depend on the totality of the circumstances, including any explanation
    offered for the recantation and the extent to which the recantation is
    supported by either the trial evidence or other evidence offered on appeal.

[55]

Babinski
offers a comprehensive analysis of the admissibility on appeal of recantation
    evidence offered to impeach trial testimony.  In
Babinski
, a witness
    recanted his trial testimony incriminating the appellant.  He then resiled from the recantation.  By the time the appeal was heard, it was
    clear that the recantation was false and that the recanting witness had
    fabricated evidence in an effort to implicate the appellant in the false
    recantation.

[56]

Relying on
Palmer
,
    itself a recantation case in which the court rejected the recantation as
    patently false, Rosenberg J.A. explained that the admissibility on appeal of the
    recantation required an assessment of the credibility of that recantation, even
    where it was offered only to impeach the contrary evidence given at trial.  He said, at paras. 51-52:

...
The decision of the Supreme Court of Canada
    in
Palmer
instructs the appellate
    court to assess the credibility of that evidence.
...
The appellate
    court cannot avoid the task of dealing with credibility, i.e. the truthfulness,
    of fresh evidence, especially recantations, simply on the basis that the
    evidence is tendered for the limited purpose of impeaching the credibility of
    the witness' trial evidence.

If the appellate court, which has the obligation
    to consider the sufficiency of the fresh evidence, is satisfied that the fresh
    evidence is not credible and does not affect the credibility of the testimony
    given by the witness or another witness at the trial, the evidence cannot meet
    the third
Palmer
requirement, and it
    is inadmissible.
To hold otherwise, would be to shirk the responsibility
    given to the appellate court by s. 683 of the Criminal Code, as interpreted in
Palmer
, to receive the evidence of
    witnesses on appeal.
To admit a recantation without regard to its
    credibility simply because it was made, would run afoul of the admonition in
Palmer
at p. 205 that it would not
    serve the interests of justice to permit any witness by simply repudiating or
    changing his trial evidence to reopen trials at will to the general detriment
    of the administration of justice. [Emphasis added.]

[57]

In addressing the recantation of the witness in
    the case at hand, Rosenberg J.A. stated, at para. 53:

If the only fresh evidence in this case was the bare
    recantation by L. [the witness] of the perfect crime statement, I would have
    considerable doubt that the evidence could pass the credibility threshold since
    the reasons provided for the allegedly untrue trial testimony and for the
    recantation can be shown to be patently false. ...
In those circumstances, the bare
    recantation is so lacking in credibility that even as impeaching evidence it
    lacks sufficient forensic value to overturn a conviction otherwise free of
    error.
[Emphasis added.]

[58]

Rosenberg J.A. went on to explain that the impeachment
    value of the witnesss recantation did not, however, depend solely upon its
    credibility.  Placed in the context of
    the other evidence, specifically the witnesss fabrication of evidence to
    implicate the appellant in the false recantation, the recantation had impeachment
    value.  He concluded, at para. 70:

... The fresh evidence in this case is not a simple
    repudiation.
Credible independent
    fresh evidence demonstrated that L. cannot be relied on at least in respect of
    evidence implicating this appellant.
The nature of that evidence shows him to be unreliable in all respects
    and not simply with respect to his post-trial statements.  [Emphasis added.]

[59]

The analysis in
Babinski
was applied in
R. v.
    McCullough
(2000), 142 C.C.C. (3d) 149 (Ont. C.A.).  In that case, the fresh evidence consisted of
    recantations by two Crown witnesses and some new forensic evidence.  The court ultimately admitted the recantation
    of one of the witnesses (D.) and the forensic evidence.  The recantation of the other witness (W.) was
    not admitted.  The court addressed the
    admissibility of her evidence at paras. 32-33, observing firstly, that her
    recantation and her reasons for recanting are not credible and, secondly,
    that:

That evidence [W.s recantation] is not credible
    and does not affect the credibility of her trial testimony or the testimony of
    any other witnesses at trial.
... In this case, having had the benefit of
    seeing W. testify and the opportunity to examine her evidence against other
    objective facts, I have been able to reach the conclusion that her proposed
    fresh evidence is incredible, without the need to pass on the veracity of her
    trial testimony.  [Emphasis added.]

[60]

The court in
McCullough
was satisfied that W.s recantation was not only false, but also when
    considered in the context of the other evidence and the explanation for the
    recantation, had little or no impeachment value.  Consequently, the court refused to admit it.

[61]

Babinski
also stresses the need for a particularly rigorous qualitative assessment where
    the evidence proffered on appeal is a post-trial recantation of a witnesss
    trial testimony.  The finality of
    criminal verdicts would be all too ephemeral if those verdicts fell whenever an
    important trial witness chose to recant his or her testimony.  As stated in
Babinski
at para. 62:

Simple recantations are properly subject to strict
    scrutiny because they can be easily fabricated.

[62]

The caution sounded in
Babinski
echoes those made in
R.
    v. Palmer
at 205 and
R. v. Pizzardi
(1994), 17 O.R. (3d) 623 at p. 630 (C.A.), appeal to S.C.C. dismissed [1994] 3
    S.C.R. 1018.

(iii)  Application of the principles to this case

[63]

When I subject Burgesss recantation to the
    strict scrutiny called for in
Babinski
,
    I find it to be incredible.  I further
    conclude that its impeachment value is not such that it could reasonably be
    expected to have affected the verdict at trial.  I reach these conclusions for several reasons.

[64]

Perhaps the most striking feature of the recantation
    is the manner in which it came about.  The recantation appeared fully grown out of nowhere, some three and a
    half years after the relevant events and almost two years after Burgess had
    testified at trial.  According to
    Burgess, a lawyer representing the appellant, who had no reason to know that
    Burgess had lied, appeared out of the blue to question Burgess about his
    trial testimony.  Upon learning that the
    appellant was still in jail, Burgess told the lawyer that he had lied at the
    trial.

[65]

Burgesss description of the circumstances of
    his recantation defies belief.  Why would
    counsel for the appellant suddenly appear unannounced at Burgesss cell and
    begin to question him about his testimony?  Something obviously caused the lawyer to have reason to believe that
    Burgess may not stand by his trial testimony.  Burgess did not see fit to share any knowledge that he had about the
    events leading up to the lawyers visit.  There was no other evidence provided on behalf of the appellant that
    offered any explanation for the circumstances surrounding the recantation.

[66]

Absent any evidence explaining the origins of
    the recantation, there are at least two explanations that flow from the
    circumstances.  Either the witness, who
    was in custody and is clearly part of the criminal subculture, and who no
    longer had any reason to cooperate with the Crown, saw the opportunity to help
    out the appellant, another member of the criminal subculture, or the witness
    was under physical compulsion to recant his trial testimony.  According to the submissions made by
    Burgesss lawyer at the time of Burgesss sentencing, Burgess had been
    assaulted while in jail because of his cooperation with the Crown in this case.  Burgess also acknowledged in
    cross-examination that he had concerns about his safety in jail if he
    implicated others in criminal activity.  He related that concern to his refusal to identify the person whom he
    now claimed had actually asked him to perform the robbery.

[67]

The affidavit itself is entirely incredible for
    many reasons.  Burgess acknowledges that
    he did not read it before signing it.  He
    admitted that it contained several inaccuracies.  Some of the assertions in the affidavit are
    manifestly false.  For example, in para.
    11 of the affidavit, Burgess states:

[T]he police kept asking me over and over who
    planned the robbery.

[68]

As is evident from the recorded interview, the
    police did not press Burgess to identify the individuals in the robbery.  He initially refused to do so and later when asked
    about the names of others for a second time, Burgess immediately identified the
    appellant as the person who planned the robbery.  Similarly, in para. 11, Burgess alleged that
    he had never told the police he owed the appellant money.  However, as is evident from the recorded
    interview, that is exactly what he told the police.

[69]

Burgess also acknowledged in his
    cross-examination that several other parts of his affidavit were false.  Two further examples will suffice.  In para. 10 of his affidavit, Burgess stated
    that he did not know why the others in the car had told him to name the
    appellant as the person involved in the robbery.  In cross-examination, he testified that the
    others in the car had a drug beef with the appellant.  In para. 7 of his affidavit, Burgess swore
    that he did not know the other people in the car.  In cross-examination, he testified that he knew
    one of the persons in the car, but refused to identify him.

[70]

Burgesss attitude towards the truth of the
    contents of the affidavit, and why, in my view, the affidavit is virtually
    worthless, is made apparent in the following exchange during his
    cross-examination:

Q.  So,
    obviously you didnt care a great deal what was in here [the affidavit].

A.  No.  Cause I dont care if he gets off or
    whatever.  I dont care, it doesnt
    bother me.  I just said whatever.  They just asked me some questions and I said
    yeah, it wasnt true like.

Q.  But my
    question is, as far as the affidavit goes

A.  Do I care
    whats in it?  No.

[71]

Not only
    is the affidavit rife with demonstrated falsehoods, other aspects of Burgesss
    cross-examination also undermine the credibility of the recantation.  Burgess declined to answer various questions
    that were clearly relevant, including the identity of the person whom he now
    claimed had put him up to the robbery.  Burgess also unilaterally, and in vulgar terms that evince an utter
    disregard for the process, terminated his cross-examination on two
    occasions.  The cross-examination was
    never completed.  Burgesss conduct
    during the cross-examination hardly inspires confidence in the truth of
    anything he said in the affidavit or in his cross-examination.

[72]

Any potential impeachment value in the
    recantation is further diluted when that recantation is placed in the context
    of Burgesss statement and testimony.  Burgesss statement to the police, his preliminary inquiry testimony,
    the facts accepted by him as accurate on his guilty plea, and his trial
    testimony are all fundamentally consistent in their description of the
    appellants involvement in the robbery.
[3]
The consistency in the details provided by
    Burgess on four separate occasions tends to belie the claim made by Burgess in
    cross-examination that he was simply making things up as he went along.

[73]

Burgesss statement to the police, his testimony
    at the preliminary inquiry, and his trial testimony are also consistent with
    the statement given to the police by Doucette the morning after the
    robbery.  Both implicated the appellant
    as the person who recruited them to commit the robbery and provided details of
    the events leading up to the robbery.  There is no suggestion that Doucette and Burgess had any opportunity to
    collude about those details before each provided his statement to the
    police.

[74]

The strong similarities between Burgesss
    statement and Doucettes statement cannot be explained by the assumption that
    Burgesss recantation is true and that Doucette, like Burgess, decided to
    implicate the appellant because of what others had said in the automobile.  According to Burgesss recantation, when he
    was told to implicate the appellant, there were no details provided.  He was simply told to indicate that the
    appellant was the other person involved in the robbery.  Burgesss explanation of how the recantation
    came about cannot explain the many similarities between Doucettes description
    of the appellants role in the robbery as provided in his statement to the
    police and Burgesss description of the appellants involvement in the robbery
    as provided in his statement and repeated in his subsequent testimony at the
    preliminary inquiry and the appellants trial.

[75]

My examination of Burgesss recantation brings
    to mind the admonition of McIntyre J. in
Palmer
,
    at p. 205:

The overriding consideration must be in the words of
    the enactment the interests of justice and it would not serve the interests
    of justice to permit any witness by simply repudiating or changing his trial
    evidence to reopen trials at will to the general detriment of the
    administration of justice.

[76]

I find the recantation incredible and unworthy
    of belief.  I am also satisfied that it
    could not reasonably be expected to affect the assessment of the reliability of
    Burgesss trial testimony implicating the appellant in the robbery.

IV

CONCLUSION

[77]

I would dismiss the appeal.

Doherty J. A.

I agree. K. Feldman J.A.

I agree. Gloria Epstein J.A.

RELEASED:
JUN 10 2011 (D.D.)

[1]
Doucettes statement was only partially recorded as the equipment
    malfunctioned.  The Crown relied only on
    the recorded portion of the statement.

[2]
At another point in his cross-examination, Burgess contradicted his earlier
    statement and stated that he had told some friends about falsely implicating
    the appellant.  He declined to identify
    those friends in his cross-examination.

[3]
In his statement, Burgess initially indicated that the person who called him
    and asked him to participate in the robbery was not in the automobile that
    drove him to the scene of the robbery.  However, later in his statement, after Burgess identified the appellant
    as the person who called him, the police did not ask Burgess whether the
    appellant was present in the automobile when Burgess was picked up and driven
    to the scene of the robbery.


CITATION:
R. v. Vaduva, 2011
          ONCA 427

DATE: 20110602

DOCKET: C52054

COURT OF APPEAL FOR ONTARIO

Blair, Watt and Epstein JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Sorin Vaduva

Appellant

Edward Conway, for the appellant

Peter Scrutton, for the respondent

Heard: June 1, 2011

On appeal from the judgment of Justice James E. McNamara of
          the Superior Court date April 8, 2010.

APPEAL BOOK ENDORSEMENT

[1]

As we view this appeal it is essentially an attempt to re-argue factual
    issues that were argued and rejected in both courts below.  Mr. Conway submits
    that unreasonable verdict and insufficiency of reasons are questions of law
    and form the basis of Mr. Vaduvas proposed appeal.  In the context of this
    case, however, they are not questions of law that give rise to any issues that
    transcend the boundaries of this appeal.  Even if the appeal raises questions
    of law, as opposed to questions of mixed fact and law, or the re-argument of
    facts, this is precisely the kind of case that the principles in
R. v.
    R.(R.)
(2008), 90 O.R. (3d) 641 (C.A.) were developed to meet.  It is
    questionable whether the appeal involves questions of law alone, but even if it
    does, they do not bear on the general administration of criminal justice, as
    the principles of law are well established.

[2]

Leave to appeal is denied.


CITATION: Rasouli v. Sunnybrook Health Sciences
      Centre, 2011 ONCA 482

DATE:  20110629

DOCKET: C53442

COURT OF APPEAL FOR ONTARIO

Doherty, Moldaver and Simmons JJ.A.

BETWEEN

Hassan
          Rasouli, by his litigation guardian

and substitute decision maker,
          Parichehr Salasel

Applicant (Respondent)

and

Sunnybrook
          Health Sciences Centre,

Dr. Brian Cuthbertson
and
Dr. Gordon Rubenfeld

Respondents (Appellants)

AND BETWEEN

Dr. Brian
          Cuthbertson and Dr. Gordon Rubenfeld

Applicants (Appellants)

and

Hassan
          Rasouli, by his litigation guardian and substitute decision maker,

Parichehr Salasel

Respondents (Respondents)

Harry Underwood and Andrew
          McCutcheon for the appellants, Dr. Cuthbertson and Dr. Rubenfeld

J. Gardner Hodder and Guillermo Schible, for the respondent
          Hassan Rasouli

Hugh Scher and Mark Handelman, for the intervener the
          Euthanasia Prevention Coalition

On appeal from the orders of Justice Susan Himel of the
          Superior Court of Justice dated March 9, 2011.

Heard: May 18, 2011

Moldaver and Simmons JJ.A.:

[1]

Parichehr Salasel is the wife of the respondent, Hassan Rasouli. She
    is also his litigation guardian and substitute decision-maker under the
Health
    Care Consent Act
,
1996
, S.O. 1996, c. 2, Sch. A (the Act).
[2]

The respondent is hospitalized at the Sunnybrook Health Sciences
    Centre. He has been there since October 7, 2010, when he underwent surgery to
    remove a benign brain tumour. Unfortunately, post-operative complications
    occurred and the respondent developed bacterial meningitis. The infection
    spread throughout his brain leaving him with severe and diffuse brain damage.
[3]

On October 16, 2010, the respondent was placed on a mechanical
    ventilator. He is receiving artificial nutrition and hydration through a tube
    inserted into his stomach. These life-sustaining measures are keeping him alive
    and he may survive for some months if they are continued. Without them, it is
    expected that he will soon stop breathing and die.
[4]

Doctors Cuthbertson and Rubenfeld are the appellants in this matter.
    They are the doctors responsible for the respondents treatment and care. They,
    and many other doctors who have examined the respondent
[1]
,
    have concluded that he is in a permanent vegetative state which, in medical
    terms, means that he will never again regain consciousness. His case, they
    believe, is hopeless. Inquiries to have another hospital take up his care
    proved unsuccessful.  All appropriate treatments have been exhausted, there is
    no realistic hope of medical recovery, and the respondent is not receiving any
    medical benefit from being kept on life support. In these circumstances, the
    appellants believe it is in the respondents best interests that he be taken
    off life support and provided with palliative care until he dies. They have
    proposed that course of action to Ms. Salasel.
[5]

The appellants acknowledge that they need Ms. Salasels consent, in
    her capacity as substitute decision-maker for her husband, to administer palliative
    care to him. They maintain, however, that they do not need her consent to
    withdraw the life-sustaining measures as those measures have spent their course
    and are no longer medically indicated.
[6]

Ms. Salasel sees the matter differently. She believes that where
    there is life, there is hope and she and her family wish to have the respondent
    kept alive. They do not accept that he is in a state of permanent and
    irreversible unconsciousness. On the contrary, according to her and her
    children, the respondent has reacted on occasion to their voices and continues
    to do so. Although he may be minimally conscious, they believe that he remains
    aware of his surroundings. Hence, Ms. Salasel opposes the course of action
    proposed by the appellants. She maintains that they require her consent to
    remove the respondent from life support and place him on palliative care. And
    if they are not prepared to abide by her wishes, they should apply under the Act
    to the Consent and Capacity Board (the Board) and let the Board decide
    whether the proposed course of action is in the respondents best interests.
[7]

In the face of this impasse, the parties turned to the court for
    assistance. On behalf of the respondent, Ms. Salasel applied to the Superior
    Court of Justice for various forms of relief, including:

(1)

An order restraining the appellants from implementing the
        proposed changes to the respondents current treatment plan without first
        obtaining her consent; and

(2)

An order requiring the appellants to refer their treatment
        proposal to the Board should they persist in challenging Ms. Salasels
        authority to reject it on the respondents behalf as being contrary to his best
        interests.

[8]

For their part, the appellants cross-applied to the court for
    various forms of relief, including:

(1)

A declaration that the
        respondent is in a permanent vegetative state;

(2)

A declaration that they can lawfully withdraw and/or withhold
        the life-sustaining treatment the respondent is presently receiving and provide
        him instead with palliative care;

(3)

A declaration that they do not need Ms. Salasels consent,
        either at common law or under the Act, to proceed with the treatment plan they
        have proposed; and

(4)

A declaration that the Board has no jurisdiction to decide
        whether they can proceed with their proposed treatment plan.

[9]

The application and cross-application were argued before Himel J.
    for three days in February and March 2011. On March 9, 2011, the learned
    application judge released her reasons for decision. In the result, she found
    in favour of the respondent and against the appellants.
[10]

The application judge dealt with Ms. Salasels application and the appellants
    cross-application in two separate orders. For present purposes, the key
    provisions of both orders are the same and read as follows:
1.

THIS COURT ORDERS THAT the proposal of the respondent physicians [the
    appellants] to end life sustaining treatment to the applicant [the respondent]
    must be referred to the Consent and Capacity Board.
2.

THIS COURT ORDERS THAT pending the decision of the Consent and Capacity
    Board, the respondent physicians are not permitted to withdraw mechanical
    ventilation and transfer the applicant to palliative care.
Issues Raised by the Appellants
[11]

The appellants appeal from those orders. They submit that
    the decision under review sets a dangerous precedent because it requires them
    to obtain the consent of patients before withholding or withdrawing treatment
    that they consider to be of no medical value. This, they say, has the effect of
    standing the doctor/patient relationship on its head. Manifestly, patients have
    the right to refuse treatment.  They do not, however, have the right to insist
    on treatment that their doctor regards as medically ineffective or
    inappropriate.
[12]

In advancing their position, the appellants do not
    suggest that doctors can withhold or withdraw treatment as they see fit, with no
    risk of legal consequences. On the contrary, doctors must act in their patients
    best interests and if it is found that their decision to withhold or withdraw
    treatment falls below the requisite standard of care, they can be held
    accountable.  But that is a far cry from saying that a doctor must provide
    treatment to his or her patient that the doctor believes is medically ineffective
    or inappropriate, without first obtaining the patients consent that such
    treatment can be withheld or withdrawn.
[13]

According to the appellants, the decision under review
    puts aside these long-established principles and if allowed to stand, it will
    have serious consequences for the medical profession and the health care system
    as a whole.
[14]

The appellants submit that the application judge did
    not adequately address this issue when she found that the withdrawal of life
    support from the respondent constituted treatment under the Act, such that it
    could only be carried out with Ms. Salasels consent. They submit that
    properly interpreted, treatment under the Act does not include the
    withholding or withdrawal of treatment that has no medical value to the
    patient. Hence, it can be done without the patients consent. That represents
    the common law which they say the Act was meant to reflect, not alter.
[15]

Accordingly, they argue that the impugned orders should
    be set aside.
[16]

For reasons that follow, we would dismiss the appeal.
    In so concluding, we do not minimize the concerns raised by the appellants.
    They are serious and warrant careful consideration. Feelings of sympathy for
    the respondent and his family cannot be allowed to dictate the result.
[17]

That said, we are of the view that the application
    judge reached the correct result in this case. In short, we are satisfied that
    the plan of care proposed by the appellants does amount to treatment as
    defined in the Act. Our reasons differ somewhat from those of the application
    judge.  They address head-on the concerns raised by the appellants.
[18]

Before explaining why we believe that the plan of care
    the appellants wish to implement constitutes treatment under the Act, we
    propose to set out some of the relevant statutory provisions and to briefly review
    the reasons of the application judge.
Relevant Statutory Provisions
[19]

There are many provisions in the Act that bear on the
    issue at hand, some directly, some indirectly. For present purposes, we believe
    that the following provisions are the most pertinent:
1. The purposes of this Act are,
(a) to provide rules
    with respect to consent to treatment that apply consistently in all settings;
(b) to facilitate treatment, admission to care
    facilities, and personal assistance services, for persons lacking the capacity
    to make decisions about such matters;
...
(e) to ensure a
    significant role for supportive family members when a person lacks the capacity
    to make a decision about a treatment, admission to a care facility or a
    personal assistance service; ...
...
2. (1) In this Act,
plan of treatment
    means a plan that,
(a) is developed by one
    or more health practitioners,
(b) deals with one or more
    of the health problems that a person has and may, in addition, deal with one or
    more of the health problems that the person is likely to have in the future
    given the persons current health condition, and
(c) provides for the
    administration to the person of various treatments or courses of treatment and
    may, in addition, provide for the withholding or withdrawal of treatment in
    light of the persons current health condition;
treatment means
    anything that is done for a therapeutic, preventive, palliative, diagnostic,
    cosmetic or other health-related purpose, and includes a course of treatment,
    plan of treatment or community treatment plan, but does not include,
(a) the assessment for
    the purpose of this Act of a persons capacity with respect to a treatment,
    admission to a care facility or a personal assistance service, the assessment
    for the purpose of the
Substitute Decisions Act, 1992
of a persons
    capacity to manage property or a persons capacity for personal care, or the
    assessment of a persons capacity for any other purpose,
(b) the assessment or
    examination of a person to determine the general nature of the persons
    condition,
(c) the taking of a
    persons health history,
(d) the communication
    of an assessment or diagnosis,
(e) the admission of a
    person to a hospital or other facility,
(f) a personal
    assistance service,
(g) a treatment that in
    the circumstances poses little or no risk of harm to the person,
(h) anything prescribed
    by the regulations as not constituting treatment.
(2) A reference in this
    Act to refusal of consent includes withdrawal of consent.
...
10.(1) A health
    practitioner who proposes a treatment for a person shall not administer the
    treatment, and shall take reasonable steps to ensure that it is not
    administered, unless,
(a) he or she is of the
    opinion that the person is capable with respect to the treatment, and the
    person has given consent; or
(b) he or she is of the opinion that the person is
    incapable with respect to the treatment, and the persons substitute
    decision-maker has given consent on the persons behalf in accordance with this
    Act.
...
21.(1) A person who
    gives or refuses consent to a treatment on an incapable persons behalf shall
    do so in accordance with the following principles:
1. If the person knows
    of a wish applicable to the circumstances that the incapable person expressed
    while capable and after attaining 16 years of age, the person shall give or
    refuse consent in accordance with the wish.
2. If the person does
    not know of a wish applicable to the circumstances that the incapable person
    expressed while capable and after attaining 16 years of age, or if it is
    impossible to comply with the wish, the person shall act in the incapable
    persons best interests.
(2)  In deciding what the incapable persons best interests
    are, the person who gives or refuses consent on his or her behalf shall take
    into consideration,
(a) the values and
    beliefs that the person knows the incapable person held when capable and
    believes he or she would still act on if capable;
(b) any wishes
    expressed by the incapable person with respect to the treatment that are not
    required to be followed under paragraph 1 of subsection (1); and
(c) the following
    factors:

1. Whether the treatment is likely to,

i. improve the incapable persons
        condition or well-being,

ii. prevent the incapable persons
        condition or well-being from deteriorating, or

iii. reduce the extent to which, or
        the rate at which, the incapable persons condition or well-being is likely to
        deteriorate.

2. Whether the incapable persons
      condition or well-being is likely to improve, remain the same or deteriorate
      without the treatment.

3. Whether the benefit the incapable
      person is expected to obtain from the treatment outweighs the risk of harm to
      him or her.

4. Whether a less restrictive
      or less intrusive treatment would be as beneficial as the treatment that is proposed.

...
37.(1) If consent to a treatment is given or
    refused on an incapable persons behalf by his or her substitute
    decision-maker, and if the health practitioner who proposed the treatment is of
    the opinion that the substitute decision-maker did not comply with section 21,
    the health practitioner may apply to the Board for a determination as to
    whether the substitute decision-maker complied with section 21.
(2)  The parties to the application are:

1. The health practitioner who
      proposed the treatment.

2. The incapable person.

3. The substitute decision-maker.

4. Any other person whom the Board
      specifies.

(3)  In determining whether the substitute
    decision-maker complied with section 21, the Board may substitute its opinion
    for that of the substitute decision-maker.
(4)  If
    the Board determines that the substitute decision-maker did not comply with
    section 21, it may give him or her directions and, in doing so, shall apply
    section 21.
[20]

Of those provisions, the operation of s. 21 of the Act warrants brief
    explanation. It sets out the principles that a substitute decision-maker must
    follow in deciding whether to give or refuse consent to a proposed treatment on
    behalf of an incapable person.
[21]

Under s. 21(1)1., if the substitute decision-maker knows of a wish,
    applicable to the circumstances, expressed by the incapable person while he or
    she was capable, after attaining age 16, then the substitute decision-maker
    must abide by that wish and give or refuse consent in accordance with it. (Ms.
    Salasel accepts that that provision has no application in her husbands case).
[22]

Section 21(1)2. applies where the substitute decision-maker is unaware
    of any such wish (as is the case here) or where compliance with such a wish
    proves impossible. Under those circumstances, a substitute decision-maker must
    act in the incapable persons best interests in deciding whether to give or
    refuse consent to a proposed treatment.
[23]

Section 21(2) of the Act sets out various factors that a substitute
    decision-maker must take into account in deciding whether the proposed
    treatment is or is not in the incapable persons best interests. Broadly
    speaking, those factors fall under two heads, one relating to the values,
    beliefs and wishes of the incapable person (s. 21(2)(a) and (b)), the other to
    the nature and medical value of the treatment proposed in the circumstances (s.
    21(2)(c)).
The Reasons of the Application Judge
[24]

The application judge provided detailed reasons for
    judgment. She recognized that the dispute between the parties turned first and
    foremost on a question of statutory interpretation. At para. 18 of her reasons,
    she framed the central issue as follows:
Consent must be obtained when a
    health practitioner proposes to administer a treatment. Therefore, if the
    withdrawal or removal of life support services is considered to fall within
    treatment as defined by the
HCCA
[the Act]
,
health practitioners
    are required to obtain consent from a patient or their substitute
    decision-maker before withdrawing or ending life support.
[25]

After instructing herself on the principles applicable to
    the interpretation of legislative language, the application judge observed
    that under s. 2(1) of the Act, the word treatment as defined includes a plan
    of treatment, and a plan of treatment, also a defined term, specifically
    contemplates as one of its elements, the withholding or withdrawing [of]
    treatment in accordance with a patients health condition.
[26]

The application judge then noted that while the definition
    of a plan of treatment was instructive and of some assistance in resolving
    the issue before her, it was circular in that the word treatment must be
    defined in and of itself in order to determine what withholding or withdrawal
    of treatment means.
[27]

Accordingly, the application judge looked to the
    definition of treatment under the Act and observed that it included anything
    done for therapeutic or preventive purposes. She then considered whether the
    provision of life support could be considered therapeutic or preventive
    and concluded that it could. At paras. 30-33 of her reasons, she stated:
Stedmans Medical Dictionary
, 27
th
ed., defines preventive as to come before,
    prevent. Therapeutic is defined as relating to therapeutics or to the
    treatment, remediating, or curing of a disorder or disease.
The provision of life support, such
    as mechanical ventilation, falls within these definitions. According to the
    Hospital Policy on Appropriate Use of Life-sustaining Treatment produced by the
    University of Toronto Joint Centre for Bioethics/Critical Care Program Task
    Force, the goal of intensive care is to prevent unnecessary suffering and
    premature death by treating
reversible
illnesses for an appropriate
    period of time.  Life support is included in the life sustaining
    treatment offered in intensive care. When viewed in this light, the goal of
    life support is to prevent suffering and premature death and treat
    reversible illness.
At issue in this application is
    whether the life sustaining treatment being offered to the applicant is
    fulfilling the goal outlined above. When interpreting the
HCCA
, the
    characterization of the type of care offered by life support should be
    determined based on its intended purpose. This purpose falls within
    preventive and therapeutic treatment.
Therefore, on the ordinary meaning of
    the text, life support falls within the definition of treatment under the
HCCA
.
    Thus, according to the definition of plan of treatment, the withholding or
    withdrawing of life support also falls within the definition of treatment.  [Emphasis
    in original.]
[28]

The application judge next considered the purpose and
    scheme of the Act and concluded that the inclusion of withdrawing life support
    in the definition of treatment furthered the goals of the Act, particularly
    those identified in ss. 1(a), (b) and (e) in that:

·

All plans to withdraw life support that were not
      consented to by substitute decision-makers would have to be referred to the
      Board, thereby bringing consistency to the process which had heretofore been optional
      at the discretion of the individual treating physician.

·

Treatment would be facilitated by following the
      scheme of the Act which contemplated the delegation of treatment decisions to
      substitute decision-makers, if available, and to the Public Guardian and
      Trustee, if not.

·

As with other treatment decisions, supportive family
      members would be afforded a significant role in end of life decisions.

[29]

The application judge then turned to the consequences of
    adopting the inclusion of withdrawing life support in the definition of
    treatment. She succinctly identified the concerns expressed by the doctors as
    follows:
The [doctors] submit that adopting
    this interpretation will result in patients being able to pick and choose their
    own treatment. If consent is required to withhold or withdraw treatment,
    doctors will have a duty to provide and a duty to continue to provide whatever
    treatment is demanded by patients.
[30]

The application judge rejected this concern because in her
    view the definition of plan of treatment precluded the possibility of
    patients picking and choosing their own treatment. At para. 45 of her decision,
    she stated:
Since a plan of treatment is by
    definition a plan that is developed by one or more health practitioners,
    patients themselves cannot develop it. Medical services or treatments desired
    by patients could only be included in a plan of treatment under the
HCCA
if
    one or more health practitioners adopted it into the plan. In other words,
    treatment cannot be included in a plan of treatment for the purposes of the
HCCA
until it is proposed by a health practitioner. This condition prevents a
    patient from picking and choosing their own treatment as the only treatment a
    doctor would require consent to withhold or withdraw would be one proposed by
    the doctor or by another health

practitioner.
[31]

Finally, the application judge addressed a concern that
    was raised by Sunnybrook Health Sciences Centre (the Hospital). Although the
    Hospital is not a party to this appeal, it argued before the application judge
    that if the withdrawal of life support is included in the definition of
    treatment under the Act, individuals who have no chance of recovery would nevertheless
    have to be kept alive for extended periods of time if consent to end life
    support was not forthcoming and this would impact severely on the limited
    resources of its intensive care unit.
[32]

The application judge addressed that concern by referring
    to the speedy, cost-effective process under the Act whereby treating physicians
    could apply to the Board to have the substitute decision-makers decision
    reassessed where they felt that maintaining the patient on life support was not
    in the patients best interest.
[33]

Significantly, on appeal, the appellants have not pursued
    the issue of resources or the fallout that could occur in intensive care units if
    the decision under review were allowed to stand. In response to pointed
    questions from the court, Mr. Underwood, with his usual candor, made it clear
    that the issue of resources played no part in the appellants submissions, nor
    did it influence their decision to pursue the appeal.
[34]

Accordingly, given the position advanced before us, we
    approach the issue at hand on the basis that fiscal concerns have no bearing on
    our analysis.
[35]

Having determined that the definition of treatment under
    the Act includes the withdrawal of life support and thus consent must be
    obtained, the application judge was not obliged to consider whether consent to
    withdraw life support would also be required at common law. Nonetheless, she
    reviewed the common law jurisprudence and concluded that the common law in
    Canada on this issue is unclear.
[36]

We do not propose to summarize the application judges
    reasons relating to the common law because, in our view, the Act provides a complete
    answer. Nor do we intend to comment on the application judges analysis
    relating to the
Charter of Rights and Freedoms
and whether the
Charter
applies to the appellants proposal to withdraw life support from the respondent.
    We simply acknowledge, per this court
s decision in
M.
    (A.) v. Benes
(1999), 46 O.R. (3d) 271 at para. 22, that the Act should be
    construed in a manner consistent with the
Charter
. We make no comment on
    the respondents argument that personal autonomy considerations under s. 7 of
    the
Charter
confer upon him a right to demand the continuation of medically
    ineffective or inappropriate treatment.
Analysis
[37]

The principal issue to be decided is whether the
    application judge erred in concluding that the withdrawal of life support
    constitutes treatment under the Act. The application judge determined that it
    did, essentially for the reasons found at paras. 30‑33 of her decision,
    which we have set out above at para. 27.
[38]

In a nutshell, the application judge found that the withdrawal of life
    support constitutes treatment under the Act for the following reasons:

(1)

The provision of life support falls within preventive and

therapeutic
treatment and thus comes within the definition
        of treatment under the Act.

(2)

Because the provision of life support constitutes
        treatment, its withdrawal necessarily entails the withdrawal of treatment.

(3)

Withdrawal of treatment is specifically referred to in the
        definition of a plan of treatment under the Act and it is recognized, at
        least potentially, as forming a component part of any such plan.

(4)

Under the Act,
        treatment is defined to include a plan of treatment.

(5)

Hence, the proposal of the doctors to remove the respondent
        from life support comes within the definition of a plan of treatment and is
        therefore treatment under the Act.

[39]

The appellants take issue with the application judges line of
    reasoning, at least in part. They do not question that life support measures
    can serve a
therapeutic
or preventive purpose for patients
    and that the provision of life support in those circumstances will constitute treatment
    under the Act. But those cases, they argue, are to be distinguished from cases
    like the present one, where the life support measures being provided to the
    respondent are of no medical benefit to him and may even lead to harmful side
    effects.
[40]

According to the appellants, the respondent is in a perpetual state of
    unconsciousness and there is no prospect of any improvement in his condition. That
    being so, the provision of life support is futile and may properly be regarded as
    worthless.  As such, they submit that it does not constitute treatment at all.
    And that, they contend, is where the application judge went wrong. Specifically,
    in reaching her conclusion that the withdrawal of life support constitutes the
    withdrawal of treatment within the meaning of a plan of treatment under the
    Act, they maintain that she looked at the intended purpose of life support
    measures, which can and often do serve preventive and/or therapeutic purposes,
    rather than looking at the purpose which the life support measures in the
    respondents case were serving, which the appellants submit is non-existent.  In
    short, the appellants contend that the application judge misconstrued the
    meaning of treatment and a plan of treatment in effectively holding that these
    terms in the Act include the withholding or withdrawal of medical care that has
    no medical value or justification.
[41]

For reasons that follow, we find it unnecessary to finally decide
    whether the appellants are correct in their submission that treatment under the
    Act necessarily involves treatment that, in the opinion of the treating
    physician, has some medical value  although we hasten to add that we think there
    is much to be said for the appellants position. Much as we accept that the Act
    is to be construed in a fair, large and liberal manner and that the dignity and
    autonomy of patients must be respected, especially in end-of-life decisions involving
    patients who are totally vulnerable, we have difficulty accepting that the
    legislature intended to include within the definition of treatment measures
    that attending physicians consider to be of no medical value and therefore worthless.
    More to the point, if the legislature intended that consent was required to the
    withholding or withdrawal of life support measures that are considered to be
    medically ineffective or inappropriate, we would have expected clearer language
    to that effect.
[42]

And of course, if medically valueless measures are not to be regarded as
    treatment at all, as the doctors contend, then doctors would be free to
    withhold or withdraw such measures without first having to obtain their
    patients consent; and patients would not be able to demand such measures from
    their doctors.
[43]

Assuming that is the correct approach, it does not detract from a
    doctors overriding duty to act in his or her patients best interest. And if a
    doctor withholds or withdraws medical care on the basis that it is valueless,
    he or she will be held accountable if the decision is found to have fallen
    below the requisite standard of care.
[44]

The respondents litigation guardian takes a different position  as
    does the intervener. Ms. Salasel rejects the underlying premise upon which the appellants
    argument is based.  She does not accept that the life support measures her
    husband is receiving are of no medical value. Doctors are not infallible and
    the appellants may be mistaken in their diagnosis. It is too soon to tell. In
    line with this, it can hardly be said that the life support measures the respondent
    is receiving are worthless. On a basic level, they are what is keeping him
    alive. When considering what the word treatment means in the context of a
    plan of treatment under the Act, Ms. Salasel points out that while the
    appellants may consider her husbands condition to be a living death, in the
    eyes of the law, he remains a human being. As such, he is entitled to remain
    alive, with the assistance of life support measures, until such time as she
    feels there is no further hope for his recovery.
[45]

On this view, the legislature contemplated cases such as the respondents
    when it defined a plan of treatment to include the withholding or withdrawal
    of treatment in light of the persons current health condition. Whatever the
    common law may be, by using that language, the legislature intended to make it
    clear that the withdrawal of life support is to be construed as treatment for
    which consent under the Act is required, and where consent is not forthcoming, the
    patients treating physician cannot act unilaterally. Rather, if the physician
    is not content with the refusal of a substitute decision-maker to provide
    consent to the withdrawal of life support, the physicians recourse is to refer
    the matter to the Board for disposition.
[46]

As indicated, in order to decide this appeal, we need not resolve the
    metaphysical debate over whether life saving measures in cases such as the
    respondents are of no medical value because they are futile, or of high
    medical value because they are keeping him alive while his family continues to
    hold out hope for his recovery. For present purposes, we are prepared to accept
    that the Act does not require doctors to obtain consent from a patient or
    substitute decision-maker to withhold or withdraw treatment that they view as
    medically ineffective or inappropriate.
[47]

With that, we turn to consider whether the proposal put forward by the
    appellants  removing the respondent from the mechanical ventilator and placing
    him on a program of palliative care until he dies  nonetheless constitutes treatment
    under the Act for which Ms. Salasels consent is required. In our view, it
    does.
[48]

Palliative care is not defined in the Act.
Stedmans Medical Dictionary,
28
th
ed. (Baltimore: Lippincott Williams & Wilkins, 2006)
,
defines palliative as the alleviation of symptoms without curing the
    underlying disease.
[2]
Palliative care is included in the definition of treatment under the Act.
    Manifestly, it encompasses end-of-life care provided to a patient to keep the
    patient comfortable pending his or her imminent death, upon removal of a
    life-sustaining mechanical ventilator (end-of-life palliative care). As such,
    the appellants must obtain Ms. Salasels consent to administer end-of-life palliative
    care upon removal of the mechanical ventilator.
[49]

In oral argument, Mr. Underwood fairly conceded that end-of-life palliative
    care will only be administered to the respondent once he is taken off the
    mechanical ventilator and that no responsible substitute decision-maker would
    refuse to consent to palliative care for an end-of-life patient being removed
    from a mechanical ventilator.
[50]

In other words, in the respondents circumstances, removal of the
    ventilator is a necessary precondition to the administration of end-of-life palliative
    care and end-of-life palliative care is a necessary response to removal of the
    ventilator. The two go hand in hand. One is integrally linked to the other.  And
    they foretell a single certain result  the respondents imminent death once
    the ventilator is removed.
[51]

The concept of palliative care in these circumstances necessarily
    recognizes that death is imminent. Once life sustaining measures are withdrawn,
    as they must be before end-of-life palliative care is administered, there is no
    turning back. The patient has no other options or choices. Death is a certainty.
    All that remains is to keep the patient as comfortable as possible until the
    end comes.
[52]

That is the essence of end-of-life palliative care. And where it is
    recommended as an adjunct to the withdrawal of life support, the two, in our
    view, cannot be separated. They are a treatment package and that is how they
    should be viewed for purposes of the Act.
[53]

The respondents situation is to be distinguished from situations where
    the medical community simply has nothing more to offer a patient by way of
    treatment  but death is not imminent. To take one example, discontinuing
    chemotherapy because it is not benefitting the patient is not the same thing as
    removing a patient from life support and moving him or her directly to end-of-life
    palliative care. In the former situation, assuming there are no other
    therapeutic or preventive measures available, the patient is being told that
    there is nothing further that can be done and when the time comes  which may
    be a week, a month, or six months  steps will be taken to keep the patients end-of-life
    suffering to a minimum.  Unlike the situation that exists when life support
    measures are withdrawn, there will generally be a gap between the withdrawal of
    chemotherapy and the end-of-life palliative care phase. Ending chemotherapy
    does not spell the patients imminent death  and it does not trigger a
    requirement for a particular form of palliative care.
[54]

In our view, that distinction largely addresses the appellants concerns
    arising from the decision under review, that doctors will be prevented from
    withholding or withdrawing measures they consider to be medically valueless, without
    first having to obtain their patients consent to do so.  Equally, it shuts the
    door on their concern that patients will be able to demand treatment that their
    doctors consider to be medically worthless.
[55]

It also puts to rest the appellants concern about withholding treatment
    in the first place.  That concern arises because the terms withholding
    treatment and withdrawing treatment are used together under the Act. No
    distinction is drawn between them. And yet, according to the appellants, while
    the application judge did not say so explicitly, she implicitly drew a
    distinction between the withdrawal of life support measures, which she says
    requires a patients consent, and the withholding of such measures in the first
    place, for which she apparently believes consent is not required. That, the
    doctors submit, creates an inconsistency in the Act.
[56]

Assuming the appellants are correct in this, the problem disappears on
    the analysis we have suggested.  If life support measures are withheld from the
    outset because they are considered to be of no medical value, there is nothing
    to transfer from before moving to palliative care. The two are not integrally
    linked. Beginning end-of-life palliative care does not require, as an initial
    first step, ending life support.
[57]

Patients need not fear that this distinction between withholding life
    support measures from the outset and withdrawing them after they have been put
    in place will cause doctors to choose the former over the latter.  Doctors must
    act in their patients best interests, and if they fall below the requisite
    standard of care in withholding treatment from the outset, they can be held
    accountable.
[58]

Interpreting end-of-life palliative care to include the withdrawal of
    life support measures where those measures are in place and must be terminated
    before end-of life palliative care can begin, simply means that in cases like
    the one at hand, treating physicians will have to obtain the substitute
    decision-makers consent to the entire treatment package. Where consent is
    withheld, and the treating physician is not satisfied that the substitute
    decision-maker has complied with the requirements of s. 21 of the Act, then he
    or she may resort to s. 37 of the Act and refer the matter to the Board for
    determination.
[59]

Recourse to the Board may not be a perfect solution from the appellants
    perspective.  If a substitute decision-maker has acted under s. 21(1)l. on a
    wish that incapable person expressed while capable, after attaining 16 years of
    age, and the Board is satisfied this is so, the Boards hands are tied and this
    effectively ends the matter. There will be no inquiry to determine if the
    substitute decision-maker has acted in the incapable persons best interests
    under s. 21(1)2. of the Act.
[60]

But that is the legislatures will. And it involves policy
    considerations that come within the legislatures purview and are best left to
    the legislature to sort out.
[61]

Apart from that draw-back, recourse to the Board clearly has its
    beneficial aspects. In her reasons for judgment, the application judge references
    the many advantages that flow from the process the legislature has implemented,
    the most noteworthy being an expeditious hearing before an expert Board.  We do
    not intend to repeat her observations at paras. 48-50. Suffice it to say that we
    agree with them. This courts decision in
M. (A.) v. Benes
,
supra
,
    also contains a description of the Boards mandate and the functions it is
    required to perform.
[62]

In sum, while the recourse available to a doctor who disagrees with the
    decision of a substitute decision-maker in an end-of-life case may not be
    perfect from the doctors perspective, the process seems to have worked well
    since the Act came into existence some 15 years ago.  End-of-life situations
    are always emotionally laden.  The process created under the Act provides
    doctors with a safety valve in cases where the patient has not expressed a
    prior wish under s. 21(1) of the Act.  Most doctors, we believe, would see that
    as a good thing, rather than viewing it as an impediment to their professional
    independence and autonomy.
[63]

Moreover, as Mr. Underwood stated at the outset of his submissions, the
    problem that has arisen in this case is not a common one. In most situations,
    life-ending decisions are worked out over time through a combination of patience,
    understanding, professional guidance and counselling. In this regard, the College
    of Physicians and Surgeons and individual hospitals deserve credit for the very
    sensitive protocols they have put in place to address life-ending decisions and
    the trauma that family and loved ones face when required to make them.
[64]

We do not believe that by interpreting palliative care to include the
    withdrawal of life support measures, the floodgates will open and intensive
    care units will be deluged with patients who have no chance of improvement but
    who require life-sustaining measures to survive. If that proves to be the case,
    then the legislature can, and no doubt will review the situation.
Conclusion
[65]

The proposal of the appellants to withdraw the respondent from life support and place him on end-of-life palliative care constitutes “treatment” under the Act, for which the consent of Ms. Salasel is required. If her consent is not forthcoming, the appellants’ proposal must be referred to the Board. Save for requiring that any amendments be made to the formal orders below so that they conform to these reasons, we would thus dismiss the appeal, without costs, as regards the intervener. If the parties cannot agree on costs, they may make submissions to the court in writing within 20 days of the release date of these reasons. The submissions shall be double spaced and shall not exceed 3 pages in length.
Signed: M. J. Moldaver J.A.
Janet Simmons J.A.
I agree D. Doherty
    J.A.
RELEASED: DD JUNE 29, 2011

[1]
Among the many doctors who have examined him, the respondent was assessed in
    January 2011 by a neurologist who had no prior involvement with him and who
    confirmed the diagnosis of permanent vegetative state. As well, the family was invited
    by the Hospital to obtain their own neurological opinion, if they wished to do
    so.

[2]
Organizations such as the World Health Organization and the Canadian Hospice
    Palliative Care Association have provided extended definitions of palliative
    care. For present purposes, we need not determine the exact scope of the term
    as it appears in the Act.


CITATION:
Resolute Land Bank
          Ltd. v.
Sieber
, 2011
          ONCA 459

DATE: 20110616

DOCKET: C53049, C53050 and C53231

COURT OF APPEAL FOR ONTARIO

Feldman, Blair and LaForme JJ.A.

BETWEEN

Resolute Land Bank Ltd. and Crooks Hollow Farm
          Corporation

Applicants (Appellants in Appeal)

and

Helmut
          J. Sieber, Resolute Developments Inc.,

Canadian Agra Holdings Inc.,
          Bruce Agra Inc., and Canadian Agra Corporation

Respondents (Respondents in Appeal

AND BETWEEN

Resolute
          Development Inc.

Plaintiff (Respondent in Appeal)

and

Charles Juravinski, Crooks Hollow
          Farm Corporation

and
Resolute Land Bank Ltd.

Defendants (Appellants in Appeal

James Steven Cimba, for the appellants

Raymond F. Leach, for the respondents

Heard and released orally: June 9, 2011

On appeal from the decision of Justice Leonard Ricchetti of
          the Superior Court of Justice dated November 9, 2010.

ENDORSEMENT

[1]

The appellants seek to set aside two aspects of the
    order of Ricchetti J. wherein he granted possession of the mortgaged property.
    Before Ricchetti J., the appellants did not seek to proceed with the
    application for a declaration of the amount due, nor did they raise the issue
    of the disposition of the share of Resolute Land Bank that was transferred to
    the appellants as part of the mortgage loan transaction. Counsel for the
    respondent fairly concedes that both these issues were not put before the
    application judge by the appellants, and in respect of the disposition of the
    share, he concedes that that order cannot stand.

[2]

The application judge ordered the parties to file
    further material on the quantum issue and to return in December 2010 to argue
    it. The parties complied with the order and had a full hearing wherein the amount
    owing on the mortgage was determined.

[3]

In our view, there is no basis to set aside that aspect
    of the order. Although the appellants did not ask for that issue to be
    determined, they made a strategic decision to participate in a full hearing on
    the issue without objection to the application judge in order to obtain the
    order for possession. On the appeal, they did not allege any error other than
    proceeding with the hearing, or any specific error in the quantum. In our view,
    there is no injustice in the result.

[4]

The appeal is allowed in part. Paragraph 98 of the
    reasons dated November 9, 2010 regarding the disposition of the Resolute Land
    Bank share (which finding was not part of the order of that date) is set aside.
    The appeal is otherwise dismissed. As success was divided, there will be no
    costs of the appeal.

Signed:           K. Feldman
    J.A.

R.
    A. Blair J.A.

H. S.
LaForme
J.A.


CITATION:
Rojer v. Dorel
          Juvenile Group, Inc., 2011 ONCA 458

DATE:
          20110616

DOCKET: C52301

COURT OF APPEAL FOR ONTARIO

Goudge, MacFarland and Watt JJ.A.

BETWEEN

Karoline Rojer

Plaintiff (Appellant)

and

Dorel Juvenile Group, Inc., Dorel Industries Inc., and
          Cosco Inc.

Defendant (Respondent)

Ronald P. Bohm, for the appellant

Teresa Walsh and Greg Sheahan, for the respondent

Heard and released orally: June 14, 2011

On appeal from the judgment of Justice Anne Mullins of the
          Superior Court of Justice, dated May 15, 2010.

ENDORSEMENT

[1]

In this case the trial judge found that factual
    causation had not been proven on a balance of probabilities. This court is not
    permitted to retry the case. Nor are we in a position to do so. We can only
    interfere if the factual causation finding constitutes a palpable and
    overriding error. Despite Mr. Bohms thorough argument we cannot do so.

[2]

The trial judge found the appellants evidence
    unreliable. She concluded that the probable factual cause of the appellants
    accident was that she likely undertook an ill conceived and unsafe activity on
    the stool. The trial judge also concluded that she could not find that the
    wobbly steps of the stool caused or contributed to the accident.

[3]

In our view, the evidence before the trial judge
    permitted these findings. The appellant cannot say that the wobbly steps caused
    her accident. Unlike
Kamin v. Kawartha
    Dairy Ltd.
(2006), 207 O.A.C. 199, 79 O.R. (3d) 284, it cannot be said that
    this was the only reasonable inference that could be drawn from the evidence.
    Indeed, the inference the trial judge drew was that there was likely another
    cause, namely, the unsafe activity undertaken by the appellant. In our view,
    this finding was one that was open to her on the evidence.

[4]

We recognize that it would have been preferable for the
    trial judge to address, if only briefly, the other issues arising in a
    negligence case, including duty of care, standard of care, and the breach
    thereof. Not only does this assist full appellate review, but it permits the
    parties to fully understand why the outcome was reached. But ultimately, to
    succeed, the appellant had to demonstrate factual causation. The trial judge
    found that she had no done so and, for the reasons given, we cannot interfere.

[5]

The appeal must be dismissed. In saying this, we should
    not be taken to agree with the trial judges findings on damages. In our view,
    the trial judge clearly got Dr. Richardss evidence wrong and ultimately
    awarded an inordinately low amount. However, given our finding on liability, we
    need not formally address the damages question and apart from these comments,
    we decline to do so.

[6]

As to costs, the appellant was entitled to bring this
    appeal. In our view, in all the circumstances, the respondent is entitled to
    costs fixed in the sum of $5,000, inclusive of disbursements and applicable
    taxes if these costs are asked.

S.T. Goudge J.A.

J. MacFarland J.A.

David Watt J.A.


CITATION:
Volnyansky
v. Ontario (Community and Social
          Services), 2011 ONCA 434

DATE: 20110603

DOCKET: C53384/C53392

COURT OF APPEAL FOR ONTARIO

Blair, Watt and Epstein JJ.A.

BETWEEN

Lubov

Volnyansky

Appellant

and

Her Majesty The Queen In Right of Ontario, as
          represented by the Minister of Community and Social Services and Regional
          Municipality of Peel

Respondents

Lubov

Volnyansky
,
          in person

Baaba

Forson
,
          for Her Majesty The Queen In Right of Ontario

Ann
Dinnert
for Regional
          Municipality of Peel

Heard:
June 3, 2011

On appeal from the order of Justice Douglas K. Gray of the
          Superior Court of Justice dated May 26, 2010.

APPEAL BOOK ENDORSEMENT

[1]

This endorsement applies both to this appeal and to Ms.
Volnyanskys
appeal in C53384.

[2]

Ms.
Volnyansky
expressed many
    complaints to us this morning about the way she has been (allegedly) mistreated
    in the social welfare system generally and in particular, with respect to the
    calculation of benefits and deductions respecting her claims under the
Ontario Works Act
.  On these appeals, however, these issues are
    not properly before us and cannot be decided.

[3]

The only question properly before us is whether Justice
    Gray erred in dismissing the two actions that Ms.
Volnyansky
commenced in Superior Court.  We are satisfied
    that he did not.

[4]

On the issues as pleaded in the two statements of
    claim, Ms.
Volnyanskys
real complaints relate to a
    decision of the Statutory Benefits Tribunal requiring her to repay $1,314 in
    benefits received under the
Ontario Works
    Act
.  The Tribunals decision cannot
    be reviewed in an action.  The proper
    procedure is to appeal the decision on a question of law to the Divisional
    Court or to seek judicial review of the reconsideration order, before the Divisional
    Court.  Justice Gray was correct in
    striking out the statements of claim on the basis that the Superior Court of
    Justice has no jurisdiction by way of action over decisions of the Social
    Benefits Tribunal.

[5]

In the circumstances of this case, there is no basis
    upon which this court can proceed as if it had reconstituted itself as the
    Divisional Court.

[6]

The appeals are therefore dismissed.  We make no order as to costs.