COURT OF APPEAL FOR ONTARIO

CITATION: 1944949 Ontario Inc. (OMG ON THE PARK) v. 2513000
    Ontario Ltd., 2019 ONCA 628

DATE: 20190725

DOCKET: C65623

Feldman, Roberts and Fairburn JJ.A.

BETWEEN

1944949 Ontario Inc., carrying on business as OMG
    ON THE PARK

Applicant (Respondent)

and

2513000 Ontario Ltd.

Respondent (Appellant)

Shahzad Siddiqui, for the appellant

Paul Ingrassia, for the respondent

Heard: March 8, 2019

On appeal from the order of Justice A. Whitten of the Superior
    Court of Justice, dated June 20, 2018.

Roberts
    J.A.:

A.

Overview

[1]

The appellant appeals from the order of the application judge, terminating
    the commercial tenancy of the respondent and directing a trial, by way of action,
    on the issue of damages.

[2]

The respondent tenant operated a bakery and café out of the
    leased premises. When the premises HVAC system broke down in December 2017, a
    dispute arose between the parties as to the appellant landlords obligations under
    the lease to repair the system.

[3]

The respondent located new premises to rent and brought an
    application to terminate its lease effective June 30, 2018, and to direct a
    trial on the issue of damages incurred by the respondent because of the
    appellants alleged breach of its obligations under the lease.

[4]

The application judge found that the appellant had the obligation
    to repair and maintain the HVAC system and that it had fundamentally breached the
    lease by failing to do so. He also found that this fundamental breach
    invariably led to a breach of the respondents quiet enjoyment of the premises.
    The application judge ordered the termination of the lease and a trial, by way
    of an action, as to the damages suffered by the respondent.

[5]

The appellant landlord submits that the application judges order
    should be set aside and remitted for re-hearing. Its principal submission is
    that the application judge denied the appellant a procedurally fair hearing. In
    particular, the appellant submits that the application judge erred in refusing
    to adjourn the application and, alternatively, to admit the appellants
    supplementary affidavit. In the appellants view, by refusing to admit its
    supplementary affidavit, the application judge did not have a complete record
    that would have allowed him to properly interpret the lease and the parties
    respective obligations.

[6]

In the further alternative, the appellant argues that the
    application judge erred by interpreting the lease to find that the appellant
    had a duty to repair and maintain the leased premises HVAC system.

[7]

The respondent takes the position that the appellant received a
    procedurally fair hearing and that the application judge ought to be afforded
    deference over his discretion to control the judicial process of the matter
    before him and his reasonable interpretation of the lease.

[8]

The appellant also seeks leave to appeal the substantial
    indemnity costs awarded to the respondent.

[9]

I would allow the appeal in part. The application judges
    exercise of his discretion to refuse the appellants requested adjournment was
    reasonable.  While the application judges consideration of the supplementary
    affidavits filed by the parties was flawed, this did not prejudice the
    appellant on the substantive issues. The application judges interpretation of
    the lease was reasonable and it was open to him, on the record before him, to
    determine that the appellant had breached its lease obligations. However, I
    would set aside the order of substantial indemnity costs that resulted from the
    application judges error.

[10]

The appellant also seeks to adduce fresh evidence on this appeal
    by tendering the supplementary affidavit rejected by the application judge. In
    my view, this is not fresh evidence because it was reviewed by the application
    judge.  It is germane to the appeal and should properly be part of the appeal
    record. I would admit it on that basis.

B.

Issues

[11]

The two issues raised by the appellant in its factum and
    developed in argument on appeal can be summarized as follows:

i. Was the hearing of the
    application procedurally unfair and did it result in prejudice to the
    appellant?

ii. Did the application judge
    err in his interpretation of the lease?

C.

Analysis

(1)

Procedural unfairness

(a)

Standard of review

[12]

This ground of appeal involves the exercise of a judges
    discretion to manage and adjudicate proceedings in a manner that is
    proportionate to the importance and complexity of the issues, and to the
    amount involved, in the proceeding:
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194, r. 1.04(1.1).

[13]

It is well-established that absent a palpable and overriding
    error or an error in principle, the reasonable exercise of a judges case
    management discretion is owed deference on appeal. The standard for the
    reversal of a judges exercise of discretion was set out by the Supreme Court
    in
Penner v. Niagara (Regional Police Services Board)
, 2013 SCC 19,
    [2013] 2 S.C.R. 125, at para. 27:

A discretionary decision of a lower
    court will be reversible where that court misdirected itself or came to a
    decision that is so clearly wrong that it amounts to an injustice:
Elsom
    v. Elsom
,
[1989] 1 S.C.R. 1367,
at p.
    1375. Reversing a lower courts discretionary decision is also appropriate
    where the lower court gives no or insufficient weight to relevant
    considerations
: Friends of the Oldman River Society v. Canada
    (Minister of Transport)
,
[1992] 1 S.C.R.
    3
, at pp. 76-77.

(b)

Pre-hearing procedural history and filings before the application judge

[14]

To properly frame the first ground of appeal, it is necessary to
    understand the procedural background to the application.

[15]

The issuance of the respondents application on March 26, 2018 was
    the culmination of several fractious months of increasingly heated dealings
    between the parties. In the almost three months leading up to the hearing of
    the application, the appellant never objected to this matter proceeding by way
    of application. Rather, the parties agreed on a timetable for the delivery of
    materials, including affidavits and facta, as well as the conduct of
    cross-examinations.
[1]

[16]

On April 10, 2018, the parties consented to a court-ordered
    timetable for the completion of the various steps in the application. Of
    relevance to this appeal were the agreed-upon deadlines for the service and filing
    of the application record, including affidavit materials, and the conduct of cross-examinations,
    including the delivery of any answers to undertakings arising out of the latter,
    as well as the delivery of facta. There was no provision allowing for the
    delivery of any further affidavit materials following the completion of the
    cross-examinations.

[17]

The parties complied with the deadlines for the filing of
    responding and reply affidavits by April 20, 2018 and April 30, 2018,
    respectively, and the completion of the cross-examinations. In support of its
    application, the respondent filed the affidavit of its principal, Douglas
    Mattina, sworn March 26, 2018.  In response, the appellant filed the affidavit
    of its property manager, Elahe Vahed, sworn April 20, 2018. The respondent
    filed Mr. Mattinas April 30
th
reply affidavit. It filed its factum,
    authorities and compendium on schedule but the appellant did not. Neither
    delivered answers to undertakings by May 28, 2018.  Following the May 21, 2018
    cross-examination deadline, the respondent filed Mr. Mattinas June 6, 2018 supplementary
    affidavit.

[18]

As the application had been set down for hearing in Hamilton, it
    was subject to that jurisdictions application and motion administrative
    protocol. That protocol notes that where an application is scheduled for a
    specified week, as was the case here, the trial coordinator will contact
    parties or their counsel to advise them when the matter will be argued. The
    protocol expressly directs that when the matter is called for argument, it is
    expected to proceed. In accordance with the court-ordered timetable in this
    case, the application was scheduled to be heard during the week of June 18,
    2018. As a result, the parties had to be ready to proceed when called for
    hearing anytime during the week. The protocol and the court-ordered timetable also
    required the parties to bring a motion to amend the timetable or to request an
    adjournment of the application.

[19]

On June 6 and 8, 2018 (9 and 11 days respectively past the applicable
    deadline), the respondent provided answers to its undertakings from Mr.
    Mattinas cross-examination on his original and reply affidavits. On June 6,
    2018 (16 days following the court-imposed deadline for cross-examinations to be
    completed), the respondent delivered and filed, without leave or the
    appellants consent, Mr. Mattinas supplementary affidavit, sworn on June 6,
    2018.

[20]

In response to respondent counsels inquiry about delivery of the
    appellants factum, appellants trial counsel (not appeal counsel) asked for an
    adjournment of the application. On June 19, 2018, respondents counsel advised the
    appellants trial counsel that his client would not agree to the adjournment
    request.

[21]

On June 19, 2018, in the mid-afternoon, the trial co-ordinator
    advised the parties that the hearing of the application would take place the
    next day starting at 10:00 a.m.

[22]

On June 20, 2018, the date of the hearing of the application, the
    appellants trial counsel did not attend court until about 11:45 a.m. He failed
    to advise the court that he would be late. He asked the court to accept a
    motion record to adjourn the application. The application judge denied the appellants
    adjournment request.

[23]

Appellants counsel then sought to file the supplementary
    affidavit of Amir Sayar, one of the appellants principals, sworn June 19,
    2018, in response to Mr. Mattinas supplementary affidavit, as well as a
    factum, a compendium, and a brief of authorities.

[24]

In response to the appellants request to file the supplementary
    affidavit, factum and brief of authorities, the application judge concluded:

Its all about a heating and air
    condition[ing] system which was not functioning and was apparently in jeopardy
    in terms of its continued operation as a concern. I am  this is not a
    complicated issue. We are proceeding today and I am not receiving your
    materials because you had plenty of time to do it. End of story.  So if youd
    like to sit down, you may hear, hear your friend and then you can make whatever
    response you wish.
[2]

(c)

Parties positions

[25]

The appellant contends that it suffered procedural unfairness
    because the application judge erroneously refused to hear the appellants
    motion to adjourn the application or to accept the affidavit materials prepared
    in response to the respondents supplementary affidavit.  According to the
    appellant, the application judge ought not to have accepted the respondents
    supplementary affidavit that was filed after cross-examinations had occurred
    and well beyond the deadline imposed by the court-ordered timetable.

[26]

The respondent maintains that there was no procedural unfairness
    to the appellant:  there was no error in the application judges exercise of
    his discretion not to adjourn the application or admit the appellants supplementary
    materials. The respondent takes the position that the appellant suffered no
    prejudice because the rejected materials would have made no difference to the
    outcome of the application.

(d)

Was the appellant denied procedural fairness and did it suffer prejudice
    as a result?

[27]

It is axiomatic that parties to a proceeding are entitled to a
    fair hearing. A fair hearing of an originating process requires that all
    parties are given a reasonable opportunity to be heard. A reasonable opportunity
    must be meaningful. It is not, however, unlimited. As a result, the court has a
    wide discretion to control the process before it, which includes refusing
    adjournment requests and restricting the submission of evidence and argument. In
    exercising this discretion, the court must balance the parties respective
    interests in a full and fair hearing. This is consistent with the courts
    obligation to ensure the just, most expeditious and least expensive
    determination of every proceeding.

[28]

In my view, there was no error in the application judges denial
    of the requested adjournment. As the application judge correctly observed, the
    appellant had adequate time to respond or object to the respondents late
    service of materials. Prior to the hearing, the appellant had made no objection
    to the respondents late service of the answers to undertakings and the
    supplementary affidavit. Despite having these materials for several days and
    knowing that the application could be called for hearing any day during the
    week of June 18
th
, the appellant did not request an adjournment
    until the eve of the hearing nor seek to file any responding materials until
    the day of the hearing. In these circumstances, the application judges refusal
    of the adjournment was reasonable and in keeping with his duty to fairly manage
    the proceedings in accordance with the parties reasonable expectations that
    the application would proceed in accordance with the agreed upon timetable.

[29]

The more critical question on this appeal is whether the
    application judges failure to admit the appellants supplementary affidavit to
    respond to the respondents late-delivered supplementary affidavit resulted in prejudice
    to the appellant.

[30]

In my view, the application judges approach was flawed because
    he failed to turn his mind to whether leave should be granted under r. 39.02(2)
    of the
Rules of Civil Procedure
to admit the parties supplementary
    affidavits. Instead, he rejected the appellants supplementary affidavit but admitted
    the respondents supplementary affidavit without addressing whether leave should
    be granted to permit the respondent to file it following cross-examinations in admitted
    contravention of r. 39.02(2), and in breach of the court-ordered timetable. However,
    excepting his award of substantial indemnity costs to the respondent, the
    application judges flawed approach did not taint his interpretation of the
    lease or finding of the appellants breach.

[31]

The relevant portions of r. 39.02(2) for the purposes of this
    appeal are:

A party who has cross-examined on
    an affidavit delivered by an adverse party shall not subsequently deliver an
    affidavit for use at the hearing
without leave
or consent, and the court
    shall grant leave, on such terms as are just, where it is satisfied that the
    party ought to be permitted to respond to any matter raised on the
    cross-examination with evidence in the form of an affidavit [Emphasis added.]

[32]

Rule 39.02(2) prohibits the use at a hearing of an affidavit delivered
    after cross-examinations without leave of the court or the consent of the
    parties
: Lacey v. Kakabeka Falls Flying Inc.
, 2018 ONCA 1007, at para.
    13;
Lockridge v. Director, Ministry of the Environment
, 2013 ONSC 6935,
    322 O.A.C. 345 (Div. Ct.), at para. 23;
Crown Resources Corp. S.A. v.
    National Iranian Oil Co.
,
2005
    CanLII 6053 (Ont. Div. Ct.), at para. 13
.

[33]

The court must consider the following criteria in determining
    whether a party should be granted leave to respond to a matter raised on
    cross-examination:

1)   Is the evidence relevant?

2)   Does the evidence respond to
    a matter raised on the cross-examination, not necessarily raised for the first
    time?

3)   Would granting leave to file
    the evidence result in non-compensable prejudice that could not be addressed by
    imposing costs, terms, or an adjournment?

4)   Did the
    moving party provide a reasonable or adequate explanation for why the evidence
    was not included at the outset?

See:
Lockridge
, at para. 24;
First Capital
    Realty Inc. v. Centrecorp Management Services Ltd.
(2009), 258 O.A.C. 76
    (Div. Ct.), at para. 13.

[34]

In
First Capital Realty
, at para. 14, the Divisional
    Court articulated the preferred approach to these criteria:

A flexible, contextual approach is
    to be taken in assessing the criteria relevant to rule 39.02(2), having regard
    to the overriding principle outlined in Rule 1.04 of the
Rules of Civil
    Procedure
that the rules are to be interpreted liberally to ensure a just,
    timely resolution of the dispute. An overly rigid interpretation can lead to
    unfairness by punishing a litigant for an oversight of counsel. [Citations
    omitted.]

[35]

The application judge does not appear to have considered these
    factors or to have adopted a flexible, contextual approach. He made no
    reference to the provisions of r. 39.02 or advert to its leave requirement. He
    should have done so. Rather, he focussed principally on the late submission of
    the appellants materials. He should have explained why he accepted the
    respondents supplementary affidavit, which was also filed in breach of the
    court-ordered timetable, while he refused the appellant the opportunity to
    respond. There was no issue raised of any prejudice if the appellants
    proffered materials were admitted.

[36]

However, apart from the application judges award of substantial
    indemnity costs, I do not agree that the application judges exclusion of the
    appellants supplementary affidavit and the inclusion of the respondents
    supplementary affidavit resulted in an unfair hearing with an incomplete record
    that caused prejudice to the appellant.

[37]

The respondents supplementary affidavit largely served to update
    the court on what had occurred between the parties since the cross-examinations
    on the earlier affidavits had been completed. In general, the affidavit
    addressed rental payment issues, including allegations of threats and
    harassment by the appellants property manager, Elahe Vahed, the timing of the
    respondents intended departure from the premises, and an HVAC technicians
    visit to the premises on June 3, 2018 that the appellant had arranged without notifying
    the respondent.

[38]

The appellants proffered supplementary affidavit, while mostly referencing
    events that had occurred since the cross-examinations, also referenced matters
    that long pre-dated the cross-examinations and were or could have been
    addressed in the appellants responding affidavit materials.  Among other
    things, Mr. Sayars affidavit responded to Mr. Mattinas supplementary
    affidavit in addressing the parties failure to abide by the court-ordered
    timetable, the appellants ongoing attempts to inspect the HVAC system
    (including the unscheduled technician visit addressed in the respondents
    supplementary affidavit), the rental payment issues and the allegations against
    Ms. Vahed. It also referred to condominium rules relating to repairs, the
    history of the property, including the appellants acquisition of the rental
    property in 2016, and HVAC repairs that had been completed.

[39]

In my view, there was nothing new in the respondents
    supplementary affidavit that made any difference to the result of the substantive
    lease issues to be determined on the application. Nor would the appellants
    supplementary affidavit have affected the outcome. Moreover, it does not appear
    that the application judge relied in any material way upon the contents of the
    respondents supplementary affidavit to reach his interpretation of the lease
    or his finding of the appellants breach.

[40]

Though the application judge observed in his reasons that, to
    date, the appellant had not properly reconstituted the HVAC system, and
    referred to the appellants continued inaction in that regard, his
    fundamental breach finding did not depend on the appellants conduct after May
    15, 2018, as outlined in the respondents supplementary affidavit. As the
    application judge stated, the record was quite complete with the lease, the
    emails between the respondent and the appellants property manager (the affiant
    of the appellants responding affidavit who was cross-examined), and the
    analysis of the HVAC technician, completed in January 2018.

[41]

I also recognize that the application judge
    could be seen as referring in part to disagreements between the appellants
    property manager and the respondent over rent in concluding that, relying on
    the behaviour of the landlord in the last six months, the respondent was
    entitled to treat the lease at an end. The respondents supplementary affidavit
    did address a disagreement over rent that arose following the completion of
    cross-examinations. However, that dispute mirrored earlier disputes over the
    same issues that were detailed in the earlier affidavits that had been
    cross-examined upon. In other words, it was more of the same. Moreover, the
    application judge specifically stated that the property managers allegations
    of non-payment of rent
do not detract from
the nature of a fundamental breach of contract. That statement
    clarifies that the key elements of the record enumerated above, and not the
    contents of the respondents supplementary affidavit, were the basis of the
    finding that there had been a fundamental breach.

[42]

As a result, I see no prejudice to the appellant
    as a result of the application judges case management decision to refuse
    admission of its supplementary affidavit. It made no difference to the outcome
    of the substantive lease issues on the application.

[43]

However, the same cannot be said with respect to the application
    judges award of substantial indemnity costs. The application judge relied on the
    unchallenged evidence as set out in the respondents supplementary affidavit about
    the appellants alleged harassment of the respondent through its property
    manager, Ms. Vahed. He used this evidence to support his finding that the
    appellant engaged in litigation misconduct that warranted an award of
    substantial indemnity costs.

[44]

This was an unfair outcome that resulted from the application
    judges unreasonable exclusion of the appellants supplementary affidavit in
    which Mr. Sayar provided a different version of events.

[45]

As a result, I would set aside the award of substantial indemnity
    costs.

(2)

Did the application judge err in his interpretation of the lease?

[46]

The appellant submits that the application judge misconstrued the
    terms of the lease: it was the respondents obligation under the lease to find
    someone to carry out any repairs to the HVAC system; the appellant fulfilled
    its lease obligations by paying for any repairs.

[47]

I would not give effect to these submissions. In my view, the
    application judges interpretation of the non-standard form provisions of the
    lease was reasonable. Absent a palpable or overriding error or an extricable
    error of law, the application judges interpretation of the lease is subject to
    deference on appeal:
Deslaurier Custom Cabinets Inc. v. 1728106 Ontario
    Inc.
,
2016 ONCA 246
,
130
    O.R. (3d) 418, at paras. 25-31, affd 2017 ONCA 293, leave to appeal to S.C.C.
    refused, 37039 (October 19, 2017).

[48]

The application judge reviewed the terms of the lease between the
    parties and found that the appellant had a duty to repair the HVAC system that
    went beyond simply reimbursing the respondent for repairs. This interpretation reasonably
    arises from the following express lease provisions:

·

Repair and Maintenance of the in-suite HVAC unit shall be paid
    for by the Landlord throughout the Lease Term;

·

Schedule B required the landlord to: Provide HVAC system in good
    working order.

[49]

Further, the appellant landlords obligation to repair the HVAC
    system is a reasonable construction flowing from the respondents right to
    quiet enjoyment and fitness of the premises as an operational café; the lease
    expressly notes that the premises shall be used for a food shop.

[50]

I see no error here that would
    warrant appellate intervention.

D.

Disposition

[51]

For these reasons, I would allow the appeal in part and set aside
    the award of substantial indemnity costs. In its place, I would award the respondent
    its partial indemnity costs of the application in the amount of $11,000,
    inclusive of disbursements and taxes. I would otherwise dismiss the appeal.

[52]

The respondent was largely successful on this appeal and is
    therefore entitled to partial indemnity costs in the amount of $7,500,
    inclusive of disbursements and applicable taxes.

Released: July 25, 2019
    K.F.

L.B.
    Roberts J.A.

I
    agree. K. Feldman J.A.

I
    agree. Fairburn J.A.

[1]

The parties proceeded from the outset
    by way of application to determine both the interpretation of the lease as well
    as whether the landlord had breached the lease. The breach issue was a disputed
    factual issue and was the subject of much of the evidence on the application.
    Because no party raised as a ground of appeal the propriety of proceeding by
    application rather than by action, these reasons do not address that issue.

[2]

In the course of the hearing, the appellant also sought to
    bring a motion to convert the application into an action, which was denied by
    the application judge.  That decision is not the subject of this appeal.


COURT OF APPEAL
    FOR ONTARIO

CITATION: ACT Greenwood Ltd. v. Desjardins-McLeod, 2019 ONCA
    585

DATE: 20190709

DOCKET:
    C65412

Pepall,
    Trotter and Harvison Young JJ.A.

BETWEEN

ACT Greenwood Ltd., c.o.b. as ACT Greenwood
    Office Management and

Dr. Clement Sun

Plaintiffs (Appellants)

and

Jocelin
    Desjardins-McLeod

Defendant
    (Respondent)

Robert
    Harrison and Zohar Levy, for the appellants

Justin Necpal and Anisah Hassan,
    for the respondent

Heard:
    February 6, 2019

Supplementary
    reasons to the judgment in
ACT Greenwood Ltd. v. Desjardins-McLeod
, 2019
    ONCA 158, released on February 28, 2019.

ADDENDUM

[1]

On February 28, 2019, this court released its decision allowing the
    appeal in part:
ACT Greenwood Ltd. v. Desjardins-McLeod
, 2019 ONCA
    158.

[2]

Subsequent to the release of the decision, counsel for the respondent
    requested that this court order that funds paid into court by the appellants to
    the credit of the action as security for costs be paid out of court to the
    respondent. Counsel for the appellants has advised that his clients are
    unopposed to this requested order.

[3]

In the circumstances, we order that the funds held by the Accountant of
    the Superior Court of Justice to the credit of action CV 15 538027, in account
    541728, be paid out to the respondent, Jocelin Desjardins-McLeod.

S.E. Pepall J.A.

G.T.
    Trotter J.A.

A. Harvison Young
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Alalouf v. Sumar, 2019 ONCA 611

DATE: 20190719

DOCKET: C63949

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

BETWEEN

Penny Alalouf

Applicant (Respondent)

and

Anwar Sumar

Respondent (Appellant)

Audrey Lee, for the
    appellant

Suzanne E. Deliscar, for the respondent

Heard: July 15, 2019

On appeal from the order of Justice
    Lene Madsen of the Superior Court of Justice, dated May 26, 2017, with reasons
    reported at 2017 ONSC 3043.

REASONS FOR DECISION

[1]

After the breakdown of their 15-year cohabitation/14-year marriage, the
    parties were able to settle parenting issues related to the children of the
    marriage. However, financial issues remained outstanding. After a nine-day
    trial, the trial judge made orders in relation to, among other things, the
    equalization of net family property, post separation adjustments, as well as ongoing
    and retroactive spousal and child support. The trial judge declined to make an
    order relating to a cottage property situated on Saugeen First Nation land.

[2]

The father appeals from nearly all orders made by the trial judge. He
    also submits that the trial judge erred in finding that she had no jurisdiction
    to deal with the cottage property. We would dismiss the appeal for the
    following reasons.

The Trial

[3]

Both parties were self-represented at this lengthy trial. The trial
    judge made credibility findings that were critical to her resolution of the
    many contentious issues she was tasked with deciding. At para. 2 of her
    reasons, the trial judge explained:

Unfortunately this case was marked by two issues which plague
    the effective resolution of many family law cases: the failure to make full,
    frank, and timely disclosure; and a failure to comply with temporary Court
    Orders. This case was also marked by a lack of candor on the part of the [the
    father] on numerous issues. All of these factors necessitated a trial where one
    should not have been required.

[4]

The trial judge made specific credibility findings. In general, the
    trial judge found the mother to be a consistent and credible witness: at para.
    5. However, she expressed concerns about the fathers credibility for a number
    of reasons: at para. 7. The trial judge listed examples, including: (1) she strongly
    suspected that the father altered the date on a Scotiabank Line of Credit
    statement (at para. 8); (2) she did not accept the fathers evidence concerning
    how the balance of this line of credit was retired upon the sale of the
    matrimonial home (at paras. 9-10); and (3) she found that the fathers February
    7, 2015 sworn financial statement was not accurate in relation to a newly
    acquired job (at para. 11) and that he misstated his income in his updated
    financial statement sworn on January 7, 2017 (at para. 12). After citing other
    examples, the trial judge concluded that, [i]t appears that on a range of
    issues Mr. Sumar has not been forthright with Ms. Alalouf, or with the Court:
    at para. 18. This led the trial judge to conclude that, where the testimony of
    Ms. Alalouf and Mr. Sumar differs, I find the testimony of Ms. Alalouf more
    credible: at para. 5.

[5]

These findings follow the father into this court. On appeal, a highly
    deferential standard of review is owed to the factual findings of a trial judge
    in family litigation:
Choquette v. Choquette
, 2019 ONCA 306, at para.
    15;
Johanson v. Hinde
, 2016 ONCA 430, at para. 1; and
Hersey v.
    Hersey
, 2016 ONCA 494, 87 R.F.L. (7th) 272, at para. 12. The trial judges
    credibility findings go a long way in explaining how she resolved many of the
    contentious issues.

The Cottage Property

[6]

The father argues that the trial judge erred by failing to order that
    the mother convey to the father her interest in a cottage property. The parties
    acquired a jointly held leasehold interest in relation to a cottage situated on
    land of the Saugeen First Nation. In 2006, they purchased the cottage building for
    $49,000 and then took an assignment of a lease, under which the vendors had
    leased the property from a Band member, for an annual rent of $6,107.00. The
    lease expired in 2011 and has not been renewed. At the hearing of the appeal,
    we were informed that even though the lease has not been renewed, the parties
    continue to use the cottage property. Rent arrears have accumulated since 2015
    and it is not apparent how the parties will pay them. We were further advised
    that the original owner of the land has passed away and litigation has ensued
    over that persons property, including the cottage.

[7]

The trial judge was constrained in her ability to deal with this issue. At
    trial, neither the original lease of land to the vendors, nor the assignment of
    the lease to the parties, were produced. Nevertheless, on the basis of the
    information made available to her, the trial judge held that because the land
    is situated on a First Nation reserve, it is governed by the provisions of the
Indian
    Act
, R.S.C. 1985, c. I-5.  Relying on this courts decision in
Syrette
    v. Syrette
, 2012 ONCA 693, 6 C.B.R. (6th) 324, the trial judge held, at
    para. 110, that she had no jurisdiction to make an order in relation to this
    land under s. 9 of the
Family Law Act
, R.S.O. 1990, c. F.3. She
    concluded that the occupancy, possession, ownership, and disposition of reserve
    lands governed by the
Indian Act

lies at the core of federal
    jurisdiction over [l]ands reserved for the Indians under s. 91(24) of the
Constitution
    Act
, 1867
.

[8]

It is unnecessary to address the correctness of the trial judges
    conclusion on jurisdiction. The factual record before the trial judge, and
    before us, was completely inadequate. Without the original lease or the
    assignment, we are unable to determine the true nature of the parties
    interests in this property, if any, whether any such interest is assignable,
    and what the value of any such interest may be. We are not prepared to rule on
    the constitutional issue in the abstract.

[9]

Accordingly, we dismiss this ground of appeal. However, we recognize
    that this conclusion leaves the parties in limbo in dealing with this property.
    We can do no better than to endorse the trial judges suggestions, at paras.
    118-119, that the parties find a way to agree on how to deal with such interest
    as they may have in the property.

Payments on Joint Line of Credit

[10]

The
    father submits that the trial judge erred in finding that the parties are
    equally responsible for paying interest accruing on a joint line of credit from
    January 1, 2017 (being just prior to the start of the trial), instead of from the
    date of separation. The father gave evidence that, from 2010 to 2017, he made
    all payments on that line of credit in the total amount of $16,000. Based on a spreadsheet
    prepared by the father, the trial judge found, at para 92, that she had no way
    of verifying that figure nor is it clear what portion related to the joint debt
    and what portion related to the debts in his own name solely. Bearing in mind
    the trial judges concerns about the fathers credibility, as outlined above,
    we see no basis to disturb her finding on this issue. We dismiss this ground of
    appeal.

Failure to Deduct Notional Disposition Costs from RRSP Values

[11]

The
    father submits that the trial judge erred in failing to deduct notional
    disposition costs of the mothers RRSP at the date of marriage and the
    valuation date, and the notional disposition costs of the fathers RRSP at the valuation
    date. The father contends that, had the trial judge made these deductions, the
    equalization payment (before post separation adjustments) owed to him would
    have increased from $13,719.50 to $25,679.10.

[12]

The
    trial judge declined to recognize these contingent debts because neither party
    provided evidence regarding any costs of disposition with respect to the two
    RRSP accounts, nor were there entries to this effect on either partys NFP
    statement: at para. 83. The motion judge committed no error in her approach to
    this issue. This ground of appeal is dismissed.

Income Imputed for Support Purposes

[13]

The
    father alleges that the trial judge made numerous errors in the imputation of
    his income for support purposes. In our view, there was an evidentiary basis to
    support the trial judges conclusions. Again, the fathers credibility was important.
    For example, when the father lost his job in 2016, he was earning a salary of $190,000
    per annum. The father told the mother that he received two weeks of severance,
    when in fact he received 20 weeks.

[14]

The
    trial judge provided detailed reasons for finding that the father was
    intentionally underemployed or unemployed during the relevant periods of time.
    She found that the father was not particularly motivated to find new employment
    that matched what he was capable of earning. For example, the trial judge noted,
    at para. 151, that, for the first half of 2016, the father did not look for
    work due to his difficulties with the Family Responsibility Office and that it
    was not until July that he really started the job search. He should have been
    looking for work throughout this period.

[15]

The
    trial judges findings were reasonable. They reflect no palpable and overriding
    error. We dismiss this ground of appeal.

Refusing to Admit Evidence of New Employment

[16]

The
    father submits that the trial judge erred by not permitting him to file
    evidence regarding employment he had allegedly just obtained.

[17]

The
    evidentiary stage of the trial ended on January 25, 2017. On May 9, 2017 the
    parties were expected to make final submissions. In the context of a discussion
    about how the Family Responsibility Office was enforcing arrears against the father,
    he asked to file a letter that he said disclosed that he had found a new job,
    commencing the following week with a salary of $70,000 per annum. The father
    had failed to provide advance notice of this development to the mother. He made
    no hard copies of the offer letter; instead, he relied upon an electronic copy
    on his computer. After viewing the document on the screen of the fathers
    computer, the mother disputed its authenticity. The trial judge said she would
    deal with the admissibility of the letter in her final reasons for judgment.

[18]

Ultimately,
    the letter was not formally admitted into evidence. However, the trial judge
    said, at para. 200: For all of the reasons set out above, I find that even if
    Mr. Sumar is now employed at a pay rate of $70,000, he is underemployed within
    the meaning of section 19 of the
Child Support Guidelines
.

[19]

There
    is no basis to conclude that the trial judge improperly exercised her
    discretion in dealing with this proffer of evidence. The father offered this
    letter, not previously disclosed, at the last possible moment. In light of the
    trial judges findings about the fathers conduct during the litigation, her decision
    was justified.

[20]

This
    ground of appeal is dismissed.

Spousal Support

[21]

The
    father submits that the trial judge erred in ordering indefinite spousal
    support be paid to the mother, especially when the Spousal Support Advisory
    Guidelines provided a duration range of between 7.5 years and 15 years from the
    date of separation. The father submits that the mother did not give evidence
    that she assisted in any material way in advancing the fathers career or that
    she did anything more than what would be expected of any spouse in her
    situation. Moreover, the father submits that, by the time of trial, the mother
    was earning $30,000 per annum and was thus close to being self-sufficient at a
    reasonable level.

[22]

We
    reject the fathers submissions. The trial judge, at para. 52, pointed to the fathers
    testimony in which he acknowledged that he has had very good employment experience
    over the years and agreed that he would not have been able to build his
    twenty-year e-commerce career without Ms. Alalouf having been home with the
    children. See also para. 179.

[23]

The
    trial judge explained, at paras. 178-209, why she was ordering spousal support
    on both a compensatory and non-compensatory basis, and outlined the basis for
    the quantum and duration of support. The trial judge observed that, by assuming
    the household responsibilities that she did, the mother facilitated the
    advancement of the fathers career at the expense of her own. As a result, she
    had suffered economic hardship. As the trial judge said, at para. 179: Ms.
    Alalouf is unable to maintain anything approaching the lifestyle the parties
    shared during the marriage without spousal support.

[24]

In
    terms of the duration of the spousal support order, the trial judge said, at
    para. 203, that [t]here is no basis for a termination of spousal support at
    this time. Relying on
Leskun v. Leskun
, 2006 SCC 25, [2006] 1 S.C.R.
    920, the trial judge declined to set a date upon which spousal support could be
    reviewed, leaving it to the parties to trigger a motion to vary based on a
    material change of circumstances: at paras. 207-208. We see no error in this
    approach.

[25]

This
    ground of appeal is dismissed.

Section 7 Expenses

[26]

The
    father submits that the trial judge erred in ordering that the father pay $300
    per month for the childrens horseback riding lessons as a s. 7 expense under
    the
Child Support Guidelines
, O. Reg. 391/97
.
He contends that
    the mother could reasonably have covered this expense given her income and the
    quantum of child support and spousal support ordered by the trial judge. At the
    hearing of the appeal, we were told that this is no longer an ongoing expense.
    However, any adjustment to this aspect of the trial judges judgment may impact
    on the fathers arrears.

[27]

There
    is no basis to interfere with this aspect of the trial judges decision. The
    trial judge applied the correct principles in determining that the expenses
    were necessary and reasonable. At trial, the father acknowledged that the
    lessons were good for the children. Living on a farm, they enjoyed this activity
    until the father stopped paying support. The trial judge did not err in finding
    that the expenses were necessary and reasonable in all of the circumstances: at
    para. 213.

[28]

This
    ground of appeal is dismissed.

Conclusion

[29]

The
    appeal is dismissed. The mother is entitled to costs in the amount of $9,135.97,
    inclusive of disbursements and taxes.

Alexandra Hoy A.C.J.O.

G.T. Trotter J.A.

M. Jamal
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Ali (Re),
    2019 ONCA 602

DATE: 20190715

DOCKET: C65759

Feldman, Paciocco and
    Zarnett JJ.A.

IN THE MATTER OF:
    Ayanle Hassan Ali

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

Amy Alyea, for the appellant

Nader Hasan and Maureen Addie, for the respondent,
    Ayanle Hassan Ali

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

Heard: February 15, 2019

On appeal against the disposition of the Ontario Review
    Board, dated July 18, 2018.

Feldman J.A.:

Introduction

[1]

The Crown appeals from the disposition of the Ontario Review Board (the ORB
    or the Board), dated July 18, 2018. Before the Board, all parties agreed that
    the respondent, Mr. Ali (Mr. Ali), remained a significant threat, and that he
    should be detained on the secure forensic unit at St. Josephs Healthcare
    Hamilton (St. Josephs). Also before the Board, the respondents, Mr. Ali and
    the hospital, proposed that Mr. Ali should be permitted to enter the community
    of Hamilton, within a two-kilometer radius of St. Josephs, indirectly
    supervised, for educational purposes. The Board granted this privilege. The
    Boards reasons state that the indirectly supervised passes contemplated in the
    privilege would only be granted by the hospital when and if Mr. Ali was ready
    to exercise them. The Board also prohibited Mr. Ali from attending at any military
    installation or recruitment centre.

[2]

On appeal, the Crown takes issue with two aspects of the Boards
    disposition. First, the Crown contends that the Board erred in law and made an
    unreasonable decision by providing for the potential of indirect supervision in
    the community. As it did before the Board, the Crown takes the position that
    this condition does not adequately account for public safety. Second, the Crown
    submits that the Board made an unreasonable decision by failing to prohibit Mr.
    Ali from communicating with all uniformed military personnel.

[3]

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

Background Facts

[4]

Mr. Ali was found not criminally responsible on account of mental
    disorder (NCR) on May 14, 2018, for index offences that occurred on March 14,
    2016. He walked into a Canadian Forces recruiting centre in Toronto and
    immediately attacked the corporal responsible for screening entry to the
    centre. He punched the corporal multiple times in the head and slashed his arm
    with a kitchen knife. After an officer intervened, Mr. Ali ran further into the
    centre, where he swung his knife at one sergeant, barely missing the back of
    her neck, and attempted to stab another sergeant. Mr. Ali was eventually
    subdued by a group of officers. One of the officers noticed Mr. Ali was wearing
    an iPod that displayed a chapter of the Quran, and another overheard him
    muttering a prayer as he was being subdued. When the paramedics arrived, Mr.
    Ali was arching his back, making incomprehensible noises, retching, and
    laughing. He told one of the paramedics that Allah had sent him to kill people.

[5]

The police found no evidence of a connection between Mr. Ali and any
    other person or group. At trial, psychiatric evidence was proffered by Drs.
    Klassen and Chaimowitz, who conducted separate assessments under s. 672.11 of
    the
Criminal Code
, R.S.C. 1985, c.
    C-46
. Both doctors diagnosed Mr. Ali with schizophrenia and
    concluded an NCR defence was available to him. The trial judge considered the doctors
    evidence and determined that Mr. Ali was incapable of knowing that his conduct
    was morally wrong. He found Mr. Ali NCR in respect of: (i) three counts of
    attempted murder; (ii) two counts of assault causing bodily harm; (iii) three
    counts of assault with a weapon; and (iv) one count of carrying a weapon for
    the purpose of committing an offence.
[1]
On consent, the trial judge endorsed a warrant of committal detaining Mr. Ali
    at St. Josephs until the ORB could render a disposition.

[6]

The disposition hearing took place on July 13, 2018. All parties agreed
    that the significant threat threshold was met and that Mr. Ali should be
    subject to a detention order on the secure forensic unit at St. Josephs.

[7]

At the disposition hearing, the respondents (Mr. Ali and the hospital) submitted
    that Mr. Ali should enjoy the following privileges: (i) hospital and grounds
    privileges, to enter the community of Southern Ontario accompanied by staff
    and/or a person approved by the person in charge; and (ii) to enter the
    community of Hamilton, within a two-kilometre radius of St. Josephs,
    indirectly supervised, for educational purposes. The Crown submitted that no
    indirectly supervised privileges should be granted.

[8]

The Crown also sought a prohibition against communication with any
    military personnel. Counsel for Mr. Ali argued that such a communication
    condition would be too vague, since Mr. Ali would have no way of knowing
    whether his plainclothes classmates were military personnel. Instead, counsel
    for Mr. Ali suggested that the prohibition should read that he not attend any
    known military installations or recruitment centres.

[9]

Dr. Chaimowitz, Mr. Alis attending psychiatrist, gave evidence at the
    hearing. He stated that Mr. Alis condition had gradually improved, his core
    delusions had dissipated (though he still exhibited residual delusions), he was
    taking medication on consent, and his insight into his condition was good. Mr.
    Ali had also demonstrated an interest in furthering his education. In Dr.
    Chaimowitzs view, this would benefit Mr. Ali. The hospital proposed that this
    could be accomplished by affording Mr. Ali privileges to attend a local college
    across the street from the hospital. Mr. Ali could start by attending with
    staff and, if things went well, he could attend while being indirectly supervised.
    Dr. Chaimowitz opined that the proposed privileges were critical to Mr. Alis
    needs and reintegration into society.

[10]

The
    Board determined that Mr. Ali would receive hospital and grounds privileges, up
    to and including indirectly supervised privileges. The Board further ordered
    that Mr. Ali would be permitted to enter the community of Southern Ontario
    escorted by staff or accompanied by staff or a person approved by the person in
    charge, or indirectly supervised only within a two-kilometre radius of St.
    Josephs for educational purposes. Although it was not requested, the Board
    stated that Mr. Ali would not be permitted to have indirectly supervised passes
    into Southern Ontario more broadly. The Board explained in its reasons that the
    indirectly supervised passes for educational purposes were to be granted by the
    hospital on a gradual basis when and if Mr. Ali was ready to exercise them.
    The Board also prohibited Mr. Ali from attending any known military
    installation or recruitment centre.

Issues

[11]

The
    Crown raises the following issues on appeal:

1)

Did the Board err in law and make an unreasonable decision by granting Mr.
    Ali the privilege of indirect supervision while attending the local college?

2)

Did the Board make an unreasonable decision by failing to include a
    condition requiring Mr. Ali to have no contact with uniformed military
    personnel?

[12]

For
    the reasons that follow, I would dismiss the appeal. The Board did not err in
    law, and its disposition was reasonable.

Analysis

Issue 1: Did
    the Board err in law or make an unreasonable decision by granting Mr. Ali the
    privilege of indirect supervision for educational purposes?

[13]

The
    Crown submits that the Board erred in law by failing to adequately consider all
    relevant factors under s. 672.54 of the
Code
in granting Mr. Ali the
    privilege of indirect supervision within a two-kilometre radius of the hospital
    for educational purposes. Further, the Crown submits that this part of the order
    was unreasonable.

[14]

The
    Crown takes the same position on appeal that it did before the Board: that
    because the safety of the public is the paramount consideration under s. 672.54
    of the
Code
, allowing the possibility of indirectly supervised
    attendance at the local college does not adequately protect the safety of the
    public. The Crown submits that paragraph 34 of the Boards reasons demonstrates
    that the Board only considered the issue of the safety of the public when it
    imposed the detention order in the secure forensic unit, and not when granting
    the privilege of attending the local college with indirect supervision. That
    was done, the Crown submits, to meet Mr. Alis needs and not those of the
    public. Paragraph 34 reads as follows:

In addition to the issue of protection of the public, which is
    paramount, s. 672.54 of the
Criminal Code of Canada
requires the Ontario
    Review Board to consider the current mental condition of the patient, his
    reintegration into society and his other needs. The Detention Order on the
    secure forensic unit will address the issue of the protection of the public.
    The permission to use indirect passes into hospital and grounds and also for
    education purposes, will address Mr. Alis other needs. These passes will only
    be granted by the hospital on a gradual basis and on a when and if basis Mr.
    Ali is ready to exercise them. Otherwise, they will not be granted.

[15]

The
    Crown further argues that the Board did not consider the absence of any
    privilege history and was taking a leap of faith in granting the privilege for
    indirectly supervised attendance at the local college. It argues that this
    condition was inconsistent with the Boards decision to grant only escorted
    access to the community of Southern Ontario more broadly. The Crown submits
    that the Board failed in its inquisitorial role by failing to seek out further
    information about the proximity of an armed forces base, or whether reserve or
    other military personnel attend the college. Finally, the Crown argues that the
    Board should not have delegated to the hospital the decision for when Mr. Ali
    was ready for indirect supervision, but should instead have required the
    hospital to request an early review hearing so that the Board could make the
    decision.

[16]

I
    would not give effect to any of these arguments.

[17]

Because
    the Crown took the position before the Board that granting indirect supervision
    privileges would not adequately address public safety, the Board fully
    considered that issue. In his testimony in-chief, Dr. Chaimowitz explained why
    he was recommending indirect supervision at the local college as part of Mr.
    Alis privileges, and the rigorous process the hospital would use to make the
    decision to extend that privilege. The safety issue was also thoroughly canvassed
    with him in cross-examination and in detailed questioning by the Board members.

[18]

Leading
    up to this first ORB disposition hearing, Dr. Chaimowitz had been treating Mr.
    Ali for two years at the hospital, ever since he was first admitted for an
    assessment for fitness to stand trial. During that time, Mr. Ali had
    essentially no privileges. Dr. Chaimowitz was of the opinion that Mr. Ali would
    benefit from further higher education, something that interested him. The
    intention behind the privilege proposed by the respondents was that Mr. Ali would
    attend the local college across the street from the hospital to take a course. The
    doctor was of the view that without this type of privilege, Mr. Alis reintegration
    into society and his other needs would not be properly addressed.

[19]

It
    was contemplated that Mr. Ali would initially be accompanied to the college by
    staff or a person approved by the person in charge. If that went well, then the
    privilege would be expanded to indirect supervision, which would mean Mr. Ali
    would go by himself and be picked up afterward.

[20]

The
    doctor described the hospitals process for evaluating graduation of Mr. Alis
    privileges in the following answer, given in cross-examination:

Yes, so the privileges are assessed by -- in a team-based
    setting once a month. And theres a use of some analytics in looking at how the
    person has progressed and orders written by the most responsible physician. The
    physician signs off that a risk assessment has been done. The lawyer in the program
    will check to make sure the privileges correspond with the persons
    disposition. The physician will sign, I will sign or my delegate and Im also
    the person in charge, but as I had said, the head of the service and Ms. Tagis
    Haywood (ph) as the clinical admin director, also signs, the delegate or person
    in charge and only then will the privileges be exercised.

[21]

Dr.
    Chaimowitz also explained that because Mr. Alis psychosis was being
    controlled, the other issue affecting his risk to the public was the potential
    for him to be influenced by radical, political ideas. One of the Board members asked
    Dr. Chaimowitz how that potential affected Mr. Alis risk to the public. Dr. Chaimowitz
    responded:

[T]his is a psychotic individual whose delusions were caught up
    in this -- his ideas and acted out that way. That being said, delusions are
    pretty well controlled, pretty well controlled. And the part that Im going to
    keep an eye on, because now Im in a very different role because -- I mean,
    its obviously its on us, the person in charge and the, the most responsible
    physician to make sure that this man is not posing any risk to the public.

[22]

In
    its reasons, the Board set out Dr. Chaimowitzs opinion regarding the risks Mr.
    Ali posed as follows, at para. 25:

(a) his Psychotic Disorder which is managed well, while he is
    on medication; and

(b) his potential to act out on political, or radical ideas.
    There is no treatment for this. Dr. Chaimowitz does not perceive Mr. Ali as a
    radical. Rather, he sees the index offences having occurred as a result of Mr.
    Ali experiencing psychosis and using the ideas in the psychotic event, in a
    very bumbly fashion to act out in a violent way. Mr. Ali does not preach his
    delusions. He is not part of a group. The doctor does not see him as a
    terrorist.

[23]

In
    this case, the Board considered the evidence of Dr. Chaimowitz fully and in
    detail. While Mr. Ali did not have a track record of compliance with conditions
    since this was his first hearing, he had a two-year history at the hospital and
    with Dr. Chaimowitz. The Board imposed the disposition that Dr. Chaimowitz
    recommended.

[24]

Dr.
    Chaimowitz made it very clear that he would give due consideration to any
    safety concerns before allowing any increment in Mr. Alis privileges. While
    the decision to allow indirectly supervised attendance at a class at the
    college across the street from the hospital was potentially allowed, the
    hospitals process involves a team decision for privileges with a trial of each
    graduated step and approval from the treating psychiatrist and the legal
    adviser before any extension of the privilege is granted. Dr. Chaimowitz
    suggested that it would likely take several months before the clinical team
    would consider granting Mr. Ali the privilege of indirectly supervised attendance
    at the college.

[25]

I
    reject the Crowns further submission on the appeal that because the Board refused
    to grant indirectly supervised access to the whole community of Southern
    Ontario, that was inconsistent with the limited privilege contemplated by the
    Boards disposition. In fact, neither Mr. Ali nor the hospital asked the Board
    to order indirectly supervised access to the whole community. Nevertheless, the
    Board stated that it would not make that extension. The limited extension of
    indirectly supervised access only to the local college shows that the Board was
    extending only a very limited privilege, both geographically and in terms of
    time away, that reflected its concern for public safety but balanced with the
    need to facilitate Mr. Alis reintegration into society.

[26]

Nor
    did the Board neglect its inquisitorial function. While there might have been
    further information that could have been sought out about any potential
    exposure to uniformed military personnel attending Mr. Alis class at the
    college, that information would be quickly learned upon Mr. Alis escorted
    attendance. If that turned out to be the case, that would be an important
    factor for the hospital to consider before allowing Mr. Ali to attend the class
    at all or to determine the type of supervision that may be required.

[27]

Finally,
    I reject the Crowns argument that the Board inappropriately delegated its
    responsibility by giving the hospital the ability to implement Mr. Alis
    privilege on a gradual basis. Similar issues regarding the role of the hospital
    and the role of the Board arose in the case of
Scott (Re)
, 2017 ONCA
    94, 137 O.R. (3d) 71, referred to by the Crown. That case states, at paras.
    19-20:

In setting out the parameters of the disposition, the Board
    must balance the twin goals of public safety and fairness to the detained
    person as described by the Supreme Court of Canada in
Pinet v. St. Thomas Psychiatric
    Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19 as follows:

The objective is to reconcile
    the twin goals of public safety and treatment. In the process of
    reconciliation, public safety is paramount. However, within the outer
    boundaries defined by public safety, the liberty interest of an NCR accused
    should be a major preoccupation of the Review Board when, taking into
    consideration public safety, the mental condition and other needs of the
    individual concerned, and his or her potential reintegration into society, it
    makes its disposition order.

However, within those parameters, the hospital requires the
    flexibility to implement the disposition in accordance with the day-to-day
    needs of the detained person and the circumstances that may arise. In
R. v. (C.)
    M.L.,
2010 ONCA 843, 104 O.R. (3d) 450 (Ont. C.A.), this court discussed
    the relationship between the roles of the Board and the hospital in formulating
    and implementing the least onerous and least restrictive disposition at para.
    28:

While the Board has the jurisdiction
    to review a patients disposition at a particular hearing, it is not in a
    position to oversee the patient on a day-to-day basis and to refine the
    restrictions on his or her liberty. This is why the statutory framework gives
    the hospital the ability and flexibility to monitor patients who suffer from
    mental disorder. The responsibility for adjusting the restrictions for such a
    patient comes from s. 672.56(1), which allows the Board to delegate to the
    hospital certain decisions about the patients liberty. Any restrictions the
    hospital places on the patient must fall within the envelope of the conditions
    enumerated by the Board in its disposition. As a safeguard, any decision by a
    hospital that significantly restricts a patients liberty for more than seven
    days must be considered by the Board in a restrictions review.

[28]

As
    discussed in
Scott (Re)
, it is not the role of the Board to
    micromanage the details of the day-to-day needs of each person under the
    disposition. Instead, it is the hospital that assesses the progress of each
    person in order to most effectively implement the Boards disposition.

[29]

In
    my view, it is clear from the reasons of the Board and the conduct of the
    hearing that the Board carefully considered all of the required factors in
    making its disposition regarding the limited indirect supervision privilege and
    made no error of law. Its decision was not unreasonable.

Issue 2: Did
    the Board make an unreasonable decision by failing to include a condition
    requiring Mr. Ali to have no contact with uniformed military personnel?

[30]

The
    Board included as a condition that Mr. Ali be prohibited from attending at any
    military installation or recruitment centre. The Crowns position at the
    hearing was that there should be a prohibition requiring Mr. Ali not to
    communicate directly or indirectly with any military personnel. Dr. Chaimowitz
    indicated in his evidence that he had no objection to the no-contact provision
    proposed by the Crown being included in the Boards disposition.

[31]

During
    closing submissions, counsel for Mr. Ali took the position that Mr. Ali would
    not know whether someone in plain clothes might be military personnel.
    Therefore, she stated, the provision was overly vague and could lead to
    compliance issues.

[32]

On
    appeal, the Crown contends that the condition could have been revised to
    require Mr. Ali not to have contact with any uniformed military personnel.
    This, the Crown says, would have avoided the concerns raised by Mr. Ali.

[33]

In
    light of how the possibility of this condition being included was discussed at
    the hearing, it was not unreasonable for the Board not to include the version
    proposed by the Crown on appeal. As the respondents next hearing is scheduled
    for July 17, 2019, the Board may consider adding such a condition, if it deems
    it appropriate in the current circumstances.

Conclusion

[34]

In
    the result, I would dismiss the appeal.

Released: B.Z. July 15, 2019

K.
    Feldman J.A.

I
    agree. David M. Paciocco J.A.

I
    agree. B. Zarnett J.A.

[1]

At trial, Mr. Ali was also acquitted of several terrorism
    charges: see
R. v. Ayanle Hassan Ali
, 2018 ONSC 2838, 361 C.C.C. (3d)
    350. The Crown has appealed from those acquittals. The appeal was heard by this
    court and reserved on June 24, 2019: see C65466.


COURT OF APPEAL
    FOR ONTARIO

CITATION: Asghar v. Toronto Police Services Board, 2019 ONCA
    603

DATE: 20190715

DOCKET: C65470

Hoy A.C.J.O., Lauwers and Zarnett JJ.A.

BETWEEN

Sajjad
    Asghar

Plaintiff/Responding Party
(Appellant)

and

Toronto Police
    Services Board
,
Toronto Police Chief
,

Constable Brad
    Verspeeten #9278 41 Division
,

Toronto
    Transit Commission (TTC), Edwin Collins (TTC Driver)

Defendants/
Moving Parties

(Respondents)

Sajjad Asghar, acting in
    person

John Rosolak, for the
    respondents Toronto Transit Commission (TTC) and Edwin Collins (TTC Driver)

Natalie Salafia, for the
    respondents Toronto Police Services Board, Toronto Police Chief and Constable
    Brad Verspeeten #9278 41 Division

Heard: May 10, 2019

On
    appeal from the order of Justice Andra Pollak of the Superior Court of Justice,
    dated May 10, 2018, with reasons reported at
2018
    ONSC 2354
.

COSTS ENDORSEMENT

[1]

In light of the mixed success of the parties here and
    in the lower court, we set aside the costs order below and make an order that
    there will be no costs awarded for the proceedings in the lower court or in
    this court.

Alexandra Hoy
    A.C.J.O.

P. Lauwers J.A.

B. Zarnett J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Bank of China (Canada) v. Medcap Real Estate
    Holdings Inc., 2019 ONCA 558

DATE: 20190702

DOCKET: C66218

Hourigan, Paciocco and Fairburn JJ.A.

BETWEEN

Bank of China (Canada)

Plaintiff

Respondent

and

Medcap Real Estate Holdings Inc.

Defendant

Appellant

Scott Turton, for the appellant

Theodore Rotenberg, for the defendant

Heard: June 28, 2019

On appeal from the order of the Divisional Court (Justices
    Carolyn Horkins, Bruce Fitzpatrick, and George King), dated June 20, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The parties have settled the appeal. An order will go dismissing the
    appeal with costs payable by the appellants in the all-inclusive sum of $6,500.


COURT OF APPEAL FOR ONTARIO

CITATION: Blanchard v. Tripp, 2019 ONCA 559

DATE: 20190704

DOCKET: C65515

Lauwers, van Rensburg and Trotter JJ.A.

BETWEEN

Roger Blanchard and
    Donna Blanchard

Plaintiffs (Appellants)

and

Donald Tripp, Ethel Tripp, Steven Tripp and Joyce
    Lavalle

Defendants (Respondents)

Daniel J. Wyjad, for the appellants

Michael M. Miller, for the respondents

Heard: April 23, 2019

On appeal from the judgment of Justice James A.S. Wilcox
    of the Superior Court of Justice, dated May 16, 2018, with reasons reported at
    2018 ONSC 3076, 74 M.P.L.R. (5th) 229.

REASONS FOR DECISION

[1]

This appeal arises in the context of litigation concerning road access
    to the appellants land. In 2009, the appellants purchased two adjoining parcels
    of land in the District of Parry Sound. In 2013, they commenced an application
    claiming unimpeded access to their land, using Trussler Road, a road that is
    located in part on public lands and in part on lands owned by the respondents.

[2]

The appellants claimed a declaration that Trussler Road is a public
    highway, and in the alternative that it is a common road or an access road as
    defined under the
Road Access Act
, R.S.O. 1990, c. R.34. They sought an
    interim and permanent mandatory injunction preventing the respondents from
    closing, barricading or otherwise blocking their use of Trussler Road, as the
    means of access to their land.

[3]

In 2017, and after the application had been converted into an action,
    both sides brought motions for summary judgment. R.S.J. Gordon, with reasons
    reported at 2017 ONSC 1260, dismissed the appellants claims under the
Road
    Access Act
. He adjourned the appellants motion in so far as it sought a
    declaration that Trussler Road is a public highway.

[4]

The subject of the present appeal is a judgment by Wilcox J. (the
    motion judge). After hearing the appellants summary judgment motion, he
    dismissed their claim that Trussler Road had become a public road, and then
    dismissed the appellants action in its entirety.

[5]

At issue on appeal is whether the motion judge committed any reversible
    error when he concluded that the appellants had not established that Trussler
    Road is a public highway, and in refusing them a declaration and an
    injunction protecting their use of the road.

[6]

For the reasons that follow, the appeal is dismissed.

[7]

The appellants land is located in the Township of Laurier. Laurier is
    an unorganized township, meaning that it has no municipal government. The
    appellants purchased two parcels (part of Lot 11, Concession 14 and part of Lot
    12, Concession 13) in 2009 as vacant land with no road access. A condition of
    the Agreement of Purchase and Sale was that the buyers would obtain written
    permission from the owners of a private roadway for access to the property. The
    appellants never obtained such permission from the respondents and waived the
    condition. Later, the appellants built a cottage on one of the parcels.

[8]

The respondents Donald, Ethel and Steven Tripp (jointly) and Joyce
    Lavalle own neighbouring properties. The Tripps own three parcels (part of Lot
    11, Concession 14, part of Lot 12, Concession 14 and Lot 13, Concession 14)
    while Ms. Lavalle owns part of Lot 12, Concession 13. The respondents access
    their properties using Trussler Road, which runs across the Tripp and Lavalle
    properties. They claim that the parts of the road that cross their lands remain
    private property. Other parts of Trussler Road pass over public lands, and
    there is no dispute that they are open to the public.

[9]

From Trussler Road, a spur road leads to the appellants lands. The
    appellants assert that the spur road, together with Trussler Road, provide
    vehicular access to their properties. They have abandoned their claim for
    relief in relation to the spur road. Only access to Trussler Road is at issue
    in this appeal.

[10]

The
    appellants claim that Trussler Road is a public highway relies on s. 261 of
    the
Municipal Act
, R.S.O. 1990, c. M.45, as repealed by  2001, c. 25,
    ss. 484(1), 485(1). Section 261 of the
Act
provided as follows:

Except in so far as they have been
    stopped up according to law, all allowances for roads made by the Crown
    surveyors, all highways laid out or established under the authority of any
    statute, all roads on which public money has been spent for opening them or on
    which statute labour has been usually performed, all roads passing through
    Indian lands, all roads dedicated by the owner of the land to public use, and
    all alterations and deviations of and all bridges over any such allowance for
    road, highway or road, are common and public highways.

[11]

The
    appellants claim that Trussler Road had the status of a public highway under s.
    261 as of December 31, 2002, and therefore was carried over by s. 26 of the
Municipal
    Act
,
2001
, S.O. 2001, c. 25, which provides, among other things,
    that all highways that existed on December 31, 2002 are highways under the new
    scheme unless they have been closed.

[12]

Before
    the motion judge, the appellants argued that Trussler Road met the requirements
    of s. 261 of the
Municipal Act
to constitute a public highway because:
    (a) it had been a colonization road, such that public money had been spent on opening
    it; (b) statute labour was usually performed on the road; or (c) the road was
    dedicated and accepted as a public road.

[13]

The
    motion judge rejected the respondents argument that the
Municipal Act
definition of public highway does not apply to the determination of whether a
    road in an unorganized township is a public highway. After considering the
    evidence, he rejected the appellants claim that Trussler Road had been part of
    a colonization road (at paras. 57 to 73) and that statute labour had been usually
    performed on the road (paras. 74 to 98). The appellants do not challenge these
    conclusions. They appeal only the dismissal of their claim that Trussler Road
    had become a public highway through its dedication and acceptance as a public
    road.

[14]

The
    law respecting dedication and acceptance is well-settled, and was correctly
    stated by the motion judge. Whether there was dedication and acceptance is a
    question of fact to be decided in each case on a balance of probabilities:
Reed
    v. Town of Lincoln
(1974), 6 O.R. (2d) 391, at pp. 400-402 (C.A.);
ONeil
    v. Harper
(1913), 13 D.L.R. 649, at p. 653 (Ont. S.C. (A.D.)). The
    claimant must prove that the owner had the actual intention to dedicate and
    that the intention was carried out, and was so accepted by the public. A long
    period of use of a road by the public can be evidence both of an intention to
    dedicate and of acceptance by the public. The intention to dedicate may be
    expressed in words or in writing, but is more often a matter of inference:
Cooks
    Road Maintenance Assn. v. Crowhill Estates
(2001), 196 D.L.R. (4th) 35
    (Ont. C.A.), at para. 22.

[15]

After
    setting out the applicable principles, the motion judge considered the
    evidence. He noted that the affidavits produced by the appellants with respect
    to the use of the road by various members of the public over the years were undermined
    by affidavits filed by the respondents, and that, since the non-party deponents
    were not cross-examined, many of the contradictions remained unresolved.

[16]

The
    motion judge concluded that, on balance, he did not find that the appellants
    evidence supported an intention to dedicate Trussler Road to public use, or an
    acceptance of it by the public. He characterized the instances of use of the
    road as situations of neighbourly tolerance rather than dedication to public
    use. And he stated that there was insufficient evidence of the use of the road
    by the general public for there to be a finding of acceptance. The motion judge
    also pointed to the fact that typically acceptance would require a municipal
    by-law, work done, or the expenditure of public money to maintain the road
    actions that clearly and unequivocally indicate a municipalitys intention to
    assume the road. In this case, in the context of an unincorporated municipality,
    the province had not used any legal process to assume the road, nor was there
    evidence of the expenditure of public funds or work done on the road (with the
    possible exception of some statute labour) to demonstrate an intention to
    accept the road as a public road.

[17]

The
    appellants make a number of arguments on appeal.

[18]

First,
    the appellants say that the motion judge erred in finding that the possibility
    that the province may become an owner militated against a finding of a public
    road by dedication and acceptance. The appellants argue that a road can be a
    public road and still remain in private ownership and be maintained by people
    who use the road.

[19]

Contrary
    to the appellants assertion, the motion judges discussion of this issue at
    paras. 128 to 139 of his reasons did not inform his conclusion that the
    disputed lands were not a public highway. The motion judge had already decided
    (at para. 126) that dedication and acceptance had not been made out on the
    evidence, when he went on to set out the various arguments of counsel about
    whether dedication and acceptance would mean that the province would become the
    owner of the road, and the respondents position that the action had been improperly
    constituted because the province had not been named as a defendant. The motion
    judge noted that given the substantial possibility that the Province would
    become the owner of Trussler Road if it was found to be a public road, if the
    action were to have continued, he would have directed the province be added as a
    party (at para. 137). We therefore do not give effect to this argument on
    appeal.

[20]

Next,
    the appellants assert that the motion judge erred in concluding that the long
    history of use of the road by various people was a case of neighbourly
    tolerance rather than evidence of public dedication of the road. They say that
    the term neighbourly tolerance, which was used in
Reed
, would apply
    to public use of a road only in the short term or in the early stages of
    development and not in the present case, where the Trussler Road has been used by
    members of the public for some 80 years.

[21]

Reed

was a case where a municipality claimed that a road
    over private property had become a public highway through dedication and
    acceptance, in its defence to a claim for trespass. Martin J.A. stated, at p.
    396, that an intention to dedicate a road as a public highway ought not to be
    too readily inferred from the use by members of the public of a road traversing
    private property in a rural community, especially in a locality where the
    normal system of roads did not develop. He observed that the owner of the
    property may well, in a neighbourly spirit, permit local residents to use such
    a road for their convenience without having any intention of dedicating the
    road as a public highway, and that the inference of neighbourly tolerance is more
    likely when dedication is sought to be established at a period when the area is
    in a relatively early stage of its development.

[22]

After noting that the evidence was conflicting with respect to the use
    of the road in dispute, Martin J.A. concluded that, considered as a whole, the
    evidence was consistent with the use of the road by local residents for their
    convenience, by neighbours and friends and by hunters and sightseers, with the
    tacit permission of the owners. Although the case does not set out in any
    detail the evidence that was considered, the period of use at issue appears to
    have exceeded 26 years.

[23]

While
    we agree that
Reed
is distinguishable on its facts, it remained open
    to the motion judge here to conclude that the history of use of the road
    passing over the respondents property resulted from the acquiescence or
    tolerance of the owners, and was not evidence
in itself
of the owners
    intention to dedicate the road to public use. There is nothing in
Reed
or any other authority to suggest that a long period where various people are
    permitted to use a road over private lands would always or inevitably constitute
    proof of implied dedication and acceptance. While the period of time over which
    a road over private property has been used by members of the public is no doubt
    relevant, the function of the court remains to determine, on all the evidence, including
    the type of use and the explanations for why such use was tolerated or
    permitted, whether dedication and acceptance have been established.

[24]

In
    conclusion on this point, we disagree with the appellants submission that the
    motion judge misapplied neighbourliness as a principle of law. This was
    simply his characterization of what occurred  a factual conclusion, not a
    principle of law, that was open to him on the evidence.

[25]

Next,
    the appellants assert that the motion judge failed to consider, or misunderstood,
    the evidence in relation to severances of Charles Trusslers lands in 1976
    evidence suggesting that Mr. Trussler, who was a roads commissioner from as
    early as 1948
[1]
and a long-time resident of the area, considered Trussler Road to be a public
    highway.

[26]

We
    disagree. At paras. 114 to 116 of his reasons, the motion judge referred to the
    evidence that, when Mr. Trussler was selling part of his land in 1971 (Lot 13,
    Concession 13) he expressly indicated that the land was served by a public road,
    which appears on an attached sketch to be Trussler Road. (The severance
    application  which is in fact dated December 1976, and so refers to a sale to Iris
    Stevens, the sister-in-law of Ethel Tripp, that took place in 1977  indicates that
    the lands intended to be severed and the lands intended to be retained were accessible
    by public travelled road or street.) And in 1977, when Mr. Trussler sold part
    of Lot 12, Concession 13, what appears to be Trussler Road is shown on a sketch
    of the property. The motion judge noted that this was one example of possible
    express dedication. The motion judge then referred to other evidence  in
    Donald Tripps affidavit  that when he bought his lands from Mr. Trussler in
    1969, the road to the property, Trussler Road, was over land owned by Mr. Trussler.
    Mr. Tripp deposed that he sought an easement, but because the quoted surveying
    cost exceeded the lands value, he bought the land in Lot 11, Concession 14
    from Mr. Trussler in 1973. As the motion judge concluded, If Charles Trussler
    had thought that Trussler Road was a public road, there would have been no
    reason for the Tripps to need an easement, let alone to purchase the property
    to ensure that there was access to the lots that they owned further down the
    road. The motion judge also noted that, if Mr. Trussler had intended to make
    the road public, he could have used the process in the
Statute Labour Act
,
    but apparently did not.

[27]

There
    is no merit to the argument that the motion judge ignored or misunderstood this
    evidence. He considered the evidence about the severance applications in the
    context of the other evidence that he mentioned, and refused to draw the
    inference sought by the appellants. This he was entitled to do.

[28]

The
    appellants also argue that the motion judges conclusion that the affidavits
    were contradictory was erroneous. They say that the only real contradiction was
    about a gate on the road, and whether and in what circumstances it was locked. The
    appellants say that the motion judge placed undue reliance on evidence that the
    gate, which was used to keep livestock from escaping, was locked at times by
    Mr. Trussler and, after 1969, by Mr. Tripp.

[29]

We
    disagree with the submission that the motion judge erred in concluding that the
    affidavits were contradictory, or that he over-emphasized the evidence about
    the gate. The broader point that the affidavits addressed, in relation to the
    dedication and acceptance issue, was the use of various parts of the road over
    the historical period beginning when all of the lands were owned by Mr.
    Trussler.  In particular, they addressed whether the various parts of the road
    in dispute were regarded as private land, and thus required the permission of
    the owners for their use. This evidence was indeed contradictory with respect
    to the claim that the use of the various parts of the road by members of the
    public over a number of years led to an inference of dedication and acceptance.
    As for the gate located on Mr. Tripps land, the motion judge was entitled to
    accept Mr. Tripps evidence that he had installed a new gate to replace a gate
    installed by Mr. Trussler at the CNR crossing, and that the gate was locked to
    keep cattle off the railway and trespassers out. In any event, this was only
    part of the evidence that was mentioned by the motion judge, and was not
    determinative of his finding that the appellants had not established an
    intention to dedicate the road to public use or an acceptance of the road by
    the public.

[30]

Finally,
    we note that, before the motion judge, the respondents argued that the concept
    of dedication and acceptance of a public road had no application to an
    unorganized township because there were statutory mechanisms available for the
    province to become the owner of a road. The motion judge noted that there was
    contradictory law on whether there can be a dedication of lands in an
    unorganized township, and he assumed, without deciding, that dedication and
    acceptance could apply. As the appellants observe, this court would need to
    determine the issue if the appeal were to be allowed.

[31]

The
    respondents repeat this argument in response to the appeal and both parties
    invited this court to determine the issue that was left unresolved by the
    motion judge.

[32]

We
    are not prepared to do so. The motion judge proceeded on the assumption that
    dedication and acceptance would apply, and then concluded that the appellants
    had not established dedication and acceptance on the evidence. We are satisfied
    that the motion judge committed no reversible error when he reached this
    conclusion. This is sufficient for the determination of the appeal, and it is
    therefore unnecessary to express any opinion on whether, if capable of being proven,
    dedication and acceptance would apply in the context of private lands in an
    unorganized township.

[33]

The
    appeal therefore is dismissed. The appellants shall pay costs of the appeal to
    the respondents in the agreed amount of $22,000, inclusive of disbursements and
    applicable taxes.

P.
    Lauwers J.A.

K.
    van Rensburg J.A.

G.T. Trotter J.A.

[1]

Roads commissioners had the power to open road allowances
    where they had been laid down in the original surveys, or roads in lieu, and
    direct the performance of statute labour thereon. Mr. Trussler was commissioner
    for the Sausage Lake road division; however, it was not established that
    Trussler Road was part of that division: Reasons of the Motion Judge, at paras.
    77 and 97.