WARNING

The President of the
panel hearing this appeal directs that the following should be attached to the
file:

An order restricting
publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
(4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
presiding judge or justice may make an order directing that any information
that could identify the victim or a witness shall not be published in any
document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
under this Act, as it read at any time before the day on which this
subparagraph comes into force, if the conduct alleged involves a violation of
the complainants sexual integrity and that conduct would be an offence
referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
being dealt with in the same proceeding, at least one of which is an offence
referred to in paragraph (a).

(2)     In proceedings in respect of the offences
referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
inform any witness under the age of eighteen years and the victim of the right
to make an application for the order; and

(b)     on application made by the victim, the
prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
respect of an offence other than an offence referred to in subsection (1), if
the victim is under the age of 18 years, the presiding judge or justice may
make an order directing that any information that could identify the victim
shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in
respect of an offence other than an offence referred to in subsection (1), if
the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an
application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3)     In proceedings in respect of an offence under
section 163.1, a judge or justice shall make an order directing that any
information that could identify a witness who is under the age of eighteen
years, or any person who is the subject of a representation, written material
or a recording that constitutes child pornography within the meaning of that
section, shall not be published in any document or broadcast or transmitted in
any way.

(4)     An order made under this section does not
apply in respect of the disclosure of information in the course of the
administration of justice when it is not the purpose of the disclosure to make
the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c.
13, s. 18.

486.6(1)       Every person who fails to comply with
an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
in subsection (1) applies to prohibit, in relation to proceedings taken against
any person who fails to comply with the order, the publication in any document
or the broadcasting or transmission in any way of information that could
identify a victim, witness or justice system participant whose identity is
protected by the order. 2005, c. 32, s. 15.

WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section, no person
shall publish the name of a young person, or any other information related to a
young person, if it would identify the young person as a young person dealt
with under this Act.

(2)
Subsection (1) does not apply

(a) in a case where the
information relates to a young person who has received an adult sentence;

(b) in a case where the
information relates to a young person who has received a youth sentence for a
violent offence and the youth justice court has ordered a lifting of the
publication ban under subsection 75(2); and

(c) in a case where the
publication of the information is made in the course of the administration of
justice, if it is not the purpose of the publication to make the information known
in the community.

(3) A young person referred to in
subsection (1) may, after he or she attains the age of eighteen years, publish
or cause to be published information that would identify him or her as having
been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
of the Revised Statutes of Canada, 1985, provided that he or she is not in
custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section, no person
shall publish the name of a child or young person, or any other information
related to a child or a young person, if it would identify the child or young
person as having been a victim of, or as having appeared as a witness in
connection with, an offence committed or alleged to have been committed by a
young person.

138(1)          Every person who contravenes
subsection 110(1) (identity of offender not to be published), 111(1) (identity
of victim or witness not to be published), 118(1) (no access to records unless
authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no
subsequent disclosure) of this Act, or subsection 38(1) (identity not to be
published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure
by school) or (1.15) (information to be kept separate), 45(2) (destruction of
records) or 46(1) (prohibition against disclosure) of the
Young Offenders
Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable
to imprisonment for a term not exceeding two years; or

(b)  is guilty of an offence punishable on summary
conviction.

COURT OF APPEAL FOR ONTARIO

CITATION: Ginn (Re), 2018 ONCA 868

DATE: 20181029

DOCKET: C65229

Doherty, Trotter and Paciocco JJ.A.

IN THE MATTER OF: Kristopher Ginn

AN APPEAL UNDER PART XX.1 OF THE
CODE

Stephen F. Gehl, for the appellant

John Patton, for the respondent Her Majesty the Queen

Julie A. Zamprogna Ballès, for the Person in Charge of
the Southwest Centre for Forensic Mental Health Care, St. Josephs Health Care
London

Heard and released orally: October 23, 2018

On appeal against the disposition of the Ontario Review
Board dated, January 9, 2018.

REASONS FOR DECISION

[1]

Mr. Kristopher Ginn appeals a
Criminal Code
s. 672.54(c)
  detention order made by the Ontario Review Board on January 9, 2018. The
  reasons for that order were issued on February 7, 2018. Even though Mr. Ginns
  counsel conceded during the hearing that Mr. Ginn poses a significant risk to
  the public, Mr. Ginn now argues that the Board erred by concluding unreasonably
  that he poses such risk. Mr. Ginn also argues that the Board make a
Carrick
error (based on this courts decision in
Carrick (Re),
2015 ONCA 866)
  by failing to make this determination independently of his admission. We
  disagree.

[2]

The courts comment in
Carrick
at para. 38 that a Board is
required to determine on its own that the accused poses a significant threat to
the safety of the public, regardless of any purported concession that he may have
appeared to have made, should not be over-read. A Board is entitled to rely on
counsels acknowledgement that the significant threat standard has been made:
Kelly
(Re),
2015 ONCA 95, at para. 6. A credible admission by the accused that
he poses a significant threat will naturally and appropriately influence the
outcome.

[3]

Difficulties emerge if a Board relies on an admission of risk to the
extent that it abdicates its responsibility to make its own determination of
dangerousness. In
Carrick
, for example, evidence that Mr. Carrick
presented a significant threat related to his mental disorder was conflicting
and ambiguous. The Board made no apparent attempt to address the conflicts and
ambiguities, leaving the basis for the decision unexplained.

[4]

Here the Board did not abdicate its responsibility to determine the risk
Mr. Ginn poses. The decision reflects a solid foundation for the Boards
decision to accept Mr. Ginns admission that he poses a significant threat to
the safety of the public.

[5]

Before coming to its decision the Board summarized the material
evidence:

·

Mr. Ginn suffers from schizophrenia, substance abuse disorder (in
forced remission in a controlled setting), antisocial personality disorder,
pedophilia and hemophilia and has numerous admissions to mental health care
facilities;

·

[This bullet point has been removed so as to comply with
statutory non-publication requirements. The full text of this bullet point is
available at the Registry of this court].

·

He was found not criminally responsible on account of mental
disorder (NCR) in 2010 after being charged with assault and assault causing bodily
harm after an unprovoked assault on a fellow psychiatric patient;

·

Although at the time of the disposition Mr. Ginns psychosis was
under better control than in the past, he has shown continued symptoms of
schizophrenia, including command hallucinations to harm others and has been
non-compliant with medication in the past;

·

Mr. Ginn believed that his paraphilic and pedophilic urges,
confirmed through years of testing, had decreased, leading to recent testing
from 2016 that confirms earlier testing that he presents a high risk of violent
and/or sexual re-offending. Despite this, Mr. Ginn expresses the wish to work
with children. He clearly lacks insight into his condition;

·

On June 20, 2017 on a community outing he told a woman whose
shirt contained a sexual image but I like little girls;

·

Dr. Prakesh, the hospital representative, is of the opinion that
Mr. Ginn continues to represent a significant threat to the safety of the
public; and

·

Mr. Ginns only social supports are in the hospital.

[6]

After reciting this evidence, the Board then accepted the assessment of
the risk posed by Mr. Ginn made in the hospital report. The Board noted
specifically, (1) long-term and recent assessment results, (2) Mr. Ginns
continued denial of his schizophrenia and pedophilia, and (3) his belief that
he has cured himself making further programming and treatment unnecessary.

[7]

We would dismiss the appeal.

Doherty J.A.

Gary T. Trotter J.A.

David M. Paciocco J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hashemi-Sabet Estate v. Oak Ridges Pharmasave Inc.,
    2018 ONCA 839

DATE: 20181022

DOCKET: C64604

Pepall, Lauwers and Paciocco JJ.A.

BETWEEN

The
    Estate of Abdolrahim Hashemi-Sabet

By his Estate Trustee and Executrix
    Savitri Maharaj

Plaintiff/Respondent

and

Oak
    Ridges Pharmasave Inc., Yousef Kolahdouzan

and
    Hamidreza Zarrinkalalm

Defendants/Appellants

John Dent, for the appellants

Mark Johnston, for the respondent

Heard: May 4, 2018

On appeal from the judgment of Justice Bird of the
    Superior Court of Justice, dated October 18, 2017.

Pepall J.A.:

[1]

This appeal addresses the principles relating to enforcement of a Rule
    49 offer to settle. Rule 49.09 of the
Rules of Civil Procedure
provides that a party may bring a motion for judgment in the terms of an
    accepted offer and the judge may grant judgment accordingly or continue the
    proceeding as if there had been no accepted offer to settle. The appellants
    claim that the motion judge erred in giving judgment in the terms of a Rule 49
    offer they had made because their offer was revoked before it was accepted. The
    respondents contend that the offer had not been effectively revoked and that,
    since they accepted the offer, the motion judge did not err. I agree with
    respondents and would dismiss the appeal.

Background Facts

[2]

The respondent, the Estate of Abdolrahim Hashemi-Sabet by his Estate
    Trustee and Executrix Savitri Maharaj, sued the appellants, Oak Ridges Pharmasave
    Inc., Yousef Kolahdouzan and Hamidreza Zarrinkalam, for damages for breach of contract,
    oppression, and various other causes of action relating to the opening and
    operation of a pharmacy. He claimed damages of in excess of $1,000,000.

[3]

On June 8, 2015, the appellants served the respondent with a written
    Rule 49 offer to settle the action for $55,555.55. The offer provided that it
    would remain open until the trial of the action.

[4]

In April, 2016, Elena Mazinani, the appellants new counsel, served a
    Notice of Change of Lawyer.

[5]

On September 20, 2016, counsel for both parties attended at the pretrial
    of the action. What happened next is disputed.

[6]

The appellants took the position that their first offer had been
    rescinded orally at the pretrial, and in any event, on September 19, 2016, they
    served by process server a second written Rule 49 offer to settle the action
    for $17,333; the second offer expressly revoked the June 8, 2015 offer.

[7]

The respondent took the position that his counsel, Alfred Schorr,
    returned to his office following the pretrial and sent Ms. Mazinani a written
    acceptance of the appellants June 8, 2015 offer by fax at 1:27 pm, September
    20, 2016.

[8]

Karen Bandura, a law clerk at the offices of Mr. Schorr, had a
    discussion with Mr. Schorr immediately after the pretrial in which he told her
    the appellants offer was still open for acceptance and he instructed her to
    prepare and serve an acceptance of the first offer, which she did. Shortly
    afterwards, she received a phone call from Ms. Mazinanis law clerk, Delia La
    Madrid, asking for a copy of the June 8, 2015 offer. Ms. Bandura stated that
    she sent this to Ms. La Madrid by email at 2:34 pm on September 20, 2016.

[9]

The respondent acknowledged receipt of the second offer to settle but
    maintained that it was not served until 5:23 pm, September 20, 2016, several
    hours after Mr. Schorr had already accepted the first offer. On receipt of the
    second offer, Mr. Schorr wrote the date and time he was served on the cover
    letter from Ms. Mazinani that enclosed the second offer. He confirmed with Riaz
    Ahmed, a lawyer with whom he shared office space, that at no time on September
    19, 2016 from 4:30pm, when Mr. Schorr left, until after 7pm, did anyone attend
    at the office to serve any documents. Mr. Schorr also wrote to Ms. Mazinani on
    September 21, 2016, advising that he received her second offer on September 20
    at 5:23 pm, after he had already accepted the first offer.

Motion for Judgment

[10]

The
    respondent brought a motion for judgment in the amount of $55,555.55 in
    accordance with the terms of the accepted offer to settle pursuant to Rule
    49.09.

[11]

The
    motion judge granted the respondents motion for judgment.

[12]

In
    her reasons for decision, the motion judge noted that the parties agreed that
    the June 8, 2015 offer was made in accordance with Rule 49.02(1). As such, she
    concluded that the revocation of that offer had to comply with Rule 49.04(1),
    which states that any withdrawal is to be in writing. She noted that the
    governing jurisprudence and the provisions of Rule 49.04(1) supported this
    conclusion. This effectively answered the appellants argument that the first
    offer could not be accepted because it had been orally withdrawn at the
    pretrial.

[13]

The
    motion judge went on to reason that the timing of service of the second offer
    on Mr. Schorr would be determinative of the motion. However, she concluded that
    it was impossible to reconcile the positions of the parties on the timing of
    the service of the second offer to settle. She was of the view that this was
    not a case of honest mistake. She stated that she had come to the unfortunate
    conclusion that a decision on this motion requires me to make credibility
    findings that must include a determination that one side has deliberately
    submitted inaccurate information in support of its clients position.

[14]

She
    determined that the second offer to settle purporting to revoke the first offer
    was served on Mr. Schorr at 5:23 pm on September 20, 2016, after the respondent
    had already accepted the first offer. She relied on six factors in reaching her
    decision.

[15]

First,
    the accounts of Mr. Schorr and Ms. Bandera were detailed and consistent. She
    also noted Mr. Schorrs September 21, 2016 letter to Ms. Mazinani and his
    handwritten note of the date and time of receipt on her letter enclosing the
    second offer as being confirmatory of his position.

[16]

Second,
    Ms. Mazinani and Mr. Schorr agreed that during the September 20 pretrial, Ms.
    Mazinani told the presiding judge that her clients were not prepared to pay any
    money to the respondent. This was inconsistent with service of an offer to
    settle the action for $17,333 delivered less than 24 hours prior to the
    pretrial.

[17]

Third,
    Rule 16.05(1)(d) authorizes service of a document on the solicitor of record by
    fax. A resulting fax record is then created that shows the date and time the
    document is sent. It does not make any sense that Ms. Mazinani would pay a
    process server $90 to hand deliver a two-page document that could have been
    sent by fax.

[18]

Fourth,
    the wording and format of the first and second offers were virtually
    identical. Ms. La Madrid asked Ms. Bandura to send her a copy of the first
    offer after receiving notification of its acceptance on September 20, 2016. If
    Ms. La Madrid already had a copy of the first offer, there would have been no
    need to request a copy of Ms. Bandura. The motion judge was inescapably led to
    the conclusion that Ms. Mazinani did not prepare the second offer to settle
    until after she received the acceptance of the first offer.

[19]

Fifth,
    although the appellants produced affidavits of service for other documents
    served on Mr. Schorr during the progress of the action, the appellants failed
    to file an affidavit of service from the process server attesting to service of
    the second offer. The motion judge drew an adverse inference from this failure.

[20]

Sixth,
    each of the affidavits of Ms. La Madrid and Ms. Mazinani attached as an exhibit
    a copy of an invoice from the process server, Shahnaz from ASEAA Process
    Servers. No surname for Shahnaz was noted. Problematically, the invoices were
    not identical. The version identified by Ms. La Madrid was also attached as a
    schedule to the appellants factum which was signed by Ms. Mazinani. In the
    notes section at the bottom of this invoice, were typed the words: Dead-line
    September 19, 2016 and under those words was the hand-written word: done. No
    date or time was noted. In contrast, the invoice attached to Ms. Mazinanis
    affidavit included the added words: Shahnaz on 19,09,2016 in the afternoon. The
    motion judge concluded that those additional words were added to the original
    invoice at some point after the invoice was attached to Ms. La Madrids
    affidavit and the appellants factum. Ms. Mazinani signed the factum with one
    version of the invoice and swore her affidavit with the altered version. The
    motion judge found that the invoice was intentionally altered. She could not
    say by whom but did conclude that Ms. Mazinani was aware of the difference
    between the two documents.

[21]

The
    motion judge raised the discrepancy during oral argument and counsel then
    sought an adjournment. This was the fourth time the motion had been up for
    argument. There had been non-compliance with an earlier production order and
    the respondent wished to proceed. The motion judge declined the adjournment
    request. However in the end result, the motion judge stated that she placed no
    weight on either version of the invoice.

[22]

The
    motion judge was satisfied that the respondent accepted the first offer before
    it had been revoked. Accordingly, she granted judgment in favour of the
    respondent as requested. She also awarded costs of $14,992.89 on a full
    indemnity basis given the appellants conduct.

Appeal

[23]

The
    appellants appeal from that judgment and also seek leave to admit fresh
    evidence.

(a)

Grounds of Appeal

[24]

Initially,
    the appellants took the position on appeal that the motion judge had misinterpreted
    Rule 49. They stated that even if the respondent had not received the second
    offer before he accepted the first offer, the third offer to settle allegedly
    made at the September 20 pretrial had already operated to revoke the first
    offer. At the commencement of oral submissions, the appellants withdrew this
    ground of appeal.

[25]

Having
    acknowledged that the first offer was made in accordance with Rule 49.02(1),
    the motion judge correctly concluded that any revocation of that offer had to
    comply with Rule 49.04(1). That subsection provides that an offer to settle may
    be withdrawn at any time before it is accepted by serving written notice of
    withdrawal. This court has determined that the common law principles of
    contract law relating to offer and acceptance do not apply to Rule 49. That
    Rule requires that a Rule 49 written offer to settle may only be withdrawn in
    writing:
York North Condominium Corp. No. 5 v. Van Horne Clipper Properties
    Ltd.
(1989), 70 O.R. (2d) 317.  Moreover, there was no evidence of any
    third offer before the motion judge. She did not err in rejecting the
    appellants argument on this issue and the appellants properly withdrew this
    ground of appeal.

[26]

The
    focus of the appeal is the appellants submission that the motion judge failed
    to recognize and apply the two-step analysis required on a motion to enforce
    the acceptance of a Rule 49 offer. They argue that she erred in not hearing
    viva voce evidence and in failing to make credibility findings in the face of
    genuine, disputed issues of credibility.

[27]

In
Capital Gains Income Streams Corp. v. Merrill Lynch Canada Inc.
(2007)
    87 O.R. (3d) 464 at paras. 9-10, Carnwath J., sitting in Divisional Court,
    described the two step analysis to be followed when considering a request to
    enforce a Rule 49 offer. The first step is to consider whether an agreement to
    settle has been reached. In doing so, the motion should be treated as a Rule 20
    summary judgment motion. The second step is to consider whether, on all the
    evidence, the agreement should be enforced. See also
Olivieri v. Sherman
,
    2009 ONCA 772 at para. 27.

[28]

Although
Capital Gains
was decided before the Supreme Courts decision in
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, which altered the framework
    for granting summary judgment, the two-step approach applied to the enforcement
    of a Rule 49 offer remains unaltered.

[29]

Neither
    counsel raised the approach described in
Capital Gains
with the motion
    judge. However, even though she did not expressly advert to that method, she
    nonetheless applied it. She recognized that her task was to determine three
    things: (i) whether the first offer was revoked at the pretrial; (ii) the
    timing of service of the second offer, and (iii) whether the settlement should
    be enforced.

[30]

With
    respect to the first question, as already discussed, as a matter of law, the
    Rule 49 offer had to be revoked in writing. It is uncontested that it was not. In
    addition, as a matter of fact, there was no evidence before the motion judge
    that the first offer had been revoked at the pretrial.

[31]

With respect to the second question, t
he
    arguments against the appellants version of events were many. Indeed, the
    motion judge gave six reasons for rejecting the appellants position. The
    appellants take issue with each of them.

[32]

However, in my view, one factor in particular
    was fatal to the appellants case. The motion judge noted that the appellants
    had known for over a year that the respondent was taking the position that
    their counsel was not served with the second offer until 5:23 pm on September
    20, 2016. Yet, the appellants never provided an affidavit of service from the
    process server. This, in spite of the fact that they had produced affidavits of
    service for other documents served on the respondent, including two from the
    same process server who allegedly served the second offer on the respondent.
    This absence of an affidavit of service weighs heavily in the respondents
    favour. The case turned on the timing of service of the second offer. In the
    absence of such critical evidence, it was reasonable for the motion judge to
    find against the appellants.

[33]

While it was open to the motion judge to hear
    viva voce evidence, this was unnecessary. The motion judge had affidavits from Mr.
    Schorr and Ms. Bandera that supported the respondents position on the timing
    of the second offer. As has been repeatedly stated in the jurisprudence, on a
    summary judgment motion, the motion judge is entitled to assume that the record
    contains all the evidence which the parties will present if there is a trial:
Dawson
    v. Rexcraft Storage & Warehouse Inc.
, (1998), 111
    O.A.C. 201 at para. 17; and
Chao v. Chao
, 2017 ONCA 701 at para. 24. The
    same is true on a motion to enforce a Rule 49 offer; a party must put its best
    foot forward:
Martin v. St. Thomas -- Elgin General Hospital
, 2018 ONSC 799 at para. 49.

[34]

It was incumbent on the appellants to answer the
    respondents version of events. However, they did not file an affidavit of
    service from the process server to establish the date and time of service. They
    never proposed that the process server be called as a witness, nor did they
    provide an explanation for the absence of an affidavit of service. Indeed, when
    the motion judge sought an explanation at the hearing before her, none could be
    given.

[35]

Furthermore, the appellants opted not to
    cross-examine on any of the affidavits filed by the respondent. They had ample
    time to do so; indeed, the motion had been adjourned on three prior occasions. Based
    on the record before her, it was open to the motion judge to conclude as she
    did. At its core, this was not a case of a conflict in the evidence, but a case
    of lack of evidence.

[36]

Nor was the motion judge required to grant an
    adjournment so that Ms. Mazinani could attend to explain the discrepancies in
    the copies of the invoice. The refusal to grant an adjournment is a
    discretionary decision. The scope for appellate review is limited to whether
    the discretion is exercised judicially on proper principles, after considering
    all relevant factors:
Estrada v. Estrada
, 2016
    ONCA 697 at para. 2;
Romanko v. Aviva Canada Inc.
, 2018 ONCA 663 at para. 4. Absent any such omission, the decision
    not to grant an adjournment is entitled to deference. The motion had already
    been scheduled four times and the discrepancies ought to have been evident to
    counsel who had filed the differing versions of the invoice. In addition, and
    most importantly, the motion judge expressly placed no weight on either version
    of the invoice.

[37]

In my view, the motion judge complied with the
    substance of the first step of the two-step approach described in
Capital
    Gains
a
nd
    properly applied the analogous Rule 20 analysis.

[38]

The appellants also submit that the motion judge
    erred in failing to recognize and apply the second step in that she neglected
    to consider relevant factors and instead considered irrelevant factors on whether
    it would be unjust to enforce the settlement.

[39]

This argument is readily answered. First, counsel for the appellants
    candidly acknowledges that the motion judge was not asked to consider the
    second step. The appellants also did not communicate to her that, when
    exercising her discretion, she ought to consider certain factors. Second, the
    motion judge nonetheless did consider whether on all the evidence she should
    enforce the offer. In
Milos v. Zargas
(1998),
    38 O.R. (3d) 218 (C.A.), Osborne J.A. stated that in determining whether to
    enforce a settlement under Rule 49.09, all of the relevant factors disclosed by
    the evidence must be taken into account. Although the
Milos
decision was not brought to her attention, at para. 10 of her
    reasons, the motion judge stated:

The defendants did not ask me to exercise my
    discretion to decline to enforce the terms of the June 8, 2015 offer to settle.
    In my view, there is no basis for me to do so. The fourth paragraph of the
    offer stated that it will remain open until the trial of the action. There is no
    evidence that the defendants were misled into making the offer or did so under
    some undue pressure. The offer was prepared and served by their lawyer at the
    time. As noted by the Court in
Yonge Village Recreation Centre Limited v.
    York Condominium Corporation No. 201
, (2007) 229 O.A.C. 144 (Div. Ct), the
    discretion not to enforce an offer to settle is to be exercised on a case by
    case basis and only rarely and in the presence of compelling circumstances.
    None exist in this case.

[40]

Third, counsel was unable to point to any compelling inequity that
    arose from the enforcement of the settlement offer. It must be recalled that
    the appellants never took the position that the second offer was served twice
    or that this was a case of mistake. There was no legitimate basis on which equity
    might intervene. Enforcement of the Rule 49 offer to settle, which was stated
    to be open for acceptance until the trial, cannot be said to have been unfair.

Fresh evidence

[41]

Lastly,
    the proposed fresh evidence consists of an affidavit sworn by Ms. La Madrid, which
    is largely based on information received from Ms. Mazinani. It does not include
    any further affidavit from Ms. Mazinani herself, nor an affidavit from the
    alleged process server, Shahnaz, for whom no surname was provided. The proposed
    fresh evidence consisting of an affidavit from the appellant, Hamidreza
    Zarrinkalam, was withdrawn by counsel for the appellants at the commencement of
    the oral submissions.

[42]

The
    fresh evidence does not meet the test articulated in
R. v. Palmer
,
    [1980] 1 S.C.R. 759 and
Sengmueller v. Sengmueller
(1994), 17 O.R. (3d) 208 (C.A.) and recast in
R.
    v. Truscott
, 2007 ONCA 575, 225 c.c.c.
    (3d) 321.

[43]

Through
    the exercise of due diligence, the proposed fresh evidence could have been
    adduced prior to the return of the motion. More importantly, even if the
    evidence is reasonably capable of belief, which is questionable, it could not reasonably
    be expected to have affected the result.

[44]

The
    proposed fresh evidence addresses the wording on the invoices filed by the
    appellants. The motion judge expressly gave no weight to the invoices. As
    discussed, the affidavits of Mr. Schorr and Ms. Bandera positively identified
    the chain of events. There was no affidavit of service from the process server,
    nor any explanation for its absence. In essence, the evidence of the respondent
    went unanswered. The fresh evidence could not reasonably be expected to have altered
    the result.

Disposition

[45]

In
    conclusion, I would dismiss the appeal and the motion to admit fresh evidence. I
    would order the appellants to pay the respondent costs of $10,500 on a partial
    indemnity scale inclusive of disbursements and applicable tax.

Released: S.E.P. October 22, 2018

S.E. Pepall J.A.

I agree. P. Lauwers J.A.

I agree. David M. Paciocco
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Hawley v. Granger, 2018 ONCA 834

DATE: 20181018

DOCKET: C65326

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

BETWEEN

Russell Hawley

Plaintiff (Appellant)

and

Thomas Granger and Gunn & Associates o/b
    Douglas George Gunn Professional Corporation

Defendants (Respondents)

Russell Hawley, acting in person

David B. Williams and M. Mana Khami, for the respondent

Heard and released orally: October 15, 2018

On appeal from the
    judgment of Justice Russell

M.
    Raikes of the Superior Court of Justice, dated October 4, 2017, with reasons
    reported at 2017 ONSC 5927.

REASONS FOR DECISION

[1]

The appellant appeals from the summary judgment dismissing his claim
    against the respondents, his former lawyer and law firm, on the basis that it
    was statue barred by s. 4 of the
Limitations Act,
2002
,

S.O.
    2002 c.24, schedule B.

[2]

The appellant issued his statement of claim on March 2, 2016. The motion
    judge found that the appellant was aware as early as October 2013, and
    certainly no later than February 3, 2014, of the material facts giving rise to
    his claim against the respondents and that a proceeding against the respondents
    was an appropriate remedy. Indeed, the motion judge found that the appellants
    own correspondence demonstrated his discovery of his claim.

[3]

On appeal, the appellant argues that he did not discover his claim until
    March 27, 2014, at the earliest. He feels that the motion judge did not read
    all of the documents. He also argues that the evidence before the motion judge
    was insufficient because his former lawyers affidavit stated that where the
    information therein was not from his direct knowledge, but based on information
    provided to him by others, he verily believed it to be true. He further argues
    that the summary judgment motion was defective because the respondents did not
    file separate affidavits and documents.

[4]

We reject these arguments.

[5]

The response of the Law Society, which the appellant adverted to in oral
    argument, added no material facts relative to his claim. The motion judges
    finding as to when the appellant discovered his claim is amply supported by the
    record and there is no basis to interfere with it. Indeed, we agree with the
    motion judge that the appellant had full knowledge of the material facts giving
    rise to his claim no later than February 3, 2014. Further, the respondents were
    not required to file separate affidavits and documents.

[6]

This appeal is accordingly dismissed. The respondents are entitled to
    costs of the appeal in the all-inclusive amount of $5,000.

Alexandra Hoy A.C.J.O.

Robert J. Sharpe J.A.

Fairburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Kalra (Re), 2018 ONCA 833

DATE: 20181018

DOCKET: C65288

Hoy A.C.J.O. and Watt J.A. and Then J. (
ad
hoc
)

IN THE MATTER OF: GAURAV KALRA

AN APPEAL UNDER PART XX.1 OF THE
CODE

Jeff Marshman, for the appellant Gaurav Kalra

Dena Bonnet, for the respondent Crown

Barbara Walker-Renshaw, for the respondent Person in
Charge of the Royal Ottawa Mental Health Centre

Heard: September 14, 2018

On appeal from the disposition of the Ontario Review
Board, dated April 3, 2018, with reasons reported at
Kalra (Re)
,
[2018] O.R.B.D. No. 877.

Hoy A.C.J.O.:

[1]

Gaurav Kalra appeals the Ontario Review Boards
disposition dated April 3, 2018, continuing his conditional discharge. He
argues that the Boards finding that he continues to pose a significant threat
to the safety of the public is unreasonable. He seeks an order allowing this
appeal, setting aside the decision of the Board, quashing the conditional
discharge, and substituting an absolute discharge in its place.

[2]

For the following reasons, I would allow the appeal and
grant the relief sought.

Overview

The Index Offences

[3]

On June 2, 2010, Mr. Kalra was found not
criminally responsible on account of mental disorder (NCR) with respect to one
count of criminal harassment; one count of mischief under $5000; one count of
transportation fraud; and one count of failing to comply with recognizance.

[4]

At the time of the index offences, Mr. Kalra was
24 years old and living with his parents in Ottawa. He had withdrawn socially,
had lost interest in his studies, and was unable to maintain employment. He
often went missing from home.

[5]

On February 27, 2009, Mr. Kalra arrived
uninvited at the Guelph home of the complainant, a former high school classmate.
He was described as disoriented. Police attended at the complainants home and
brought Mr. Kalra to a mental health facility for the evening.

[6]

On March 13, 2009, Mr. Kalras mother phoned
police to report him missing. The police apprehended Mr. Kalra at a bus station
in Guelph. Mr. Kalra told the police that he intended to visit the complainant.
After speaking to the complainants mother, the police learned of the February
27, 2009 incident and cautioned Mr. Kalra on the offences of trespassing and
criminal harassment. He was told not to have any further contact with the
complainant.

[7]

Mr. Kalra again attempted to contact the
complainant, both in person and by telephone, on three other occasions in March
2009. Police described the complainant and her family as becoming upset by
Mr. Kalras behavior. He was arrested and charged with criminal harassment on
March 23, 2009, and released on bail with the condition that he reside with his
father in Ottawa and have no contact with the complainant. Despite those terms,
Mr. Kalra went missing on several occasions, sometimes taking his fathers
vehicle.

[8]

On November 9, 2009, Mr. Kalra drove his
fathers vehicle to the complainants house. When he arrived, he collided with
the garage door, causing approximately $2000 worth of damage. He left a note
for the complainant before fleeing on foot.

[9]

On November 10, 2009, Mr. Kalra returned to the
complainants house by taxi. He did not pay the driver. Mr. Kalra was met at
the door of the complainants house by her father. He left another note for the
complainant, before being arrested by police without incident.

[10]

These further incidents gave rise to the charges
of mischief under $5000, breach of recognizance, and transportation fraud.

[11]

Mr. Kalras communications with the complainant
were largely incoherent. While the notes Mr. Kalra left for the complainant
suggested a level of emotional intimacy that did not exist in reality, they did
not contain any discernible threats of violence or expressions of sexual
interest.

[12]

Mr. Kalra later explained that, prior to the
index offences, he felt as though people were following him. He wanted to
contact a popular big guy from high school, who he believed would help him feel
safe. Mr. Kalra was unable to locate this individual and thought that the
complainant, who Mr. Kalra believed knew the big guy, would be able to help
him find the individual. Mr. Kalra denied any romantic interest in the
complainant.

Supervision by the Board

[13]

As a consequence of the NCR verdict, Mr. Kalra
has been subject to the Boards jurisdiction since September 1, 2010. His
current diagnosis is schizophrenia.

[14]

In July 2011, Mr. Kalra was found incapable of
consenting to treatment under the
Health Care Consent Act, 1996
, S.O
1996, c. 2, Schedule A. His father acted as his substitute decision-maker. Mr.
Kalras condition was treated and improved.

[15]

Mr. Kalra has consistently sought less
restrictive dispositions during the time he has been subject to the Boards
jurisdiction. Under the Boards initial dispositions, Mr. Kalra was detained in
secure forensic custody. This continued until March 2014, when this court
allowed his appeal of the detention order imposed by the Board and substituted
a conditional discharge:
Kalra (Re)
, 2014 ONCA 233, [2014] O.J. No.
1425. Since that time, Mr. Kalra has resided with his parents in Ottawa.

[16]

In March 2018, Mr. Kalra successfully challenged
the 2011 finding that he was incapable of consenting to treatment. The Consent
and Capacity Board (CCB) determined that Mr. Kalra was capable of
appreciating the reasonably foreseeable consequences of his decision to accept
or reject treatment. In particular, the CCB found that Mr. Kalra was capable of
consenting to the anti-psychotic medication prescribed to treat his
schizophrenia. The CCB reached this conclusion notwithstanding the testimony of
Dr. Jonathan Gray, Mr. Kalras attending psychiatrist, who maintained before
the CCB that Mr. Kalras stated insight into his illness and understanding that
he needed to continue taking his medication was strategically motivated to
obtain an absolute discharge from the Board.

The Disposition under Appeal

[17]

The Board most recently convened on March 26,
2018, following the CCBs finding that Mr. Kalra was capable of consenting to
treatment, to review Mr. Kalras disposition.

The Parties Positions before the Board

[18]

At the hearing, both the Crown and the Person in
Charge of the Royal Ottawa Mental Health Centre (the Hospital) took the
position that Mr. Kalra remained a significant threat to public safety and
should be conditionally discharged. The Crown and the Hospital requested that
the conditional discharge include a consent to treatment condition, pursuant to
s. 672.55(1) of the
Criminal Code
, R.S.C. 1985, c. C-46, and that Mr. Kalra
be required to live within 150 kilometers of the Hospital.

[19]

Mr. Kalra and his counsel argued that he was not
a significant threat to the public and therefore he should receive an absolute
discharge. In the alternative, Mr. Kalra asked for a conditional discharge,
without a consent to treatment condition. Mr. Kalra affirmed his commitment to
continue seeing Dr. Gray and continue receiving medical treatment for
schizophrenia, even if absolutely discharged.

The Boards Reasons for Disposition, dated April 16, 2018

[20]

In its Reasons for Disposition dated April 16,
2018, the Board explained that it had concluded Mr. Kalra continued to pose a
significant threat to public safety. As a consequence, it imposed a conditional
discharge, which included a requirement that Mr. Kalra reside within 150
kilometers of the Hospital and report to the Person in Charge each month. However,
the Board did not impose the consent to treatment condition requested by the
Crown and the Hospital.

[21]

In reaching this decision, the Board accepted
Dr. Grays evidence that it is essential for Mr. Kalra to remain on
anti-psychotic medication to avoid the re-emergence of the psychotic symptoms
present at the time of the index offences.

[22]

Dr. Gray reported that, beginning in July 2017,
Mr. Kalra told him that if he received an absolute discharge he would continue
to take his medication and continue to see Dr. Gray. These assurances coincided
with statements by Mr. Kalra suggesting improved insight into the nature of his
illness and its role in the index offences. Historically, Mr. Kalra has
demonstrated little insight into his illness and has been guarded in discussing
the index offences.

[23]

In Dr. Grays opinion, Mr. Kalras statements
were not credible and were strategically motivated to obtain an absolute
discharge. Dr. Gray opined that if Mr. Kalra were granted an absolute
discharge, he would eventually discontinue treatment.

[24]

The Board acknowledged that Dr. Gray might be
mistaken in his belief that Mr. Kalras statements were fabricated with the
goal of obtaining an absolute discharge, but indicated that considerable
deference should be given to Dr. Grays opinion.

[25]

The Board indicated that, having had an
opportunity to hear Mr. Kalra testify, it was unconvinced from his answers and demeanour
that he accepted that his behaviour at the time of the index offences, or more
recently when his medication had been changed,
[1]
was attributable to schizophrenia.

[26]

The Board noted that although Mr. Kalra had been
compliant in taking his medication and attending appointments while living in
the community, he opposed the imposition of a treatment condition in his disposition.
After acknowledging that this was a fair position for Mr. Kalra to take in
light of his history of complying with his treatment plan, the Board continued:

Nonetheless, it is curious that despite his
now verbal assurances that he needs medications to control his illness, this
does not seem to translate to a commitment to this in his Disposition. His
position not to consent to s. 672.55(1), taken alone, would not be particularly
highlighted were it not also viewed in the context of other factors such as his
unwillingness to have his family meet with Dr. Gray; his view that visits by
his social worker are intrusive; his reluctance to meet Dr. Gray at the
hospital if absolutely discharged; the contrast of his previous years (and some
months in the past year) of denial that he suffered from schizophrenia or
needed medication; requests for a drug holiday; his continuing reluctance to
concede that his behaviour during the index offences, and more recently when
medication was changed, was due to symptoms of his mental illness.

All of these factors, even without taking Dr.
Grays opinion about Mr. Kalras motives, support that Mr. Kalras insight is
not consistent with recognizing the need for treatment and support while
suffering from a life-long illness of Schizophrenia.

[27]

The Board found that these factors supported the
conclusion that Mr. Kalra lacked insight into the nature of his illness and the
need for him to continue treatment.

[28]

The Board further accepted the evidence of Dr.
Gray that if Mr. Kalra stopped taking his medication he would experience
similar symptoms to those present during the time of the index offences, and
concluded that Mr. Kalra remained a significant threat to the safety of the
public. The Board found the main risk factors were Mr. Kalras lack of insight
into his illness, his need for medication, and the role that his illness played
in his behaviour during the index offences.

[29]

In the Boards view, Mr. Kalra would not likely
recognize his symptoms of relapse. The Board did not accept that the insight
that Mr. Kalra purported to now have was firmly or at all entrenched in his
consciousness and that his stated intention to continue with medication and
follow-up treatment on an absolute discharge could be relied upon.

[30]

The Board concluded:

Given Mr. Kalras years of history of poor or no insight into
his illness or need for medication or effects of his behaviour when ill, and
without his treating doctors support that this insight has truly and actually
improved, the Board finds that it cannot consider an absolute discharge from
Mr. Kalra at this time. The Board finds he remains a significant threat to the
safety of the public.

[31]

The Board declined to impose the condition the
Crown and the Hospital had sought requiring Mr. Kalra to consent to treatment
because Mr. Kalra has been agreeable to accepting medication and regularly met
his reporting requirements.

The Legal Framework

[32]

Section 672.54(a) of the
Criminal Code
directs that where
an NCR accused is not a significant threat to the safety of the public he or
she must be discharged absolutely.

[33]

In
Winko v. British Columbia (Forensic
Psychiatric Institute)
, [1999] 2 S.C.R. 625, the Supreme Court of Canada
affirmed that the jurisdiction of the criminal law over NCR accuseds extends
only to those who present a significant threat to public safety: para. 33. An
NCR accused is not presumed to be dangerous and bears no burden of proof in
proceedings before the Board: paras. 46, 62. If the Board cannot positively
conclude, based on all the evidence, that the NCR accused poses a significant
threat to the safety of the public, it must grant an absolute discharge: paras.
47-49, 54, 57.

[34]

Section 672.5401 of the
Criminal Code
defines a significant threat to the safety of the public to mean a risk of
serious physical or psychological harm to members of the public  including any
victim of or witness to the offence, or any person under the age of 18 years
resulting from conduct that is criminal in nature but not necessarily violent.

[35]

Further guidance is provided by
Winko
,
where the Supreme Court described, at para. 57, what amounts to a significant
threat to the safety of the public in the following terms:

[T]he threat must be more than speculative in
nature; it must be supported by evidence. The threat must also be significant,
both in the sense that there must be a real risk of physical or psychological
harm occurring to individuals in the community and in the sense that the
potential harm must be serious. A miniscule risk of a grave harm will not
suffice. Similarly, a high risk of trivial harm will not meet the threshold.
Finally, the conduct or activity creating the harm must be criminal in nature. In
short, Part XX.1 can only maintain its authority over an NCR accused where the
individual poses a significant risk of committing a serious criminal offence. [Citations
omitted.]

[36]

While the contemplated conduct must be criminal,
not all criminal conduct will meet this standard; there must be a risk that the
NCR accused will commit a
serious
criminal
offence:
Winko
,
at paras. 57, 69.

[37]

In summary, and as stated by this court in
Carrick
(Re)
, 2015 ONCA 866, [2015] O.J. No. 6524, at para. 17:

[T]he significant threat standard is an onerous one. An NCR
accused is not to be detained on the basis of mere speculation. The Board must
be satisfied as to both the existence and gravity of the risk of physical or
psychological harm posed by the appellant in order to deny him an absolute
discharge.

See also

Wall (Re)
,
2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 26.

[38]

This court may set aside an order of the Board
only where it is of the opinion that: (a) the decision is unreasonable or
cannot be supported by the evidence; (b) the decision is based on a wrong decision
on a question of law (unless no substantial wrong or miscarriage of justice has
occurred); or (c) there was a miscarriage of justice:
Criminal Code
,
s. 672.78(1);
R. v. Owen
, 2003 SCC 33, [2003] 1 S.C.R. 779, at para.
31.

[39]

The issue on this appeal is the reasonableness
of the Boards conclusion that Mr. Kalra continued to represent a significant
threat to public safety and, by extension, the reasonableness of the Boards
Disposition. In resolving this issue, this court should ask itself whether the
Boards risk assessment and disposition order was unreasonable in the sense of
not being supported by reasons that can bear even a somewhat probing examination.
If the Boards decision is such that it could reasonably be the subject of
disagreement among Board members properly informed of the facts and instructed
on the applicable law, the court should decline to intervene (citations omitted):
Owen
, at para. 33. It is necessary to examine the Disposition, and the
Boards articulated reasons for the Disposition, to determine whether the
Boards decision is acceptable and defensible, having regard to the need to
protect the liberty of the NCR accused as a much as possible, while protecting
society:
Wall
, at para. 22.

Analysis

[40]

I agree with Mr. Kalra that the Boards finding
that he represents a significant threat to public safety is unreasonable.

[41]

The Boards Disposition turned on its concern
that Mr. Kalra lacked insight into his illness, the role that his illness
played in his behaviour during the index offences, and his need for medication.
The Board relied on the evidence of Dr. Gray  namely, that Mr. Kalra would
stop taking his medication if absolutely discharged, decompensate and engage in
behaviour similar to that giving rise to the index offences  in finding that
Mr. Kalra remained a significant threat to the safety of the public.

[42]

As I will explain, however, Dr. Grays evidence
that Mr. Kalra would engage in behaviour akin to the index offence was
speculative. Further, the Board failed to balance the seriousness of the
potential harm and the risk of that harm materializing. This resulted in a
decision that is unreasonable.

The likelihood of Mr. Kalra reoffending

[43]

The evidence before the Board was that the
symptoms of Mr. Kalras illness are well-controlled by medication. When
properly medicated, Mr. Kalra does not pose any threat  let alone a
significant threat  to public safety. At the hearing of this appeal, counsel
for the Crown agreed that Mr. Kalra poses no threat to public safety when
taking his medication. It is also not in dispute that Mr. Kalra must stay on
his medication in order to control his illness.

[44]

As a result, the likelihood of Mr. Kalra posing
a threat to public safety or reoffending was a function of the risk that he
would stop taking his medication, decompensate, experience similar symptoms to
those present at the time of the index offences, and engage in criminal conduct
similar to the index offences. The Board indicated that Dr. Grays evidence was
that if Mr. Kalra stopped taking his medication, the same consequences could be
expected as at the index offence. Dr. Grays testimony on this issue was the
following:

[Counsel for the Crown]: And when you mean
something bad would happen, do you feel that he would revert back to behaviour
like when he initially became unwell and he had the index offence here?

Dr. Gray: Yes. So when he becomes ill he has persecutory
beliefs and he tries to find some kind of relief; the last one was a very
idiosyncratic way of contacting someone from his high school. And according to
what he says, is that when he contacted [the complainant] who knew the person
that he wanted to contact, but in any case, the person he contacts  or the way
that hell try to get help to see relief of these paranoid thoughts; whoever he
contacts will see this as being bizarre; because it will be someone that they
barely know contacting them very impulsively and very fourthly and in an
aggressive way; and theyll have some psychological sequelae from that because
it is frightening to have that happen to them. I think thats how it will
eventually transpire.

[45]

This was the strongest evidence before the Board
regarding Mr. Kalras likelihood of reoffending.

[46]

While the Board was entitled to weigh Dr. Grays
opinion in determining whether Mr. Kalra continued to pose a significant risk
to public safety, the Board was obligated to consider Dr. Grays opinion in
light of the totality of evidence before it.

[47]

Other than the index offences, Mr. Kalra has had
no contact with the criminal justice system. The fact that Mr. Kalra committed
the index offences while suffering from mental illness is not by itself
evidence that he continues to pose a significant risk to the safety of the public,
particularly given that Mr. Kalra has successfully followed his treatment plan
to date:
Winko
, at paras. 60, 62. Both prior to and in the eight years
since the index offences, when he has been subject to the supervision of the
Board, Mr. Kalra has not engaged in any violent, verbal, physically aggressive,
or otherwise criminal behaviour.

[2]
This includes the time Mr. Kalra spent in secure forensic custody and the four
years he has lived in the community. In short, there is no evidence of a pattern
of behaviour that indicates Mr. Kalra is likely to reoffend.

[48]

Even if one accepts that Mr. Kalra would
discontinue his medication if absolutely discharged, Dr. Grays remaining
evidence as to the likelihood of Mr. Kalra reoffending amounted to nothing more
than speculation that Mr. Kalra might engage in criminal conduct akin to the
index offence: see
Pellett (Re)
, 2017 ONCA 753, 418 D.L.R. (4th) 433.

The gravity of the potential harm

[49]

The appellant concedes, and I accept, that the
index offences were serious criminal offences. However, the potential harm
contemplated by the Board in determining that Mr. Kalra continued to pose a
significant threat to public safety falls towards the least serious end of the
spectrum of serious criminal offences.

[50]

Dr. Gray identified  and the Board appears to
have accepted  the potential risk to public safety as being that Mr. Kalra
would engage in criminal conduct akin to the index offences, which would cause
others psychological distress. While I do not diminish Mr. Kalras behaviour and
its effect on the complainant, the index offences did not involve any real or
threatened violence, or expressions of sexual interest, towards other persons. In
my view, Dr. Grays evidence that others would find Mr. Kalras behaviour frightening,
resulting in psychological sequelae, places the contemplated psychological
harm towards the lower end of the spectrum.

[51]

In its Reasons for Disposition, the Board did
not explicitly weigh the seriousness of the potential harm against the risk of
that harm materializing. This balancing exercise is the core analysis required
by
Winko

and its progeny. Even if Dr. Grays evidence of the
likelihood of Mr. Kalra reoffending were accepted as more than a speculative
possibility of risk, when balanced against contemplated harm falling towards
the least serious end of the spectrum, this is not sufficient to conclude that Mr.
Kalra presents a significant threat to the safety of the public.

The role of insight

[52]

As I have said, the Boards Disposition was rooted
in its concern that Mr. Kalra lacked insight into his illness and therefore
would not continue to take his medication if he received an absolute discharge.
It bears stating that lack of insight is not of itself a basis to deny an
absolute discharge. As the Supreme Court instructs, the mentally ill are not
inherently dangerous:
Winko
, at para. 35. Whether an NCR accused has
insight into his or her mental illness, and the extent of that insight, is only
part of the analysis in determining if there is a significant threat to the
safety of the public. While insight is a treatment goal, it is one some persons
living with mental illness may be unable to fully achieve. In some instances,
particularly where the contemplated harm falls at the lower end of the
spectrum, it may be unreasonable to require, as the Board did here, that an NCR
accuseds insight into his or her illness be entrenched on his consciousness
in order to obtain an absolute discharge.

[53]

It is undisputed that Mr. Kalra has recently
demonstrated greater insight into his illness than in prior years. I leave open
whether the level of insight that the Board required was reasonable in these
circumstances. However, the only reasonable conclusion on the evidence before
the Board is that Mr. Kalra does not pose a significant threat to public
safety. For that reason, the Board was obliged to grant Mr. Kalra an absolute discharge.

Disposition

[54]

I would allow the appeal, set aside the decision
of the Board, quash the conditional discharge, and substitute an absolute
discharge in its place.

Released: AH OCT 18 2018

Alexandra Hoy
A.C.J.O.

I agree. David Watt
J.A.

I agree. Edward Then
J. (
ad hoc
)

[1]

In October 2016, Dr. Gray changed Mr. Kalras anti-psychotic
medication. This resulted in Mr. Kalra experiencing breakthrough symptoms of
schizophrenia. Mr. Kalra resisted Dr. Grays attempts to get him to switch back
to his original medication (an injectable anti-psychotic). Mr. Kalra stated his
preference was to take an oral anti-psychotic that he had previously been
prescribed. Dr. Gray rejected that suggestion, on the basis that it would be
difficult to monitor Mr. Kalras compliance with an oral anti-psychotic. Mr. Kalras
father provided substitute consent to switching back to the former medication
and, following the return to his former medication, Mr. Kalras presentation
improved noticeably. When asked about this decompensation at the Board hearing,
Mr. Kalra acknowledged that his symptoms at the time could be attributable to
schizophrenia, but that he believed his symptoms were the result of the medication
change.

[2]
As noted above, in October 2016 Mr. Kalra began to experience break-through
symptoms of schizophrenia as the result of a medication change. Despite his
decompensation, Mr. Kalra did not engage in any aggressive or criminal conduct.


COURT OF APPEAL FOR ONTARIO

CITATION: Lamb (Re), 2018 ONCA 850

DATE: 20181023

DOCKET: C64973

Doherty, Trotter and Paciocco JJ.A.

IN THE MATTER OF:  Phillip Lamb

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti, for the appellant

John Patton, for the respondent, Her Majesty the Queen

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

Heard: October 23, 2018

On appeal against the disposition of the Ontario Review
    Board dated, February 2, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The Board had a difficult decision to make. The appellant has taken many
    positive steps. The Board concluded in light of events in the spring of 2017
    and the appellants lack of insight that the appellant continues to pose a
    significant threat to the safety of the public.

[2]

The Board made the same order as the previous year. In our view, it was
    open to the Board to come to that conclusion and it did not misapprehend the
    evidence in any material way.

[3]

The appeal must be dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Mattina v. Mattina, 2018 ONCA 867

DATE: 20181029

DOCKET: C65148

Epstein, Lauwers and van Rensburg JJ.A.

BETWEEN

Vincenzo Mattina

Applicant (Appellant)

and

Raffaella Mattina

Respondent (Respondent)

Martha McCarthy, Maureen Edwards and Lauren Hanna, for
    the appellant

Salvatore Garcea and Gloria Nardi-Bell, for the
    respondent

Heard: June 25, 2018

On appeal from the order of Justice Randolph Mazza of the
    Superior Court of Justice dated September 26, 2017, with reasons reported at
    2017 ONSC 5704 and the costs order dated April 3, 2018.

COSTS ENDORSEMENT

OVERVIEW

[1]

This is a costs
    decision arising from a custody and access appeal. The subjects of the appeal are
    three children: S, N, and A. The children were 17, 15 and 10 at the time the
    appeal decision was released.

[2]

The fathers appeal to
    this court was dismissed. The parties made written submissions on costs of the
    appeal to this court and the costs of a previous attempt to appeal to the
    Divisional Court.

[3]

We have considered these
    submissions and would award the mother her costs fixed at $25,000.

LITIGATION HISTORY

[4]

A brief history of this
    proceeding puts the costs issues in perspective.

[5]

The father commenced
    this action in June 2013. In the course of the application, on consent of the
    parties, the court ordered a custody and access assessment under s. 30 of the
Childrens Law Reform Act
,

R.S.O.
    1990, c. C.12. After the production of the initial assessment followed by an
    updated assessment, the application was placed on the trial list.

[6]

For various reasons,
    the hearing of the application was delayed. When the father learned that it was
    unlikely the matter would be heard by June 2017, he brought a motion seeking
    sole interim custody of the children for 90 days (with no access to the mother
    during this period) and an order directing that during this period of interim
    custody, the parents and children participate in a program known as Family Bridges.
    In the alternative, the father sought an order for a directed trial on custody
    and access. In response, the mother brought a summary judgment motion seeking
    sole custody of the three children, with access to the father at the discretion
    of the children.

[7]

In September 2017, the
    motion judge granted summary judgment in the mothers favour. First, he
    dismissed the fathers motion in relation to S, because within a few weeks of
    the release of the decision, S would turn 18 and would no longer be within the
    courts jurisdiction. The motion judge went on to give sole custody of N and A
    to the mother. He ordered that access and communication between the father and
    N would be at Ns discretion; access and communication between the father and A
    would be at As discretion in consultation with the mother. The motion judge
    awarded costs to the mother fixed in the amount of $80,636 plus HST.

[8]

The father appealed the
    decision to the Divisional Court. The Divisional Court held that it did not
    have jurisdiction over the matter and transferred the appeal to this court, on
    an expedited basis. The costs of the attendance before the Divisional Court
    were adjourned to the court hearing the appeal: see
Mattina v.
    Mattina
,
2018 ONSC 1569, 11 R.F.L. (8th) 69, at
    para. 63.

ANALYSIS

General Legal Principles

[9]

Section 131(1) of the
Courts
    of Justice Act
,
R.S.O. 1990, c. C.43, provides that cost orders are in
    the discretion of the court. Rule 24 of the
Family Law Rules
sets out a framework for awarding costs for family
    law cases in the Family Court of the Superior Court of Justice, in the Superior
    Court of Justice and in the Ontario Court of Justice. Although the
Family
    Law Rules
do not expressly govern costs
    awards in the Court of Appeal, they have been used to guide this courts
    analysis on costs in family law disputes:
Family Law Rules
, r. 1(2);
Selznick v. Selznick
, 2013 ONCA 35.

[10]

This court has held that modern
    family cost rules are designed to foster three fundamental purposes: (1) to
    partially indemnify successful litigants; (2) to encourage settlement, and; (3)
    to discourage and sanction inappropriate behaviour by litigants:
Serra
    v. Serra
,
2009 ONCA 395, 66 R.F.L. (6th) 40, at para. 8;
Fong
    v. Chan
(1999), 46 O.R. (3d) 330 (C.A.), at
    para. 22. Rule 2(2) adds a fourth fundamental purpose: to ensure that cases are
    dealt with justly:
Family Law Rules
, r. 2(2);
E.H. v. O.K.,
2018 ONCJ 578, at para.
    8;
Sambasivam v. Pulendrarajah
,
    2012 ONCJ 711, at para. 37. And Rule 24(12)
[1]
,
    which sets out factors relevant to setting the amount of costs, specifically
    emphasizes reasonableness and proportionality in any costs award.

[11]

The
Family Law Rules
are a marked departure from some aspects of the
Rules
    of Civil Procedure
,
R.R.O. 1990, Reg. 194. As such, case law pertaining to
    costs decided under the

Rules of Civil Procedure
should be approached with some caution:
Frick
    v. Frick
,
2016 ONCA
    799, 132 O.R. (3d) 321, at para. 11;
E.H. v. O.K.
,
at para. 34.

[12]

Rule 24(1) creates a presumption of costs in favour of
    the successful party of a motion, case, or appeal:
Berta v. Berta
, 2015 ONCA 918, 128 O.R. (3d) 730, at para. 94.
And
    the presumption that a successful party is entitled to costs applies equally to
    custody and access cases:
Britt v. Britt
, [2000] O.J. No. 5981 (S.C.),
    at para. 9.

[13]

Consideration of success is the
    starting point in determining costs:
Sims-Howarth v. Bilcliffe
(2000), 6 R.F.L. (5th) 430 (Ont. Sup. Ct.), at para.
    1. This presumption does not, however, require that the successful party always
    be entitled to costs:
M.(C.A.) v. M.(D.)
, at para. 40. An award of costs is subject to: the factors listed in r.
    24(12), r. 24(4) pertaining to unreasonable conduct of a successful party, r.
    24(8) pertaining to bad faith, r. 18(14) pertaining to offers to settle, and
    the reasonableness of the costs sought by the successful party:
Berta
    v. Berta
,
at para.
    94.

[14]

Rule 24(12) sets out a list of
    factors the court shall consider in determining an appropriate amount of costs:

(a) the reasonableness and proportionality of each of the
    following factors as it relates to the importance and complexity of the issues:

(i) each partys behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do
    not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and
    their rates,

(v) any expert witness fees, including the number of experts
    and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[15]

The
Family Law Rules
only expressly contemplate full
    recovery costs in specific circumstances, e.g. where a party has behaved
    unreasonably, in bad faith or has beat an offer to settle under r. 18(14).

[16]

Rule 24(4) addresses the situation
    in which a successful party has behaved unreasonably:

Despite subrule (1), a successful party who has behaved
    unreasonably during a case may be deprived of all or part of the partys own
    costs or ordered to pay all or part of the unsuccessful partys costs.

[17]

Rule 24(5) provides guidance on
    how to evaluate reasonableness:

In deciding whether a party has behaved reasonably or
    unreasonably, the court shall examine,

(a) the partys behaviour in relation to the issues from the
    time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept.

[18]

Rule 24(8) discusses the cost
    consequences for a party who has acted in bad faith:

If a party has acted in bad faith, the court shall decide costs
    on a full recovery basis and shall order the party to pay them immediately.

THE PARTIES POSITIONS

(1)

The costs of the appeal
    to the Court of Appeal

The
    Father

[19]

The fathers position is that each
    party should bear his and her own costs of the appeal. At most, argues the
    father, the mother should have her costs restricted to the actual attendance before
    this court, and on a reduced scale.

[20]

In support, the father argues that
    the appeal concerned matters of the utmost importance. The father contends that
    he acted reasonably whereas the mother was uncooperative and took irresponsible
    positions and thereby delayed the proceedings. He submits that the mother
    contributed significantly to the high-conflict dynamic of this dispute. He
    submits that calling her successful would sanction such conduct and would be
    contrary to public policy.

[21]

Finally, while acknowledging the
    current trend away from awarding no costs in custody and access cases, the
    father submits that the policy rationale underlying the historical approach
    best applies here.

The Mother

[22]

The mother, relying on r. 57.01 of
    the
Rules of Civil Procedure
and
    r. 24 of the
Family Law Rules
,
    submits that she should be awarded her full indemnity costs of this appeal. The
    mother relies on the parties motivations. Hers was the best interests of the
    children whereas the fathers was to win custody and/or access.

[23]

The mother submits that her
    lawyers charged reasonable rates and worked in a cost-effective manner. Based
    on the parties earlier Bills of Costs, the father had to have been aware that
    his lawyers services cost almost twice as much as the mothers. It is
    reasonable to conclude that the mothers Bill of Costs is within the range of
    costs the father would be ordered to pay if he were unsuccessful. The mother
    also points out that the father did not submit a Bill of Costs for services at
    the Court of Appeal.

[24]

The mother further contends that the
    fathers unreasonable behaviour increased costs dramatically. Among other
    things:

·

the father misled the court on a
    number of occasions;

·

despite consenting to an order to
    not file any further materials in the appeal without consent, the father
    brought a motion on less than 36 hours notice, to serve and file an Amended
    Notice of Appeal, and;

·

the father put unreasonable
    deadlines on the mother and did not respond to reasonable questions.

(2)

The costs of the appeal to the
    Divisional Court

The Father

[25]

The father submits that there
    should be no costs related to the parties preparation and attendance before
    the Divisional Court. The appeal routes in custody and access cases are not
    straightforward. He calls the costs incurred as they related to the Divisional
    Court appeal an institutional loss that should not attract cost consequences.

[26]

Further, the mother should have
    raised jurisdictional concerns sooner. It would be unfair for the father to be
    penalized by a costs award because the motion judge at the Divisional Court
    made an error in assuming jurisdiction and the mother failed to take steps to
    remedy that error.

The Mother

[27]

The mother submits she is entitled
    to full indemnity costs of the proceedings before the Divisional Court. The
    mother contends that it was unreasonable for the father to appeal, as the
    appeal had no merit. Second, the mother says that even if the appeal had merit,
    the father appealed to the wrong court. Instead of conceding the point, once
    the error was pointed out to him, the father held fast to his position, wasting
    time and money.

[28]

Finally, two motions the father
    brought before the Divisional Court demonstrate his pattern of unreasonable
    behaviour throughout the appeal process. The father lost both motions but the
    parties bore their own costs resulting in $10,000 additional costs to the
    mother.

APPLICATION OF THE
    PRINCIPLES

(1)

The Costs before the Court of Appeal

a.

The mother was successful on appeal and is entitled to costs

[29]

The
    father raised four distinct issues on appeal: the motion judge erred in
    proceeding by way of summary judgment, the motion judge erred in failing to
    attach sufficient weight to the s. 30 assessment, the motion judge erred by
    failing to consider the best interests of the children and the maximum contact
    principle, and finally, his s. 7 and s. 11(b)
Charter

rights
    were infringed:
Mattina v. Mattina
,
at paras. 9-10. This court dismissed all four grounds of appeal. The mother is accordingly
    presumptively entitled to her costs.

b.

Applying the r. 24 framework suggests the mother should have 60-70% of
    her appeal costs indemnified

[30]

There
    is evidence of unreasonable conduct by the father in this appeal. It was
    unreasonable for him to continue on appeal to take the position that the only
    explanation for the rift with his children was parental alienation. Furthermore,
    the father continued to take an obstructionist approach to the litigation. For
    example, he insisted on relying on affidavits from motion materials used in the
    Divisional Court in violation of the parties consent order about the manner
    for filing further materials. The father had to have known that this conduct would
    increase the mothers costs.

[31]

That
    said, the mothers conduct also impeded resolution. By way of example, we point
    to her refusing to schedule an expedited hearing before the Divisional Court
    and her refusing to allow the father to file additional appeal materials.

[32]

As
    to the time invested by each party, we note that a combined total of nearly 77
    hours by mothers counsel was spent preparing for this appeal. A large portion
    of this preparation time appears to have been spent on the mothers need to
    respond to the fathers motion to file an amended notice of appeal, fresh
    factum and further book of authorities. Although the mother was unsuccessful on
    that motion, we are of the view that it is reasonable for preparation time to
    be included in the mothers cost award, given the father brought the motion
    with fewer than 36 hours notice, in violation of a consent court order, and
    that the mothers counsel made a reasonable proposal that would have avoided
    the necessity for such a motion.

[33]

We
    are persuaded by the mothers submission that the father would have been aware
    of the fact that his lawyers services cost almost twice as much hers. The
    father would have also been aware of the high cost of litigation based on the
    motion judges costs order. It is reasonable to conclude that the father would
    have foreseen having to pay the mothers costs and that these costs could be
    significant.

[34]

In
    our view, the mothers presumptive entitlement to costs has not been rebutted.

[35]

Having
    considered the reasonableness and proportionality of the relevant factors, in
    our view the mother should receive 60-70% of her costs.

(2)

The costs before the Divisional Court

a.

Confusion surrounding family appeal routes

[36]

This
    court has repeatedly commented on the fact that this provinces family law
    appeal routes are confusing for the public, counsel, and institutional
    litigants:
Christodoulou v. Christodoulou
, 2010 ONCA 93, 75 R.F.L. (6th)
    266;
Marchildon v. Beitz
, 2012 ONCA 668, 23 R.F.L. (7th) 316;
Priest
    v. Reilly
, 2018 ONCA 389. In particular, this court in
Christodoulou
noted the cost implications of this confusion at para. 35:

The inconsistency in current appeal routes can be confusing for
    the public, for counsel and for institutional litigants. It can also create an
    inequality in access to justice between litigants whose disputes at first
    instance are heard in provincial courts versus superior courts  the former
    must incur the costs and delays of two appeals in order to reach the Court of
    Appeal while the latter must incur the cost and delay of only one.

[37]

This
    case illustrates once again the unnecessary costs parties bear as a result of this
    confusion. We therefore echo this courts plea in
Priest v. Reilly

(at
    para. 6): It has been over eight years since MacPherson J.A. in
Christodoulou
specifically invited legislative reform in this area. This is a serious access
    to justice problem that must be remedied.

[38]

Given
    this legislative deficiency, it would be unjust in our view for the father to
    pay the mothers costs associated with the appeal before the Divisional Court. The
    fathers behaviour throughout this case is in our view sufficiently addressed by
    the costs awards for the remainder of the proceedings.

DISPOSITION

[39]

The
    mother seeks full recovery of her costs in the sum of $67,224.95. Of this sum,
    $25,887.50 is attributed to fees and disbursements associated with the
    Divisional Court appeal. This amount should be subtracted from the total amount
    claimed, leaving $41,377.45 for the mothers fees and disbursements for the
    appeal before this court. In her Bill of Costs, the mother has included
    $1,914.95 for disbursements associated with the Divisional Court appeal, which
    were omitted in the Divisional Court Bill of Costs. This amount should be
    excluded leaving the mother with a Bill of Costs totalling $39,462.50.

[40]

Based
    on the above analysis, it is reasonable in our view to award the mother 60-70%
    of her costs. We therefore order the father to pay the mother her costs fixed
    in the amount of $25,000.

Gloria Epstein
    J.A.

P. Lauwers
    J.A.

K. van Rensburg
    J.A.

[1]

Rule 24(12) was updated in July 2018 and the new
    rule applies:
Cobb v. Long Estate
, 2017 ONCA 717, at para. 84.


COURT OF APPEAL FOR ONTARIO

CITATION: McLaughlin v. Canadian Service Management Inc.,
    2018 ONCA 799

DATE: 20181002

DOCKET: C65256

Hourigan, Miller and Trotter JJ.A.

BETWEEN

James McLaughlin and 2538886 Ontario Inc.

Plaintiffs

(Appellants)

and

Canadian Service Management Inc.

Defendant

(Respondent)

J. Sebastian Winny, for the appellants

No one appearing for the respondent

Heard: October 2, 2018

On appeal from the judgment of Justice Braid of the
    Superior Court of Justice, dated April 5, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The appellants raise two issues. First, they say the motion judge erred
    by failing to allow credit for rent payments after the respondent failed to
    close. Second, they say that the motion judge failed to adjust the price to
    account for wasted legal expenses.

[2]

On the first issue, we agree that the motion judge erred in finding
    there was no authority to make the requested adjustment. It was open to her to
    do so: see
Welsh v. Karan
, 2018 ONSC 804. However, the motion judge
    found that there was an inadequate record to calculate the adjustment. This was
    a reasonable conclusion. We would dismiss this ground of appeal.

[3]

With respect to the second issue, we agree with the appellants that the
    motion judge had authority to make this adjustment and the $10,000 figure was
    established on the record and reasonable.

[4]

The appeal is allowed in part. The motion judges order is amended to
    reflect a $10,000 abatement in the purchase price. The respondent shall pay
    costs of the appeal to the appellant in the all-inclusive sum of $4,385.00.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Michail v. Ontario English Catholic Teachers'
    Association, 2018 ONCA 857

DATE: 20181025

DOCKET: M49592 (C65674)

Feldman, Pardu and Roberts, JJ.A.

BETWEEN

Myriam Michail

Appellant/Responding Party

and

Ontario English Catholic Teachers Association,
    Marshall Jarvis, Bruno Muzzi, Fern Hogan, Joanne Schleen, Shelley Malone, and
    Sheila Brescia,
London District Catholic School Board
and Ontario Labour
    Relations Board

Respondents/
Moving Party

Elizabeth Traynor and Liam Ledgerwood, for the moving
    party

Audra Ranalli, for Attorney General of Ontario

Aaron Hart, for Ontario Labour Relations Board

Christopher Perri, for Ontario English Catholic Teachers' Association, Marshall Jarvis, Bruno Muzzi, Fern Hogan, Joanne Schleen, Shelley Malone and Sheila Brescia

Myriam Michail, in person

David Campbell
,
duty
    counsel

Heard: October 18, 2018

On appeal from the order of Justice Lynne Leitch dated
    March 21, 2017 of the Superior Court of Justice and from the order of A. Duncan
    Grace of the Superior Court of Justice, dated June 26, 2017 and costs order
    dated August 9, 2017.

REASONS FOR
    DECISION

[1]

The respondents move for an order quashing the appeal on the basis that
    the appellant seeks to appeal three interlocutory orders made by the Superior
    Court, where the right of appeal is under s. 19(1)(b) of the
Courts of
    Justice Act
to the Divisional Court with leave.

[2]

The procedural history was helpfully set out in detail by Paciocco J.A.
    in his endorsement dated September 4, 2018. In brief, the appellant wished to
    have two decisions judicially reviewed, an arbitration decision, and a decision
    of the OLRB. Instead of bringing the application for judicial review directly
    to the Divisional Court, the appellant sought leave to have it heard by a
    single judge of the Superior Court on an urgent basis in London. Initially,
    Leitch J. set a timetable for the hearing of the appellants leave motion,
    which was eventually held before Grace J. He dismissed the motion, and ordered
    that the application for judicial review be transferred to the Divisional Court
    in London, or in Toronto where it could be heard sooner. He also ordered the
    appellant to pay $10,000 costs to the respondent.

[3]

The appellant seeks to appeal the order of Leitch J. and the orders of
    Grace J. to this court. In her written materials, she seeks to have this court
    hear the application for judicial review and various constitutional issues,
    none of which was determined below. In oral argument, the appellant conceded
    that the order of Leitch J. is interlocutory, but that she is seeking to appeal
    the orders of Grace J., which she submits are final orders. The appellant also
    explained that there have been a number of administrative problems at the court
    office since the order of Grace J., resulting in problems with the Divisional
    Court file for her judicial review application in both the London office, and
    in the Hamilton office where another file was commenced.

[4]

Dealing first with the jurisdiction of this court to hear the appeals,
    it is clear that the order transferring the application for judicial review to
    the Divisional Court, which was made by Grace J., is an interlocutory order of
    a procedural nature. It does not address the merits of the proposed judicial
    review application.

[5]

The appellant sought a procedure for the hearing of her judicial review application
    before a single judge rather than by a panel of the Divisional Court, which
    procedural request was refused. The appellant may seek leave from the
    Divisional Court to appeal that refusal, under s. 19(1)(b) of the
Courts of
    Justice Act
, R.S.O. 1990, c. C.43,which provides:

19 (1) An appeal
    lies to the Divisional Court from,

(b) an
    interlocutory order of a judge of the Superior Court of Justice, with leave as
    provided in the rules of court.

[6]

Alternatively, the appellant may proceed with her judicial review application
    before the Divisional Court. In accordance with the provisions of s. 6(1) of
    the
Judicial Review Procedure Act
, R.S.O. 1990, c. J.1, her application
    for judicial review is within the jurisdiction of the Divisional Court. No
    aspect of the merits of her judicial review has been adjudicated, including any
    constitutional issues she wishes to raise in respect of the Labour Board. No
    final order has been made that disposes of any matter in issue in the
    litigation. As a result, there is no appeal to this court.

[7]

Similarly, in accordance with s. 19(1.2) of the
Courts of Justice
    Act
, the appellants proposed appeal from the $10,000 costs order of Grace
    J. is to the Divisional Court, with leave, because it is within that courts
    monetary jurisdiction.

[8]

As the appeal to this court must be quashed, it is for the Divisional
    Court and its administration to assist the appellant, a self-represented
    litigant, to bring forward her judicial review application.

[9]

The respondent seeks $17,000 in costs of this appeal on the partial indemnity
    scale. While the respondent was correct that no appeal lies to this court and
    the appeal must be quashed, we may also take into account when assessing the
    costs issue the fact that the appellant is self-represented and the underlying
    issues involve the termination of her employment. In the result, the motion is
    granted with a nominal award of costs in the amount of $2,000, inclusive of
    disbursements and HST.

K.
    Feldman J.A.

G.
    Pardu J.A.

L.B.
    Roberts J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Mihaylov v. Long Beach Residents' Association, 2018
    ONCA 871 DATE: 20181030

DOCKET: C64906

Rouleau, Watt and Paciocco JJ.A.

BETWEEN

Emil Mihaylov and Sofia
    Mihaylov

Applicants (Appellants)

and

Long Beach Residents Association, Attorney
    General of Canada, and
Her Majesty the Queen in Right of Ontario as Represented by the
Minister of Natural Resources

Respondents (Respondents)

Stephen Jackson, for the appellants

Liz Tinker, for the respondent Attorney General of Canada

Glenn Frelick, for the respondent Her Majesty the Queen
    in Right of Ontario

Ryan ONeill, for the respondent Long Beach Residents
    Association

Heard and released orally: October 25, 2018

On appeal from the order
    of Justice Edward M. Morgan of the Superior Court of Justice dated January 3,
    2018, with reasons reported at 2018 ONSC 14.

REASONS FOR DECISION

[1]

The appellants purchased land near the western shore of Sturgeon Lake in
    2012 and commissioned a survey of their property later that year. According to
    the survey, the easterly limit of the appellants property abuts land owned by
    the respondent, Long Beach Residents Association. The appellants claim that
    the portion of Long Beachs land lying between their property and the shore of
    Sturgeon Lake was originally part of the parcel they purchased and should now
    be conveyed to them. The application judge, they submit, erred in dismissing
    their claim.

[2]

We disagree.

[3]

Central to the appellants submission is that the application judge
    erred in concluding that the lakes shoreline has been moved further east by
    depositing landfill on parts of what is now Long Beachs lot. Specifically, the
    application judge found that Long Beachs property was originally a water lot
    conveyed by the province to the federal government and that fill was deposited thereon
    to construct a wharf. In our view, the application judges factual finding is
    well-grounded in the evidence and we see no basis upon which to interfere.

[4]

We note further that several surveys of the property  including the
    survey commissioned by the appellants  rely on existing survey monuments and indicate
    that the boundary lies where the application judge determined it to be.

[5]

The appellants also argue that the application judge erred in dismissing
    their claim for interference with riparian rights. Assuming without deciding
    that riparian rights attached to the appellants property in 1946  the
    conveyance predating the conveyance of the water lot to the federal government
    and upon which the appellants rely for their claim to riparian rights  any
    such riparian rights would now have been extinguished pursuant to ss. 4 and 15
    of the
Real Property Limitations Act
,
    R.S.O. 1990, c. L.15
. This follows from the application judges
    finding that the property acquired by the appellants could not have abutted the
    lake due to the landfill that has been present on the adjoining lot since at
    least 1999. Any possible claim against the Crown has therefore long been
    extinguished.

[6]

With respect to the costs order in the court below, the respondent Crown
    in Right of Ontario has not sought leave to appeal. As a result, the appeal and
    cross-appeal are dismissed. Costs to the Long Beach Residents Association are fixed
    at $4,629.43 all-inclusive; to the Attorney General of Canada at $9,424.71
    all-inclusive; and to the Crown in Right of Ontario at $6,000 all-inclusive.

Paul Rouleau
    J.A.

David Watt J.A.

David M. Paciocco
    J.A.