Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20240118 DOCKET: COA-23-CV-0669
Nordheimer, Copeland and Dawe JJ.A.
BETWEEN
The Governing Council of the Salvation Army in Canada and the Salvation Army Isabel and Arthur Meighen Manor Applicants (Respondents)
and
Patient Ombudsman Respondent (Appellant)
Counsel: Elyse Sunshine and Emma Gardiner, for the appellant Marina Sampson and Meredith Bacal, for the respondents
Heard and released orally: January 17, 2024
On appeal from the order of the Divisional Court (Justices Katherine E. Swinton, Elizabeth M. Stewart and Sandra Nishikawa), dated November 24, 2022, with reasons reported at 2022 ONSC 6563.
Reasons for Decision
[1] The Patient Ombudsman appeals, with leave, from the decision of the Divisional Court that quashed the appellant’s proposed investigation into long-term care homes. The Divisional Court found that s. 13.3(5) of the Excellent Care for All Act, 2010, S.O. 2010, c. 14 (the “Act”) prohibited the investigation. That section prohibits the patient ombudsman from commencing an investigation in connection with a matter that is already the subject of a proceeding.
[2] The appellant originally asserted eight errors in the Divisional Court’s decision but four of those were abandoned. None of the remaining errors that are asserted are made out. In particular, the appellant now does not dispute the Divisional Court’s conclusion that, at the time that the appellant commenced its investigation in October 2020, there were at least four other proceedings extant.
[3] We do not agree that the Divisional Court erred in applying the reasonableness standard. The enunciation of that standard by the Divisional Court was correct as was its conclusion that the appellant had unreasonably concluded that its investigation was not covered by s. 13.3(5), for the reasons that follow. This is especially so given the appellant’s very recent concession that its investigation was commenced after these other proceedings.
[4] We also do not agree that the appellant’s investigation was not in connection with a matter that was the subject of these other proceedings. The language used in s. 13.3(5), namely, “in connection with” is very broad – see Nowegijick v. The Queen, [1983] 1 S.C.R. 29 at p. 39. The appellant’s attempt to compartmentalize the subject matter of these other proceedings so as to separate them from the subject matter of its investigation fails to recognize the breadth of that language. The overlap between at least some of these proceedings is evident.
[5] Finally, we do not quarrel with the important role that the Patient Ombudsman may fulfill. However, we do not accept the appellant’s assertion that the Divisional Court’s decision will lead to the “absurd” result that the appellant will not be able to undertake the very types of investigation that the Act permits it to do. If the appellant’s concern is that the decision unduly restricts its mandate, then its remedy lies with having the government amend the Act to narrow the existing restriction. There is no error in the Divisional Court’s interpretation of that restriction in the Act as it currently stands.
[6] The appeal is dismissed. The parties agreed that costs of $30,000 should be awarded. The respondent is therefore entitled to the costs of the appeal fixed at $30,000 inclusive of disbursements and HST.
“I.V.B. Nordheimer J.A.”
“J. Copeland J.A.”