ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: DC 09 00020 DATE: 2009-09-16

BETWEEN:

Children's Aid Society of the County of Simcoe

Applicant/Respondent in Appeal

• and -

S.T.1 and J.J.

Respondents/Appellants

COUNSEL: David M. Winnitoy for the Applicant/Respondent in Appeal Christopher G. Severn for the Respondents/Appellants

ENDORSEMENT

BOSWELL J.

INTRODUCTION:

[1] S.T.2 is three years old. Her little brother, J.T., is just shy of two years old. They have been involved with the Simcoe County Children's Aid Society (the "CAS") throughout their short lives.

[2] On February 6, 2009 the children were made wards of the Crown by order of the Honourable Mr. Justice Nelson. The order was opposed by the children's mother, S.T.1, but supported by S.T.2's father, J.J.. J.T.'s father is unknown and has not participated in court proceedings involving the children. The wardship order provides for no access between the children and their natural parents. It is the plan of the CAS to have the children adopted.

[3] S.T.1 has appealed the order for Crown wardship. She moves for an order staying the termination of access and re-establishing an access schedule pending the appeal. The CAS responds with a motion for summary judgment, arguing that the appeal has no merit and should be dismissed under Rule 38(28) of the Family Law Rules.

THE ISSUES:

[4] The Appellant's request for a stay will be moot if summary judgment is granted. For that reason, it makes sense to deal with the request for summary judgment first. The rule providing for summary judgment pending an appeal does not appear to be one that is often resorted to. There is a dearth of jurisprudence concerning its application. There is, however, substantial jurisprudence regarding the principles applicable to summary judgment motions generally. An examination of how those well-developed principles might be adapted to motions for judgment pending appeal is necessary. I would summarize the outstanding issues as follows:

A. Summary Judgment Issues:

(i) How should requests for summary judgment pending appeal be assessed in cases to which the Family Law Rules apply? In this respect:

(a) What is the function of the motions judge?

(b) How should the "genuine issue" test be applied?

(c) What standards of appellate review should be considered?

(ii) Is this an appropriate case for summary judgment?

B. Stay Pending Appeal Issues:

(iii) If summary judgment is not granted, is a stay of the order terminating access warranted? In this context:

(a) Is there a serious question to be determined?

(b) Will the children suffer irreparable harm should access not be ordered pending the appeal?

(c) Will the children suffer greater harm if access were reinstated pending the appeal as compared to any harm they may suffer if access is not reinstated?

ANALYSIS:

A. Summary Judgment Issues:

(i) The test for summary judgment pending appeal

(a) The function of the motions judge

[5] Appeals of Family Court orders made under the Child and Family Services Act[^1] ("CFSA") are governed by s. 69 of the CFSA and s. 21.9.1 of the Courts of Justice Act[^2]. Appeals of Crown wardship orders made in Family Court are as of right to the Divisional Court, or more specifically, a panel of three judges sitting as Divisional Court.

[6] The CAS moves for summary judgment, asking that this court dismiss S.T.1's appeal before it reaches the full Divisional Court panel. The motion is made to a single judge. It requires a detailed review of the merits of the appeal. The motion asks the presiding judge to perform a function very near to what the Divisional Court panel is to perform on the ultimate hearing of the appeal.

[7] In my view, as a matter of general policy, a single judge of the Divisional Court should not usurp the function of the panel, whose task it is to hear and determine appeals on their merits.[^3] But having said that, it is clear that Rule 38(28) of the Family Law Rules allows for motions for summary judgment pending appeal. The text of the Rule is as follows:

After the notice of appeal is filed, the respondent or any other person who is entitled to be heard on the appeal may make a motion for summary judgment or for summary decision on a legal issue without a hearing of the appeal, and rule 16 applies to the motion with necessary modifications.

[8] Rule 16(6) provides that where there is no genuine issue requiring a trial, the court shall make a final order accordingly. Applying the necessary modifications, summary judgment is available pending an appeal where the motions judge is satisfied that the appeal raises no genuine issue requiring a hearing before the full Divisional Court panel. While there are sound policy reasons for respecting the right of appeal to the full panel, they must be reconciled with the jurisdiction to weed out appeals that should not proceed to the full panel because they do not raise a genuine issue for determination.

[9] As Borins, J.A. observed in Aguonie et. al. v. Galion Solid Waste Material Inc. et. al.[^4]

Summary Judgment, valuable as it is for striking through sham claims and defences which stand in the way to a direct approach to the truth of a case was not intended to, nor can it, deprive a litigant of his or her right to a trial unless there is a clear demonstration that no genuine issue exists, material to the claim or defence, which is within the traditional province of a trial judge to resolve.

[10] Justice Borins' comments can, in my view, be adapted to motions for summary judgment pending appeal, as governed by the Family Law Rules. A balance must be struck such that a litigant is not deprived of her right to a hearing of her appeal before the full panel unless there is a clear demonstration that no genuine issue exists for determination on the appeal. The requirement that the moving party clearly demonstrate that there is no genuine issue for determination is the safety valve to ensure that parties are not lightly or routinely deprived of their right to a full hearing of their appeal. The threshold is high. The motion will necessarily require the presiding judge to assess the merits of the appeal in detail. The motions judge is not, however, to decide the appeal. He or she is only to determine whether, taking a good, hard look at the merits of the appeal, a genuine issue has been raised requiring a hearing before the full Divisional Court panel.

(b) Applying the "genuine issue" test

[11] The Family Law Rules do not provide a unique test to be applied to summary judgment motions pending appeals. The rules incorporate the same test applied to motions for summary judgment prior to trial.

[12] The genuine issue for trial test in the Family Law Rules mirrors the test for summary judgment in civil cases generally. That test has been the subject of much judicial scrutiny at all levels of court in Canada. Certain basic principles have arisen from the case law, including the following, non-exhaustive, list:

(i) The moving party has the onus to show that there is no genuine issue of material fact requiring a trial.[^5]

(ii) A party must put its best foot forward and can not merely rely on the allegations or denials in the pleadings[^6], nor can it rely on self-serving affidavits that merely assert defences without providing details or supporting evidence[^7];

(iii) In view of the requirement that each party put its best foot forward, the motions judge should take a good, hard look at the merits of the action[^8]; and,

(iv) The motions judge is not to make findings of contested factual issues nor determine issues of credibility – the trial judge has dominion over those matters. The motions judge is only required to assess the record with a view to determining whether there is a genuine issue of disputed facts[^9];

[13] The Rules of Civil Procedure do not include a provision for summary judgment in an appeal, as the Family Law Rules do. The test applied to summary judgment motions before trial does not fit neatly with appeals. For instance, by the appeal stage, the facts have already been determined by the trial judge. Determinations of credibility have already been made. It is not the court's function at this stage to determine if there is a genuine issue of disputed facts that requires a trial to resolve. Clearly, the applicable test must be adapted to address the different considerations in play at the appeal stage.

[14] Counsel on this motion did not refer me to any cases specific to the granting of summary judgment pending appeal. Insofar as I am aware, the issue has not been the subject of a prior reported decision.

[15] The starting point of the analysis must be the wording of the rule itself. Rule 38(28) incorporates by reference the rule for summary judgment prior to trial. Presumably therefore, the framers of the rules did not intend for an entirely new or different test to be applied to summary judgment motions pending appeal. The intention appears to be that the existing rule, with its developed jurisprudence, be adapted to the appeal stage.

[16] Certain elements of the test for summary judgment before trial are readily transferable to summary judgment motions pending appeal, including:

(i) The onus remains on the moving party to satisfy the court that there is no genuine issue in dispute requiring a hearing – in this case a hearing before a full panel of the Divisional Court;

(ii) The concept of "no genuine issue" is the equivalent of "no chance of success" or "plain and obvious that the appeal cannot succeed".[^10] Accordingly, the onus is on the moving party to satisfy the court that it is plain and obvious that the appeal can not succeed;

(iii) The parties have an obligation to put their best foot forward on the motion. The appellant can not rest merely on the grounds of appeal set out in the Notice of Appeal, but should be able to demonstrate that the grounds are supported by the record before the court; and,

(iv) The motions judge should take a good, hard look at the merits of the appeal, having regard to the applicable standards of appellate review.

(c) The standard of appellate review

[17] The function of the appellate court must also be kept in mind. The Divisional Court is a reviewing court and not a court of first instance. There are well-defined standards of review applicable to issues of law, issues of fact and issues of mixed fact and law. Those standards of review must be considered when assessing whether or not the appeal raises a genuine issue for determination.

[18] Appeals under the CFSA are not restricted to issues of law alone. They may involve issues of law, issues of fact, or issues of mixed law and fact. In determining whether the appeal raises a genuine issue for determination, the court must keep in mind the different standards of deference to be applied to the issues raised on appeal. If the issues raised on the appeal are issues of law alone, the standard of correctness applies. If they are questions of fact, then a much higher degree of deference is to be afforded: the trial judge's findings are only to be interfered with if a palpable and overriding error can be demonstrated. The standard of review applicable to questions of mixed fact and law can be more difficult to determine. For the purposes of this appeal, it is sufficient to note, as Justices Iacobucci and Major did in Housen v. Nikolaisen, supra, that "where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error".

[19] With these general principles in mind, I will turn to an examination of the specific motion now before the court.

(ii) Is this an appropriate case for summary judgment?

[20] The onus remains on the CAS to satisfy the court that the appeal raises no genuine issue for determination, or put another way, that it is plain and obvious that the appeal can not succeed.

[21] It is important to note that the motion proceeded on an incomplete record. The transcript from the status hearing before Nelson J. was not part of the motion record of either party and apparently had not yet been prepared at the time of the motion. Nevertheless, and despite the requirement that each party put their best foot forward on a summary judgment motion, no adjournment was sought and the motion was argued on a record which consisted of the affidavit evidence of the parties and a transcript of the oral reasons of Justice Nelson.

[22] The Notice of Appeal sets out five grounds of appeal, which are briefly as follows:

1. Nelson J. failed to give adequate consideration to the placement of the children with their maternal grandparents;

2. Nelson J. failed to consider the Native status of the children;

3. Nelson J. placed too much weight on the past conduct of the maternal grandparents when concluding that the children should not be placed with them;

4. Nelson J. placed too much weight on the fact that the children would require CAS supervision if placed with the maternal grandparents; and,

5. Nelson J. erred in placing any weight on the fact that the maternal grandparents had not had much contact with the children.

[23] I note that there is no appeal from Justice Nelson's finding that the children are in need of protection.

[24] With respect to the second ground of appeal, there was no evidence at all before the court regarding the children's Native status. The Appellant's counsel, in fact, decided to withdraw the second ground of appeal as the argument of the motion proceeded, on the basis that it had no chance of succeeding.

[25] Counsel to the CAS made extensive submissions about the merits, or the lack thereof, of each of the remaining four grounds of appeal. I will review each of the remaining grounds of appeal, although I have grouped together the analysis of grounds three to five.

Ground One: Nelson J. failed to give adequate consideration to the placement of the children with their maternal grandparents

[26] This first ground of appeal could be interpreted in one of two alternate ways. It could mean that Nelson J. failed to devote sufficient analysis to the issue of placing the children with the grandparents. Alternatively, it could mean that, despite considering the issue, Nelson J. failed to put sufficient emphasis on the importance of a placement of the children within their biological family. In either event, I do not consider there to be any merit to this ground of appeal.

[27] The first alternative really speaks to the adequacy of the reasons of Justice Nelson. The duty of trial judges to provide sufficient reasons for their decisions was canvassed by the Supreme Court of Canada in R. v. Sheppard[^11]. An adequate explanation for the trial judge's conclusions is generally necessary for three reasons: (1) to satisfy a judge's obligation to explain his or her decision so that members of the public can be satisfied that justice has been done; (2) to explain to the losing party why he or she has lost; and (3) to facilitate appellate review.

[28] It is important to recognize, as appellate courts regularly do, that trial judges are not to be held to an abstract standard of perfection when crafting reasons for judgment. As Binnie, J. observed in Sheppard"the trial judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e. a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge's decision." In other words, the adequacy of the reasons should be tested functionally and in the context of the specific case.

[29] While it is not my function to resolve the issue of whether or not the reasons of Nelson J. were adequate for their purpose, I am obliged to take a good hard look at the merits of any assertion that they were not. It appears readily plain and obvious to me, having carefully reviewed and considered the reasons, that they were adequate to meet the requirements imposed on the trial judge by Sheppard and similar cases.

[30] The transcript of Justice Nelson's oral ruling discloses in obvious fashion that he extensively considered the Appellant's Plan of Care, which involved placing the children with her parents. Specifically, her Plan of Care proposed that the maternal grandparents be granted custody of the children. The Appellant would move into a basement apartment in her parents' home and would be available to provide care to the children. Society supervision would be ongoing.

[31] Nelson J. reviewed the Appellant's Plan of Care, considered the evidence of concerns relating to the Appellant's care of the children and then extensively considered the evidence of the concerns relating to the grandparents' care of the children. He ultimately concluded that there was little merit to the submission that it would be preferable to place the children with their kin. He found instead that doing so would simply delay the ultimate disposition for these young children.

[32] It is readily apparent that Nelson J. gave entirely adequate consideration to the proposed placement. He gave cogent and clear reasons for his decision. The Appellant disagrees with his conclusions. But her disagreement with the conclusion does not support the argument that his reasoning was inadequate. In my view, the extensive oral reasons given more than adequately meet the trial judge's duties as imposed by R. v. Sheppard. Although the issue of the adequacy of reasons may, in theory, be an issue meriting appellate consideration, in this instance it is plain and obvious to me that this ground of appeal will not succeed.

[33] In the alternative, the Appellant may be suggesting, in the first ground of appeal, that the trial judge, while giving adequate consideration to the placement issue, failed to put adequate emphasis on the proposed kinship placement. If this is the suggestion, it too has no merit.

[34] The Appellant has not pointed to any misapprehension of the evidence by the trial judge, or any palpable and overriding error in terms of his factual findings. Those findings include the following, with respect to the maternal grandparents:

(i) they are virtual strangers to the children, having just met them for the first time in May 2008. There were only a few visits with the children between May 2008 and December 2008 and there have been no visits since then;

(ii) the maternal grandfather has been totally uninvolved with the children and did not even testify at trial;

(iii) they have demonstrated a lack of co-operation with the CAS;

(iv) they have demonstrated a lack of parenting skills with respect to their own children and in fact abandoned their three daughters;

(v) they have refused to engage in support services;

(vi) they have a lack of understanding of the CAS's concerns regarding the Appellant's parenting abilities;

(vii) only a vague plan was presented in terms of who, as between mother and grandmother, would be providing the primary care for the children.

[35] The evidence regarding the concerns about the grandparents came largely from the CAS caseworker and was basically unchallenged in cross-examination. The Appellant did not point to any evidence in the trial record which might lend support to the notion that a placement with the grandparents would be in the best interests of the children.

[36] The record indicates, clearly in my view, that the trial judge gave adequate consideration of the Appellant's Plan of Care and paid sufficient attention to the proposal of the kinship placement. The facts simply do not support a placement with the grandparents. There was more than adequate support in the record for the trial judge's conclusions. In fact, the evidence is overwhelmingly against a placement with the grandparents. In the absence of a demonstration of a palpable and overriding error in terms of the trial judge's factual findings, it appears plain and obvious to me that the Appellant can not succeed on the first ground of appeal.

Grounds Three to Five: Nelson J. put too much weight on certain facts and insufficient weight on other facts relating to the grandparents.

[37] I have grouped together these last three grounds of appeal as they all involve the trial judge's interpretation of the evidence as a whole. As such, the Appellant must demonstrate a palpable and overriding error before appellate intervention is justified.

[38] The Appellant has not identified, nor even alleged, any palpable or overriding error in the factual findings of the trial judge. Certainly the past conduct of the grandparents, their need for ongoing supervision and their lack of prior involvement with the children are issues that the trial judge was entitled to take into account when considering the best interests of the children. The absence of a demonstrated palpable and overriding error on the part of the trial judge is fatal to the appeal.

[39] Circumstances where it can be said that it is plain and obvious that an appeal can not succeed will be rare. In my view, this is one of those rare cases where it is plain and obvious that the appeal can not succeed. The Appellant could not point to anything at all in the record of the trial proceedings to support the assertions of error in the Notice of Appeal. Accordingly, the request for summary judgment is granted.

B. The Stay Request:

[40] The granting of the summary judgment motion makes it unnecessary to address the request for a stay and an order for access pending the appeal. Nevertheless, since the motion was fully argued, I will address the request for a stay. Ultimately, even if I had not granted the request for summary judgment, I still would not have made a provision for access pending the appeal.

[41] The test to be applied to stay applications is well settled. To succeed on an application for a stay, S.T.1 must satisfy the court that there is a serious question to be determined, that irreparable harm would be suffered in the event the stay is not granted and that the balance of convenience favours the granting of the stay.[^12] The test was developed in a commercial context. It has been adapted to proceedings under the CFSA, but it has been modified, as it must be, to accommodate the overarching concern for the best interests of the children.[^13]

(a) Is there a serious question to be determined?

[42] Proceedings under the CFSA involving the interests of children require that the children's best interests remain a paramount concern at all times. But it is important to bear in mind that the issue of the Appellant's access to S.T.2 and J.T. was canvassed thoroughly during a full hearing in which all parties participated. The issue was adjudicated upon, in view of the best interests of the children, and Justice Nelson provided comprehensive reasons for his decisions. One of those decisions was to terminate access between the children and the Appellant. Now, on a less complete record, the Appellant asks that this court make the opposite order and provide for a schedule of access, at least until the hearing of the appeal.

[43] This court can not approach the matter as though it were a hearing of first instance. The decision of Justice Nelson should not be lightly interfered with, even if only temporarily pending appeal. It is necessary that a preliminary assessment of the merits of the appeal be made, together with an examination of the harm that may result should the access order be granted or not granted.

[44] Typically, the court does not embark upon a detailed assessment of the merits of the proceeding when assessing a stay request. It is enough that the moving party demonstrate that there is a serious question to be adjudicated. The concept of "serious question" does not relate to the character or quality of the matters in issue. Obviously any decision to make children wards of the state is of a most serious character. The concept of a serious question to be determined, however, refers to the substance, or merits, of the case before the courts. It requires that the matter be one that is not frivolous, but rather poses a question that genuinely warrants the attention of the courts.

[45] In RJR-MacDonald Inc. v. Canada (Attorney General), supra at paragraphs 49 et seq., the Supreme Court provided the following direction as to how to assess whether there is a serious question in play:

What then are the indicators of "a serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. The decision of a lower court judge on the merits of the Charter claim is a relevant but not necessarily conclusive indication that the issues raised in an appeal are serious: see Metropolitan Stores, supra, at p. 150. Similarly, a decision by an appellate court to grant leave on the merits indicates that serious questions are raised, but a refusal of leave in a case which raises the same issues cannot automatically be taken as an indication of the lack of strength of the merits.

Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable.

[46] I have already found that it is readily apparent that the appeal has no chance of success, in the granting of the summary judgment motion. Generally speaking, a review of the merits of the appeal will be much more in-depth on a summary judgment motion than on a motion for a stay, where only a preliminary review of the merits is required. In the circumstances of this particular case, however, even a preliminary review of the merits, based on the limited record before the court, satisfies me that the appeal, as presently constituted, has no chance of success.

[47] One would be hard pressed under any circumstances to characterize as frivolous an appeal by a mother whose children have just been made wards of the Crown. I would also not characterize the appeal as vexatious. It has not been brought maliciously, nor is it intended to harass or annoy. Nevertheless, having found that it is plain and obvious that the appeal can not succeed, I am not prepared to find that there is a serious issue to be tried.

(b) Will the children suffer irreparable harm if access is not ordered pending the appeal?

[48] The test enunciated in RJR-MacDonald, supra, requires, as its second part, that the applicant for a stay demonstrate that he, she or it will suffer irreparable harm if the requested stay is not granted. In the special context of a CFSA proceeding, however, it is necessary, in my view, to consider the concepts of irreparable harm and balance of convenience within the framework of what is in the best interests of the children.

[49] Access is the right of the child. Given that the motion for a stay is, at its heart, an access motion, it directly concerns the rights of the children. Rather than focusing on the irreparable harm to the Appellant, the Court must consider whether irreparable harm will be done to the children if the stay is not granted. It is their rights and their best interests that are of paramount concern.

[50] Prior to the order of Nelson J. on February 6, 2009, S.T.2 and J.T. were wards of the CAS and were living with a foster family. There is no dispute that S.T.1 was having access to the children, but there is real debate about just how frequent and reliable the access was. She alleges that access was occurring six days per week for three hours per visit. Some of the visits were at the foster home and others were at the CAS offices. She admitted under cross-examination at the status hearing, however, that from July 2008 onward she missed about forty percent of all scheduled visits and most of the home visits scheduled at the foster parents' home. She also returned the children early on numerous occasions. She has not seen the children at all since January 2009.

[51] The Appellant has not satisfied me that the children will suffer irreparable harm if the stay is not granted. The issue of stability for these young children is one that was a central feature of the reasons for judgment of Justice Nelson. Had I not granted summary judgment, I would have had grave concerns that if access was reinstated now, after a seven month absence, substantial further damage would be done to the children if access was terminated again should the appeal fail.

[52] The children are well cared for. They are progressing well in the temporary care of their foster parents. Justice Nelson noted that S.T.2 had some difficulties with acting out, typically occurring around scheduled access visits missed by the Appellant, S.T.1. S.T.1's history of missed or shortened visits is poor. To attempt to reintroduce her now, for potentially just a short period, is not in the best interests of the children.

[53] In my view, had I not granted summary judgment, the children's best interests would best be served by maintaining the provision for no access with the Appellants pending the hearing of the appeal. It has simply not been established, on a balance of probabilities, that either the children or the Appellants would suffer irreparable harm if the stay is not granted.

(c) The Balance of Convenience

[54] Again, consideration of the balance of convenience, in the context of this proceeding, must mean whether the children would be harmed more by the granting of the stay or the refusal of the stay. The question really asks what is in the best interests of the children?

[55] For the reasons set out above, I am of the view that the children would be exposed to greater harm by the granting of a stay, than they would by leaving the provision for no access in place. The termination of any access has clearly been traumatic for the Appellant. No doubt the children have struggled with the loss of contact with S.T.1. But to have reinstated visits now, pending an appeal with very little chance of success, seems almost cruel to me. Were the appeal to proceed and fail, the result would be a second experience of the trauma of separation.

[56] In my view, in all the circumstances, the Appellant has failed to satisfy any of the three requirements necessary to support the granting of a stay.

CONCLUSION:

[57] In the result, the motion for a stay is dismissed and the motion brought by the CAS for summary judgment is granted.

[58] If the parties can not agree on the issue of costs they may make written submissions, not to exceed two pages in length. The CAS is to submit their submissions by September 28, 2009 and the Appellant by October 5, 2009.

Boswell J.

Released: September 16, 2009.

[^1]: R.S.O. 1990, c. C.11 [^2]: R.S.O. 1990, c. C.43 [^3]: See Bank of Montreal v. Weidenfeld, [2008] O.J. No. 2077 (S.C.J.) [^4]: (1998), 1998 954 (ON CA), 38 O.R. (3d) 161 (Ont. C.A.) at page 174. [^5]: Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC), [1999] 3 S.C.R. 423 at para. 27 [^6]: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., 1996 7979 (ON SC), [1996] O.J. No. 1568; 28 O.R.(3d) 423 (O.C.G.D.), affirmed on appeal at [1997] O.J. No. 3754 (Ont. C.A.) [^7]: Rozin v. Ilitchev, 2003 CarswellOnt 3052; 2003 21313 (ON CA), 175 O.A.C. 4; 66 O.R. (3d) 410 (Ont. C.A.) [^8]: Rogers Cable TV Ltd. v. 373041 Ontario Ltd., 1994 7367 (ON SC), 1994 CarswellOnt 166; 22 O.R. (3d) 25 (O.C.G.D.) [^9]: Rozin v. Ilitchev, supra, at para. 8; Aguonie et. al. v. Galion Solid Waste Material Inc. et. al, supra, at page 173. [^10]: Prete v. Ontario (Attorney General) (1993), 1993 3386 (ON CA), 110 D.L.R. (4th) 94 (Ont. C.A.) at para. 23 [^11]: 2002 SCC 26, [2002] 1 S.C.R. 869; [2002] S.C.J. No 30 [^12]: RJR-MacDonald Inc. v. Canada (Attorney General) 1994 117 (SCC), [1994] 1 S.C.R. 311 [^13]: Children’s Aid Society of the Districts of Sudbury and Manitoulin v. S.B. (2006), 2006 14961 (ON SC), 27 R.F.L. (6th) 226, [2006] O.J. No. 1808 (S.C.J.)