Faas et al. v. Centre for Addiction and Mental Health Foundation et al.

[Indexed as: Faas v. Centre for Addiction and Mental Health Foundation]

Ontario Reports

Ontario Superior Court of Justice,

E.M. Morgan J.

June 6, 2018

142 O.R. (3d) 206 | 2018 ONSC 3386

Case Summary

Charities — Accounting — Applicant making donation to respondent to fund mental health program — Applicant becoming dissatisfied with manner in which program was being developed — Applicant applying under s. 6 of Charities Accounting Act for order directing Public Guardian and Trustee ("PGT") to initiate investigation into how respondent had used donated funds — Application dismissed — Applicant's desire for accounting to ensure that donated funds had been properly spent being based entirely on conjecture — Applicant's concern that donation had not been used in way that conformed with his personal vision constituting private interest — Investigation by PGT not serving public interest — Charities Accounting Act, R.S.O. 1990, c. C.10, s. 6.

The applicant signed a donor investment agreement ("DIA") to donate $1 million to the respondent toward the creation of a workplace mental health program. The program was to be developed over a three-year period, with the applicant's donation being paid in three instalments. The respondent complied with its obligations under the DIA to report to the applicant. Nearly a year into the development of the program, the applicant became disenchanted with the direction the program [page207] was taking. He failed to make the second instalment payment, and brought an application under s. 6 of the Charities Accounting Act for an order directing the Public Guardian and Trustee ("PGT") to initiate an investigation into how the respondent had used the donated funds.

Held, the application should be dismissed.

Section 6(3) of the Act provides the court with the discretion to make an order that the PGT investigate a registered charity where it is "of the opinion that the public interest can be served by an investigation of the matter complained of". The fact that, under s. 6(5) of the Act, the PGT's investigation is at the public's expense emphasizes that the "public" component of "public interest" must be taken very seriously. The applicant did not assert that the respondent had failed to use his donation for its own charitable objects. Instead, he questioned whether the donation had been used in a way that conformed with his personal vision of the funded program. That was a quintessential private interest, not a public one. As for the applicant's desire for an accounting in order to ensure that the funds had been properly spent, the application was based on conjecture. No actual mischief had been identified, and no misuse of funds was apparent from the record. There were no grounds on which to order an investigation by the PGT under s. 6 of the Act.

Cases referred to

Bloorview Childrens Hospital Foundation v. Bloorview MacMillan Centre, 2002 49641 (ON SC), [2002] O.J. No. 521, 22 B.L.R. (3d) 182, 44 E.T.R. (2d) 155, 111 A.C.W.S. (3d) 1127 (S.C.J.); Boldrini v. Hamilton Naturalists' Club, [1995] O.J. No. 3321, 1995] O.J. No. 3321 (Gen. Div.); Ontario (Public Guardian and Trustee) v. Unity Church of Truth, [1998] O.J. No. 1291, 59 O.T.C. 120, 78 A.C.W.S. (3d) 638 (Gen. Div.); Ruffolo v. Sun Life Assurance Co. of Canada (2009), 95 O.R. (3d) 709, [2009] O.J. No. 1322, 2009 ONCA 274, 68 C.P.C. (6th) 322, 74 C.C.P.B. 191, 247 O.A.C. 209, 73 C.C.L.I. (4th) 185, 177 A.C.W.S. (3d) 538, affg (2008), 2008 5962 (ON SC), 90 O.R. (3d) 59, [2008] O.J. No. 599, 58 C.C.L.I. (4th) 258, 67 C.C.P.B. 268, 55 C.P.C. (6th) 173, 169 A.C.W.S. (3d) 972 (S.C.J.); Schoen (Re), [1987] O.J. No. 2335, 19 C.P.C. (2d) 110, 1987 CarswellOnt 433 (Dist. Ct.); Stahl v. Ontario SPCA (1989), 1989 4235 (ON SC), 70 O.R. (2d) 355, [1989] O.J. No. 1794, 35 E.T.R. 234, 17 A.C.W.S. (3d) 832 (Dist. Ct.); Weinberg v. Grey-Bruce Humane Society, 1990 CarswellOnt 5730

Statutes referred to

Charities Accounting Act, R.S.O. 1990, c. C.10, s. 6 [as am.], (1), (3) [as am.], (5), (6) [as am.]

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 57.01(1), (0.a), (0.b)

APPLICATION for an order for the investigation of a charity.

Ronald Lachmansingh, for applicants.

Thomas Curry, Rebecca Jones and Kelly Hayden, for respondents.

[1] E.M. MORGAN J.: — The fundamental question raised by this application is the extent of a donor's right of input into the direction taken by a health and research centre that is the beneficiary of donated funds. Although couched as a demand for financial transparency, the heart of the issue is whether a donor is like [page208] an investor in a business who can require detailed reportage and can expect to be consulted on the implementation of a funded program.

I. Request for an Investigation

[2] The Faas Foundation ("Faas") is a philanthropic organization directed by its principal, Andrew Faas. It is an important donor to the Centre for Addiction and Mental Health, a specialized hospital in Toronto, and its fundraising arm, the Centre for Addiction and Mental Health Foundation (together, "CAMH").

[3] In 2014, Faas signed a donor investment agreement ("DIA") to donate $1 million to CAMH toward the creation of Well@Work, a workplace mental health program. The plan was for Well@Work to be developed over a three-year period, with Faas' donation being paid in three equal instalments. In January 2015, Faas paid the first of the three instalments. That was the only instalment payment Faas ever made.

[4] In December 2015, nearly one year into the development of the Well@Work program, Mr. Faas became disenchanted with the direction of the program and failed to make the second instalment payment. Instead, Mr. Faas asked CAMH to submit a new grant proposal setting out new terms which more closely conformed to his own vision for the program. On May 24, 2016, Faas demanded that CAMH refund the first instalment of the donation. CAMH did not do so, indicating to Mr. Faas that all of the money had been spent on developing the program.

[5] Faas has not sued for its money back. Rather, as a result of the frustration with the way that Well@Work was being developed, it brings this application under s. 6 of the Charities Accounting Act, R.S.O. 1990, c. C.10 (the "Act"). That section gives the court discretion to issue an order directing the Public Guardian and Trustee ("PGT") to initiate an investigation into how a charity that has received a donation -- here, CAMH -- has used the funds donated to it -- here, by Faas.

[6] The pertinent sections of the Act set out the basis on which the PGT might intervene in order to determine how the first instalment of the Faas donation was spent by CAMH. Section 6(1), (3) and (5) of the Act provide that:

6(1) Any person may complain as to the manner in which a person or organization has solicited or procured funds by way of contribution or gift from the public for any purpose, or as to the manner in which any such funds have been dealt with or disposed of.

(3) Wherever the judge is of opinion that the public interest can be served by an investigation of the matter complained of, he or she may make an order [page209] directing the Public Guardian and Trustee to make such investigation as the Public Guardian and Trustee considers proper in the circumstances.

(5) The cost of any such investigation, when approved by the Attorney General, forms part of the expenses of the administration of justice in Ontario.

[7] Faas seeks an investigation by the PGT into the financial management by CAMH with respect to the gifted funds. Initially, Faas also sought answers to specific questions that arise from the concerns about the Well@Work program that have been raised by Mr. Faas in his extensive dealings with CAMH personnel.

[8] Faas' counsel has now indicated that answers to the specific questions raised by Mr. Faas will not be pursued as part of the remedy sought here. Nevertheless, the questions inform the genesis of the controversy and are revealing of the nature of Mr. Faas' dissatisfaction with CAMH's design and implementation of the program.

[9] The questions raised by Mr. Faas, and that form the heart of the concerns at issue here, cover four distinct areas: (a) inquiries about whether or not CAMH should have adopted Mr. Faas' particular view of the Mental Health Commission of Canada's National Standard for Psychological Health & Safety in the Workplace (the "National Standard"); (b) whether the Well@Work program should be integrated into a collaborative program with Mental Health America ("MHA") and the Yale Centre for Emotional Intelligence ("Yale") -- two U.S.-based institutions that have received donations from Faas; (c) whether the timeline for the program is unduly short (three years instead of Mr. Faas' desired five years); and (d) whether Faas is entitled to disclosure of CAMH employee salaries and other internal accounting matters that CAMH considers confidential.

[10] The legal issue in this application -- the threshold definition raised by s. 6(3) of the Act -- is whether the public interest will be served by an investigation by the PGT into the manner in which CAMH dealt with and disposed of the instalment payment that Faas made in January 2015.

II. The Proposal and the Donor Investment Agreement

[11] CAMH is the largest mental health and addiction teaching hospital in Canada. It is also a world-class research centre in those subject matters. The hospital combines a number of related endeavors, including clinical care, education, health policy, research and health promotion, all aimed at patients and members of the public affected by mental illness and addiction. [page210]

[12] On June 27, 2014, CAMH presented Mr. Faas with a written proposal for what was to be called the Well@Work program (the "proposal"). As explained in the proposal, the idea of Well@Work was to "empower workers and help employers create psychologically safe and healthy environments". This program will become Canada's resource for specialized evidence-based information, tools and services for workplace mental health".

[13] The proposal further elaborated that in establishing Well@Work, "CAMH will leverage its extensive resources and expertise in education, organizational development, clinical care and research." It also indicated that the development of the central parts of the Well@Work program would benefit from and be coordinated with CAMH's implementation of the National Standard.

[14] In addition to an overall description of the program, the proposal contained a schedule of objectives for each of the three years of the Faas donation. The schedule provided that during the first year -- i.e., calendar year 2015 -- CAMH would put together a team composed of its professional staff that would do the necessary background work. The priorities for the first year were particularized as including (a) recruitment of essential personnel; (b) consultation with stakeholders with respect to the design and content of the program; (c) developing a method for evaluating the program; (d) creating preliminary design and structure for CAMH's online portal called Portico; (e) carrying out a needs assessment to identify information or materials to be acquired for the program; and (f) formulating a strategy for the development of teaching materials and resources.

[15] The launch of the online resources and other aspects of the Well@Work program, and the implementation of leadership presentations and hands-on training sessions, were specified in the proposal as taking place in the second and third years of the program. Accordingly, the proposal made it clear that the major expense for the first year would be the staff salaries necessary for working up the program so that it could be put into effect during the following two years.

[16] Mr. Faas conceded in his testimony that he was pleased with the proposal. On July 18, 2014, he signed the DIA committing Faas to a $1 million gift, to be applied by CAMH to its ongoing $200 million breakthrough campaign. The gift was to be paid in three instalments of $333,333 each.

[17] On October 23, 2014, Faas issued a press release announcing that it had made a $1 million donation to CAMH. The stated purpose of the donation was to help CAMH develop educational programming geared toward making psychologically healthier [page211] workplaces. CAMH received the first instalment of the donation on January 9, 2015.

[18] As indicated, having accepted the proposal, Faas and CAMH entered into a DIA which provided that the $1 million donation would be directed toward the design and implementation of the Well@Work program. The four main program elements, which were also set out in the proposal, are described in the DIA as containing a number of more detailed items, including (a) an online resource connecting workers, employers and policy-makers with up-to-date information on mental health in the workplace; (b) so-called "transformational leadership", or educational presentations at the senior level dealing with workplace mental health strategies; (c) simulation-based training programs conducted on site at the workplace aimed at gaining the skills required for resolving mental health issues as they arise; and (d) continuous evaluation of strategies and content in an effort to strengthen the outcome of the program.

[19] In terms of Mr. Faas' own participation, his involvement with the Well@Work program was meant to be relatively limited. The DIA does not give him any right of access to CAMH's internal information or work product, any right of oversight of the program, or any involvement in designing or putting the program into action. Generally speaking, donors support, but do not direct, the work of CAMH. The DIA does, however, call for CAMH to report to him on an annual basis.

[20] The DIA provided Faas with recognition for the gift, and stipulated that the training rooms in CAMH's new facility were to be christened "The Faas Foundation Learning Centre". It further promised that Mr. Faas would be acknowledged on the Visionary Donor Wall in the lobby of the new CAMH building.

[21] As for the content of CAMH's reporting to Faas, the DIA states:

(a) CAMH Foundation is committed to accurate, transparent and meaningful reporting to donors on the impact of the investments entrusted to us. At minimum, CAMH Foundation will report annually in writing on progress of the Well@Work program;

(b) management of donated funds and related disbursements will adhere to CAMH Foundation's policies related to giving, disbursements and investments and as approved by the CAMH Foundation board of directors.

[22] It is axiomatic for CAMH that funds raised for it or donated to it must be directed to its objects. Those objects are: [page212]

To establish, equip, staff, maintain and operate on one or more sites a hospital or hospitals or related health facilities for the accommodation, care and treatment of any person or persons, conduct programs of treatment, education and research in connection with mental health and addictions, and create a provincial organization dedicated to excellence in clinical care, community health, education and research.

[23] Efforts toward creating Well@Work commenced shortly after the signing of the DIA. Those efforts continued through the entirety of 2015 and through the first half of 2016. The program's ongoing progress was summarized in formal reports, one of which -- the stewardship report -- was provided to Mr. Faas in December 2015, while the another was contained in a Powerpoint presentation to Mr. Faas in May 2016. In addition to these reports, CAMH personnel provided Faas with shorter written updates in March 2016 and in e-mail correspondence in May 2016. This written reportage was over and above the informal reporting Mr. Faas received by e-mail, telephone call and in person throughout the life of the program.

[24] Counsel for CAMH has summarized the specific accomplishments of the Well@Work program in its first year of existence, as outlined in the reports received by Faas, as follows:

(a) assembly of team members and consultation with key industry leads to inform the positioning and focus of the program;

(b) completion of an environmental scan to examine current programming and consultative services on the market targeting workplace mental health, highlighting opportunities for the program;

(c) definition of strategy for key content deliverables, including online content, pilot workshops for executive leaders;

(d) initial design and structure for online content;

(e) pilot of content of the leadership and education content internally at CAMH;

(f) development of pilot site on the Portico network;

(g) review and design of mobile tools for employees; and

(h) refinement of evaluative framework and guiding principles.

[25] These items generally conform to what the stewardship report identified as the "deliverables" for the first year of the program. The planned second and third year "deliverables" were also on schedule, as detailed for Mr. Faas in the Powerpoint presentation he received on May 2, 2016. This presentation also included a summary of financial information about the program, [page213] and it identified expenditures of $331,000 by CAMH up until March 31, 2016. Furthermore, it noted in the "Milestones to Come" slide that it was poised at that point to accomplish all of the work planned for the second and third years of the program.

III. The Faas Complaints

[26] All parties concede that the first year of the Well@Work program was a development year and a prelude to full implementation of the program. Toward the end of the first year, Mr. Faas began expressing dissatisfaction with the direction that CAMH was taking. The e-mail and other communications in the record before me make the existence of these concerns abundantly clear. Counsel for Faas characterizes Mr. Faas' inquiries as part of the donor's legitimate desire for transparency in the use of gifted funds. Counsel for CAMH, on the other hand, submits that Faas' concerns went well beyond financial transparency, and were in essence aimed at questioning the very vision outlined in the proposal and embodied in the DIA.

[27] As indicated above, responses to these specific complaints are no longer being sought as part of the remedy in this application, but they do shed light on Faas' dissatisfaction with CAMH. They also help distinguish the public interest in ensuring that a charitable gift is managed appropriately from the donor's private interest in seeing their own desires carried out. It is therefore worthwhile to briefly review the Faas complaints not only to better understand the nature of the donor's concerns with CAMH's handling of funds, but to help focus on the scope of the public interest which an intervention by the PGT under s. 6 of the Act is designed to protect.

(a) Coordination with the MHA and Yale programs

[28] About a month after making the first installment payment, Faas apparently made donations to two other well-known mental health institutions, MHA and Yale, both of which are located in the United States. The affidavit evidence provided by CAMH's vice-president for philanthropy, Dr. Susan Mullen, shows that beginning in February 2015, Mr. Faas expressed an expectation that CAMH would engage with MHA, and that somewhat later that year, in December 2015, he expressed an expectation that CAMH would form a "partnership" and "collaborate" with MHA and Yale. Dr. Mullen also indicated that in an August 2015 telephone call, Mr. Faas and his public relations team began describing his programs with CAMH, MHA and Yale in collective terms as his "initiative" and "coalition" aimed at establishing psychologically beneficial workplaces. In cross-examination, Mr. Faas confirmed that this [page214] message was conveyed to CAMH as part of the Faas public relations strategy.

[29] The MHA and Yale projects were not previously part of any CAMH program, and CAMH was not involved with MHA or Yale. The Well@Work program, as described in the proposal and DIA, made no mention of partnering with any other institutions' projects.

[30] CAMH Foundation's CEO, Darrell Gregerson, deposed in her affidavit that not only did the Well@Work project pre-date the American projects which Faas had apparently funded, but that it was developed to fulfill the specific, CAMH-related purposes as set out in the proposal and DIA. Mr. Faas was of the view that the various projects would be "reinventing the wheel" by replicating each other's work -- specifically, by conducting multiple surveys of workplace bullying and wellness issues. However, Dr. David Wiljer, CAMH's appointed head of the Well@Work project, deposed in response to this concern that Mr. Faas was confusing the various programs, and that CAMH was not proposing to conduct such a survey. As a more general matter, Dr. Mullen deposed that she explained to Mr. Faas that the differences in health care between the two countries are significant, and that public funding of health care in Canada would make it impossible for a Canada-based institution like CAMH to service programs located in the United States.

[31] The evidence of all of the CAMH witnesses is that despite these explanations, Mr. Faas continued to push for collaborations he felt CAMH should be making with the U.S.-based institutions. It was Mr. Faas' view that the three donations formed part of one integrated "Initiative". By contrast, it was the view of CAMH's representatives that this did not conform with the agreed-upon relationship between Faas and CAMH, that such collaboration had never been part of the proposal or the DIA, and that in any case was a product of Mr. Faas' personal vision and as such was not reflective of the proper relationship between a donor and CAMH.

(b) Implementation of the National Standard

[32] Toward the end of 2015, Mr. Faas began to express concern in his dealings with CAMH staff about the central role of the National Standard in the Well@Work program. As Ms. Gregerson described it in her affidavit, the National Standard is a set of guidelines aimed at giving direction to organizations in Canada attempting to create psychologically healthy places of work. It was initially published in January 2013 by the Mental Health Commission of Canada, a federally funded agency whose mandate [page215] is to bring together experts and organizational leaders in an effort to improve the mental health system and the attitude of the Canadian public toward mental health concerns.

[33] Mr. Faas indicated in his affidavit that he was concerned that the National Standard is not based on expert opinion or scientific evidence. In response, Dr. Wiljer deposed that it is indeed an evidence-based set of guidelines that has put together insights from a number of different scientific disciplines. Moreover, Mr. Faas deposed that the Well@Work program was, to his surprise and disagreement, being developed "as a tool to implement the National Standard".

[34] Inclusion of the National Standard in the Well@Work program should not have taken Mr. Faas by surprise. It is clear from both the CAMH evidence and from Mr. Faas' cross-examination that the National Standard was always intended to play a role in the development of the Well@Work. The National Standard was discussed with Mr. Faas on numerous occasions in the period prior to Faas' ultimate commitment of a donation, and it is specifically referenced in the proposal. As Dr. Wiljer explained it, the program was to be informed by the content of the National Standard, but was not designed simply as a means of implementing the National Standard.

[35] Mr. Faas never came back to accepting the presence of the National Standard in the Well@Work program. It was his view that the use of the guidelines made the program "much too academic", which ultimately led him to dismiss the National Standard as being of any use to the program. That said, it was Dr. Mullen's evidence that all parties had from the outset envisioned that the program would contain elements of the National Standard guidelines, and, in any case, it was the CAMH staff's overall view that Mr. Faas was not qualified to direct them on the issue one way or another. Indeed, Mr. Faas himself indicated in cross-examination that he had only a limited understanding of the National Standard, but that he nevertheless fully expected CAMH to adopt his negative assessment of it and to decrease or eliminate its prominent role in the program.

(c) The shortened timeline

[36] From the beginning of December 2015, and increasingly through the first part of 2016 until rejecting the program completely, Mr. Faas expressed the view that Well@Work should have a five-year rather than a three-year lifespan. Dr. Mullen deposed that he simply refused to accept CAMH's judgment about the appropriate duration of the program. [page216]

[37] Both the proposal and the DIA make it expressly clear that Well@Work was always conceived of as a program that would run for a period of three years. In making its donation, Faas had agreed to this timeline. Dr. Wiljer deposed that CAMH had planned the program on a three-year basis in order to best ensure that its momentum would not be lost. For his part, Mr. Faas appears to have wanted it to last longer so that it would be developed in a more fulsome way and have what he viewed as a more effective impact.

(d) The demand for information

[38] In December 2015, following his review of the stewardship report, Mr. Faas sent an e-mail to Ms. Gregerson indicating that "based on the report it is difficult for me to understand in more granular detail the amount spent". This request for more detailed disclosure by CAMH was emphasized by Faas' counsel in oral argument and, in fact, was of central importance to Mr. Faas personally. In cross-examination, Mr. Faas agreed with counsel for CAMH that the fact that he had not been provided with a level of financial disclosure to his satisfaction -- the "granular detail" that he sought -- was the reason he withheld the second instalment of his donation.

[39] As already indicated, the DIA provided that Faas would receive a report on the program on an annual basis. Despite this more limited reporting requirement, the record shows that information on how the funds were spent was provided to Mr. Faas by e-mail in January 2016, on May 11, 2016 and on May 18, 2018. In addition, on May 2, 2016 Mr. Faas was given a Powerpoint presentation in response to his desire for more information. Moreover, additional information was given to Faas' counsel on July 8, 2017 when he was provided with a Well@Work funding summary.

[40] In its funding summary, CAMH identified the "FTEs" or "full-time equivalents" that CAMH used to calculate the cost of the program. As explained by Latika Nirula, CAMH's co-leader for Well@Work, CAMH's standard practice is to identify the number of full-time employee equivalents it will require to complete a given project. This, in turn, allows it to utilize its pool of expertise and its resources in staffing a project in a way that is in keeping with the appropriate amount of money allocated to fund the work in the given period. Dr. Nirula also deposed that CAMH hired one employee specifically under contract for Well@Work and that, as explained in the funding summary, CAMH made an "in-kind" contribution to the program in the sense that the time commitments of a number of senior participants in Well@Work were not charged to the program. [page217]

[41] The record contains correspondence from Mr. Faas to CAMH dated June 29, 2016 in which he indicated that he was not satisfied with the level of financial disclosure contained in the various explanations he had been given. His written demand for further detailed disclosure called for what might be labeled a very "granular" level of detail, including (a) the identities, positions and salaries, hours worked, and description of work of all staff working on Well@Work; (b) a spreadsheet accounting for all expenses incurred in respect of CAMH's in-kind contributions to Well@Work; (c) the name of each organization that CAMH interviewed in respect of workplace mental health, the identity of each interviewer and interviewee, the time of each interview, and the information obtained in each interview; and (d) the identity of all suppliers of materials and services to the program, an identification of what they supplied, and an accounting of the amounts paid to each supplier.

[42] It is Faas' position that all of this information is standard disclosure to which a party that invests money in a project is entitled. It is CAMH's position that all of this information is beyond the disclosure to which a donor to a charitable project is entitled, and that it reflects a substantial departure from the proposal and the DIA.

IV. The Demand for a New Proposal

[43] Mr. Faas testified that he ultimately came to request an altogether new proposal from CAMH because he "had evaluated that they were not going to be able to deliver on the three-year plan". At the hearing, counsel for Faas contended that this request for a new proposal was merely a suggestion by Mr. Faas, but it appears to have been far more than that. In cross-examination, Mr. Faas agreed that he fully expected a new proposal and funding agreement to be produced by CAMH.

[44] As the CAMH affiants describe it, Mr. Faas' concern for a new proposal was driven by what he referred to as the need "to find a fit with CAMH as part of this important collaboration with our other partners", and to put in place a five-year rather than a three-year timeline. In fact, it was Mr. Faas' sworn view that he felt it necessary to change the basis of the Faas donation in order to give him "confidence in [CAMH's] ability to deliver".

[45] When CAMH did not submit a new grant proposal as requested, Faas confirmed that it would not make the two further instalments as set out in the DIA. On May 24, 2016, Faas withdrew from the Well@Work program. At that time, Mr. Faas requested that CAMH forward any moneys not yet spent from the initial instalment to another Canadian agency. However, Faas had already been advised in the May 2, 2016 Powerpoint presentation that all [page218] of those funds, and more, had been spent on the first year's development of the program. This, in turn, prompted communication by Mr. Faas on June 1, 2016 advising that legal action would proceed if the entire first instalment of $330,000 was not refunded by CAMH.

[46] On June 28, 2016, Mr. Faas' publicist, Patrick Mundt, confirmed in a meeting with CAMH staff that Faas was terminating its donation. The next day, Faas issued a press release announcing the withdrawal of the donation "due to CAMH's inability to demonstrate that the first instalment of the funds was applied towards The Faas Foundation's objectives".

[47] It is, of course, CAMH's position that it was under no obligation to produce a new proposal more in keeping with Mr. Faas' changed vision of the program. Further, as counsel for CAMH points out, the Faas donation was a philanthropic gift, not a business investment. CAMH urges that it is its duty to ensure that the charitable gifts it receives are employed in accordance with its own charitable objectives, not in accordance with its donor's objectives.

[48] The record of correspondence between the parties shows that CAMH did make efforts to accommodate Mr. Faas' changing vision for the program. Indeed, counsel for Faas submitted at the hearing that CAMH appears to repeatedly have agreed with Mr. Faas that changes would be made. However, the changes that CAMH was willing to implement were never sufficient to satisfy Mr. Faas' desires, as they remained within the original goals of Well@Work and did not deviate from the original proposal and the binding DIA. What the evidence shows is that over the course of late 2015 and the first half of 2016, CAMH struggled to keep its donor happy. At the same time, Mr. Faas' vision was in the process of transforming as Faas entered into new partnership arrangements with other institutions.

[49] In addition to the changed vision, it also became clear to CAMH that Mr. Faas was not satisfied with the level of publicity CAMH was giving to the Faas initiative. Thus, for example, he was disappointed that CAMH's president, Dr. Catherine Zahn, had failed to mention Well@Work in a speech she gave at the Economic Club of Canada. CAMH staff attempted to console him by explaining that no one specific program was singled out by Dr. Zahn in her presentation, but he was inconsolable on this point. Further, Dr. Wiljer deposed that in May 2016, Mr. Faas expressed dismay that CAMH had never publicized an earlier press release by Faas announcing the combined work of CAMH, MHA and Yale. [page219]

V. Alleged Inconsistencies in CAMH's Evidence

[50] Virtually the entire oral argument by Faas' counsel was devoted to identifying supposed inconsistencies in the evidence given by CAMH's witnesses. This effort to point out inconsistencies also gets much play in Faas' counsel's factum. With all due respect, none of this is meaningful. I will summarize the gist of these arguments, but there is no need to go into it here in all of its "granular detail", to use Mr. Faas' phrase.

[51] Exposing the "inconsistencies", such as they are, does little more than prove that the CAMH witnesses gave authentic answers and did not collude with each other. If, for example, one CAMH staff person identifies a priority area in the breakthrough campaign into which Well@Work logically fit, and another CAMH staff person identifies another logical priority area in the same campaign, that is not an inconsistency -- or, at least, it is not one that has any significance under the circumstances. CAMH's personnel are all highly trained people, each with their own thoughts and perspective on the program. A public health program like Well@Work has multiple aspects and can be characterized from multiple points of view.

[52] To take another example of an "inconsistency" impugned by Fass' counsel, there is nothing untoward about CAMH personnel having different views of why Faas was not given something that was in any case not within its rights to have. As an illustration, Mr. Faas complains of not having been invited to an explanatory session dealing with the National Standard. Three CAMH witness -- Dr. Mullin, Dr. Nirula and Dr. Wiljer -- each provided different recollections of why he was not invited. Faas' counsel sees this is a "gotcha" moment. However, it is entirely credible that there were multiple reasons for not inviting a person to a session to which he had no right to be invited. Mr. Faas was the principal of a donor, and in that capacity was entitled to a yearly progress report; he was not part of the team engaged in carrying out the program itself and attending workday information sessions on imparting its content.

[53] Likewise, Faas was not entitled to complete detailed reporting on every step of the program's progress, nor was he entitled to select the personnel to work on the program or determine what credentials they needed. As an example, Mr. Fass complained that he was not given the particulars of all 300 leaders from public and private sectors who participated in education and awareness sessions in the development stage of Well@Work so that he could potentially contact them to more fully evaluate the program for himself. Similarly, Mr. Faas complained about the credentials of [page220] a researcher with both a MSW and a Ph.D. on the grounds that he did not appear to have expertise in "the study of psychological well-being in the workplace". Mr. Faas has neither the legal entitlement nor the academic credentials to make such assessments and to have the kind of input that would require such detailed reporting.

VI. The [Charities Accounting Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c10/latest/rso-1990-c-c10.html)

[54] As indicated, s. 6(3) of the Act provides the court with the discretion to make an order that the PGT investigate a registered charity where it is "of the opinion that the public interest can be served by an investigation of the matter complained of". The phrase "public interest", while crucial to the analysis, is not defined in the section or more generally in the Act.

[55] It seems evident that the statute itself must provide the context for interpretation. As the Court of Appeal has put it, "[t]he proper approach to the application of [the Act] is that it be seen . . . through the lens of the goals of the Act in the factual context of the case": Ruffolo v. Sun Life Assurance Co. of Canada (2009), 95 O.R. (3d) 709, [2009] O.J. No. 1322, 2009 ONCA 274, at para. 33. To put it another way, "[t]he meaning of these words ["public interest"] neither precise nor unambiguous in themselves must be construed in the context of the statute in which they are found": Weinberg v. Grey-Bruce Humane Society, 1990 CarswellOnt 5730, at para. 6.

[56] Counsel for CAMH points out that the Act is over 100 years old. The courts have historically had inherent jurisdiction to supervise charities, and this has now been delegated to the PGT. Counsel for CAMH submits that in interpreting the "public interest" criterion in s. 6(3), there are two further subsections to be kept in mind. Section 6(5), as set out earlier in these reasons, makes it clear that an investigation by the PGT will be at the public's expense. This, of course, emphasizes that the public component of "public interest" is to be taken very seriously. In evaluating the public interest criterion, one must keep in mind that "[a] matter of public interest is something more than a matter that might interest the public": Ruffolo v. Sun Life (2008), 2008 5962 (ON SC), 90 O.R. (3d) 59, [2008] O.J. No. 599 (S.C.J.), at para. 72.

[57] This point is augmented by s. 6(6), which provides: "As soon as the Public Guardian and Trustee has completed the investigation, he or she shall report in writing thereon to the Attorney General and to the judge who ordered the investigation." The reporting is strictly to public officials; there is no reporting by the PGT to the donor of the charitable gift.

[58] In this respect, it is noteworthy that the PGT's mandate is a narrow one, focused on financial management, and that even [page221] the court (let alone the donor) cannot give the PGT directions as to how to conduct the investigation or what specific questions need to be answered: Stahl v. Ontario SPCA (1989), 1989 4235 (ON SC), 70 O.R. (2d) 355, [1989] O.J. No. 1794 (Dist. Ct.). Thus, the list of specific requests submitted by Faas is irrelevant; the investigation under s. 6 of the Act is not a mechanism by which a donor can gain information about the recipient of its funds.

[59] In general, "[t]he Court must remain mindful that an investigation under the Act is disruptive and costly": Boldrini v. Hamilton Naturalists' Club, [1995] O.J. No. 3321, 1995 CarswellOnt 3756 (Gen. Div.), at para. 4. Accordingly, "inquiries under the Charities Accounting Act should not be initiated lightly. Charities are entitled to a presumption that they are complying with the law and they should not quickly be subjected to the disruption and expense of such an inquiry": Stahl, supra, at para. 11. The PGT's power to investigate is to be invoked on reasonable and probable grounds and not on the basis of conjecture, surmise, or groundless accusations (Boldrini, supra, at para. 3), nor does the PGT have jurisdiction to investigate "administrative wrongdoings" as opposed to financial matters: Schoen (Re), [1987] O.J. No. 2335, 1987 CarswellOnt 433 (Dist. Ct.), at para. 8.

[60] Finally, this court has made it clear that, ". . . intervention [under the Act] must not be simply for the sake of meddling. It is to be invoked only where there is real mischief": Bloorview Childrens Hospital Foundation v. Bloorview MacMillan Centre, 2002 49641 (ON SC), [2002] O.J. No. 521, 22 B.L.R. (3d) 182 (S.C.J.), at para. 18. That mischief, again, is mischief to the public at large, and cannot be a personality-driven dispute: Ontario (Public Guardian and Trustee) v. Unity Church of Truth, [1998] O.J. No. 1291, 59 O.T.C. 120 (Gen. Div.). The Act is explicit that the granting of an order such as that sought by Faas is governed by the public interest being served, and not by the interest of the complainant: Boldrini, supra, at para. 5.

[61] Faas' application falls into the very category that the cases have excluded from the PGT's jurisdiction. The complaint does not assert that CAMH has failed to use the Faas donation for CAMH's own charitable objects. Instead, it questions whether the donation has been used in a way that conforms with Mr. Faas' personal vision of the funded program. That is a quintessential private interest, not a public one. Compliance with the National Standard, co-operation with U.S.-based recipients of Faas donations, the shorter or longer time frame of the Well@Work program, etc. do not raise any question as to whether the charitable objects of CAMH are being pursued. [page222]

[62] As for Faas' desire for an accounting in order to ensure that the funds have been properly spent, the application is based on conjecture. No actual mischief has been identified, and no misuse of funds is apparent from the record. According to all of the relevant CAMH reports, the preparatory work was accomplished during the first year of the Well@Work program; the major expenses involved in those preparations were the salaries of the CAMH staff dedicated to the program.

[63] Absent evidence of financial misdeeds, Faas has no particular right to a detailed accounting of CAMH's program and its use of funds. Counsel for Faas argues that he does not know if there was mismanagement as it is not apparent what CAMH did with the first instalment of funds. He contends that Faas needs to invoke the PGT's authority to investigate in order to get to the bottom of a question to which Faas is incapable of obtaining the answer.

[64] The problem, however, is that the first instalment was, and was always intended to be, dedicated to preparatory work. Since the preparatory work was done in the first year, but the funding was prematurely cancelled in the second year, the implementation that was to follow all of that preparatory work never took place. Only the invisible part of the program had the chance to be accomplished. It is the non-payment of the second and third instalments that prevented the fruits of CAMH's initial year's labour from being visible.

[65] As indicated at the outset, the application formally asks for an investigation by the PGT on financial grounds. But the record of Mr. Faas' dealings with CAMH reveals that the issue between Faas as giver and CAMH as recipient of the donated funds was not really a financial one. Rather, it was one of vision and direction of the funded program.

[66] When it became obvious that Mr. Faas' desire for a redesigned program was beyond the donor's entitlement under the original proposal and the DIA, the application was strategically fashioned as a demand for a financial investigation. That might have been a good legal strategy. The only thing missing is any evidence of financial mismanagement.

[67] There are no grounds here on which to order an investigation by the PGT under s. 6 of the Act. Such an investigation would be costly, disruptive to an important health care institution, and would serve no identifiable public interest.

VII. Disposition

[68] The application is dismissed.

[69] Counsel for Faas submits that the application was made in the interest of public accountability, and so no costs should be [page223] awarded against his client who had nothing to gain. Counsel for CAMH submits that these were very serious allegations made against a renowned health care facility that is concerned for its reputation, and that a costs award should reflect its vindication.

[70] I see no reason to deviate from the ordinary custom in Ontario that the unsuccessful party pay the costs of the successful party on a partial indemnity scale. Faas' application has specifically been found not to have been in the public interest, and so there is nothing that particularly distinguishes this case from every other failed court application. At the same time, Faas was entitled to bring the application and deserved its day in court; while I did not agree with Faas' arguments, nothing that Faas or its counsel did prolonged the case or made it more expensive than it needed to be. The ordinary partial indemnity scale will therefore be the appropriate one to use.

[71] Faas' counsel submitted a bill of costs indicating that it would seek roughly $130,000, all inclusive, if it were to be the successful party. CAMH's counsel submitted a bill of costs that is roughly $30,000 higher than that.

[72] The discretion to fix costs under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 is generally to be used in accordance with the criteria set out in rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Those criteria include the principle of indemnity for the successful party, rule 57.01(1)(0.a), tempered by "the amount of costs that an unsuccessful party could reasonably expect to pay": rule 57.01(1)(0.b). Since Faas was going to claim about $30,000 less than CAMH claimed, it could reasonably expect to have to pay about $30,000 less than CAMH claimed.

[73] Faas shall pay CAMH costs in the amount of $130,000, inclusive of all fees, disbursements and HST.

Application dismissed.

End of Document