



COURT OF APPEAL FOR ONTARIO

CITATION: Faas v. Centre for Addiction and Mental Health
    Foundation, 2019 ONCA 192

DATE: 20190311

DOCKET: C65576

Feldman, Roberts and Trotter JJ.A.

BETWEEN

Andrew Faas and The Faas Foundation

Applicants (Appellants)

and

Centre for Addiction and Mental Health Foundation
    and Centre for Addiction and Mental Health

Respondents (Respondents)

Ronald Lachmansingh and Tyler Murray, for the appellants

Rebecca Jones and Kelly Hayden, for the respondents

Heard: March 6, 2019

On appeal from the order of Justice Edward M. Morgan of
    the Superior Court of Justice, dated June 6, 2018, with reasons reported at
    2018 ONSC 3386.

REASONS FOR DECISION

[1]

The appellants agreed to make a significant charitable donation of one
    million dollars to the respondents  a mental health hospital and its
    fundraising arm (collectively CAMH)  for the express purpose of creating
    Well@Work, a workplace mental health program. The donation and the project were
    to take place over a three-year period. The parties entered a written Donor
    Investment Agreement, which set out the terms of the donation including provision
    for an annual status report to the donor.

[2]

The appellant, Mr. Faas, was not satisfied with the progress of the
    program, the extent of reporting, or the expenditure of the first one-third of
    the donation during the first year. He requested changes to the content of what
    was being developed as well as an accounting of CAMHs expenditures.
    Eventually, the parties reached an impasse and the appellant brought an
    application under s. 6 of the
Charities Accounting Act
, R.S.O. 1990,
    c. C.10. Subsections 6(1), (3) and (5) of that Act provide:

(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 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.

[3]

The appellants application was based on the submission that it was in
    the public interest for the Public Guardian and Trustee (the PGT) to
    investigate whether CAMH used the appellants donation for the designated purpose
    that was agreed to in the Donor Investment Agreement. There was no suggestion
    that the respondent used the funds for purposes outside its own charitable
    objects.

[4]

The motion judge found that there were no grounds to order an
    investigation by the PGT, and that making such an order would serve no
    identifiable public interest: para. 67. He made the following findings, at
    paras 62-64 of his reasons:

[
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 CAMHs 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 PGTs 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 CAMHs initial years labour
    from being visible.

[5]

We see no error in these findings. The appellants argue that they were not
    able to show that there was mismanagement because the respondents refused to
    provide various documents and salary records that were requested on
    cross-examination of CAMHs witnesses for the purpose of the motion. However,
    the motion judge was satisfied on the record, based on the evidence from the
    respondents, that no mismanagement had occurred and that the funds were
    properly spent on the designated program. He was entitled to accept that
    evidence.

[6]

The appeal is therefore dismissed.

K.
    Feldman J.A.

L.B.
    Roberts J.A.

G.T.
    Trotter J.A.


