Toni Collier v. Alison Freeland and the Royal Ottawa Health Care Group, 2011 HRTO 399

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Toni Collier

Applicant

-and-

Alison Freeland and the Royal Ottawa Health Care Group

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: February 24, 2011

Citation: 2011 HRTO 399

Indexed as: Collier v. Freeland

1This Interim Decision is about whether the Tribunal should hold this matter in abeyance until a litigation guardian is appointed for the applicant.

2The applicant filed this Application on October 15, 2009, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination on the basis of disability, creed, sex and record of offences in goods, services and facilities and employment.

3The Application was served on the respondents and Responses have been filed with the Tribunal. In addition, the respondents have each brought a Request for Order During Proceedings ("Request") to hold the proceeding in abeyance until such time as a litigation guardian is appointed for the applicant. The applicant has expressed her opposition to this Request in a written response.

4By a Case Assessment Direction, the Tribunal directed the parties to provide further information and submissions concerning the applicant's capacity. It received further submissions from counsel for Dr. Freeland, on which the other respondent indicated it was relying, but no submissions from the applicant. According to the respondents, the applicant has been out of Ontario during this period.

5In order to deal with the Request, certain background facts are required. The applicant has been a patient at two of the facilities operated by the organizational respondent. Dr. Freeland has periodically been the applicant's treating physician, although her Application refers to other doctors under whose care she has also been. The Application contains a number of allegations (not all of which are not entirely clear), the gist of which appears to be that the applicant has been required to take medication against her will while under the care of the respondents. She states that this constitutes discrimination on the basis of creed.

6Dr. Freeland submits that the applicant has been found incapable to consent to medical treatment, and the Public Guardian and Trustee ("PGT") has been her substitute decision-maker. The applicant has apparently challenged the findings of incapacity on several occasions before the Consent and Capacity Board, which has upheld the findings. In answer to a question posed by the Tribunal, Dr. Freeland said that the most recent decision of the Consent and Capacity Board was made in January 2010, and that "this decision remains in force."

DECISION AND ANALYSIS

7As noted by this Tribunal at para. 7 in Romanchook v. Garda Ontario, 2009 HRTO 1077, "[t]he law presumes that adults have capacity." This presumption can be rebutted by evidence of incapacity, or by findings under particular legislative enactments. For example, under the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (the "SDA"), a person will be found incapable of managing his or her personal care under s. 45:

A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

8The SDA contains a similar provision with respect to incapacity in respect of property (see s. 6); however, since this case is one in which the issue relates to health care, this decision will focus on the provisions concerning personal care.

9A person holding a valid power of attorney for personal care can make decisions in respect of care for persons found to be incapable under s. 45. Where there is no valid power of attorney, the court may appoint a "guardian of the person" upon application to the court (s. 55). In appointing a guardian, the court must make a finding (or partial finding) of incapacity with respect to personal care. The PGT cannot be appointed as guardian unless the PGT consents and there is no other suitable person available and willing to take on this role. (s. 57(2.2)).

10In her submissions, Dr. Freeland states:

In Ontario, it is assumed that all adults have capacity to consent to medical treatment unless proven otherwise. The tests for capacity are set out in the Substitute Decisions Act. In the event that a patient lacks capacity to make medical treatment decisions, the treating physician must make a finding of incapacity. A substitute decision maker ("SDM") is then appointed for the patient.

11This passage implies that the decisions with respect to the applicant regarding her capacity to consent to medical treatment were made under the SDA. In fact, there appears to have been no finding of incapacity with respect to personal care made under the SDA and no appointment of the PGT as guardian by the courts.

12Instead, although this is not explicitly stated in the submissions, it would appear that a determination of incapacity was made by the applicant's treating physicians under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A ("HCCA"), and the PGT assumed responsibility as substitute decision-maker under s. 20 of the Act. This is consistent with the terminology used by Dr. Freeland to describe the PGT's role ("substitute decision maker," a term which is found in the HCCA, instead of "guardian," a term which is found in the SDA). This inference is also consistent with the description of the applicant's appeals to the Consent and Capacity Board concerning the findings of incapacity to consent to treatment, the right to which is contained in the HCCA.

13The importance of this is that Rule 1.03(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, and Rule 1.02(1) of the Rules of the Small Claims Court, O. Reg. 258/98, define a person under a disability as follows:

"disability", where used in respect of a person, means that the person is,

(a) a minor,

(b) mentally incapable within the meaning of section 6 or 45 of the Substitute Decisions Act, 1992 in respect of an issue in the proceeding, whether the person has a guardian or not, or

(c) an absentee within the meaning of the Absentees Act; ("incapable")

Both sets of Rules require that, with limited exceptions, a proceeding on behalf of a person under a disability must be commenced, continued or defended by a litigation guardian.

14Significantly, neither set of Rules refer to a finding that a person is incapable of consenting to medical treatment as set out in the HCCA. A finding of incapacity made under the HCCA is not equivalent to a finding under the SDA and, accordingly, no presumption arises with respect to the ability of the person to commence or maintain litigation before the courts. By analogy, the same logic applies with respect to applications before this Tribunal.

15Dr. Freeland submits that a finding of incapacity protects not only the respondents from having to defend a matter that the applicant "may not have the requisite capacity to make," but also protects the applicant from proceeding "without a full understanding of her rights and interests at stake." The Tribunal acknowledges that this is an important consideration.

16However, the countervailing consideration is the right of an applicant to access the Tribunal without excessive procedural impediments. In the absence of evidence that the applicant is "unable to understand information relevant to making a decision in respect of an issue in the litigation or is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision" it would not be appropriate for the Tribunal to place this matter in abeyance pending the appointment of a litigation guardian for the applicant: See Lico v. Griffiths, 2008 CanLII 11047 (ON S.C.) at para. 23. On its own, the finding that the applicant is incapable of consenting to her treatment is not sufficient evidence that the applicant lacks the capacity to proceed with her Application before this Tribunal.

17Therefore, the respondents' Request for Order is dismissed.

18I am not seized of this matter.