Court of Appeal for Ontario

Citation: Abou-Diab v. Legault, 2012 ONCA 546

Date: 20120822

Docket: C54822

Before: Goudge, Feldman and Blair JJ.A.

Between

Wael Abou-Diab

Appellant

and

Dr. S. Legault

Respondent

Counsel:

Wael Abou-Diab, appearing in person

Anita Szigeti, amicus curiae

Mark Handelman, for the respondent

Heard and released orally: June 27, 2012

On appeal from the judgment of Justice Duncan A. Grace of the Superior Court of Justice, dated November 24, 2011.

ENDORSEMENT

[1] The appellant with the helpful assistance of amicus, challenges the Consent and Capacity Board’s two decisions, particularly that of August 20, 2011 and the Superior Court’s decision upholding them. He says the Board either applied the wrong legal test or was unreasonable in concluding the test was met.

[2] At issue is the second step required for a finding of incapacity as set out in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722: does the person lack the ability to appreciate the reasonably foreseeable consequences of his decision to refuse the proposed treatment? In our view, both the Board and the Superior Court understood and articulated this test correctly.

[3] The Board found, as we read their decision, particularly that of August 2011, that the appellant’s mental condition, mainly his delusion that he has something wrong with him physically, renders him unable to appreciate the consequences of his decision to refuse psychiatric and nourishment treatment. There was ample evidence to support this finding.

[4] The Board’s statement that continued failure to appreciate is explained only by inability to do so, should not be read in isolation. While such a statement on its own might be questionable, here it was clearly made in the context of the appellant’s delusion, which is the root cause of his inability.

[5] We do not find it necessary or desirable to admit the fresh evidence, since the question before us must focus on the capacity or incapacity of the appellant at the time of the Board’s hearing, not thereafter. See: Starson, at para. 119.

[6] In all the circumstances therefore, the appeal must be dismissed.

[7] No costs.

“S.T. Goudge J.A.”

“K. Feldman J.A.”

“R.A. Blair J.A.”