Court of Appeal for Ontario

Date: October 31, 2017

Docket: C61933

Judges: Weiler, van Rensburg and Huscroft JJ.A.

Between

S.S. Applicant (Respondent)

and

Dr. David Kantor Respondent (Appellant)

Counsel

Gillian T. Hnatiw, for the appellant

Joan C. Manafa, for the respondent

Kendra A. Naidoo and Michele M. Warner, for the intervener, Ontario's Specialty Mental Health Hospitals

Heard: June 8, 2017

On appeal from: The order of Justice Mario D. Faieta of the Superior Court of Justice, dated March 4, 2016, with reasons reported at 2016 ONSC 1444.

Huscroft J.A.:

A. Overview

1This appeal concerns the validity of a Community Treatment Order ("CTO") made under the Mental Health Act, R.S.O. 1990, c. M.7 ("MHA").

2A CTO provides a person who has a serious mental disorder with treatment or care and supervision in the community, rather than in the confines of a psychiatric facility: MHA s. 33(3). The CTO is based on a Community Treatment Plan ("CTP"), which must be entered into within 72 hours of an examination by the issuing physician. The question in this case is whether all participants in a CTP must sign it within 72 hours of the examination in order for the CTO to be valid.

3The Consent and Capacity Board answered that question in the negative. According to the Board, it was sufficient that Dr. Richard Gorman, the issuing physician who examined S.S., signed the CTP within 72 hours of conducting the examination, even though some of the other participants in the plan, including the monitoring physician, Dr. Kantor, signed more than 72 hours later. The appeal judge allowed the appeal and set aside the CTO, holding that all participants in the CTP were required to sign it within the 72-hour period in order for the CTO to be valid.

4In my view, the appeal judge erred in doing so. I would allow the appeal for the reasons that follow.

B. Background

5S.S. is a 63 year-old woman diagnosed with paranoid schizophrenia. She has been hospitalized or received hospital treatment on several occasions since 2007. Dr. Kantor is the consulting psychiatrist at Reconnect Mental Health Services, where S.S. is a client.

6S.S. was hospitalized at Toronto East General Hospital from April 7 to April 23, 2015, where she was found incapable with respect to psychiatric treatment with anti-psychotic medication and a CTP.

7On April 16, 2015, Dr. Gorman and the Community Mental Health Services Coordinator signed a CTP governing S.S.'s care. Dr. Kantor signed the CTP on April 20, 2015, the substitute decision-maker signed April 21, 2015, and Reconnect Mental Health Services signed April 22, 2015. On April 23, 2015, Dr. Gorman issued a CTO giving effect to the CTP. S.S. sought review of the finding of incapacity and challenged the issuance of the CTO before the Board.

8The Board found that S.S. was incapable of consenting both to psychiatric treatment with anti-psychotic medication and to the CTP. The Board's decision on this point was confirmed by the appeal judge and initially was not contested on this appeal. Subsequently, counsel for S.S. sought leave to raise several additional issues, including whether the incapacity finding was reasonable.

C. The Legislation

9As noted above, a CTO incorporates the terms of a CTP. The issuance of a CTP is governed by the MHA, which provides:

33.1 (1) A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met.

(4) A physician may issue or renew a community treatment order under this section if,

(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person's treatment or care and supervision have developed a community treatment plan for the person;

(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,

(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,

(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;

(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996, 2000, c. 9, s. 15.

D. The Board's Decision

10The Board found S.S. could understand the information relevant to making a decision about her psychiatric treatment. However, because of her lack of insight into her mental state and corresponding need for treatment, S.S. was unable to appreciate the consequences of a treatment decision. The Board therefore found S.S. incapable of consenting to treatment with anti-psychotic medication and incapable of consenting to a CTP.

11The Board then considered the validity of the CTO. It reviewed each of the criteria governing the issuance of a CTO and confirmed that they were met. Concerning the 72-hour period, the Board stated, at p. 18:

Dr. Kantor's evidence was that within the seventy-two hour period before entering into the Community Treatment Plan on April 16, 2015, in fact the same day as Dr. Gorman entered into the Plan, he examined SS and concluded that she suffered from mental disorder requiring continuing treatment and continuing supervision while living in the community.

12The Board accepted Dr. Kantor's evidence and found that the requirements of s. 33.1(4)(c) were met.

E. The Appeal Judge's Decision

13The appeal judge upheld the finding of S.S.'s incapacity on the basis that it was reasonable. However, he applied a correctness test to the Board's interpretation of the MHA and concluded that the Board erred in interpreting s. 33.1(4). According to the appeal judge, the MHA requires not only the examining physician, but also all persons named in the CTP to agree in writing to the CTP within 72 hours of the medical examination.

14Applying this requirement, the appeal judge found that the Public Guardian and Trustee (the substitute decision-maker for the appellant), Dr. Kantor, and Reconnect Mental Health Services did not sign the CTP until more than 72 hours had passed following S.S.'s medical examination. As a result, he concluded that the CTP did not meet the requirements of s. 33.1(4), allowed the appeal, and set aside the CTO.

F. Issues on Appeal

15The following issues are raised:

1. What standard of review applies to the Board's decision?
2. How does that standard apply in this case?

16S.S. brought a motion seeking to raise several additional issues.

17The intervener, a coalition of three psychiatric hospitals that run or participate in the CTP programs, sought permission to file fresh evidence on the practice of management, coordination, and preparation of CTOs at its member hospitals. This was opposed by S.S. on the basis that the evidence did not satisfy the requirements set out in Palmer v. The Queen, [1980] 1 S.C.R. 759. The evidence was addressed at the hearing of the appeal and the question of admissibility was left to be determined.

G. Discussion

(1) The Standard of Review

18It is well established that decisions of the Board applying the law to the evidence involve mixed questions of fact and law, which are subject to review on the reasonableness standard: see e.g. Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 84; M.M. v. de Souza, 2016 ONCA 155, at para. 12; and Giecewicz v. Hastings, 2007 ONCA 890, 288 D.L.R. (4th) 587, at para. 13, leave to appeal refused, [2008] S.C.C.A. No. 97.

19The Supreme Court held in Starson that the Board's interpretation of the legal standard for capacity under the Health Care Consent Act, 1996, 2000, c. 9, s. 15, is a question of law to which the correctness standard applies. The majority of the court stated, at para. 110:

The interpretation of the legal standard for capacity is a question of law: see Southam, supra, at para. 35. No deference is owed to the Board on this issue. As noted above, the broad statutory right of appeal and adjudicative nature of the proceedings militate against deference. Furthermore, courts clearly have relative expertise on general questions of statutory interpretation. One of the stated purposes of the Act is to provide for the consistent application of its rules: s. 1. Consistency requires courts to ensure that individual panels do not diverge in their interpretation of statutory provisions. Finally, this question of law has broad application and need not be resolved anew on each appeal. A correctness standard of review on this issue will not impede the expeditious treatment of patients.

20Starson has been read as establishing a standard of correctness not only for interpretation of the legal standard for capacity, but for questions of law generally: see e.g., Ness v. Geagea, 2015 ONSC 623, at para. 17; L.C. v. Dr. Duff, 2013 ONSC 2974, at para. 9.

21The appellant submits that the reasonableness standard applies to the Board's interpretation of the MHA, while the respondent submits that the Board's interpretation of the MHA is subject to review for correctness.

22The Supreme Court's approach to error of law review has evolved considerably since Starson: see, e.g., Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 22; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 55; and McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 21.

23In light of these developments, it would not be inappropriate for this court to revisit the standard of review. However, in the circumstances of this case I would apply the correctness standard and leave future development of the law for a case in which the standard of review argument can be canvassed more fully.

24I note that the outcome in this case does not hinge on the standard of review in any event. In my view, the Board's decision is reasonable, but more than that it is correct.

(2) Is the Board's Interpretation of s. 33.1(4) of the MHA Correct?

25The Board was charged with interpreting the criteria that govern the exercise of the discretion to issue a CTO. Section 33.1(4) focuses on the role and responsibilities of the physician in issuing a CTO. I set out the key portions of the relevant provision again for convenience:

33.1 (1) A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met.

(4) A physician may issue or renew a community treatment order under this section if,

(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician that …

26These provisions refer to the responsibilities of the physician issuing or renewing a CTO. Different statutory language is used in regard to the obligations of the other treatment/care providers named in the CTP, who are required only to indicate their agreement to the plan following consultation: MHA, ss. 33.1(4)(d) and 33.5(3).

27Before the Board, Dr. Kantor took the position that the date on which any person other than the examining physician signed the CTP was irrelevant. The Board confirmed this position in holding that it was sufficient that Dr. Gorman, who examined S.S., signed the CTP within the 72-hour window.

28In my view, the Board's interpretation is correct.

29The focus on the responsibilities of the issuing or renewing physician confirms the purpose of s. 33.1(4). The 72-hour requirement is designed to ensure that the physician's medical findings are fresh when the CTP is entered into by the physician. Not only does a requirement that other participants in the CTP sign it within 72 hours not further this purpose, it may well frustrate it.

30The appeal judge found that the CTP was analogous to a contract. Applying contractual principles, he held that a physician did not "enter into" a CTP unless the other persons named in the plan agreed to that plan, and the requirement that those persons "indicate" their agreement with the plan means that they must all sign the CTP within 72 hours of the physician's examination of the person for whom the plan was developed.

31But service providers who indicate agreement with a CTP are not parties to the CTP in a contractual sense. They are simply indicating that they agree to provide treatment or care under a CTP. They are not required to do so within a limited period of time: s. 33.5(3). Again, the 72-hour requirement relates to entry into the CTP by the physician.

32Courts should be wary of falling back on familiar common law principles when interpreting complex administrative schemes, lest the administrative scheme be undermined. In this case, the appeal judge's decision overturned an interpretation it appears the Board has long followed. The appeal judge's decision would formalize the CTP, resulting in logistical difficulties and undermining patient care without any countervailing benefit. These difficulties led another appeal judge to reach the opposite conclusion, approving the Board's interpretation of s. 33.1(4) and upholding the CTO in Paspalovski v. Dr. Agrawal, 2016 ONSC 4805, at para. 52.

33The fresh evidence proffered by the intervener addresses this point. Given my conclusion that the Board's decision was correct, it is not necessary to admit that evidence in order to resolve this appeal.

(3) Additional Issues

34S.S. raised several additional issues in her factum, at the oral hearing, and in a June 5 motion for leave to raise additional issues. They can be grouped into two categories.

35First, she argues the CTO is invalid because certain of the criteria in s. 33.1(4), other than the 72-hour requirement, were not met. One prong of this argument appears to challenge the Board's incapacity finding. Second, she argues that her hearing before the Board was procedurally unfair.

36None of the additional issues have merit.

37Dealing first with the requirements of s. 33.1(4), S.S. argues that Dr. Gorman did not properly examine her as required by s. 33.1(4)(c); that the information grounding his incapacity finding was outdated; that he did not consult with other signatories to the CTP as required by s. 33.1(4)(d); that she could not comply with the CTO; and that the Public Guardian and Trustee's consent given on her behalf was invalid.

38The challenge to the Board's finding that S.S. is incapable of consenting to anti-psychotic treatment and to a CTP – a finding the appeal judge upheld – is properly the subject of a cross-appeal: see r. 61.07. No cross-appeal was brought. Nor is this an appropriate case to grant leave to raise issues not stated in a notice of cross-appeal based on r. 61.07(3). S.S. filed her motion for leave to raise additional issues only a few days before the hearing; the appellant did not have the opportunity to adequately respond to the issues raised and there is no material before the court justifying an extension of time to cross-appeal: see Laudon v. Roberts, 2009 ONCA 383, 308 D.L.R. (4th) 422, at para. 59; Mississauga (City) v. Vandenbergh (1999), 122 O.A.C. 381 (C.A.), at para. 8.

39The remainder of S.S.'s attacks on the CTO's validity must also fail. The Board's finding that the s. 33.1(4) requirements were met is a question of mixed fact and law, reviewed for reasonableness. The Board carefully considered the evidence before it and found that each of the criteria in s. 33.1(4) was met. The record amply supports the Board's findings. There is no basis to conclude that the Board's conclusion was unreasonable.

40S.S. argues that the Board hearing was procedurally unfair because she was given insufficient notice of the case she had to meet. Her notice argument has two prongs. First, the documentary evidence the Board relied on – namely, the CTO – was vague and contained errors. Second, she argues that certain documents were provided to her for the first time at the hearing itself, giving her and her counsel insufficient time to review them.

41There is no merit to these arguments. S.S. received notice of the Board hearing. The hearing was adjourned twice, including an opposed adjournment to give S.S. time to retain new counsel after she discharged her first lawyer. The CTO was neither impermissibly vague nor misleading.

42Finally, although S.S. only received two of her hospital discharge summaries at the Board hearing, she received a summary of the pertinent portions of those documents prior to the hearing. She was aware of the CTO and the grounds on which it was made and was properly equipped to challenge its validity.

H. Conclusion

43I would dismiss the fresh evidence application.

44I would allow the appeal.

45Each party should pay its own costs.