Court File and Parties

CITATION: Keizer v. Komer, 2015 ONSC 2136

BARRIE COURT FILE NO.: DC-14-1087

DATE: 20150401

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of the

Consent and Capacity Board,

Pursuant to the Health Care Consent Act,

S.O. 1996, Chapter 2, Schedule A

As amended

AND IN THE MATTER OF

TIMOTHY KEIZER

A patient at

Waypoint Centre for Mental Health Care – Provincial Program

Penetanguishene, Ontario

BETWEEN:

TIMOTHY KEIZER

Appellant

– and –

DR. KOMER

Respondent

T. Whillier, for the Appellant

J.E. Blackburn, for the Respondent

HEARD: March 11, 2015

REASONS FOR DECISION

MULLIGAN J.:

[1] The appellant, Timothy Keizer (Keizer) seeks a reversal of the decision of the Consent and Capacity Board for the Central Region (the Board). After a hearing, the Board confirmed Mr. Keizer’s treating psychiatrist’s opinion that Mr. Keizer was incapable with respect to decisions to consent or refuse antipsychotic medication. The hearing was held on September 10, 2014, and the Board issued detailed reasons on September 23, 2014.

[2] The essence of Mr. Keizer’s appeal is that the Board misconstrued the evidence that it heard at the hearing, and as a consequence, rendered a decision which was unreasonable.

[3] Dr. Komer submits that the Board conducted a full hearing and rendered a decision which considered the evidence of Mr. Keizer and Dr. Komer, and the exhibits filed. The Board made reference to the two-part legal test in the Health Care Consent Act, S.O. 1996, c.2, as well as the relevant jurisprudence, in reaching a decision confirming Dr. Komer’s opinion that Mr. Keizer continued to be incapable with respect to decisions to consent or refuse antipsychotic medication. Dr. Komer further submits that Mr. Keizer’s appeal amounts to a request for this court to re-weigh the evidence and come to a different conclusion than that arrived at by the Board. Dr. Komer suggests that the decision of the Board is reasonable under the circumstances.

Background

[4] Mr. Keizer is currently detained at Waypoint Centre for Mental Health Care (Waypoint), having been found not criminally responsible by the Ontario Review Board. He has a significant psychiatric history dating back to 1985. His current detention began at St. Joseph’s Health Care – Hamilton. He was then transferred to Waypoint on December 10, 2013. He was diagnosed with a delusional disorder by his psychiatrist at St. Joseph’s. Dr. Komer, his treating psychiatrist at Waypoint, concurred with this diagnosis at the hearing before the Board. At the hearing, the Board heard evidence from Dr. Komer, as well as Mr. Keizer, who was represented by counsel. The Board also considered numerous exhibits, including the disposition of the Ontario Review Board and related documents. In his decision, the Board recorded his mental health history, and noted Dr. Komer’s opinion that Mr. Keizer suffers from a mental disorder within the meaning of the Health Care Consent Act, and that he is not capable of making decisions regarding the proposed treatment with antipsychotics. After hearing the evidence from Mr. Keizer, the Board noted, “Mr. Keizer’s position is that he was not mentally ill, and further that he knows there is nothing wrong with him.” Rather than a mental illness, he told the Board he suffers from post-traumatic stress from issues that can be traced back to problems with his driver’s abstract and the Ministry of Transportation.

[5] In concluding that he suffers from a mental disorder, the Board noted, “In fact, much of the evidence presented by (Mr. Keizer) demonstrated his complex and well organized delusional system, which I find are part of his mental disorder.”

Analysis

[6] Both parties acknowledge that the standard of review for a decision of an expert tribunal like the Consent and Capacity Board is reasonableness. The Supreme Court of Canada has addressed this issue in a number of decisions. In Starson v. Swayze, [2003] S.C.C. 32, a case involving Ontario’s Health Care and Consent Act, McLachlin C.J. stated at para. 5:

I agree with my colleague, Major J. that the Board’s interpretation of the law is reviewable on a standard of correctness. On the application of the law to the facts, I agree with that the Board’s decision is subject to review for reasonableness. The Legislature assigned to the Board the task of hearing the witnesses and assessing evidence. Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts. This means that the Board’s conclusions must be upheld, provided that it was among the range of conclusions that could reasonably have been reached on the law and the evidence.

[7] In Dunsmuir v. New Brunswick, [2008] S.C.C. 9, the Supreme Court noted at para. 47:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.

[8] As the Court continued at para. 54:

Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity. … Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context. [Citations omitted.]

[9] The Supreme Court of Canada further articulated this standard in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador, [2011] S.C.C. 62. As Abella J. stated at para. 15:

Courts must show respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.

[10] The Court further instructed at para. 17:

Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful.

[11] Central to the decision of the Board is the two-part test in s.4(1) of the Health Care Consent Act, S.O. 1996. Before reviewing that section, the Board noted that the Act provides that each person is presumed to have capacity, and the onus of proof of incapacity lies with the attending physician. Section 4(1) of the Act provides:

4(1) A person is capable with respect to treatment, admission to a care facility or a personal assistant service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision. [Emphasis added.]

[12] With respect to the first branch of the test, the Board found that Mr. Keizer was an intelligent person, who had the ability to comprehend the information relevant to his consent or consent refusal. Both Mr. Keizer and Dr. Komer take no issue with that finding.

[13] With respect to the second branch of the test, the Board stated:

It was proven by Dr. Komer that (Mr. Keizer), as of the hearing date, was unable to evaluate information about the proposed treatment, as it related to his circumstances, a fact which rendered him incapable to make a decision concerning him.

[14] As to the second branch of the test, Dr. Komer stated in his testimony at the Board hearing:

Now, although Mr. Keizer does have the ability to understand information about treatment – he’s at least average intelligence, so he can understand information provided to him – he cannot apply that information and the understanding about this information to his own circumstances. He doesn’t recognize or acknowledge manifestations and impact of his mental disorder on his life situation.

[15] Both Mr. Keizer and Dr. Komer made reference to the Supreme Court of Canada’s decision in Starson. On the facts of that case, the Court found that the two-part test was properly applied by the motions judge in her finding that Dr. Starson was capable of understanding the information and could appreciate the foreseeable consequences of the decision not to take treatment. As Major J. stated for the majority at para. 106:

In summary, there was no basis to find that Professor Starson lacked awareness of his condition or that he failed to appreciate the consequences of treatment. In the absence of these findings, there was no support for the Board’s ultimate finding of incapacity.

[16] The Board made reference to the Starson principles, but stated:

In my view, this was a very different situation from the one found by the Supreme Court of Canada in Starson. In that case, the Court found, Professor Starson was effectively saying, “I know that the proposed treatment could help me with some symptoms that affect me, but I’d rather have those symptoms than the adverse effect of the treatment on my ability to think and carry out my work in the field of physics.” In other words, the Court found, Professor Starson was able to appreciate the consequences of a decision. The fact that the decision to refuse treatment may have been unwise, did not render him incapable.

[17] In distinguishing Starson from the case before it, the Board stated:

(Mr. Keizer) on the other hand denies and is unable to appreciate he suffers from many manifestations of mental disorder. He indicates he suffers from post-traumatic stress disorder. The symptoms of this disorder, he reports, is loss of and graying hair and a bout of shingles. He does not see that he suffers from any mental manifestations of illness that he labels as post-traumatic stress.

Conclusion

[18] In my view, the appeal by Mr. Keizer ought to be dismissed. I come to that conclusion after considering the following factors:

• The Board had a full hearing and heard evidence from Dr. Komer and Mr. Keizer, who was represented by counsel;

• The Board made factual findings and made a determination based on the two-part test in the Health Care Consent Act, S.O. 1996;

• The Board has a high level of expertise and was considering and applying its own statute, and the relevant case law;

• The Board’s decision fell within the range of reasonable outcomes available for a tribunal considering issues of mixed fact and law.

[19] Appeal dismissed.

Costs

[20] Neither party sought costs.

MULLIGAN J.

Released: April 1, 2015