Court of Appeal for Ontario
Date: August 17, 2017
Docket: C60295
Judges: Rouleau, Pepall and Roberts JJ.A.
In the Matter of an Application Under Section 39 of the Mental Health Act
Between
E.S. Applicant (Appellant)
and
Jason Joannou and the Attorney General of Ontario Respondent/Intervener (Respondents)
Counsel
- Kelley Bryan, for the appellant
- Hart Schwartz and Padraic Ryan, for the respondent Attorney General of Ontario
- Paul-Erik Veel and Danielle Glatt, for the respondent Dr. Jason Joannou
- Karen R. Spector, for the intervener ARCH Disability Law Centre
Heard: March 24, 2017
On appeal from: The judgment of Justice Edward Belobaba of the Superior Court of Justice, dated March 3, 2015, with reasons reported at 2015 ONSC 1316, dismissing the appeal from the order of the Consent and Capacity Board, dated August 8, 2014.
Rouleau J.A.
A. Introduction
[1] This appeal raises the following question: does the Consent and Capacity Board (the "Board") have the jurisdiction to grant remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms? For the reasons that follow, I have concluded that it does not and that the appeal should be dismissed.
B. Background
[2] On June 26, 2014, the appellant was admitted to the Centre for Addiction and Mental Health ("CAMH") out of concern for the deterioration of her physical health and mental state, on the basis of a Form 1 application for psychiatric assessment, which provides for up to three days' detention under the Mental Health Act, R.S.O. 1990, c. M.7.
[3] On June 27, 2014, a Form 3 certificate of involuntary admission, under which a patient is detained for up to two weeks, was issued by a CAMH psychiatrist on the ground that the appellant was refusing to eat due to paranoid thoughts about food. She appeared thin and malnourished and had lost significant weight. She was assessed as suffering from cannabis-induced psychotic disorder with delusions or psychotic disorder. On the same day, the appellant was also found incapable by the same psychiatrist of consenting to treatment with anti-psychotic medication.
[4] On June 30, 2014, the appellant applied to the Board to review the finding of incapacity. On the same day the respondent physician, Dr. Joannou, assumed care of the appellant and proposed treatment with anti-psychotic medication.
[5] Shortly after this, the Public Guardian and Trustee, acting as the appellant's substitute decision-maker, advised Dr. Joannou that it gave its consent to treatment with certain anti-psychotic medications. This oral advice was confirmed in writing by letter dated July 4, 2014.
[6] The appellant's incapacity to consent to treatment and her involuntary status were confirmed by the Board on July 9, 2014. On July 10, Dr. Joannou completed a Form 4 certificate of renewal, providing for up to one month's detention.
[7] On July 10, 2014, Dr. Joannou sought to administer the anti-psychotic medication. The appellant refused the prescribed oral medication. Following that refusal, she was placed in four-point restraints and forcibly injected with paliperidone, a long-acting anti-psychotic medication.
[8] On July 11, 2014, the appellant applied to the Board for a review of her involuntary status under the July 10 certificate of renewal. As part of that review, the appellant claimed that the July 10 injection had been unlawful.
[9] The appellant alleges that this medication was beyond the scope of the substitute consent which had been provided on her behalf by the Public Guardian and Trustee. Specifically, she asserts that the Public Guardian and Trustee consented only to injectable paliperidone if the appellant received and tolerated oral paliperidone. If she refused to receive oral paliperidone, she was only to be injected with loxapine, a short-acting anti-psychotic medication. This appears to be the content of the written confirmation letter from the Public Guardian and Trustee, dated July 4, 2014. Dr. Joannou asserts that the verbal consent he received from the Public Guardian and Trustee was for both long- and short-acting anti-psychotics in the event that the appellant refused oral medication, and that he did not become aware of the apparent discrepancy between the verbal consent and the letter until July 18.
[10] The parties agreed that the start of the hearing would be postponed to after the seven-day statutory time-frame for beginning a hearing. A date of July 23, 2014 was set.
[11] During the adjournment period, the appellant, through her counsel, gave notice that she was raising Charter issues, including the question of the Board's Charter jurisdiction. This resulted in a further adjournment on consent to July 28, 2014. On July 24, the appellant served a notice of constitutional question pursuant to s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[12] In her notice of constitutional question, the appellant asked the Board to consider: whether it had jurisdiction to determine that the injection was unlawful and a violation of her s. 7 Charter rights; if so, whether the injection was unlawful and a violation of her s. 7 Charter rights; and if it was, whether the Board had jurisdiction to grant a remedy under s. 24(1) of the Charter, namely the rescission of her certificate.
[13] The hearing proceeded on the merits for a full day on July 28, 2014. Consideration of the issues raised in the notice of constitutional question was deferred to August 7, 2014.
[14] The Board received evidence on the issues of whether the appellant met the criteria under the Mental Health Act for detention pursuant to s. 20(5)(a)(iii) and s. 20(5)(b) ("Box A" grounds of serious physical impairment) or s. 20(1.1) ("Box B" grounds of substantial mental or physical deterioration). Uncontested facts relating to the allegedly illegal injection were contained in an agreed statement of facts put before the Board. The Board also received some evidence regarding the injection, going to the issue of whether Dr. Joannou acted in accordance with the substitute decision-maker's directives.
[15] The appellant argued that, as a remedy for the allegedly illegal injection, the Board should rescind the involuntary admission certificate. She maintained that, because the injection of anti-psychotic medication was unauthorized, the Board should exercise its discretion pursuant to s. 41(2) of the Mental Health Act to rescind the Form 4, even if satisfied that the statutory criteria for involuntary admission were met. Under s. 41(2), the Board "may confirm" the patient's involuntary status if it determines that the prerequisites for involuntary status were met at the time of the hearing; by contrast, under s. 41(3), the Board "shall rescind" the certificate if it determines that the prerequisites were not met.
[16] The appellant further submitted that the injection violated her rights under s. 7 of the Charter. She argued that the Board had jurisdiction to grant Charter remedies under s. 24(1) and that it should rescind the Form 4 as a remedy for the violation.
The Decision of the Board
[17] On August 8, 2014, the Board issued its decision confirming the appellant's involuntary status. It determined that the prerequisites set out in the Mental Health Act had been met at the time of the hearing. The Board's reasons were released on August 29, 2014.
[18] The Board was satisfied that both the "Box A" criteria of serious physical impairment and the "Box B" criteria of substantial mental deterioration were met, and that the appellant was not suitable for continuation as a voluntary patient.
[19] As for the appellant's request that the Board exercise its discretion under s. 41(2) of the Mental Health Act to rescind her certificate of renewal on the basis that treatment had been administered without the consent of her substitute decision maker, contrary to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, the Board declined to exercise this discretion. The Board held that to grant a remedy under the Mental Health Act for conduct impugned under the Health Care Consent Act would be contrary to the intent of the legislature.
[20] The Board did not make a finding as to whether the July 10, 2014 injection was lawful or made without consent.
[21] In response to the appellant's notice of constitutional question, the Board considered whether it had jurisdiction to grant a remedy for the allegedly unlawful injection under s. 24(1) of the Charter. It held that the conclusions of the Divisional Court in Ontario (A.G.) v. Patient (2005), 194 O.A.C. 331 ("Jane Patient") regarding s. 52(1) jurisdiction were binding and applicable to s. 24(1) jurisdiction. The Board followed Jane Patient in ruling that it did not have the power to decide questions of law and, even if it did, the jurisdiction to decide constitutional questions had been clearly withdrawn.
[22] The Board went on to find that, even if it had the jurisdiction to grant s. 24(1) remedies, it would not grant the remedy sought by the appellant. In the Board's view, it would not be appropriate or just to rescind a certificate "for a reason that had no nexus with the statutory criteria for involuntary admission", and it would be contrary to the mandate of the Board to release a patient who continued to present a risk of harm to herself.
[23] The Board dismissed the motion for a Charter remedy and therefore did not determine whether the July 10, 2014 injection violated the appellant's s. 7 Charter rights.
[24] The appellant appealed the Board's decision to the Superior Court.
The Decision of the Appeal Judge
[25] By the time her appeal was heard in the Superior Court, the appellant had been discharged. As a result, she changed her requested remedy. She asked that the court issue a declaration that the July 10, 2014 injection had violated her s. 7 Charter rights. She also sought rescission of the certificate of renewal nunc pro tunc on the basis that the Board had erred in finding that it lacked jurisdiction to grant remedies under s. 24(1) of the Charter and in failing to consider the impact of the Charter breach occasioned by the injection.
[26] The appeal judge dismissed the request for a declaration on the basis that it was not sought before the Board or mentioned in the notice of appeal. The appeal judge was of the view that it would be procedurally unfair to grant the declaration sought. Dr. Joannou had not received proper notice of the remedy being sought and may well have led different evidence at the Board hearing, had a declaration been sought there.
[27] In the appeal judge's view, the appellant should have filed a separate Charter application to be heard together with her appeal of the Board's decision. Further, the appeal judge declined to rescind the certificate of renewal nunc pro tunc, finding that the issue was moot as the certificate had already expired. There was no longer a live controversy between the parties. The substratum on which the case was based had ceased to exist and there was no pressing issue that was evasive of review, given the numerous other cases heard by the Board each year. In any event, had the appeal not been moot, the appeal judge would have dismissed it as he agreed with the Board's view that there was no nexus between the injection and the finding regarding involuntary status.
[28] The appeal judge ordered the appellant to pay partial indemnity costs to Dr. Joannou. In his view, it had been fundamentally unfair of the appellant to have sought a remedy personally against the physician for the first time on appeal.
C. Issues
[29] There are three issues raised in this appeal:
Is the appeal moot and, if so, should this court nonetheless hear the appeal?
Does the Board have s. 24(1) Charter jurisdiction and can it grant the remedy sought?
Did the July 10, 2014 injection violate the appellant's s. 7 Charter rights?
[30] The costs order was initially appealed, but at the hearing we were informed that the parties had resolved this issue and the costs appeal was withdrawn.
D. Analysis
(1) Is the Appeal Moot and, If So, Should This Court Nonetheless Hear the Appeal?
[31] The respondents argue that the Superior Court correctly concluded that the appellant could not seek a free-standing declaration that her Charter rights were breached when it was not sought before the Board and no Charter application on notice was filed in the Superior Court. They further maintain that the issue as to whether the Board has Charter jurisdiction was properly found to be moot in the court below and remains moot in this court. This is because the appellant has been discharged and the appeal would have no practical effect on the rights of the parties. There remains no live controversy.
[32] In the respondents' submission, there is no pressing reason for this court to decide the issue of the Board's Charter jurisdiction. There is no adversarial context. The fact that the parties are engaged in adversarial litigation is not, in their submission, sufficient. Further, judicial economy is better served by refusing to hear the issue. As explained by the appeal judge, the issue of the Board's s. 24(1) jurisdiction is not evasive of review because it could be raised in one of the 2,000 or so cases heard by the Board annually.
[33] Finally, rather than raising her Charter issues in what is, in effect, an unrelated appeal, the appellant should have brought an appropriate originating process to deal with her allegation regarding the allegedly illegal injection.
[34] Dealing first with the declaration sought by the appellant, I agree with the appeal judge's ruling. Raising such a request for the first time on appeal would be unfair to Dr. Joannou. The declaration was not even sought in the notice of appeal to the Superior Court and would have required detailed factual inquiries into the circumstances surrounding the obtaining of the substitute decision maker's authorization and the actions taken by Dr. Joannou. These inquiries were not undertaken before the Board. Although the Board was provided with a letter from the relevant official of the Public Guardian and Trustee stating that, in her recollection, the July 4, 2014 letter accurately reflected the verbal consent given on June 30, the Public Guardian and Trustee gave no oral evidence before the Board and Dr. Joannou had no opportunity to cross-examine. Further, seeking declaratory relief against Dr. Joannou changes his role from one of defending the detention of the appellant under the Mental Health Act to one of defending himself against a serious allegation of having violated the appellant's Charter rights when he administered medication pursuant to a different Board order by which the appellant was found to be incapable.
[35] The second head of relief sought by the appellant is a finding that the Board has Charter jurisdiction and that the remedy sought before the Board, the rescission of the certificate under which she was detained, would have been a just and appropriate remedy. In my view, this aspect of the appellant's appeal is moot. The remedy sought before the Board, rescinding the certificate, is no longer a live issue between the parties. The certificate has expired and the appellant is no longer detained at CAMH.
[36] Having determined that the appeal is moot, I must, nonetheless, consider whether the court should exercise its discretion to hear the portion of the appeal that raises the question of the Board's jurisdiction to grant s. 24(1) Charter remedies.
[37] The appellant argues that the appeal judge ought to have exercised his discretion to decide this issue. I agree. The key consideration for a court when it is asked to exercise its discretion to hear an otherwise moot appeal is whether the appeal presents special features which make it "in the interests of justice" or "in the public interest" to resolve. See R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at paras. 32, 40 and 41.
[38] The court's exercise of discretion is guided by assessing the extent to which the case engages any of the main rationales underlying the doctrine of mootness, namely: (a) the need for an adversarial context; (b) the concern for judicial economy; and (c) sensitivity to the court's adjudicative role: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at pp. 358-363.
(a) Adversarial Context
[39] In the present case, the adversarial context that prevailed below continues to exist on appeal. The Charter issues were fully and vigorously argued both here and below. The parties were represented by counsel. The Attorney General of Ontario participated as a respondent and ARCH Disability Law Centre intervened.
(b) Judicial Economy
[40] Judicial economy also favours resolving the issue. In my view the appeal judge's reliance on the fact that there are 2,000 hearings per year before the Board, while statistically true, is not determinative of whether the issue is evasive of review and whether judicial economy favours hearing the moot appeal. This figure fails to properly consider the context of appeals from rulings on involuntary status made by the Board. Reviews of involuntary status are only one of the several types of applications that are heard by the Board. Appeals of such decisions tend to be moot by the time they reach the reviewing court, let alone the Court of Appeal. If and when a case will arise that engages a Charter breach for which a s. 24(1) remedy is sought before the Board, and for which the patient remains in hospital up to and including the time the appeal is heard and disposed of, is speculative.
[41] Further, the present case raises an issue of public, social and constitutional importance. Whether the Board has the jurisdiction to grant s. 24(1) Charter remedies is an important question with implications beyond this case. While it may seem inimical to judicial economy to determine a moot appeal, the expenditure involved may yield dividends by resolving uncertainties in the law: Ontario (Provincial Police) v. Mosher, 2015 ONCA 722, 340 O.A.C. 311, at para. 46. This is particularly so where we are presented with a complete record and the matter was fully argued.
(c) The Court's Adjudicative Role
[42] Finally, with respect to the court's adjudicative role, the Board's s. 24(1) Charter jurisdiction was squarely in issue in oral and documentary evidence and submissions at the hearing. The issue was fully canvassed before the Board and the Superior Court and again in this court. There is an ample record before the court to decide the appeal. In my view, therefore, the reasons for deciding whether the Board has s. 24(1) jurisdiction are compelling.
(2) Does the Board Have s. 24(1) Charter Jurisdiction and Can It Grant the Remedy Sought?
[43] Section 24(1) of the Charter confers on a court of competent jurisdiction the discretion to grant remedies for Charter violations:
- (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
[44] Whether the Board has s. 24(1) jurisdiction is the central issue raised by this appeal. As set out above, the Board held that it did not have jurisdiction to grant Charter remedies under s. 24(1), and therefore did not make a finding as to whether the appellant's s. 7 rights were infringed.
[45] Pursuant to the test created by the Supreme Court of Canada in R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, tribunals that can decide questions of law are presumed to be courts of competent jurisdiction for the purpose of s. 24(1) of the Charter. The presumption can be rebutted where it is clearly demonstrated that the legislature intended to exclude Charter remedies from the tribunal's jurisdiction.
[46] The appellant argues that the Board routinely decides questions of law and that, when viewed as a whole, it is apparent from the statutory scheme that the Board has all of the trappings of an adjudicative tribunal with the powers to consider complex and contested issues such as those involving Charter claims.
[47] For their part, the respondents interpret the statutory scheme quite differently. They argue that the strict statutory timelines and focused mandate of the Board clearly reflect an intention by the legislature to exclude Charter remedies from the Board's powers.
[48] Before addressing the submissions of the parties, I will first review the structure and functioning of the Board. Then I will set out the test for determining whether an administrative tribunal has Charter jurisdiction, as developed by the Supreme Court of Canada in Conway.
(a) Structure and Function of the Board
[49] As the following discussion illustrates, the Board operates under very strict timelines and has narrowly circumscribed jurisdiction. These features inform the Conway analysis I will undertake later in these reasons.
(i) The Work of the Board
[50] The Consent and Capacity Board is constituted under Part V of the Health Care Consent Act. It hears a broad range of appeals under several statutes. Under the Health Care Consent Act, the jurisdiction of the Board includes the review of a finding of incapacity with respect to treatment, admission to a care facility or a personal assistance service as well as the appointment or termination of substitute decision-makers with respect to these matters.
[51] Under the Mental Health Act, someone such as the appellant who is subject to civil committal may apply for a review of their involuntary status. There is also provision in that Act for the review by the Board of other matters such as community treatment orders and findings of incapacity to manage property.
[52] The Board also reviews incapacity to manage property under the Substitute Decisions Act, 1992, S.O. 1992, c. 30; incapacity to consent to the collection, use and disclosure of personal health information under the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A; and whether to order a person to provide a blood sample under the Mandatory Blood Testing Act, 2006, S.O. 2006, c. 26.
[53] According to the Board's 2015-2016 Annual Report, it appears that 90 percent of applications to the Board involve review of involuntary status or community treatment orders under the Mental Health Act or capacity to consent to or refuse treatment under the Health Care Consent Act.
(ii) Composition of the Board
[54] Apart from the chair, the members of the Board are all part-time. Members of the Board are appointed by the Lieutenant Governor in Council and, depending on the matter being heard, the panel can be comprised of one, three or five members. There are certain stipulations as to the experience and qualifications of members sitting on various panels. These vary depending on the nature of the matter being heard. For example, when reviewing the involuntary status of a patient under the Mental Health Act, the Board must be a panel of three or five: Mental Health Act, s. 39(13), (14). In such cases, a three-member panel must consist of a lawyer, a lay person and a person who must be a psychiatrist, physician, registered nurse or other "prescribed" person under the Act. If the patient is under a certificate of continuation, that is, has been detained for over six months, then the third person must be a psychiatrist.
(iii) Procedure
[55] The procedures relevant to the present appeal are the procedure for involuntary patients to apply to the Board under the Mental Health Act to review their detention certificate, and the procedure for persons found to be treatment incapable under the Health Care Consent Act to seek review by the Board of such a finding. In both cases, there is a right to apply for a review after the initial determination is made. Subject to certain conditions, there are rights to review the determination periodically thereafter.
[56] Once an application to the Board is filed, the application is governed by the procedure set out in Part V of the Health Care Consent Act. By virtue of s. 39(15) of the Mental Health Act, this procedure also applies to applications for review of a patient's involuntary status. When the Board receives an application, it is bound by very restrictive timelines. It must promptly fix a time and place for the hearing and the hearing is to begin within seven days of the receipt of the application unless the parties agree otherwise. The Board is to render its decision within a day after the day the hearing ends. If a party requests written reasons within 30 days after the hearing, the Board must provide these reasons within four business days of receiving the request.
(iv) Remedial Scope
[57] The remedial powers of the Board are circumscribed by the various statutes. In each case the Board is to carry out a very focussed inquiry, as prescribed by the statute, and there are clearly defined dispositions available to it.
[58] In an application for review of a finding of incapacity with respect to treatment, the Board "may confirm the health practitioner's finding or may determine that the person is capable with respect to the treatment, and in doing so may substitute its opinion for that of the health practitioner": Health Care Consent Act, s. 32(4).
[59] Under s. 41 of the Mental Health Act, upon hearing an application, the Board is to determine whether or not the patient still meets the conditions for involuntary status. The Board "may confirm the patient's status as an involuntary patient if the Board determines that the prerequisites … were met at the time of the hearing of the application." The Board "shall rescind the certificate" if it determines that the prerequisites were not met at the time of the hearing.
[60] Following this court's decision in P.S. v. Ontario, 2014 ONCA 900, 123 O.R. (3d) 651, the remedial powers of the Board were broadened somewhat, but only when the Board is reviewing a certificate of continuation, that is, when a patient has been involuntarily detained for more than six months and two weeks. This represents approximately two percent of the involuntary status cases heard by the Board. These broadened powers, under ss. 41(3.1) and 41.1 of the Mental Health Act, are similar to the powers of the Ontario Review Board ("ORB"). They include the power to rescind a certificate of continuation effective on the issuance of a community treatment order; to transfer the patient; to place the patient on a leave of absence; and to direct that the facility provide the patient with a different security level, different privileges, supervised or unsupervised community access, or vocational, interpretation or rehabilitative services.
[61] Section 70.1(1) of the Health Care Consent Act, added after the Divisional Court's decision in Jane Patient, states that the Board "shall not inquire into or make a decision concerning the constitutional validity of a provision of an Act or a regulation." This provision specifically precludes the jurisdiction to find legislation invalid under s. 52(1) of the Constitution Act, 1982.
(v) Appeals
[62] A party has an appeal as of right from a decision of the Board to the Superior Court of Justice on a question of law or fact or both: Health Care Consent Act, s. 80(1); Mental Health Act, s. 48(1). The timeline for the appeal is expedited. The party must serve and file the notice of appeal within seven days of receiving the Board's decision. There are two-week timelines for serving and filing factums and the court is to fix the earliest hearing date compatible with the just disposition of the appeal: Health Care Consent Act, s. 80; Mental Health Act, s. 48(3).
[63] On appeal, the Superior Court need not be limited to the record that was before the Board. Section 80(9) of the Health Care Consent Act provides that the court "shall hear the appeal on the record, including the transcript, but may receive new or additional evidence as it considers just." On the appeal, the court may, among other things, exercise all the powers of the Board or refer the matter back to the Board for rehearing: s. 80(10).
(b) Legal Principles
[64] I turn now to the legal principles that apply when a court is to determine whether a tribunal has Charter jurisdiction.
[65] A tribunal has only the powers that are explicitly or implicitly conferred on it by statute: Rio Tinto Alcan v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, at para. 60.
[66] When a remedy is sought from an administrative tribunal under s. 24(1) of the Charter, a three-step process is to be adopted in order to determine whether the tribunal has the jurisdiction to grant s. 24(1) remedies generally and the power to grant the particular remedy sought: Conway, at paras. 81-82.
[67] Those three steps are as follows:
- Determine whether the tribunal can decide questions of law.
- Consider whether the power to grant Charter remedies generally has, explicitly or by clear implication, been excluded by statute.
- Determine whether the tribunal has the power to grant the specific remedy requested.
[68] This three-step process is explained at paras. 81 and 82 of Conway as follows:
Building on the jurisprudence, therefore, when a remedy is sought from an administrative tribunal under s. 24(1), the proper initial inquiry is whether the tribunal can grant Charter remedies generally. To make this determination, the first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law. If it does, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal's jurisdiction, the tribunal is a court of competent jurisdiction and can consider and apply the Charter – and Charter remedies – when resolving the matters properly before it.
Once the threshold question has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent. On this approach, what will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal's statutory mandate, structure and function.
[69] Applying the Conway test to the present case is, however, not straightforward. This is because, under s. 70.1(1) of the Health Care Consent Act, the legislature has precluded the Board from finding a law unconstitutional pursuant to s. 52(1) of the Constitution Act, 1982. Let me explain.
[70] Remedies for Charter breaches are governed by s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982. As set out earlier, s. 24(1) of the Charter confers on a court of competent jurisdiction the discretion to grant remedies for Charter violations:
- (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
[71] Section 52(1) of the Constitution Act, 1982 expresses the principle of constitutional supremacy by providing that laws inconsistent with the constitution are of no force and effect to the extent of the inconsistency:
- (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
[72] As explained by the Supreme Court in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 60, these two provisions "serve different remedial purposes". Section 24(1) provides a remedy for government actions that violate Charter rights, while s. 52(1) provides a remedy for unconstitutional laws.
[73] Prior to Conway, the tests for determining whether an administrative tribunal had jurisdiction to apply s. 52(1) of the Constitution Act, 1982, and whether it had s. 24(1) jurisdiction, were distinct.
[74] The test for s. 24(1) jurisdiction required consideration of whether the court or tribunal had jurisdiction over the parties, the subject matter and the remedy. See Ontario v. 974649 Ontario Inc. ("Dunedin"), 2001 SCC 81, [2001] 3 S.C.R. 575. If it did, the court or tribunal would be found to be competent to grant s. 24(1) remedies. Determining jurisdiction over the remedy required an assessment of legislative intent in light of the tribunal's function and structure: R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623, at para. 27.
[75] The test for determining s. 52(1) jurisdiction was slightly different. If the administrative tribunal had jurisdiction to decide questions of law, then it was presumed to have jurisdiction to apply s. 52(1) and consider the constitutional validity of sections of its constituent statute unless that jurisdiction had been withdrawn by the legislature, explicitly or by clear implication: Martin v. Nova Scotia (Workers' Compensation Board), 2003 SCC 54, [2003] 2 S.C.R. 504. The principle underlying this test was succinctly explained at para. 36 of Martin: "the power to decide a question of law is the power to decide by applying only valid laws."
[76] In Conway, the Supreme Court of Canada decided to merge these two separate lines of authority. The logic behind merging the two lines was explained by the court, at para. 80:
If … expert and specialized tribunals with the authority to decide questions of law are in the best position to decide constitutional questions when a remedy is sought under s. 52 of the Constitution Act, 1982, there is no reason why such tribunals are not also in the best position to assess constitutional questions when a remedy is sought under s. 24(1) of the Charter.
[77] In other words, the court reasoned that if there is s. 52(1) jurisdiction, then s. 24(1) jurisdiction should logically follow unless withdrawn, explicitly or by clear implication. In the present case, because s. 52(1) jurisdiction is precluded by statute, that logical flow has been broken. This, in my view, must be accounted for in applying the Conway test to determine the s. 24(1) jurisdiction of the Board.
(c) Application
[78] What, then, is the approach to be taken when the legislature has excluded by statute the Board's power to find legislation invalid under s. 52(1) of the Constitution Act, 1982? In my view, this signals that, in applying the Conway test for s. 24(1) Charter jurisdiction, the weight to be given to the Board's power to decide questions of law is somewhat attenuated. By removing the Board's ability to consider the constitutional validity of the legislative framework in which it operates, the legislature is signalling clearly that the Board is to be bound by the terms of its statute. It would seem to me that this feature is of particular relevance when addressing the second step of Conway – whether the legislature explicitly or by clear implication intended to exclude the Charter from the Board's jurisdiction.
[79] The appellant and the intervener argue that by specifically excluding s. 52(1) jurisdiction and remaining silent with respect to s. 24(1) jurisdiction, the legislature must, logically, have intended that the Board have s. 24(1) jurisdiction. I disagree. In my view, by excluding s. 52(1) jurisdiction, the legislature expressed an intention that the Board be bound by its statute; this, in turn, suggests that similar limits were intended with respect to the remedies or dispositions that the Board is empowered to grant. In other words, this points to an intention of the legislature that the Board is to carry out the functions with which it has been tasked using the arsenal of remedies provided in its statutes. It is not to undertake the broader inquiries, and consider the possible remedies, that might be involved in exercising s. 24(1) Charter jurisdiction.
[80] On balance, therefore, I view the legislature's removal of s. 52(1) jurisdiction as indicative but not determinative of a legislative intention to also remove s. 24(1) jurisdiction. I turn now to the application of the Conway test.
[81] The Attorney General conceded in oral argument that the Board has jurisdiction to decide questions of law. In light of this concession, I will focus my analysis on the second step of Conway: determining whether, by implication, it is clearly demonstrated that the legislature intended to exclude s. 24(1) Charter jurisdiction from the Board.
[82] For the reasons that follow, I have concluded that the legislature clearly intended that s. 24(1) jurisdiction be removed from the Board.
[83] I reach this conclusion in light of the fact that s. 52(1) jurisdiction was removed, but also for several other reasons: the strict timelines under which the Board operates; the limited dispositions available to the Board; the composition and expertise of the Board; the provisions for the appeal of the Board's decisions; and the fact that, in making its decisions, the Board can and does take Charter rights into account. I will address each of these in turn.
(i) Strict Timelines
[84] As explained earlier, the statute sets very strict timelines for a Board hearing to begin, the decision to be rendered and the reasons to be issued. These tight timelines are understandable and, indeed, necessary given the nature of the matters that are decided by the Board. In many cases, the Board is dealing with crisis situations where persons have become a danger to themselves or are in need of immediate treatment they do not consider to be necessary. Barring an emergency, treatment is stayed until the final disposition of the review and appeal process. Clearly, delays are contrary to the objective of the legislation in such cases.
[85] The appellant argues that little significance should be given to the tight timelines because, if Charter issues are raised, the parties can simply agree to adjourn the proceeding. While this is correct, adjournments run contrary to the objective of the statute, which is to have the matter heard and the decision rendered promptly. This also assumes that adjournments will be agreed to when requested and that delay will not have any negative impact. Neither assumption is necessarily correct. Where an adjournment is not consented to, the Board may find itself burdened with the task of enquiring into and deciding s. 24(1) Charter issues within this tight timeframe, which risks impeding its ability to properly and promptly exercise its statutory function. Where the proceeding is adjourned, the pressure to decide quickly is nonetheless present and repeated delays invariably result in wasted resources.
[86] As explained in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 87, a principal aim of the Health Care Consent Act is to facilitate treatment for incapable patients. Delay would frustrate that purpose.
[87] Finally, the Board operates quite differently from tribunals such as the Ontario Review Board ("ORB"), which was the subject of the Conway decision. The ORB schedules its hearings well in advance, which allows the parties time to provide adequate notice of the intention to raise Charter issues and to prepare materials, evidence and reports. Board hearings, by contrast, are scheduled on very short notice, as they must comply with the statutory provision that a hearing is to commence within seven days of an application being made. Absent an adjournment on consent, this short timeline does not allow for compliance with the statutory requirement of giving a notice of constitutional question 15 days in advance: Courts of Justice Act, s. 109(2.2).
(ii) The Dispositions Available to the Board
[88] In Conway, the Supreme Court of Canada indicated that the availability of the particular remedy sought is not to be considered until the third step of the Conway analysis. This does not, however, mean that the ability of the Board to grant remedies more generally is not a factor to be considered in determining the legislature's intention.
[89] Although Hynes was decided before and partly overruled by Conway, the considerations set out in Hynes, while not determinative, are still relevant – particularly where the legislature has removed s. 52(1) jurisdiction. As explained by the court in Hynes, at para. 27, one indication of legislative intent is whether the tribunal is equipped with procedures and processes capable of fairly and justly resolving the Charter issues that arise. Although the court went on to focus on the availability of the specific remedy sought in that case, it is the broader assessment of the tribunal's ability to grant effective remedies for Charter breaches that I consider relevant at this stage of the Conway analysis.
[90] As noted earlier, the remedial powers of the Board are circumscribed by various statutes. The statutory dispositions prescribed are limited. When viewed together with the Board's mandate, procedures and processes, this suggests that the legislature did not intend to empower the Board to grant a broad array of relief under s. 24(1) of the Charter. Although I need not decide the issue, it is likely that, as with the ORB, the Board would be found not to have the power to grant remedies such as costs or damages: see Re Starz, 2015 ONCA 318, 125 O.R. (3d) 663, and Re Chaudry, 2015 ONCA 317, 125 O.R. (3d) 641.
[91] When a tribunal is limited in the type of remedy it can grant pursuant to s. 24(1), there is a significant risk of bifurcated proceedings and uncertainty as to which body, the tribunal or the Superior Court, should carry out the fact-finding necessary to determine whether there was a Charter breach.
[92] If the Board had s. 24(1) jurisdiction, then it would be a proper forum to determine whether a Charter breach had occurred. In cases where the Board did not have the power to grant the remedy sought, however, an applicant would have to bring a proceeding in Superior Court, which has plenary jurisdiction under s. 24(1), to obtain the requested remedy. In such circumstances, there is the risk of confusion and conflicting findings. Moreover, such bifurcation would impede, rather than promote, prompt access to effective Charter remedies. It is, in my view, unlikely that the legislature intended such a result.
(iii) The Composition and Expertise of the Board
[93] With the exception of the Chair, the Board is composed entirely of part-time members. The make-up of the panel of the Board hearing a review is tailored to the issues it is called to rule on; as noted earlier, these are principally involuntary committal and capacity to consent to treatment. The expertise of these panels is not Charter litigation.
[94] The Board's function is primarily forward-looking and non-adversarial. Nothing in the relevant statutes suggests that the Board is to review and assess prior misconduct. For example, s. 41(1) of the Mental Health Act provides that upon an application the Board is to determine whether or not the conditions for involuntary status "continue to be met at the time of the hearing". The issue is not, therefore, whether the original determination was correctly made but rather whether the patient still meets the conditions. The process is more inquisitorial than fault- or blame-based.
[95] Further, if Charter issues are to be decided by the Board, this will frequently require adding parties who are alleged to have participated in a breach of the applicant's Charter rights. In the present case, it is the physician, Dr. Joannou, who is alleged to have breached the appellant's Charter rights. If the appellant had sought relief against the hospital, the Public Guardian and Trustee or even the staff who assisted Dr. Joannou in administering the injection, or if Dr. Joannou had sought to attribute blame based on the conduct of any of these, they would likely also have been parties to the proceeding. Adding any party to the proceeding will delay and complicate what is intended to be an expeditious process.
(iv) Appeals of Board Decisions
[96] Appeals from decisions of the Board are to the Superior Court pursuant to an expedited procedure. This further supports a legislative intention to limit the Board to the functions assigned to it by statute and to exclude s. 24(1) Charter jurisdiction. Significantly, on an appeal from the Board under the Health Care Consent Act or Mental Health Act, the Superior Court can receive new or additional evidence as it considers just: Health Care Consent Act s. 80(9); Mental Health Act s. 48(3). This is somewhat akin to the two-stage process discussed in Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22. The appeal structure allows a party who appeals a Board decision to introduce additional evidence on the appeal, with the court's consent. The issues before the Superior Court could potentially be broadened to include alleged Charter breaches and remedies sought.
[97] If necessary, it is open to an appellant to combine the appeal with an originating application to the Superior Court seeking Charter remedies. This ability to rapidly appeal to the Superior Court and introduce fresh evidence is in contrast to the procedure for appealing decisions of the ORB, which was found to have s. 24(1) jurisdiction in Conway. An appeal from the ORB is directly to the Court of Appeal, which is not a court of inherent jurisdiction, and the admission of fresh evidence is circumscribed by s. 672.73 of the Criminal Code.
(v) The Board Can Take Charter Rights Into Account
[98] Even though the Board does not have s. 24(1) Charter jurisdiction, it is not prevented from taking the Charter into account in applying the statutes under which it operates and exercising the discretion it has under those statutes. The Board's authority derives from statute, which should not be interpreted as conferring the power to infringe the Charter, unless this power arises by necessary implication. Statutory discretion must, therefore, be exercised in a way that complies with the Charter, interfering with its protections no more than necessary given the statutory mandate: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pp. 1077-78; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at paras. 39-40.
[99] The Board's decisions often have a direct impact on fundamental Charter rights, such as the right not to be detained and the right to control one's body. See Gligorevic v. McMaster, 2012 ONCA 115, 109 O.R. (3d) 321, at para. 60. In deciding issues of detention and consent to treatment, the Board is often engaged in balancing Charter rights, such as those under s. 7 of the Charter, against the objectives of the statutes which the Board is mandated to apply. This balancing reflects the Board's obligation to exercise its discretion in a Charter-compliant way. Thus, while the Board does not have s. 24(1) Charter jurisdiction, it is not precluded from considering the impact of its decisions on Charter rights.
[100] Moreover, as explained in Conway, at para. 103, Charter rights can be effectively vindicated without separate applications, through the exercise of the statutory powers and processes of the Board. Where the facts underlying a Charter breach are otherwise relevant to the statutory discretion of the Board, they may be taken into account in the exercise of that discretion: see R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 47. In the present case, the Board found that the facts at issue were not relevant to the discretion it was exercising under the Mental Health Act.
(d) Conclusion
[101] For these reasons, I conclude that the Board is not a court of competent jurisdiction under s. 24(1) of the Charter.
[102] This is not to say that a person, such as the appellant, who considers herself aggrieved has no remedy. If appropriate, relief can be sought by way of a Charter application in Superior Court or through other less cumbersome processes for addressing any concerns, such as complaints to the professional or regulatory bodies that oversee the relevant parties.
(3) Did the July 10, 2014 Injection Violate the Appellant's s. 7 Charter Rights?
[103] In light of my conclusion that the Board does not have Charter jurisdiction, I need not deal with this issue.
E. Conclusion
[104] For these reasons, I would dismiss the appeal. As agreed by the parties, I would make no order as to costs.
"Paul Rouleau J.A."
"I agree S.E. Pepall J.A."
"I agree L.B. Roberts J.A."
Released: August 17, 2017
