Court of Appeal for Ontario

Date: 20240508 Docket: COA-23-CV-0624

Roberts, Trotter and George JJ.A.

BETWEEN

Rebecca Adsett Appellant

and

Alain Labelle Respondent

Rebecca Adsett, self-represented Hilary Chung, for the respondent

Heard: May 1, 2024

On appeal from the judgment of Justice E.M. Morgan of the Superior Court of Justice, dated May 12, 2023, with reasons reported at 2023 ONSC 2842.

Reasons for Decision

[1] On October 20, 2020, while an involuntary patient at the Royal Ottawa Mental Health Care Center, the appellant was found incapable of consenting to or refusing treatment with antipsychotic medication. On May 7, 2021, the Consent and Capacity Board (the “Board”) upheld that finding.

[2] The appellant appealed the Board’s decision to the Superior Court of Justice, where both parties presented fresh evidence. This fresh evidence confirmed that the appellant’s condition had significantly improved since the Board hearing, that she had been discharged from the hospital, that she had regained her capacity to consent to treatment, and that she was once again attending regular appointments with her attending psychiatrist, the respondent Dr. Alain Labelle.

[3] The appellant’s argument before the Superior Court was that, for various reasons, the finding of incapacity should be quashed retroactively. The Superior Court appeal judge, Morgan J., characterized the appellant’s position as essentially this: to allow the appeal and find that the appellant was capable in October 2020 (and did not want to be treated with antipsychotic medication), would be a prior capable wish that a substitute decision maker would be required to follow were she found to be incapable in the future. Relying on this court’s decision in Dickey v. Alexander, 2016 ONCA 961, Morgan J. rejected the “prior capable wish” argument, concluding that the focus on appeal is the appellant’s “capacity at the time the Board’s hearing was made”: Dickey, at para. 10-11. Morgan J., again relying on Dickey, further found that any impact the finding of incapacity might have on a future substitute decision maker is speculative and “well beyond the currently visible horizon”.

[4] The respondent maintains the position he advanced at the Superior Court, which is, because there is currently no live controversy between the parties, the appeal is moot. He argues in the alternative that, if not moot, the appellant has not identified any errors that would require our intervention.

[5] In our view, this appeal is indistinguishable from this court’s recent decision in Kozoubenko v. Gosk, 2023 ONCA 802. In Kozoubenko, the issue was whether, when an appeal is moot, the court should exercise its discretion and still hear the appeal on the basis that it will have an impact on the appellant’s future rights. Writing for the court, van Rensburg J.A. held, at paras. 22 and 26, that:

The [Health Care Consent Act] provides for a presumption of capacity and recognizes that capacity is assessed with respect to a particular treatment and may fluctuate over time: ss. 4(2) and 15. The Board’s decision is specific to the person’s capacity at the time of the hearing: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 118. This means that in respect of any future treatment, [the appellant] will be presumed capable, and whether he has or lacks capacity to consent to any proposed treatment will have to be assessed at the time the treatment is recommended. [Emphasis Added].

[C]apacity to consent to treatment must be determined afresh each time a new treatment is proposed. Whether or not the appeal is successful, any future treatment that is proposed would require the health practitioner to consider whether [the appellant] is capable of consenting to that treatment at that time. In each case a new capacity assessment would have to be performed. Any subsequent opinion with respect to [the appellant’s] capacity to consent to a particular treatment would also be subject to the review and appeal procedures provided under the HCCA.

[6] The reasoning in Kozoubenko applies with equal force here. This appeal is moot. The question then becomes whether there are special circumstances – per the Supreme Court’s decision in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 – that would warrant hearing this appeal despite it being moot.

[7] When asked to articulate why we should find there to be special circumstances, and hear her appeal, the appellant spoke of her history in the mental health system and alleged that her Charter rights have been persistently violated (by being forced to receive treatment). In addition to this history being, in her view, special circumstances that should lead us to hear the appeal, the appellant sought other relief under the Charter. During her submissions, the appellant was advised that because the Charter issues and additional relief she now seeks was not advanced in the court below, and therefore not properly before us, we could not address it.

[8] On the question that is before us, we are not persuaded that the appellant’s history, and perceived mistreatment, amounts to special circumstances that would permit us to exercise our discretion and hear the appeal despite it being moot.

[9] The appeal is therefore dismissed.

[10] No costs were sought and we order that there be no costs.

“L.B. Roberts J.A.”

“Gary Trotter J.A.”

“J. George J.A.”