Court File No.: CV-14-498655 Date: 2019-03-11 Superior Court of Justice – Ontario

Re: C. F., Appellant And: Dr. Robert Weinstein, Respondent

Before: Stinson J.

Counsel: Suzan E. Fraser, for the Appellant Jessica R. Szabo, for the Respondent

Heard at Toronto: February 1, 2019

Reasons for Decision

[1] These reasons concern a motion brought by the respondent to dismiss this appeal from a decision of the Consent and Capacity Board. For the reasons that follow, I agree with the respondent's submission that the appeal is moot and that I should not exercise my discretion to hear the appeal.

Background Facts

[2] On January 27, 2014, responding to a 911 complaint from his landlady that he was behaving strangely, Toronto police apprehended the appellant pursuant to the Mental Health Act, R.S.O. 1990, c. M.7, and took him to North York General Hospital. A doctor at the hospital certified him on a Form 1 and he was admitted to the psychiatric intensive care area.

[3] On January 30, 2014, the respondent, Dr. Robert Weinstein, a psychiatrist at the hospital, completed a certificate of involuntary admission (Form 3 under the Mental Health Act) based on his opinion that the appellant was suffering from a mental disorder of a nature or quality that likely will result in serious bodily harm to another person. On the same day, the appellant commenced an application to the CCB to review his involuntary status.

[4] On January 31, 2014, Dr. Weinstein certified that the appellant was not mentally capable to consent to treatment of a mental disorder. On the same day, the appellant's substitute decision-maker, his mother, signed a consent to treatment for the administration of neuroleptic (antipsychotic) medications, antidepressants, side effect medications and anti-anxiety medications. Also, on January 31, 2014, the appellant filed an application to the CCB to review the finding of incapacity.

[5] The CCB conducted a hearing on February 7, 2014, at which Dr. Weinstein, the appellant and his mother testified. By decision dated February 8, 2014 and reasons dated February 14, 2014, the CCB confirmed the appellant's involuntary status and also determined that the appellant was not capable with respect to treatment. It thus upheld the opinions and determinations made by Dr. Weinstein.

[6] On February 14, 2014, the appellant served a notice of appeal to the Superior Court from the order of the CCB finding him incapable with respect to treatment. He did not appeal from the Board's confirmation of his status as an involuntary patient.

[7] In light of the appellant's notice of appeal, the treatment that was the subject of Dr. Weinstein's certificate of incapacity did not proceed. The appellant remained in the hospital until June 20, 2014. He received no medications over that time. During the course of his stay, his mother as his substitute decision-maker withdrew her consent to the administration of neuroleptic medication.

[8] The appellant's condition improved over the course of his stay at the hospital. By June 20, 2014, a plan was devised that he would be discharged and stay with his mother at her home in a basement apartment, and the mother would approach a local hospital to try to set up services for the appellant. As well, the appellant agreed to take a prescription for an antidepressant. On this basis, Dr. Weinstein discontinued the appellant's involuntary status.

[9] Since his discharge from the hospital in June 2014, the appellant has had no further contact with Dr. Weinstein or the hospital. There is no evidence that he has had any other contact with the mental health system since his discharge.

Procedural Issues

[10] I inquired of counsel why this appeal has taken so long to come before the court for argument. I was told that a variety of issues had delayed its prosecution, including the retainer and discharge of several counsel by the appellant. It remains the case, nevertheless, that five years have elapsed since the CCB decision.

[11] In advance of the argument of the appeal, counsel for Dr. Weinstein served a notice of motion seeking leave to adduce fresh evidence. On consent, the parties agreed to admit fresh evidence, comprised mainly of Dr. Weinstein's discharge note (which was prepared subsequent to the CCB decision, in June 2014) and a record from the hospital confirming that there had been no further contact with the appellant. Additionally, counsel for Dr. Weinstein notified counsel for the appellant that Dr. Weinstein would be advancing the argument that the appeal was moot and should be dismissed on this ground. By agreement of counsel, I heard argument on the mootness question before hearing any substantive argument in relation to the appeal. I reserved my decision on the basis that, if I decided against the mootness argument, I would schedule a further date for hearing the appeal proper.

Issues and Analysis

Positions of the Parties

[12] The position of Dr. Weinstein is that there is currently no live controversy between the parties and thus a decision in this appeal will have no practical implications on the parties' present circumstances. Dr. Weinstein therefore submits that the appeal ought to be quashed as moot.

[13] The appellant submits that the appeal is not moot because, if it is successful, and the appellant has found to have been capable at the time that he declined treatment, his wishes concerning treatment would be relevant to a substitute decision-maker should he be found incapable in the future. In oral argument, counsel for the appellant further submitted that the appeal is not moot because of its potential reputational consequences for the appellant.

Discussion

[14] The leading case on the doctrine of mootness is the decision of the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. That case confirmed that a court will generally not hear appeals where "the required tangible and concrete dispute has disappeared and the issues have become academic". The court may, however, exercise its discretion to address otherwise moot appeals, but will be guided by three underlying rationales of the doctrine of mootness in making this determination. The three factors to be considered are:

(1) whether, despite the cessation of a live controversy, an adversarial relationship will continue between the parties; (2) whether special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it, such as an important question of a recurring nature that might evade review or if the matter raises an issue of public importance; or (3) whether pronouncing judgements in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch.

[15] The first question to address, therefore, is whether there is a live controversy between the parties, or whether the tangible and concrete dispute has disappeared. It is true that the February 2014 CCB decision upheld Dr. Weinstein's opinion that, at that time, the appellant lacked capacity in relation to consenting to treatment. It is important to note, however, that capacity to consent to treatment is a fluctuating concept, which is time specific and treatment dependent.

[16] Section 15 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (HCCA) makes this explicit:

15 (1) A person may be incapable with respect to some treatments and capable with respect to others. (2) A person may be incapable with respect to a treatment at one time and capable at another.

[17] As was observed by the Supreme Court of Canada in Starson v. Swayze, [2003] 1 S.C.R. 722 (at para 118):

A patient's capacity may fluctuate over time. The Board's decision is specific to the patient's capacity at the time of the hearing.

[18] Thus, the mere fact that Dr. Weinstein and the CCB concluded that the appellant lacked capacity to consent to treatment in early 2014, is in no way determinative of his capacity at a later date.

[19] As I have mentioned, there is no evidence of any further involvement by the appellant with the mental health system since his discharge from care in June 2014. Pursuant to s. 4(2) of the HCCA, there is a presumption that the appellant has capacity. See also s. 2(2) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30. Any future situation in which the issue of the appellant's capacity at that future date will be decided based on the circumstances at that time. The previous CCB decision from February 2014 will have no bearing on that future determination.

[20] Dr. Weinstein no longer seeks to rely upon his original determination that the appellant lacked capacity to consent to treatment. Indeed, he discharged the appellant from the hospital without pursuing his original intention to administer the medication in question. The appellant's substitute decision maker decided against the administration of the medication and the matter was not pursued.

[21] Given these circumstances and the improvement in the appellant's condition and his discharge from the hospital, the correctness or otherwise of the decision of the CCB is of no practical effect at this time. It would therefore seem reasonable to conclude that there is no ongoing tangible or concrete dispute that would warrant the court hearing the appeal.

[22] The appellant nevertheless argues that hearing the appeal and determining the appellant's capacity at the time of the Board hearing could have future implications for him. The argument is that if the Board's finding is overturned, reinstating the presumption of capacity, the fact that the appellant was capable at the time of the previous hospitalization and did not want to be treated, could be deemed to be a "prior capable wish." That would potentially impact a substitute decision-maker's decisions should the patient be found incapable in the future: see s. 21(1) 1. and s. 36(1) of the HCCA.

[23] The appellant points out that other Superior Court decisions have followed this line of reasoning and determined that an appeal of a CCB decision is not moot even though the patient has subsequently been discharged from hospital, on the ground that the outcome may be relevant to a substitute decision-maker's potential future decisions. Among other cases, the appellant relies on M.N. v. Klukach; S.D. v. Horowitz, 2016 ONSC 4457; M.C. v. Shin, 2018 ONSC 2184; and T.K. v. Nagari, 2018 ONSC 4424.

[24] As Dr. Weinstein correctly points out, however, the cases in this court with respect to the mootness of an appeal of a CCB decision after a patient has been discharged have had divergent results. They are driven by the facts of a particular case. Cases in which an appeal has been found to be moot include the following: Dickey v. M.A., 2016 ONCA 961; R.C. v. Geagea, 2017 ONSC 2983; S.G. v. McIntyre, 2018 ONSC 547.

[25] The cases relied upon by the appellant, in my view, can be distinguished from the current case. All involve situations in which there was some basis for concluding that the reversal of the decision of the Board and thus the creation of a prior capable wish made during the time of the alleged incapacity, could have some practical impact for the appellant. Either the appellant had ongoing interactions with the mental health system, or the doctor or hospital in question, or a relatively brief time had elapsed between the decision of the CCB and the timing of the appeal to this court.

[26] In my view, the cases cited by the respondent are more analogous to the present one than the cases relied upon by the appellant. Almost 5 years have elapsed since the finding of Dr. Weinstein was upheld by the CCB. The appellant has been discharged for over 4-1/2 years and there is no evidence of any ongoing engagement by him with the mental health system.

[27] For several reasons, I conclude that there is very little likelihood that any prior capable wish expressed by the appellant during the January to June 2014 time frame would have any importance in the future should he again become incapable, such that his substitute decision-maker would require recourse to any wish expressed by him during that timeframe. First of all, the appellant has had ample opportunity while capable since 2014 to express his wishes regarding potential future care. And there is nothing to prevent him from doing so now, at a time when he is presumed to have capacity.

[28] Secondly, the prospect of the appellant returning into the care of the mental health system is less and less likely as time moves on, and thus the prospect of requiring recourse to a prior capable wish is more and more speculative. Persons with mental health issues do recover regular capacity. It is presumptuous to consider that they are likely to return to the point where a further finding of incapacity to consent to treatment may be necessary.

[29] On the facts of this case, I conclude that the proposed appeal is moot.

[30] I must finally consider whether this is an appropriate case to exercise my discretion to hear the appeal, despite my conclusion that it is moot. To do so I must apply the Borowski criteria set out above. Any decision I might render would have no practical effect on the rights of the parties and it would certainly have no broader application beyond them. There is no ongoing contact between the appellant and the respondent, and thus no adversarial relationship will continue between them. Nor are there any special circumstances of this case that make it worthwhile to apply scarce judicial resources to resolve it. While I do not diminish the bona fides of the appellant in seeking to have the court review his case, at this stage such a review can have no practical effect.

[31] The other argument made by the appellant is that setting aside the Board's finding of incapacity is important for reputational reasons. I do not accept that submission. Health care records are confidential in Ontario. The fact that the appellant was at one stage found to lack capacity to consent to treatment will not be known outside the circle of his health care providers and his family. Any perceived reputational concern on his part is unwarranted and, in any event, cannot justify the deployment of judicial resources to review a five year old decision.

[32] I therefore conclude that I should not exercise my discretion to hear this appeal despite my finding that it is moot.

Conclusion and Disposition

[33] For these reasons, I agree with the submission of the respondent that the appeal is moot and should be dismissed, and I so order. I make no order as to costs.

Stinson J. Date: March 11, 2019