Court File and Parties

COURT FILE NO.: CV-18-609424 DATE: 2019-06-06

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF Appeal from a decision of the Consent and Capacity Board, Pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A. As amended,

BETWEEN:

REES KOZOUBENKO Appellant – and – DR. MILENA GOSK Respondent

Counsel: Joanna H. Weiss, for the Appellant Kathryn A. Hunt, for the Respondent

HEARD: March 28, 2019

Reasons for Decision

SANFILIPPO, J.

Overview

[1] The Appellant advanced this appeal from a decision of the Consent and Capacity Board (the “Board”) dated November 16, 2018 (the “Board Decision”) upholding the finding of the Appellant’s healthcare practitioner, the Respondent Dr. Milena Gosk, that the Appellant was incapable of making decisions with respect to treatment with anti-psychotic medication. The appeal is brought pursuant to s. 80(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, as amended (“HCCA”).

[2] The Appellant contended that the Board incorrectly interpreted the second branch of the test for determining the Appellant’s capacity to make decisions about his treatment, as set out in s. 4 of the HCCA: namely, whether the Appellant was able to appreciate the reasonably foreseeable consequences of his treatment decisions. The Appellant submitted that the Board’s decision to uphold the Respondent’s finding of incapacity with respect to treatment with antipsychotic medication was unreasonable. He contended that the Board failed to take into consideration a breakdown in the patient-physician relationship between the Appellant and the Respondent, and misapprehended the evidence, particularly the evidence of the Appellant.

[3] For the reasons that follow, I have concluded that the Board had ample evidence from which to make its determination of incapacity as to treatment. The Board’s decision was based on a correct understanding of the test that the Board was required to apply and was reasonable. I dismiss this appeal.

A. Background

[4] The Board, consisting of a psychiatrist, a lawyer and a community member, heard the oral testimony of the Appellant and the Respondent and received in evidence the following documentary evidence: the Board’s Summary regarding Incapacity to Consent to Treatment; the Appellant’s 2018 outpatient records from London Health Sciences Centre (“London Health Centre”); the Appellant’s admission and progress notes from his admission at the Centre for Addiction and Mental Health (“CAMH”); Form 33 issued October 29, 2018 under the Mental Health Act, R.S.O. 1990, c. M.7; and the Appellant’s discharge statement from London Health Centre dated April 30, 2016.

[5] The evidence showed that the Appellant, then a 22-year-old University student, was taken to London Health Centre on April 29, 2016, after he was seen walking along train tracks on a bridge and was not able to provide a clear statement of his intentions. The Appellant had previously received treatment, for about a year, from the Prevention and Early Intervention Program for Psychosis (“PEPP”) at London Health Centre where he was diagnosed with “psychosis not otherwise specified” and “bipolar disorder with psychotic features”. He was admitted for safety, stabilization and assessment. The Appellant was seen by a social worker and outpatient psychiatrist and was prescribed olanzapine, an anti-psychotic medication, which he declined at that time due to concern for side effects. He was discharged the next day and was scheduled for a follow-up with PEPP.

[6] In the period from May 2016 to September 2018, the Appellant saw Dr. Lena Palaniyappan on an outpatient basis through London Health Centre. The record showed that the Appellant had a history of paranoia and psychotic symptoms. He was treated with olanzapine in dosages ranging between 2.5 mg and 5 mg, as required to address psychotic symptoms.

[7] From August 2018, the Appellant lived in Toronto with his mother, who is his substitute decision maker, and who has provided him with financial support.

[8] On October 26, 2018, the Appellant’s mother called the Toronto Police due to concerns about her own safety, as she found the Appellant’s conduct threatening. The Police took the Appellant to the emergency department of CAMH. The admission records show that the Appellant was exhibiting signs of hostility and paranoia. He told emergency room resident Dr. Aislynn Torfason that he was hesitant to speak because she was a physician and not an investigator, because there was an individual who donated a large amount of money to CAMH who intended to steal his information, and that this individual was listening on the telephone in the hospital interview room. The Appellant admitted that he had stored a number of knives on the balcony of his mother’s apartment, explaining that there was no room for them in the kitchen. He stated that a neighbour was attempting to get into his home, and that he was upset that this neighbour had called him ‘crazy’.

[9] A Form 1, ‘Application for Psychiatric Assessment’ was completed. The Appellant was admitted to CAMH. On October 29, 2018, a Form 3, ‘Certificate of Involuntary Admission’ was completed.

[10] The CAMH records show that Dr. Gosk and Dr. Robyn Winterbottom conducted an assessment of the Appellant. They noted that the Appellant was hesitant to speak, repeating the same suspicions and concerns expressed to Dr. Torfason. The Appellant stated that he did not trust the physicians, and that his communications in the interview room were being secretly monitored by someone seeking to harm him.

[11] Dr. Gosk and Dr. Winterbottom concluded that the Appellant displayed paranoia and grandiose, persecutory delusions. The physicians attempted to discuss the diagnosis of schizophrenia with the Appellant and sought to provide him with information concerning the symptoms of his illness and the rationale for the proposed medication. The Appellant refused to participate, refused to acknowledge the presence of the physicians and disengaged, denying the presence of psychosis or of a psychiatric condition. Dr. Gosk concluded that the Appellant was unable to appreciate his psychiatric symptoms. The Appellant contended that he wanted to see a male psychiatrist and disengaged with Dr. Gosk and Dr. Winterbottom on the basis of their gender.

[12] On October 29, 2018, the Respondent made a finding, together with Dr. Winterbottom, that the Appellant was incapable of consenting or refusing consent to treatment with anti-psychotic medications, both oral and injectable. Dr. Winterbottom completed and provided the Appellant with a Form 33 ‘Notice to Patient’ under s. 59(1) of the Mental Health Act that he was determined to be “not mentally capable to consent to treatment of a mental disorder”. Dr. Gosk and Dr. Winterbottom made this determination on the basis of s. 4 of the HCCA, which provides as follows:

4(1) A person is capable with respect to treatment, admission to a care facility or a personal assistance 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 decision.

[13] The Respondent determined that the Appellant satisfied the first part of the two-part test set out in s. 4 of the HCCA, namely that the Respondent was “able to understand the information that is relevant to making a decision about the treatment…”. The Respondent found that the Appellant did not satisfy the second part of the test, specifically that he was not “able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision”. As the two-part test set out in s. 4 of the HCCA is conjunctive, meaning that both parts must be met, the Respondent determined that the Appellant did not have capacity with respect to treatment with antipsychotic medication.

[14] The Appellant filed an application to the Board under s. 32(1) of the HCCA, to review the Respondent’s finding of incapacity. The Board accepted Dr. Gosk’s evidence that the Appellant passed the first branch of the test for capacity, and therefore found as a fact that the Appellant had the ability to understand the information relevant to making a decision about his treatment. The issue was whether the Appellant was able to appreciate the reasonably foreseeable consequences of a decision or lack of decision about his treatment with anti-psychotic medication.

[15] By decision rendered on November 16, 2018, with reasons released on November 18, 2018, the Board confirmed the Respondent’s finding that the Appellant was not capable of making a decision about his treatment with anti-psychotic medication, stating as follows at pages 7-8 of the Board Decision:

The evidence taken as a whole, including RK’s own testimony, amply supported all of Dr. Gosk’s oral and recorded conclusions regarding RK’s capacity, conclusions which other physicians had also reached. RK was completely unable to see that he was in fact suffering from serious manifestations of mental illness, including ongoing psychosis, paranoia and delusions. He therefore was unable to evaluate information concerning the proposed treatment as it related to his own circumstances, a fact which rendered him incapable to make a decision concerning the treatment.

[16] On November 21, 2018, the Appellant delivered his Notice to Appeal the Board Decision.

B. Issues on Appeal

[17] The Appellant contended that the Board incorrectly interpreted the test for capacity in s. 4 of the HCCA, and that the Board’s decision to uphold the Respondent’s finding of incapacity with respect to treatment with antipsychotic medication was unreasonable. In support of his submission that the Board’s decision was unreasonable, the Appellant submitted that the Board failed to take into consideration a breakdown in the patient-physician relationship between the Appellant and the Respondent and misapprehended the evidence, particularly the evidence of the Appellant.

[18] I will consider these issues in turn.

C. Analysis

[19] A person found incapable by the Board has a right of appeal to this Court in accordance with s. 80(1) of the HCCA: “A party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both.”

(a) Standard of Review

[20] In Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722 at paras. 5, 110, the Supreme Court stated that the Board’s interpretation of the test for capacity is a matter of statutory interpretation and is therefore a question of law that is reviewable on a correctness standard. However, after Starson, the Supreme Court reached a different decision on the standard of review for questions of law in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. In Dunsmuir at para. 54, the Supreme Court held that questions of law that are within the Board’s expertise and that are not central to the development of the law are to be reviewed on a reasonableness standard. However, as I will explain shortly, for the purpose of this appeal it will not matter to the outcome whether I review the Board’s interpretation of the test for capacity set out in s. 4 of the HCCA for correctness or on a reasonableness standard.

[21] On issues of mixed fact and law, the standard is reasonableness. The Board’s application of the law respecting capacity to the facts before it is a question of mixed fact and law and therefore reviewable on a reasonableness standard: Starson at paras. 5, 83-84. As such, my review of the Board’s confirmation of the physician’s finding that the Appellant was incapable is on a reasonableness standard. As the Board is a specialized tribunal, its findings on questions of fact and mixed questions of fact and law in application of one of its ‘home statutes’, the HCCA, are entitled to deference: Starson at paras. 86-87; Dunsmuir at para. 49; I.T. v. L.L. (1999), 46 O.R. (3d) 284 (C.A.) at paras. 14-21.

[22] In Dunsmuir at para. 47, the Supreme Court states that an administrative board’s decision on issues of mixed fact and law will be upheld where the decision is justifiable, transparent and intelligible within the board’s decision-making process, and where the outcome is within a range of “possible, acceptable outcomes”:

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring to both the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

[23] In assessing whether the Board’s Decision is reasonable, the Court must not substitute its own decision, but must look to the record to assess the reasonableness of the outcome: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 15. Further, under a reasonableness assessment, the validity of the result or the reasons for the decision are not undermined if the Board does not make an “explicit finding on each constituent element, however subordinate, leading to its final conclusion”: Newfoundland and Labrador Nurses’ Union at para. 16, citing Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391.

(b) The Board’s Interpretation of the Legal Test

[24] The Appellant contends that the Board erred in its understanding and interpretation of the applicable test under s. 4 by reversing the onus and thereby requiring that the Appellant prove that he was capable. Respectfully, I cannot accept this submission because it is not supported by my analysis of the reasoning in the Board Decision.

[25] In summarizing the law that would guide its assessment, the Board applied the principles set out in paragraph 77 of Starson, stating as follows at page 3 of the Board Decision:

On any review of incapacity to consent to treatment under the HCCA, the onus of proof at a Board hearing is always on the health care practitioner to prove the case. The standard of proof is proof on a balance of probabilities. The Board must be satisfied on the basis of cogent and compelling evidence that the physician’s onus has been discharged. There is no onus whatsoever on the patient. The Board must consider all evidence properly before it. Hearsay evidence may be accepted and considered but it must be carefully weighed.

[26] At page 3 of its Decision, the Board framed and then applied the correct statutory provision:

Under the HCCA, a person is presumed to be capable to consent to treatment (s. 4(2)) and the onus to establish otherwise in this case lay with Dr. Gosk. The test for capacity to consent to treatment is set forth in s. 4(1) of the HCCA, which states: …

[27] The transcript of the hearing conducted by the Board on November 15, 2018 shows that the Board correctly understood that the onus was on the Respondent physician to prove lack of capacity as to treatment on the part of the Appellant. At page 5 of the hearing transcript, the Chairperson explained as follows: “The way we’ll proceed this morning will be that Dr. Gosk will go first because she – the legal requirement is that she prove that you are incapable of consenting to treatment.”

[28] In applying the second branch of the test for capacity set out in s. 4(1) of the HCCA, the Board correctly referred to Day J.’s application of the principles set out in Starson in Neto v. Klukach (2004), 12 Admin L.R. (4th) 101 (Ont. S.C.J.). The Board stated, at pages 6-7 of the Board Decision:

The second branch assesses the ability to evaluate, not just understand, information. The patient must have an ability to appreciate the relevant information as it relates to him or her. … One indicator is whether the person is able to acknowledge the fact that the condition for which treatment is recommended may affect him or her. A second indicator is whether the person is able to assess how the proposed treatment and alternatives, including the treatment could affect his or her quality of life. A third indicator is whether the person’s choice is substantially based on a delusional belief. [para. 10] Can the patient recognize he/she is affected by the manifestation of what has been characterized by others as a mental illness. [para. 25]

[29] The Board’s reasoning showed that it correctly understood that the Respondent was required to prove that the Appellant lacked the ability to understand and appreciate the reasonably foreseeable consequences of a treatment decision, rather than that he lacked an actual understanding or appreciation of those consequences. This is seen in the Board’s conclusion, on pages 7-8 of the Board Decision, that the Appellant was “unable to see that he was suffering from serious manifestations of a mental illness” and was therefore “unable to evaluate information concerning the proposed treatment as it related to his own circumstances” [emphasis mine].

[30] I thereby reject the Appellant’s challenge of the Board’s interpretation of the applicable test under s. 4(1) of the HCCA on either a correctness standard or on a reasonableness standard of review.

[31] The issue that I must now address is whether the Board’s decision was reasonable, in that it comes within a range of reasonable outcomes.

(c) Was the Board’s Decision Reasonable?

[32] The Appellant contended that the Board’s decision was unreasonable because the Board’s findings cannot be reconciled on the evidence in the record. The Appellant submitted that the Board did not have enough information to assess whether the Appellant was unable to appreciate the consequences of his treatment decisions as opposed to failing to appreciate the consequences. At the core of the Appellant’s contention is the finding in Starson that a “competent person has the absolute right to make decisions that any reasonable person would deem foolish”: Starson at para. 76, citing Molloy J. in Starson v. Swayze, [1999] O.T.C. 9 (S.C.) at para. 13.

[33] The Appellant submitted that the failings in the Board’s reasoning manifested principally in three ways: (i) the Board failed to recognize that the physician-patient relationship between the Appellant and the Respondent had broken down, such that the Respondent was unable to assess the Appellant; (ii) the Board misapprehended and misinterpreted the evidence, primarily the Appellant’s evidence, and; (iii) the Board accepted and applied evidence provided by the Respondent that was not corroborated.

[34] I will address these issues in turn.

(i) Did the Board fail to Appreciate a Breakdown in Relationship?

[35] The Appellant contended that the Board’s Decision was unreasonable because the Board failed to take into consideration the breakdown in the patient-physician relationship between the Appellant and the Respondent. The Appellant submitted that the physician did not have sufficient evidence to support her finding that the Appellant was incapable as to treatment because the Appellant refused to be treated by the Respondent because he sought treatment from a male physician. The Respondent submitted that the Appellant’s conduct in continuously attempting to disengage from all CAMH medical caregivers was not as a result of treatment-seeking, but rather was a product of his psychosis, which he was unable to recognize, rendering him unable to make a capable treatment decision.

[36] The Appellant relies heavily on the decision of Quinn J. in Isber v. Zebrowski at para. 85, where the Court held that the failure by the Board to address a breakdown in the physician-patient relationship was “so fundamental an error to render unreasonable the Board’s finding of incapacity”. In that case, Quinn J. quashed the Board’s decision as to incapacity even though, absent the physician-patient breakdown issue, the Board’s decision was adequately supported by its reasons.

[37] The Appellant submitted that he simply did not want to be treated by Dr. Gosk or by any other female physician. The Respondent determined that the Appellant was refusing treatment, regardless of the physician because of his psychosis. The Appellant contended that the Board’s approval of Dr. Gosk’s determination was unreasonable because the evidence showed that the Appellant was prepared to work with other, male physicians.

[38] The Board had evidence that the Appellant was refusing treatment from any physician by reason of delusions and paranoia resulting from his mental illness, including the following:

(a) In the CAMH admission record of October 29, 2018, Dr. Torfason interviewed the Appellant and noted that the Appellant was hesitant to speak to her because he was concerned that she lacked qualifications, suspicious of bias and suspicious of monitoring by others; (b) The CAMH admission records contain the observations of the Respondent and Dr. Winterbottom wherein the Appellant stated that he did not trust them because he thought that they were monitoring and recording him, that the physicians were “showing him” their jewelry and tattoo, and that they were being controlled by others. The Appellant was thereby not going to engage with them. This caused these physicians to conclude that the Appellant had severe paranoia, manifested through suspicion that he was being watched and recorded and that others intended harm to him and his mother. The physicians concluded that he would not engage in discussion because he was distrustful of the emergency room staff; (c) The CAMH progress note of November 2, 2018 records the Respondent’s assessment that the Appellant’s unwillingness to engage in treatment resulted from untreated symptoms of psychosis, posing a risk to himself and to others if he did not take his medication; (d) In the progress note of November 6, 2018, Dr. Winterbottom recorded that the Appellant refused to engage because he did not trust the authenticity of her qualifications and licensing, resulting in her observation that the Appellant’s ability to understand his illness appeared poor; (e) The medical notes of Dr. Sandeep Dhillon on November 8 and 9, 2018 contain evidence that the Appellant was not able to rationally connect with caregivers; and (f) The Respondent noted in the progress note of November 8, 2018, that the Appellant was “exceptionally rude” to staff and to co-patients, and was oppositional and refused to interact with her. The Respondent recorded that the Appellant had an altercation with a male co-patient, and had verbally abused a female co-patient. The Respondent concluded that the Appellant was “malodourous, very guarded and suspicious” and refused to make eye contact or to engage by reason of his illness. She recorded substantively identical remarks on the progress notes of November 14, 2018.

[39] The Board determined that the Appellant’s inability to see that he was suffering from serious manifestations of mental illness and his inability to evaluate information concerning the proposed treatment was present with Dr. Dhillon, a male physician, as it was with Dr. Gosk.

[40] The issue of tension in the Appellant’s relationship with his female physicians was considered by the Board in this case, unlike the situation before Quinn J. in Isber whereby the Court found that the Board had omitted to address the breakdown in the physician-patient relationship. The Board had a basis on which to conclude that the Appellant’s refusal to engage with the treating psychiatrists and staff was not because of his preference for a male physician but rather because of his mental condition. In considering the totality of the evidence on this issue, the Board had a reasonable basis on which to find that the Appellant’s inability to appreciate the reasonably foreseeable consequences of a decision was not affected by the nature of his relationship with the treating physicians but rather by symptoms of his psychosis.

(ii) Did the Board Misapprehend the Appellant’s Evidence?

[41] The Appellant submitted that the Board unreasonably discounted, dismissed or ignored evidence that was favourable to the Appellant. In particular, the Appellant contended that the Board misapprehended his testimony that he recognized that he was possibly suffering from manifestations of a mental condition, that he wanted to be in hospital to get help and treatment and that he wanted the opportunity to work with a different doctor so that he could better understand his mental condition.

[42] The Board noted in its decision that when asked if he might have symptoms of a mental condition of any kind, the Appellant stated: “Without prejudice basis, I might have one.” When asked whether he suffered from psychosis, paranoid thoughts and delusions, the Appellant responded, that: “without prejudice basis, I might”. When asked whether he may have a delusional belief that people are actually breaking into his house, the Appellant testified: “Without prejudice basis, I might think it’s delusional”. When asked whether he would feel any better if he took 2.5 milligrams of olanzapine at the moment, the Appellant responded: “Potentially”. When asked if his belief that people were breaking into his house was delusional, the Appellant testified: “Without prejudice basis, I might think it delusional”. In his initial examination by Dr. Gosk, recorded in the admission record of October 29, 2018, the Appellant stated that he did not know whether he had a mental illness, and denied that he needed medication.

[43] The Board considered the Appellant’s evidence that he told his medical caregivers that he was prepared to take 2.5 mg of olanzapine. However, the Board also noted that the Appellant’s outpatient psychiatrist had increased the dosage to 5.0 mg in May 2018 and that the Appellant stated that he would take the lower dosage of 2.5 mg, and that the Respondent was recommending paliperidone. The Board noted that the Appellant denied that there was any clinical proof that olanzapine was effective for his conditions and that he stated that he was prepared to take fish oil and vitamins as responsible treatment for his psychosis. The Board made reference to the note by the Appellant’s outpatient psychiatrist, made in the course of providing treatment, that the Appellant lacked insight into the nature of his delusions.

[44] The public board member specifically asked the Respondent how she could explain the Appellant’s willingness to take olanzapine if she also believed that he was denying a mental illness. The Respondent testified that the Appellant was willing to take olanzapine so that he could be discharged from hospital, not because he appreciated that he had a psychiatric condition that was affecting him.

[45] The Board noted the Appellant’s evidence and weighed it against the remainder of the evidence in the record, as it is entitled to do. I find that the Appellant has not established that the Board misapprehended the Appellant’s evidence.

(iii) Was the Evidence Relied on by the Board Corroborated?

[46] Section 14(1) of the Evidence Act, R.S.O. 1990, c. E.23 is applicable to this case, and requires that for the Board to uphold the Respondent’s finding of incapacity as to treatment, the Respondent’s evidence must be corroborated.

[47] In Anten v. Bhalerao, 2013 ONCA 499, 366 D.L.R. (4th) 370 at para. 30, Rosenberg J.A. stated that “in an appropriate case a physician’s evidence can be corroborated, within the meaning of s.14, by a patient’s own evidence”, preferably through the decision-maker connecting the physician’s evidence with the corroborating patient evidence: also, Starson at para. 115; Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R. (3d) 481 at paras. 38, 40. In Farquhar-Lockett v. Jones, 2016 ONSC 346 at paras. 68-71, DiTomaso J. held that corroboration can be based on circumstances present in the record, without the necessity of direct corroboration by another witness or on every element of the evidence relied on by the Board.

[48] In M.M. v. De Souza, 2016 ONCA 155 at para. 20, the Court of Appeal held that the Board is able to rely on hearsay evidence in determining whether the physician’s evidence was corroborated. In that case, the physician’s evidence was corroborated by the patient’s testimony in addition to the medical and consultation notes from the patient’s attendance at the hospital and letters from family members, even though these witnesses did not testify. Huscroft J.A. stated, at para. 21, that “the question is not whether there was any evidence supporting the Board’s decision but, instead, whether the Board reached a reasonable decision given that evidence.”

[49] Here, the Board Decision shows that the Board addressed whether the physician’s evidence was corroborated. The Board relied on the London Health Centre report of May 23, 2018, authored by Dr. Lena Palaniyappan, where he noted as follows:

He continues to be concerned about his weight gain and continues to show reluctance to increase his olanzapine from 2.5 to 5 mg. I recommended to him to increase the dose as soon as possible as reduction in dose might have contributed to relapse of some of his delusional symptoms. Unfortunately, he continues to lack insight about the nature of these symptoms. Even though he is aware of the symptoms, he is not appreciating the pathological nature of these problems and not attributing this to mental illness. … I suspect that if his delusional symptoms escalate or if they start interfering with his functioning, it will be important to treat him even if it is against his will in the future. [Emphasis added]

[50] Although Dr. Palaniyappan’s outpatient notes of May 28, 2018 to July 2018 record that the Appellant was taking 5 mg of olanzapine during that time, the Appellant stated that he stopped taking the medication in the period leading to his admission to CAMH. This is corroborated by the Appellant’s mother’s statement that she found blister packs of medication that had not been taken, and by Dr. Dhillon’s assessment record of November 8, 2018: “He described that he stopped taking his olanzapine about 1 month ago for no clear reason”. Dr. Dhillon’s evidence also corroborated Dr. Gosk’s finding that the Appellant was showing signs of delusion and paranoia, asking Dr. Dhillon not to trip him while he was walking and stating that his apple juice is tainted with anti-psychotics.

[51] The Appellant’s evidence corroborated the evidence of the Respondent on material points. Dr. Gosk questioned the Appellant at the hearing by telling him that she thought that he had a psychotic disorder that makes him paranoid and that the anti-psychotic medication would help with the paranoid delusions. The Appellant responded by stating that unidentified people helped Dr. Gosk and Dr. Winterbottom through medical school. On another instance, the Respondent stated to the Appellant that he told Dr. Dhillon, Dr. Neufeld and Dr. Torfason, in addition to Dr. Winterbottom, that he does not have a psychiatric disorder. The Appellant responded by complaining that he had been declared incapable as to treatment. The Appellant testified that he did not have to explain the evidence that he has that people are trying to harm him, stating: “It is like a higher-authority-over-Dr. Gosk issue”.

[52] I conclude that the Board had corroborative evidence that confirmed Dr. Gosk’s evidence, including her diagnosis. This was in the form of the detailed records from London Health Centre; and the evidence of Dr. Gosk’s colleagues, Dr. Dhillon, Dr. Neufeld and Dr. Torfason, as contained in the detailed CAMH records. The Board Decision shows that this evidence was reviewed by Dr. Gosk and reasonably accepted by the Board. The Appellant’s testimony provided further corroboration, particularly that he was not able to see that he was suffering from manifestations of a mental illness and that he was unable to evaluate information regarding the proposed treatment.

(iv) Taken as a Whole, was the Board’s Decision Reasonable?

[53] In Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 55, the Supreme Court stated that a decision will satisfy a reasonableness standard if it is supported by a tenable explanation, “even if this explanation is not one that the reviewing court finds compelling”. The Court explained, at para. 56, that the reviewing court’s analysis on appeal must be whether the reasons, taken as a whole, support the decision:

This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.

[54] Taken as a whole, the Board’s Decision was based on two findings:

(a) The Appellant was unable to see that he was suffering from serious manifestations of mental illness; and (b) The Appellant was unable to evaluate information concerning the proposed treatment as it related to his own circumstances.

[55] The Board’s Decision that the Appellant was unable to see that he was suffering from serious manifestations of mental illness was based on the evidence of Dr. Gosk, as supported by the Appellant’s testimony and the records filed before the Board. The Appellant denied in testimony that his storing of knives on his balcony, suspicion of his neighbour, and concern over apartment break-ins, constant surveillance and recording by others were symptoms of his mental illness. He so stated to other medical caregivers, as detailed in the records. He swore that he had evidence that these concerns were fact-based, that people were preparing to break into his home and cause him harm, but that this evidence was of concern only to an authority higher than Dr. Gosk.

[56] The Board had evidence on which to reasonably conclude that the delusional beliefs held by the Respondent pertaining to the physicians, including that they were unqualified, influenced by payments from others, unlicensed and unsuitable, rendered him unable to appreciate or to understand the consequences of a treatment decision pertaining to anti-psychotic medication. His distrust of the all-female CAMH staff that was caring for him – later supplemented by psychiatrist Dr. Dhillon in response to his stated preference to be treated by a male physician – provided a basis for a finding that he was not able to receive information and process pertinent treatment details about his mental condition.

[57] By reason of these findings, the Board concluded that this case was different than the one presented to the Supreme Court in Starson. There, the Court found that Professor Starson was able to appreciate the consequences of a decision regarding his treatment but decided to endure the symptoms of his illness rather than the adverse effects of treatment. Instead, here the Board concluded that the Appellant lacked the ability to apply the relevant information to his circumstances, and was thereby not able to weigh the foreseeable risks and benefits of a decision or lack thereof.

[58] The Board’s reasoning showed that it reached its decision by hearing the witnesses, assessing the evidence and drawing inferences from the facts. I conclude that the Board’s Decision, taken as a whole, was among the range of conclusions that could reasonably be reached on the law and evidence before the Board.

D. Conclusions

[59] Major J., in speaking for the majority in Starson, stated at para. 86:

…the Board is likely to enjoy some measure of institutional expertise with respect to determinations of capacity. … The Board is uniquely positioned to hear the viva voce evidence of the patient and physicians. These factors suggest that determinations of capacity should generally be entrusted to the relative expertise of the Board.

[60] The Board is an expert tribunal applying a statute within its area of specialization. I find that it had ample evidence from which to make its determination of incapacity as to treatment, which was based on a correct understanding of the test that the Board was required to apply and was reasonable, in that it was within a range of reasonable outcomes. I conclude that the Board’s decision is entitled to deference. I will not interfere with it.

E. Disposition

[61] I order that this appeal be dismissed.

F. Costs

[62] The Appellant and the Respondent agreed that neither would seek costs of this Appeal. As such, this appeal is dismissed without costs.

Sanfilippo J.

Released: June 6, 2019