COURT FILE NO.: CV-20-642038 DATE: 20200811

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF Appeal from a decision of the Consent and Capacity Board, Pursuant to the Mental Health Act, R.S.O. 1990, chapter M.7, As amended,

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

BETWEEN:

K.M. Appellant – and – DR. TAPAN BANIK Respondent

COUNSEL: Eyitayo F. Dada, for the Appellant Jennifer L. Hunter and Ashley D. Boyes, for the Respondent

IN WRITING: August 11, 2020

REASONS FOR DECISION

SANFILIPPO, J.

Overview

[1] The Appellant brought this appeal from a decision of the Consent and Capacity Board (the “Board”) dated April 21, 2020 (the “Board Decision”). The Board confirmed the finding made on February 21, 2020 by the Appellant’s treating psychiatrist, the Respondent Dr. Tapan Banik, that the Appellant is not capable of consenting to treatment with anti-psychotic medication or a community treatment plan. In addition, the Board confirmed that the community treatment order issued on March 5, 2020 satisfied the requirements of the Mental Health Act, R.S.O. 1990, c. M.7, as amended.

[2] The Appellant appealed the Board’s determinations.

[3] For the reasons that follow, I have concluded that the Board’s decisions were based on a correct understanding of the law that the Board was required to apply. The Board had ample cogent evidence on which to make its determination of incapacity as to treatment and to confirm that the criteria for the issuance of the community treatment order had been satisfied. I dismiss the appeal.

[4] I have anonymized the Appellant’s name, considering the personal nature of the evidence.

I. BACKGROUND

[5] The Appellant is a 32-year-old single man. In the eight-year period from 2012 to 2020, he had six admissions to William Osler Health Centre, Brampton Civic Hospital (“Brampton Civic”). In the period from November 12, 2014 to August 8, 2019, nine community treatment orders were issued for the Appellant’s care. But it is his admission to Brampton Civic on January 31, 2020 that gave rise to the finding of incapacity and the issuing of a community treatment order that are at issue in this appeal.

[6] On January 30, 2020, the Appellant’s mother, who was also his substitute decision-maker and one of the persons with whom he resided, called the police because his behavior caused her concern about his well-being. The Appellant has a history of schizophrenia, was not taking the antipsychotic medications that had been prescribed for him and had decompensated, was crying more than usual, pacing and sleeping less. The police brought the Appellant to Brampton Civic.

[7] Dr. Rupinder Kaur Johal noted in his Mental Health Consultation Report of that day the observations of the Appellant’s mother, together with his observations that the Appellant laughed inappropriately in the emergency room, stared blankly, sobbed during assessment, spoke little and did not respond to questioning. He thought that the Appellant might have been hallucinating. Dr. Johal concluded that the Appellant had sustained a relapse and decompensation due to non-compliance with treatment. [1] On January 31, 2020, the Appellant was admitted as an involuntary psychiatric patient.

[8] Dr. Banik is the Appellant’s treating psychiatrist. Dr. Banik examined the Appellant on February 3 and 4, 2020 and prepared reports those days. Dr. Banik recorded the Appellant’s statement that he did not believe that he had any medical condition and did not believe that he required any treatment. Dr. Banik observed that the Appellant was uncooperative in the examination and with treatment and was demonstrating manifestations of his mental condition. Dr. Banik testified that he concluded that the Appellant was unable to appreciate the reasonably foreseeable consequences of treatment or lack of treatment with anti-psychotic medication. On February 4, 2020, Dr. Banik issued to the Appellant a Notice to Patient, Form 33 under s. 59(1) of the Mental Health Act, informing him of Dr. Banik’s determination that the Appellant was not mentally capable to consent to treatment of a mental disorder with antipsychotic medications.

[9] On February 21, 2020, Dr. Banik signed a Notice of Intention to Renew a Community Treatment Order, pursuant to ss. 33.1(4) and 33.1(8) of the Mental Health Act, on Dr. Banik’s determination that the Appellant was “incapable with respect to giving or refusing consent to a proposed community treatment plan”. The Appellant’s mother agreed to act as his substitute decision-maker (“SDM”) and consented to the Appellant resuming treatment with antipsychotic medication.

[10] On the same day, a community treatment plan was prepared, naming Dr. Banik as the issuing physician, stating that the community support for the Appellant would be provided by the Peel Assertive Community Treatment Team (the “ACT Team”), and that the Appellant would take an injectable antipsychotic medication, Invega Sustenna (Paliperidone Palmitate) (the “2020 CTP”). The Appellant’s mother, in her capacity as his SDM, consented to the treatment and care stipulated by the 2020 CTP, which was executed on February 21, 2020 by not only Dr. Banik and the Appellant’s mother, but also by the CTO Coordinator, Skye McLellan, the ACT Team Manager, John Sanni and the Monitoring Physician, Dr. Helene Mik.

[11] On February 24, 2020, the Appellant received rights advice in relation to the CTO, as did the Appellant’s mother the following day. The community treatment order was issued on March 5, 2020 (the “2020 CTO”). In accordance with the 2020 CTO, the Appellant is required to present himself to the ACT Team 1-3 times per week for medication compliance and is required to receive monthly injections of anti-psychotic medication.

[12] The Appellant challenged Dr. Banik’s finding of incapacity and the resultant issuance of the CTO by bringing an application to the Board for review, as is his right under s. 32(1) of the Health Care Consent Act. [2] A panel of the Board heard this matter on April 14, 2020, released its decision that day, and delivered its reasons on April 21, 2020.

II. THE BOARD’S DECISION

[13] The panel of the Board consisted of a senior lawyer, a psychiatrist and a member of the public. The Appellant was represented by a lawyer, now his counsel on this Appeal. Dr. Banik attended the hearing and represented himself.

[14] Dr. Banik testified, and entered into evidence eight exhibits, which included the Notices and Forms under the Mental Health Act, as well as Mental Health Consultation Reports and summaries that I refer to in these Reasons. The Appellant testified and was cross-examined by Dr. Banik. The Appellant filed excerpts from the transcript of the proceeding as part of the Appeal Record, and the Respondent supplemented with further excerpts in the Respondent’s Compendium.

[15] The Board unanimously determined that the Appellant was incapable of consenting to treatment by way of the 2020 CTP, or with antipsychotic medications, and the Board unanimously confirmed the 2020 CTO (the “Board Decision”).

[16] The Appellant brought this Appeal of the Board Decision.

III. THIS APPEAL

[17] The Appellant’s Notice of Appeal seeks the following:

(a) The Board’s determination that the Appellant was incapable of consenting to treatment with anti-psychotic medication and the 2020 CTP be quashed and, in its place, the Court find that the Appellant is capable of consenting to treatment;

(b) The Board’s confirmation of the validity of the 2020 CTP be quashed and, in its place, the Court find that the 2020 CTO did not meet the requirements set out in s. 33.1 of the Mental Health Act.

[18] I will analyze these issues in order.

IV. ANALYSIS

[19] The Appellant brought this appeal of the Board Decision pursuant to s. 48 of the Mental Health Act [3] and s. 80(1) of the Health Care Consent Act. [4] The Appellant has thereby exercised his statutory right of appeal to this Court on questions of law or fact or both.

[20] My analysis of the issues raised by this Appeal begins with consideration of the standard of review.

A. The Standard of Review on Appeal

[21] The Supreme Court of Canada instructed that where the legislature has provided for a statutory right of appeal from an administrative decision to the Court, “a court hearing such an appeal is to apply appellate standards of review to the decision.” [5] The Supreme Court explained that the Court hearing a statutory appeal from an administrative decision will apply a correctness standard in considering questions of law, including interpretation of statutes. [6] This means that the appellate court is free to replace the Board’s opinion with its own on issues of law. [7]

[22] The appellate standard of review for questions of fact and mixed questions of fact and law is “palpable and overriding error” except for any extricable errors of law, which are subject to the correctness standard. [8] A palpable and overriding error of fact is an error that is “plainly seen”. [9]

[23] The Supreme Court stated that the legislature can provide for a different standard of review in a statutory appeal should it so intend, but there is none in the legislation that applies to this appeal.

B. Did the Board Err in Determining that the Appellant is Incapable as to Treatment?

[24] The Board stated that the onus was on Dr. Banik to prove his determination that the Appellant was incapable as to treatment, and to establish that the criteria for the issuance of the 2020 CTO were met, on the civil standard of the balance of probabilities, consistent with the Supreme Court’s guidance. [10] The Board wrote, in my view correctly:

On any review of a CTO under the MHA, and any review of incapacity to consent to treatment under the HCCA, the onus at a Board hearing is always on the physician who issued the CTO or health practitioner to prove the case. [11]

[25] The interpretation of the legal standard for capacity is a question of law and therefore reviewable on a correctness standard. [12] The Board correctly recognized that the Appellant is presumed to be capable to consent to treatment, as provided by s. 4(2) of the Health Care Consent Act. [13] Further, I see no dispute on this Appeal that the Board correctly framed the test for capacity to consent to treatment as being based on s. 4(1) of the Health Care Consent Act, which provides as follows:

A person is capable with respect to a 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.

[26] The Board recognized that a person’s right to make one’s own treatment decision is a fundamental right and can only be displaced where a person lacks mental capacity to do so. [14] The Board’s acknowledgment that “[c]apable people have the right to take risks, to make decisions which others consider unwise, and to make mistakes,” [15] is, in my view, a correct application of the principle stated by the Supreme Court in Starson v. Swayze, 2003 SCC 32:

The Board’s sole task was to determine the patient’s mental capacity. The wisdom of Professor Starson’s treatment decision is irrelevant to that determination. If Professor Starson is capable, he is fully entitled to make a decision that the Board, or other reasonable persons, may perceive as foolish. [16]

[27] The Board correctly stated that its determination of the Appellant’s mental capacity must consist of an assessment of the two criteria set out in s. 4(1) of the Health Care Consent Act. First, the Appellant must be “able to understand the information that is relevant to making a treatment decision.” The Supreme Court stated that “this requires the cognitive ability to process, retain and understand the relevant information.” [17] Second, the Appellant must be “able to appreciate the reasonably foreseeable consequences of a decision or lack of one.” The Supreme Court commented that this “requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.” [18] Both criteria must be established for a finding of capacity.

[28] In regard to the first part of the capacity test, the Board was satisfied that the Appellant was able to understand the information relevant to making a treatment decision. [19] I find that the Board had ample evidence to make this finding. Dr. Banik testified that the Appellant understood the information provided to him about treatment. [20] Dr. Mik stated that that the Appellant likely understood the information provided to him about the 2020 CTO. [21] No appeal is made from the Board’s determination that the Appellant satisfied the first part of the capacity test.

[29] This Appeal on the issue of capacity pivots on the Appellant’s contention that the Board erred in its application of the facts to the second part of the capacity test: specifically, the Board’s finding that the Appellant was not able to appreciate the reasonably foreseeable consequences of a decision, or lack of decision, about the recommended treatments. The Appellant contended that the Board erred in its application of the second part of the test by imputing into it a requirement that the Appellant “accept, acknowledge or appreciate that he suffered from or experienced “mental illness” as a precondition for finding that patient capable with respect to treatment”. [22] I do not accept this submission, for reasons that I will now explain.

[30] In Starson, the Supreme Court instructed that a patient’s refusal to accept the medical practitioner’s diagnosis of his mental condition does not establish, in and of itself, that the patient is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision as to treatment. A patient does not need to accept the physician’s diagnosis in order to apply pertinent information to his own treatment. [23] The Supreme Court stated further, that the patient is not even required to describe his mental condition as an illness, or otherwise characterize his condition in negative terms. However, the Supreme Court made clear that “if it is demonstrated that he has a mental “condition”, the patient must be able to recognize the possibility that he is affected by that condition.” [24]

[31] There is a reason for this. If the patient does not have the ability to recognize the possibility that he is affected by the manifestations of a mental condition, he will not have the ability to process and apply the relevant information and advice to his situation. The patient will therefore not have the ability to appreciate the consequences of treating or not treating his condition. [25]

[32] Here, the Board accepted Dr. Banik’s evidence that the Appellant had a mental condition. Dr. Banik testified to the Appellant’s eight-year history of schizophrenia, necessitating admissions into hospital on five occasions leading to January 31, 2020, comprising total hospital admission of 143 days. [26] The Board had an evidentiary basis on which to accept this finding, which was uncontradicted, and made no palpable and overriding error in doing so.

[33] Further, the Board found that the Appellant’s condition deteriorated when untreated. The manifestations of his mental condition were heightened when not treated with antipsychotic medication. The Board had evidence that in the period from November 2014 to August 2019, the Appellant’s care in the community had been prescribed by nine community treatment orders. [27] The evidence showed that the Appellant had been functioning well under the August 8, 2019 community treatment order, however, upon its expiry, he refused to see his doctor or receive further treatment, resulting in the Appellant being unwell, more withdrawn and more emotional than usual. The Board had evidence from Dr. Banik that upon admission, the Appellant demonstrated the following psychotic symptoms: delusions of persecutions; withdrawal and isolation; lack of self-care; auditory hallucination; paranoid delusions; and disorganization of thought. Upon Dr. Banik resuming the Appellant’s treatment with antipsychotic medication, the Appellant’s condition gradually improved. By the time of his discharge from hospital, the Appellant’s psychotic symptoms had improved.

[34] Through this evidence, the Board had a basis on which reasonably to conclude that the Appellant had demonstrated poor compliance with treatment by medication in the past, and that when he lapsed in his treatment, he experienced substantial mental deterioration and eventual readmission to hospital. I see no palpable and overriding error on the part of the Board in this finding.

[35] The Appellant submitted that the Board failed to take into consideration his evidence that he appreciated the manifestations of his condition – even though he rejected the physician’s diagnosis – such that he was able to make his own treatment decisions. I do not accept this submission, for reasons that I will now explain.

[36] The Board had ample evidence that the Appellant believed that he did not have any mental health condition. The Appellant so stated to Dr. Banik and Dr. Mik, throughout their care of him. [28] In his testimony at the Board hearing, Dr. Banik testified as follows:

He [the Appellant] repeatedly did not acknowledge having any form of mental illness, even though he’s reminded again and again that he has treatment for same illness of schizophrenia in the past with good results. He always insists that he never suffered from any mental illness including schizophrenia and he therefore did not also believe that he required any treatment for schizophrenia which includes antipsychotic medication. [29]

[37] The Appellant testified that he did not know why he had been admitted to hospital on six occasions over the last eight years. He testified that his hospital admissions resulted from “domestic issues”; not from mental health issues. [30] The Appellant testified that he did not believe that he had any mental health problem at the time of the CCB Hearing, and that he did not have any mental health problem over the past several years. [31] He testified that he did not believe that he needed any treatment for any mental health problems. [32] He testified to his understanding that the only purpose of medication was to keep his “psyche” or “brain function” safe. [33]

[38] The Board had a basis on which to corroborate Dr. Banik’s evidence that the Appellant was unable to appreciate that he had any manifestations of a mental condition that required treatment by connecting it with the Appellant’s evidence. [34] Dr. Banik concluded that if the Appellant was unable to appreciate that he had manifestations of a mental condition, he was unable to appreciate that treatment could assist, and he was therefore incapable as to treatment.

[39] The Board was satisfied, from the evidence of Dr. Banik and supported by the evidence of the Appellant, that the Appellant suffered from some form of mental illness. [35] The Board also accepted that the treatment through antipsychotic medication that had been administered to the Appellant through the previous series of community treatment orders had improved his overall functioning and mental health. [36] The Board had ample evidence on which to make these findings. [37] I see no palpable or overriding error.

[40] This is not a case of a patient recognizing that he suffers from manifestations of a mental condition but disagreeing with a diagnosis, and thereby making a reasoned decision to decline to accept the recommended treatment, as is contended by the Appellant. This is an instance of a patient believing that he has no manifestations of a mental health condition, coupled with evidence of improvement in his condition when treated.

[41] The Board had ample evidence on which to conclude that the Appellant did not have the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment because he was unable to recognize that he was suffering from the manifestations of mental disorder and he was unable to appreciate that his condition had historically improved with treatment by antipsychotic medications and deteriorated when he discontinued treatment. As mixed questions of fact and law, I see no palpable and overriding error in these findings. Even if I had considered it necessary to review the Board’s application of the facts to the second part of the capacity test on a correctness standard as a question of law, I would have found the Board’s decision to be correct.

[42] Finally, I have considered the Appellant’s submission that Dr. Banik did not provide the Appellant with all necessary information to make a treatment decision. This submission is based on the Appellant’s evidence that the medical caregivers were simply “drugging him” without “really giving me the basics”. [38] The Board considered this evidence, and it was open to the Board to reject this evidence as part of its fact-finding.

[43] On the issue of capacity as to treatment, I see no error in the Board’s application of the law and no palpable and overriding error on issues of fact and mixed fact and law.

C. Did the Board Err in Determining that the Criteria for Issuing the 2020 Community Treatment Order were Met?

[44] Section 33.1(4) of the Mental Health Act sets out eleven criteria for issuing or renewing a community treatment order. In confirming the 2020 CTO, the Board found that all eleven criteria were satisfied. The Appellant does not contest the Board’s finding that the following eight criteria were established:

(a) The Appellant was a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of thirty days or more, in satisfaction of s. 33.1(4)(a) of the Mental Health Act. Had this not been the case, this section would also have been satisfied by the Appellant being subject to a previous community treatment order during the three-year period preceding the 2020 CTO.

(b) The 2020 CTP was developed by the Appellant’s treating physician, Dr. Banik, his SDM, the ACT Team Manager and the Monitoring Physician, Dr. Helene Mik, in accordance with s. 33.1(4)(b) of the Mental Health Act.

(c) Dr. Banik, had examined the Appellant within seventy-two hours before entering into the 2020 CTP – indeed he did so on the same day – in compliance with s. 33.1(4)(c) of the Mental Health Act.

(d) The Board had a basis on which to find that the Appellant was suffering from a mental disorder such that he needed continuing treatment or care and continued supervision in the community, in satisfaction of s. 33.1(4)(c)(i).

(e) The Board had evidence from Dr. Banik on which it could find that the Appellant met the criteria for the completion of a psychiatric assessment under ss. 15(1) or 15(1.1), in accordance with s. 33.1(4)(c)(ii) of the Mental Health Act. [39]

(f) The Board had evidence that established that the treatment or care and supervision required under the terms of the 2020 CTO were available in the community, in satisfaction of s. 33.1(4)(c)(v) of the Mental Health Act.

(g) The Board had evidence that showed that the physician issuing the 2020 CTO, Dr. Banik, had consulted with the health practitioner and others named in the 2020 CTP, namely, Dr. Mik, the Appellant’s SDM, the CTP Coordinator and the ACT Team Manager, in accordance with s. 33.1(4)(d) of the Mental Health Act.

(h) There was evidence on which the Board could conclude that the Appellant and his SDM consulted with a rights advisor and were advised of their legal rights, in satisfaction of 33.1(4)(e) of the Mental Health Act.

[45] The Appellant’s submission that the 2020 CTO was non-compliant with s. 33.1(4) of the Mental Health Act focused on three statutory requirements: specifically, those set out in s. 33.1(4)(c)(iii), s. 33.1(4)(c)(iv) and 33.1(4)(f). I will review the Board’s handling of these three criteria.

(a) Did the Board err in confirming that if the Appellant did not receive continuing treatment or care and supervision in the community, he was likely, because of a mental disorder, to cause harm or to suffer substantial mental or physical deterioration?

[46] Section 33.1(4)(c)(iii) of the Mental Health Act provides that a community treatment order can only be issued if the physician finds, based on the examination of the patient within a 72-hour period, that:

if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person.

[47] The Appellant contended that the Board did not place appropriate weight on the evidence that the Appellant would not experience substantial mental deterioration until some six to eight weeks post-termination of treatment, meaning that the Appellant would be well for some time before decompensating. Further, the Appellant contended that the deterioration that occurred in the community was not substantial in nature, being emotional upset and withdrawal but not rising to the level of aggression and hallucination. The Appellant also contended that the Board improperly took into consideration the Appellant’s condition after admission at hospital which, the Appellant submitted, was not representative of his mental condition in the community. The Appellant thereby submitted that he could live in the community without treatment and not suffer “substantial” mental deterioration, such that the Board had no basis on which to find that s. 33.1(4)(c)(iii) had been satisfied.

[48] I do not accept these submissions. The Board had evidence that the Appellant had begun to decompensate for over two weeks prior to admission at Brampton Civic on January 31, 2020. Dr. Johal’s examination at the time of admission identified the likelihood that the Appellant was hallucinating. The Appellant cited no authority for the submission that a physician’s observations at the time of admission cannot be considered when analyzing the patient’s deterioration to that point in time.

[49] I also cannot accept the Appellant’s submission that the threshold of “substantial” deterioration was not satisfied in this case because the Appellant lived for some six to eight weeks in the community before deterioration. The fact that the Appellant could cope in the community for some time before deteriorating to the point that his SDM sought medical assistance for her adult son does not mean that the deterioration was insubstantial. The Board had evidence that the Appellant was in considerable mental distress. The Board had evidence of six hospitalizations in eight years, nine community treatment orders in six years, allowing for the conclusion that the Appellant had a history of requiring assistance after living in the community for an extended period without treatment. Indeed, there was no evidence of the Appellant living in the community in his adult life for a prolonged time without treatment and not deteriorating to the point of hospitalization. And there was uncontested evidence that the Appellant required hospitalization on January 31, 2020, a hospitalization that lasted 49 days, after discontinuing treatment.

[50] In my view, the Board had ample cogent evidence on which reasonably to determine that if the Appellant did not receive continuing treatment and supervision while living in the community, he was likely, because of his mental disorder, to suffer substantial mental deterioration.

(b) Did the Board err in confirming that the Appellant was able to comply with the 2020 CTP contained in the 2020 CTO?

[51] Section 33.1(4)(c)(iv) of the Mental Health Act provides that a community treatment order can only be issued if the physician finds, based on the examination of the patient within a 72-hour period, that “the person is able to comply with the community treatment plan contained in the community treatment order”.

[52] The Appellant submitted that he cannot comply with the requirement contained in the 2020 CTP to meet with the ACT Team up to three times a week because of the ongoing COVID-19 pandemic. He submitted that this requirement exposes him to a heighted risk of contracting the virus by use of public transportation to attend appointments.

[53] In review of the Appeal Record, I do not see this submission having been made to the Board. Rather, the Board Decision states that this point was not contested by the Appellant, meaning that it is raised for the first time on this Appeal. [40]

[54] As the Appellant did not lead any evidence before the Board – or indeed even make any submission to the Board – of any difficulty or risk associated with the Appellant attending for treatments during the COVID-19 pandemic, and as this issue was not contested by the Appellant before the Board, there is no basis for the Appellant’s submission in this Appeal that the Board erred in finding that this requirement was satisfied. On this basis, the Appellant’s appeal on this ground cannot succeed.

[55] Had I determined that this issue was capable of being appealed, I would have nonetheless dismissed the appeal of this issue. I can take judicial notice of “the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.” [41] However, I see nothing in the Appeal Record that would support the Court substituting its view for that of the Board on the issue of the Appellant’s ability to attend treatment during the pandemic. There is no evidence that the ability of the health professionals to attend to the Appellant’s care and treatment under the 2020 CTO and the 2020 CTP has been compromised by the public health requirements needed to address the pandemic, or that the Appellant is not able safely to be treated under the 2020 CTP because of the pandemic.

(c) Did the Board err in confirming that the Appellant, or his Substitute Decision-Maker, consented to the 2020 CTP in accordance with the rules for consent under the Health Care Consent Act?

[56] Section 33.1(4)(f) of the Mental Health Act provides that a community treatment order can only be issued if “the person or his substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act.” The Board accepted Dr. Banik’s conclusion that the Appellant suffered from a mental condition and confirmed Dr. Banik’s finding that the Appellant was incapable as to treatment. The Appellant’s mother consented to the 2020 CTP as his SDM, by signing the 2020 CTP on February 21, 2020. This was supported by rights advice received by the SDM on February 25, 2020.

[57] The Appellant submitted that if I were to quash the Board’s confirmation of Dr. Banik’s finding that the Appellant was incapable as to treatment, then the consent of the SDM to the 2020 CTP would be invalidated. Considering my dismissal of the appeal of the Board’s confirmation of Dr. Banik’s finding of incapacity as to treatment, this ground of appeal is rendered redundant.

V. CONCLUSIONS

[58] The Board’s reasoning showed that it reached its decision by hearing the witnesses, assessing and weighing the evidence and drawing inferences from the facts that it reasonably accepted. I find that the Board had ample cogent evidence on which to make its determination that the Appellant was incapable as to treatment, which was based on a correct understanding of the test that the Board was required to apply. The Board applied the statutory requirements to the facts as they found them, with no discernible error. I also find that the Board had ample basis on which reasonably to confirm that the requisite elements for the issuance of the 2020 Community Treatment Order were present. These decisions were rooted in the evidence available to the Board and were justified on the facts and the law. I see no palpable and overriding error. Accordingly, I will not interfere with the Board’s determinations.

VI. DISPOSITION

[59] I order that this Appeal is dismissed.

VII. COSTS

[60] The parties did not make submissions on the issue of costs in their factums on this Appeal, heard in writing. I thereby presume that neither party intended to seek costs of this Appeal.

[61] Presumptively, considering the dismissal of the Appeal, only the Respondent would be in a position to seek costs. However, if either party would like to make submissions on the issue of costs, he may do so by delivery of a written submission of no more than three pages in length plus a bill of costs, served on the party opposite and filed with the Court by August 31, 2020.

[62] If, by August 31, 2020, I do not receive any written submissions on the issue of costs, I will deem the issue of costs to have been resolved.

SANFILIPPO J.

Released: August 11, 2020

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: K.M. Appellant – and – DR. TAPAN BANIK Respondent

REASONS FOR DECISION Sanfilippo J. Released: August 11, 2020

Footnotes

[1] Reasons for Decision of the Consent and Capacity Board, case numbers 20-0077-01 and 20-00770-02, issued April 21, 2020 (the “CCB Reasons for Decision”), at pp. 3, 7 and 9; Mental Health Consultation Report dated January 30, 2020, CCB Exhibit #8.

[2] S.O. 1996, c. 2, Sched. A, s. 32(1): “A person who is the subject of a treatment may apply to the Board for a review of a health practitioner’s finding that he or she is incapable with respect to the treatment.”

[3] Mental Health Act, s. 48: “A party to a proceeding under this Act before the Board may appeal the Board’s decision or order to the Superior Court of Justice on a question of law or fact or both.”

[4] Health Care Consent Act, s. 80(1): “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.”

[5] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37.

[6] At para 37, applying Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Shergar Developments Inc. v. Windsor (City), 2020 ONCA 490, at para. 21.

[7] Housen, at para. 8: “On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness.”

[8] Vavilov, at para. 37, applying Housen at paras. 10, 19 and 26-37.

[9] Housen, at paras. 5-6 and 102. B.L. v. Dr. Jennifer Pytyck, 2020 ONSC 3766, at paras. 23, 26-27; J.G. v. Dr. Vukin, 2020 ONSC 142, at para. 9.

[10] Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 77: “At a capacity hearing, the onus is on the attending physician to prove that the patient is incapable. I agree with the Court of Appeal that proof is the civil standard of a balance of probabilities.”

[11] CCB Reasons for Decision, at p. 3.

[12] Starson, at para. 110, citing Canada (Director of Investigation and Research) v. Southam Inc., 1997 SCC 385, [1997] 1 S.C.R. 748, at para. 35.

[13] CCB Reasons for Decision, p. 5. Starson, at para. 77: “The law presumes a person is capable to decide to accept or reject medical treatment: s. 4(2) of the [Health Care Consent] Act.”

[14] CCB Reasons for Decision, at p. 5.

[15] CCB Reasons for Decision, at p. 6.

[16] Starson, at para. 112.

[17] Starson, at para. 78.

[18] Starson, at para. 78.

[19] CCB Reasons for Decision, at p. 6.

[20] Transcript of evidence of Dr. Banik, Hearing of April 14, 2020, p. 56 of Appeal Record.

[21] Progress Note dated April 2, 2020, Dr. Helen Mik, p. 2, CCB Exhibit #5, pp. 44-45 of Appeal Record.

[22] Appellant Factum, at para. 56.

[23] Starson, at para. 79: “First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances. Psychiatry is not an exact science, and ‘capable but dissident interpretations of information’ are to be expected.”

[24] Starson, at para. 79.

[25] Starson, at para. 79: “Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.”

[26] Consent and Capacity Board Summary, Community Treatment Order Form 28, dated March 31, 2020, CCB Exhibit #3, pp. 35-39 of the Appeal Record (“CCB Summary”). Hospital admissions November 22, 2012 (11 days); October 20, 2013 (24 days); July 9, 2014 (33 days); October 8, 2014 (32 days); June 19, 2018 (43 days).

[27] CCB Summary, p. 36 of the Appeal Record. Community Treatment Orders dated November 12, 2014; May 29, 2015; December 2, 2015; June 1, 2016; January 4, 2017; July 19, 2017; June 29, 2018; January 10, 2019; August 8, 2019.

[28] Mental Health Consultation Report dated February 4, 2020, CCB Exhibit #5, Appeal Record, p. 44; Mental Health Progress Report, CCB Exhibit #6.

[29] Transcript of evidence of Dr. Banik, Hearing of April 14, 2020 (the “Respondent Evidence Transcript”), pp. 56-57 of the Appeal Record. Also, at p. 58: “Well as I said, he didn’t believe that he had any mental illness and he didn’t believe that he required any treatment with any medication including antipsychotic medication.”

[30] Transcript of evidence of the Appellant, Hearing of April 14, 2020 (the “Appellant Evidence Transcript”), pp. 72-73 of the Appeal Record.

[31] Appellant Evidence Transcript, pp. 73-74 of the Appeal Record.

[32] Appellant Evidence Transcript, p. 74 of the Appeal Record.

[33] Appellant Evidence Transcript, pp. 69-70 of the Appeal Record.

[34] 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 [Evidence Act, R.S.O. 1990, c. E.23], 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.

[35] CCB Reasons for Decision at p. 10.

[36] CCB Reasons for Decision at p. 11.

[37] CCB Reasons for Decision, at p. 10: “If [the Appellant] was unable to identify that he suffered from the manifestations of a mental illness, he could not apply information about treatment of that disorder to himself because he could not see how it might apply to him.”

[38] Appellant Evidence Transcript, pp. 68 & 69 of the Appeal Record.

[39] Respondent Evidence Transcript, pp. 54 of the Appeal Record: “Without the CTO as I mentioned, he’s likely to suffer substantial mental deterioration, most likely within six to eight weeks of receiving the last injections and this will lead to further relapse and readmission to hospital.”

[40] Board Decision, at page 17: “On the first page of the Form 49 (Exhibit 1, page 8), Dr. Banik indicated that [the Appellant] was able to comply with the CTP. This evidence was not contested by counsel for KM. The panel was satisfied that the evidence demonstrated that this criterion was met.” [Emphasis added]

[41] R. v. Morgan, 2020 ONCA 279, at para. 8.