COURT FILE NO.: CV-21-665074 DATE: 20220405 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an 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 an 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:

C.B. Appellant – and – DR. AMIR BARSOUM Respondent

Counsel: Anita Szigeti and Tanner Blomme, lawyers for the Appellant Margaret Robbins, lawyer for the Respondent

Heard (By Videoconference): January 20, 2022

REASONS FOR DECISION

A.A. SANFILIPPO, J.

Overview

[1] On June 19, 2021, the Consent and Capacity Board issued two decisions affecting the Appellant. First, the Board confirmed a Community Treatment Order dated May 12, 2021 (the “May 2021 CTO”) and its Community Treatment Plan (“CTP”) that had been issued by the Respondent, Dr. Amir Barsoum. Second, the Board confirmed Dr. Barsoum’s finding of the Appellant’s incapacity with respect to treatment with antipsychotic medications and the CTP.

[2] The Appellant asks, in this Appeal, that the Board’s decisions of June 19, 2021 be set aside or quashed, and that the May 2021 CTO and CTP be revoked.

[3] The Respondent submitted that the Board made no reversible error in confirming Dr. Barsoum’s finding that the Appellant was incapable with respect to treatment for antipsychotic medication. The Respondent submitted that the appeal of the Board’s determinations regarding the May 2021 CTO and the CTP should be dismissed as moot. The basis for the Respondents submissions on mootness was that the May 2021 CTO expired by its terms on November 11, 2021; a new CTO was issued on November 4, 2021; and a further Board hearing was conducted on January 13, 2022 wherein the Board confirmed that the criteria for issuing or renewing the November 2021 CTO were met.

[4] For the reasons that follow, I have concluded that the Board made no reversible error in confirming Dr. Barsoum’s finding that the Appellant was incapable with respect to treatment for antipsychotic medication. The remainder of this Appeal is dismissed, as moot.

[5] The Appellant sought an Order that there be no publication of the names of the Appellant or of his immediate family members who share his surname. I grant this Order, on consent. I have anonymized the Appellant’s name, and the names of his family members, considering the personal nature of the evidence.

I. BACKGROUND

[6] At the time of the Board’s hearing, C.B. was 34 years old and living in the community with his mother. C.B. was diagnosed at the age of 23 with chronic treatment refractory schizophrenia. The record showed that C.B.’s illness is characterized by delusions, paranoia, agitation, irritability, disorganized thought processes and threatening behaviour.

[7] Dr. Barsoum has been C.B.’s treating physician and health care practitioner since 2014. Prior to Dr. Barsoum’s involvement, C.B. had been a patient in a psychiatric facility for one month in 2011, approximately 4 months in 2012 and approximately 2 months in 2013. During those years, when not an inpatient, C.B. had been subject to two Community Treatment Orders (“CTO”) issued under the Mental Health Act, R.S.O. 1990, c. M.7 (the “MHA”).

[8] Since 2016, Dr. Barsoum has issued and renewed at least nine successive CTOs for C.B., all issued under the MHA. Dr. Barsoum testified that C.B. was hospitalized for nearly all of 2017, being discharged for only days at a time before requiring rehospitalization, and was hospitalized for five months in 2018. C.B. was hospitalized for only six days in the three-year period from 2018 to 2021 by reason, according to Dr. Barsoum, of a series of CTOs that allowed C.B. to function in the community.

[9] C.B. was subject to three successive CTOs in the period immediately leading to April 2021. In 2020, C.B. was subject to: (i) a CTO that Dr. Barsoum issued on July 12, 2019, which continued until January 11, 2020; (ii) a CTO issued on March 3, 2020, that continued until September 2, 2020; and (iii) a CTO issued on October 26, 2020 that had effect until April 25, 2021.

[10] This Appeal concerns an assessment made by Dr. Barsoum on April 16, 2021 of C.B.’s capacity to consent to a renewed CTP and to anti-psychotic medication. Dr. Barsoum testified, and the clinical records showed that C.B. denied that he had any illness for which he required any treatment, denied that his anti-psychotic medication was providing any benefit and disagreed that the medication was allowing him to function out of hospital in the community.

[11] Following the assessment of April 16, 2021, Dr. Barsoum concluded that C.B. remained incapable of consenting to treatment with antipsychotic medications and the CTP, on the basis that C.B. lacked insight into his illness and thereby lacked the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment. On April 16, 2021, Dr. Barsoum issued a “Notice of Intention to Issue or Renew Community Treatment Order” (Form 49) under ss. 33.1(4) and 33.1(8) of the MHA (the “April 2021 Notice of Renewal”).

[12] On April 21, 2021, Dr. Barsoum discussed the details of the CTP with C.B.’s substitute decision maker, his father, T.B. Rights advice was provided to both C.B. and T.B. on April 22, 2021, and both were given copies of the April 2021 Notice of Renewal and the CTP. On April 22, 2021, C.B. and T.B. executed a Confirmation of Rights Forms (Form 50, under the MHA) (the “Confirmation of Rights Forms”).

[13] On April 23, 2021, C.B. advanced two applications to the Board for review of the determinations made by Dr. Barsoum:

(a) A Form 48 application under the MHA to review whether the criteria were met for the issuance or renewal of the CTO, assigned CCB file number 21-0479-01; and

(b) A Form “A” application to review Dr. Barsoum’s finding of incapacity under ss. 32(1), 50(1) or 65(1) of the Health Care Consent Act, S.O. 1996, c. 2, Sched. A (the “HCCA”) regarding the CTP and antipsychotic medication, assigned CCP file number 21-0479-02.

[14] On May 12, 2021, Dr. Barsoum issued a “Notice to Person of Issuance or Renewal of Community Treatment Order” (Form 46) under s. 33.1(10) of the MHA (the “May 2021 Notice”), and with it issued a Community Treatment Order (Form 45) under the MHA (the “May 2021 CTO”). In the May 2021 CTO, Dr. Barsoum wrote as follows:

Without ongoing outpatient follow up and ongoing antipsychotic treatment [C.B.] is at risk of substantial mental deterioration, serious physical impairment, and is at risk of causing serious bodily harm to another person.

[15] The May 2021 CTO had, by its terms, an expiry date of November 11, 2021.

[16] The May 2021 CTO ordered that C.B. comply with the CTP dated April 16, 2021, which contained eight terms: (i) Dr. Barsoum will issue and monitor C.B.’s CTO; (ii) T.B. will encourage C.B. to comply with the CTP and would be available for treatment decisions; (iii) C.B. will continue to take oral and/or injectable medications, as prescribed, monitored and adjusted throughout the CTO by Dr. Barsoum; (iv) C.B. will meet with Dr. Barsoum, or his delegate, every four weeks, or as adjusted; (v) C.B. will attend all scheduled appointments at the Markham Stouffville Medication Wellness Clinic as clinically adjusted by Dr. Barsoum or his delegate for antipsychotic medication administration and/or monitoring; (vi) the CTO Coordinator, Markham Stouffville Hospital, will be available to all members named in the Plan, and will follow-up with appropriate parties to assist with implementation of the CTP; (vii) if C.B. does not comply with the CTP, an order for examination may be issued pursuant to the MHA; and (viii) C.B. will continue to work with his mental health case manager from York Support Services Network, who will provide assessment, supportive counselling, information and referral to other services.

[17] The hearing of C.B.’s applications for review was scheduled for June 4, 2021. On June 3, 2021, C.B. provided notice, through counsel, that he intended to raise two preliminary issues regarding the validity of the May 2021 CTO: first, that the May 2021 CTO should be rescinded because it and the CTP were not given to the Officer in Charge; second, that the incapacity finding regarding the CTP should be rescinded because the CTP contained a requirement – specifically, clause 8 – that was overly broad and vague.

[18] The Board convened on June 4, 2021, with a panel consisting of a Lawyer/Presiding Member, a Nurse in the Extended Class Member, and a Public Member. C.B. was represented by counsel, while Dr. Barsoum appeared on his own behalf. The Board heard the two preliminary motions brought by C.B., finding as follows:

(a) The Board dismissed C.B.’s submission that the criteria for issuing the May 2021 CTO were not satisfied because the May 2021 CTO and the CTP had not been given to the Officer in Charge, as required by s. 33.1(10)(c) of the MHA.

(b) The Board dismissed C.B.’s submission that the May 2021 CTO should be set aside because Clause 8 of the CTP was overly broad, and this rendered the May 2021 CTO invalid.

[19] On June 8, 2021, the Board issued its Reasons for Decisions on the preliminary issues (the “Preliminary Issues Reasons”).

[20] The hearing before the Board continued on June 18, 2021 to review C.B.’s challenge of the issuance of the May 2021 CTO, and to review Dr. Barsoum’s finding of incapacity regarding the CTP and antipsychotic medication. The Board panel on June 18, 2021 consisted of a Lawyer/ Presiding Member, a Psychiatrist Member and a Public Member. The Appellant was represented by counsel, while the Respondent appeared on his own behalf.

[21] The record before the Board included the Applications and forms set out immediately above, and a 32-page record that included: (i) the Board Summary regarding the CTO (Form 48), completed by the CTO Coordinator; (ii) the April 2021 CTO; (iii) the May 2021 Notice; (iii) the May 2021 CTO; (iv) the CTP; and (v) 12 pages of extracts from C.B.’s clinical notes and records spanning between November 2017 and March 2021. Dr. Barsoum testified and was subject to cross-examination. C.B. did not testify.

[22] On June 19, 2021, the Board released two decisions, which I will now explain.

II. THE BOARD DECISIONS

[23] The Board found, on June 19, 2021, that the criteria for the May 2021 CTO had been met:

Pursuant to section 39.1(1) of the Mental Health Act a hearing was held on June 18, 2021 by way of teleconference to review the patient’s Community Treatment Order. … The Board has determined that the criteria for issuing or renewing the Community Treatment Order set out in the Mental Health Act were met at the time of the hearing. The Community Treatment Order is hereby confirmed.

[24] The Board also confirmed Dr. Barsoum’s finding of incapacity with respect to antipsychotic medications and the CTP:

The Board has confirmed the health practitioner’s finding with respect to the following treatment: anti-psychotic medication and the Community Treatment Plan dated April 16, 2021.

[25] To explain the basis for these determinations, the Board delivered Reasons for Decision on June 25, 2021 (the “Reasons for Decision”), which were further to the Board’s Preliminary Issues Reasons.

A. The Preliminary Issues Reasons

[26] C.B.’s first preliminary challenge to set aside the May 2021 CTO was on the basis that the CTO had not been provided to the Officer in Charge. This challenge was based on s. 33.1(10) of the MHA, which provides that “the physician who issues or renews a community treatment order … shall ensure that a copy of the order, including the community treatment plan, is given to … the officer in charge, where applicable”. C.B. submitted that this requirement was applicable because Dr. Barsoum issued the May 2021 CTO through his hospital’s outpatient clinic and the hospital had an officer in charge. Dr. Barsoum contended that s. 33.1(10) requires that the CTO and the CTP must be provided to the officer in charge only where the person affected by the CTO is an inpatient in a psychiatric facility. The Board agreed with Dr. Barsoum.

[27] C.B.’s second preliminary challenge to set aside the May 2021 CTO was on the basis that the CTP was overly broad with the result that C.B. would not be able to understand the requirements to remain in compliance. C.B.’s “overbroad” challenge focused on paragraph 8 of the CTO that required that C.B. “continue to work with his mental health case manager from York Support Services Network”. The Board accepted Dr. Barsoum’s submission that the impugned paragraph 8 was “flexible but not overbroad” when considered together with the other seven terms of the Community Treatment Order and in the context of ss. 33.7 and 33.1(4)(c)(iv) of the MHA.

B. The Reasons for Decision

[28] The Board upheld Dr. Barsoum’s finding that C.B. was incapable to consent to treatment with antipsychotic medications and the CTP. This decision was based on the determination that, while C.B. was able to understand the information relevant to making a treatment decision, by reason of his mental condition, C.B. was unable to appreciate that he was affected by schizophrenia and was unable to appreciate the reasonably foreseeable consequences of a treatment decision. The Board accepted the evidence of Dr. Barsoum, and found that Dr. Barsoum had established, on a balance of probabilities, that C.B. did not have the ability to appreciate the likely consequences of stopping his antipsychotic medication and of not following the CTP. The Board found that Dr. Barsoum’s findings had been amply established in his testimony as supported by the medical record from his seven years of treatment of C.B., including his issuance of some nine CTOs.

[29] The Board reviewed the criteria required by s. 33.1 of the MHA for the issuance of a CTO and found that all criteria had been satisfied.

III. THIS APPEAL

[30] C.B. filed a Notice of Appeal on June 24, 2021. Apart from ancillary relief sought to extend time for filings, and for an Order that there be no publication of the names or the Appellant or members of his immediate family, the Appellant sought the following relief:

(a) The Board’s decisions of June 19, 2021 be set aside or quashed.

(b) The May 2021 CTO be revoked.

(c) The Appellant be declared capable of consenting to the proposed treatment or, alternatively, that the matter of the Appellant’s capacity be remitted to the Board for re-hearing, in whole or in part.

[31] By the time that this Appeal was argued, on January 20, 2022, the following had occurred:

(a) The May 2021 CTO expired on November 11, 2021.

(b) On November 4, 2021, Dr. Barsoum issued a Notice of Intention to Issue or Renew the CTO (the “November 2021 CTO”).

(c) On January 13, 2022, the week before the hearing of this Appeal, the Board issued a decision, further to a hearing conducted that day, confirming that the criteria for issuing or renewing the November 2021 CTO were met (the “January 2022 Decision”).

[32] The parties did not advance a motion for fresh evidence on this Appeal to set out these developments. They did not file, on consent, a supplementary record with this evidence. Rather, on consent, the parties filed the January 2022 Decision and the November 2021 CTO.

IV. ISSUES

[33] The May 2021 CTO expired on November 11, 2021 and the November 2021 CTO was issued and confirmed by the January 2022 Decision. The Respondent argued that this Appeal was thereby moot with respect to the May 2021 CTO and the CTP, with the result that the issues raised by this Appeal regarding the May 2021 CTO and the CTP should be dismissed as moot. The Respondent submitted that the only issue raised by this Appeal that was not moot was whether the Board erred in confirming Dr. Barsoum’s finding that C.B. was incapable with respect to treatment for antipsychotic medication.

[34] The Appellant argued that the Appeal was not moot notwithstanding the expiry of the May 2021 CTO, the issuance of the November 2021 CTO and the January 2022 Decision and, alternatively, that even if the Appeal is moot in these regards, the court should exercise its discretion to determine the issues raised on Appeal regarding the May 2021 CTO and the CTP.

[35] This Appeal thereby raised the following issues:

1. Did the Board err in confirming Dr. Barsoum’s finding that C.B. was incapable with respect to treatment for antipsychotic medication?

2. Should C.B.’s appeal of the Board’s confirmation of Dr. Barsoum’s finding that C.B. was incapable with respect to the CTP, and C.B.’s appeal of the Board’s decision that the May 2021 CTO satisfied the criteria of the MHA, be dismissed as moot?

3. If C.B.’s appeal of the issues pertaining to the May 2021 CTO and the CTP are not dismissed as moot: (i) did the Board err in confirming Dr. Barsoum’s finding that C.B. was incapable with respect to the CTP; and (ii) did the Board err in finding that the May 2021 CTO satisfied the criteria of the MHA?

[36] I will address these issues in order.

V. ANALYSIS

[37] This Appeal is based on s. 80(1) of the HCCA, which gives parties to a Board proceeding a statutory right of appeal “to the Superior Court of Justice on a question of law or fact, or both”: Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 85. Gligorevic v. McMaster, 2012 ONCA 115, 109 O.R. (3d) 321, at para. 45. Section 80(10) of the HCCA sets out the remedies available on appeal.

[38] My analysis of the issues raised by this Appeal begins with consideration of the applicable standard of review, regarding which the parties did not disagree.

A. Standard of Review

[39] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] S.C.J. No. 65, at para. 37, 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.” 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, and a standard of palpable and overriding error to questions of fact or mixed fact and law, except for any extricable errors of law, which are subject to the correctness standard: Vavilov, at para 37, applying Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 19 and 26-37; see also Shergar Development Inc. v. Windsor (City), 2020 ONCA 490, 151 O.R. (3d) 653, at para. 21; B.L. v. Pytyck, 2020 ONSC 3766, at paras. 23, 26-27; J.G. v. Dr. Vukin, 2020 ONSC 142, at para. 9.

[40] This means, that on questions of law, including the interpretation of statutes, the appellate court is free to replace the Board’s opinion with its own: Housen, at para. 8: “[o]n 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”.

[41] On questions of fact or mixed fact and law, the reviewing court must find a “palpable and overriding error”, which is an error that is “clearly wrong” or “plainly seen”: L. (H.) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55, 68-69; Housen, at paras. 5-6, 21-22, 102-103 and 169. A palpable and overriding error is not “a needle in a haystack”, but “a beam in the eye”: Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 33.

[42] 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 confirming Dr. Barsoum’s finding that C.B. was incapable with respect to treatment for antipsychotic medication?

[43] The Appellant appealed the Board’s confirmation of Dr. Barsoum’s finding that C.B. was incapable with respect to treatment for antipsychotic medication. However, while the Appellant presented the test for capacity and governing law, the Appellant did not set out a cogent basis on which he claims that the Board erred in upholding Dr. Barsoum’s finding that C.B. was incapable for treatment with antipsychotic medication. Rather, the Appellant focused his argument on his Appeal of the Board’s finding that he was incapable with regard to the CTP.

[44] There was no dispute regarding the legislative scheme and general principles governing incapacity with respect to treatment in Ontario. A person is presumed capable of making her or his own treatment decisions: HCCA, s. 4(2). The onus of proving incapacity as to treatment is on the physician claiming it, in this case the Respondent, on the civil standard of a balance of probabilities: K.M. v. Banik, 2021 ONCA 481, at para. 5; Starson, at para. 77. The Board identified these principles in both the Reasons for Decision and the Preliminary Issues Reasons. [1]

[45] The interpretation of the legal standard for capacity is a question of law and therefore reviewable on a correctness standard: Starson, at para. 110, citing Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 35. Here, the Board recognized that a person is presumed capable as to treatment and identified the correct test for determination of incapacity, citing s. 4(1) of the HCCA: [2]

4. (1) 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.

[46] The Board noted that Dr. Barsoum agreed that the first part of the two-part capacity assessment was satisfied. Specifically, Dr. Barsoum stated that C.B. was able to understand the information that is relevant to making a decision regarding the treatment.

[47] The Board recognized that Dr. Barsoum based his finding of incapacity on the second part of the two-part test. Specifically, the Board reviewed Dr. Barsoum’s finding that C.B. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about antipsychotic medication, writing as follows: [3]

We concluded that Dr. Barsoum had probed and investigated C.B.’s thought processes (as he had also done in the previous five years) sufficiently to conclude that C.B. was unable to recognize that he was affected by symptoms of mental disorder. Being unable to recognize that he might be affected by symptoms consistent with schizophrenia (as he had been incapable to recognize for many years) C.B. was consequently unable to assess how treatment might improve his life. Being unable to recognize that he was affected by symptoms of mental disorder, C.B. was, by extension, unable to apply the relevant information to his circumstances and unable to appreciate the consequences of his decision.

The panel concluded that over the course of many years of treatment under Dr. Barsoum’s clinical supervision, C.B. was consistently unable, as a result of the operation of his underlying mental condition, to recognize that he was affected by its manifestations. Neither could C.B. appreciate that those well-recorded manifestations could be directly related to an underlying mental disorder. There was no reasonable disagreement about the specific diagnostic name to be applied to agreed symptoms. Rather, C.B. completely rejected the possibility that he was at all affected by mental disorder.

[48] This reasoning is based directly, and in my view correctly, on the Supreme Court’s guidance on the applicable test as set out in Starson, at para. 79, referenced by the Board at pp. 3-4 of the Preliminary Issues Reasons, that “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.”

[49] In my view, the Board applied the correct legal test to its review of Dr. Barsoum’s finding that C.B. was incapable regarding treatment with antipsychotic medication because he was not able to appreciate the reasonably foreseeable consequences of a treatment decision.

[50] The Board noted that the foundation of Dr. Barsoum’s determination on incapacity was C.B.’s steadfast denial that he suffered from a mental illness for which he required treatment. Throughout Dr. Barsoum’s 7-year treatment history of C.B., there was evidence that C.B. was chronically delusional, paranoid and psychotic, as amply documented in the clinical notes. For example, C.B. believes that he is part of the CIA, that people are trying to kill him, and that he was in the Matrix and had to escape. Dr. Barsoum testified that when acutely ill, C.B. suffers from hallucinations.

[51] Dr. Barsoum testified, with ample support from the medical notes and records, that C.B. does not recognize that he has any medical condition. Dr. Barsoum recorded, in his Progress Note of April 16, 2021, C.B.’s statement that he did not need any anti-psychotic medication because he is “the smartest person in the world”, and C.B.’s denial that there would not be any adverse effect of stopping the medication even though C.B.’s clinical record shows that the administration of the anti-psychotic medication as part of a CTP has allowed C.B. to function in the community and stay out of hospital.

[52] Dr. Barsoum testified that if C.B. stopped taking anti-psychotic medication and attending appointments, he would deteriorate, as he has in the past on several occasions, and would become “very mentally unwell” and more prone to acting on delusional beliefs. Dr. Barsoum’s opinion was that the past CTOs have been a “godsend” in allowing C.B. to function well in the community.

[53] The Board accepted Dr. Barsoum’s assessment of C.B. on April 16, 2021, finding that Dr. Barsoum investigated C.B.’s thought processes sufficiently to conclude that he was unable to recognize that he was affected by symptoms of a mental disorder, writing at pp. 10-11 of the Reasons for Decision:

It was clear from Dr. Barsoum’s oral testimony and a review of the CTP that the main obligation in the CTP was to take antipsychotic medication. The panel accepted that Dr. Barsoum routinely assessed C.B.’s capacity to consent to treatment with antipsychotic medication, during which he discussed with C.B. some of C.B.’s psychotic symptoms, C.B.’s medications and concerns about side effects as well as C.B.’s position that he did not need or want psychiatric medication. They discussed C.B.’s goals and how Dr. Barsoum and the team could help C.B. work on his goals, as evidenced by paragraph 8 of the CTP. Yet, throughout, C.B. maintained that he did not have a psychotic illness that required or benefitted from proposed treatment. Dr. Barsoum concluded, as he had since 2016, that C.B. was not able to appreciate the benefits of treatment with antipsychotic medication nor the consequences of treatment non-compliance leading to psychotic decompensation and was incapable of consenting to the CTO community treatment plan (CTP) and antipsychotic medication.

[54] The Board had ample evidentiary record on which to conclude that C.B. suffered from a mental condition, was not able to recognize the possibility that he is affected by that condition and its manifestations, and therefore did not have the ability to appreciate the foreseeable consequences of a treatment decision, consistent with the principles set out by the Supreme Court in Starson, at paras. 78-81.

[55] I find that the Board identified the correct legal principles applicable to its review of Dr. Barsoum’s finding that C.B. was incapable as to treatment with anti-psychotic medication, specifically Dr. Barsoum’s finding that C.B. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment.

[56] From my review of the Record of Proceedings, including the transcript of evidence of Dr. Barsoum, the clinical notes, and records tendered and marked as Exhibit 1 to the Board hearing on June 18, 2021, I find that the Board had ample cogent evidence on which to conclude that C.B. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment with antipsychotic medication. As the Court of Appeal explained in K.M., at para. 16, applying Starson, at para. 79, the second part of the test is that “the patient must be able to recognize the possibility that he is affected” by the condition. The Board had an evidentiary basis on which to conclude that C.B. did not recognize the possibility that he is affected by a mental condition, and he is thereby unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.

[57] To establish that Dr. Barsoum made a palpable and overriding error in his assessment that C.B. was incapable as to antipsychotic medication, the Appellant had to identify a “crucial flaw, fallacy or mistake”: L. (H.), at para. 70. The Appellant did not do so.

[58] I find that the Board made no palpable and overriding error in confirming Dr. Barsoum’s finding that C.B. was incapable with respect to treatment for antipsychotic medication. The Board concluded that C.B. was suffering from a mental condition, applied the correct legal test for capacity and based its conclusions on clear evidence that was amply established. The Board accepted Dr. Barsoum’s evidence, as it was entitled to do, and deference must be provided to the Board’s assessment of the evidentiary record. I see no basis to interfere with the Board’s determination.

C. Should C.B.’s appeal of the Board’s decisions in relation to the May 2021 CTO and the CTP be dismissed as moot?

[59] The May 2021 CTO and the CTP expired on November 11, 2021, months before the argument of this Appeal; and the November 2021 CTO was issued by Dr. Barsoum and confirmed by the Board’s January 2022 Decision, issued in the days leading to the argument of this Appeal.

[60] The Respondent contended that C.B.’s appeal of the Board’s confirmation of Dr. Barsoum’s finding that C.B. was incapable with respect to the CTP, and C.B.’s appeal of the Board’s decision that the May 2021 CTO satisfied the criteria of the MHA were thereby moot and the appeal of these issues should be dismissed accordingly. I will now turn to this issue.

(a) Governing Principles

[61] The doctrine of mootness was defined by the Supreme Court in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231, at para. 15:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly, if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.

[62] In Fontaine v. Canada (Attorney General), 2021 ONCA 931, at para. 14, the Court of Appeal explained that “an appeal is moot when the substratum of the appeal has disappeared.” The court stated that: “[w]here an appeal is moot, the court may nevertheless exercise its discretion to hear the appeal, considering such factors as the ongoing adversarial context, concerns for judicial economy and sensitivity to the role of the courts”, relying on Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 17.

[63] The onus is on the party seeking to permit a moot appeal to proceed to demonstrate why the court should consider the issue despite its mootness: Tamil Co-operative Homes Inc. v. Arulappah (2000), 49 O.R. (3d) 566, 192 D.L.R. (4th) 177 (C.A.), at para. 17; Fontaine, at para. 14.

(b) Application of Doctrine of Mootness to Appeals of CTO and CTP

[64] There are several cases in which courts have applied the doctrine of mootness to an appeal from the Board of a CTO and a CTP where the CTO had expired by the time that the appeal was heard. In certain of these cases, the courts have determined that where the CTO has expired, there is no remaining live controversy between the parties arising from that CTO and the appeal is moot. In other cases, where the CTO was renewed and, indeed, in instances in which the renewal of the CTO built upon the CTO under appeal, the courts have found that the appeal is not moot on the finding that there was a continuing “live controversy” arising from the series of CTOs.

[65] As I will explain, none of these cases dealt with a situation, like here, where not only did the CTO under appeal expire and a new CTO was issued pursuant to a new capacity assessment, but the new CTO was reviewed by the Board and confirmed.

[66] In accordance with Borowski, the first step is to determine whether the decision of the court will have the effect of “resolving some controversy which affects or may affect the rights of the parties.” In Micah v Cavanagh, 2016 ONSC 7924, at para. 13, Justice Archibald characterized this as a determination of “whether the tangible and concrete dispute between the parties has disappeared.” In Micah, Justice Archibald determined that the appeal of the Board’s confirmation of the validity of a CTO remained a live controversy notwithstanding its expiry prior to the argument of the appeal because the CTO under review had been renewed. Since the CTO under review had been renewed, the court held that the tangible dispute between the parties regarding the CTO had not disappeared. Having found that the appeal was not moot due to the ongoing live controversy, the court was not required to consider whether to exercise its discretion to hear the appeal notwithstanding its mootness.

[67] Justice Dow reached a similar conclusion in C.F v. Kantor, 2020 ONSC 6916, at paras. 4-8. Again, the appeal sought a review of a CTO that had expired before the argument of the appeal and therefore raised the issue of mootness. The CTO and its related CTP were both renewed in the days leading to the argument of the appeal following the same statutory criteria as the CTO and CTP under appeal. Applying Micah, the court held that the dispute between the parties was ongoing, found that the appeal was not moot and, in any event, would hear the appeal in the exercise of the court’s discretion.

[68] Justice Dow distinguished two decisions in which the court reached the opposite result. In Carty v. Levy, 2015 ONSC 2200, Justice Perell dismissed the appeal of an expired CTO as moot in circumstances where the CTO had expired some six months before the hearing of the appeal, but with no evidence of its renewal. Justice Perell held that there was no longer any live controversy between the parties and held that the court’s adjudication would have no practical effect on the parties. Similarly, in Manu v. Banik, 2018 ONSC 2247, Justice Ferguson dismissed an appeal as moot where the CTO had expired before the hearing of the appeal and there was no evidence before the court regarding whether the CTO had been renewed.

[69] Recently, in K.T. v. O’Brien, 2021 ONSC 209, Justice Mew considered, on motion, whether an appeal from a Board Decision rendered was moot on the grounds that it had expired. The court found that although the CTO under appeal had expired, the appellant had been subject to a series of rolling CTOs of six months’ duration with the result that there was a tangible dispute between the parties that was not moot. Justice Mew stated that he would have, in any event of his determination on mootness, exercised his discretion to determine the appeal as it raised an important question of a recurring nature.

[70] The Respondent relied on several decisions where the court found that an expired CTO rendered moot an appeal on the validity of the CTO. In Attwood v. Euteneier, 2019 ONSC 4211, the appellant physician appealed a Board decision revoking a CTO on the basis that the CTP did not meet the requirements set out in the MHA and the HCCA. Prior to the hearing of the appeal, a further CTO and CTP had been issued. Justice Kershman dismissed the appeal as moot on the finding that once the new CTO was issued, any issue arising from the revoked CTO “was no longer live” but rather became a hypothetical or abstract question. The court found that the tangible, concrete dispute disappeared with the issuance of the new CTO.

[71] In A.N. v. Guimond, 2020 ONSC 6751, Justice Pinto dismissed, on motion, an appeal from the Board’s determination that the Appellant met the criteria for involuntary admission and that she lacked capacity as to treatment. The Respondent was granted leave to admit fresh evidence on the appeal, which showed that the Appellant was discharged from hospital, had regained capacity and that the CTO had been terminated. The court held that there was no ongoing dispute, and that there was insufficient basis to support the exercise of discretion to hear the appeal.

[72] Similarly, in B.N. v. Dr. Beder, 2021 ONSC 3046, Justice Steele dismissed an appeal of a CTO as moot where the CTO had expired and was replaced by a new CTO. Justice Steele found that the Appellant had been treated by the Respondent for some six years during which six CTOs had been issued. The court held that the new CTO was not premised on the earlier CTOs but involved a new capacity assessment which was based on the Appellant being a patient in a psychiatric hospital on two or more occasions for a cumulative period of thirty days or more during the previous three years.

(c) Analysis – Is C.B.’s Appeal of the issues pertaining to the May 2021 CTO and CTP Moot?

[73] The first step in the determination of mootness is to assess whether the decision of the court will have the effect of “resolving some controversy which affects or may affect the rights of the parties.” In Justice Archibald’s words, in Micah, the court has to determine “whether the tangible and concrete dispute between the parties has disappeared.”

[74] A common finding through those cases in which the courts have determined that an appeal of an expired CTO and CTP is not moot is that the expired CTO was renewed on identical evidence, such that there was a continuing live controversy between the parties. Justice Mew referred to this in K.T. as “rolling CTOs”. In K.T., as in C.F. and Micah, the finding that the series of CTOs had continued as an ongoing tangible dispute was based on the determination that the issues raised on appeal in relation to each of the successive CTOs was the same. In C.F., Justice Dow found, at para. 4, that “the respondent followed all of the same statutory criteria required for the previous Community Treatment Order and Community Treatment Plan.” Each of these courts had sufficient evidentiary record, including the renewed CTO, to make this determination.

[75] This case is distinguishable from those where courts have determined that a live controversy continued between the parties notwithstanding the expiry of a CTO, principally for the following reasons.

[76] First, unlike those cases in which the issuance of the new CTO was based on, or relied on, the expired CTO under appeal, the November 2021 CTO did not rely on the May 2021 CTO for issuance. Section 33.1(4) of the MHA provides that a physician may issue or renew a CTO if, during the previous three-year period, the person:

(a) Has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

(b) Has been the subject of a previous community treatment order under this section.

[77] In the three-year period prior to the issuance of the November 2021 CTO, C.B. had been subject to many CTOs, including CTOs issued on November 14, 2018; July 12, 2019; March 3, 2020; and October 26, 2020. In fact, C.B. has been subject to CTO’s since at least 2016. Accordingly, the November 2021 CTO could have been issued under s. 33.1(4) of the MHA independent of the May 2021 CTO. Justice Steele dismissed the appeal of an expired CTO on the basis of mootness in B.N., at paras. 24 and 27, on similar reasoning.

[78] Second, the November 2021 CTO was issued further to a new capacity assessment that was made by Dr. Barsoum on November 4, 2021, by which Dr. Barsoum made a fresh determination that C.B. was incapable with respect to giving or refusing consent to the proposed CTP. The November 2021 CTO states that Dr. Barsoum conducted this assessment within 72-hours of issuance of the November 2021 CTO. The issuance of the November 2021 CTO did not depend on the finding of incapacity that Dr. Barsoum made on April 16, 2021. Accordingly, the grounds of appeal that are specific to Dr. Barsoum’s April 16, 2021 capacity assessment which gave rise to the May 2021 CTO are dated and may no longer be pertinent considering that the November 2021 CTO was based on the subsequent capacity assessment.

[79] Third, Dr. Barsoum’s capacity assessment of November 2021 and his issuance of the November 2021 CTO were reviewed by the Board, in accordance with s. 39.1(3) of the MHA. This hearing was conducted on January 13, 2020, with a panel consisting of a Lawyer/ Presiding Member, a Nurse in the Extended Class Member and a Public Member. The Board determined that “the criteria for issuing or renewing the Community Treatment Order set out in the Mental Health Act were met at the time of the hearing.” The November 2021 CTO was thereby confirmed.

[80] No evidence was filed on this Appeal of developments after the expiry of the May 2021 CTO except for the consent filing of the November 2021 CTO and the January 2020 Decision. The Appellant could not establish, in my view, that the appeal of incapacity regarding the CTO and CTP, and the appeal of the criteria applied under the MHA for the issuance of the May 2021 CTO continued to have any practical effect.

[81] The November 2021 CTO and the January 2020 Decision caused the “substratum of this appeal to disappear”, to use the terminology set out by the Court of Appeal in Fontaine, at para. 14. I will explain this finding with specific reference to the issues raised on appeal in relation to the May 2021 CTO and the CTP.

[82] First, the appeal of Dr. Barsoum’s finding of incapacity as to the CTP was based on Dr. Barsoum’s admission that he did not, in his capacity assessment of April 16, 2021, assess C.B.’s ability to work with his mental health case manager, as required by Clause 8 of the CTP. [4] The Board found that Dr. Barsoum completed a proper capacity assessment with respect to the CTP even if he did not specifically address Clause 8 of the CTP because that provision was included in CTPs stemming back to 2019 and because the most important aspect of Dr. Barsoum’s capacity assessment in respect of the CTP was Dr. Barsoum’s assessment as to antipsychotic medication, which was addressed in Clause 3 of the CTP. [5] The Appellant’s contention that Dr. Barsoum committed a palpable and overriding error in failing to review Clause 8 with C.B. on April 16, 2021 was specific to the May 2021 CTO. There was no evidence of Dr. Barsoum’s capacity assessment of C.B. on November 4, 2021, and whether it included an assessment of C.B.’s capacity as to Clause 8 of the CTP, or of the Board’s consideration of this in its hearing of January 13, 2022. This was not a live controversy or tangible issue after the expiry of the May 2021 CTO.

[83] Second, the appeal of the Board’s decision that the May 2021 CTO satisfied the criteria of the MHA was based on three grounds: (i) the May 2021 CTO was not provided to the Officer in Charge; (ii) the May 2021 CTO was not consented to by C.B.’s father, as his substitute decision maker, but not his mother; and (iii) that Clause 8 of the CTP was overly broad. In my view, each of these grounds of appeal is framed by the May 2021 CTO, and the Board’s review of it, and are rendered moot by the November 2021 CTO and the January 2022 Decision, as follows:

(a) The Appeal Record contained a CCB Summary that established that the May 2021 CTO was not provided to the Officer in Charge. There was no evidence regarding whether the November 2021 CTO was provided to the Officer in Charge. The November 2021 CTO, like all CTOs, does not state on its face whether it is provided to the Officer in Charge.

(b) The Appellant contended that the May 2021 CTO must be set aside because Dr. Barsoum failed to obtain consent from an equal-ranking substitute decision maker (“SDM”), C.B.’s mother, even though Dr. Barsoum had obtained consent from C.B.’s father, who had acted for many years as C.B.’s SDM. Dr. Barsoum considered this to be compliant with ss. 33.1(4)(f) and 33.1(10)(b) of the MHA. The Board found that C.B.’s mother was not “passed over”, as contended by the Appellant, but was in regular contact with Dr. Barsoum and was involved collaboratively, along with the SDM, and actively in C.B.’s care and treatment. The November 2021 CTO was signed by C.B.’s father as his SDM. But there was no evidence of the extent, nature or character of the involvement of C.B.’s mother in the issuance of the November 2021 CTO or the physician’s handling of it.

(c) The Appellant contended that the Board made a palpable and overriding error in not setting aside the May 2021 CTO and the CTP on the basis that Clause 8 was vague and overly broad. The parties conceded that Clause 8 has been included in every CTO issued by Dr. Barsoum to C.B. since 2019. Clause 8 was included in the November 2021 CTO and affirmed by the Board in its review on January 13, 2021 upholding the November 2021 CTO.

[84] In regard to each of these issues, I find that the basis, or substratum for the Appeal on each issue is framed by the evidence specific to the Board’s review of the May 2021 CTO and thereby moot considering the issuance of the November 2021 CTO and the January 2022 Decision.

(d) Conclusion - The Appeal of the issues pertaining to the May 2021 CTO and CTP are Moot

[85] For these reasons, I accept the Respondent’s submission that there is no live or tangible controversy with respect to the issues raised on this Appeal pertaining to the satisfaction of the criteria for the issuance of the May 2021 CTO. There has not been shown to be based on the May 2021 CTO. I conclude that the issues raised on appeal pertaining to the satisfaction of the criteria for the issuance of the May 2021 CTO are rendered moot by the expiry of the May 2021 CTO, the issuance of the November 2021 CTO and the January 2020 Decision.

(e) The Basis for Exercise of Discretion was not Established

[86] Having determined that the appeal of the issues pertaining to the May 2021 CTO and the CTP are moot, I have considered whether I should exercise my discretion to determine the appeal despite mootness. The onus is on the party seeking to permit a moot appeal to proceed, in this case the Appellant, to demonstrate why the court should consider the appeal despite its mootness: Tamil, at para. 17. In my view, the Appellant has not discharged this burden, for reasons that I will now explain.

[87] First, while Dr. Barsoum and C.B. remain in an adversarial context, the evidentiary basis of their dispute has changed from the May 2021 CTO to the November 2021 CTO made on a fresh capacity assessment and confirmed by a different panel of the Board on a different hearing. Any appeal of the Board’s review of the findings by Dr. Barsoum should, in my view, be on the current assessment and the most current Board review of that assessment. Second, scarce judicial resources should not be expended on review of a penultimate CTO and a penultimate Board decision when there is a current CTO and a current Board decision. The Appellant has not satisfied me that it is in the interest of justice to determine the elements of this Appeal that I have found to be moot.

[88] I see no special circumstances that would justify an exercise of discretion to hear this Appeal as it relates to the CTO and CTP notwithstanding its mootness.

VI. CONCLUSIONS

[89] The Board identified the correct legal principles applicable to its review of Dr. Barsoum’s finding that C.B. was incapable as to treatment with anti-psychotic medication.

[90] It is not the role of the appeal court to re-weigh evidence that was available and considered by the Board. The Board had ample cogent evidence on which to conclude that C.B. was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment. Applying the principles set out in Starson, the Board had an evidentiary basis on which to conclude that C.B. did not recognize the possibility that he is affected by the manifestations of a mental condition, and he is thereby unable to apply the relevant information to his circumstances and unable to appreciate the consequences of his decision. The Board concluded that C.B. was suffering from a mental condition, applied the correct legal test for capacity and based its conclusions on clear evidence. I see no basis to interfere with the Board’s determinations.

[91] The appeal of the Board’s confirmation of Dr. Barsoum’s finding that C.B. was incapable with respect to the CTP, and C.B.’s appeal of the Board’s decision that the May 2021 CTO satisfied the criteria of the MHA, are dismissed as moot.

VII. DISPOSITION

[92] On the basis of these reasons, I order that this Appeal is dismissed.

VIII. COSTS

[93] The parties jointly submitted that no costs would be sought by any party on this Appeal. There shall be no order of costs of this Appeal.

A.A. SANFILIPPO J. Date: April 5, 2022

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: C.B. Appellant – and – DR. AMIR BARSOUM Respondent

REASONS FOR DECISION A.A Sanfilippo J. Date: April 5, 2022

[1] Reasons for Decision, at p. 3: “Section 4 of the Health Care Consent Act (HCCA) provides that a person is presumed to be capable with respect to treatment. The onus to establish otherwise in this case rests with the doctor.” Preliminary Issues Reasons, at p. 3: On any review of a CTO under the MHA, and any review of incapacity to consent to treatment under the HCCA, the onus of proof at a Board hearing is always on the attending physician/ health practitioner. The standard of proof is on a balance of probabilities.”

[2] Reasons for Decision, at pp. 3-4; Preliminary Issues Reasons, at pp. 3-4.

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

[4] Community Treatment Plan, Clause 8: “[C.B.] will continue to work with his mental health case manager from York Support Services Network (YSSN): ….”

[5] Community Treatment Plan, Clause 3: “[C.B.] will take all oral and/or injectable antipsychotic medications as prescribed by Dr. Barsoum (or delegate) and consented for by his substitute decision maker. Antipsychotic medications can be changed and/or adjusted throughout the course of the Community Treatment Order by Dr. Barsoum (or delegate) in accordance with [C.B]’s clinical needs, with the permission of the substitute decision maker.”