COURT FILE NO.: CV-21-00672833 DATE: 2022-04-05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JS Applicant – and – DR. STEVEN GELBER and DR. ROBERT ZALAN Respondents

Counsel: Ikenna Aniekwe, for the Applicant Patrick A. Wright, for the Respondents

HEARD: March 24, 2022

KOEHNEN J.

REASONS FOR JUDGMENT

Overview

[1] The appellant JS appeals from two decisions of the Consent and Capacity Board (the “Board”). The first is an appeal from a decision dated November 15, 2021 by which the Board declined to hear JS’s appeal from a finding that he lacked capacity to manage his own property for lack of jurisdiction. The second is an appeal from a decision dated November 18, 2021, in which the Board upheld a finding that JS was incapable of consenting to antipsychotic medication.

[2] At the end of oral argument, I advised counsel that I would allow the appeal on capacity to manage property and dismiss the appeal on capacity to consent to treatment; in both cases with reasons to follow. These are those reasons.

[3] In my view, the Board had jurisdiction to hear JS’s appeal on capacity to manage property. It amounted to a denial of procedural fairness to decline jurisdiction because it effectively denied JS a statutory right of appeal, not through any fault of his own but because of an administrative glitch in the hospital in which he was treated. I remit the appeal from the finding of incapacity to manage property back to the Board for consideration on the merits.

[4] In my view, the Board made no error in dismissing JS’s application with respect to consent to treatment. The Board applied the correct test and had ample evidence on which to base its findings.

A. The Parties

[5] The appellant, JS, is a 40-year-old unemployed man whose only source of income is the Ontario Disability Support Plan. He has a lengthy history of significant mental illness. He has been diagnosed with severe obsessive compulsive disorder persistent depressive disorder, and alcohol and cannabis use disorder. More recently, his obsessive compulsive disorder is considered to be evolving into schizophrenia spectrum disorder. He has a history of resisting treatment with a resulting deterioration in his condition.

[6] The Respondents, Drs. Steven Gelber and Robert Zalan, are both psychiatrists at North York General Hospital. Dr. Gelber has been JS’s primary treating psychiatrist for over 15 years and is responsible for managing the Community Treatment Order for JS. Dr. Gelber presented the case of incapacity against him at the hearing. Dr. Robert Zalan made the original findings of incapacity against JS.

B. The Appeal on Capacity to Manage Property

i. The Facts

[7] On June 11, 2021 JS was admitted to North York General Hospital after having been found intoxicated in a park and having threatened to kill himself. On June 14, 2021, the requisite steps were taken to keep him hospitalized involuntarily.

[8] On June 30th, 2021, Dr. Zalan found JS incapable of managing his own property pursuant to s. 54 of the Mental Health Act [1] (the “MHA”) and incapable of consenting to treatment with antipsychotic medications pursuant to s. 4 of the Healthcare Consent Act [2].

[9] By August 12th, 2021, JS was well enough to be released back into the community under a community treatment plan. A patient in a psychiatric facility in respect of whom a certificate of incapacity has been issued must be reassessed within 21 days of his discharge to determine whether he remains incapable of managing his property. [3] Since the initial capacity assessment was more than 21 days old, Dr. Zalan was obliged to conduct a further assessment before JS could be discharged. Dr. Zalan did so, determined that JS remained incapable and issued a Notice of Continuance which, as its name suggests, continued the finding of incapacity to manage property. The Notice of Continuance is passed on to the Public Guardian and Trustee [4] which then becomes the patient’s guardian for property. [5]

[10] A patient’s rights upon a finding of incapacity to manage property or a Notice of Continuance are set out in s. 59 of the MHA as follows:

59 (1) A physician who issues a certificate of incapacity or a notice of continuance shall promptly advise the patient of the fact and shall also promptly notify a rights adviser.

Meeting with rights adviser

(2) The rights adviser shall promptly meet with the patient and explain to him or her the significance of the certificate or notice and the right to have the issue of the patient’s capacity to manage property reviewed by the Board.

Exception

(3) Subsection (2) does not apply if the patient himself or herself refuses to meet with the rights adviser.

Assistance

(4) At the patient’s request, the rights adviser shall assist him or her in making an application to the Board and in obtaining legal services.

[11] Dr. Zalan advised JS of his right to advice when he issued the Notice of Continuance. JS asked to speak with a Rights Advisor. JS was, however, discharged from the hospital on August 12, 2021 before a Rights Advisor spoke with him. As a result, he did not complete the relevant form to launch an appeal from the Notice of Continuance before he was discharged from the hospital.

[12] On August 19, 2021 JS was readmitted to the psychiatric facility at North York General Hospital. On September 3, 2021, during the course of this re-admission, JS received rights advice about the Notice of Continuance that Dr. Zalan had issued on August 12, 2021. In response, he indicated that he wanted to challenge the Notice of Continuance. Appeal forms were completed and filed with the Board on the same day.

ii. The Board’s Reasons

[13] The hearing to challenge the Notice of Continuance was to occur on October 19, 2021. The presiding member, however, raised a preliminary issue on the Board’s own motion and asked for submissions about whether the Board had the jurisdiction to entertain the application because JS had not commenced the application during the same hospital admission in respect of which the finding of incapacity was made.

[14] The hearing re-convened on November 15, 2021 before a single member of the Board.

[15] The Board concluded that it did not have jurisdiction to hear JS’ appeal because of the interplay between s. 60 of the MHA, the definition of patient in the MHA and the Board’s past jurisprudence on the issue.

[16] Section 60 (1) of the MHA provides:

60 (1) A patient in respect of whom a certificate of incapacity or a notice of continuance has been issued may apply in the approved form to have the Board review the issue of his or her capacity to manage property. (emphasis added)

[17] Section 1 (1) of the MHA defines patient as:

“patient” means a person who is under observation, care and treatment in a psychiatric facility; (emphasis added)

[18] The Board noted that the definition of patient as a person who “is” under care and held that, as a result, the only person who could file an appeal under s. 60 was a person who “is” under care when the appeal is filed. In other words, for the Board to have jurisdiction, it held that JS had to have filed the appeal before he was discharged from the hospital on August 12, 2021. It cited several of its own cases that had taken this approach. [6]

[19] In support of that finding, the respondents pointed me to s. 60 (3) of the MHA which provides:

If an application is commenced under this section by a patient in respect of whom a notice of continuance has been issued, the application may continue to be dealt with by the Board even after the patient is discharged from the psychiatric facility.

[20] The respondents submit that if ‘patient’ for the purposes of s. 60(1) of the MHA included a ‘former patient’, then s. 60(3) of the MHA would be redundant, and the Legislature would not need to provide expressly that an application commenced during the patient’s admission could still be heard after the patient’s discharge.

iii. The Standard of Review for Procedural Fairness

[21] The appellant submits that the appeal gives rise to an issue of procedural fairness on which the standard of review is correctness. The respondents submit that the appeal gives rise to mixed questions of fact and law as a result of which the standard of review is palpable and overriding error.

[22] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [7], the Supreme Court of Canada held that the presumptive standard for all judicial review going forward shall be reasonableness. [8] The Court went on to explain that this presumptive standard could be changed if the legislature provided for a statutory appeal mechanism. In that case, ordinary appellate standards would apply. [9] The ordinary appellate standard for questions of law is correctness. The ordinary appellate standard for questions of fact or mixed questions of fact and law is palpable and overriding error.

[23] Here the legislature has provided that the appellate standard applies. Section 48 (1) of the MHA grants a party to a proceeding before the Board a right of appeal to the Superior Court of Justice on questions of law or fact or both. Section 48 (3) of the MHA provides that section 80 of the Healthcare Consent Act, 1996 applies to the appeal. Subsection 80(10) of the HCA provides:

On the appeal, the court may,

(a) Exercise all the powers of the Board;

(b) Substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker, or the Board;

(c) Refer the matter back to the Board, with directions, for rehearing in whole or in part.

[24] In my view, the issue about the Board’s jurisdiction to hear JS’ application involves solely a question of law. To the extent that any facts are involved, they are uncontested. Moreover, the issue involves a question of procedural fairness to which, as a practical matter, the standard of correctness applies. [10]

iv. Analysis

[25] I can fully understand why the Board took the approach it did. The Board is a creature of statute. It has only those powers that are expressly conferred upon it by statute. By applying section 60 of the MHA as it did, the Board was trying to be faithful to, and not exceed, its statutory mandate. By limiting its analysis to s. 60 and the definition of patient in the MHA, however, the Board, in my view, ignored a critical component of the statutory regime and undermined the very scheme it was intended to enforce.

[26] My analysis begins with the proper approach to statutory interpretation. There is little debate about that. The “modern principle” of statutory interpretation is that,

“the words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” [11]

[27] By focusing exclusively on the definition of patient and the wording of s. 60, the Board lost sight of the need to read those provisions harmoniously with the overall scheme of the MHA. The scheme of the act in that regard is one that contains mandatory obligations in section 59 to make a Rights Advisor promptly available to the patient and to have a Rights Advisor assist the patient in making an application to the Board. Here, JS asked for the help of the rights advisor. The fact that he was discharged from the hospital before the Rights Advisor was able to get to him is not his fault. That is the fault of an administrative glitch at the hospital.

[28] There is substantial mischief in upholding the Board’s interpretation. It would eviscerate rights of appeal far too easily by allowing institutions to navigate around them by discharging patients before they received rights advice. While I am in no way suggesting that the respondents or the Hospital had the slightest intention of navigating JS out of his right to appeal, that is nevertheless the effect of what happened because of the inability to get a Rights Advisor to JS before he was discharged.

[29] The respondents submit that JS was not deprived of any right of appeal because he received a Form 33 when the Notice of Continuance was issued which indicates that a patient who wishes to challenge a Notice of Continuance should file a Form 18. My difficulty with that submission is that Form 33 is not necessarily intuitive to a layperson, let alone a layperson that the respondents say is incapable.

[30] The Form first indicates that a patient should use a Form 18 to challenge a Notice of Continuance. Beneath that, the Form 33 states:

Application forms are available from a Rights Advisor, this facility and the regional offices of the Board.

After you receive this notice, a person called a “rights advisor” will meet with you to inform you as to your rights and help you in applying for a hearing if that is what you wish to do.

For further information or assistance with anything mentioned in this notice, please contact:

Rights Advisor (redacted)

(print name of appropriate staff member) (telephone number)

[31] A plain reading of Form 33 says that a rights advisor will contact JS to help him apply for a hearing. Nowhere does the form say whether the rights advisor would contact JS before or after he left the hospital. Nowhere does Form 33 tell JS that he had to launch his appeal before he left the hospital. Only an expert in mental health law would appreciate that the appeal might need to be commenced before the patient left the hospital by virtue of the interplay between s. 60(1) and the definition of patient in the MHA.

[32] The respondents further submit that JS is not deprived of any right of appeal because he maintains the ability to obtain a new capacity assessment through the Public Guardian and Trustee who has now become his statutory guardian for property. [12] If JS is found capable on such an assessment, that finding governs and the Notice of Continuance ceases to have any effect. If JS is found incapable, he may apply to the Board for a review of that finding. [13]

[33] This, however, is quite different from the right of appeal. A patient subject to a statutory guardianship by the Public Guardian and Trustee must wait 6 months from the Notice of Continuance before being able to seek a new assessment. [14] This in effect deprives a patient of access to the very regime the MHA created to protect patients. [15]

[34] The Board has already indicated a certain degree of flexibility in its interpretation of section 60 and the definition of patient. In Re AS, 2021 ON CCB 27383 [16] for example, it permitted the patient to file an appeal from a finding of incapacity to manage property the day after she was discharged because the Board viewed her as having a continuing intention to appeal.

[35] When assessing JS’ right to appeal, the Board distinguished Re AS by noting that the patient in that case had been discharged from the hospital because of the Covid 19 pandemic and had filed an appeal the day after she was discharged. In those circumstances, the Board found a continuing intention to appeal. By finding a continuing intention to appeal in AS, the Board implicitly inferred that the request for rights advice reflected an intention to appeal which AS acted on the following day. In the case of JS, however, the Board noted that the Notice of Continuance was issued on August 12 but the appeal was not filed until September 3. The Board also noted that JS did not seek rights advice after being discharged.

[36] The Board did not, however, consider JS’ conduct in the context of the information he had been given to determine if he too had a continuing intention to appeal. The Board appears to have simply assumed that there was no such continuing intention because of the 22 day time lag between the time of discharge from the hospital and the time the appeal was filed. In my view that ignored the evidence of continuing intention in the record. When JS was told about the possibility of rights advice on August 12 he asked for it, just like AS did. He was told in the Form 33 that a Rights Advisor would get in touch with him. He was not told of any deadline by which the appeal had to be filed. When a rights advisor did meet with him on September 3, he affirmed his desire to appeal and filed an appeal the same day. There is no evidence of any change in JS’ intention to appeal between August 12 and September 3.

[37] On the record before me, the only gap in the equation was the 22 day gap in giving JS rights advice. That does not reflect an absence of a continuing intention to appeal on the part of JS but an absence of efficiency in providing JS with rights advice. The health care system cannot be permitted to use its own inefficiency in meeting statutory requirements as a basis for depriving vulnerable patients of statutory rights.

[38] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [17], the Supreme Court of Canada gave guidance on how to approach matters of procedural fairness. Before setting out a number of nonexclusive factors to take into account when considering procedural fairness, the Court observed:

Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. [18]

[39] To deny JS a right of appeal to the Board would fall short of almost all of the factors underlying notions of fairness that the Supreme Court of Canada identified in the preceding passage. It denies JS participatory rights by denying him an appeal. It negates the principle of ensuring that administrative decisions are made using a fair and open procedure by denying JS an appeal for failing to file the appeal before he left the hospital without anyone having told him that he had to file before leaving. It ignores the statutory context in which the issue arises by ignoring the mandatory requirement in s. 59 of the MHA to provide prompt rights advice. It denies the institutional and social context by expecting a vulnerable person whom the respondents believed to be incapacitated to navigate a complex web of statutory and administrative procedures entirely on his own. In all of that it denies the opportunity of those affected to put forward their views and have them considered by a decision-maker.

[40] The court then went on in Baker to set out the following nonexclusive factors that are relevant in considering procedural fairness:

(1) the nature of the decision being made and the process followed in making it;

(2) the nature of the statutory scheme;

(3) the importance of the decision to the individual or individuals affected;

(4) the legitimate expectations of the person challenging the decision; and

(5) the choices of procedure made by the administrative decision maker itself.

[41] The second third and fourth elements are particularly germane here as are the Court’s comments in relation to those elements.

[42] The second element relates to the statutory scheme, I have already set out my views on how the board in effect ignored s. 59 in making its decision on jurisdiction and will not repeat those here.

[43] In commenting on the third factor, the importance of the decision to the individual, the Court noted that the more important the decision is to the lives of those affected, the more stringent the procedural protections. [19] The ability to manage one’s own property is critical to a sense of individual freedom and autonomy. That right should not be taken away without adhering to the entire statutory scheme governing the issue.

[44] In commenting on the fourth factor, the legitimate expectations of the person challenging the decision the court noted:

…if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness. [20]

[45] JS had a legitimate expectation that he would be provided with rights advice and that the rights advisor would help him file an appeal. The statute provides for it. It was implicit in JS’s communications with Dr. Zalan. The form JS was given to confirm the Notice of Continuance expressly said it. In none of those communications was JS ever given the expectation that he would have to figure out the appeal process himself and initiate it before being discharged from the hospital. Moreover, JS was not in control of the time at which he was discharged from the hospital, the hospital was.

[46] In all of these circumstances, I am of the view that JS was denied procedural fairness when the Board declined to take jurisdiction over his appeal and that the Board erred in law in doing so.

[47] If I am incorrect in the applicable test for appeal and the test is palpable and overriding error, I would also find that the board made a palpable and overriding error in declining jurisdiction. Palpable means readily identifiable. The palpable error is that the Board determined its jurisdiction by ignoring the mandatory provisions of s. 59 of the MHA. The overriding nature of that error is reflected in the fact that the Board based its decision solely on the interplay of s. 60 and the definition of patient without even considering whether JS had been afforded the protections mandated by s. 59.

C. The Appeal from the Finding of Incapacity to Consent to Treatment

i. The Legal Test

[48] A person is presumed to have capacity to consent to treatment. The party challenging capacity must establish that the patient is not able:

(i) to understand the information that is relevant to making a decision about the treatment, and

(ii) to appreciate the reasonably foreseeable consequences of a decision or lack of decision. [21]

[49] A person may be incapable with respect to some treatments and capable with respect to others. A person may also be incapable with respect to treatment at one time and capable at another. The question of capacity is to be determined as of the date of the hearing. [22]

ii. The Board Decision

[50] The Board articulated the proper test and analysed the facts in relation to each of the test’s two branches. The only witnesses at the hearing were Dr. Gelber and JS’s parents both of whom supported the finding of incapacity to consent to treatment.

[51] Having the ability to understand information relevant to a treatment decision requires the cognitive ability to process, retain and understand the information. The board had ample evidence to conclude that JS was unable to understand information relevant to the decision about treatment. This included the evidence of Dr. Gelber to the effect that:

(i) JS suffered from memory loss, confabulation and psychosis which affected his ability to understand and retain information.

(ii) JS frequently denied events that happened including that he had taken his fiancée’s car, and that he had been in a car accident while driving even though he was not permitted to drive.

(iii) JS’s acute alcohol abuse which had required ICU care may have affected JS’s brain functioning.

(iv) JS’s level of disorganization was so severe that Dr. Gelber concluded JS was acting as if exhibiting symptoms of schizophrenia.

(v) JS’s confabulation caused him to experience false memories while believing that what he was communicating was truthful.

(vi) JS demonstrated “poverty of thought” which demonstrated a lack of ability to acquire the necessary information relevant to making a decision about the treatment in question.

(vii) According to Dr. Gelber, JS lacked the ability to understand the information concerning the proposed treatment because of his mental illness.

[52] The board had equally ample evidence to establish that JS was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment including the following:

(i) in January and February 2021 JS’s obsessive-compulsive disorder led him to stand naked outside taking pictures of himself for approximately 30 minutes. He returned inside with symptoms of hypothermia. According to Dr. Gelber, JS’s illness made him unable to resist this behaviour.

(ii) After assaulting his fiancée in June 2021 police had to taser JS to subdue him and bring him to hospital.

(iii) While hospitalized at North York General Hospital JS walked around naked, inserted inhalers in his rectum and subsequently used them.

(iv) Although JS’s license had been suspended, he stole the key to his fiancée’s car, crashed the car requiring hospitalization for himself but then confabulated that the incident never occurred.

(v) JS’s medical record showed that more than 10 psychiatrists in the six months leading to the hearing had determined that JS had severe obsessive-compulsive disorder with delusional insight and likely a psychotic disorder.

(vi) JS’ confabulation and hiding of medications demonstrated a complete lack of insight into the severity of his mental illness and the need for treatment.

(vii) In the absence of antipsychotic treatment Doctor Gelber was of the view that JS had no hope of recovery and that his prognosis was bleak.

(viii) JS had told his father that he would stop taking medication if he were allowed to decide the issue and would pursue meditation and mindfulness therapies.

iii. Grounds of Appeal

[53] The appellant submits that the Board made three errors:

(a) It conflated mental illness with lack of capacity.

(b) It failed to consider the most up-to-date evidence showing the appellant’s capacity since discharge.

(c) It considered the best interests of the patient.

[54] For the reasons set out below, I am not persuaded that the Board made any errors with respect to these issues and dismiss the appeal from the decision concerning lack of capacity to consent to treatment.

a. Conflating Mental Illness with Lack of Capacity

[55] The appellant submits that the Board relied on Dr. Gelber’s extensive evidence of JS’s symptomology and used it to conclude that he was unable to appreciate information and unable to appreciate the foreseeable consequences of his choices or behaviours. The appellant submits that this is contrary to the warning of the Supreme Court of Canada in Starson v. Swayze, [2003] 1 SCR 722 [23], not to conflate mental illness with lack of capacity. [24]

[56] In my view, a full reading of the Board’s decision does not demonstrate that it conflated mental illness with lack of capacity. It is almost inevitable that the Board would refer to a patient’s symptomology in considering whether the patient has capacity to understand information or the ability to appreciate the foreseeable consequences of treatment decisions. In reviewing the symptoms, the Board was not conflating mental illness with lack of capacity but was examining the symptoms to determine whether they reflected a lack of capacity to understand information or appreciate foreseeable consequences of treatment decisions.

[57] Although an obsessive need to stand outside naked in midwinter may be a symptom of a mental illness, it is also evidence of a patient’s inability to appreciate reasonably foreseeable consequences of his decisions. Other symptoms like inserting inhalers into his rectum and subsequently using them, stealing the keys to his fiancée’s car despite his license having been suspended, crashing the car leading to hospitalization and then confabulating that the events never occurred also constitute evidence of a lack of understanding and an inability to appreciate reasonably foreseeable consequences.

[58] The appellant submits that the alleged conflation of mental illness with lack of capacity is an error of law to which the standard of correctness applies. I will apply that standard without adjudicating the point.

[59] I find that the Board did not conflate mental illness with capacity and made no error in this regard.

b. Alleged Failure to Consider the Most Up-To-Date Evidence

[60] The appellant submits that the Board based its decision on historic symptomology and failed to take into account more recent evidence that dealt with JS’ capacity after discharge from the hospital and at the time of the Board’s hearing.

[61] This is a question of fact or mixed fact and law to which the standard of palpable and overriding error applies.

[62] In my view, the appellant’s submission takes the board’s review of historical symptomology out of context. The board did not use JS’ medical history to exclude up-to-date evidence but to examine what the foreseeable consequences of stopping antipsychotic medications would be. This was particularly relevant because, one week before the hearing, JS had told his father that he would stop taking medication and rely on meditation and mindfulness if the decision were left up to him. The results that followed JS’ past refusals to take medication are a reasonable proxy for the consequences of any further refusal to take medication and provide evidence of the lack of appreciation for the reasonably foreseeable consequences of JS’s decisions about treatment or lack of treatment.

[63] The appellant submits that the Board ignored more recent evidence to the effect that JS’s conduct had improved since he was discharged, that he was accepting his medications without opposition, and that Dr. Gelber’s own notes reflected an improvement in JS’ demeanour.

[64] That evidence must be viewed in its proper context. According to his mother, JS was not hiding or refusing medication because she now kept control of his medication and was mixing it in with his food. With respect to Dr. Gelber’s comments about improvements in JS’s behaviour, Dr. Gelber explained that JS more recently responded verbally to Dr. Gelber’s questions with the phrase “I don’t know.” Before JS was taking his medications, he often presented in a completely catatonic state. Although this is an improvement, it does not amount to capacity.

[65] The appellant submits that the evidence before the board demonstrated that he was now able to appreciate the foreseeable consequences of treatment decisions. He relied on the following questions from Starson, the answers to which could support a finding that a person has the ability to appreciate the consequences of treatment decisions:

(i) Is the person able to acknowledge the fact that the condition for which treatment is recommended may affect him or her?

(ii) Is the person able to assess how the proposed treatment and alternatives, including no treatment, could affect his or her life or quality of life?

(iii) Is the person’s choice not substantially based on a delusional belief?

[66] The Board referred to these questions and applied them to the facts.

[67] The appellant submits that his intention to pursue mindfulness therapy in lieu of medication recognizes that there is a condition that requires some form of treatment and demonstrates an ability to assess treatment alternatives.

[68] I cannot agree. Although mindfulness therapy may be a very helpful tool when dealing with certain stresses or behaviours, using it as the sole treatment for conditions as severe as those with which JS is afflicted demonstrates a lack of ability to assess treatment alternatives and in my view is far closer to a delusional belief than it is to the ability to appreciate reasonably foreseeable consequences of a treatment decision.

[69] Although the appellant submits that there was no evidence to demonstrate that mindfulness therapy was not an effective treatment, I do not see the record that way. Dr. Gelber testified that he believed JS would have died on the streets in the community without the intervention of medical treatment and family support. He also testified that if JS discontinued his medications JS had no hope of recovery and his prognosis would be bleak.

[70] I can see no palpable and overriding error in the Board’s treatment of historical and more recent evidence.

iii. Best Interests Considerations

[71] The appellant submits that the Board erred by focusing on what it perceived to be the best interests of JS rather than on the legal test for capacity. This issue presents a question of law to which the standard of correctness applies.

[72] The appellant relies on the third last paragraph of the Board’s reasons in support of this ground of appeal. The relevant passage of that paragraph states:

The presiding member was convinced by clear, concise and compelling evidence of Dr. Gelber, as supported by the oral testimony of RS and MS, as well as the documentary evidence provided, and found that JS was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the proposed treatment. Based on this evidence, the presiding member found that the proposed treatment likely offered benefit to JS. The presiding member also found that, absent treatment as proposed, JS would likely not improve or continue to deteriorate just as he had done in the past .” (Emphasis in appellant’s factum). [25]

[73] In my view, the appellant takes the boldfaced portion of the preceding quotation out of context. It is preceded by a clear statement to the effect that JS was unable to appreciate the reasonably foreseeable consequences of the decision or lack of decision about the proposed treatment. That was an element of the legal test which the Board properly applied. The Board then went on to add the statement that the treatment would likely offer benefit to JS. This was not the basis of the Board’s decision but was something which, in addition to the legal basis of the decision, gave the presiding member additional comfort. The fact that the presiding member made this additional expression of care and concern does not mean that he ignored the applicable legal test.

[74] In my view, the Board correctly applied the proper legal test and committed no error by expressing the view that the proposed treatment would likely offer benefit to JS.

Conclusion

[75] For the reasons set out above, I grant the appellant’s appeal on the Board’s decision that it had no jurisdiction to consider the appeal on capacity to manage property and remit that issue back to the Board for a hearing on the merits. I dismiss the appellant’s appeal on the issue of capacity to consent to antipsychotic medication. This is not an appropriate case for costs.

Koehnen J. Released: 2022-04-05

Footnotes

[1] Mental Health Act, RSO 1990, c M.7 [2] Health Care Consent Act, 1996, SO 1996, c 2, Sch A [3] MHA s. 57(1). [4] MHA s. 57(2) [5] Substitute Decisions Act, 1992, SO 1992, c 30, s. 15. [6] C.G. (Re), 2008 ON CCB 5626; MM (Re), 2018 ON CCB 64341; PC (Re) 2003 ON CCB 55007; SH (Re) 2016 ON CCB 58684. [7] Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. [8] Vavilov, at para 23 [9] Vavilov, at para 37. [10] Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 FCR 121 at para. 54; Matheson v. College of Physicians and Surgeons of Ontario, 2021 ONSC 7597 at para. 32. [11] Vavilov, at para. 117. [12] Substitute Decisions Act, 1992, SO 1992, c 30, s. 15 48. [13] Substitute Decisions Act, s. 20.02; P. C. (Re), 2003 ON CCB 55007 MM (Re), 2018 ON CCB 64341 [14] Substitute Decisions Act, 1992, SO 1992, c 30, s. 20.1(1)(a) [15] While the 6 months have now passed for JS, that is only by virtue of the fact that his rights of appeal were eviscerated and he could not get a court hearing any sooner. [16] Re AS 2021 ON CCB 27383. [17] Baker v. Canada (Minister of Citizenship and Immigration), 1999 SCC 699, [1999] 2 SCR 817 [18] Baker, at paragraph 22. [19] Baker, at para. 25. [20] Baker, at para. 26. [21] Health Care Consent Act, 1996, SO 1996, c2. [22] Health Care Consent Act, 1996, SO 1996, c 2, ss. 15, 16, and 20(1)-(3) [23] Starson v. Swayze, 2003 SCC 32, [2003] 1 SCR 722 [24] Ibid. at para. 77. [25] Board reasons for decision dated November 18, 2021, at page 20.