L.L. v. Rohani, 2023 ONSC 4349

minicounsel

CITATION : L.L. v. Rohani, 2023 ONSC 4349

COURT FILE NO.: CV-23-00699765-0000 DATE: 2023 0726

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

L.L. Appellant – and – Kevin Rohani Respondent

Counsel: L.L., self represented Kelley Bryan, amicus curiae Jessica Szabo and Sarah Rosales Zelaya for the respondent

HEARD: July 10, 2023

Robert Centa J.

Overview

1L.L. is a 36-year-old man. He completed a challenging undergraduate program with high honours and then earned a professional graduate degree. L.L. has worked on interesting and difficult projects and enjoyed professional success. He has written poetry and essays on a wide variety of topics. He is obviously smart and accomplished.

2L.L. has also been in the forensic mental health system. Starting in summer 2022, L.L.’s parents became very concerned about his behaviour. On July 30, 2022, they took L.L. to the emergency department at St. Michael’s Hospital after he behaved bizarrely and vandalized his neighbour’s garden with an axe. In August 2022, his mother called the police after she heard L.L. threaten to kill the neighbour’s son and he banged on the neighbour’s door while holding a machete. L.L. was involuntarily hospitalized for 15 days following this incident. In October 2022, L.L. behaved violently towards both his parents and used a hacksaw to damage the same neighbour’s property. L.L. was again hospitalized involuntarily. During this period of time, the police charged L.L. with a number of criminal offences. He was subsequently arrested for breaching the conditions of his release. In March 2023, L.L. was released after having spent a little less than three months in detention.

3On April 5, 2023, L.L.’s father, J.L., brought him to the emergency department at the Centre for Addiction and Mental Health. The staff at CAMH detained L.L. first on a Form 1 (Application by Physician for Psychiatric Assessment), then on a Form 3 (Certificate of Involuntary Admission) and Form 4 (Certificate of Renewal) under the Mental Health Act. [1] On April 13, 2023, Dr. Kevin Rohani, L.L.’s attending psychiatrist at CAMH, determined that L.L. was incapable of consenting or refusing to consent to treatment with antipsychotic and mood stabilizing medications.

4L.L. appealed Dr. Rohani’s determination to the Consent and Capacity Board. On May 1, 2023, the Board convened a hearing before Lora Patton (presiding member), Dr. George Papatheodorou (psychiatrist member), and Jennifer Decaria (public member). Dr. Rohani was represented by Dr. Sophia Quick, a resident physician at CAMH. Initially, L.L. was represented by Joanna Weiss. After she argued two preliminary motions, L.L. discharged Ms. Weiss and represented himself for the balance of the hearing. The Board dismissed L.L.’s appeal.

5First, the Board held that L.L. met the criteria for involuntary detention at the time of the hearing and confirmed the certificate of involuntary admission. The Board found that L.L. was experiencing a mental disorder (most likely bipolar I with psychotic elements). The Board concluded that L.L.’s mental disorder was of a nature or quality that L.L. was likely to experience serious bodily harm to himself and cause harm to someone else unless he remained in hospital. Finally, the Board held that L.L. was not suitable for continuation as a voluntary patient because he would “undoubtedly leave” CAMH the first time he became annoyed or frustrated.

6Second, the Board held that L.L. was incapable of consenting to treatment with antipsychotic and mood stabilizing medications. The Board found that while L.L. had the ability to understand the information that was relevant to making a decision about the treatment, he lacked the ability to appreciate the reasonably foreseeable consequences of a decision about treatment with mood stabilizing and antipsychotic medications. The Board concluded:

Capacity does not require a person to agree with the diagnosis of the healthcare practitioner, but it does require a person to have the ability to consider the possibility that they may be experiencing a condition that the proposed treatment may improve. LL wholly lacked this ability, rejecting the possibility that he was experiencing any condition that could be impacting his beliefs or behaviours. Without the ability to consider this possibility, he lacked the ability to weigh the risks and benefits of the proposed treatment and to make a capable decision.

7On May 8, 2023, L.L. appealed the Board’s decision. L.L. did not challenge the Board’s decision that he met the criteria for involuntary detention. He only appealed the Board’s decision that he was incapable of consenting to treatment with antipsychotic and mood stabilizing medications.

8On June 13, 2023, the matter came before me in Civil Practice Court. Counsel for Dr. Rohani indicated that the appeal was very urgent and requested that the appeal be heard as soon as possible. Given the urgency, I agreed to hear the appeal myself for two hours starting at 8:00 a.m. on July 10, 2023. I set a timetable for the exchange of material and appointed Kelley Bryan to act as a friend of the court or amicus curiae. I thank Ms. Bryan for her thoughtful, comprehensive, and well-researched amicus submissions, which were of great assistance to me.

9For the reasons set out below, I dismiss L.L.’s appeal.

10As a preliminary matter, L.L. seeks to have fresh evidence considered on appeal. I admit L.L.’s written submission that was inadvertently not placed before the Board, but that submission would not have affected the decision below. I dismiss the balance of his motion as the documents are not properly admissible on appeal.

11I do not accept L.L.’s primary submission that the panel that heard his appeal demonstrated a reasonable apprehension of bias or that the Board has demonstrated systemic bias.

12I also do not accept Ms. Bryan’s submission that the Board erred by declining to appoint Ms. Weiss as amicus for the remainder of the Board hearing. L.L. requested to represent himself. The Board permitted Ms. Weiss to remain at the hearing and to assist L.L. when he requested the assistance of counsel, including by cross-examining witnesses. This arrangement posed no unfairness to L.L.

13I find that the Board did not commit a palpable and overriding error in its determination that L.L. lacked capacity to consent to treatment with antipsychotic and mood stabilizing medications. The Board correctly stated the legal test to be applied and committed no reviewable error in the application of the test to the facts of the case. The Board did not fail to distinguish between L.L.’s ability to appreciate the consequences and the failure or refusal to accept the reasonably foreseeable consequence of a decision about treatment with mood stabilizing and antipsychotic medications.

14I conclude this overview by emphasizing that the Board’s decision focussed on L.L.’s capacity on the day of the hearing: May 1, 2023. Similarly, my focus in this appeal is on L.L.’s capacity on May 1, 2023. [2] It appears that L.L.’s health may have improved since the hearing. Indeed, on June 30, 2023, counsel for Dr. Rohani advised that CAMH had discharged L.L. into the community. [3]

15Under Ontario law, a person is presumed to be capable with respect to treatment. [4] This preserves the value of individual autonomy. A diagnosis of a mental disorder is not to be conflated with incapacity and, without more, does not remove capacity and autonomy. The law is clear that a person may be incapable with respect to some treatments and capable with respect to other treatments. A person can also be incapable with respect to a treatment at one time and capable with respect to that same treatment at another time. [5]

16Although I have dismissed L.L.’s appeal, given the significant change in circumstances since the date of the hearing before the Board, I urge all practitioners to ensure that they are not relying on potentially outdated assessments of L.L.’s ability to consent to treatment.

Appeal route and standard of review

17This is a statutory appeal pursuant section 80 of the HCCA. Subsection 80(1) provides that 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, fact, or both. The court has very broad powers on appeal. Pursuant to s. 80(10) of the HCCA, the court may exercise all the powers of the Board, substitute its opinion for that of a health practitioner or the Board, or refer the matter back to the Board with directions for a rehearing in whole or in part.

18Because this case involves a statutory appeal from an administrative decision-maker, the standard of review is correctness for questions of law, and palpable and overriding error for questions of fact and mixed fact and law. [6] A palpable and overriding error is one that is obvious, clearly wrong, unreasonable, not supported on the evidence, and determinative of the outcome. [7]

19The standard of review on questions of procedural fairness is correctness, but the Board is entitled to some deference in determining the scope of procedural fairness in a particular proceeding. As Perell J. explained:

Decisions of the Board on matters of procedural fairness are reviewed to a standard of correctness. However, administrative tribunals are shown a margin of deference in determining what is the scope of procedural fairness in the context of a particular proceeding. Put somewhat differently, there is a range or scope to what counts for procedural fairness and depending on the administrative tribunal and its enabling legislation, a degree of deference is accorded the tribunal in determining the scope of procedural fairness but the tribunal must meet the standard of correctness in its application of procedural fairness. [8]

20I will now consider the issues raised on this appeal.

Should the proposed fresh evidence be admitted?

21L.L. requests that I consider new evidence that was not before the Board when it made its decision. He appended this evidence to his factum under the labels Appendix 1 to 6.

22Subsection 80(9) of the HCCA provides that “the court shall hear the appeal on the record, including the transcript, but may receive new or additional evidence as it considers just.” For the purposes of this appeal, I will adopt a more flexible approach to the admission of new or fresh evidence than the strict standard that would normally apply in a civil appeal. [9]

23First, L.L. requests that I consider a document he wrote that contains a mixture of evidence and submissions that he intended to be placed before the Board (Appendix 1). It appears that, due to an innocent mistake, this material was not placed before the Board. I agree to consider this document on the appeal. It is not necessary for me to admit Appendixes 2 to 4, which appear to be email messages that support L.L.’s intention to have Appendix 1 placed before the Board.

24Second, L.L. requests that I admit a letter dated June 24, 2023, from L.L.’s father, J.L., addressed to CAMH (Appendix 5), and a letter dated June 29, 2023, from L.L.’s mother addressed “to whom it may concern” (Appendix 6). Even adopting a more flexible approach to this evidence, I do not admit either letter into evidence for this appeal.

25First, I am not satisfied that the letters are reliable. Even if I accept L.L.’s unsworn statement that the letters are authentic, meaning only that the letters are what they purport to be, the evidence is not inherently reliable as the letters are not themselves sworn statements.

26Second, the letters contain inadmissible opinion evidence. J.L.’s letter states “I am of the opinion that [L.L.] is both mentally capable of making decisions on his medication, and is the best person to do so. The letter from L.L.’s mother concludes “there is agreement that the medication [L.L.] chose is the one most appropriate to the final diagnosis. He was and is capable of making the choice himself.” Neither J.L. nor L.L.’s mother is qualified to provide such an opinion. Opinion evidence can only be provided by a properly qualified and disinterested expert. Even if I admitted these letters, I would give them no weight.

27Third, it does not appear to me that either letter provides an assessment of L.L. as of May 1, 2023, which is the date the Board made its decision. Both letters postdate the Board’s decision by almost two months. Evidence of L.L.’s condition after the hearing is irrelevant. I do not think that the observations in the letter are relevant to the appeal of the Board’s decision, which assessed L.L.’s capacity to consent to treatment on May 1, 2023. [10]

28Fourth, it is unnecessary to admit J.L.’s letter because he testified at length at the Board hearing. J.L.’s letter reads as follows:

I brought my son [L.L.] to the emergency department of CAMH on April 5th 2023. [L.L.] had been suffering from severe trauma period since then I have noticed a dramatic improvement in [L.L.’s] condition when we talk he sounds lucid, rational and like himself. I am of the opinion that he is both mentally capable of making decisions on his medication, and is the best person to do so.

29In contrast to this brief letter, L.L.’s testimony at the hearing held on May 1, 2023, spans almost 100 pages of transcript. He was questioned by Dr. Quick, cross-examined by L.L., Ms. Weiss, and all three members of the panel.

30In addition, I have reservations about accepting J.L.’s letter without understanding more about the context in which he wrote it. Having heard J.L.’s evidence, the Board concluded as follows:

JL reported that LL had attacked him on various occasions, unexpectedly. This included both choking and striking (Exhibit 1, page 51). Prior to his incarceration in December, LL had attacked JL’s door with an axe, destroying it. JL also described LL choking one of his friends when he went to stay out of town. JL indicated that he was not afraid of LL a good part of the time but he also said that he’d learned how not to be afraid because he couldn’t live being afraid of his son. He noted that it could be risky and he could lose in that assessment. In the panel’s view, JL was a loving father, deeply concerned about his child. If anything, he minimized the threat JL posed to him and appeared to be trying to appease his son throughout the uncomfortable cross-examination to best preserve their relationship….We also felt that JL was minimizing his fear of LL.

31Even adopting a more flexible approach to the admission of fresh evidence on appeal than would normally be adopted on a civil appeal, I decline to admit the letters from L.L.’s parents into evidence.

Did the Board’s process and decision raise a reasonable apprehension of bias?

32L.L. submits that the Board did not provide him with a fair process because of the panel’s “conscious or unconscious bias (“stigma”)” or due to a systemic bias in the CCB process. His submissions were well-organized, coherent, and addressed considerations that are relevant to this ground of appeal. I find it convenient to consider all of these grounds together.

33The test for reasonable apprehension of bias is as follows:

what would an informed person, viewing the matter realistically and practically—and having thought the matter through— conclude. Would she think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly ? [11]

34The test for bias contains a twofold objective standard: the person considering the alleged bias must be reasonable and informed; and the apprehension of bias must itself be reasonable. [12] The reasonable observer is not a person with a very sensitive or scrupulous conscience. [13] She is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument and “who takes the trouble to read the text of an article as well as the headlines.” [14]

35I find that an informed person, viewing the matter realistically and practically, and having thought the matter through, would not think that it is more likely than not that the Board, whether consciously or unconsciously, did not decide this case fairly. None of the grounds raised by L.L., even when considered together, demonstrate a reasonable apprehension of bias.

36First, L.L. emphatically disagrees with the Board’s conclusion that he “wholly lacked” the ability to consider the possibility that he may be experiencing a condition that the proposed treatment may improve. He cites this as the “most important and relevant example of stigma amongst the [Board] panelists.” L.L.’s subjective disagreement with the ultimate conclusion of the Board is not evidence of a reasonable apprehension of bias.

37I also disagree with L.L.’s suggestion that the Board did not provide a reasoned explanation for its decision. The Board was entitled to consider his evidence along with all of the other evidence it heard and reach its conclusion. The Board, for example, was entitled to accept the evidence of Dr. Quick in preference to the evidence of L.L. Many litigants will disagree with the ultimate decision of an adjudicator, but that alone is not evidence of a reasonable apprehension of bias.

38Second, L.L. submits that the Board did not ask him about “anything positive that occurred in the period prior to my hospitalization or acknowledge my achievements” but instead focused on the events beginning in the summer of 2022, which led to his hospitalizations. This is not evidence of a reasonable apprehension of bias. There is no obligation on the Board to ask questions about any particular area. It is for the Board to decide what evidence is most relevant to the matters at issue. The Board was well within its discretion to focus on issues that, in its view, were more relevant to the matters directly at issue in the proceeding. Failing to ask L.L. questions about issues that the Board may have considered less pressing is not evidence of a reasonable apprehension of bias.

39Third, L.L. submits that the Board sent the notice of decision directly to Ms. Weiss, his former lawyer, and not to him personally. This was unfortunate. In my view, the better practice would have been for the Board to deliver its notice of decision directly to L.L., with a courtesy copy to Ms. Weiss. I do not find, however, that such a post-hearing oversight is any evidence of a reasonable apprehension of bias on the part of the members of the panel that heard L.L.’s appeal.

40Fourth, L.L. submits that the Board hurried him along during the hearing. There is no merit to this submission. The Board sat from 10:48 a.m. to 6:03 p.m. A typical Board hearing lasts two hours. The Board allowed L.L. to question Dr. Quick and his father J.L. at length. In my view, the panel was extremely patient with L.L. and allowed him significant leeway in his questioning of the witnesses, which directly contributed to the length of the hearing. The Board offered to adjourn the hearing to be continued on another date several times, but L.L. did not wish to adjourn the hearing. There is nothing about the way the Board allocated the hearing time that creates a reasonable apprehension of bias.

41Fifth, L.L. submits that the failure of the Board to accede to his request to have witnesses provide evidence under oath is evidence of a reasonable apprehension of bias. I disagree. The Board’s rules specifically permit the Board to receive evidence from a witness without requiring that witness to be under oath. There is nothing about the Board’s exercise of its discretion not to require an oath that demonstrates a reasonable apprehension of bias.

42Sixth, L.L. complains that he did not receive advance notice of the procedure, that Dr. Rohani intended to call a witness and did not receive access to the record placed before the Board. L.L. submits that “In none of my hearings did my lawyers inform me of these rights and responsibilities before the hearing.” I do not accept these submissions. L.L. was represented by Ms. Weiss until he discharged her after she argued two preliminary motions. To the extent that L.L. wished to receive more pre-hearing advice about the hearing procedure, Ms. Weiss could have provided that advice to him. If L.L. did not receive as much pre-hearing information as he wished to receive, that is a matter between L.L. and his former counsel. It is not evidence of reasonable apprehension of bias on the part of the Board. Once L.L. discharged Ms. Weiss, the Board provided him with an overview of the procedure to be followed.

43Ms. Weiss did not suggest on the record at the hearing that she did not receive disclosure of relevant documents in advance of the hearing or that she had not been provided with a list of intended witnesses. Indeed, Ms. Weiss submitted a document package to the Board (Exhibit #2) that contained treatment records, which is strong evidence that she received disclosure of relevant documents. Similarly, Ms. Weiss did not file an affidavit on this appeal. I do not accept that there was inadequate disclosure in advance of the hearing. Any such objection needed to be made at the hearing, not for the first time on appeal.

44Seventh, L.L. submits that the Board permitted Dr. Rohani to rely on charts and other information collected after they issued the Forms that were under appeal. There is nothing inappropriate about this approach. The Board is required to assess not only the appropriateness of the forms on the day they were issued, but also whether or not L.L. had capacity to consent on the day of the hearing. [15] In making that assessment, the Board is entitled to consider information arising after the date of the form including, for example, the evidence of L.L.

45Eighth, L.L. submits that the Board’s decision-making process is “entirely opaque” and deficient because it does not comply with certain provisions in the Criminal Code, R.S.C. 1985, c. C-46. Although there is no doubt that the Board is required to provide a high level of procedural fairness, it is not a criminal court, and it is not bound by the specific statutory requirements of the Criminal Code. The Board’s failure to follow a statute that does not apply to the Board’s hearing is not evidence of a reasonable apprehension of bias, systemic bias, or any unfairness.

46In conclusion, I do not accept L.L.’s submissions. I find that the Board’s processes and decision did not create a reasonable apprehension of bias or systemic bias.

Did the Board err by declining to appoint amicus at its hearing?

47Ms. Bryan submits that the Board erred by not appointing amicus at the Board hearing after L.L. discharged Ms. Weiss. For the reasons that follow, I do not accept this submission. The Board was not obliged to appoint amicus and L.L. had a fair hearing, even without the appointment of amicus.

Ms. Weiss acted as counsel to L.L. before and during the appeal

48On behalf of L.L., Ms. Weiss completed the applications to the Board to review both the finding of his incapacity and his involuntary status in April 2023. She prepared a book of relevant documents, which was entered as Exhibit 2 at the Board hearing. She prepared a brief of documents related to the signing, filing, and review of the Form 3, which was marked as Exhibit 1 on the preliminary motions at the hearing.

49The hearing convened on May 1, 2023. Ms. Weiss introduced herself as L.L.’s lawyer and brought two preliminary motions. The first related to the provision of rights advice in relation to the Form 3 that was signed on April 8, 2023. The second related to the whether or not the officer in charge reviewed the Form 3 in a timely way after it was completed and, if not, whether the Form 4 should be rescinded. The Board received submissions from Ms. Weiss and Dr. Rohani, and then retired to deliberate. The Board returned from its deliberations shortly before 12:00 noon.

50Before the Board announced its decisions, Ms. Weiss advised the panel that, while the Board was deliberating, L.L. told Ms. Weiss that he wished to represent himself for the rest of the proceeding. Ms. Weiss stated that she had explained to her client the options available to him and that he had decided that “he wanted to take care of his own matter.” Ms. Weiss stated she had discussed the “option” of amicus with L.L., that they understood that it was not a given that the Board would appoint amicus, and that L.L. “could be okay with” the appointment of amicus. I note that neither Ms. Weiss nor L.L. directly asked the Board to appoint Ms. Weiss or anyone else as amicus. Ms. Weiss stated as follows:

He let me know that he’d like to represent himself, I'm sure that he’ll be able to speak to that as well.

I have spoken with him about the option of amicus, but I know that sometimes the panel canvasses, not that that’s necessarily a given, but sometimes that is something that’s canvassed and my understanding from him is that that is something that he could be okay with or might be fine with, but he just wants to be able to sort of take care of his own matter and yeah. So, that’s what I can add and of course, that’s fine with me because he’s absolutely entitled to represent himself.

51The presiding member, Ms. Patton, raised a concern about Ms. Weiss shifting to a role as amicus because she had already represented L.L. in the hearing and was in possession of solicitor-client privileged communications. Ms. Weiss acknowledged the legitimacy of that concern, and any concern that L.L. might have, and said that she was in the Board’s hands. Ms. Patton then asked L.L. if he had any concerns with Ms. Weiss remaining to provide assistance to him if he had any questions or required further support, rather than to assist the panel directly. L.L. stated did not have any concerns, that he had discussed the arguments with Ms. Weiss many times, and that he would “prefer to have her here to have her expertise.” Ms. Patton indicated that she thought that it would be more appropriate for Ms. Weiss to remain and assist L.L. throughout the hearing as he requested, rather than adopt the role of amicus. Neither Ms. Weiss nor L.L. expressed any concerns about this approach. The relevant exchange is as follows:

Ms. Patton: So, Ms. Weiss, there are obviously some ethical issues if you’ve been representing a client and having privileged conversations with them as to whether or not you can participate in a role as amicus. So, I want to give you the opportunity to express your view on that.

Ms. Weiss: Yeah, that’s a fair question. I mean, I think that my view would be that I would be in the panel’s hands. I think I’ve been in situations before where I have been acting (incomprehensible) not necessarily sort of partially through a proceeding but yeah, I think that if the panel deemed to be appropriate, I wouldn’t mind staying on in that role. I think that – and I had noted that [L.L.] might have (incomprehensible) if he took issue with that or if the panel has any concerns about that, that’s absolutely fine. I'm sort of in the panel’s hands and I just wouldn’t want to do anything that would ….

Ms. Patton: Yeah, I don’t want to put you in a difficult position either, but let me ask [L.L.] do you have any concerns about Ms. Weiss remaining to provide further assistance? And I think I would just ask her to provide assistance to you if you had any questions or required any further support through the hearing rather than to assist the panel more directly.

L.L.: No, I have no concerns, I’d prefer to have her here to have her expertise. She knows – we’ve talked – we’ve gone over all the arguments together many times, so she knows that I'm capable and – but she obviously has expertise that I don’t – experience that I don’t have, so.

Ms. Patton: Okay. So, Ms. Weiss, I think that the more appropriate role for you to take, so rather than sort of very formal friend to the Board, I don’t want you in a position where you’re disclosing something inappropriately or something else, so you’ll simply assist [L.L.] as necessary throughout the hearing, okay?

Ms. Weiss: Thank you for that.

52I find no fault in the Board’s decision to allow L.L. to represent himself. Even though L.L. may be incapable with respect to treatment, he is deemed to have capacity to retain and instruct counsel. [16] There is no dispute that L.L. had both the right to counsel at the hearing and the right to present the case himself. It is very rarely a wise decision for an individual to choose to represent themselves, but it was L.L.’s decision to make. The Board appropriately respected L.L.’s decision to permit him to present the case himself.

The Board did not err by declining to appoint Ms. Weiss as amicus

53Ms. Bryan submits that the Board erred by declining to appoint Ms. Weiss as amicus. She makes the following submission:

In this case, the Board rightly respected [L.L.’s] right to represent himself once he discharged his lawyer. However, it failed to provide a fair hearing to provide a fair hearing in the circumstances, by:

(a) failing to appoint amicus to assist [L.L.]. Ms. Weiss was available, willing, prepared for the hearing and ready to proceed as amicus, and [L.L.] was agreeable to her appointment as amicus. Yet the Board declined to appoint Ms. Weiss, or any other lawyer, as amicus;

54I disagree. I do not think the Board erred in considering the fact that Ms. Weiss had acted as L.L.’s lawyer when considering whether or not to appoint her as amicus. Appointing former counsel to an appellant as amicus is fraught with peril. For present purposes, I find that the Board committed no error in weighing the dangers inherent in such an appointment when making its decision.

55What Ms. Bryan proposes is that Ms. Weiss, having acted for L.L. in respect of his appeal to the Board, should have been appointed as counsel to the Board on the very same matter. There is no doubt that Ms. Weiss obtained confidential information from L.L. while she represented him. L.L. confirmed to the Board about Ms. Weiss that “we’ve talked – we’ve gone over all the arguments together many times.” Ms. Weiss had an ongoing duty to her former client to protect those confidences. A lawyer may not act in any matter which puts that obligation in conflict with duties owed to current clients. [17] For that reason, I have difficulty seeing how Ms. Weiss could discharge her burden and satisfy either L.L. or the Board that there was no risk of the misuse of confidential information resulting from the representation of her former client, L.L. [18]

56Even if there was no risk of the misuse of confidential information, Ms. Weiss owed an ongoing duty of loyalty to L.L., her former client. There is a broad obligation not to act against former clients in the same dispute because the fiduciary duty that lawyers owe to their clients is not terminated when the services are completed. [19] A former client has the right to expect counsel’s loyalty to persist with respect to the subject matter of a retainer, even after the client-lawyer relationship has ended. [20] In such cases, disqualification of the lawyer is not based on confidentiality concerns but rather the need to foster and maintain public confidence in the integrity of the legal profession and in the administration of justice. [21]

57In my view, the Board was correct to view Ms. Weiss’s ongoing duties to L.L. as inconsistent with her appointment as amicus. As a matter of principle and law, once appointed, an amicus is bound by a duty of loyalty and integrity to the court or tribunal and not to any of the parties to the proceeding. [22] An amicus appointed by the Board is not a stealth counsel for the patient. The Board may not shift its duty to ensure a procedurally fair hearing to amicus who, albeit under a different name, assume a role nearly identical to counsel for the patient. [23]

58The Board is entitled to retain counsel of its choice to act as its amicus. As noted, it is entitled to expect that its amicus will owe it an undivided duty of loyalty. If the Board appointed an amicus in this case, that lawyer would have an obligation to bring facts or points of law to the Board’s attention that might be contrary to the interests of L.L. [24] The Board is entitled to expect that amicus will fulfil her duty of loyalty to the Board. This would include, for example, recommending that the appeal be dismissed if that is her view. The public interest demands no less.

59I do not see how Ms. Weiss could have reconciled her ongoing duty of loyalty to L.L. with her obligation to bring facts or points of law to the Board’s attention that might be contrary to his interests in the very matter in which she represented him. The record does not suggest that L.L. knew that if Ms. Weiss was appointed amicus, she would have been under a duty to take positions contrary to his interests and his desired outcome in the case. Given L.L.’s significant concerns about a reasonable apprehension of bias on the part of the panel, I think he would have found it very troubling that his former lawyer might be required to act against his interests in the very same matter. I do not find that he provided informed consent to Ms. Weiss acting as amicus.

60In these circumstances, the Board was correct to identify the difficult situation that would have faced Ms. Weiss had she been appointed amicus. In my view, the Board was under no obligation to appoint L.L.’s former counsel as its amicus in the very same matter.

The Board did not err by failing to appoint anyone else as amicus

61There is no doubt that the Board had the jurisdiction, and the panel knew that it had the jurisdiction, to appoint amicus to assist it with the hearing. [25] The Board, however, was under no obligation to appoint amicus. It is entirely within the Board’s discretion whether or not to appoint amicus to assist the Board to ensure a procedurally fair hearing. [26] The obligation is on the Board to provide procedural fairness to L.L. The Board it is not required to appoint amicus unless such an appointment is required to conduct a fair hearing.

62There is nothing so unusual about the facts of this case that required the Board to appoint amicus. Indeed, finding that the Board was required to appoint amicus in this case would require the Board to do so in every case where the appellant was self-represented. I do not think that such an outcome is required by any of the HCCA, the Board’s own rules, or the requirements of procedural fairness.

63Here, the Board recognized L.L.’s right to control and conduct his own case and to have the benefit of obtaining the advice and assistance of Ms. Weiss when he wished it. There was no unfairness in the Board’s decision not to appoint amicus.

The Board provided procedural fairness to L.L. even without amicus

64Having exercised its discretion not to appoint amicus, the Board remained obliged to provide L.L. with a fair hearing. I emphasize, however, that L.L. was entitled to a procedurally fair hearing, not a perfect hearing or one that would have best advanced his interests.

65Instead of putting Ms. Weiss in an impossible situation of conflicting duties, the Board allowed Ms. Weiss to remain at the hearing, to advise L.L. when he requested assistance and even to cross-examine witnesses. Both L.L. and Ms. Weiss agreed with the Board’s suggestion that Ms. Weiss remain to provide assistance to L.L. as he requested.

66The Board’s decision to allow Ms. Weiss to remain in the hearing and to provide assistance throughout the hearing was a creative and effective way to permit L.L. to represent himself but to allow him to choose to obtain the benefits of advice from a skilled lawyer with a deep familiarity of the case. Far from an abdication of its role, the Board is to be commended for discharging its obligation to provide procedural fairness to L.L.

67I am satisfied that the Board provided L.L. with procedural fairness. There are many examples in the transcript that demonstrate the Board’s concern to ensure that L.L. had a fair hearing. These include the following examples:

a. When L.L. raised a concern that he had only learned the prior day that Dr. Rohani intended to call a witness, the Board explained that this was the usual process at the Board but nevertheless offered L.L. an adjournment so that he could prepare and arrange to call his own witnesses. L.L. declined the offered adjournment. b. The Board explained the hearing process in detail to L.L. including the burden of proof, the order of operations, that L.L. had the right to testify or not testify, the process for submissions, deliberations, and when the Board would provide its decision to him. c. The Board advised L.L. that he could consult with Ms. Weiss regarding whether or not he wished to present a case and, if so, how he wished to do that. d. The Board confirmed that L.L. had all of the documents that were before the panel; e. The Board asked L.L. whether he wished to ask his questions of Ms. Quick before or after the members of the Board and permitted L.L. to consult with Ms. Weiss to receive her recommendation on that question; f. The Board recommended to L.L. that he refer to a specific page number in the written materials when asking questions of witnesses in order to obtain better answers to his questions; g. The Board reminded L.L. that he would have an opportunity to speak to the Board if he chose to do so, but nevertheless gave L.L. significant latitude to mix his evidence in with questions he was asking to witnesses, which was appropriate in the circumstances; h. The Board assisted L.L. to break down compound questions into single fact questions to ensure that he obtained the answers he was seeking; i. When witnesses had difficulty understanding L.L.’s questions, the Board rephrased those questions so that L.L. would receive the evidence he was seeking; j. The Board ensured that Dr. Rohani did not interject and attempt to provide evidence while other witnesses were testifying; k. The Board directed witnesses to let L.L. finish his questions before giving their answers so that the transcript would accurately capture all of the evidence; l. After L.L. completed his examination of Dr. Quick, the Board asked Ms. Weiss if there were additional questions that she felt had to be covered. Ms. Weiss indicated that she had three or four question about the legal criteria at issue. The Board permitted Ms. Weiss to ask those questions; m. The Board asked questions of Dr. Quick to obtain information that the panel members thought essential, but had not emerged from her evidence or the questions of L.L. and Ms. Weiss; n. The Board invited L.L., and then Ms. Weiss, to ask questions of Dr. Quick that arose from the panel’s questioning; o. The Board assisted L.L. to focus only on questions arising out of the panel’s questioning and not to repeat material already covered; p. When L.L. accused Dr. Quick of lying and committing perjury, Ms. Patton suggested that he take a break and consult with Ms. Weiss because she was concerned that L.L. may be displaying behaviour that Dr. Quick had referenced as manifestations of an illness; q. The Board members moved prior obligations to permit the hearing to run far in excess of the normal two-hour limit and to permit L.L. to have the latitude to question the witnesses at length; r. When L.L. had questions about legal authority for Dr. Rohani and Dr. Quick to speak to his father, Ms. Patton provided him with an opportunity to consult with Ms. Weiss; s. When L.L. wished to reconsider if he wanted to seek an adjournment of the hearing so that he would be able to arrange for witnesses, the Board gave him the opportunity to obtain advice from Ms. Weiss. After receiving advice, he again declined the opportunity for an adjournment; t. After L.L. completed his questioning of J.L., the Board invited Ms. Weiss to question J.L., which she did until L.L. stated that he would prefer that she not ask any further questions; u. The Board members asked J.L. questions in order to obtain the information they believed necessary for the hearing and then permitted L.L. to ask questions arising out of those questions; v. The Board members invited L.L. to consult with Ms. Weiss before he decided whether or not to present a case and took a break to facilitate any such discussion; w. The Board members allowed L.L. to present his evidence and offered to adjourn the hearing if L.L. felt he needed more time to present his evidence; x. The Board asked Ms. Weiss if she intended to ask questions of L.L. and she indicated that she would only do so if L.L. wanted her to ask questions. Ultimately, she did not ask any questions; y. After L.L. completed his submissions, the Board asked him if he wanted Ms. Weiss to make any submissions, but he stated that “I think everyone’s exhausted. Let’s call this quits.”

68I find that the Board provided L.L. with a fair hearing in difficult circumstances. The Board provided significant and meaningful assistance to L.L. to present his case effectively. I find that the record does not support Ms. Bryan’s submission that the Board “failed to provide L.L. with any or adequate assistance as to the procedure for questioning witnesses.” The Board allowed him wide scope to examine of all witnesses.

69Ms. Bryan suggests other questions that could have been asked. I do not give effect to this submission. There is no evidence from Ms. Weiss that she would have asked any of those questions had she been appointed amicus. The Board was well situated and did ask any questions that it felt were necessary. The mere fact that there were additional questions that could have been asked does not mean that L.L. had an unfair hearing. L.L. was entitled to a fair procedure, not a perfect one, and the Board provided procedural fairness to him.

70I dismiss the challenge to the procedural fairness of the hearing.

71All parties concede that the Board correctly stated the applicable test for capacity.

72Under Ontario law, a person is presumed to be capable with respect to treatment: HCCA, s. 4(2). This preserves the value of individual autonomy. A diagnosis of mental disorder is not to be conflated with incapacity and, without more, does not remove capacity and autonomy. The law is clear that a person may be incapable with respect to some treatments and capable with respect to other treatments. A person can also be incapable with respect to a treatment at one time and capable with respect to that same treatment at another time: HCCA, s. 15.

73Under Ontario law, only where it can be shown that a person is unable to understand relevant factors and appreciate the reasonably foreseeable consequences of a decision (or lack of a decision) can treatment be imposed. [27] The onus to disprove capacity rests on the physician: HCCA s. 4(2). The test for capacity is set out in s. 4 of the HCCA:

A person is capable with respect to a treatment…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.

74In this case, the Board found that L.L. was capable of understanding the information that is relevant to making a decision about the treatment. This appeal turns on the second part of the test, whether or not L.L. is able to apply the relevant information concerning their decision to their circumstances, and be able to weigh the foreseeable risks and benefits of a decision or lack thereof.

75I have reviewed L.L.’s additional submission that I admitted into evidence on appeal. The document, in large measure, was not directed at relevant issues for the appeal. If the Board had received that submission, I have no doubt that it would not have affected the reasoning or decision of the Board.

76The Board determined that L.L. lacked the ability to appreciate the reasonably foreseeable consequence of a decision about treatment with mood stabilizing and antipsychotic medications. The Board held:

As stated above, the panel was satisfied that LL was experiencing a mental condition, most likely bipolar I, and currently in a manic phase with psychotic features. Although previous hospitalizations had not resulted in such a diagnosis, Dr. Quick explained that the team at CAMH was in a position to make the diagnosis now given the additional evidence of LL’s presentation over several months. It was her evidence that his mania was evidenced by “irritability, agitation, insomnia as well as delusional ideas” (Exhibit 1, page 7). LL’s irritability and agitation were noted throughout the documentary record and were present throughout the hearing where LL was sarcastic, dismissive, belittling and rude to the other participants.

LL was also reported to have had delusional beliefs related to being raped in his abdomen and developing female genitalia. He attributed meaning to graffiti, including a symbol that he’d found at CAMH and believed others were reading everything he wrote, leading to Beyonce stealing lyrics he’d written. Dr. Quick’s evidence was that antipsychotic and mood stabilizing medications could attenuate these manifestations and reduce or eliminate the risk of harm to himself or others. She also acknowledged that LL may benefit from treatment for PTSD but that this was not a primary concern at the moment given the nature and seriousness of his other condition.

LL strongly and repeatedly denied any possibility that the manifestations described by Dr. Quick could be attributable to a psychotic or mood condition. He acknowledged PTSD was a factor but otherwise minimized (the incident with the maintenance worker on the ward) or rationalized (forcibly taking the car keys from his father in CAMH emergency) any beliefs or behaviours described by others. LL described external causes for every problematic behaviour he had experienced. While the frustrations of involuntary hospitalization could, undoubtedly cause some behavioural changes at time, LL’s behaviour had pre-existed his hospitalization. And while the stress of outstanding criminal charges undoubtedly had an impact on LL, the nature of the manifestations could not be explained solely by stress. This was clearly documented throughout the clinical record and doctors had explained to LL why, despite environmental influences, they believed that he was experiencing a manic and psychotic condition.

LL also submitted that he had taken lithium for a day and had only stopped because Dr. Rohani offered an antipsychotic the next day. He felt that Dr. Rohani had broken his trust by doing so and felt there may be ongoing medications offered if he accepted any. He offered to take the medications on an outpatient basis or as a trial with a clear discharge date. Throughout, LL rejected the possibility that he had a condition that may benefit from the medication so it was unclear why he may agree.

Dr. Quick also acknowledged that LL may be experiencing PTSD but explained that she and other physicians had determined that such was not at the forefront presently. LL’s manifestations of a bipolar condition were creating beliefs and behaviours that created safety issues, requiring more immediate treatment. PTSD could be addressed as well although perhaps not effectively until some of the other symptoms were attenuated.

77In find that the Board did not make a palpable and overriding error in coming to this conclusion. [28] The Board’s decision cannot be described as clearly wrong, unreasonable, or not supported on the evidence. The Board explained its conclusion thoroughly and with reference to the evidence before it. The Board’s conclusion is amply supported by the evidence it read, heard, weighed, and considered.

78For these reasons, I dismiss L.L.’s appeal.

79The parties did not seek costs and I order no costs of this appeal. I want to thank L.L., and both counsel for their helpful written and oral submissions and for making themselves available outside of normal court hours to allow for this hearing to be heard in a timely way.

Robert Centa J.

Released: July 26, 2023

Footnotes:

1 Mental Health Act, R.S.O. 1990, c. M.7.

2 Dickey v. Alexander, 2016 ONCA 961, at paras. 10-11; Adsett v. Labelle, 2023 ONSC 2842, at para. 21.

3At the hearing, counsel for Dr. Rohani advised that, notwithstanding the discharge, the treatment order remained in place. All parties agreed that there was still a live controversy between them and the appeal was not moot.

4 Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A., s. 4(2) [“HCCA”].

5 HCCA, s. 15.

6 Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para. 29; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 33, 36-52.

7 Farsi v. Da Rocha, 2020 ONCA 92, 444 D.L.R. (4th) 197, at para. 35; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 110; Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 33.

8 R.C. v. Klukach, 2018 ONSC 7415, 143 O.R. (3d) 687, at para. 44.

9 Jacques v. Conway, [1998] O.J. No. 3743, 82 A.C.W.S. (3d) 792 at para. 10; Barendregt v. Grebliunas, 2022 SCC 22.

10 Hudson v. Barron, 2023 ONSC 1499, at para 17.

11 Yukon Francophone School Board, Education Area No. 23 v. Yukon Territory (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 20-21; Miracle v. Miaracle III, 2017 ONCA 195, at para. 2.

12 Marchand (Litigation guardian of) v. Public General Hospital of Chatham (2000), 51 O.R. (3d) 97 (C.A.), at para. 131.

13 R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 31.

14 Helow v. Secretary of State for the Home Department, [2008] UKHL 62, [2008] 1 W.L.R. 2416, at para. 3.

15 Starson v. Swayze, 2003 SCC 32, [2003] 1 SCR 722, at para. 119.