Court File and Parties

Court File No.: CV-22-00682929-0000 Date: 2023-09-29 Ontario Superior Court of Justice

Between: P.P., Appellant And: Ashley Oliver and The Office of the Public Guardian and Trustee, Respondent/Intervenor

Counsel: Sarah M. Latimer, for the Appellant Thomasina Dumonceau, for the Respondent, Ashley Oliver Sarah Jones, for the Respondent/Intervenor, Office of the Public Guardian and Trustee

Heard: August 17, 2023

Before: Callaghan, J.

Reasons for Decision

[1] This is an appeal from a decision of the Consent and Capacity Board (“CCB”) in which P.P. was found to be incapable of managing her property pursuant to s. 6 of the Substitute Decisions Act, S.O. 1992, c. 30 (the “Act”).

[2] P.P. asserts that the proceedings before the CCB were procedurally unfair, and that the CCB failed to properly apply the test as set out in s.6 of the Act. For the reasons that follow, I find that the procedure used by the CCB was procedurally unfair. Accordingly, I will be setting aside the order of the CCB. As such, I do not intend to review the evidence that relates to P.P.’s capacity or to make any comment as to its adequacy in establishing capacity or the lack thereof.

[3] The facts and subject matter of this appeal are highly personal. As such, the name of the appellant has been anonymized to protect her privacy.

Background

[4] P.P. is 81 years old. She is a retired psychologist. She has no dependents. She was living independently in her home. It is agreed that P.P. suffers from a level of dementia.

[5] In October 2021, P.P.’s bank manager contacted the office of the Public Guardian and Trustee (“PGT”) and the police with concerns about P.P. wanting to transfer $32,000 to her friend, identified as F.S., and to withdraw $15,000 for F.S.

[6] An investigation was initiated by PGT investigator Zoltan Feketez. The investigation was conducted under s. 27(2) of the Act, utilizing the powers conferred on the PGT in s. 83 of the Act. Pursuant to those powers, the PGT obtained health care records of P.P., including hospital admissions and financial information from her bank.

[7] The medical information obtained by the PGT included records that disclosed that P.P. had been admitted twice to the hospital for psychiatric evaluations. The first attendance was in October 2016, and the second was in September 2021. On the second admission, P.P. self-reported as to having “significant cognitive decline in the last one or two years” and being “hopeful that an MRI may shed some light on what areas of her brain have been affected.”

[8] During his investigation, Mr. Feketez learned that P.P. had recently retained a lawyer. It was believed that P.P. was going to do the following: add F.S. to the title of her home, update her will to add F.S. as a beneficiary under her will, and appoint F.S. as a power of attorney with respect to her property. At the suggestion of Mr. Feketez, the lawyer sought to have three capacity assessments done of P.P. These were described as informal capacity assessments, not done pursuant to the Act. One of those assessments was produced by the PGT before the CCB and was addressed to P.P.’s lawyer. The assessor opined to the lawyer that P.P. was incapable of managing her property.

[9] Rather than commence a court application for an order for temporary guardianship under s. 27(3.1) of the Act, Mr. Feketez requested Ms. Oliver to conduct a capacity assessment of P.P. under s. 16 of the Act. Mr. Feketez met P.P. for the first time when he attended at P.P.’s home with Ms. Oliver for the assessment. Mr. Feketez never explained to P.P. that he had been investigating her.

[10] During argument, counsel for the PGT advised that a person only becomes aware that they are the subject of a PGT investigation after the fact. This occurs either when the PGT seeks a court order under s. 27 and the person is served with the relevant material, or when the PGT concludes no hearing is warranted, at which time a letter is then sent advising the person that an investigation was conducted, and no hearing is required. In this case, counsel for PGT advised that no hearing was requested by the PGT and, as of the date of this appeal, that the investigation is still not closed. P.P. was not told she was under investigation by Mr. Feketez.

[11] The assessment by Ms. Oliver concluded that P.P. was not capable of managing her property.

Procedural History

[12] P.P. appealed the finding of her lack of capacity by Ms. Oliver to the CCB. The appellant claims that there were two procedural rulings that were procedurally unfair. The first addressed an adjournment to permit the assessor to obtain corroborating evidence, and the second was a case conference order which allowed the PGT to intervene as a party.

Adjournment Request

[13] The hearing was initially convened on May 17, 2022, before one panel member of the CCB. At that time, Ms. Oliver stated that she did not intend to rely upon any documents or witnesses other than her own testimony of the assessment of P.P. At that point, the panel member asked Ms. Oliver whether she had considered s. 14 of the Evidence Act, R.S.O. 1990, c. E.23. Section 14 of the Evidence Act expressly requires that there must be corroborating evidence before a person can be found incapable. On more than one occasion, the panel member advised Ms. Oliver that she required corroborating evidence to establish incapacity. The panel member suggested to Ms. Oliver that she should request an adjournment to either seek legal advice or to augment her case with corroborating evidence. Ms. Oliver initially sought to proceed, even after being invited to adjourn to seek advice from her college or lawyer. It was only when the panel member prevailed on her a second time that Ms. Oliver requested the adjournment as recommended by the panel member.

[14] During the course of this exchange, counsel for P.P. indicated that the failure to adduce corroborating evidence was a matter that P.P. intended to rely upon in opposing the allegation of incapacity. Counsel objected that Ms. Oliver was now given a chance to “bolster” her case. The panel member asked if it was being suggested that the panel member, by raising the issue of corroboration, caused P.P. to be disadvantaged. Counsel responded that she was not suggesting that the panel member was trying to disadvantage P.P., but rather the absence of corroborating evidence was an issue that would have been relied upon by P.P. Notwithstanding those submissions, the panel member granted the adjournment.

PGT Standing

[15] Subsequent to the adjournment, at a case conference, the PGT sought standing as a party to the proceeding. An endorsement was issued on May 25, 2022, granting standing to the PGT. There is no transcript or other record of the case conference, aside from the endorsement. During the course of this proceeding, I was advised by counsel for the PGT that this is the first time the PGT has sought standing as a party in a s. 16 hearing. The PGT advised the panel member that, in the future, it plans to seek party status where the PGT utilizes section 16. The PGT submitted that while the assessor could speak to the assessment, the PGT had a complete file. The PGT said permitting it party status could avoid a guardianship application to the court. P.P. was opposed to the request by the PGT for party status. P.P. argued that Ms. Oliver was able to call representatives of the PGT to offer evidence if that was required.

[16] The panel member found that as assessors are independent contractors, they did not have access to the information or legal services of the PGT and that the assessors lacked knowledge of the CCB process. As such, it was felt that “evidence which may be significant would not be put before the Board”. The CCB feared that the failure of the assessor to adduce all the relevant information could impact the capacity hearing, necessitating the PGT to make a guardianship application to the court. The endorsement held that the PGT was better able to determine what evidence was available than the assessor.

[17] The PGT was granted party status.

The Hearing

[18] The hearing took place by video conference on May 31, 2022. P.P., Ms. Oliver and the PGT were all represented by counsel.

[19] As the party asserting P.P. lacked capacity, Ms. Oliver was the respondent. Ms. Oliver had the onus to prove incapacity on a balance of probabilities. Ms. Oliver testified that she was contacted by Mr. Feketez, who requested she conduct a s. 16 assessment of P.P.

[20] Mr. Feketez shared the details of his investigation with Ms. Oliver. She was advised by Mr. Feketez that P.P.’s bank manager contacted the PGT due to a concern about P.P. taking out a large sum of money from her line of credit to give to a friend. She was further advised that P.P.’s lawyer was proposing to change title to her home and make alterations to both her power of attorney and her will. Ms. Oliver was advised that Mr. Feketez told the lawyer to obtain a capacity assessment before doing so. Ms. Oliver was aware of the capacity assessments done at the request of the lawyer and was aware that the assessor had found P.P. incapable of managing her finances and making changes to her will or her power of attorney. She was also advised that Mr. Feketez had investigated and was in possession of P.P.’s medical records, including her visits to the psychiatric department of the hospital, and her financial records. She was advised that P.P. had been held at the hospital on September 10, 2021, due to mental health concerns. Specific details of a hospital note dated September 13, 2021, were shared with Ms. Oliver, including that P.P.’s psychiatrist said P.P. suffered from delusions and cognitive impairments, among other ailments. Ms. Oliver was also advised there was a brain scan that showed some atrophy in various areas of P.P.’s brain. Mr. Feketez told Ms. Oliver that he had been advised that P.P. struggled with simple math calculations, suffered from delusions, claimed to be a heart surgeon and that she had plans to sell her house but no plans of what she would do once the home was sold. In short, Ms. Oliver was fully briefed on Mr. Feketez’s investigation.

[21] Ms. Oliver testified as to her assessment of P.P. Mr. Feketez arranged the meeting with P.P. Mr. Feketez attended the start of the meeting. Ms. Oliver said Mr. Feketez left prior to the formal part of the assessment. Ms. Oliver concluded that P.P. did not have the requisite capacity to deal with her own property.

[22] Ms. Oliver concluded her case without submitting any documents or calling any corroborating evidence.

[23] The PGT then presented its evidence. The PGT called Mr. Feketez and one other investigator, Lisa Haarink. The PGT also submitted financial records and hospital records that it obtained using its investigative powers.

[24] Mr. Feketez first learned of these allegations of incapacity from P.P.’s bank manager. As a result of those allegations, a field investigation was undertaken by the PGT. During the investigation, Mr. Feketez contacted P.P.’s lawyer. The two of them discussed the legal work that P.P. had asked the lawyer to do, her retainer arrangements, and concerns about P.P.’s testamentary capacity. P.P.’s lawyer had arranged a capacity assessment as a result of these discussions. P.P. was apparently unhappy with her lawyer, in part over his retainer. Mr. Feketez testified that he was aware of three assessments. It is not clear whether Mr. Feketez received all three assessments requested by the lawyer. However, only one assessment was filed as evidence by the PGT. That assessment was addressed to P.P.’s lawyer. Mr. Feketez was cross-examined by P.P.’s lawyer. Ms. Oliver asked no questions.

[25] Ms. Haarink testified to the investigations she carried out after the PGT took control of a P.P.’s assets. She described the state of P.P.’s assets and her dealings with both the bank, the lawyer and third parties. She was examined by the PGT lawyer and cross-examined by P.P.’s lawyer. Ms. Oliver did not ask her any questions.

[26] F.S was called. F.S was to be the beneficiary of the money withdrawn by P.P. and the amendments to the title of P.P.’s home, her will and her power of attorney. F.S. was alleged to have taken advantage of P.P. F.S explained why he felt that these allegations were untrue and unfair. He was examined in chief by P.P. There was no cross-examination by either the PGT counsel or Ms. Oliver.

[27] P.P. then testified. She provided an explanation as to the concerns regarding her capacity and her dealings with F.S. P.P. was then cross-examined by the PGT. Ms. Oliver asked no questions of P.P. Questions were asked by the panel member.

[28] At the conclusion of the hearing, the panel member found that the assessor had established incapacity.

Issues

[29] P.P. raises two issues regarding the procedural fairness of the process and the Board’s application of the test for capacity. P.P. argues that the CCB was procedurally unfair due to the following issues, both individually and collectively:

1. granting the adjournment to Ms. Oliver, and
2. permitting the PGT to be a party to this proceeding.

Standard of Review

[30] The appellant has a statutory right of appeal pursuant to the Health Care Consent Act, S.O. 1996, c. 2, Sched. A, s. 80. Section 80(1) of that Act grants the right to appeal a decision of the CCB to the Superior Court of Justice “on a question of law or fact or both”. If an error is found, this court has the following powers,

(a) exercise all the powers of the Board. (b) substitute its opinion for that of a health practitioner, an evaluator, substitute decision-maker, or the Board. (c) refer the matter back to the Board, with directions, for rehearing in whole or in part.

[31] As this is a statutory appeal, appeals of the CCB follow the normal appellate standard: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37. Questions of law are reviewable on the standard of correctness and all other findings are not to be disturbed unless they constitute a palpable and overriding error: see Vavilov, at para. 37; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 5, 8. With regards to the issue of procedural fairness, the parties correctly concur that the question of whether the Board breached the Appellant’s right to procedural fairness is a question of law reviewable on the standard of correctness: see Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 79; JS v. Gelber, 2022 ONSC 2088 at para. 24.

[32] Some cases prior to Vavilov held there is no need to address the standard of review for a breach of natural justice or procedural fairness. In such circumstances, deference is not required in assessing whether the process comported with the duty of procedural fairness. The appeal court is free to assess the circumstances and context of the case and to determine if the procedure followed met the standard of procedural fairness and natural justice. (see London (City of) v Ayerswood Development Corp, (2002), 167 OAC 120; Canadian College of Business Computers Inc. v Ontario (Private Career Colleges), 2010 ONCA 856 at para 22; Eagle’s Nest Youth Ranch Inc. v Corman Park (Rural Municipality #344), 2016 SKCA 20, at para 83).

[33] In addressing the role of an appeal court in examining procedural fairness and natural justice issues, the Divisional Court in Watson v Law Society of Ontario, 2023 ONSC 1154 (Ont. Div. Ct.) recently made the point that:

Vavilov does not change the standard of review for issues of procedural fairness and natural justice. An administrative tribunal of the nature involved here is required to adhere to principles of natural justice and procedural fairness and a failure to do so will result in the decisions being set aside. Issues of deference do not arise in determining the issue. What the reviewing court must decide is whether there was an appropriate level of procedural fairness having regard to the principles established in Baker v. Canada (Minister of Citizenship and Immigration).

Legislative Scheme

[34] The Act presumes that everyone is capable of managing his or her property: s. 2(1). It is only where there are reasonable grounds to believe that a person is incapable of managing his or her property that the Act is engaged.

[35] In some cases, as was the case here, the PGT may become aware of allegations that a person is incapable of managing property and that serious adverse effects are occurring or may occur as a result. In such circumstances, the PGT may investigate pursuant to s. 27(2). Under s. 83 of the Act, the PGT has significant powers to obtain the records of a person under investigation. This includes medical records and bank records. This power does not override solicitor/client privilege: s. 83(2)). The PGT may obtain a warrant where it has been refused access to documents and may engage the police in the execution of any warrant: ss. 83(5)-(8). During argument, counsel for the PGT conceded these are powerful powers that are not available to others.

[36] Section 27(3.1) provides that the PGT may seek a court order for temporary guardianship where the PGT has reasonable grounds to believe that a person is incapable of managing property and that the prompt appointment of a temporary guardian of property is required to prevent serious adverse effects.

[37] The Ministry of the Attorney General, in its publication, Ministry of the Attorney General, The Role of the Office of the Public Guardian and Trustee (Ontario: Ministry of the Attorney General, 2020) described the role of the PGT conducting investigations as follows:

The OPGT will conduct an investigation when it receives information that an individual may be incapable and at risk of suffering serious financial or personal harm and no alternative solution is available. An investigation may result in the OPGT asking the court for authority to make decisions on the person's behalf on a temporary basis. (Emphasis added)

[38] If an application for guardianship is brought by the PGT, it must be served on the person alleged to be incapable: s. 27(4). However, if the PGT does not bring an application under s. 27(3.1) within three years, the PGT must destroy all information collected under s. 27, unless a new investigation is commenced or the PGT becomes the guardian: ss. 27(10) and (11). In such circumstances, the person is told of the allegations, and that the information has been destroyed.

[39] The Act further provides that a guardianship created by court order may be terminated, suspended, or varied by the court: ss. 28 and 29.

[40] There is another route that may be taken whereby the PGT may become the guardian of a person’s property. Under s. 16 (1), a person may request an assessor to perform an assessment of another person’s capacity for determining whether the PGT should become the statutory guardian of property. This is a voluntary process. The assessor shall not perform an assessment of a person’s capacity if the person refuses to be assessed: s. 78(1). Before performing the assessment, the assessor is required to describe the purpose of the assessment, the significance of the effect of a finding of capacity or incapacity and the person’s right to refuse to be assessed: s. 78(2). In contrast, no consent is required where the assessment is ordered by the court: s. 78(3)).

[41] The regulations under the Act define who may do an assessment. The regulations list several qualified regulated colleges that may designate qualified assessors. The qualifications include ensuring that the person who conducts the assessment has instructions in the Act, best practices in completing forms and reports under the Act, standards for the performance of assessments of capacity and procedures for determining if a person needs decisions to be made on his or her behalf: see Capacity Assessment, O. Reg. 460/05, s.4.

[42] If an assessor determines a person is incapacitated, the person has a right to apply to the CCB for a review of the determination. The onus is on the person asserting incapacity to prove incapacity which is defined in s. 6 of Act. Assessors regularly are the respondents in such cases.

[43] The CCB has adopted Rules (the “Rules”) pursuant to Section 25.1 of the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22. The Rules apply to all hearings of the Board, including those held under the Health Care Consent Act, Mental Health Act and Substitute Decisions Act, 1992. Some of these rules will be discussed below.

Procedural Fairness

[44] The issues of procedural fairness and natural justice require a contextual assessment. What is expected in any given case will vary depending on the circumstances. The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, provided guidance in this area. Factors to consider when determining the content of procedural fairness include:

1. the nature of the decision;
2. the significance of the decision to the party affected;
3. the statutory scheme under which decision is made, including the role the decision plays under that scheme;
4. the reasonable or legitimate expectation of the party challenging the decision; and
5. the procedure of the board and its autonomy to make its own procedure.

[45] This list is not exhaustive nor is this list intended to obscure that the overarching consideration is fairness in the circumstances. As stated in Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504 “The simple overarching requirement is fairness, and this ‘central’ notion of the ‘just exercise of power’ should not be diluted or obscured by jurisprudential lists developed to be helpful but not exhaustive”: at para. 42.

[46] The Supreme Court provided further context for assessing procedural fairness in Mavi at paras. 38-39, as follows:

The doctrine of procedural fairness has been a fundamental component of Canadian administrative law since [1979]… Six years later this principle was affirmed by a unanimous Court, per Le Dain J.: “. . . there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual”: Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653. The question in every case is “what the duty of procedural fairness may reasonably require of an authority in the way of specific procedural rights in a particular legislative and administrative context” (Cardinal, at p. 654). … More recently, in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Bastarache and LeBel JJ. adopted the proposition that “[t]he observance of fair procedures is central to the notion of the ‘just’ exercise of power” (para. 90) ….

Accordingly, while the content of procedural fairness varies with circumstances and the legislative and administrative context, it is certainly not to be presumed that Parliament intended that administrative officials be free to deal unfairly with people subject to their decisions. On the contrary, the general rule is that a duty of fairness applies. … but the general rule will yield to clear statutory language or necessary implication to the contrary …

[47] In considering procedural fairness, the process leading up to the decision may be considered. The Alberta Court of Appeal held that considerations of procedural fairness may include “the process that led to the decision” under review: see Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, 609 A.R. 299, at para. 30. In that case, the court was considering a professional discipline hearing. The Alberta Court of Appeal held that the appellant, a member of the Alberta Veterinary Medical Association, was entitled to procedural fairness during the process that led to the initial investigation and suspension, which did not include any notice nor disclosure.

[48] In this appeal, P.P. raises two issues of procedural fairness. The first addresses the adjournment request of the assessor, and the second addresses the intervention of the PGT. Given that procedural fairness is contextual, the two alleged breaches are best seen as a continuum. From the outset, this was an investigation by the PGT. The assessor only got involved at the request of Mr. Feketez, the investigator of the PGT. Mr. Feketez shared the fruits of the s. 27 investigation with the assessor. The assessor examined P.P. at the request of Mr. Feketez. The assessor then proceeded to issue a finding of incapacity. Even though assessors attend CCB hearings regularly, Ms. Oliver was not prepared to call corroborating evidence, even though it was essential. At the prodding of the panel member, she sought an adjournment. Because of that adjournment, the PGT was able to seek intervenor status. Having received intervenor status, the PGT carried the bulk of the hearing, including calling the necessary corroborating evidence and being the only one to cross-examine P.P. In the circumstances, these two rulings may be considered together when analysing the Baker factors.

The Nature and Significance of the Decision to P.P.

[49] In considering the first two elements of the Baker factors, the CCB was addressing P.P.’s mental capacity to manage her affairs. The right of a person to have the autonomy to manage her affairs is central to our idea of personal freedom and fulfillment. The right to make one’s own decisions over one’s property is an important right that ought not to be lightly infringed. In the leading case of Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722 which addresses capacity in relation to medical consent, Chief Justice McLachlin discussed the clash between a person’s right to autonomy and the ability of the state to intervene in that autonomy. In describing that clash, she stated as follows:

Ordinarily at law, the value of autonomy prevails over the value of effective medical treatment. No matter how ill a person, no matter how likely deterioration or death, it is for that person and that person alone to decide whether to accept a proposed medical treatment. However, where the individual is incompetent, or lacks the capacity, to make the decision, the law may override his or her wishes and order hospitalization: at para. 7.

[50] Justice Major for the majority also recognised, at para. 76, the value of a person’s autonomy to make her own decisions. In doing so, he quoted Quinn J. in Koch (Re) (1997), 33 O.R. (3d) 485 (Gen. Div.), at p. 521: “The right knowingly to be foolish is not unimportant; the right to voluntarily assume risks is to be respected. The State has no business meddling with either. The dignity of the individual is at stake.”

[51] Like Justice Quinn’s case, this case involves the autonomy of P.P. to conduct her own affairs. As such, the outcome of these proceedings is of the utmost interest to P.P. The procedural fairness applied ought to reflect the seriousness of the impact of the decision on P.P. According to this prong of the Baker test, the procedural fairness accorded to P.P. ought to be at the high end of the spectrum.

[52] The fact that P.P. may have dementia does not diminish the entitlement to procedural fairness. As stated by the Court of Appeal in Johnson v. Johnson 2022 ONCA 682, at para. 13, dementia does not equal incapacity:

Moreover, a mere diagnosis of dementia, without more, does not determine the question of capacity; to hold otherwise risks falling into impermissible stereotypes about individuals with mental health and other challenges: Lewis v. Lewis, 2019 ONCA 690, 49 E.T.R. (4th) 175, at para. 6.

The Statutory Scheme

[53] The statutory scheme of the Act is an important consideration. There are two schemes to the Act. The first involves the PGT which has the power to investigate any person based on the belief that person is incapacitated and in danger. The Act provides the PGT with significant powers of investigation and, if appropriate, coercive powers as required. In this case those powers were used by the PGT to obtain medical and banking records of P.P. Counsel for the PGT advised this court that the PGT was investigating P.P.’s capacity with the expectation that it may seek a guardianship order under s. 27. This is consistent with the description provided by the Attorney General as to the role of the PGT.

[54] The medical and financial information obtained by the PGT regarding P.P. is amongst the most sensitive personal information that can be imagined. The legislature was alive to the fact that investigations under s. 27 were highly intrusive. The Act implicitly recognizes this by requiring such information to be destroyed if no application is brought within three years or if the PGT are not the guardian of the person. There is nothing in the Act that allows the PGT to share the information it obtains through its investigation powers. Nonetheless, in this case, the details of the investigation were shared with Ms. Oliver who had no role with the PGT until Mr. Feketez requested her to assess P.P.

[55] There was no explanation at the time when Ms. Oliver was retained as to why the PGT did not proceed with a guardianship application, which they were entitled to do under s. 27(3.1). At the hearing, counsel for the PGT advised that a finding of incapacity under s. 16 does not require a court order and therefore is easier to terminate than a finding under s. 27. It is not clear why this would be so. Indeed, the legislature considered this very issue and expressly provided that guardianship orders may be reviewed and modified by the court.

[56] Read in its totality, s. 27 provides a fulsome code for the investigation and determination, if necessary, of a person’s capacity by way of a court application for guardianship. This legislated process includes ordering an involuntary assessment of a person based on the PGT’s investigation. In such circumstances, the person gets disclosure through the court process and the court determines if an assessment is appropriate. The Act does not provide an express role for the PGT in a voluntary assessment or a hearing under s. 16. In this case, the two processes were blurred, culminating with the PGT seeking standing as a party in a CCB hearing.

Reasonable Expectations

[57] The reasonable expectation of P.P. is the fourth element of the Baker test. At the very least, P.P. is entitled to expect that those questioning her capacity would be forthright in dealing with her, particularly in areas which required her consent. As the Court of Appeal noted in Johnson, her dementia ought not to diminish these basic expectations. In this case, P.P. had the reasonable expectation that when Ms. Oliver sought her consent that she would advise P.P. of the full circumstances of her involvement and that of the PGT. In particular, P.P. ought to have been told of Mr. Feketez’s role, the fact he was conducting an investigation, the information that Mr. Feketez shared with Ms. Oliver and the reason why Mr. Feketez was choosing to use s. 16 as opposed to a guardianship application. P.P. was assumed to be competent. Had Mr. Feketez sought a court appointed assessment, disclosure would have been made through the court application process. Her right to participate or not participate was her decision. She was entitled to all the information that would allow her to make an informed decision. If the PGT is permitted to share P.P.’s confidential records with a third-party assessor so as to obtain a voluntary assessment, then it ought to be forthright and advise P.P. that it has done so.

The CCB Rules

[58] As to the fifth part of Baker, the CCB has its own rules. The rules provide significant discretion to the CCB to control its own procedure. The rules allow for the CCB to grant adjournments and add parties. However, the duties of procedural fairness and natural justice inform how those rules ought to be applied.

[59] In this case, there was no consideration of the fairness of the process undertaken from the outset. This process was entirely the doing of the PGT. The PGT conducted the investigation, appointed Ms. Oliver and, in the end, conducted the bulk of the hearing. The role of the PGT was not a consideration by the CCB panel members in dealing with either request. For example, on the issue of the adjournment, the panel member was concerned the assessor would not know what corroborating evidence was available to be called. The assessor had been fully briefed by Mr. Feketez, including the most intimate details of P.P.’s medical records. There is no explanation as to how the panel member could be left with the impression that the assessor did not know what evidence was available. The assessor clearly had the assistance of Mr. Feketez and his office throughout. As such, it is inexplicable why she needed an adjournment to consider her options when she was being guided by Mr. Feketez.

[60] As previously stated, counsel for the PGT advised this is the first time that it sought such standing in a s. 16 hearing. The PGT advised that it intends to seek party status whenever it initiates a s. 16 assessment and a review before the CCB ensues. However, this was not explained to P.P. at the outset. The genesis of this process was a s. 16 assessment, which required her informed consent.

[61] In this case, as mentioned, Ms. Oliver was well briefed on the PGT investigation. As someone certified by her college to do assessments and who appears as a professional before the CCB to defend her assessments, it is not clear why she would not know the CCB’s process as suggested by the panel member. The colleges are recognized by the regulations as being qualified educators of assessors. The scheme of the Act envisions, and fact is that qualified assessors regularly defend their assessments before the CCB. If the assessor’s lack of familiarity with the CCB’s process is a ground for PGT intervention, then presumably the PGT will be permitted to intervene on all cases involving assessors.

[62] In the end, the PGT ultimately controlled the hearing. Ms. Oliver did not conduct much of the case. She testified as to her assessment and little else. It was the PGT that called the corroborating evidence, including filing documents. It was the PGT that cross-examined P.P. In short, the perception was that Ms. Oliver was asserting that P.P. was incapacitated and defending that position before the CCB when the PGT was in control of this entire process from the investigation to the assessment to the hearing.

[63] Moreover, the PGT was not waiving its right to utilize s. 27(3.1) to relitigate capacity if the CCB found insufficient evidence of incapacity. This left P.P. in the invidious position that even if she was found to have capacity before the CCB, she likely faced a court guardianship application by the PGT.

[64] While the CCB’s rules provide the CCB with the ability to control its process, the process that both led to the CCB hearing and the CCB hearing itself was procedurally unfair.

Conclusion

[65] As the Supreme Court said in Mavi, the Baker factors are intended to ascertain if the process was procedurally unfair. In my view, the process was procedurally unfair from the outset.

[66] I therefore set aside the CCB’s decision.

Costs

[67] If costs are being sought, the party seeking costs shall file a short submission, no more than 7 pages, as to the basis for the request. The submission shall indicate against which party costs are being sought. The submissions requesting cost shall be uploaded to Caselines within 20 days from the release of the decision. Any responding submissions must be uploaded 10 days thereafter.

Released: 2023-09-29