Court File and Parties

COURT FILE NO.: CV-23-00696955-0000 DATE: 20240122 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: F.L. Plaintiff (Appellant) - and - ASHLEY OLIVER Respondent - and - OFFICE OF THE PUBLIC GUARDIAN AND TRUSTEE Respondent

Counsel: Eyitayo Dada for the Plaintiff (Appellant) Nida Sohani for the Respondent Ashley Oliver Katherine Ballweg for the Respondent Public Guardian and Trustee

HEARD: December 14, 2023

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] Pursuant to the Substitute Decisions Act, 1992, the Consent and Capacity Board upheld a Certificate of Incapacity. The Board determined that F.L. is incapable of managing his property. The Board confirmed the Certificate that had been issued by Ashley Oliver. Ms. Oliver, who is a registered social worker, is an “assessor”. With the issuance of the certificate, the Public Guardian and Trustee (“Guardian” or “PGT”) automatically was appointed to be F.L.’s statutory guardian of property. F.L. appeals the Board’s decision. On the appeal, Ms. Oliver and the PGT are the respondents.

[2] Relying on the precedent of P.P. v. Oliver and the Ontario Public Guardian and Trustee, 2023 ONSC 5701, F.L. argues that the Board’s decision should be set aside. He argues that he was denied procedural fairness. P.P. v. Oliver and the Ontario Public Guardian and Trustee is a case in which Justice Callaghan set aside a Board’s decision. In that case, the joinder and involvement of the PGT to a proceeding under s. 16 of the Act was held to be procedurally unfair. The respondents on this appeal, Ms. Oliver and the PGT, submit that the immediate case is distinguishable from P.P. v. Oliver and the Ontario Public Guardian and Trustee.

[3] If the P.P. v. Oliver and the Ontario Public Guardian and Trustee case is distinguishable and the procedural fairness ground of appeal fails, then F.L. submits that the Board made errors in law or made palpable and overriding errors of fact or of mixed fact and law in that: (a) the Board improperly shifted the onus of proof unto F.L. to prove his capacity when the onus was on the assessor to prove incapacity; (b) the Board misapplied the test for incapacity in several different ways; and, or (c) the Board made evidentiary errors.

[4] For the reasons that follow, F.L.’s appeal is dismissed.

[5] By way of overview of my reasons, P.P. v. Oliver and the Ontario Public Guardian and Trustee does not categorically rule that the Public Guardian and Trustee can never be joined as a party respondent to a proceeding under s. 16 of the Substitute Decisions Act, 1992. The Board has the jurisdiction to join the PGT to any guardianship application, including a s. 16 application, and joinder does not per se result in procedural unfairness in accordance with the principles of procedural fairness established by the Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 1999 SCC 699 line of cases. The involvement of the PGT in P.P. v. Oliver and the Ontario Public Guardian and Trustee was procedurally unfair. In contrast, in the immediate case, the PGT’s involvement did not disturb the procedural fairness of the proceeding.

[6] As a precedent, P.P. v. Oliver and the Ontario Public Guardian and Trustee establishes that the Consent and Capacity Board may err and deny a person a fair hearing where: (a) the joinder of the PGT is in the particular circumstances procedurally unfair; (b) the joinder is unjustified or is based on an error in principle; or (c) the PGT oversteps its role at the hearing by taking over the role of the assessor in the statutory regime. In the immediate case, there was no procedural unfairness and the involvement of the PGT did not taint the Board’s substantive decision.

[7] On the substantive merits, in the immediate case, the decision of the Board is legally and factually sound. There are no palpable and overriding errors of fact or of mixed fact and law. The Board correctly applied the law with respect to the proof of incapacity and the Board did not improperly shift the onus of proof. Accordingly, F.L.’s appeal should be dismissed without costs.

B. Standard of Judicial Review of the Decisions of the Consent and Capacity Board

[8] In the immediate case, the Public Guardian and Trustee became statutory guardian over property pursuant to s. 16 of the Substitute Decisions Act, 1992. In the case of a statutory guardianship created under s. 16 of the Substitute Decisions Act, 1992, pursuant to s. 20.2 (1) of the Act, the person who has a statutory guardian may apply to the Consent and Capacity Board for a review of a finding that the person is incapable of managing property. Then, pursuant to s. 80 (1) of the Health Care Consent Act, 1996, a party to a proceeding before the Consent and Capacity Board may appeal the Board’s decision to the Superior Court on a question of law or fact or both. Thus, the immediate case is an appeal to the Superior Court pursuant to s. 80 (1) of the Health Care Consent Act, 1996 of a Consent and Capacity Board decision made under the Substitute Decisions Act, 1992.

[9] Subsection 80 (10) of the Health Care Consent Act, 1996 sets out the powers of the court on the appeal. Subsection 80 (10) states:

Powers of court on appeal

(10) 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.

[10] Pursuant to s. 20.2 (6) of the Substitute Decisions Act, 1992, there is an appeal to the Superior Court from a decision of the Board on issues or law or fact or both. Given the statutory right of appeal provided by s. 80 of the Health Care Consent Act, 1996, which is applied to all guardianship decisions under the Substitute Decisions Act, 1992, the standard of review in the immediate case is: (a) correctness for issues of law; (b) and a palpable and overriding error for issues of fact or of issues of mixed fact and law. S.S. v. Mottaghian, 2021 ONSC 137; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; H.L. v. Canada (Attorney General), 2005 SCC 25.

[11] On issues of law, the correctness standard means that a reviewing court need not show deference to the reasoning process of the lower court or tribunal and must undertake its own analysis of whether the decision was legally correct. Dunsmuir v. New Brunswick, 2008 SCC 9; H.L. v. Canada (Attorney General), 2005 SCC 25.

[12] Issues of procedural fairness are a question of law reviewable on the standard of correctness. J.S. v. Gelber, 2022 ONSC 2088; Eagle’s Nest Youth Ranch Inc. v Corman Park (Rural Municipality #344), 2016 SKCA 20; Mission Institution v. Khela, 2014 SCC 24; Canadian College of Business Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856. What the review 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), [1999] 2 S.C.R. 817, 1999 SCC 699.

[13] When an appellant raises a question of mixed fact and law, where a discrete question of law can be extricated from the question of mixed fact and law, the correctness standard will apply to the question of law; however, where a discrete question of law cannot be extricated from the factual considerations, the higher standard of “palpable and overriding error” will apply. S.S. v. Mottaghian, 2021 ONSC 137; Canada v. South Yukon Forest Corporation, 2012 FCA 165; H.L. v. Canada (Attorney General), 2005 SCC 25.

[14] “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and an error is overriding if it has affected the result. Hydro-Québec v. Matta, 2020 SCC 37; S.S. v. Mottaghian, 2021 ONSC 137; Canada v. South Yukon Forest Corporation, 2012 FCA 165; H.L. v. Canada (Attorney General), 2005 SCC 25.

C. Factual Background

[15] The following facts were before the Consent and Capacity Board when it made its decision to uphold the Certificate of Incapacity issued by Ms. Oliver.

1. The Section 16 Assessment

[16] F.L. was born in 1956 (He is now 67 years old). He is a blind man, and he has a hearing impairment. Up until the summer of 2022, F.L. lived at X Street. The home was owned by his aunt N.S. N.S. passed away in 1992 without probating her will. Until the recent tax sale of the property by the City of Vaughn, N.S. remained the registered owner of the property. Between 1992 and 2015, F.L. lived in the home with his mother. In 2015, his mother died intestate, and after her death, F.L. lived alone in the home. F.L. never took steps to establish his ownership interest, if any, in the X Street property.

[17] F.L. did not manage his own finances. He had not filed his income tax returns since 2010. Because he did not file tax returns, he lost entitlements and housing subsidies. F.L. had no bank account.

[18] F.L. and his mother lived rent free at the property. They did not pay the municipal realty taxes on the home. When he and his mother did not pay for utilities, the water, hydro, and natural gas were disconnected. This plight and the occupants’ failure to pay realty taxes came to the attention of the social service authorities and in 2012, Elizabeth Pepin, an outreach social worker for the Region of York became involved to assist F.L.

[19] Ms. Pepin helped F.L. apply for provincial assistance through the Ontario Works program. Because he had no banking arrangements, Ms. Pepin arranged that Ontario Works provide its benefits on a reloadable Visa Cash Card. F.L. received $777 per month from Ontario Works. Ms. Pepin arranged for the water and hydro to be restored and for Ontario Works, to pay directly for the utilities. F.L. gave the cash card to neighbours or friends, and they would use the card to pay for F.L.’s groceries.

[20] With the electricity restored, F.L., however, heated the house with electrical space heaters. Given bad housekeeping, this created a fire risk. The Fire Department became involved. Work orders were made to remove fire hazards in the home. The work orders were carried out by the municipality. F.L. did not pay the fees, and this increased the debt to the municipality associated with X Street.

[21] In April 2021, F.L. turned 65. He continued to receive Ontario Works on a special exemption requested by his social worker. F.L. had refused to apply for his Old Age Security Income and Canada Pension plan benefits. He refused to sign the application without a lawyer present, and when his social worker arranged a meeting with a lawyer from the Advocacy Centre for the Elderly, F.L., refused to sign the application because he did not agree with the lawyer and did not trust him.

[22] In June 2022, out of concerns for F.L.’s situation, the social service authorities called Zoltan Fekete, an investigator of the Public Guardian and Trustee. The social workers suggested that the PGT investigate pursuant to s. 27 (2) of the Substitute Decisions Act, 1992. Section 27 (2) imposes a statutory duty on the PGT to investigate any allegation that a person is incapable of managing property and that serious adverse effects are occurring or may occur as a result.

[23] Ms. Pepin facilitated the PGT’s looking into the matter. On June 8, 2022, she made a visit to F.L. and she phoned Mr. Fekete. She put F.L. on the call. Mr. Fekete explained the role of the Public Guardian and Trustee. Mr. Fekete explained to F.L. that he had the option of undergoing a capacity assessment to determine if he was capable of managing his property. On the call, F.L. said he was willing to have an assessment provided a lawyer was in attendance. Mr. Fekete advised F.L. that if he was found incapable, the Public Guardian and Trustee would become his guardian and manage his finances.

[24] During the telephone call, F.L. indicated that he had been the victim of state abuse because he was a political enemy of the state.

[25] Following the telephone call between Mr. Fekete and F.L., the Public Guardian and Trustee opened an investigation. The investigator was Simon Ciardullo. Mr. Ciardullo learned that because of realty tax arrears and unpaid charges for numerous attendances by the Fire Department because of fire hazards at the property, X Street was in the process of being sold by the City of Vaughn for municipal tax arrears.

[26] Pausing here in the narrative, it is necessary to understand that the Public Guardian and Trustee can become a person’s guardian of property in four ways, two of which involve court proceedings and two of which ways happen automatically.

a. First, where there is an investigation, the Public Guardian and Trustee may apply to the court to obtain temporary guardianship pursuant to s. 27 (3.1) of the Substitute Decisions Act, 1992.

b. Second, pursuant to s. 22 of the Act, the Public Guardian may apply to the court to be appointed guardian.

c. Third, if a person is involuntarily admitted as a patient pursuant to the Health Care Consent Act, 1996, the health care practitioner may certify that the person is incapable of managing property, in which case pursuant to s. 15 of the Substitute Decisions Act, 1992, the PGT automatically becomes statutory guardian of property.

d. Fourth, if a person does not refuse being assessed by an assessor and is found by the assessor to be incapable of managing property, then pursuant to s. 16 of the Substitute Decisions Act, 1992 the Public Guardian and Trustee automatically becomes guardian of property. The immediate case is about s. 16 of the Act, which states:

Assessment of capacity for statutory guardianship

16 (1) A person may request an assessor to perform an assessment of another person’s capacity or of the person’s own capacity for the purpose of determining whether the Public Guardian and Trustee should become the statutory guardian of property under this section.

Form of request

(2) No assessment shall be performed unless the request is in the prescribed form and, if the request is made in respect of another person, the request states that,

(a) the person requesting the assessment has reason to believe that the other person may be incapable of managing property;

(b) the person requesting the assessment has made reasonable inquiries and has no knowledge of the existence of any attorney under a continuing power of attorney that gives the attorney authority over all of the other person’s property; and

(c) the person requesting the assessment has made reasonable inquiries and has no knowledge of any spouse, partner or relative of the other person who intends to make an application under section 22 for the appointment of a guardian of property for the other person.

Information to be given

(6) After becoming a person’s statutory guardian of property under subsection (5), the Public Guardian and Trustee shall ensure that the person is informed, in a manner that the Public Guardian and Trustee considers appropriate, that,

(a) the Public Guardian and Trustee has become the person’s statutory guardian of property; and

(b) the person is entitled to apply to the Consent and Capacity Board for a review of the assessor’s finding that the person is incapable of managing property.

[27] On an assessment pursuant to s. 16 of the Substitute Decisions Act, 1992 pursuant to ss. 78 (3)(4) and (5) of the Act, the assessor may issue a Certificate of Incapacity if the assessor finds the person is incapable of managing property. If the certificate is given, the person and the Public Guardian and Trustee is given a copy, and the PGT immediately becomes the person’s statutory guardian of property.

[28] On June 27, 2022, Ashley Oliver was contacted by Mr. Ciardullo, the Public Guardian and Trustee’s investigator. He requested that Ms. Oliver do an assessment of F.L. Ms. Oliver is a registered social worker. Section 1 (1) of the Substitute Decisions Act, 1992, defines an assessor as a member of a class of persons who are designated by the regulations as being qualified to do assessments of capacity. Ms. Oliver is a qualified and experienced assessor.

[29] Meanwhile, Mr. Ciardullo was continuing his investigation, and on July 5, 2022, he met with F.L. to obtain information about his finances and living situation. F.L. was unable or unwilling to respond to most of Mr. Ciardullo’s questions. During this discussion, F.L. indicated that he was prepared to have a voluntary assessment. He did not stipulate that a lawyer had to be present.

[30] Around this time, on July 6, 2022, Ms. Oliver met with Ms. Goldshaw, another social worker at the Region of York who had recently become involved in helping F.L. Ms. Goldshaw expressed concern that F.L. was still collecting benefits from Ontario Works but not applying for Old Age Security (“OAS”), which would yield him more income. Ms. Goldshaw had arranged for a lawyer to assist F.L. with his OAS application. F.L. did not trust the lawyer and did not sign the necessary documents. Ms. Goldshaw told Ms. Oliver that F.L. did not trust the government and often ruminated about being persecuted and victimized by the state.

[31] On July 8, 2022, Ms. Oliver met with F.L. at his residence and performed an assessment. Ms. Oliver attended with Ms. Goldshaw, who remained present during the interview. No lawyer was in attendance. Before interviewing F.L., Ms. Oliver provided F.L. with the information required by s. 78 of the Substitute Decisions Act, 1992, which states:

Right to refuse assessment

78 (1) An assessor shall not perform an assessment of a person’s capacity if the person refuses to be assessed.

Information to be provided

(2) Before performing an assessment of capacity, the assessor shall explain to the person to be assessed,

(a) the purpose of the assessment;

(b) the significance and effect of a finding of capacity or incapacity; and

(c) the person’s right to refuse to be assessed.

[32] Ms. Oliver told F.L. that her report would be shared with the PGT, and it would manage his property if he was found to be incapable. F.L. did not refuse to be assessed and Ms. Oliver interviewed him.

[33] In response to her questions, F.L. said he wanted to continue to live at X Street. He understood that the property was up for sale. He could not explain why he had not taken steps to arrange to have the taxes paid to stop the tax sale nor could he explain why he had no plans for where he would live if the property were sold. With considerable difficulty, he explained how his bills were being paid using a reloadable Visa Card from Ontario Works. When pressed for explanations, he repeatedly accused the state of hostility towards him. He said the state’s hostility discouraged him from acting.

[34] After the interview with F.L., Ms. Oliver discussed F.L.’s case with Ms. Pepin and Ms. Goldshaw. Ms. Oliver learned that F.L. received Ontario Works income through a reloadable cash card, but he never used the card himself. Rather, the card was in the possession of his half-brother or neighbours or friends who used it for grocery shopping. F.L.’s birth certificate was also held by a friend. Ms. Oliver learned that while F.L. had no other identification, he had refused to acquire a new identification card because he believed he was signing his rights away.

[35] Ms. Pepin told Ms. Oliver that she had worked with F.L. on and off for ten years. She said he occasionally accepted help, but frequently would get upset and decline services. Ms. Pepin said that because of his vision impairment, F.L. had stopped using or collecting mail. Ms. Pepin had closed her file several times when F.L. would refuse to engage with her, but the file would be reopened when new concerns were reported.

[36] Both Ms. Pepin and Ms. Goldshaw told Ms. Oliver that they were familiar with F.L.’s expressed beliefs that he was a persecuted political enemy of the state and that lawyers and state officials could not be trusted.

[37] On July 12, 2022, Ms. Oliver delivered a report and issued a Certificate of Incapacity. She found that F.L. had never personally managed his own finances and she found the F.L. was incapable of managing property. She concluded that F.L. lacked the ability to realistically appraise risk and the likely outcome of decisions about his property because he believed that he was the victim of overwhelming state abuse, which in turn caused him to distrust the help that was offered and to prevent him from engaging in any meaningful way with his finances. He felt that he was not in control and was under attack by the state.

[38] Section 5.2 of an Assessment Report under the Substitute Decisions Act, 1992 sets out evidence of ability or inability to understand and appreciate as directly observed by the assessor. Ms. Oliver’s Assessment Report stated:

[…] I asked F.L. if he could tell me the history of the home he was living in with respect to ownership. […] He stated [his aunt] died in 1992 but that "her name is still attached somehow." He then stated "I've been so aggressively and effectively abused" (by the state) and that "none of the outcomes are my fault." […] Without specific prompting, F.L. said to me that my job "depends on complex subordination," and that "the state has been taking away people I trusted." He stated his two "brothers," one adopted and one half brother, had "disappeared," and that the "state is responsible." He stated "the priority (of the state) has always been to isolate and smother" him and that they were "well-used tactics." […] F.L. then stated that "Years of state abuse has made me disabled," […] I noted that I wished to hear from him about his history and decisions. He stated: "I'm abused and it's compounded by a dire lack of anyone trying to help," and called it "an erroneous abuse of humanity." […] He stated the "assaults" by the state were "amounting to murder." When asked what he was referring to with respect to assaults by the state, he described "devastating paramilitary assaults," which including taking things from his home, including "a lifetime of effort and stories." […] He also described "third assault," when in 2011, his lawyer died and the firm closed. When I asked a clarifying question about this he stated "Your job is to find conveniences for you master." […] I asked about the lack of identification, and he replied it was a "complicated history," and that it each one of the "assaults" his identification was stolen. […] I asked F.L. if he had any stressors related to his finances. He stated his only issue was that he did not have anyone that he could trust. He added "What has the state done but take from me?" I asked F.L. about his lack of application to OAS. […] I noted my understanding an application had been started with Ms. Goldshaw and asked what happened in that instance. He replied "You aren't doing very well at showing me comprehension. My situation is complex and achieved through long term attack. It gets more complex with each attack." […] I returned to the topic of his property tax bill with the City of Vaughan. He stated that the bill was "mostly not for taxes." I asked him why he had not made any payments. He replied: "It was painfully obvious to me and mom that it was useless to keep paying." I asked him why, and he replied that they were in "dire need of people we could trust," and noted that there were "family factions and wars." I asked when he and his mom made the decision to not pay property tax, what kinds of things they discussed, such as pros or cons, before coming to the decision. He replied: "As I look back now, there was no better choice," and noted he and his mom were "drowning in despair and victimization." I asked if there had been any drawback to this decision since then. He replied "It's not simple and not obvious. We had a huge unmet need for people we could trust." […] I asked F.L. if the property is sold, where he would go. He shouted "I will die!" and noted he has "been in dire need of help." I asked if he survived if he had considered where he would go. He replied by describing a hypothetical scenario of when someone chooses to "cross a freeway" we don't acknowledge the choice being taken. He then stated that "We are all abused children. It is the work of the patriarchy." […] I asked F.L. if the option was available for him to have more income than OW would that be his preference (e.g. ODSP or government pensions). He replied "Of course I would want more money, but that's not the question. The state has shown me such hostility, challenging me to find the spirit." […] He went on to say he was "a great victim in history," and referenced his brothers being "taken" from him. He yelled "Tell me about that!" I said I did not know anything about his siblings or them being missing aside from what he told me, and he yelled "Find out!" He then stated: "You're supposed to get an impression of how conveniently dehumanized I am," and "The state has shown me how hostile and murderous it is." […] When Ms. Goldshaw told him she had reached out to [his half-brother] but he did not call her back, F.L. replied "I'm being tortured to death, and the process is almost complete."

2. Events After the Section 16 Assessment and the Review by the Consent and Capacity Board

[39] After the Certificate of Incapacity was issued, the Public Guardian and Trustee received notice and the PGT assumed statutory guardianship of F.L.’s property. Under the PGT’s guardianship, F.L. receives OAS, CPP (Canada Pension Plan), and GIS (guaranteed income supplement) totaling $1,800 a month, more than twice his previous income. F.L. continued to live at X Street until September 2022.

[40] In September 2022, pursuant to the Mental Health Act, F.L. was admitted as an involuntary patient at a psychiatric hospital.

[41] There was no evidence before the Consent and Capacity Board or before this court about the circumstances associated with F.L.’s involuntary admission to hospital.

[42] While F.L. was in the hospital, the municipality sold X Street. The Public Guardian and Trustee assisted in recovering F.L.’s personal property.

[43] On December 22, 2022, pursuant to ss. 20.2 (1) of the Substitute Decisions Act, 1992, F.L. applied to the Consent and Capacity Board for a review of the finding of incapacity to manage property and with respect to his involuntary admission as a psychiatric patient.

[44] On January 11, 2023, there was a hearing by the Consent and Capacity Board of F.L.’s admission as an involuntary patient. His application for a review of the guardianship was bifurcated for a separate hearing.

[45] As a result of the January 11, 2023 hearing, F.L.’s involuntary patient status was overturned, but he remained in the hospital voluntarily.

[46] The matter of the review of the Certificate of Incapacity remained to be determined, and the Consent and Capacity Board held a case management conference on February 8, 2023. At the conference, the Public Guardian and Trustee asked to be joined as a party to provide some documents and some information about F.L. for the hearing.

[47] At the case management conference, the PGT argued that it should be allowed party status because it already served as F.L.’s statutory guardian for property, it possessed relevant bank records and tax records. F.L.’s counsel opposed the joinder as procedurally unfair and as unnecessary because all the documents that the PGT was seeking to introduce were all available at the time of the capacity assessment and could have been provided to the assessor when she was conducting the assessment.

[48] At the case management conference, after hearing from the PGT and from F.L.’s counsel, the presiding Board Member, Nina Lester, added the PGT as a respondent. In making the decision, the Board adopted the reasoning of the Board in Re PP, 2022 ON CCB 54944, a decision that Justice Callaghan was later to rule was a contravention of procedural fairness.

[49] F.L.’s request for accommodation because of his hearing and sight impediments was adjourned for another case conference.

[50] On February 15, 2023, there was a case management conference to consider F.L.’s request for accommodation because of his blindness and impaired hearing. The Board directed that a note-taker at the hospital where F.L. was admitted as an in-patient would take notes during the Board hearing.

[51] On March 2, 2023, the hearing commenced before a single member panel of Lora Patton as the presiding member of the Board. The proceeding was a virtual hearing using the Zoom App.

[52] Pursuant to s. 20.2 (6) of the Substitute Decisions Act, 1992, sections 73 to 80 of the Health Care Consent Act, 1996 apply with necessary modifications to the review proceedings. On the review, the Board may confirm the finding or incapacity or may determine that the person is capable of managing property and in so doing may substitute its opinion for the assessor.

[53] At the hearing, F.L. was represented by Eyitayo Dada. Ms. Oliver was self-represented. She testified but called no witnesses. The Public Guardian and Trustee was represented by Katherine Ballweg. The PGT called two witnesses. On the first day of the hearing, the Board heard evidence from Ms. Oliver, Mr. Ciardullo, and Lois Reyes. Ms. Reyes was the team leader for the PGT. The PGT filed an eleven-page document brief for the hearing.

[54] At the first day of the hearing, Ms. Oliver explained why she had issued her Certificate of Incapacity on July 12, 2022. Among other things, she testified that during her assessment of F.L., she believed that he didn’t express a sense of personal agency and felt things were beyond his control and he was a victim.

[55] At the first day of the hearing, Ms. Oliver had no information about whether F.L.’s circumstances and abilities had changed since the time of the issuance of the Certificate of Incapacity. She had made no new assessment of F.L. She had received no updated information about F.L. or his circumstances. Her testimony concerned the circumstances up until but not after the issuance of the Certificate of Incapacity. Ms. Oliver’s testimony was followed by the evidence of Mr. Ciardullo, and Ms. Reyes and the hearing was adjourned for further evidence.

[56] On March 10, 2023, the second day of the hearing, the Board heard evidence from F.L.

[57] F.L. acknowledged that facility with communication was necessary to manage money, and he testified that because of his blindness, he did need help with communication. He said he had received help from a friend that did his grocery shopping. He said that he would be willing to accept help from people that accommodate his access needs or from the Canadian National Institute for the Blind (“CNIB”). He said that he had worked with the CNIB in the past. The force of F.L.’s evidence in chief was that he knew that he needed help to manage his affairs, that he had accepted help in the past and could and would do in the future and thus he had the capability to manage property. However, at the hearing, F.L. also testified that the assistance he was receiving was “not really help” that “state servants have earned great distrust by abusing my rights for so long.” He did not believe that the social workers in the hospital were helping him. He said he was getting very little help because he had been “so destroyed and so discouraged” that he was “barely alive”. He said the state had convinced his half-brother and a neighbour K. that F.L. was not worth helping.

[58] On March 15, 2023, the Board upheld the Certificate of Incapacity. Ms. Patton concluded that: (a) at the time of Ms. Oliver’s assessment on July 8, 2022, F.L. lacked the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding the management of his property; (b) he was therefore incapable of managing his property; and (c) the incapacity continued to exist at the time of the hearing on March 2 and 10, 2023.

D. Was F.L. Denied Procedural Fairness by the Joinder of the Public Guardian and Trustee?

[59] Relying on P.P. v. Oliver and the Ontario Public Guardian and Trustee, 2023 ONSC 5701, F.L. argues that the Consent and Capacity Board’s decision should be set aside because he was denied procedural fairness. As foreshadowed in the Introduction, it is my opinion that P.P. v. Oliver and the Ontario Public Guardian and Trustee is distinguishable from the immediate case. It is further my opinion that F.L. was not denied procedural fairness in the immediate case.

[60] To explain my opinion, I shall first describe the doctrine of procedural fairness. Second, I shall describe the rules of practice of the Consent and Capacity Board. Third, I shall discuss P.P. v. Oliver and the Ontario Public Guardian and Trustee. Fourth, I shall explain my opinion that there was procedural fairness in the immediate case, and I shall explain why F.L. was not procedurally prejudiced by the PGT’s involvement in the immediate case.

1. The Doctrine of Procedural Fairness

[61] The doctrine of procedural fairness is a fundamental component of Canadian administrative law, Canada (Attorney General) v. Mavi, 2011 SCC 30; Dunsmuir v. New Brunswick, 2008 SCC 9; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 1999 SCC 699; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, 1985 SCC 23, and the Consent and Capacity Board is an administrative tribunal bound by the doctrine of procedural fairness.

[62] Given the broad range of matters decided by administrative tribunals, ranging from trivial disputes about fences to decisions that affect the life, liberty, and security of a person, the overarching requirement is fairness and what counts for procedural fairness is contextual, which is to say that there is a range from very informal rules of procedure and evidence to very formal and rigorous standards of proof and procedure. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 1999 SCC 699, without being exhaustive, the Supreme Court of Canada listed relevant factors to determine what the doctrine of procedural fairness required in any particular case including: (a) the nature of the decision; (b) the significance of the decision to the party affected; (c) the statutory scheme under which the decision is made, including the role the decision plays under that scheme; (d) the reasonable or legitimate expectation of the party challenging the decision; and (e) the procedure of the board and its autonomy to make its own procedure. In considering whether there is procedural fairness, the process leading up to the administrative tribunal’s decision may also be considered. Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396.

[63] Also relevant to the doctrine of procedural fairness are the principles of natural justice. The content of the principles of natural justice are flexible and also contextual depending on the particular circumstances, but the minimum requirements are: (a) adequate notice of what is to be determined and the consequences; (b) an opportunity to make representations; and (c) an unbiased tribunal. Zettel v. University of Toronto Mississauga Students’ Union, 2018 ONSC 1240; McLachlan v. Burrard Yacht Club, 2008 BCCA 271; Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, 1992 SCC 37; Old St. Boniface Residents Association Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, 1990 SCC 31; Cohen v. Hazen Avenue Synagogue (1920), 47 N.B.R. 400 (S.C.), 1920 NB KB 778; Young v. Ladies' Imperial Club, [1920] 2 K.B. 523 (C.A.). The scope of the requirements of natural justice depend on the subject-matter that is being dealt with, the particular legislative or administrative context, the circumstances of the case, the nature of the inquiry, and the rules under which the tribunal is acting, and the ultimate question is whether the procedures adopted were fair in all the circumstances. Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 S.C.R. 165, 1992 SCC 37; Martineau v. Matsqui Institution, [1980] 1 S.C.R. 602, 1979 SCC 184 at pp. 630-31; Syndicat des employés de production du Qué. et de l'Acadie v. Can. (Can. Human Rights Comm.), [1989] 2 S.C.R. 879, 1989 SCC 44 at pp. 895-96; Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, 1985 SCC 23; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109 (C.A.) at p. 110 (C.A.); Polish National Union of Canada v. Branch 1 of the Polish National Union of Canada, 2014 ONSC 3134.

2. The Procedural Rules and Practices of the Consent and Capacity Board

[64] In the immediate case, F.L. requested a review of the assessor’s decision to issue a Certificate of Incapacity. Pursuant to s. 16 of the Substitute Decisions Act, 1992, that certificate automatically brought about the appointment of the Public Guardian and Trustee as statutory guardian of property.

[65] The Consent and Capacity Board has adopted Rules pursuant to sections 25.0.1 and 25.1 of the Statutory Powers and Procedures Act, which state:

Control of process

25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,

(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and

(b) establish rules under section 25.1.

Rules

25.1 (1) A tribunal may make rules governing the practice and procedure before it. s. 56 (38).

Application

(2) The rules may be of general or particular application.

Consistency with Acts

(3) The rules shall be consistent with this Act and with the other Acts to which they relate.

Additional power

(6) The power conferred by this section is in addition to any power to adopt rules that the tribunal may have under another Act.

[66] The Consent and Capacity Board’s rules allow it to add parties.

[67] In the immediate case, the Public Guardian and Trustee was granted status as a party respondent to F.L.’s review of Ms. Oliver’s assessment. It is true as Justice Callaghan noted in P.P. v. Oliver and the Ontario Public Guardian and Trustee, 2023 ONSC 5701, that the Substitute Decisions Act, 1992 does not expressly provide a role for the PGT on the review. However, it is not true that the Public Guardian and Trustee cannot be given a role and be allowed to participate in the review proceedings. The Consent and Capacity Board is empowered by ss. 20.2 (4) to join parties to the review. Subsection 20.2 (4) states:

Parties

(4) The parties to the application are:

1. The applicant.

2. The assessor or physician who made the finding of incapacity.

3. Any other person whom the Board specifies.

[68] While the application in the immediate case was pursuant to s. 16 of the Substitute Decisions Act, 1992, it is worth recalling that the Public Guardian and Trustee can also be a party to other types of proceedings under the Act. For example, the PGT can apply to the court for a temporary guardianship pursuant to s. 27 of the Act. For another example, the PGT may itself apply to the court to be appointed guardian of property pursuant to sections 22 and 23 of the Act. Sections 22 and 23 state:

Court appointment of guardian of property

22 (1) The court may, on any person’s application, appoint a guardian of property for a person who is incapable of managing property if, as a result, it is necessary for decisions to be made on his or her behalf by a person who is authorized to do so.

Same

(2) An application may be made under subsection (1) even though there is a statutory guardian.

Prohibition

(3) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

(a) does not require the court to find the person to be incapable of managing property; and

(b) is less restrictive of the person’s decision-making rights than the appointment of a guardian.

Procedure

23 Part III (Procedure) applies to applications to appoint guardians of property.

[69] For present purposes, which concern the involvement of the Public Guardian and Trustee in proceedings under the Substitute Decisions Act, 1992, it is relevant to note that pursuant to s. 69 of the Act, in all court applications for the appointment of a guardian of property, the PGT will be given notice. Section 69 states:

Application to appoint guardian of property

69 (1) Notice of an application to appoint a guardian of property shall be served on the following persons, together with the documents referred to in subsection 70 (1), and those referred to in section 72 if applicable:

1. The person alleged to be incapable of managing property.

2. The attorney under his or her continuing power of attorney, if known.

3. His or her guardian of the person, if known.

4. His or her attorney for personal care, if known.

5. The Public Guardian and Trustee.

6. The proposed guardian of property.

3. P.P. v. Oliver and the Ontario Public Guardian and Trustee

[70] Ostensibly, the immediate case is virtually identical to P.P. v. Oliver and the Ontario Public Guardian and Trustee, where Justice Callaghan concluded that there had been a denial of procedural fairness because of the involvement of the Public Guardian and Trustee. In both cases, Zoltan Feketez was the investigator for the PGT. In both cases, Ms. Oliver was the assessor. In both cases, the PGT initiated proceedings pursuant to s. 16 of the Substitute Decisions Act, 1992. In both cases, the PGT was added as a party respondent. In both cases, the PGT was for all intents and purposes the predominant proponent for upholding Ms. Oliver’s Certificate of Incapacity and continuing to serve as a statutory guardian of property.

[71] There are, however, substantial and significant factual differences between the cases as will become apparent from a more detailed description of the facts of P.P. v. Oliver and the Ontario Public Guardian and Trustee.

[72] P.P. was an 81-year-old retired psychologist who was suffering from dementia. Her bank manager contacted the PGT, because P.P. wished to transfer $47,000 to a friend. Mr. Feketez of the PGT’s office initiated an investigation. Unlike the case at bar, this was an intense investigation. Unlike F.L.’s case, Mr. Feketez’s investigation was conducted pursuant to s. 27 (2) of the Substitute Decisions Act, 1992. Unlike F.L.’s case, Mr. Feketez utilized the extensive search and seizure powers of s. 83 of the Act to obtain financial information from P.P.’s bank. He used those search and seizure powers to obtain medical records including the hospital admission records of P.P.’s admission to psychiatric facilities. Unlike the case at bar, Mr. Feketez learned that P.P. had a lawyer, and he persuaded the lawyer to arrange three informal capacity assessments, i.e., three assessments not done pursuant to the Act. Later, the PGT was to proffer one of the informal assessments into evidence before the Consent and Capacity Board. Like F.L.’s case, Mr. Feketez asked Ms. Oliver to do an assessment pursuant to s. 16 of the Act. Unlike F.L.’s case, Mr. Feketez shared the highly sensitive and private personal information about financial and medical records with Ms. Oliver. Unlike F.L.’s case where Ms. Oliver assessed F.L. accompanied by a social service worker familiar to F.L., Mr. Feketez accompanied Ms. Oliver and was in attendance but not during the assessment itself. Mr. Feketez never explained to P.P. that he had been investigating her. After the assessment interview, Ms. Oliver concluded that P.P. was not capable of managing her property and the PGT automatically became P.P.’s statutory guardian of property. P.P. appealed to the Consent and Capacity Board. Unlike the case at bar, at the initial hearing before the Board, at the urging of the Board, Ms. Oliver sought an adjournment because the panel member pointed out that because of s. 14 of the Evidence Act, Ms. Oliver could not rely, as she intended to do, just on her own evidence. Section 14 requires that a person cannot be found incapable without corroborating evidence. The adjournment was granted notwithstanding P.P.’s opposition. The adjournment was followed by a case management conference. Like the immediate case, the PGT applied for and despite opposition was granted party status. This request was announced as a change of policy by the PGT, which previously had not applied for party standing pursuant to s. 16 of the Act. The change in policy was explained as avoiding the cumbersome and expensive court application route to guardianship and as overall beneficial to the subject of the s. 14 assessment. The hearing proceeded before the Board. Ms. Oliver testified. Unlike the case at bar, Mr. Feketez had disclosed to Ms. Oliver the harvest of his investigation of P.P. including detailed medical records of P.P.’s psychiatric admissions and cognitive testing and including the informal capacity assessments. At the hearing, Ms. Oliver testified but offered no corroborating evidence. Like F.L.’s case, the PGT called two witnesses. Unlike F.L.’s case, one of the witnesses was Mr. Feketez. Unlike F.L.’s case, the medical records and financial records were put into evidence. At the hearing, P.P. responded with her own evidence and with the evidence of her friend. The lawyer for the PGT did not cross-examine the friend. The lawyer for the PGT cross-examined P.P. Like F.L.’s case, Ms. Oliver did not cross-examine. At the conclusion of the hearing, the Board found that Ms. Oliver had established P.P.’s incapacity.

[73] P.P. appealed the Board’s decision and Justice Callaghan set aside the decision because he concluded that P.P. had been denied procedural fairness. He determined that there was not the appropriate level of procedural fairness having regard to the principles established in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 1999 SCC 699. I am not an appellate court, but for what it is worth, I see no error in Justice Callaghan’s conclusion.

4. Procedural Fairness in the Immediate Case

[74] Returning to the immediate case, despite its similarities to P.P. v. Oliver and the Ontario Public Guardian and Trustee, the above description of the facts reveals that the similarities are superficial and that in the immediate case there was the appropriate level of procedural fairness.

[75] In P.P. v. Oliver and the Ontario Public Guardian and Trustee, Justice Callaghan did not conclude nor could he categorically conclude that the Public Guardian and Trustee can never be joined as a party to a s. 16 application under the Substitute Decisions Act, 1992. As noted above, pursuant to s. 20.2 (4), the Board expressly has the power “to join any other person whom the Board specifies.”

[76] It will be for the Board to develop the jurisprudence to determine when the Public Guardian and Trustee may be added as a party to a s. 16 application. I recommend that the Board consider the jurisprudence developed by the court under Rule 13 of the Rules of Civil Procedure, which provides for the joinder of intervenors to a proceeding. The rights of an intervenor to participate in the hearing can be prescribed and may be reduced from full party standing.

[77] In the immediate case, the joinder of the Public Guardian and Trustee did not occasion any procedural unfairness or cause any prejudice to F.L. He had notice of the case he had to meet and an opportunity to meet it. Because of his hearing and sight disabilities, F.L.’s was accommodated at the hearing with a note taker. A review of the transcript reveals that he understood the nature of the proceedings and what was at issue. In the immediate case, the Board, unlike the situation in PP, was not presented with highly sensitive, private and personal health and financial records that had been obtained by the PGT’s exercise of search and seizure powers. In the immediate case, the record of the proceedings about F.L.’s involuntary admission for a mental health problem was not before the board. F.L. was very well represented at the hearing. At the hearing, although PGT’s lawyer conducted the examinations and cross-examinations, the questioning was what might be expected if Ms. Oliver had retained a lawyer. There was nothing irregular about the hearing itself.

[78] I, therefore, conclude that F.L. was not denied procedural fairness.

E. Legal Background to the Substantive Grounds of Appeal

[79] Turning now to F.L.’s substantive grounds of appeal, the legal background is set out below.

[80] Pursuant to s. 16 of the Substitute Decisions Act, 1992, the Public Guardian and Trustee asked Ms. Oliver to make a capacity assessment of F.L. Section 1 of the Act defines “capacity” as having a meaning corresponding to “mentally capable”.

[81] Section 2 of the Act stipulates that there is a presumption of capacity. Section 2 states:

Presumption of capacity

2 (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract.

Same

(2) A person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care.

Exception

(3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be.

[82] There is a presumption of capacity and compelling evidence is required to override the presumption of capacity. Re Koch, (1997), 33 O.R. (3d) 485 (Gen. Div.), 1997 ON SC 12138. Section 14 of the Evidence Act requires that there must be corroborating evidence before a person can be found incapable.

[83] Section 6 of the Substitute Decisions Act, 1992 sets the test for incapacity to manage property. Section 2 states:

Incapacity to manage property

6 A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[84] Stated positively, in effect, section 6 establishes a two-standard test for the capacity that a person must have to not be assessed as lacking the capacity to manage property. A person will be incapable of managing property, if he or she fails one or the other standard of the test. Starson v. Swayze, 2003 SCC 32 at para. 18.

[85] The test for capacity was established by the Supreme Court of Canada in Starson v. Swayze, 2003 SCC 32. Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a decision. This requires the cognitive ability to process, retain and understand the relevant information. Starson v. Swayze, 2003 SCC 32. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This second standard requires the person to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof. W.S. v. Dr. Bismil, 2020 ONSC 173; Mladenovic v. Papatheodorou, 2015 ONSC 754; Starson v. Swayze, 2003 SCC 32. The ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision includes an ability to recognize whether one’s condition renders the person unable to apply the relevant information and appreciate the consequences of his or her decision. B.L. v. Pytyck, 2021 ONCA 67; Murray v. Alatishe, 2019 ONCA 596; D'Almeida v. Barron, 2010 ONCA 564, leave to appeal to S.C.C. refused, (2011) 284 O.A.C. 400; Giecewicz v. Hastings, 2007 ONCA 890, leave to appeal ref’d [2008] S.C.C.A. No. 97.

[86] The ability to appreciate consequences involves more than a mere understanding of the relevant information and requires that the person have some ability to evaluate the information to appreciate the consequences of making or not making a decision. Starson v. Swayze, 2003 SCC 32; Khan v. St. Thomas Psychiatric Hospital (1992), 7 O.R. (3d) 303 (C.A.), 1992 ON CA 7464. Indicators of a person’s ability to appreciate consequences are: (a) acknowledgement that the decision will have consequences to him or her; (b) appreciation of how the decision will have consequences; and (c) the absence of delusional beliefs. B.L. v. Pytyck, 2020 ONSC 3766; Kubas v Fogolin, 2018 ONSC 4681; Saini v. Labelle, 2017 ONSC 6632; Giecewicz v. Hastings, 2007 ONCA 890, leave to appeal to the S.C.C. ref’d [2008] S.C.C.A. No. 97; Starson v. Swayze, 2003 SCC 32 at para. 18.

[87] An incapacity assessment is based solely on the person’s capacity, and a consideration of what might be in the best interests of the person alleged to be incapable of managing his or her property is not a relevant consideration. ML v. Rathitharan, 2022 ONSC 346; AA (Re), 2023 ON CCB 49680; AC (Re), 2021 ON CCB 14573; BR (Re), 2018 ON CCB 64364; Starson v. Swayze, 2003 SCC 32; Re Koch, (1997), 33 O.R. (3d) 485 (Gen. Div.), 1997 ON SC 12138. A competent person is not incompetent because he or she makes decisions that a reasonable person would consider foolish or not in the person’s best interests.

[88] Under the Substitute Decisions Act, 1992 with there being a presumption of capacity to manage property, at a Board hearing to review a Certificate of Incapacity the onus is on the capacity assessor to prove on the balance of probabilities that incapacity existed at the time of the assessment and continues to exist at the time of the hearing. Daugherty v. Stall, 2002 ON SC 2657.

F. Did the Board Improperly Shift the Onus of Proving Incapacity unto F.L.?

[89] F.L. submits that although the Board correctly set out in its Reasons for Decision that the onus of proof was on the assessor, the presiding Board member did not act on her words and rather shifted the onus of proof onto F.L. This ground of appeal is not made out on the evidentiary record.

[90] The Reasons for Decision of the Board reveal that the Board was very sensitive and astute about what needed to be proven to uphold the Certificate of Incapacity and upon whom the onus of proof rested. As discussed below, the Board was aware that Ms. Oliver had the onus of showing that there was incapacity at the time of the assessment and also at the time of the hearing. The Board did not shift the onus. The reasons of the Board reveal that the onus had not been met at the first day of the hearing. Ironically, the onus was met by F.L.’s evidence on the second day of the hearing. That circumstance did not shift the onus. The Board simply explained how the onus was satisfied.

[91] F.L.’s argument that there was a shift of the burden of proof in the immediate case is based on the Consent and Capacity Board noting in its reasons that based on the first day’s evidence at the hearing, the assessor had not proven that F.L.’s alleged capacity persisted to the date of the hearing. The Board’s conclusion, which F.L. does not suggest was erroneous, followed because Ms. Oliver had not reassessed F.L.’s capacity and she had not investigated whether he or his circumstances had changed since July 12, 2022.

[92] F.L.’s argument concludes that Ms. Oliver had not met the onus of proving incapacity at the time of the hearing. F.L.’s counsel noted several Board decisions where the Board had set aside a Certificate of Incapacity because the assessor had not reassessed and considered whether the incapacity persisted to the time of the hearing. PS (Re), 2023 ON CCB 49733; ER (Re), 2021 ON CCB 36076; DF (Re), 2016 ON CCB 101848; SI (Re), 2015 ON CCB 59013.

[93] The problem, however, for F.L. is that in the immediate case, there was evidence of a persisting incapacity. The persistence of the incapacity was proven by F.L.’s evidence on the second day of the hearing. F.L.’s counsel argued that in relying on F.L.’s evidence, that the Board made an error in law and shifted the burden of proof onto F.L. This argument, however, fails. There was no shifting of onus. After the first day of hearing, F.L. went ahead to testify. Had he not done so, he might have been able to argue that the assessor had not met the onus of proof. The Board made no error in accepting F.L.’s evidence and giving it probative weight on the issue of his capacity to manage property. Frequently, in litigation a party proves its case from the evidence of its opponent.

[94] The burden of proof never shifted in the immediate case. Ms. Oliver satisfied the burden of rebutting the presumption of capacity by her own evidence and the evidence of Mr. Ciardullo, and Ms. Reyes.

G. Did the Board Apply the Correct Test for Incapacity?

[95] In the immediate case, there is no question that F.L. had the cognitive capacity to manage his property. He had good language and computational skills. He is able to understand the information that is relevant to making a decision. He has the cognitive ability to process, retain, and understand relevant information. The question in the immediate case is whether F.L. is able to appreciate the reasonably foreseeable consequences of a decision or lack of one.

[96] The evidence in the immediate case revealed that F.L.’s decision-making capability was influenced by delusional paranoid thinking. He believed that he was a political enemy of the state. He believed that state officials and others could not be trusted. He believed that he was being targeted by state officials. His belief that he was being abused by the state led to bitterness and apathy, i.e., he was unmotivated to co-operate and he was reluctant to reach out for the help that he knew he needed.

[97] The Consent and Capacity Board understood that the test of incapacity does not focus on the wisdom or foolishness of a person’s making or not making a decision or on what decision might be in the best interests of the person; rather, the test focuses on the person’s ability to understand the consequences of his or her decision. The evidence established that F.L. because of his prejudgment that the state had been harming him in the past and would in the future mean him harm was incapable of understanding the consequences of his decisions and most particularly the evidence demonstrated that he did not understand the consequences of his not making decisions to seek help or to facilitate that help when it was offered to him. F.L. did not trust his social workers to assist him with managing his property. He said that Ms. Pepin could not help him, and he said he had dismissed her because of “too many lies and too much contempt”. F.L. had no plan if the PGT was no longer his guardian. He felt that the questions asking about his plans were a “cruel trick to try to portray [him] as an incapable person” and that he had “been destroyed”. F.L. held the delusional beliefs that the State had convinced his half-brother and neighbour that F.L. was not worth helping. When questioned why he had not accepted help to access his CPP and OAS, F.L. said the state had abused him and he could not trust the state. He believed that the state was attempting to make him mentally ill under the guise of what it called help but was not really help.

[98] There was ample evidence before the Board including F.L.’s testimony at the hearing to support the Board’s conclusion that “the constant suspicion and apathy robbed [F.L.] of the ability to engage in consideration of managing his property in any way except the most superficial. [F.L.] was unable to consider the risks and benefits of making any decision about his property – including the risks of making no decision at all.” Because of his delusions about being a target by the state, F.L. lacked the ability to realistically appraise the risk and likely outcome of a decision or lack of decision.

H. Did the Board Make an Evidentiary Error?

[99] Contrary to F.L.’s submissions, the Board did not fail to consider relevant evidence, and there is nothing to support that it made a palpable and overriding error in its assessment of the evidence.

I. Conclusion

[100] For the above reasons, F.L.’s appeal is dismissed. There shall be no Order as to costs.

Perell, J.

Released: January 22, 2024