DATE: 2001-11-30 DOCKET: C36037

COURT OF APPEAL FOR ONTARIO

CHARRON, MacPHERSON and CRONK JJ.A.

B E T W E E N :

JUDITH NEILL Appellant

• and -

GERALDINE PELLOLIO and MAURICE PELLOLIO Respondents

Counsel: Frances M. Wood for the Appellant Marshall A. Swadron for the Respondents

Heard: October 18, 2001

On appeal from the judgment of Justice Nancy M. Mossip dated March 6, 2000.

CRONK J.A.:

[1] This appeal concerns the jurisdiction of the court to order a capacity assessment and visitation rights under the Substitute Decisions Act, 1992, S.O. 1992, c. 30, as amended, (the “SDA”) and the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A., as amended, (the “HCCA”). By judgment dated March 6, 2000, Justice Mossip declined to order the relief sought and awarded costs of the application to the respondents, on a solicitor-and-client scale, in the fixed amount of $18,000 inclusive of Goods and Services Tax and disbursements. The appellant, Judith Neill, appeals from the dismissal of her application and seeks leave to appeal from the costs award. For the reasons that follow, I would grant leave to appeal the costs award and allow the appeal on that issue. In all other respects, I would confirm the judgment of the motions judge.

BACKGROUND FACTS

[2] Mrs. Pellolio is a 78-year-old woman who suffers from advanced Parkinson’s disease. She is cared for in her own home by her husband, Maurice Pellolio, and one of her three daughters, Maureen Pellolio. Ms. Neill is also a daughter of Mrs. Pellolio.

[3] In August 1994, Mrs. Pellolio signed a power of attorney for personal care (the “Power of Attorney”) which appointed Maurice Pellolio as her attorney and named Ms. Neill and Ms. Pellolio as co-attorneys if Mr. Pellolio was unwilling or unable to act. The Power of Attorney provides in paragraph 4 thereof:

If at such time the situation should arise in which there is no reasonable expectation of my recovery from extreme physical or mental disability, I DIRECT that I be allowed to die and not be kept alive by medications, life support systems or other artificial means or “heroic measures”….

[4] In October 1999, Mrs. Pellolio was hospitalized with admitting diagnoses which included advanced Parkinson’s disease, aspiration pneumonia and dehydration. Her initial treatment involved use of a temporary nasal gastric tube. Although Mrs. Pellolio recovered from the aspiration pneumonia, the prognosis was unfavourable for recovery of the ability to swallow.

[5] Options for future feeding care included initiation of permanent gastrostomy tube feeding (“PGTF”) [^1] or cessation of gastrostomy tube feeding and pursuit of a long-term palliative plan of care. Under the latter option, it was anticipated that Mrs. Pellolio’s death would occur within one or two months. Ms. Neill opposed commencement of the PGTF treatment and sought to have paragraph 4 of the Power of Attorney enforced. Mr. Pellolio and Ms. Pellolio supported PGTF.

[6] In mid-November 1999, Mrs. Pellolio’s treating physician, Dr. Heather MacDonald, conducted an assessment under the HCCA to determine Mrs. Pellolio’s capacity to provide informed consent to PGTF. Dr. MacDonald concluded, for reasons set out in her assessment note, that Mrs. Pellolio clearly indicated her wish to proceed with the PGTF treatment and understood the implications of this decision. Thereafter, Mrs. Pellolio was discharged home with a PGTF mechanism.

[7] Following Mrs. Pellolio’s discharge from hospital, Ms. Neill commenced an application under the SDA and the HCCA to compel a capacity assessment of her mother and to obtain visitation rights. She obtained interim court orders permitting her to visit her mother. The visitations did not proceed smoothly. Difficulties arose between Ms. Neill and other family members and, on at least one occasion, between Ms. Neill and a visiting nurse. Numerous, and often acrimonious, court attendances then ensued, culminating in the appearance before Justice Mossip in March 2000.

DISCUSSION

[8] Two issues arise on this appeal: first, the jurisdiction of the court to grant the capacity assessment and visitation rights sought by Ms. Neill having regard to the nature of the application brought by her; and secondly, the exercise by the motions judge of her discretion respecting costs.

(1) Request for Capacity Assessment

[9] In her application, Ms. Neill did not seek an order appointing a guardian of the person or property of Mrs. Pellolio pursuant to the SDA. Rather, amongst other relief, she sought an order, (a) that her mother be required to undergo an assessment to determine her capacity to understand information relevant to making decisions concerning her health care, (b) outlining the conditions for the conduct of such an assessment, (c) declaring the Power of Attorney to be effective if, as a result of the assessment, Mrs. Pellolio was found to be incapable of making decisions affecting her personal care, and (d) granting Ms. Neill visitation rights to her mother.

[10] The motions judge concluded that she had no jurisdiction under the SDA or the HCCA to grant the relief sought by Ms. Neill. With respect to the SDA, she stated:

The applicant did not apply to be the guardian of the person nor the guardian of the property of her mother, Geraldine Pellolio pursuant to the [SDA]. Section 79(1) of the SDA provides for the court to make an order that a person be assessed “in a proceeding under this Act”. The types of proceedings under this Act are set out in sections 20.3, 22, 27(3.1), 42, 55 and 62(3.1). There is no “stand-alone” relief available to the applicant for a capacity assessment to be granted in the absence of an application brought under the SDA for any of the permitted relief. Accordingly, this court has no jurisdiction under the SDA to grant the applicant’s relief.

[11] In connection with the HCCA, the motions judge concluded:

I have reviewed the Affidavit of Dr. MacDonald and am satisfied that she has properly and competently followed the procedures and requirements set out in the [HCCA]. Dr. MacDonald found Mrs. Pellolio capable of consenting to treatment under that Act. Accordingly, there is, pursuant to that legislation, no provision to appeal the decision of the patient and the treating physician, when the patient has consented to treatment, as has occurred in this case. The treatment was not administered to Mrs. Pellolio pursuant to [the] Power of Attorney which Mrs. Pellolio had granted in favour of her husband of 36 years, but was administered as a result of Mrs. Pellolio’s consent as properly obtained by her attending physician.

Accordingly, not only does the court not have jurisdiction to grant the relief requested by the applicant, but I am not satisfied there are any moral or equitable grounds to interfere with the decision made by Mrs. Pellolio in consultation with her doctor, assuming for the moment the court could even do so.

[12] Ms. Neill’s notice of application referenced ss. 6, 45, 46, 79 and 80 of the SDA in relation to the requested assessment. Before this court, reliance was also placed by her on ss. 66, 67 and 68 of the SDA. However, none of these sections of the SDA, in the circumstances of this case, provides jurisdiction to order the capacity assessment sought by Ms. Neill.

[13] Section 79 of the SDA authorizes the court, on motion or on its own initiative, to order that a person be assessed for the purpose of obtaining an opinion as to the person’s capacity. Section 79(1) provides that this power may be exercised:

If a person’s capacity is in issue in a proceeding under this Act and the court is satisfied that there are reasonable grounds to believe that the person is incapable …

[14] Thus, for an assessment order to be made under s. 79(1), two conditions must first be satisfied:

(a) a proceeding under the SDA must be pending in which a person’s capacity is in issue; and

(b) the court must be satisfied that there are reasonable grounds to believe that the person is incapable.

[15] These conditions are cumulative. In my opinion, neither condition is satisfied in this case.

[16] The word “incapable” is defined under s. 1(1) of the SDA as meaning “mentally incapable”. It is a basic principle of the SDA that, absent reasonable grounds to believe the contrary, persons are presumed to be capable of giving or refusing consent in connection with their own personal care (see s. 2(2) of the SDA). A similar presumption is established under s. 4(2) of the HCCA for the purposes of treatment under that statute.

[17] The first requirement under s. 79(1) of the SDA, that a person’s capacity must be in issue “in a proceeding under [the SDA]” in order for the court to order a capacity assessment, is not satisfied in this case.

[18] The SDA contemplates various types of proceedings, none of which has been initiated by Ms. Neill. These include proceedings to appoint a guardian of property (see ss. 17, 22 and 27(3.1)), or of the person for a person who is incapable of personal care (see ss. 55 and 62(3.1)), to review a finding of incapacity (see s. 20.2), or to terminate or vary guardianship (see ss. 20.3, 26, 27(9.1), 28, 61, 62(11) and 63)). No application under any of these sections of the SDA has been made in this case.

[19] Ms. Neill argues that the motions judge, in considering her jurisdiction under the SDA, failed to take into account s. 68 of the SDA. That section provides, in material part:

If an incapable person has … an attorney under a power of attorney for personal care, the court may give directions on any question arising … under the power of attorney.

[20] An application may be brought under s. 68(1) by various persons, including by “any person with leave of the court” (see s. 68(3)).

[21] An application under s. 68(1), however, presupposes that a finding of incapacity has been made in respect of the person subject to the power of attorney for personal care. This has not occurred in relation to Mrs. Pellolio. Thus, even if Ms. Neill’s application had been framed as an application for directions from the court, in this case such an application would have been foreclosed under s. 68(1).

[22] Ms. Neill argues that such a strict interpretation of s. 68 of the SDA would unduly restrict the ability to challenge the capacity of a person to make decisions in relation to his or her own care. I do not agree. The SDA contemplates, by the combined operation of ss. 55 and 79, that a capacity assessment may be ordered by the court in a proper case when a guardian of the person application is pending concerning a person who is believed to be incapable of personal care. In contrast, as relevant to this case, s. 68(1) of the SDA reflects a clear legislative intention that an application for directions be confined to questions arising under a power of attorney for personal care once incapacity has been established.

[23] Furthermore, s. 62(2) of the SDA imposes a mandatory duty on the Public Guardian and Trustee to investigate “any allegation that a person is incapable of personal care” where it is alleged that “serious adverse effects are occurring or may occur” as a result of the person’s incapacity. The term “serious adverse effects” is broadly defined under s. 62(1) of the SDA to include serious illness or injury, or deprivation of liberty or personal security.

[24] Thus, the SDA provides at least two mechanisms whereby the capacity of a person in relation to personal care may be assessed. This can occur in the context of an application for the appointment of a guardian, or in the course of an investigation by the Public Guardian and Trustee of an allegation of incapacity. Neither mechanism applies in this case.

[25] The second requirement under s. 79(1) of the SDA contemplates that before an order may be made under that subsection for a capacity assessment, the court will determine whether reasonable grounds exist to satisfy the belief that a person is incapable.

[26] In this case, Dr. MacDonald did not conduct a general assessment of Mrs. Pellolio’s capacity. However, she did conduct a specific assessment under the HCCA of Mrs. Pellolio’s ability to make a decision regarding long term PGTF treatment. As a result of this assessment, Dr. MacDonald concluded that Mrs. Pellolio “is capable of making a decision regarding long-term tube feeding under the HCCA” and that she “indicated her wish to proceed with [PGTF] and understood the implications for this decision for her health care and other needs”. With respect to this treatment, therefore, capacity was specifically confirmed. Dr. MacDonald’s evidence is uncontroverted by evidence from any other health practitioner.

[27] Although the HCCA was not argued by Ms. Neill on this appeal, reliance was placed on it before the motions judge. In addition, the respondents submitted before this court that the HCCA is a complete code in relation to consent to treatment issues, such that the provisions of that statute are dispositive of the assessment and visitation rights requests made by Ms. Neill.

[28] The HCCA and the SDA operate in concert respecting matters of guardianship and incapacity. The HCCA applies specifically, among other matters, to consent to treatment issues. Both statutes establish presumptions of capacity and give prominence to the expressed wishes of a person in relation to his or her personal care (see, in the case of the presumption of capacity, s. 4 of the HCCA and s. 2 of the SDA and, in the case of a person’s expressed wishes, s. 5 of the HCCA and ss. 66(3) and (4) of the SDA). Paragraph 1(c) of the HCCA confirms that one of the purposes of that Act is:

(c) to enhance the autonomy of persons for whom treatment is proposed, … by,

(iii) requiring that wishes with respect to treatment, … expressed by persons while capable and after attaining sixteen years of age, be adhered to;

[29] In this case, prior to commencement of the PGTF treatment, Dr. MacDonald conducted the required assessment under the HCCA to determine the capacity of Mrs. Pellolio concerning the proposed treatment and determined that she was both capable with respect to the treatment and that she consented to it. The motions judge concluded that there was no right under the HCCA to appeal or review such a decision by a patient and treating physician when informed consent to the treatment is given. I agree with this conclusion. I note also that it is consistent with the fundamental philosophy reflected in the HCCA, to respect the treatment wishes of capable persons concerning their personal care when informed consent is given.

[30] For all of these reasons, I conclude that there is no basis upon which to interfere with the motions judge’s decision to decline, on jurisdictional grounds, the requested capacity assessment.

(2) Request for Visitation Rights

[31] Ms. Neill correctly points out that an attorney for an incapable person under a power of attorney for personal care is obliged to foster regular personal contact between the incapable person and supportive family members and friends (see ss. 66(6) and 67 of the SDA). Similarly, such an attorney is obliged to consult from time to time with supportive family members and friends of the incapable person who are in regular personal contact with the incapable person (see ss. 66(7)(a) and 67 of the SDA). However, these obligations only arise under the SDA where a finding of incapacity has been made.

[32] A similar objective is identified as one of the purposes of the HCCA when a person lacks the capacity to make a decision about a treatment (see para. 1(e) of the HCCA). As relevant to this case, however, this objective only applies under the HCCA when a person “lacks the capacity” to make decisions about his or her treatment. In this case, in respect of the PGTF treatment, an express finding of capacity resulted from a capacity assessment conducted under the HCCA.

[33] The motions judge concluded that she had no jurisdiction in the circumstances of this case to order visitation rights for Ms. Neill. I agree with this conclusion having regard to the nature of the application commenced by Ms. Neill.

[34] The motions judge also found that the respondents were willing to allow Ms. Neill to visit Mrs. Pellolio, and that the terms for visitation proposed by the respondents were reasonable and designed to protect Mrs. Pellolio. As the motions judge lacked jurisdiction to order visitation rights in the proceeding as framed by Ms. Neill, these findings, of course, were unnecessary. I would note, however, that these findings were fully supported by the record.

(3) Costs

[35] In considering Ms. Neill’s application, the motions judge determined the issues based on jurisdictional grounds. In so doing, she commented adversely on the motives of the appellant in bringing her application and on her conduct in relation to the respondents and Mrs. Pellolio.

[36] The appellant submits that the costs award made by the motions judge was punitive in nature. While costs awards are a discretionary matter, and leave to appeal such awards should be granted sparingly, I agree that costs on a solicitor-and-client scale should not be awarded unless special grounds exist to justify same (see Orkin, The Law of Costs, 2nd ed., (Canada Law Book: 1993), at 2-91 to 2-92).

[37] In my respectful opinion, this is not a case warranting a complete indemnification for costs. As noted by this court in Foulis et al. v. Robinson (1979), 1978 CanLII 1307 (ON CA), 21 O.R. (2d) 769, (Ont. C.A.), at 776:

The expense of litigation is a matter of concern for all those interested in the administration of justice, but one must have regard for the burden which such costs place on all parties. Generally speaking, an award of costs on a party-and-party scale to the successful party strikes a proper balance as to the burden of costs which should be borne by the winner without putting litigation beyond the reach of the loser.

[38] Although the motions judge had jurisdiction under Rule 57.01 of the Rules of Civil Procedure to award costs on a solicitor-and-client scale in a proper case, the exercise of that power should be confined to exceptional cases. Moreover, while one might disagree with Ms. Neill’s belief that paragraph 4 of the Power of Attorney should be enforced, absent clear evidence to the contrary, she is entitled to hold that belief without attribution to her of improper or reprehensible motives.

[39] In the circumstances, I am of the view that the appropriate costs award in relation to the application before the motions judge was on the lower, party-and-party scale.

CONCLUSION

[40] Accordingly, I would grant leave to appeal the costs award, and allow the appeal on that issue, by setting aside the costs award and in its place award the respondents their costs of the application below on a party-and-party basis. In all other respects, I would confirm the judgment of the motions judge. As success on this appeal has been divided, I would award no costs of the appeal.

“E.A. Cronk J.A.”

“I agree: Louise Charron J.A.”

“I agree: J.C. MacPherson J.A.”

Released: November 30, 2001

[^1]: This device consists of a single tube that enters the stomach directly to deliver food and medication.