Court of Appeal for Ontario

CITATION: Conway v. Darby, 2009 ONCA 437

DATE: 20090526

DOCKET: C49706

BEFORE: Goudge, Gillese and Watt JJ.A.

BETWEEN:

Paul Conway

Applicant (Appellant)

And

Dr. Padraig L. Darby

Respondent (Respondent in Appeal)

COUNSEL:

Peter F. Haber, for the appellant

Janice Blackburn, for the respondent

Heard and endorsed orally: May 20, 2009

On appeal from the order of Justice D.M. Brown of the Superior Court of Justice dated October 24, 2008.

APPEAL BOOK ENDORSEMENT

[1] The appellant no longer seeks an order from this court that he is capable with respect to treatment.

[2] He argues that when his case is sent back to the Board it should not be before Mr. Nemetz because Mr. Nemetz misunderstood the law as set out in Starson v. Swayze. In our view Mr. Nemetz did not misunderstand the jurisprudence. In a number of places in the record he makes that clear.

[3] His use of the phrase “mental illness” rather than “mental condition” on several occasions was, as Justice Brown said, unfortunate. However, it does not displace his proper understanding of the jurisprudence. There is no reason that this case cannot go back before Mr. Nemetz.

[4] He also argues that his case should be heard de novo by a three person panel. The assignment of a single board member was a decision of the Chair. Mr. Nemetz was assigned the case and it was entirely reasonable for him to carry on to discharge his assignment. There was no error in his proceeding as he did. This proceeding cannot be used as a collateral attack on the Chair’s decision to have a single member do the case. This argument fails.

[5] The appellant also appeals costs, and seeks costs before Brown J. on a “loser pays” basis. In our view in all the circumstances, including the nature of the appeal, the fact that appellant’s counsel is paid as provided for in the order of Mesbur J. and the fact that the respondent, who would be the payer, is simply doing his duty we do not think this a proper case for costs before Brown J.

[6] In the result, the appeal is dismissed. The appellant’s case will therefore be referred back to the Board with the Board to reconvene as soon as reasonably possible. The respondent agrees that appellant’s counsel can cross examine Dr. Darby on his diagnosis and therefore can call evidence as advised.

[7] No order as to costs in this court.