Court of Appeal for Ontario

Citation: Roberts v. Wong, 2016 ONCA 540 Date: 2016-07-07 Docket: C61232

Judges: MacPherson, Cronk and Benotto JJ.A.

Between:

Mark Roberts Appellant

and

Dr. Leslie Wong Respondent

Application Under: The Health Care Consent Act, S.O. 1996, c. 2, Sch. A and Rule 61.03.1 of the Rules of Civil Procedure

Counsel: O. Benjamin Vincents, for the appellant Barbara Walker-Renshaw, for the respondent

Heard: July 4, 2016

On appeal from the order of Justice John R. McCarthy of the Superior Court of Justice, dated April 30, 2015.

Endorsement

[1] The appellant Mark Roberts appeals from the Order of McCarthy J. of the Superior Court of Justice dated April 30, 2015 quashing an appeal from a decision of the Consent and Capacity Board (“CCB”) dated May 29, 2014, that confirmed the finding that the appellant was incapable of consenting to treatment at the relevant time.

[2] The respondent’s motion to quash was based on fresh evidence, which the motion judge admitted, that established that several months after the CCB decision, and before his appeal of that decision could be heard, the respondent had determined that the appellant had regained his capacity to consent to treatment. The respondent concluded that the appellant had developed insight into the ongoing need for medication and expressed a willingness to continue with treatment. With the appellant’s consent, the treatment resumed. Three months later, the appellant was discharged from the respondent’s care when he was transferred to the Centre for Addiction and Mental Health pursuant to the terms of the disposition of the Ontario Review Board on August 29, 2014.

[3] Against this backdrop established by the fresh evidence, the motion judge quashed the appeal on the basis that it was moot. He applied the two-step test from Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342. On the first step, the motion judge concluded there was no longer a live issue between the parties because the appellant’s capacity to consent to treatment had been restored. On the second step, the motion judge chose not to exercise his discretion to hear a moot appeal.

[4] On this appeal, the appellant challenges the motion judge’s conclusion on the second step of the Borowski test.

[5] The appellant contends that the motion judge erred by neglecting, in the exercise of his discretion, to apply standards that would be appropriate for mental health litigants.

[6] We do not accept this submission. The motion judge was well aware of the context in which the appeal was set and knew the record relating to the condition and treatment of the appellant.

[7] The appellant also submits that the motion judge erred by not hearing the appeal because it raised issues of public importance.

[8] On the particular facts of this case set out above, we disagree. This is not a case like Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197, where the issue was of a recurring nature with wide implications. Also that decision involved public health care resources which made it an issue of public importance.

[9] The appeal is dismissed. No costs.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“M.L. Benotto J.A.”