COURT OF APPEAL FOR ONTARIO

CITATION: Dickey v. Alexander, 2016 ONCA 961

DATE: 20161220

DOCKET: C59549

Simmons, Pepall and Huscroft JJ.A.

In the matter of an application under subsection 32(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, as amended.

BETWEEN

Dr. Robert Dickey

Appellant

and

Michael Alexander

Respondent

Janice Blackburn, for the appellant

Marshall Swadron and Nicole Walton, for the respondent

Heard: November 15, 2016

On appeal from the order of Justice Stephen T. Bale of the Superior Court of Justice, dated September 29, 2014.

ENDORSEMENT

[1] The respondent, Michael Alexander, was found not criminally responsible (“NCR”) on account of mental disorder in connection with index offences dating to April 2010, consisting of three counts of criminal harassment, two counts of failure to comply, possession of marijuana, causing a disturbance, assault causing bodily harm, mischief, and threatening death. He was admitted to Waypoint Centre for Mental Health Care (“Waypoint”) pursuant to a disposition order of the Ontario Review Board on April 25, 2013. He has a lengthy psychiatric history.

[2] On May 21, 2013, the appellant, Dr. Robert Dickey, found that the respondent was incapable of consenting to treatment with anti-psychotic medications, mood stabilizers, and side effects medications. The respondent applied to the Consent and Capacity Board (“Board”) to review this finding, and on June 3, 2013, the Board found that the respondent was incapable of consenting to the proposed treatment. His appeal to the Superior Court was heard on January 28, 2014. On September 29, 2014, the Superior Court judge reversed the Board’s decision.

[3] Dr. Dickey appeals from the decision of the Superior Court judge.

[4] Following the commencement of this appeal, the respondent’s appeal from the NCR verdict was allowed and the respondent was discharged from Waypoint on November 27, 2014. This court was informed that the respondent has since had a new trial that was resolved by plea agreement under which he pleaded guilty to some of the offences, and no NCR verdict was returned.

[5] As a result of the various proceedings, the treatment proposed by Dr. Dickey in 2013 was never commenced.

[6] Prior to the hearing of this appeal, the respondent served and filed a motion seeking to have the appeal quashed as moot, but chose not to proceed with it. However, given the status of the respondent’s NCR verdict, the parties were invited to make submissions at the hearing of the appeal on whether the appeal was moot.

[7] It is common ground that there is no longer a live controversy that requires resolution. The Board’s decision determined the capacity of the respondent for the purposes of consent to treatment as of the date of its hearing – that is, as of June 3, 2013, a date long-past. The Board’s decision and the appeal from that decision were premised on an NCR order that no longer exists.

[8] As noted above, the respondent is no longer at Waypoint. In these circumstances, a decision from this court would have no practical effect on the rights of the parties. The appeal is moot.

[9] That being so, the question is whether the court should exercise its discretion to hear the appeal despite it being moot: Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342.

[10] The appellant submits that we should hear the appeal because if the Superior Court judge's decision is allowed to stand, it may be used in support of an argument that the respondent expressed a “prior capable wish” that binds future substitute decision makers under s. 21 of the Health Care Consent Act 1996, S.O. 1996, c. 2, Schedule A, as amended, and so may preclude the administration of the relevant drugs without the respondent’s consent.

[11] It is enough for present purposes to reiterate that the decision under appeal concerns the respondent’s capacity at the time the Board’s decision was made. The Superior Court judge’s decision may be evidence relevant to determining the respondent’s capacity in a future case, but it is not clear that it would be determinative. In any event, s. 36 of the Act establishes a procedure pursuant to which a substitute decision maker and a healthcare practitioner can obtain permission for consent to treatment despite a prior capable wish.

[12] We are not persuaded that this is an appropriate case to exercise our discretion to hear the appeal. Not only would a decision of this court have no practical effect on the rights of the parties, it would have no broader application beyond the parties. Moreover, as noted above, the concern relating to a prior capable wish is specifically addressed by s. 36 of the Act. In any event, our decision not to hear the appeal is not to be taken as a comment on the merits of the order under appeal.

[13] The appeal is dismissed as moot.

“Janet Simmons J.A.”

“S.E. Pepall J.A.”

“Grant Huscroft J.A.”