Parsons v. Komer
Ontario Reports
Court of Appeal for Ontario
Gillese, Benotto and L.B. Roberts JJ.A.
May 23, 2017
138 O.R. (3d) 357 | 2017 ONCA 407
Case Summary
Administrative law — Duty to act fairly — Appellant appealing finding that he was incapable of consenting to treatment to Consent and Capacity Board — Board granting unrepresented appellant adjournment so that he could obtain counsel — Appellant appearing at rescheduled hearing without counsel and stating that he was prepared to represent himself — Board's policy guideline requiring it to hold mini-inquiry where unrepresented person refused to obtain legal representation — Appellant not refusing to obtain legal representation — Board not denying appellant procedural fairness by failing to hold mini-inquiry before proceeding with hearing.
The appellant was detained at the Waypoint Centre for Mental Health as a result of being found not criminally responsible for a criminal offence because of a mental disorder. The respondent doctor found him incapable of consenting to treatment. The appellant appealed that finding to the Consent and Capacity Board. The board granted the unrepresented appellant an adjournment so that he could obtain counsel. On the rescheduled hearing date, the appellant appeared without counsel. He explained that the patient's rights advisor had failed to file his application for legal aid or to contact a lawyer. When the chair asked him if he was prepared to represent himself, he said that he was, but expressed doubts as to whether he would succeed. The chair explained the hearing process. When the appellant was given an opportunity to question the respondent, he did not do so and instead made a long and incoherent speech. The board upheld the finding that he was incapable of consenting to treatment. The appellant appealed to the Superior Court, arguing that the board infringed his right to procedural fairness and failed to follow its policy guideline 2, which requires it to hold a mini-inquiry where an unrepresented person refuses to obtain legal representation. The appeal judge found that the appellant was not denied procedural fairness and affirmed the board's decision. The appellant appealed.
Held, the appeal should be dismissed.
Per Benotto J.A. (Gillese J.A. concurring): The board was not required to conduct a mini-inquiry as set out in policy guideline 2 because the appellant did not refuse to obtain legal representation. It was not necessary for the board to specifically ask whether the appellant was refusing to obtain legal representation because he clearly indicated that he was prepared to represent himself. The board did not deny the appellant procedural fairness.
Per L.B. Roberts J.A. (dissenting): The policy guideline required the board to ascertain by way of a mini-inquiry whether the appellant was refusing legal counsel, not simply whether he was prepared to go ahead without counsel, and if so, to determine whether the appellant was making an informed decision in refusing counsel. The board failed to follow the guideline in any meaningful way. The chair never asked the appellant whether he was refusing legal representation. It was plain and obvious that the appellant thought he had no choice but to go ahead without counsel. Even if the chair had correctly determined that it was initially appropriate to proceed without legal representation for the appellant, it became immediately obvious that the appellant was not in fact prepared and that he was completely incapable of representing himself. The board denied the appellant procedural fairness.
Cases Referred To
- Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, 2013 SCC 36
- Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
- Canada (Attorney General) v. Mavi, [2011] 2 S.C.R. 504, 2011 SCC 30
- Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, 2009 SCC 12
- Gligorevic v. McMaster, (2012), 109 O.R. (3d) 321, 2012 ONCA 115
- Hillier v. Milojevic, [2010] O.J. No. 3457, 2010 ONSC 4514
- Mission Institution v. Khela, [2014] 1 S.C.R. 502, 2014 SCC 24
- R. v. Samra, (1998), 41 O.R. (3d) 434
- Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32
- Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35
Statutes Referred To
Authorities Referred To
- Flood, Colleen M., and Lorne Sossin, eds., Administrative Law in Context, 2nd ed. (Toronto: Emond Montgomery Publications, 2013)
- Huscroft, G., "From Natural Justice to Fairness: Thresholds, Content, and the Role of Judicial Review" in C.M. Flood and L. Sossin, eds., Administrative Law in Context, 2nd ed. (Toronto: Emond Montgomery Publications, 2013)
- Macaulay, R.W. and J. Sprague, Practice and Procedure Before Administrative Tribunals, 5th ed. (Toronto: Carswell, 2016)
- Woolf, Rt. Hon. Lord, et al., De Smith's Judicial Review, 7th ed. (London: Sweet & Maxwell, 2013)
Appeal
APPEAL from the order of Vallee J., [2015] O.J. No. 4468, 2015 ONSC 5202 (S.C.J.) dismissing an appeal from the order of the Consent and Capacity Board dated March 12, 2015.
Thomas Whillier, for appellant.
James P. Thomson, for respondent.
Majority Opinion
BENOTTO J.A. (GILLESE J.A. concurring):
[1] The Consent and Capacity Board found Stephen Parsons incapable of consenting to treatment with antipsychotics and mood stabilizers. He argued on appeal to the Superior Court of Justice that the board had erred and also infringed his right to procedural fairness because the board failed to follow its own procedural guidelines. The appeal judge dismissed his appeal. Mr. Parsons again submits -- now before this court -- that the board did not follow its own guidelines and thus infringed his right to procedural fairness.
[2] I do not agree. The board's guidelines provide for a preliminary "mini-inquiry" when the subject of an application refuses to obtain legal representation. Mr. Parsons did not refuse to obtain legal representation. No further inquiry was necessary. Mr. Parsons was not denied legal representation and his rights to procedural fairness were not infringed.
A. Facts
(1) Background
[3] On November 30, 2013, Mr. Parsons was charged with possession of a weapon for a dangerous purpose. On January 16, 2015, he was found not criminally responsible due to a mental disorder. He was detained at the Waypoint Centre for Mental Health Care in Penetanguishene. On January 27, 2015, Dr. Komer found Mr. Parsons incapable of consenting to treatment. Mr. Parsons appealed the finding to the board.
(2) Attendances Before the Board
[4] A hearing before the board was scheduled for February 3, 2015. Mr. Parsons attended. He was self-represented. A patient's rights advisor suggested to Mr. Parsons that he request an adjournment to arrange for counsel. Mr. Parsons did so. The board chair asked him if he wanted to have counsel appointed for him. He said that he would prefer to obtain his own counsel. The hearing was adjourned for 15 days so that he could obtain counsel.
[5] On February 18, 2015, the hearing resumed. Mr. Parsons attended without a lawyer. The following exchange took place:
Chair: And I see that you don't have a lawyer with you . . .
Parsons: I . . .
Chair: . . . the last time you were before (sic) I granted you an adjournment so that you could retain a lawyer, so what's your intention today?
Parsons: I guess I'm going to have to continue with this. I talked to [the patient's rights advisor] and he filled out my legal aid application and he took the name down of the lawyer that I was to contact and he never filed the application or contacted the lawyer, so.
Chair: So are you prepared to represent yourself today?
Parsons: I am.
Chair: You seem prepared.
Parsons: To a point, yes I am actually prepared to represent myself, whether I'm actually going to succeed or even follow through in my efforts is unknown at this time.
Chair: Okay.
Parsons: But I'll try.
[6] The hearing proceeded. The chair explained the hearing process to Mr. Parsons: Dr. Komer would give evidence first, and then Mr. Parsons would have the chance to question him, as would the board; Mr. Parsons would then have an opportunity to give evidence and state what his position was. The board explained that the hearing would finish with final submissions from both Dr. Komer and Mr. Parsons, and that the board's decision would be sent by fax to the hospital the next morning.
[7] At the hearing, Dr. Komer testified that Mr. Parsons suffered from a major mental illness requiring treatment with antipsychotic medications. He stated:
[I]t's clear that Mr. Parsons does have an illness, a mental condition, he lacks insight into that condition, although he's someone that does have the capacity in a general sense to understand what treatment can do for some, could understand, in general, that someone might have a condition like himself, might be delusional, but he doesn't have the ability to apply that to himself.
[8] Dr. Komer also testified that Mr. Parsons did not want antipsychotic medications because they caused him dizziness, they had other side effects and he did not think he needed them.
[9] The chair invited Mr. Parsons to ask questions of Dr. Komer. Mr. Parsons did not ask a question, but instead made a long and incoherent speech. Once this was over, the chair asked Mr. Parsons whether he had any more questions, and Mr. Parsons replied, "[n]o, that's it, Your Honour". The chair proceeded to question Dr. Komer. She then asked Mr. Parsons whether he had any more questions for the doctor. Mr. Parsons said he did not, but that he wished to make a statement. He gave another long speech.
[10] The chair then asked Mr. Parsons some questions and gave both Dr. Komer and Mr. Parsons the opportunity to make final submissions. Ultimately, in its decision released March 12, 2015, the board upheld Dr. Komer's finding that Mr. Parsons was incapable of consenting to treatment.
(3) Appeal to the Superior Court
[11] On appeal to the Superior Court, Mr. Parsons argued the evidence was insufficient to support the finding of treatment incapacity and the board infringed his right to procedural fairness. The appeal judge -- relying on the evidence of Dr. Komer and on Mr. Parsons' conduct -- found that the board did not err in its finding of incapacity.
[12] The appeal judge then proceeded to consider Mr. Parson's submission that the board had denied him procedural fairness. Mr. Parsons submitted that, on February 18, 2015, he did not say that he did not want a lawyer and, further, the board failed to advise him that he could seek another adjournment to obtain counsel. He submitted that the chair should have conducted an inquiry in accordance with the board's own policy guideline. In the result, he was denied procedural fairness resulting in the board's loss of jurisdiction.
[13] The board's policy guideline 2, dated September 1, 2007, deals with a self-represented person before the board. It provides that the board should act in accordance with principles aimed at assisting the self-represented person throughout the hearing. Paragraph 4 of guideline 2 provides:
- The Board will strive to avoid adjournments as a general principle. When the subject of an application appears unrepresented, the panel of the Board hearing the application will decide whether or not to proceed without legal representation by conducting a preliminary mini-inquiry to establish:
(a) Whether the subject of the application refuses to obtain legal representation at the time of the hearing; and if so
(b) Whether the subject of the application has made an informed decision. The Board will not consider the objective wisdom of the choice once an informed choice has been made.
(c) Whether the subject of the application does not want legal representation because he or she does not want to pay the fees for legal representation. [In which case, reference is made to Legal Aid]; and
(d) Whether the subject of the application has already been granted adjournment(s) to obtain counsel.
[14] The appeal judge concluded that the chair did not specifically ask Mr. Parsons whether he was refusing to obtain legal representation; however, she noted [at para. 49] "that was not necessary because Mr. Parsons clearly indicated that he was prepared to represent himself". In the result, no further inquiry was necessary. It would only have been required if Mr. Parsons stated that he refused to obtain representation. Accordingly, the appeal judge dismissed the appeal.
B. Issues on Appeal
[15] The only issue on appeal is whether the board denied Mr. Parsons procedural fairness. Mr. Parsons submits before this court that the appeal judge erred in concluding that he was not denied procedural fairness. He argues that the board did not conduct a mini-inquiry in accordance with its policy guideline 2, and the board should have advised Mr. Parsons that another adjournment was possible and that counsel or amicus curiae could be arranged for him.
C. Analysis
[16] The parties agree that the standard of review with respect to procedural fairness is correctness. Assuming that the parties are correct in their view, the issue before this court is whether the appeal judge correctly concluded that board did not deny Mr. Parsons procedural fairness: Colleen M. Flood and Lorne Sossin, Administrative Law in Context, 2nd ed. (Toronto: Emond Montgomery Publications, 2013), at p. 181; see, also, Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, 2013 SCC 36, at paras. 45-46.
[17] The appeal judge reviewed the transcript from the board hearing and concluded that Mr. Parsons said that he was prepared to represent himself. This question was put to Mr. Parsons directly:
Chair: So are you prepared to represent yourself today?
Parsons: I am.
[18] The record demonstrates that Mr. Parsons was prepared to represent himself. I agree with the appeal judge that in the circumstances, it was not necessary for the board to specifically ask whether Mr. Parsons was refusing to obtain legal representation because he clearly indicated to the board that he was prepared to represent himself.
[19] The record does not suggest that Mr. Parsons refused to obtain legal representation. Refusing to obtain legal representation is a pre-condition to proceeding with the mini-inquiry set out in policy guideline 2, which states that
The Board will strive to avoid adjournments as a general principle. When the subject of an application appears unrepresented, the panel of the Board hearing the application will decide whether or not to proceed without legal representation by conducting a preliminary mini-inquiry to establish:
(a) Whether the subject of the application refuses to obtain legal representation at the time of the hearing; and if so . . .
(Emphasis added)
[20] The words "if so" make it clear that the panel of the board is only to proceed with the balance of the mini-inquiry if the subject refuses to obtain legal representation. As I have explained, Mr. Parsons did not refuse to obtain legal representation. It therefore follows that the board was not required to continue with the mini-inquiry.
[21] I note the appeal judge acknowledged that, but for the finding that Mr. Parsons did not "refuse to obtain legal counsel", a further inquiry would have been necessary. I would agree that this is the correct approach.
[22] It is also significant to recall the context in this case: one adjournment had already been granted. The board's guidelines require it to "strive to avoid adjournments as a general principle". Also, the board chair explained the hearing process to Mr. Parsons and afforded Mr. Parsons several opportunities to ask questions; and Mr. Parsons was able to question Dr. Komer and make submissions.
[23] Given these circumstances, I conclude that the board did not deny Mr. Parsons procedural fairness at the hearing on February 18, 2015.
D. Disposition
[24] For the reasons set out above, I would dismiss the appeal.
Dissenting Opinion
L.B. ROBERTS J.A. (dissenting):
A. Overview
[25] This appeal concerns the right to a fair hearing for individuals with serious mental health issues and who are among the most vulnerable members of our society, namely, the individuals who are the subjects of hearings before the Consent and Capacity Board of Ontario.
[26] The appellant submits that his right to procedural fairness was breached because he was denied legal representation at his hearing before the board.
[27] I agree. The board failed to follow its own guidelines and breached its duty of procedural fairness to the appellant.
[28] For the reasons that follow, I would allow the appeal.
B. Issues on Appeal
[29] The following issues arise on this appeal:
(1) Did the appeal judge err in her identification and application of the correct standard of review?
(2) Did the board breach its duty of procedural fairness to the appellant?
C. Analysis
(1) Did the Appeal Judge Identify and Apply the Correct Standard of Review of the Board's Decision?
[30] The appeal judge accepted the parties' agreement that the standard of review of the board's decision was reasonableness. As a result, the appeal judge held that, absent an error of law or a palpable and overriding error, she could not interfere with the board's decision.
[31] It is well established that the standard of review in relation to the board's weighing of the evidence and findings of fact is reasonableness, because of the board's expertise and advantaged position: Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32, at paras. 84-87. There is no dispute that the appeal judge identified and applied the correct standard in concluding that there was sufficient evidence before the board in support of its decision. That issue is not pursued on appeal.
[32] The parties submit on appeal that a standard of correctness should be applied to the question of whether the board breached the appellant's duty of procedural fairness.
[33] Historically, compliance with the duty of procedural fairness has been regarded as a jurisdictional question and, as such, a question that must be answered correctly: see G. Huscroft, "From Natural Justice to Fairness: Thresholds, Content, and the Role of Judicial Review" in C.M. Flood and L. Sossin, eds., Administrative Law in Context, 2nd ed. (Toronto: Emond Montgomery, 2013), at pp. 181-82; and Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, 2009 SCC 12, at para. 43. However, courts have sometimes given an administrative decision-maker a significant margin of deference in terms of the manner in which it has chosen to follow its own procedure, such that standards of correctness and deference are applied at the same time: Mission Institution v. Khela, [2014] 1 S.C.R. 502, 2014 SCC 24, at paras. 79 and 89.
[34] For the reasons that follow, I am of the view that it does not matter which standard of review is applied. Under either a correctness or reasonableness standard, the appeal judge erred and the board's decision should have been set aside.
(2) Did the Board Breach Its Duty of Procedural Fairness to the Appellant?
[35] The appellant submits that the board breached its duty of procedural fairness. He argues that he was denied a fair hearing because it proceeded without his representation by counsel, which he had previously requested and never refused.
[36] My analysis of this issue requires, first, a review of the general principles informing the scope of the board's duty of fairness and the appellant's right to a fair hearing. I will then apply these principles to the circumstances of the present case.
[37] The duty of fairness essentially includes both the right to be heard and the right to an impartial hearing: Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35, at para. 82. Beyond this, its content varies with the specific context. The Supreme Court of Canada set out a non-exhaustive list of contextual factors that bear on its content in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 21-28: (i) the nature of the decision being made and the process by which it is made; (ii) the nature of the statutory scheme and the role of the particular decision within it; (iii) the importance of the decision to those affected; (iv) the legitimate expectations of the person challenging the decision; and (v) the choices of procedure made by the agency itself.
[38] There is no dispute that the board owed the appellant a duty of procedural fairness. The fact that its decision would intimately affect the rights, privileges and interests of the appellant, specifically his capacity to refuse treatment, gives rise to a duty of fairness: Baker, at para. 20. As Major J. (writing for the majority) observed in Starson, at para. 75, the right to refuse medical treatment for mental illness is "fundamental to a person's dignity and autonomy".
[39] With respect to the appellant's legitimate expectations and the choices of procedure made by the board -- in particular, its decision to proceed in the absence of legal counsel for the appellant -- Baker is again instructive. In Baker, L'Heureux-Dubé J. wrote that if the affected party has a legitimate expectation that a certain procedure will be followed, that procedure will be required by the duty of fairness. This doctrine is "based on the principle that the circumstances affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure": para. 26.
[40] Proof of actual reliance on official representations as to procedure is not a requisite: Canada (Attorney General) v. Mavi (2011), 108 O.R. (3d) 240, [2011] 2 S.C.R. 504, 2011 SCC 30, at para. 68. In The Rt. Hon. Lord Woolf, et al., De Smith's Judicial Review, 7th ed. (London: Sweet & Maxwell, 2013), the authors state, at s. 12-001, that "[t]he protection of legitimate expectations is at the root of the constitutional principle of the rule of law, which requires regularity, predictability and certainty in government's dealings with the public".
[41] The expectations of a party such as the appellant to legal representation during board hearings are prescribed under s. 10 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which provides that parties to a proceeding before the board have the right to representation. The duty of the board to inquire into the question of legal representation, and the procedure to be followed by the board in determining whether to issue an order to arrange for the legal representation of the individual who is the subject of an application, are detailed in the board's policy guideline 2, dated September 1, 2007, which my colleague has already referenced. That the board is empowered to appoint legal counsel, even if a patient refuses legal counsel, underscores the crucial importance of the assistance of counsel at consent and capacity hearings.
[42] The fundamental need for the assistance of counsel for the vulnerable individuals who are the subjects of capacity hearings before the board was eloquently described by Cronk J.A. for this court in Gligorevic v. McMaster (2012), 109 O.R. (3d) 321, 2012 ONCA 115. In that case, this court held that ineffective assistance of counsel was available as a ground of appeal from a Board decision. While Gligorevic was not a procedural fairness case, in coming to this conclusion, Cronk J.A. made observations that are relevant to the present case and which demonstrate that the assistance of counsel is particularly important given the vulnerability of the patients before the board.
[43] Specifically, in Gligorevic, Cronk J.A. wrote for this court that, like a criminal proceeding where liberty is at risk, "a treatment capacity hearing implicates a patient's fundamental human rights. In a very real sense, an incapacity finding engages a patient's liberty, dignity and right of self-determination with respect to medical treatment" (para. 60). She held that a board capacity hearing "must be viewed as an adversarial, adjudicative proceeding where fundamental human rights are engaged" (para. 60). She went on to conclude that, when seen in this light, "effective assistance by counsel at such hearings enhances the adjudicative fairness of the process" (para. 61) because it ensures that the patient has the benefit of all available procedural protections.
[44] In circumstances similar to the present case, the court in Hillier v. Milojevic, [2010] O.J. No. 3457, 2010 ONSC 4514 (S.C.J.) concluded that the lack of legal representation resulted in a failure of procedural fairness, even though the patient in that case had refused counsel. As a result, an appeal was allowed from a board decision finding the patient incapable of managing property. Trotter J. (as he then was) held that without counsel, Mr. Bon Hillier had been denied procedural fairness as he had not been given a fair opportunity to meaningfully challenge the opinion of the physician, for reasons that are equally apt in the present case.
[45] Mr. Bon Hillier had refused counsel because he misunderstood that he would not be able to make personal representations. As in the present case, the board did not clear up his confusion. Trotter J.'s observations about Mr. Bon Hillier's inability to undertake any meaningful appeal without representation mirror the appellant's situation in the present case: he was "unfocused, verbose and grandiose", "disorganized in his approach", "easily thrown off of his train of thought, never to return to the issues he was struggling to pursue" (para. 49).
[46] Citing this court's decision in R. v. Samra (1998), 41 O.R. (3d) 434 (C.A.), Trotter J. held that even though Mr. Bon Hillier had refused his own legal counsel, the board should have canvassed the appointment of amicus counsel, who might have provided "some type of representation when there is none (and where it really is needed to achieve fairness)" (paras. 44-45). As in the present case, given the challenges which Mr. Bon Hillier faced (not least his lack of understanding of legal principles), although it might not have been apparent at the outset of the hearing, it should have become clear as the hearing progressed that "fairness could only be achieved with the involvement of counsel" (para. 47). Trotter J. concluded that all of this made it impossible for the patient to make submissions or to properly challenge his physician's opinion. I find that such is the case here.
[47] Applying these principles to the present case, as the appeal judge found, the board was required to act in accordance with its own guidelines. According to those guidelines, the appellant had a constitutional right to represent himself if he wished, regardless of whether or not he was likely to represent himself effectively. However, and most significantly for the present case, the guidelines also required the board to ascertain by way of a "preliminary mini-inquiry" whether the appellant was refusing legal counsel, not simply whether he was prepared to go ahead without counsel, and if so, to determine whether the appellant was making an informed decision in refusing counsel.
[48] Moreover, even if the appellant had made an informed choice to refuse counsel or indicated that he was prepared to proceed without counsel (as the appeal judge found), to ensure a fair hearing, the board was still obliged under its guidelines to, among other things, [at para. 40] "err on the side of providing more, rather than less, assistance to the unrepresented person" (emphasis in original), not only at the outset, but throughout the course of the hearing.
[49] That was the procedure that the board was required to follow and that the appellant had a reasonable expectation that the board would follow. The board's procedural guidelines serve to frame and define the reasonableness of the board's actions. In my view, the board failed in this case to follow them in any meaningful or reasonable way.
[50] I find that the board did not follow its own guidelines in several important respects. First, the chair never asked the appellant whether he was refusing to obtain legal representation, although the chair had a duty to do so in light of the appellant's previous attendance and his express request for counsel. It is plain and obvious from the appellant's exchange with the chair (see para. 5, above) that the appellant thought he had no choice but to go ahead without counsel. In response to the chair's question as to whether he intended to retain counsel, the appellant stated, "I guess I'm going to have to continue with this. I talked to Wade Stevenson and he filled out my legal aid application and he took the name down of the lawyer that I was to contact and he never filed the application or contacted the lawyer, so." The chair should have made inquiries to clear up this confusion and to ensure that the appellant was making a free and informed decision to proceed without counsel. Further, as the board similarly failed to do in Bon Hillier, the chair in the present case did not appear to consider whether, to ensure a fair hearing, amicus counsel should be appointed. Instead of making the inquiries required by the board's guidelines, the chair effectively encouraged the appellant to go ahead without counsel, telling him that he looked "prepared".
[51] Even if the chair had correctly determined that it was initially appropriate to proceed without legal representation for the appellant, it became immediately obvious that the appellant was not in fact prepared and that he was completely incapable of representing himself. For example, when invited to question the respondent, the appellant did not question him. Instead, he made lengthy, mostly incoherent, submissions concerning his objections to the respondent's diagnosis and prescription of treatment for the appellant. By the end of his submissions, the appellant became clearly irrational, making incomprehensible statements, such as: "Pardon my rather unorthodox expression, mam, but condition was a term on a dit on an itch [sic] which is a numbers game that I really don't want to enter into with you" (p. 10).
[52] The chair did not at any time try to focus the appellant's clearly unintelligible discourse, attempt to remind him of the procedure to be followed, or conduct a further inquiry into his ability to represent himself at the hearing. Rather, when the appellant had concluded speaking, even though he had not asked a single question, the chair simply asked him if he had any further questions for the respondent.
[53] As the respondent's counsel fairly conceded, the board's duty of fairness does not end after the initial mini-inquiry required under the guidelines but must continue throughout the hearing in order to ensure procedural fairness. The board's continuing obligation, as confirmed by the appeal judge, is reflected in the following guidelines, which I reproduce again here for ease of reference:
-- Instruct and assist the unrepresented person throughout the hearing while ensuring fairness to the other parties.
-- Accommodate the unrepresented person's lack of familiarity with the process while respecting the rights of other parties. The panel should err on the side of providing more, rather than less, assistance to the unrepresented person.
-- Ask the unrepresented person if he has any questions and encourage questions throughout the hearing.
[54] The board failed to follow its own guidelines and to satisfy its duty of fairness in this case.
[55] The appellant's serious deterioration and decompensation became patently obvious very quickly and worsened throughout the hearing. This should not have come as a surprise. The respondent testified that the appellant has schizophrenia, a major mental illness, which manifests itself in delusional and psychotic behaviour. The appellant described himself as "Frantic. Yeah, I'm a little frantic. I'm in an environment that I can't escape" (p. 9). It is clear that the stress of having to represent himself in a hearing of such importance exacerbated the appellant's already compromised ability to function.
[56] It was also clear, as the appellant himself stated, that he was incapable of organizing himself or representing himself. In the midst of the hearing, the appellant complained: "I am a little bit disorganized at this point in time because I've been given markers as pens, so I can't really write much down, I end up with a massive amount of paper, I can't type anything, can't print anything. I'm having issues with not being able to actually be organized or even have a way to actually get to anything that allows me to be slightly organized . . ." (p. 21).
[57] Upon hearing the appellant's complaint, and when the appellant failed to pose any questions to the respondent and later did not make responsive submissions but simply engaged in an incoherent rant, the chair should have intervened and conducted further inquiries to ascertain whether the appellant could continue the hearing without legal representation. Again, under its guidelines, the board is to "err on the side of providing more, rather than less, assistance to the unrepresented person". The chair's failure to provide such assistance resulted in procedural unfairness to the appellant.
[58] I recognize that the right to counsel is not absolute, in that an individual must be diligent in attempting to secure counsel. In some cases, after multiple adjournments, it has been found proper for a hearing to continue without counsel: see R.W. Macaulay and J. Sprague, Practice and Procedure before Administrative Tribunals, 5th ed. (Toronto: Carswell, 2016), at para. 12.27(a)(v). For these reasons, the board's guidelines allow it to proceed without legal representation for the individual who is the subject of the hearing. However, the board's discretion to proceed in such a fashion is tempered by the requirement that the inquiry described in the guidelines be otherwise followed.
[59] Importantly, the instant case was not one of an applicant abusing the board's process by requesting multiple hearings. This was only the appellant's second attendance before the board and he provided a legitimate excuse for his not yet having retained counsel. His lack of understanding of the process was obvious.
[60] At the first hearing, the appellant had clearly indicated his desire to have counsel of his own choice. He never wavered from that position. Given that he was an involuntary inpatient, he was clearly dependent on the patient advisor to arrange counsel on his behalf and, as he advised the board, this had not been done. His response to the chair to the effect that he might be prepared to proceed without counsel was not an informed choice but arose out of his confusion concerning his right to legal representation, which the chair did not clarify. It was also qualified by the appellant's own uncertainty, his "guess" as to whether he would be able to manage by himself and his indication that he was willing to "try".
[61] Moreover, as the court held in Bon Hillier, to ensure a fair hearing, legal representation for the appellant or amicus counsel was required so that the appellant could meaningfully challenge the opinion of the respondent. For example, there were the questions of the possible shifting of a diagnosis and the adverse effects of the proposed medication, which the appellant raised in the present case but was unable to pursue because of his deteriorating condition. These issues served in Starson to inform and legitimize Professor Starson's refusal to take prescribed medications and his capacity to make that decision. On that basis, the Supreme Court of Canada upheld the decision of the Superior Court of Justice, as confirmed by the Court of Appeal, to overturn the board's decision of incapacity.
[62] In the present case, the appellant's ability to meaningfully make such arguments was precluded by the chair's failure to ensure, in the manner set out in the board's guidelines, that the appellant's choice to represent himself was freely made and fully informed, and by the chair's failure to intervene in the course of the hearing when the appellant's condition clearly deteriorated. As a result, the appellant did not have a fair hearing.
[63] I acknowledge that it is not an easy task for chairs of the board to balance the need to run an efficient and expedient hearing with their overarching duty to ensure procedural fairness. There is good reason that adjournments are not readily granted, and whether the individuals who are the subjects of applications before the board have already been granted adjournments to obtain counsel is a factor to be considered pursuant to the guidelines. The capacity hearings before the board are designed to be brought and disposed of quickly for the benefit of the individuals who are the subjects of applications, including the appellant.
[64] However, in this case, the board erred by allowing hearing expediency and efficiency to override the appellant's fundamental right to a fair hearing.
D. Disposition
[65] For these reasons, I would allow the appeal and refer this matter to a new hearing, which should be expedited, before a different Consent and Capacity Board. Pending the disposition of this matter before another board, the certificate of the appellant's incapacity shall stand.
Result
Appeal dismissed.
End of Document