Court of Appeal for Ontario

Date: 20231213 Docket: COA-23-CV-0658

Rouleau, Benotto and Roberts JJ.A.

Parties

BETWEEN

J.J. Appellant (Appellant)

and

Dr. Cletus Okonkwo Respondent (Respondent)

Counsel

Matthew Stroh and Andrew L. Mercer, for the appellant Trevor Fisher and David Isaac, for the respondent

Heard

November 30, 2023

On appeal from the order of Justice Audrey P. Ramsay of the Superior Court of Justice, dated June 8, 2023.

Reasons for Decision

[1] The appellant has been involved in four hearings before the Consent and Capacity Board (“the Board”). After the last hearing, on October 5, 2022, the Board found that the appellant was incapable with respect to treatment under the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”) and confirmed his involuntary status at the Grand River Hospital (“the Hospital”) under the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”). His appeal was dismissed by the Superior Court. He appeals to this Court alleging that following the first three hearings that ended in his favour, his subsequent illegal detention and recertification was an abuse of process. According to the appellant, because of his illegal detention, all further evidence collected on his recertification was also illegal. As a result, the Board had no jurisdiction to hold a hearing or make any decisions regarding his capacity or involuntary status.

[2] These reasons explain why we dismiss the appeal.

[3] The overall context of these proceedings and particular circumstances of this case are very important to the result.

[4] The appellant has a history of serious mental health issues and, prior to the most recent admission in August 2022, had other involuntary hospital admissions – December 2020 and June 2021 when he was released on a community treatment order. In December 2021, the appellant successfully challenged the community treatment order, which was rescinded, and thereafter stopped taking his medication and discharged himself from psychiatric care. The appellant has a working diagnosis of chronic psychotic disorder, which he does not accept. He denies having any mental illness and has no insight into his need for medication and treatment, or that he had improved with treatment in the past. Other than when required under a community treatment order, the appellant has not always been compliant with taking medications. His mother requested the August 2022 admission because of her concern about his deteriorating mental condition, which caused him to stop eating and led him to break a window and hurt his hand.

[5] Since his August 2022 admission, the appellant has had four hearings before differently constituted panels of the Board to determine his capacity to consent to antipsychotic medication and to confirm his involuntary status at the Hospital. The September 1 and 12, 2022 hearing panels found that the Hospital did not meet its burden to demonstrate that the appellant was not capable to consent and did not confirm his involuntary status. The September 12 hearing panel indicated that there had been an incomplete capacity assessment and therefore no means to determine whether the appellant failed either branch of the test for capacity.

[6] Two days later, Dr. Okonkwo took over the appellant’s care. He found that there was new and significant evidence of the appellant’s continuing mental deterioration that had occurred since the last panel hearing on the merits on September 12, 2022. In particular, as also reflected in the Hospital record, including the opinions of two other psychiatrists who independently assessed the appellant, Dr. Okonkwo detailed the appellant’s threatening and aggressive behaviour towards staff and co-patients, including breaching personal space, stealing property, shoving and taking a swing at other co-patients, and aggressive intimidations towards staff. Dr. Okonkwo opined that, if left untreated, the appellant would deteriorate further and that reasonably foreseeable consequences of such deterioration could include an escalation of his behaviour towards himself and others, resulting in self-harm and neglect, potential for retaliation due to intrusiveness, property violence, and harm to others.

[7] The next hearing date was September 23, 2022. The hearing panel did not deal with the merits but determined that there had been an abuse of process because the Hospital restarted the certification process notwithstanding the previous decisions of the Board.

[8] The fourth hearing took place on October 4, 2022. The October 4, 2022 hearing panel accepted the evidence of Dr. Okonkwo. The panel concluded that this new evidence concerning the appellant had not been considered by a previous panel. The September 12, 2022 panel did not note that there had been any incidents. Nor had previous panels considered the “Box B” ground of substantial mental deterioration under s. 20(1.1) of the MHA. The panel also concluded that Dr. Okonkwo’s commencement of the certification process was not an abuse of process in the unusual circumstances of this case. Rather, it reflected his grave concern for the appellant’s deteriorating condition, was designed to ensure procedural fairness, and “had been done thoughtfully and fairly” in an exigent situation where he was unable to obtain legal advice about other procedural options. The panel considered but declined to give effect to the appellant’s submissions that the issues of capacity and involuntary status were res judicata based on the previous panels’ decisions. The panel concluded that the recent certification process under review was not an abuse of process.

[9] The appeal judge dismissed the appellant’s appeal from the October 5, 2022 decisions, finding no error in the panel’s findings of fact or analysis and that there was ample support for the panel determining that the appellant was incapable for treatment with anti-psychotic medication and confirming his involuntary status. She determined that the panel made no error in declining to exercise its jurisdiction not to confirm the appellant’s involuntary status because of the allegations of abuse of process and res judicata, concluding that “this was a challenging case, and it was open to the Board to determine whether there had been an improper and tortious use of the process to obtain a result that is ‘unlawful’ or ‘beyond the process’s scope’”. She noted that: “It was only at the fourth hearing that the Board, with a more complete record, was able to consider whether the respondent had discharged the onus of rebutting the presumption of capacity”.

[10] On this appeal, the appellant does not contest the October 4, 2022 panel’s factual findings undergirding its decisions that he was incapable to consent to treatment with antipsychotic medication and that he met the criteria for involuntary status. His appeal is limited to the aspect of the appeal judge’s decision addressing the Board’s exercise of its discretion under s. 41(2) of the MHA. Section 41(2) of the MHA reads as follows: “The Board by order may confirm the patient’s status as an involuntary patient if the Board determines that the prerequisites set out in this Act for admission as an involuntary patient were met at the time of the hearing of the application” (emphasis added).

[11] The appellant submits the appeal judge erred in law in concluding that the Board had properly exercised its discretion under s. 41(2) of the MHA by confirming his involuntary status when he had been subject to an abuse of process by the recommencement of the certification process in light of the previous Board decisions of September 1, 12, and 23, 2022. He submits that, once the September 1 hearing panel concluded that the Hospital had not met its burden and rescinded his involuntary status, as there were no new circumstances relevant to his capacity or involuntary status, he should have been immediately released and the Hospital and the Board had no further right to consider his case.

[12] We do not agree.

[13] As the appeal judge rightly noted, in the context of an administrative proceeding, abuse of process is a question of procedural fairness. It is a broad concept that applies in various contexts and is characterized by its flexibility. See Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 34, 38. The content of procedural fairness is to be decided in the specific context of each case, having regard to all the circumstances: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at pp. 682-83.

[14] The abuse of process found by the September 23, 2022, panel did not continue into and taint the October 4, 2022, hearing on the merits. Nor were the issues of capacity and involuntary status rendered res judicata by the findings of the September 1 and 12 hearing panels. This is because, as noted by the October 4 hearing panel and the appeal judge, the new evidence and the “Box B” criteria were not considered previously, nor had there been a full consideration of the merits since the September 12 hearing.

[15] The October 4, 2022, hearing panel and appeal judge carefully reviewed the specific context of this case. As they concluded, the specific context of this case serves to distinguish the circumstances that resulted in the abuse of process finding on September 23, 2022, from those present at the October 4, 2022 hearing on the merits. These circumstances include, importantly, the new and recent evidence of the appellant’s serious and ongoing deterioration that resulted in escalating aggressive and threatening behaviour. Moreover, previous panels had not considered the “Box B” criteria of substantial mental deterioration. The new evidence of the appellant’s seriously deteriorating state was not available to be considered by the September 1 and 12 hearing panels and was not considered by the September 23 hearing panel that focused only on the abuse of process question.

[16] Further, Dr. Okonkwo’s sincere concern about the appellant’s deteriorating condition, and the propriety of the steps taken to ensure procedural fairness, further separate the previous panel decisions from the October 5, 2022 decisions, and undermine any suggestion of abuse of process. Dr. Okonkwo was in a position where he had to balance his obligations to his patient and to the public safety, with the appellant’s claim that he was entitled to be discharged. Given the timing of the Board’s September 23 reasons, Dr. Okonkwo tried but could not obtain timely legal advice, nor could he take any steps other than certification. We note that the appellant did not complain about nor characterize as illegal Dr. Okonkwo’s actions before the October 4 Board or the appeal judge. The appellant’s counsel acknowledged that Dr. Okonkwo did the best he could in these difficult circumstances. Rather, the appellant argued that the previous abuse of process finding tainted Dr. Okonkwo’s certification.

[17] In the face of the appellant’s severely deteriorated mental state, Dr. Okonkwo properly exercised his duty as attending physician and restarted the certification process. We see no error in the Board’s and appeal judge’s conclusions that Dr. Okonkwo’s actions, in the difficult and emerging circumstances of this case, did not amount to an abuse of process.

[18] In consequence, the appeal judge made no error in concluding that it was open to the Board to decline to exercise its jurisdiction in the circumstances of this case and to confirm the appellant’s involuntary status. There is no basis warranting appellate intervention.

Disposition

[19] Accordingly, the appeal is dismissed.

“Paul Rouleau J.A.”

“M.L. Benotto J.A.”

“L.B. Roberts J.A.”