Court File and Parties

Court of Appeal for Ontario Date: 20240524 Docket: COA-22-CV-0455

Fairburn A.C.J.O., Roberts and Trotter JJ.A.

Between

Delores Grey Appellant (Appellant)

and

Dr. Serge Leblanc Respondent (Respondent)

Counsel: Delores Grey, acting in person Nicole Fielding, for the respondent Lisa Leinveer, appearing as amicus curiae

Heard: May 14, 2024

On appeal from the order of Justice Frederick L. Myers of the Superior Court of Justice, dated November 21, 2022, with reasons reported at 2022 ONSC 6538.

Reasons for Decision

[1] The appellant challenges the appeal judge’s dismissal of her appeal from the September 10, 2020 decision of the Consent and Capacity Board (“the Board”) on the basis that her appeal was moot.

[2] The appellant has a long history of mental illness and hospital admissions, both voluntary and involuntary. The involuntary admission that is the subject of this appeal occurred on August 20, 2020, when the appellant was brought to and admitted as an involuntary patient at the Centre for Addiction and Mental Health (“CAMH”). On September 4, 2020, the respondent issued a Form 4 (Certificate of Renewal) to renew the appellant’s involuntary status certificate, relying on both Box A and Box B criteria under s. 20 of the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”). The Board confirmed the respondent’s decision to hold the appellant as an involuntary patient at CAMH. On September 23, 2020, CAMH discharged the appellant.

[3] Amicus curiae concedes that the appeal is moot but submits that the appeal judge erred in not exercising his discretion to hear the appeal. Amicus argues that the legitimacy of the appeal process requires the appeal to be heard. If appeals are not heard after appellants have been discharged, amicus submits that the appeal right becomes illusory and procedural fairness could be undermined. Further, she contends that the treatment administered to the appellant and whether the appellant experienced clinical improvement during her involuntary admission can be considered in the future as part of the Box B criteria under s. 20 (1.1) (a) and (b) of the MHA. Finally, she submits that appellate guidance would be welcome on the evidentiary thresholds related to the Box B criteria. The appellant also made submissions that the Board’s determination is relevant to her future courses of treatment because her involuntary admission is tied to a diagnosis of schizoaffective disorder that she disputes.

[4] We also see this appeal as moot and decline to hear the appeal for the reasons expressed by the appeal judge.

[5] A court will generally decline to exercise its discretion to hear an appeal where there is no live controversy between the parties unless the court decides there is good reason to do so: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. Recently, this court declined to hear appeals from the Board’s decisions because there was no live controversy between the parties and no special circumstances warranting the exercise of the court’s discretion to hear the appeal or practical effect of the Board’s decision on the appellant’s rights: see Adsett v. Labelle, 2024 ONCA 366; Kozoubenko v. Gosk, 2023 ONCA 802.

[6] That is the case here. There is no live controversy. The certificate of involuntary admission has expired, and the appellant is no longer detained at CAMH: see e.g., E.S. v. Joannou, 2017 ONCA 655, at para. 35. There are no outstanding proceedings involving the parties or the Board.

[7] Moreover, we see no prejudice to the appellant if her appeal is not heard, nor any impact on her future rights. If it ever arises in the future, the question of involuntary status will have to be decided afresh on the basis of new evidence at the time of the admission: Elder v. Klukach, 2017 ONSC 2637, at paras. 6-7. Further, a successful appeal from the Board’s confirmation of the appellant’s most recent involuntary admission would not eradicate her historical medical record of treatments and diagnoses. We also agree with the appeal judge’s observation that “[i]f a future board is called upon to make findings about the appellant’s past treatments, the appellant will have all the same arguments available to her about the sufficiency and quality of the evidence on which that future board may act.”

[8] We do not accept amicus’s submission that appeals from the Board’s decisions are evasive of review. The case law does not reflect amicus’s concern that the denial of the right of appeal upon discharge renders the right of appeal empty in all but the lengthiest admissions. For example, in E.S., this court decided to hear the appeal because of the constitutional issues raised in that case, notwithstanding that it was moot as a result of the appellant’s discharge. Rather, all appeals are subject to review by the Superior Court of Justice and then by this court. Determining whether an appeal will be heard notwithstanding that it is moot requires the reviewing court to assess whether its discretion should be exercised given the particular circumstances of the case.

[9] Nor are we persuaded that discharges could or would be strategically used to avoid the appeal process. Any such an abuse of process would be subject to appellate review. We see no evidence of any such abuse of process in this case or systemic problems that warrant appellate intervention in an otherwise moot appeal.

[10] Finally, we do not agree that this court should hear the appeal on the basis that appellate guidance is needed on the interpretation of the Box B criteria. This case raises no novel issue and amicus has not taken us to any conflicts in the existing case law that require clarification.

[11] The appeal is therefore dismissed on the basis that it is moot.

[12] No costs were requested. We order that there be no costs of the appeal.

“Fairburn A.C.J.O.” “L.B. Roberts J.A.” “Gary Trotter J.A.”