COURT OF APPEAL FOR ONTARIO DATE: 20240205 DOCKET: C70865

Benotto, Roberts and Sossin JJ.A.

BETWEEN

B.V.

Appellant (Appellant)

and

Dr. Matthew Knox

Respondent (Respondent)

B.V., acting in person Nicole Fielding, for the respondent Mercedes Perez, appearing as amicus curiae

Heard: February 2, 2024

On appeal from the order of Justice Frederick L. Myers of the Superior Court of Justice, dated June 30, 2022, with reasons reported at 2022 ONSC 3907.

REASONS FOR DECISION

[1] B.V. appeals the order of the Superior Court, which upheld the decision of the Consent and Capacity Board (the “Board”), which in turn upheld B.V.’s physician’s conclusion that she is incapable of consenting to treatment for antipsychotic medications and should be held under involuntary status.

BACKGROUND

[2] On February 27, 2021, the appellant was brought to the Centre for Addiction and Mental Health by police. She was assessed in the psychiatric emergency unit and then involuntarily detained. While in the hospital, her health practitioner, Dr. Tamara Milovic, made a finding that B.V. was incapable of consenting to treatment for mental disorder. Dr. Matthew Knox was subsequently her attending psychiatrist.

[3] The appellant applied to the Board to review her involuntary status and the finding of incapacity to consent to treatment. The hearing before the Board culminated on May 11, 2021.

(1) Board Hearing

[4] B.V. attended the Board hearing by videoconference. During the hearing she had a lawyer present, D’Arcy Hiltz. B.V. described their relationship as “co-representatives.”

[5] Dr. Knox opined that the appellant was able to understand her diagnoses, symptoms of the disorder, and treatments she had taken in the past. He testified that she was not able to appreciate the symptoms she was currently experiencing and the reasonably foreseeable consequences of accepting or refusing the proposed treatment. He confirmed that the appellant denied currently suffering from symptoms of schizoaffective disorder and denied ever having experienced benefits of antipsychotics.

[6] The appellant submitted that she believes that the medications are harmful, and that one medication in particular caused her to consider committing suicide on two occasions.

[7] Throughout the hearing, B.V. spoke up and interrupted frequently. The Chair of the Board told the appellant that if she was not willing to remain quiet when it was not her turn to speak, the hearing would proceed with her on mute. She continued to interrupt and was then placed on mute. Mr. Hiltz advised the Board that he had not been given instructions to proceed with representing B.V. while she was muted.

[8] The Chair asked Mr. Hiltz to act as amicus. He declined to do so but recommended that a different lawyer be appointed as amicus. B.V. was unmuted and made numerous comments, including that she wished to represent herself. She expressed concerns about Mr. Hiltz’s competence. Mr. Hiltz again flagged the need for an amicus in circumstances where the appellant appeared to have lost confidence in him and had instructed him not to proceed while she was muted.

[9] The Board decided to conduct the hearing with B.V. self-representing and muted when she was not testifying, cross-examining, or making submissions. Mr. Hiltz stayed in the event he could be of assistance as counsel. He met privately with B.V. but played no other active role.

[10] B.V. continued to speak throughout the hearing even while muted. She held up written commentary at times. She was only unmuted at the discretion of the panel, including to cross-examine Dr. Knox and make submissions. The hearing lasted seven days.

[11] The Board agreed with Dr. Knox’s findings that the appellant is not capable of consenting with respect to treatment with antipsychotic medications and that the requirements of involuntary admission were satisfied.

(2) Appeal to the Superior Court

[12] B.V. appealed. She represented herself, and the court was assisted by amicus curiae.

[13] Myers J. determined that there was no reviewable error in the Board’s determination of May 11, 2021, and dismissed the appeal. He found that the Board had applied the correct legal principles and that there was sufficient evidence to conclude that B.V. suffered from a mental disorder and failed to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment. Myers J. acknowledged that the Board found that the appellant was unable to see the possible benefits of antipsychotic treatment. He further determined that there was “no failure of the Board to ensure that a self-represented party understood the process, was able to present her case, or respond to the other side’s case.”

(3) Appeal to this court

[14] In accordance with the order of Zarnett J.A., B.V. was given leave to file a factum of more than 30 pages. In fact, she has filed two factums, each approximately 75 pages. Pardu J.A. appointed Mercedes Perez as amicus to assist the court.

[15] The issue on appeal is whether the appellant was denied procedural fairness before the Board. Specifically, whether the Board should have appointed amicus in order to protect fairness and whether the failure to do so denied B.V. procedural fairness.

[16] During the appeal hearing, B.V. refused to stop talking during submissions and in reply. She continued talking even after the court had adjourned.

ANALYSIS

[17] When reviewing a Superior Court decision on appeal from the Board, this court steps into the shoes of the Superior Court. Questions of law are reviewed on a correctness standard; questions of mixed fact and law are entitled to deference.

[18] The Board applied the correct test for capacity to consent to treatment. The Board has the discretion to direct the form of the hearing and limit both evidence and submissions to provide a fair, just, and expeditious hearing. The hearing had already been adjourned six times, and the Board made the discretionary decision to continue without a further adjournment to appoint amicus.

[19] The proceedings were not unfair. The Board outlined the procedure for B.V. She had access to counsel throughout the hearing. With Mr. Hiltz present, she was allowed equal time to provide evidence, cross-examine, and make submissions. Mr. Hiltz was asked if he wished to make submissions. All three panel members asked questions. The appellant was reminded multiple times to focus on the issues before the Board. She was warned that if she did not stop interrupting the proceedings, she would be placed on mute.

[20] The appointment of amicus is meant to assist the Board, and the decision to appoint amicus is discretionary. The Board was not required to appoint amicus, and there was no unfairness in declining to do so. There is also no evidence that the decision would have been different had amicus been appointed. Mr. Hiltz was present even after being discharged by B.V. She had access to his assistance throughout the hearing including while cross-examining Dr. Knox and making submissions. There is a presumption of capacity to retain and instruct counsel and B.V. wanted to represent herself.

[21] We see no error in the Board’s decision to proceed without amicus. Nor do we see any error in the determination as to capacity.

[22] The appeal is dismissed.

“M.L. Benotto J.A.”

“L.B. Roberts J.A.”

“L. Sossin J.A.”