Court of Appeal for Ontario
Date: 2024-03-20
Docket: COA-24-CV-0373
Coram: Paciocco, Favreau and Wilson JJ.A.
Between:
Douglas Naus, Appellant
and
Dr. Laura Kennedy, Respondent
Appearances:
Anita Szigeti, for the appellant
Sarah Rosales Zelaya and John McIntyre, for the respondent
Heard: November 15, 2024
On appeal from the order of Justice William S. Chalmers of the Superior Court of Justice, dated February 22, 2024.
Favreau J.A.:
A. Overview
[1] The appellant, Douglas Naus, appeals from an order of the Superior Court of Justice confirming a decision of the Consent and Capacity Board (the “Board”) that he is incapable of consenting to treatment and that he should be subject to a community treatment order requiring him to take antipsychotic medication.
[2] At the beginning of the appeal, the parties made submissions on whether the appeal is moot given that Mr. Naus is no longer receiving treatment with antipsychotic medication and that the community treatment order has lapsed. After hearing submissions, the court advised the parties that we would not hear the appeal from the finding of incapacity, but that we would hear the appeal from the community treatment order.
[3] The appeal from the community treatment order turns on the correct interpretation of s. 15(1.1) of the Mental Health Act, R.S.O. 1990, c. M.7, which sets out some of the preconditions for making such an order. Community treatment orders are meant to allow people with serious mental health disorders who are found incapable of consenting to treatment and who have a pattern of ceasing treatment when discharged from the hospital to nevertheless live in the community. The legislative regime that applies to community treatment orders includes many safeguards to ensure that “these provisions can only be invoked following a highly individualized assessment and consideration of the patient’s specific condition and treatment needs”: Thompson v. Ontario (Attorney General), 2016 ONCA 676, para 46. As part of these safeguards, ss. 15(1.1)(a), (b) and (c) require that the person has “previously received treatment” and “has shown clinical improvement as a result of the treatment”, and that the person is suffering from “the same mental disorder as the one for which he or she previously received treatment”, or a similar one. The issue on this appeal is whether the treatment showing improvement can occur during the hospitalization leading to the community treatment order, as the Board and the appeal judge found, or whether it has to have occurred during a prior hospitalization.
[4] I am satisfied that the Board and the appeal judge erred in their interpretation. Their interpretation is inconsistent with the plain language of the statute and intent of the legislature.
[5] I would therefore dismiss Mr. Naus’s appeal from the finding of incapacity as moot and allow his appeal from the community treatment order.
B. Background
(1) Circumstances leading to the community treatment order
[6] Mr. Naus was a high functioning and gifted student. He completed a nursing degree. In 2019, when he was 25 years old, he lived with his family, who noticed a functional decline.
[7] His first hospital admission was at Sunnybrook in February 2020, because he was showing delusional beliefs related to religious pre-occupation and disorganized behaviour. His condition improved without treatment and he was discharged.
[8] After his discharge from Sunnybrook, Mr. Naus continued to experience psychotic symptoms and was hospitalized several times. He was admitted to Centenary Hospital from July 30 to August 25, 2022, and from October 6 to November 21, 2022. He was also at Scarborough Birchmount Hospital from April 17 to May 30, 2023, where he was treated with antipsychotic medication for 18 days but no improvement was noted.
[9] On June 19, 2023, Mr. Naus was admitted to the Centre for Addiction and Mental Health (CAMH). At that time, Mr. Naus had not eaten for seven days and was drinking minimally. When he was admitted, he was assessed as having a psychotic disorder and as meeting the diagnostic criteria for catatonia.
[10] Upon his admission to CAMH, Mr. Naus was initially treated with Lorazepam, which is a benzodiazepine used to treat his catatonia. On June 22, 2023, he was found to be incapable of consenting to antipsychotic medication. Starting on June 28, he was treated with Aripiprazole, which is an antipsychotic.
[11] On June 29, 2023, one of Mr. Naus’s treating psychiatrists noted “significant clinical improvement” from the treatment. On July 6, 2023, the assessment plan for Mr. Naus was to taper the Lorazepam because his catatonia had improved. At that time, Mr. Naus’s doctors were still waiting for a response to the antipsychotic medication. On August 8, 2023, one of Mr. Naus’s psychiatrists noted that he was showing clinical improvement because he was eating and drinking, was less rigid in his thinking about fasting, and his thought process was more organized.
[12] On August 3, 2023, a psychiatrist at CAMH conducted an assessment of Mr. Naus for the purpose of issuing a community treatment order. The assessor concluded that Mr. Naus was incapable of consenting to antipsychotic medication and was incapable of consenting to the terms of a community treatment plan because he was unable to appreciate the reasonably foreseeable consequences of a decision with respect to treatment.
[13] CAMH issued a community treatment order on August 25, 2023. The respondent, Dr. Laura Kennedy, was named as the supervising physician. Mr. Naus’s mother was his substitute decision-maker.
[14] Mr. Naus was discharged from CAMH on August 28, 2023. At that time, his diagnosis was schizophrenia.
(2) Decision of the Consent and Capacity Board
[15] Mr. Naus applied to the Board to challenge both the finding that he was incapable of consenting to treatment and the community treatment order.
[16] In advance of the hearing, and in accordance with the Board’s Rules of Practice, Mr. Naus’s lawyer gave notice that he intended to bring a preliminary motion to have the community treatment order revoked because Mr. Naus did not meet the “Box B” criteria.[^1] The Board did not hear this issue as a preliminary motion but instead considered the evidence and arguments regarding this issue as part of the hearing on the merits.
[17] The witnesses at the hearing were Mr. Naus, his mother and Dr. Kennedy. When asked whether Mr. Naus’s condition had improved with the use of antipsychotic medication, his mother testified that she did not know how to answer the question because she was not a medical professional. However, Mr. Naus had resumed eating and drinking, and he was talking to his family. Dr. Kennedy testified that Mr. Naus had shown improvement once he started taking antipsychotic medication at CAMH. Mr. Naus testified that he did not believe that he had schizophrenia and he did not believe the antipsychotic medication helped him.
[18] The Board released its decision on September 15, 2023. The Board found that Mr. Naus was incapable with respect to treatment for antipsychotic medication. The Board also confirmed the community treatment order, finding that Mr. Naus was suffering from a mental disorder requiring continuing treatment in the community, and that without the community treatment order Mr. Naus would likely suffer substantial mental deterioration.
[19] In its decision, the Board dealt with the threshold issue raised by Mr. Naus as to whether he met the “Box B” criteria for a community treatment order and specifically whether he had “previously received treatment for mental disorder of an ongoing nature” and whether he had “shown clinical improvement as a result of the treatment”. Relying on the Board’s previous decision in V.M. (Re), Mr. Naus argued that “previous treatment” could not include treatment received within the same hospitalization but was meant to refer to treatment received on a previous hospitalization. The Board rejected this argument, reasoning as follows:
The Board did not consider VM to be persuasive. The duration of hospitalization was shorter than one month and the mental disorder in VM was not “similar to the previous one”. No objection was raised in this matter regarding the lack of similarity in previous admissions, specifically the Birchmount hospitalization in April-May 2023 where the presentation in both visits were similar if not the same.
Further, the Board found that there were in fact two treatments: the antipsychotic medication commenced in June and the issuance of the CTO [community treatment order] in August. The CTO was found to be a separate treatment apart from antipsychotic medication. The definition of “treatment” in the HCCA [Health Care Consent Act] reads “anything that is done for a therapeutic, preventative, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan…”. Two distinct treatments occurred while at CAMH and while both contemplated use of antipsychotic medication, the CTP/CTO were issued months after treatment began. [Mr. Naus] was previously treated and demonstrated improvement and then was treated with the CTP.
(3) Decision of the Superior Court
[20] Mr. Naus appealed the Board’s decision to the Superior Court. On appeal, he challenged the Board’s finding that he was incapable of consenting to treatment with antipsychotic medication. He also challenged the Board’s decision to uphold the community treatment order.
[21] The appeal judge dismissed the appeal. He held that the Board did not err in finding that Mr. Naus was incapable with respect to treatment with antipsychotic medication. He further held that the Board did not err in upholding the community treatment order.
[22] Before the appeal judge, Mr. Naus renewed his argument that the preconditions for a community treatment order were not met because, prior to his admission at CAMH, he had never been successfully treated with antipsychotic medication. In his decision, the appeal judge rejected the interpretation proposed by Mr. Naus, and held that the correct interpretation was instead as follows:
Criteria (a) and (c) refer to previous treatment. Criteria (b) does not have a temporal requirement and does not refer to a previous hospitalization or treatment. It simply provides that the patient has shown clinical improvement with treatment. If the intention of the legislature was to require the improvement to have been during the previous hospitalizations, the word “previous” would have been used in (b) as it was in (a) and (c).
[23] The appeal judge further explained that this interpretation was consistent with the intention of the legislature, which was to address the “revolving door” problem:
The purpose of the legislation as described in Thompson, is to remedy the “revolving door” problem of persons who are in and out of hospital for the same or similar mental disorder. It is my view that the [Board]’s interpretation that the “clinical improvement” criteria is met if there is improvement during the current hospitalization, is consistent with this purpose. It would require a person who has had multiple hospitalizations for an ongoing and recurring condition to continue with treatment that has resulted in clinical improvement. This would reduce the likelihood that the “revolving door” cycle of multiple hospitalizations will continue.
(4) Mr. Naus’s current status[^2]
[24] The appeal judge released his decision on February 22, 2024. Just prior to that, on February 20, 2024, Mr. Naus’s mother, who was his substitute decision-maker, withdrew her consent to the community treatment plan. In any event, the community treatment order was set to expire on February 24, 2024.
[25] At that time, Mr. Naus was receiving services as an outpatient from CAMH. He was no longer being treated with antipsychotic medication as of December 27, 2023, and he stopped receiving any services from CAMH as of June 18, 2024.
C. The Appeal is Moot
[26] The first issue to decide is whether the appeal is moot and, even if it is, whether the court should nevertheless decide the issues on appeal.
[27] Dr. Kennedy argues that the appeal is moot because the finding of incapacity is no longer effective and the community treatment order was no longer in place by the time the appeal was heard.
[28] Mr. Naus argues that the community treatment order and finding of incapacity are not moot and that, in any event, this appeal raises a significant matter of statutory interpretation that should be resolved by this court.
[29] In addressing the issue of mootness, the court must first consider whether there is still a live controversy between the parties which affects or may affect the parties’ rights. If there is no live controversy, the court must consider whether it should nevertheless exercise its discretion to hear the appeal: Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353. I address both issues in turn below.
(1) The appeal is moot
[30] I agree with Dr. Kennedy that the appeal is moot with respect to both the finding of incapacity and the community treatment order.
[31] The finding of incapacity is moot because Mr. Naus is no longer being treated with antipsychotic medication and a new finding of incapacity specific to new treatment would have to be made before Mr. Naus can be treated again without his consent. As this court explained in Kozoubenko v. Gosk, 2023 ONCA 802, para 22, “a person’s capacity to consent to treatment is time and treatment specific. The [Health Care Consent Act] provides for a presumption of capacity and recognizes that capacity is assessed with respect to a particular treatment and may fluctuate over time: ss. 4(2) and 15.” Accordingly, Mr. Naus is now presumed capable, and “whether he has or lacks capacity to consent to any proposed treatment will have to be assessed at the time the treatment is recommended”: Kozoubenko, at para. 22.
[32] The community treatment order is also moot because it has not been in effect since February of 2024. An appeal from the community treatment order will have no practical effect on Mr. Naus’s treatment: Dickey v. Alexander, 2016 ONCA 961, para 8; A.N. v. Guimond, 2020 ONSC 6751, para 14; Capano v. Geagea, 2017 ONSC 2983, para 49; Carty v. Levy, 2015 ONSC 2200, paras 44 and 52.
(2) The court should exercise its discretion to decide the appeal from the community treatment order
[33] In order to decide whether to hear a moot appeal, the court is to consider 1) whether there remains an adversarial context, 2) concerns over judicial economy and 3) the court’s adjudicative role: Borowski, at pp. 358-63. The court is to consider the extent to which all three rationales are present. This is not meant to be a mechanical process.
[34] I see no basis for deciding the issue of Mr. Naus’s capacity in the context of this appeal. I accept that there remains an adversarial context between the parties because the record from the proceedings below is complete and the matter was fully briefed before our court. However, the finding of incapacity does not raise any issues of broader importance and there is no utility in deciding whether the Board or the appeal judge erred in finding that Mr. Naus was incapable of consenting to treatment with antipsychotic medication at the relevant time. This was a decision based on his particular circumstances at that time. It would be a waste of judicial resources for the court to decide this academic issue now.
[35] However, I agree with Mr. Naus that this court should exercise its discretion to hear the appeal from the community treatment order. As mentioned, there remains an adversarial context. In addition, the appeal from the community treatment order raises an important issue regarding how s. 15(1.1) of the Mental Health Act is applied in the context of community treatment orders: specifically, whether successful treatment prior to a current hospitalization is required before the Board can make a community treatment order or whether successful treatment during the hospitalization is sufficient. Notably, it appears that the Board’s own jurisprudence is inconsistent on this issue: see, for example, V.M. (Re), at pp. 12-13, holding that treatment received on a first hospital admission leading up to the hearing was not “previous treatment”, in contrast with L.B. (Re), at p. 14, and H.S. (Re), at p. 9, both holding that “previously” could refer to treatment that occurred during the current hospitalization. In A.P. (Re), at p. 14, the Board registered the inconsistency and noted that “[t]his question has not been definitively settled in a court of law.” This issue is elusive of review because community treatment orders are only valid for a period of six months: s. 33.1(11) of the Mental Health Act. As this case illustrates, it would be exceptional for an appeal to reach this court within that time period.
[36] Accordingly, I am satisfied that the court should exercise its discretion to decide Mr. Naus’s appeal from the community treatment order.
D. The Board and the Appeal Judge Erred in Upholding the Community Treatment Order
[37] The only issue on appeal is whether the Board and the Superior Court erred in upholding the imposition of a community treatment order. This issue turns on the interpretation of ss. 15(1.1) (a), (b) and (c) of the Mental Health Act, and whether the treatment that “has shown clinical improvement” must have occurred on a prior hospitalization or can refer to treatment given during the hospitalization at the end of which the community treatment order is made.
[38] This is a matter of statutory interpretation and is therefore a question of law. The issue is accordingly to be decided on a correctness standard of review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para 37; B.L. v. Pytyck, 2021 ONCA 67, para 22.
[39] Mr. Naus argues that both the Board and the appeal judge’s interpretation of ss. 15(1.1) (a), (b) and (c) of the Mental Health Act are inconsistent with the plain wording of the provisions and with the purpose of community treatment orders. Dr. Kennedy submits that the Board and the appeal judge made no errors.
[40] I agree with Mr. Naus.
[41] I start with a review of the statutory regime that allows for the making of community treatment orders. I next address the errors made by the Board and the appeal judge, followed by a discussion of the correct interpretation of the relevant provisions.
(1) Statutory regime allowing for community treatment orders
[42] The statutory provisions at issue in this case are found in s. 15(1.1) of the Mental Health Act. However, it is helpful to understand those provisions in the context of the community treatment order regime as a whole.
[43] This court explained the broader context for community treatment orders in Thompson. In 2000, Ontario introduced Brian’s Law (Mental Health Legislative Reform), 2000, S.O. 2000, c. 9. Brian’s Law expanded the criteria for civil committal and introduced community treatment orders, which “provide for community-based treatment and supervision for persons with past psychiatric hospital admissions”: Thompson, at para. 2.
[44] Before Brian’s Law, a person could be involuntarily committed for treatment under the Mental Health Act if they suffered from a mental disorder that would likely result in serious bodily harm to another person or to themselves (known as the “Box A” criteria): Thompson, at para. 7. Brian’s Law expanded the criteria for involuntary committal by adding s. 15(1.1) to the Mental Health Act (known as the “Box B” criteria). This allows for a 72-hour period of restraint and examination in a psychiatric facility if the person “is likely to suffer substantial mental or physical deterioration or serious physical impairment”: s. 15(1.1)(d). However, in order to restrain and examine a person based on this lower threshold, ss. 15(1.1)(a), (b) and (c) also require that the person “has previously received treatment for a mental disorder”, “has shown clinical improvement as a result of the treatment” and is suffering from the same or a similar mental disorder for which they previously received treatment. The person must also be incapable of consenting to treatment and the consent of the person’s substitute decision-maker must be obtained: s. 15(1.1)(e).
[45] Besides introducing a lower threshold for admission and assessment of people with recurring mental disorders, Brian’s Law introduced community treatment orders. As this court explained in Thompson, at para. 12, community treatment orders “are intended to remedy the ‘revolving door’ problem of individuals who are admitted for treatment, improve with treatment, but upon release stop treatment, care or supervision, relapse and are then re-admitted as involuntary patients.”
[46] The community treatment order regime is set out in ss. 33.1 to 33.9 of the Mental Health Act.
[47] Section 33.1(3) describes the purpose of community treatment orders as trying to prevent a pattern of admission, discharge and readmission:
The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility. [Emphasis added.]
[48] Section 33.1(4) of the Mental Health Act sets out a comprehensive list of requirements that must be met before a physician can issue a community treatment order. These requirements include a finding by a physician that the person meets the Box B criteria in s. 15(1.1):
(4) A physician may issue or renew a community treatment order under this section if,
(a) during the previous three-year period, the person,
(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or
(ii) has been the subject of a previous community treatment order under this section;
(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;
(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,
(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,
(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,
(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,
(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and
(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;
(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;
(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and
(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996. [Emphasis added.]
[49] Pursuant to s. 39.1 of the Mental Health Act, a person who is the subject of a community treatment order can apply to the Board to determine whether the criteria for issuing the order have been met. An appeal lies from an order of the Board to the Superior Court on a question of law or fact or both: Health Care Consent Act, s. 80(1).
[50] In Thompson, this court found that Brian’s Law, including the community treatment order regime, is constitutional.
(2) Correct interpretation of the Box B criteria
[51] The issue in this case is the proper interpretation of ss. 15(1.1) (a), (b) and (c) of the Mental Health Act as they apply to the making of community treatment orders.
[52] This case turns on questions of statutory interpretation. As a first step, it is helpful to remember that the modern approach to statutory interpretation requires that the words of the statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, para 26.
[53] It is also helpful at this point to reproduce the full text of s. 15(1.1) of the Mental Health Act with emphasis on the key words relevant to this appeal. By way of reminder, s. 15(1.1) of the Mental Health Act sets out the Box B criteria for a physician to apply for a psychiatric assessment in specified circumstances. However, as provided in s. 33.1 (c)(ii), these criteria must also be met before a physician can issue a community treatment order:
(1.1) Where a physician examines a person and has reasonable cause to believe that the person,
(a) has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person; and
(b) has shown clinical improvement as a result of the treatment, and if in addition the physician is of the opinion that the person,
(c) is apparently suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;
(d) given the person’s history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment; and
(e) is incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained,
the physician may make application in the prescribed form for a psychiatric assessment of the person. [Emphasis added.]
[54] In this case, the Board and the appeal judge had somewhat different interpretations of these provisions. However, they both agreed that Mr. Naus met the Box B criteria for the issuance of a community treatment order based on the apparent success of the treatment with antipsychotic medication Mr. Naus received while he was at CAMH. They rejected Mr. Naus’s position that the Box B criteria could only be met if he had shown clinical improvement from the treatment he received during a previous hospitalization. The Board’s decision was partially based on the length of Mr. Naus’s stay at CAMH; the Board reasoned that by the time the community treatment order was issued in late August 2023, the treatment with antipsychotic medication that started in late June 2023 could be characterized as “previous” treatment. The appeal judge’s decision was based on his view that, unlike ss. 15(1.1) (a) and (c), which refer to “previously received treatment” (emphasis added), s. 15(1.1) (b) does not include a temporal component. Notably, when describing s. 15(1.1) (b), the appeal judge dropped “the” from the wording of the provision, describing it as requiring that Mr. Naus “has shown clinical improvement as a result of treatment” rather than “as a result of the treatment” (emphasis added). In my view, the Board and the appeal judge both erred.
[55] Contrary to the findings of the Board and the appeal judge, the wording of ss. 15(1.1) (a), (b) and (c), when they are read in combination, plainly requires that the prior successful treatment occurred on a prior hospitalization. I come to this conclusion for several reasons.
[56] First, s. 15(1.1)(a) requires that the person has “previously received treatment” for the mental disorder at issue. Section 15(1.1)(b) requires that the person has shown clinical improvement from “the treatment”, in other words from the previously received treatment. Finally, s. 15(1.1)(c) requires that the person be suffering from the same mental disorder for which they previously received the treatment that showed clinical improvement. Accordingly, from a plain reading of these provisions, the improvement must have occurred when the person previously received treatment.
[57] Second, this reading of s. 15(1.1) of the Mental Health Act, as it applies to the issuance of community treatment orders, is consistent with the purpose of community treatment orders in s. 33.1(3). As referred to above, community treatment orders are meant to address a “pattern” where “a person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility”. A pattern only begins to emerge if the person returns to the community after commencing successful treatment, ceases treatment and again needs to be admitted involuntarily due to the recurrence of the serious mental disorder.
[58] In this case, while Mr. Naus had previously been hospitalized for a mental disorder, there was no evidence that he had ever been treated successfully prior to his admission to CAMH. In addition, there was no evidence that, if released from CAMH with his mother as substitute decision-maker, he would not continue to take his antipsychotic medication, or even that without the antipsychotic medication, he would necessarily relapse and suffer again from the same or a similar mental disorder. In the absence of an established pattern, people with serious mental health disorders should have an opportunity to demonstrate that they can live in the community and voluntarily comply with their recommended treatment; this is clearly what Brian’s Law intended. The interpretation adopted by the Board and the appeal judge would allow for the issuance of a community treatment order even before a person with a serious mental disorder has had a chance to live in the community and comply with their treatment.
[59] Third, the approach I propose is consistent with the reasoning in Thompson, which upheld the constitutionality of community treatment orders. In that case, this court emphasized that the community treatment regime accords with the principles of fundamental justice, describing the process as follows, at para. 46:
The application judge’s factual findings correspond with what I would describe as the most striking feature of the Box B criteria and the CTO [community treatment order] scheme, namely, that these provisions can only be invoked following a highly individualized assessment and consideration of the patient’s specific condition and treatment needs. That assessment is directly and intimately connected with the public health and public safety goals of the legislation. The legislation specifically targets individuals whose condition is such that they will, in the opinion of a physician, benefit from the application of the law to their situation in order to avoid serious mental deterioration. The patient must be someone who has suffered from mental illness in the past, who has responded to treatment, who now suffers from the same mental illness and is to be given the same treatment. In the case of a CTO, the individual must also satisfy the “revolving door” criteria of previous hospital admissions and must consent to the order personally or through a SDM [substitute decision-maker]. These criteria and the expert individualized assessment they require focus on factors that minimize if not eliminate any risk of arbitrary, overly broad or grossly disproportionate application of this law. [Emphasis added.]
[60] Finally, with respect, this court is not bound by previous decisions of the Board that have not required that the successful treatment occurred on a previous hospitalization. In any event, and as noted above, there are inconsistent decisions by the Board on this issue: see, for example, V.M. (Re), at pp. 12-13, L.B. (Re), at p. 14, A.P. (Re), at p. 14, and H.S. (Re), at p. 9.
[61] In conclusion, I am satisfied that the Board and the appeal judge erred in this case. It was not open to them to uphold the community treatment order issued by CAMH because there was no record that Mr. Naus had been successfully treated with antipsychotic medication prior to his hospitalization at CAMH in June 2023.
E. Disposition
[62] I would dismiss the appeal from the finding of incapacity as moot. I would allow the appeal from the issuance of the community treatment order and quash the community treatment order.
[63] As agreed between the parties, I would make no order as to costs.
Released: March 20, 2025
“L. Favreau J.A.”
“I agree. David M. Paciocco J.A.”
“I agree. D.A. Wilson J.A.”
[^1]: “Box B” refers to the criteria in ss. 15(1.1) of the Mental Health Act. These criteria apply to a psychiatric assessment, but must also be met for a community treatment order pursuant to s. 33.1(4)(c)(ii). The term “Box B” is used to refer to these criteria because they are found in Box B of the “Form 1” used for an Application for Psychiatric Assessment.
[^2]: Dr. Kennedy filed fresh evidence addressing Mr. Naus’s status since the appeal judge’s decision. Section 80(9) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, permits the court to receive fresh evidence as it deems just on an appeal from a decision of the Board. Mr. Naus did not object to the court receiving this evidence. I am satisfied that the evidence should be admitted based on s. 80(9) of the Health Care Consent Act, 1996 and R. v. Palmer, specifically for the purpose of addressing the issue of whether the appeal is moot: Kozoubenko v. Gosk, 2023 ONCA 802, at para. 14.