COURT FILE NO.: 439/04

DATE: 20050221

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

then, ground and pitt jj.

B E T W E E N:

THE ATTORNEY GENERAL OF ONTARIO

Applicant

• and -

JANE PATIENT, PETER GRANT and CONSENT AND CAPACITY BOARD

Respondents

Sean Hanley and Shannon Chace-Hall, for the Applicant

Suzan E. Fraser and Jean D. Buie for Jane Patient

Patrick Hawkins for Dr. Grant

Joaquin Zuckerberg, for the Consent and Capacity Board

HEARD: December 16, 2004

THEN J.:

[1] The Attorney General (the “Applicant”) applies for judicial review of the decision of the Consent and Capacity Board (the “Board”) dated July 19, 2004, in which the Board held it has jurisdiction to hear and determine the constitutional validity of its enabling legislation i.e. to hear and determine whether certain provisions of the legislation violate the Charter of Rights and Freedoms (the “Charter”).

BACKGROUND FACTS

[2] The Respondent, who is identified by the pseudonym “Jane Patient” is subject to a community treatment order (“CTO”) which was renewed for the fourth time on April 19, 2004. When the CTO was renewed, she was deemed, pursuant to s. 39.1(3) of the Mental Health Act, R.S.O. 1990, c. M. 7 (the “Act”) to have applied to the Board for a review to determine whether or not the criteria for renewing the CTO under s. 33.1(4) were met.

[3] The Respondent served a Notice of Constitutional Question on April 23, 2004, indicating that she would be asking that the Board consider constitutional challenges to the CTO provisions of the Act (specifically ss. 33.1, 33.3 and 33.7) based on sections 2, 6, 7, 8, 9, 10, 12 and 15 of the Charter. The Applicant intervened to respond to the question of whether the Board has jurisdiction to consider the constitutional validity of its enabling legislation.

[4] The Board heard arguments on the jurisdictional issue on June 28, 2004, rendering written reasons for its decision on July 19, 2004. The majority considered the leading decision of the Supreme Court of Canada in Nova Scotia (Worker’s Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 (“Martin”) in which the Court outlined the test governing the jurisdiction of administrative tribunals to deal with Charter challenges to their enabling legislation. The majority concluded that, while there was no explicit statutory authority conferring jurisdiction on the Board, there was implied jurisdiction for the Board to consider Charter challenges. The majority found they had jurisdiction to decide questions of law arising under the challenged provisions and that accordingly, the authority to determine constitutional questions was presumed. The majority also found that the presumption of authority to decide constitutional questions was not rebutted.

[5] The Chair of the Board dissented concluding that the Board’s jurisdiction to decide questions of law did not extend to the determination of Charter challenges with respect to those questions of law.

[6] The Board considered the merits of the CTO review on August 10 and 11, 2004. The Board held that, at the time of the hearing, the criteria for the issuance of a CTO were met. At the request of both parties, the Board postponed its consideration of the constitutional challenge until after the determination of this application for judicial review respecting the Board’s jurisdiction to consider constitutional challenges to its enabling legislation.

STANDARD OF REVIEW

[7] In I.T. v. L.L. (1999), 1999 19918 (ON CA), 46 O.R. (3d) 284 (Ont. C.A.), the Court held that the Board is a specialized expert tribunal and is therefore entitled to deference on issues within its expertise. This was reinforced in the Supreme Court of Canada decision of Starson v. Swayze, 2003 SCC 32, [2003] S.C.J. No. 33 where, at para. 88, the Court held that the Board’s determination of capacity was to be reviewed on a reasonableness standard, requiring “respectful attention, though not submission.”

[8] However, in Daugherty v. Stall, [2002] O.J. No. 4715 (Sup. Ct.) at para. 13, Day J. found that the reasonableness standard articulated in the I.T. v. L.L. decision only applies to decisions that are within the Board’s area of expertise. The standard of review for the Board’s decision regarding its jurisdiction is correctness.

[9] All parties agree that the appropriate standard of review in this case is correctness. It is common ground that whether the Board has jurisdiction to consider the constitutionality of its enabling legislation is a pure question of law, on which the Board enjoys no expertise relative to that of the reviewing court. We agree.

ISSUE

[10] What is at issue on this judicial review is whether the majority of the Board has correctly applied the test in Martin, in deciding that the Board has the jurisdiction to deal with Charter challenges to its enabling legislation.

[11] In our respectful opinion, the majority of the Board erred in law in holding that the Board had implied jurisdiction to deal with questions of law arising from the impugned provisions of the Mental Health Act and was therefore presumed to have jurisdiction to determine the constitutional validity of those provisions. Further, even if the Board did have the implied jurisdiction to deal presumptively with the constitutional validity of the provisions which give rise to questions of law, the Applicant has rebutted the presumption in accordance with the test in Martin.

ANALYSIS

A. The Test

[12] In Martin, supra, Gonthier J., writing for the unanimous Court, has succinctly summarized the four-step test for determining whether any administrative tribunal will have jurisdiction to subject its enabling legislative provisions to Charter scrutiny at para. 48 as follows:

(1) The first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law arising under the challenged provision.

(2) (a) Explicit jurisdiction must be found in the terms of the statutory grant of authority.

(b) Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself.

(3) If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter.

(4) The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by (a) pointing to an explicit withdrawal of authority to consider the Charter, or (b) convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or a category of questions that would include the Charter, such as constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal. Such an implication should generally arise from the statute itself, rather than from external considerations.

[13] The first question to be addressed is whether the Board has jurisdiction, explicit or implied, to decide questions of law. In Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, the Supreme Court explained what constitutes a question of law at para. 35:

Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. A simple example will illustrate these concepts. In the law of tort, the question what “negligence” means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears to be mixed law and fact turns out to be law, or vice versa.

[14] It is evident that while there is a clear distinction between questions of law and questions of mixed law and fact, that distinction is not always easily recognizable. To the extent however, that there is a distinction, it is of crucial importance to determine whether the Board is required to deal with questions of law or questions of mixed law and fact arising under the challenged provisions.

[15] It is also important to emphasize at this stage that Gonthier J. has made it clear throughout Martin, supra, that in order to have jurisdiction to consider the constitutionality of an impugned provision, the impugned provision itself must raise a question of law. At para. 35 he states:

In each case, the first question to be addressed is whether the administrative tribunal at issue has jurisdiction, explicit or implied, to decide questions of law arising under the challenged provisions . . . (emphasis added)

Again at para. 36:

Rather, one must ask whether the empowering legislation implicitly or explicitly grants to the tribunal the jurisdiction to interpret or decide any question of law. If it does, then the tribunal will be presumed to have the concomitant jurisdiction to interpret or decide that question in light of the Charter, unless the legislator has removed that power from the tribunal. Thus, an administrative tribunal that has the power to decide questions of law arising under a particular legislative provision will be presumed to have the power to determine the constitutional validity of that provision. . . . (emphasis added)

And finally at para. 39:

In other words, the relevant question in each case is not whether the terms of the express grant of jurisdiction are sufficiently broad to encompass the Charter itself, but rather whether the express grant of jurisdiction confers upon the tribunal the power to decide questions of law arising under the challenged provision, in which case the tribunal will be presumed to have jurisdiction to decide the constitutional validity of that provision. (emphasis added)

Gonthier J. set out the rationale behind this requirement at para. 28 as follows:

Obviously, it cannot be the case that every government official has to consider and decide for herself the constitutional validity of every provision she is called upon to apply. If, however, she is endowed with the power to consider questions of law relating to a provision, that power will normally extend to assessing the constitutional validity of that provision. That is because the consistency of a provision with the Constitution is a question of law arising under that provision. It is, indeed, the most fundamental question of law one could conceive, as it will determine whether the enactment is in fact valid law, and thus whether it ought to be interpreted and applied as such or disregarded. (emphasis added)

[16] If the challenged section does not involve a question of law, there is no justification for the Board to consider that section’s constitutionality. Accordingly, it will be necessary to review the relevant impugned subsections under the Mental Health Act in order to assess whether there arise any questions of law for the Board to determine.

Impugned Sections of the [Mental Health Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m7/latest/rso-1990-c-m7.html): subsection 33.1, 33.3 and 33.7

[17] The Respondent challenges the constitutional validity of the statutory regime pertaining to community treatment orders under ss. 33.1, 33.3 and 33.7 of the Mental Health Act (these provisions are found at Appendix A to this judgment).

[18] In our view, the only potential questions either of law or questions of mixed law and fact in the challenged provisions arise under ss. 33.1. First, under ss. 33.1(3), the Board is required to determine whether the Applicant is a “person” who fits within the purposes of the Act:

(3) 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 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.

[19] Next, under ss. 33.1(4)(a) and (b), the Board must determine whether the person has been a patient and whether a community treatment plan has been developed for the person:

(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…

(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;

[20] Under ss. 33.1(4), the Board must determine if the terms likely, substantial and serious have been made out:

(4) A physician may issue or renew a community treatment order under this section if, . . .

(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, …

(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, . . . (emphasis added)

[21] Finally, the Board under ss. 33.1(4)(f), must also consider if consent has been given:

(4) A physician may issue or renew a community treatment order under this section if, …

(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 Mental Care Consent Act, 1996.

[22] The Respondent relies heavily on this latter subsection in support of its submission that the issue of consent raises a question of law to be determined by the Board, referring the Court to the decision of the Supreme Court in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722.

[23] Starson involved a review of the Board’s determination, under the Health Care Consent Act, 1996 (S.O. 1996, c. 2 Sch. A (“HCCA”) appended as Appendix B to these reasons) that Professor Starson did not have the capacity to consent to medical treatment. Professor Starson appealed the decision, which was found to be unreasonable by Molloy J. of the Superior Court, whose decision was upheld by the Court of Appeal and, finally, by the majority of the Supreme Court. The constitutionality of the consent provisions were not raised by the parties in Starson.

[24] With respect to the standard of review, Major J. for the majority found that the determination of capacity to consent is a question of mixed fact and law, not a question of law. The determination made by the Board in Starson is different from that made by the Board in the case at bar. If anything, the determination of whether a patient has the capacity to give consent requires a more complex analysis than the issue of whether a person has given consent, as arises under ss. 33.1(4)(f).

[25] Under ss. 33.1(4)(f), the Board is not required to undertake an examination of whether the person has the capacity to give consent as pursuant to s. 4(2) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A., a person is presumed to be capable of consenting to a treatment which includes a community treatment order. Under ss. 33.1(4)(f) the Board must determine simply whether the patient or her substitute decision-maker has given consent.

[26] Whether consent has been given is governed by s. 11 of the HCCA:

11. (1) The following are the elements required for consent to treatment:

12. The consent must relate to the treatment.

13. The consent must be informed.

14. The consent must be given voluntarily.

15. The consent must not be obtained through misrepresentation or fraud.

(2) A consent to treatment is informed if, before giving it,

(a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and

(b) the person received responses to his or her requests for additional information about those matters.

(3) The matters referred to in subsection (2) are:

1. The nature of the treatment.

2. The expected benefits of the treatment.

3. The material risks of the treatment.

4. The material side effects of the treatment.

5. Alternative courses of action.

6. The likely consequences of not having the treatment.

[27] The Attorney General submits that the issue of whether the Respondent has given her consent is not a question of law. At most it is a question of mixed fact and law that would require even less analysis than the determination of whether a patient had the capacity to consent.

[28] The Attorney General further submits that none of the impugned provisions which constitute the community treatment order regime require the Board to determine questions of law but rather constitute fact intensive inquiries which are properly characterized as questions of mixed law and fact requiring the Board to apply factual findings to a legal standard as required by the Act. We agree with both of these submissions.

[29] The Supreme Court in Martin, supra, clearly mandates that before an administrative tribunal can acquire the jurisdiction to consider the constitutional validity of an impugned provision, it must have the jurisdiction to consider a question of law with respect to that provision. Nowhere within Martin does the Court indicate that the jurisdiction to consider questions of mixed law and fact with respect to an impugned provision will confer the jurisdiction to the tribunal to consider the constitutional validity of that provision.

[30] In this context it should be noted that the majority of the Board found that the availability of an appeal from the Board to the Superior Court on a question of law necessarily implies that the Board is able to determine questions of law. The respondent takes the position that the availability of an appeal on a question of law is evidence of an express grant of authority by the legislature to determine questions of law. In its reasons the majority of the Board stated:

Appeals from the Board are to the Superior Court of Justice “on a question of fact or law or both”. (s. 80(1) HCCA). Why would the legislature authorize an appeal on questions of law if the Board had no authority to decide them?

[31] If as we have found it is the task of the Board in ordering or renewing a CTO to apply the facts to a prescribed legal standard, the right of a party to appeal on a question of law pursuant to s. 80(1) of the HCCA does not imply that the Board has jurisdiction to decide questions of law but merely identifies the nature of the error that the Board may make in discharging its task.

[32] In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Iacobucci and Major JJ. stated the following at para. 27:

Once it has been determined that a matter being reviewed involves the application of a legal standard to a set of facts, and is thus a question of mixed fact and law, then the appropriate standard of review must be determined and applied. Given the different standards of review applicable to questions of law and questions of fact, it is often difficult to determine what the applicable standard of review is. In Southam, supra, at para. 39, this Court illustrated how an error on a question of mixed fact and law can amount to a pure error of law subject to the correctness standard:

…if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.

Therefore, what appears to be a question of mixed fact and law, upon further reflection, can actually be an error of pure law.

[33] A compelling example of the illustration given by the Supreme Court occurred in Haugan v. Whelan (2003), 2003 37206 (ON SC), 64 O.R. (3d) 713 (Ont. S.C.) in which the Board confirmed a CTO notwithstanding that one of the mandatory criteria had not been met. The Board determined that the absence of one of the criteria was “irrelevant”. The Mental Health Act provides that if the criteria are not met, the Board “shall” rescind the CTO. Chilcott J. held that it was an error in law to fail to apply the mandatory requirements of the legislation by in effect subtracting one of the criteria from the prescribed statutory standard. We agree with the Attorney General that a statutory appeal on a question of law is provided in order that the court may correct a failure by the Board to comply with its statutory mandate as Haugan v. Whelan demonstrates and not because the Board has the jurisdiction to decide questions of law.

[34] Starson, supra, is a further illustration of the same point. As already stated, the application of the facts or evidence to a statutory test for capacity is a question of mixed law and fact. In considering the criteria relevant to determining if the patient was capable of consenting to medical treatment the Board also took into account whether medical treatment was in the patient’s best interest. The Supreme Court held that in considering the capacity of the patient to consent to medical treatment the Board was confined to the statutory criteria and that it had erred in law in adding to that criteria by considering an extraneous factor. Once again, Starson illustrates that the statutory appeal on a question of law does not imply any power to decide questions of law but serves merely as a device to correct errors of law that flow from the failure of the Board to comply with its statutory mandate to apply the facts to a prescribed legal standard.

[35] In our view, the Consent and Capacity Board does not have the jurisdiction to consider questions of law under the impugned provisions of the Mental Health Act (ss. 33.1, 33.3 and 33.7) and accordingly it has no jurisdiction to consider the constitutional validity of those provisions. If we are in error as to this conclusion and the Board does have implied jurisdiction to determine questions of law, it remains to consider whether the Attorney General has rebutted the presumption that the Board has jurisdiction to consider the constitutional validity of those provisions in accordance with the fourth branch of the Martin test set out above.

Rebuttal of Jurisdiction to determine Charter Challenges

[36] Assuming that the board has implied jurisdiction to determine questions of law, rather than questions of mixed law and fact, the fourth branch of the test in Martin referred to above provides the Attorney General with an opportunity to rebut the presumption that the Board has the jurisdiction to determine Charter challenges with respect to those questions of law. As the Mental Health Act does not include any explicit withdrawal of authority to consider the Charter, the court must be convinced that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter from the scope of the questions of law to be addressed by the Board.

Legislative Intent

[37] Martin teaches that the legislative intention to exclude constitutional questions from the scope of a tribunal’s jurisdiction to consider questions of law may be express or implied. This is made clear at para. 40:

The party alleging that the tribunal lacks jurisdiction to apply the Charter may rebut the presumption by (a) pointing to an explicit withdrawal of authority to consider the Charter, or (b) convincing the court that an examination of the statutory scheme clearly leads to the conclusion that the legislature intended to exclude the Charter (or a category of questions that would include the Charter, such as constitutional questions generally) from the scope of the questions of law to be addressed by the tribunal. Such an implication should generally arise from the statute itself, rather than from external considerations. [emphasis added]

[38] The Attorney General submits that the legislative intention that the Board not consider challenges to the constitutional validity of its enabling legislation is evidenced by the fact-intensive nature of the Board’s inquiries and the strict statutory time limits under which the Board is required to conduct its hearings and render its decisions.

Fact Intensive Inquiries

[39] The Attorney General submits that even if the Board does have jurisdiction to consider questions of law, the “fact-intensive” nature of its role under the impugned provisions implies that the Legislature did not intend that the Board hear and decide Charter challenges. The Attorney General argues that the Board’s jurisdiction in reviewing the issuance of a CTO is restricted to a consideration of whether particular factual criteria have been met. The legal aspect of this inquiry is limited to applying a series of narrowly-defined statutory criteria, which does not require the Board to engage in complex legal analysis such as would be required in Charter litigation.

[40] In support of this position the Attorney General referred the Court to the decision of MacFarland J. in Chokan v. Cameron (1992), 3 Admin. L.R. (2d) 223 (Ont. Ct. Gen. Div.) [hereinafter “Chokan”] in which the Court considered the jurisdiction of the Psychiatric Review Board (the predecessor of the present Board) respecting the review of a certificate of involuntary admission to a psychiatric facility under the Mental Health Act, R.S.O. 1980 c. 262. The Court concluded that the legislature, in limiting the Board’s mandate to a factual inquiry of whether certain prescribed statutory conditions were met, intended to preclude the Board from considering Charter issues. MacFarland J. expressed herself as follows at pp. 233-236:

A board of review constituted pursuant to the provisions of the Mental Health Act must look to its enabling legislation for its jurisdiction…

Such a board does not have a broad jurisdictional mandate as does, for example, the Ontario Labour Relations Board, which has exclusive jurisdiction to determine all questions of fact or law that arise in any matter before it…

The jurisdiction of a Board of Review constituted pursuant to the request of an involuntary patient for inquiry into his status is quite limited.

Such a board is firstly mandated to promptly review the patient’s status to determine if prerequisites set out in the Act for involuntary admission continue to be met at the time of the hearing.

If the Board determines that those prerequisites were met at the time of the hearing, then the board may by order confirm the patient’s status as an involuntary patient.

If on the other hand the board determines that those prerequisites were not met at the time of the hearing, it shall rescind the certificate.

That is the only jurisdiction a review board has on this type of application – no more, no less…

I respectfully disagree with the conclusion reached by the Coady Board that it had the necessary jurisdiction to grant Charter relief. In my view, such a board does not.

Such a board does not have jurisdiction over the whole of the matter before it, indeed its jurisdiction is specifically limited and prescribed by s. 32a as earlier set out. It is not mandated to consider all questions of fact and law which come before it. Its remedial jurisdiction is limited to either confirming or rescinding a Certificate or Renewal of a Certificate of Involuntary Admission. In my view, this limited jurisdiction falls short of what the Supreme Court of Canada has said is necessary before a board may consider Charter issues.

[41] Bearing in mind that the participation of patients in a community treatment order is voluntary as opposed to the involuntary admission of patients under review in Chokan, and bearing in mind that a determination on either issue essentially is limited to a confirmation that certain prescribed statutory conditions obtain, the analysis in Chokan seems a fortiori to be applicable to the Board’s jurisdiction in the present case. Unlike the Appeal Tribunal in Martin, supra, which the Court found at para. 52: “regularly decides questions of law involving the interpretation of common law principles and statutes other than the Act” and that to deny the Appeal Tribunal the authority to decide such questions would not “seriously impede its work” the determination of questions of law is not necessary for the Board to effectively fulfill its statutory mandate.

[42] The Board in its reasons held that Chokan was wrongly decided because it had relied on the distinction between general and specific questions of law articulated by the Supreme Court in Cooper v. Canada (Human Rights Commission), 1996 152 (SCC), [1996] 3 S.C.R. 854 which had been overturned by the Court’s subsequent decision in Martin, supra. However, we accept the Attorney General’s submission that Chokan makes no reference to the distinction in Cooper, supra, between the general or specific questions of law nor could Chokan have followed Cooper in that respect as Chokan was decided prior to Cooper in any event.

[43] Rather, Chokan followed the approach of the Supreme Court in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 57 (SCC), [1991] 2 S.C.R. 5, (which was confirmed in Martin), by relying upon the following passage from Cuddy Chicks, supra at pp. 13-15:

…In ruling that the arbitrator did have such jurisdiction, this Court articulated the basic principle that an administrative tribunal which has been conferred the power to interpret law holds a concomitant power to determine whether that law is constitutionally valid. This conclusion ensues from the principle of supremacy of the Constitution, which is confirmed by s. 52(1) of the Constitution Act, 1982:

52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. . . .

It is essential to appreciate that s. 52(1) does not function as an independent source of an administrative tribunal’s jurisdiction to address constitutional issues. Section 52(1) affirms in explicit language the supremacy of the Constitution but is silent on the jurisdictional point per se. In other words, s. 52(1) does not specify which bodies may consider and rule on Charter questions, and cannot be said to confer jurisdiction on an administrative tribunal. Rather, jurisdiction must have expressly or impliedly been conferred on the tribunal by its enabling statute or otherwise. This fundamental principle holds true regardless of the nature of the issue before the administrative body. Thus, a tribunal prepared to address a Charter issue must already have jurisdiction over the whole of the matter before it, namely, the parties, subject matter and remedy sought. While analytical framework mirrors the requirements for a court of competent jurisdiction under s. 24(1) of the Charter as outlined in Mills v. The Queen, supra as was the case in Douglas College, it is unnecessary to have recourse to s. 24(1) to determine whether the Board has jurisdiction over Charter issues. An administrative tribunal need not meet the definition of a court of competent jurisdiction in s. 24(1) of the Charter in order to have the necessary authority to subject its enabling statute to Charter scrutiny. In the present case, the relevant inquiry is not whether the tribunal is a “court” but whether the legislature intended to confer on the tribunal the power to interpret and apply the Charter.

[44] Chokan is important for clearly demonstrating that the statutory mandate of the Board in that case was clearly inconsistent with a legislative intention that the Board engage in complex analysis of Charter based challenges but rather that its mandate was limited to confirming whether certain prescribed statutory conditions existed. In the instant case, the Board’s functions with respect to the ordering or renewal of CTOs are similarly circumscribed.

Statutory Timelines

[45] In our view, the strict statutory time limits imposed by the legislature lead inevitably to the conclusion that it intended constitutional questions to be excluded from the questions of law to be addressed by the Board. The Board’s mandate to conduct accessible and timely hearings is manifest throughout its governing statutes. The Mental Health Act sets out that the Board must “promptly” review a CTO decision:

39.1(6) On the hearing of an application, the Board shall promptly review whether or not the criteria for issuing or renewing the community treatment order set out in subsection 33.1(4) are met at the time of the hearing of the application. [emphasis added]

[46] The HCCA sets out the strict timelines for a hearing:

75. (1) When the Board receives an application, it shall promptly fix a time and place for a hearing.

(2) The hearing shall begin within seven days after the day the Board receives the application, unless the parties agree to a postponement.

(3) The Board shall render its decision and provide each party or the party’s counsel or agent with a copy of the decision within one day after the day the hearing ends.

(4) If, within 30 days after the day the hearing ends, the Board receives a request from any of the parties for reasons for its decision, the Board shall, within two business days after the day the request is received, issue written reasons for its decision and provide each party or the party’s counsel or agent with a copy of the reasons. [emphasis added]

[47] These provisions require a prompt hearing of a matter, and perhaps most importantly, that a decision be made within one day of a hearing. This strict time limit does not allow the Board the time to adequately consider and rule on the constitutionality of the provisions of the Act. There is no ambiguity in this provision: there is no opportunity for the Board to extend the time to comply with, or waive the need to comply with, these statutory time limits. This is unlike the circumstances in Martin where, although the court found that the Appeals Tribunal had explicit jurisdiction, it would have found there to be implicit jurisdiction to determine Charter claims on the basis of its express jurisdiction to waive compliance with the statutory time limits. At para. 53, Gonthier J. stated the following:

Although the Appeals Tribunal is normally required to render its decision within 60 days of the hearing, or if there is no hearing, of the day on which all submissions have been received (s. 246(3)), it may “at any time, extend any time limit prescribed by this Part or the regulations where, in the opinion of the Appeals Tribunal, an injustice would otherwise result” (s. 240(2)). This extension power allows it to give proper consideration to the more intricate issues raised by a Charter appeal, as was done in this case.

[48] In Martin, the Appeals Tribunal’s ability to extend its time to consider issues beyond the 60 days it already has to render a decision, “allows it to give proper consideration to the more intricate issues raised by a Charter appeal.” It must be obvious that in the absence of any ability to extend the time to consider Charter issues beyond the twenty-four hours given by the legislature to expediently consider the fact intensive issues before it, the legislature could not possibly have intended that the Board consider intricate Charter issues given the imperative to consider important Charter issues in a proper and appropriate manner.

[49] Moreover, it is important to note that the requirement to have a hearing within seven days of receiving the application is inconsistent with the mandatory requirement, under s. 109 of the Courts of Justice Act, that notice be given to the Attorney General at least 15 days before the commencement of the hearing:

109. (1) Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:

110. The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.

111. A remedy is claimed under subsection 24(1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.

(2) If a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be. …

(2.2) The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise. [emphasis added]

[50] Clearly, in setting out the strict time limits to be followed by the Board, the legislature did not intend that it would entertain Charter challenges. If it had, it would have expressly granted the Board the ability to comply with the mandatory notice provisions set out in s. 109 of the Courts of Justice Act. Indeed, in Martin, supra, Gonthier J. held that the Attorney General’s ability to intervene was a key consideration in finding implied jurisdiction to consider constitutional matters when he stated the following at para. 55:

…under the Constitutional Questions Act, R.S.N.S. 1989, c. 89, and under s. 245(1)(d) of the Act, the Attorney General may be provided with an opportunity to intervene in any proceedings involving a constitutional question, as was done in this case. Such interventions diminish the relative disadvantage of administrative tribunals as compared to courts by relieving private parties or administrative agencies from the burden of defending the validity of legislation: see Cuddy Chicks, supra at pp. 17-18.

[51] Conversely, it seems evident that the inability of the parties to properly give Notice of a Constitutional Question under the Act is persuasive evidence of the legislature’s intention to limit the Board’s jurisdiction to determine Charter challenges.

[52] The HCCA also sets out an expedited appeal process to the Superior Court of Justice:

80. (1) A party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both.

(2) The appellant shall serve his or her notice of appeal on the other parties and shall file it with the court, with proof of service, within seven days after he or she receives the Board’s decision.

(3) The appellant shall give a copy of the notice of appeal to the Board.

(4) On receipt of the copy of the notice of appeal, the Board shall promptly serve the parties with the record of the proceeding before the Board, including a transcript of the oral evidence given at the hearing, and shall promptly file the record and transcript, with proof of service, with the court.

(5) Within 14 days after being served with the record and transcript, the appellant shall serve his or her factum on the other parties and shall file it, with proof of service, with the court.

(6) Within 14 days after being served with the appellant’s factum, the respondent shall serve his or her factum on the other parties and shall file it, with proof of service, with the court.

(7) The court may extend the time for filing the notice of appeal, the appellant’s factum or the respondent’s factum, even after the time has expired.

(8) The court shall fix for the hearing of the appeal the earliest date that is compatible with its just disposition.

(9) The court shall hear the appeal on the record, including the transcript, but may receive new or additional evidence as it considers just. [emphasis added]

[53] Unlike in Martin, where Gonthier J. at para. 52 found that the legislature had a “clear intent to create a comprehensive scheme for resolving workers’ compensation disputes, notably by barring access to the courts in cases covered by the Act,” the legislature in this case has ensured that patients have an expedited opportunity to have their Charter rights addressed by a court.

[54] We agree with the characterization by the Attorney General, at para. 55 of the applicant’s factum, of the courts as the preferable forum to expeditiously and thoroughly deal with a patient’s Charter claims:

The Ontario Superior Court of Justice provides a more appropriate, efficient and timely forum for the determination of Charter claims. Charter claims may be raised on an appeal from or judicial review of the Board’s decision, or through an application for a declaration that the provisions of the enabling legislation are invalid. A party may choose the most appropriate forum depending on the nature of the relief requested and the nature of the factual record that must be adduced. In any of these proceedings, the Court would also have the discretion to modify the statutory time frames where their strict enforcement would be inappropriate. Interim relief would also be available where warranted.

[55] The majority of the Board did not give much weight to the strict statutory time limits, dismissing them as “practical considerations”. The Board quoted Gonthier J.’s caution in Martin, where at para. 43 he stated:

Thus, while…considerations concerning an administrative body’s practical capacity to address such issues may be relevant in determining the scope of a tribunal’s implicit authority to decide questions of law, they generally will not suffice on their own to rebut the presumption that arises from such authority, whether explicit or implied, once that presumption has been found to apply.

[56] However, the strict time limits applicable to proceedings before the Board are more than mere “practical considerations”. These are explicit statutory provisions that strongly imply the legislature’s intention to restrict the Board’s ability to consider constitutional issues.

[57] The Board in ordering or renewing CTO’s discharges an important function which may have significant effects on the Charter rights of patients. In our view, in order to best safeguard the welfare of patients the legislature intended that the Board and the Court discharge their respective functions in a timely manner. The strict time limits reflect the intention of the legislature to safeguard the welfare of patients with regard to the ordering or renewal of CTOs by requiring that the Board expeditiously apply the facts to prescribed statutory criteria. Similarly, it was the intention of the legislature to safeguard the welfare of patients by requiring the Court to expeditiously determine error on the part of the Board in dealing with its mandate and to have the Court deal expeditiously with any Charter challenge to the statutory provisions governing CTOs. Because of the strict time limitations imposed by statute with no provisions authorizing extensions of those limits, the Board is simply not in a position to properly determine Charter challenges to the CTO provisions. That can only be done by the Court.

[58] For all of these reasons the application for judicial review of the decision of the majority of the Board must be allowed and the decision of the Board is quashed and set aside.

[59] The Court wishes to acknowledge the assistance provided by all counsel in their written and oral presentations.

[60] No costs have been sought by the Attorney General nor by counsel for Dr. Grant who has supported the Attorney General’s position and none are awarded.

Then J.

­­­___________________________

Ground J.

Pitt J.

Released:

APPENDIX A

Mental Health Act, R.S.O. 1990, c. M7

Section 33.1

(1) A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met. 2000, c. 9, s. 15.

(2) The community treatment order must be in the prescribed form. 2000, c. 9, s. 15.

(3) 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. 2000, c. 9, s. 15.

(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 section 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. 2000, c. 9, s. 15.

(5) Clause (4) (e) does not apply to the person subject to the order if the person himself or herself refuses to consult with a rights adviser and the rights adviser so informs the physician. 2000, c. 9, s. 15.

(6) A community treatment order shall indicate,

(a) the date of the examination referred to in clause (4) (c);

(b) the facts on which the physician formed the opinion referred to in clause (4) (c);

(c) a description of the community treatment plan referred to in clause (4) (b); and

(d) an undertaking by the person to comply with his or her obligations as set out in subsection (9) or an undertaking by the person’s substitute decision-maker to use his or her best efforts to ensure that the person complies with those obligations. 2000, c. 9, s. 15.

(7) The substitute decision-maker who, in good faith, uses his or her best efforts to ensure the person’s compliance and believes, on reasonable grounds, that the person is in compliance is not liable for any default or neglect of the person in complying. 2000, c. 9, s. 15.

(8) The person who is being considered for a community treatment order, or who is subject to such an order, and that person’s substitute decision-maker, if any, have a right to retain and instruct counsel and to be informed of that right. 2000, c. 9, s. 15.

(9) If a person or his or her substitute decision-maker consents to a community treatment plan under this section, the person shall,

(a) attend appointments with the physician who issued or renewed the community treatment order, or with any other health practitioner or other person referred to in the community treatment plan, at the times and places scheduled from time to time; and

(b) comply with the community treatment plan described in the community treatment order. 2000, c. 9, s. 15.

(10) The physician who issues or renews a community treatment order under this section shall ensure that a copy of the order, including the community treatment plan, is given to,

(a) the person, along with a notice that he or she has a right to a hearing before the Board under section 39.1;

(b) the person’s substitute decision-maker, where applicable;

(c) the officer in charge, where applicable; and

(d) any other health practitioner or other person named in the community treatment plan. 2000, c. 9, s. 15.

(11) A community treatment order expires six months after the day it is made unless,

(a) it is renewed in accordance with subsection (12); or

(b) it is terminated earlier in accordance with section 33.2, 33.3 or 33.4. 2000, c. 9, s. 15.

(12) A community treatment order may be renewed for a period of six months at any time before its expiry and within one month after its expiry. 2000, c. 9, s. 15.

(13) Upon the expiry or termination of a community treatment order, the parties may enter into a subsequent community treatment plan if the criteria set out in subsection (4) are met. 2000, c. 9, s. 15.

Section 33.3

(1) If a physician who issued or renewed a community treatment order has reasonable cause to believe that the person subject to the order has failed to comply with his or her obligations under subsection 33.1 (9), the physician may, subject to subsection (2), issue an order for examination of the person in the prescribed form. 2000, c. 9, s. 15.

(2) The physician shall not issue an order for examination under subsection (1) unless,

(a) he or she has reasonable cause to believe that the criteria set out in subclauses 33.1 (4) (c) (i), (ii) and (iii) continue to be met; and

(b) reasonable efforts have been made to,

(i) locate the person,

(ii) inform the person of the failure to comply or, if the person is incapable within the meaning of the Health Care Consent Act, 1996, inform the person’s substitute decision-maker of the failure,

(iii) inform the person or the substitute decision-maker of the possibility that the physician may issue an order for examination and of the possible consequences, and

(iv) provide assistance to the person to comply with the terms of the order. 2000, c. 9, s. 15.

(3) An order for examination issued under subsection (1) is sufficient authority, for 30 days after it is issued, for a police officer to take the person named in it into custody and then promptly to the physician who issued the order. 2000, c. 9, s. 15.

(4) The physician shall promptly examine the person to determine whether,

(a) the physician should make an application for a psychiatric assessment of the person under section 15;

(b) the physician should issue another community treatment order where the person, or his or her substitute decision-maker, consents to the community treatment plan; or

(c) the person should be released without being subject to a community treatment order. 2000, c. 9, s. 15.

Section 33.7

A community treatment plan shall contain at least the following:

1. A plan of treatment for the person subject to the community treatment order.

2. Any conditions relating to the treatment or care and supervision of the person.

3. The obligations of the person subject to the community treatment order.

4. The obligations of the substitute decision-maker, if any.

5. The name of the physician, if any, who has agreed to accept responsibility for the general supervision and management of the community treatment order under subsection 33.5 (2).

6. The names of all persons or organizations who have agreed to provide treatment or care and supervision under the community treatment plan and their obligations under the plan. 2000, c. 9, s. 15.

APPENDIX B

Health Care Consent Act, S.O. 1996, Chpt. 2, Schedule A

Presumption of capacity

4 (2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. 1996, c. 2, Sched. A, s. 4 (2).

…

CONSENT

No treatment without consent

10. (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act. 1996, c. 2, Sched. A, s. 10 (1).

Opinion of Board or court governs

(2) If the health practitioner is of the opinion that the person is incapable with respect to the treatment, but the person is found to be capable with respect to the treatment by the Board on an application for review of the health practitioner’s finding, or by a court on an appeal of the Board’s decision, the health practitioner shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless the person has given consent. 1996, c. 2, Sched. A, s. 10 (2).

Elements of consent

11. (1) The following are the elements required for consent to treatment:

12. The consent must relate to the treatment.

13. The consent must be informed.

14. The consent must be given voluntarily.

15. The consent must not be obtained through misrepresentation or fraud. 1996, c. 2, Sched. A, s. 11 (1).

Informed consent

(2) A consent to treatment is informed if, before giving it,

(a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and

(b) the person received responses to his or her requests for additional information about those matters. 1996, c. 2, Sched. A, s. 11 (2).

Same

(3) The matters referred to in subsection (2) are:

1. The nature of the treatment.

2. The expected benefits of the treatment.

3. The material risks of the treatment.

4. The material side effects of the treatment.

5. Alternative courses of action.

6. The likely consequences of not having the treatment. 1996, c. 2, Sched. A, s. 11 (3).

Express or implied

(4) Consent to treatment may be express or implied. 1996, c. 2, Sched. A, s. 11 (4).

Included consent

12. Unless it is not reasonable to do so in the circumstances, a health practitioner is entitled to presume that consent to a treatment includes,

(a) consent to variations or adjustments in the treatment, if the nature, expected benefits, material risks and material side effects of the changed treatment are not significantly different from the nature, expected benefits, material risks and material side effects of the original treatment; and

(b) consent to the continuation of the same treatment in a different setting, if there is no significant change in the expected benefits, material risks or material side effects of the treatment as a result of the change in the setting in which it is administered. 1996, c. 2, Sched. A, s. 12.

Plan of treatment

13. If a plan of treatment is to be proposed for a person, one health practitioner may, on behalf of all the health practitioners involved in the plan of treatment,

(a) propose the plan of treatment;

(b) determine the person’s capacity with respect to the treatments referred to in the plan of treatment; and

(c) obtain a consent or refusal of consent in accordance with this Act,

(i) from the person, concerning the treatments with respect to which the person is found to be capable, and

(ii) from the person’s substitute decision-maker, concerning the treatments with respect to which the person is found to be incapable. 1996, c. 2, Sched. A, s. 13.

Withdrawal of consent

14. A consent that has been given by or on behalf of the person for whom the treatment was proposed may be withdrawn at any time,

(a) by the person, if the person is capable with respect to the treatment at the time of the withdrawal;

(b) by the person’s substitute decision-maker, if the person is incapable with respect to the treatment at the time of the withdrawal. 1996, c. 2, Sched. A, s. 14.

…

CAPACITY

Capacity depends on treatment

15. (1) A person may be incapable with respect to some treatments and capable with respect to others. 1996, c. 2, Sched. A, s. 15 (1).

Capacity depends on time

(2) A person may be incapable with respect to a treatment at one time and capable at another. 1996, c. 2, Sched. A, s. 15 (2).

Return of capacity

16. If, after consent to a treatment is given or refused on a person’s behalf in accordance with this Act, the person becomes capable with respect to the treatment in the opinion of the health practitioner, the person’s own decision to give or refuse consent to the treatment governs. 1996, c. 2, Sched. A, s. 16.

Information

17. A health practitioner shall, in the circumstances and manner specified in guidelines established by the governing body of the health practitioner’s profession, provide to persons found by the health practitioner to be incapable with respect to treatment such information about the consequences of the findings as is specified in the guidelines. 1996, c. 2, Sched. A, s. 17.

18. (1) This section applies if,

(a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment;

(b) before the treatment is begun, the health practitioner is informed that the person intends to apply, or has applied, to the Board for a review of the finding; and

(c) the application to the Board is not prohibited by subsection 32 (2). 1996, c. 2, Sched. A, s. 18 (1).

Same

(2) This section also applies if,

(a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment;

(b) before the treatment is begun, the health practitioner is informed that,

(i) the incapable person intends to apply, or has applied, to the Board for appointment of a representative to give or refuse consent to the treatment on his or her behalf, or

(ii) another person intends to apply, or has applied, to the Board to be appointed as the representative of the incapable person to give or refuse consent to the treatment on his or her behalf; and

(c) the application to the Board is not prohibited by subsection 33 (3). 1996, c. 2, Sched. A, s. 18 (2).

Same

(3) In the circumstances described in subsections (1) and (2), the health practitioner shall not begin the treatment, and shall take reasonable steps to ensure that the treatment is not begun,

(a) until 48 hours have elapsed since the health practitioner was first informed of the intended application to the Board without an application being made;

(b) until the application to the Board has been withdrawn;

(c) until the Board has rendered a decision in the matter, if none of the parties to the application before the Board has informed the health practitioner that he or she intends to appeal the Board’s decision; or

(d) if a party to the application before the Board has informed the health practitioner that he or she intends to appeal the Board’s decision,

(i) until the period for commencing the appeal has elapsed without an appeal being commenced, or

(ii) until the appeal of the Board’s decision has been finally disposed of. 1996, c. 2, Sched. A, s. 18 (3).

Emergency

(4) This section does not apply if the health practitioner is of the opinion that there is an emergency within the meaning of subsection 25 (1). 1996, c. 2, Sched. A, s. 18 (4).

Order authorizing treatment pending appeal

19. (1) If an appeal is taken from a Board or court decision that has the effect of authorizing a person to consent to a treatment, the treatment may be administered before the final disposition of the appeal, despite section 18, if the court to which the appeal is taken so orders and the consent is given. 1996, c. 2, Sched. A, s. 19 (1).

Criteria for order

(2) The court may make the order if it is satisfied,

(a) that,

(i) the treatment will or is likely to improve substantially the condition of the person to whom it is to be administered, and the person’s condition will not or is not likely to improve without the treatment, or

(ii) the person’s condition will or is likely to deteriorate substantially, or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent the deterioration or to reduce substantially its extent or its rate;

(b) that the benefit the person is expected to obtain from the treatment outweighs the risk of harm to him or her;

(c) that the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a) and (b); and

(d) that the person’s condition makes it necessary to administer the treatment before the final disposition of the appeal. 1996, c. 2, Sched. A, s. 19 (2).

Consent on Incapable Person’s Behalf

Consent

List of persons who may give or refuse consent

20. (1) If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described in one of the following paragraphs:

21. The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.

22. The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.

23. The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.

The incapable person’s spouse or partner.

5. A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.

6. A parent of the incapable person who has only a right of access.

7. A brother or sister of the incapable person.

8. Any other relative of the incapable person. 1996, c. 2, Sched. A, s. 20 (1).

Requirements

(2) A person described in subsection (1) may give or refuse consent only if he or she,

(a) is capable with respect to the treatment;

(b) is at least 16 years old, unless he or she is the incapable person’s parent;

(c) is not prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf;

(d) is available; and

(e) is willing to assume the responsibility of giving or refusing consent. 1996, c. 2, Sched. A, s. 20 (2).

COURT FILE NO.: 439/04

DATE: 20050221

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, GROUND AND PITT JJ.

B E T W E E N:

THE ATTORNEY GENERAL OF ONTARIO

Applicant

• and -

JANE PATIENT, PETER GRANT and CONSENT AND CAPACITY BOARD

Respondent

REASONS FOR JUDGMENT

Then J.

Released: February 21, 2005