SUPERIOR COURT OF JUSTICE - ONTARIOl

COURT FILE NO: 03-106/12
DATE: 20121204

RE: Christina Matys

Appellant

• and -

Dr. Gregory Chandler

Respondent

BEFORE: The Honourable Mr. Justice Kevin Whitaker

COUNSEL:
Appellant Acting in Person
Respondent, In Person

E N D O R S E M E N T

Re Appointment of Amicus Curiae

[ 1 ] Ms. Matys has appealed the decision of the Consent and Capacity Board (“ CCB ”) dated October 17, 2012 by Notice of Appeal dated October 24, 2012. As required by section 80(4) of the Health Care Consent Act, 1996 , S.O. 1996, c. 2 (the “ Act ”), the Board has filed with the court the record of the proceeding before the Board and the transcript of oral evidence given at the hearing.

[ 2 ] Ms. Matys has not yet taken the next step which is required to perfect her appeal, namely filing a factum within 14 days after being served with the record and transcript (section 80(5) of the Act). This appeal has not and cannot be heard without the preparation and filing of a factum from both the appellant and respondent, as required by sections 80(5) and (6) of the Act.

[ 3 ] I am satisfied, given the issues of fact and law raised by this appeal, that amicus curiae needs to be appointed to assist in preparing a factum for Ms. Matys so that this case can move forward to a hearing before this court. Amicus curiae is further required to assist in presenting the issues on appeal to the court at the hearing.

[ 4 ] The Ministry of the Attorney General of Ontario (AG) has advised the court that it has identified, through Legal Aid Ontario, counsel from its Consent and Capacity Panel who are prepared to serve as amicus curiae on CCB appeals.

[ 5 ] In addition, the Mental Health Legal Committee has provided the court (and the court has provided the AG) with the names of six counsel who are experienced in the mental health field and who have acted as appellate counsel in CCB appeals to this court.

[ 6 ] Therefore, I appoint amicus curiae on the following terms:

(a) I request the AG to select, within 15 days from the date of this Endorsement, counsel to act as amicus curiae in this case. I expect that counsel will have the requisite level of experience to act as amicus curiae on this appeal and will be afforded sufficient time to adequately prepare for this appeal, all commensurate with the degree of complexity of the factual and legal issues in this case. In that regard, the AG has advised the court that the former tariff of 16 hours will now be increased to 30 hours for CCB appeals.

I request that the AG select the appropriate counsel from the pool of counsel referred to in paragraphs 4 and 5 of this Endorsement. I further request that the AG, forthwith after selecting counsel , advise Dr. Gregory Chandler, or his counsel, of the name of the selected counsel and file with the court a notice with the name and contact information for the selected counsel;

(b) Amicus curiae shall consult with Ms. Matys, review the court file and prepare and file a factum presenting the issues from Ms. Matys’ perspective. Amicus curiae shall further contact Dr. Gregory Chandler, or his counsel, about scheduling matters for the appeal and shall make oral submissions at the hearing of the appeal;

(c) Ms. Matys’ factum shall be served and filed within 30 days from the date of this Endorsement. The respondent’s factum shall be served and filed within 15 days thereafter. I have extended the prescribed time periods for filing a factum in accordance with section 80(7) of the Act; and

(d) as soon as possible after amicus curiae has been selected, counsel shall schedule a mutually convenient date for the appeal hearing through the Estates Office. The appeal hearing date shall be no later than 90 days from the date of this Endorsement, subject to availability of court time.

[ 7 ] Dr. Gregory Chandler has not yet appointed counsel for this appeal.

[ 8 ] If Dr. Chandler intends to have counsel represent him on the appeal, he shall retain counsel and such counsel shall go on the record forthwith.

[ 9 ] If there is any difficulty with the time frames set out in this Endorsement or if the parties require further direction from the court, they may attend at a regular Estates List Scheduling Appointment for direction or court order. Any judge sitting on the Estates List may provide such direction or court order at the Scheduling Appointment.

[ 10 ] I am sending a copy of this Endorsement to the AG to implement the arrangements for amicus curiae in accordance with the above terms.

Whitaker J. (Lead Administrative Judge of the Estates List)

DATE: December 4, 2012