E.S. v. Joannou, 2015 ONSC 1316

COURT FILE NO.: CV-14-511824

DATE: 20150303

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: E.S. / Appellant

AND:

Dr. Jason Joannou / Respondent

BEFORE: Justice Edward P. Belobaba

COUNSEL: Kelley Bryan for the Appellant

David Quayat and Ryan Breedon for the Respondent

Yashoda Ranganathan for the Intervenor, Attorney General of Ontario

HEARD: February 26, 2015

APPEAL FROM THE CONSENT AND CAPACITY BOARD

[1] E.S. appeals from a decision of the Consent and Capacity Board (“CCB”) made on August 8, 2014 with reasons released on August 29, 2014. The CCB found that the appellant met the conditions for involuntary patient status under the Mental Health Act (“MHA”).[1] The appellant does not challenge that finding in this appeal and has since been discharged as an in-patient.

[2] The appellant is pursuing this appeal to vindicate her Charter[2] rights. She alleges that the respondent physician wrongfully administered an injection while she was involuntarily detained at the psychiatric facility and in doing so breached her rights under section 7 of the Charter. The appellant seeks the following:

(i) a declaration that her treatment on July 10, 2014 with a long lasting anti-psychotic medication, namely Paliperidone, was undertaken without consent[3] in violation of her rights under section 7 of the Charter; and

(ii) an order rescinding the certificate of renewal nunc pro tunc because the CCB failed to consider the impact of the Charter breach occasioned by the injection and erred in finding that it lacked jurisdiction to grant remedies under section 24(1) of the Charter.

[3] The requested declaration cannot proceed and must be dismissed. This declaratory relief was not sought before the CCB hearing and is not mentioned in the Notice of Appeal. The appellant acknowledges these irregularities but asks that the court exercise its jurisdiction under s. 24(1) of the Charter separate and apart from this appeal on a stand-alone basis and conclude on the record before it that the appellant’s section 7 rights were breached and that the requested declaration is a remedy that is “appropriate and just in the circumstances.”

[4] If this court were to grant this ad hoc remedy separate and apart from this appeal, it would not only be inappropriate and unjust, it would be fundamentally unfair. The respondent physician is entitled to receive proper notice, file evidence and cross-examine opposing parties. If the appellant intends to ask this court to exercise a stand-alone jurisdiction under s. 24(1) of the Charter (and she has every right to do so) she must first serve and file the required application. It would be a violation of every principle of procedural fairness for this court to determine unilaterally and on an incomplete record that the respondent had violated the appellant’s section 7 rights. The requested declaration is a non-starter.

[5] The remaining issue on appeal – whether the CCB erred in not rescinding the certificate of renewal under s. 41(2) of the MHA even though the requirements for involuntary admission had been met – is also problematic. The appellant has been discharged from the psychiatric facility. The CCB no longer has jurisdiction over the appellant. The certificate of renewal has expired on its own accord and cannot, in any meaningful sense, be rescinded. Put simply, the ‘rescission’ issue on this appeal is moot.

[6] There is no longer a live controversy between the parties.[4] The substratum on which the case was based has ceased to exist.[5] And there is no pressing issue that will be evasive of review.[6] According to its Annual Report, the CCB hears over 2000 cases each year. The scope of the CCB’s discretion under s. 41(2) of the MHA and whether it has a Charter jurisdiction to grant remedies under s. 24(1) are issues that can be raised in numerous other proceedings and be properly brought before this court on appeal. There is simply no compelling reason to deal with an important constitutional question – whether or not the CCB has a section 24(1) jurisdiction - on an appeal that is (for all practical purposes) moot.

[7] If I am wrong about the appeal being moot, I would have still have dismissed the appeal for the following reason. I would have concluded that the CCB was correct in finding that even if it had a section 24(1) jurisdiction, it did not have the power to grant the particular remedy sought (rescission of the certificate of renewal of involuntary status) for the Charter breach alleged. There was no nexus between the issue before the CCB (whether the appellant’s involuntary admission was lawful pursuant to the criteria under the MHA) and the alleged Charter breach (treatment without consent under the HCCA.[7]) As the CCB stated in its reasons for decision:

Rescinding a certificate of involuntary admission for a reason that has no nexus with the statutory criteria for involuntary admission would not be appropriate and just in the circumstances.[8]

[8] In my view, this was the correct analysis.

Disposition

[9] The requested declaration is without foundation and must be dismissed. The request for the rescission of the certificate of renewal is dismissed as moot.

[10] If costs are sought by the respondent physician or the intervenor, they should forward their submissions within 10 days, and the appellant within 10 days thereafter.

Date: March 3, 2015 Belobaba J.

[1] Mental Health Act, R.S.O. 1990, c. M.7, as amended.

[2] Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11.

[3] After a determination that the appellant lacked treatment capacity, the PGT provided substitute consent but only for a short-acting injectable anti-psychotic called Loxapine. The allegation is that no consent was provided for the injection of the long-acting Paliperidone.

[4] Borowski v Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342 at 353, 358-59 and 360-61.

[5] Phillips v Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 86 (SCC), [1995] 2 S.C.R. 97 at para. 9.

[6] Ibid., at para. 12.

[7] Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A.

[8] In the Matter of ES: Reasons for Decision of the Consent and Capacity Board (August 29, 2014) at 36 (14-1428).