E.S.v. Joannou, 2015 ONSC 1897

COURT FILE NO.: CV-14-511824

DATE: 20150324

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 Attorney General of Ontario

HEARD: February 26, 2015

COSTS AWARD

[1] In a decision released on March 3, 2015[^1] I dismissed E.S.’s appeal from a decision of the Consent and Capacity Board (“CCB”) dated August 8, 2014. The CCB found that the appellant met the conditions for involuntary patient status under the Mental Health Act.[^2] E.S. did not challenge this finding on the appeal. Instead her counsel sought a declaration (that was not before the CCB or mentioned in the Notice of Appeal) that the appellant’s Charter rights had been violated - 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.

[2] I concluded that the requested declaration was without foundation and, because the appellant has since been discharged from the psychiatric facility, the request that the certificate of renewal be rescinded was moot. I said the following:

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.”

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.[^3]

[3] I include this excerpt to emphasize again that the bulk of the appeal was devoted to a remedy that was personally directed against the respondent physician and that was not sought at the CCB or mentioned in the Notice of Appeal. In these circumstances, I find it fair and reasonable that the respondent be awarded some costs on a partial indemnity basis.

[4] I am mindful of the appellant’s financial situation and that (as her counsel puts it) she is a member of “a vulnerable population.” Nonetheless, the appellant (through her counsel) proceeded in a fashion that was “fundamentally unfair.”^4 I am advised that the respondent physician is paying his own legal costs. His legal bill will not be reimbursed by the psychiatric facility. It is therefore only fair that at least some of these legal costs be paid by the appellant.

[5] The respondent asks for $4500 all-inclusive on a partial indemnity scale, which is a reduction from the $5300 actually incurred. This is not an unreasonable request. However, in all the circumstances, I reduce the requested amount even further to an even $3000.

[6] The Attorney-General of Ontario has advised that it is not seeking costs.

[7] Order therefore to go fixing costs at $3000 all-inclusive, payable forthwith by E.S. to Dr. Joannou.

Belobaba J.

Date: March 24, 2015

[^1]: E.S. v. Joannou,2015 ONSC 1316.

[^2]: Mental Health Act, R.S.O. 1990, c. M.7, as amended.

[^3]: Supra, note 1, at paras. 3-4.