CITATION: Joshua Beckford v. Dr. Shelley Brook, 2016 ONSC 1549
COURT FILE NO.: CV-15-538254
DATE: 2016-03-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOSHUA BECKFORD Appellant
– and –
DR. SHELLEY BROOK Respondent
O. Benjamin Vincents, for the Appellant
Alexandra V. Mayeski, for the Respondent
HEARD: March 2, 2016
ENDORSEMENT
DIAMOND J.:
Overview
[1] This is an appeal from a decision dated September 28, 2015 of the Consent and Capacity Board (the “Board”) which confirmed the appellant’s involuntary admission to the St. Michael’s Hospital (the “Hospital”).
[2] The appellant was diagnosed with bipolar disorder in 2012. Since then, he has been hospitalized on at least nine separate occasions as a result of non-adherence to prescribed medication. According to the evidence before the Board, commencing in the summer of 2015, the appellant once again stopped taking prescribed medication, and began suffering from substantial mental deterioration.
[3] The appellant was taken to the Hospital on September 2, 2015, and was involuntary admitted pursuant to the issuance of a Form 3 (Certificate of Involuntary Admission) under the Mental Health Act, R.S.O. 1990, c. M.7. That Form 3 was subsequently renewed pursuant to a Form 4 (Certificate of Renewal) signed by the respondent, Dr. Shelley Brook on September 17, 2015. Of note, the Form 4 was set to expire on October 16, 2015.
[4] The appellant applied to the Board for a review of his involuntary status. The Board ultimately confirmed the Form 4. The appellant then launched an appeal of the Board’s decision by way of Notice of Appeal dated October 9, 2015.
[5] The Form 4 expired on October 16, 2015. The appellant was thereafter discharged from the Hospital on October 28, 2015, and since then has apparently been functioning very well with current plans to travel to Africa and perform volunteer work.
[6] The appeal of the Board’s decision was scheduled to proceed before me on March 2, 2016. However, the parties agreed that I first address the respondent’s preliminary motion seeking an order declaring the appeal to be moot, as nearly five months have passed since both the Form 4 expired and the appellant was discharged from the Hospital.
The Doctrine of Mootness
[7] In Borowski v Canada (Attorney General) 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, the Supreme Court of Canada set out the criteria to be considered by the Court when assessing whether or not a proceeding has become moot. In commenting upon the policy behind the doctrine of mootness, the Court held as follows:
“The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly, if, subsequent to the initiation of the action or proceeding, events occur which effect the relationship of the parties so that no present live controversy exists which affect the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.”
[8] In deciding whether a matter is moot, I must apply a two-step analysis:
(1) Is there still a “live controversy”, in the sense of whether the required tangible and concrete dispute between the parties has disappeared and the underlying issues have thus become academic?
(2) If there is no longer a live controversy, is it nevertheless necessary for the court to exercise its discretion to hear the case?
[9] Under the second step of the analysis, the Supreme Court of Canada established three rationales for the court to weigh in determining whether to exercise its discretion:
a) as the court’s competence to resolve legal disputes is rooted in the adversary system, even in the absence of a live controversy, the court may still exercise its discretion to rule upon a moot issue if the adversarial relationship continues between the parties;
b) as there is a need to ration scarce judicial resources among competing parties, there must be special circumstances present to make it worthwhile for the court to resolve the dispute; and,
c) as the court must not be viewed as intruding into the role of the legislative branch of government, the court must demonstrate a measure of awareness of its proper lawmaking function.
Is there a live controversy?
[10] In my view, the tangible and concrete dispute between the parties has now disappeared and the underlying issue(s) have become academic. The respondent was never the appellant’s treating physician. The respondent was the attending physician who assessed the appellant upon his involuntary admission to the Hospital. There is no prior or future lis between the parties.
[11] As held by Justice Sheard in S. (R.M.) v. Wainberg [1997] O.J. No. 4933 (Gen. Div.) where a Certificate of Involuntary Admission expires prior to the appeal of the Board’s decision, the appeal becomes moot.
[12] As such, I do not find the presence of a live controversy and this appeal is moot.
Should I nevertheless exercise my discretion?
[13] I do not believe that the first rationale is engaged by the facts of this case. As stated above, there is no remaining lis between the parties. There is no ongoing adversarial relationship between the parties whatsoever.
[14] In a very passionate and focused argument, counsel for the appellant submitted that special circumstances exist in this case which warrant the exercise of my discretion to hear the appeal. Counsel for the appellant submitted that when the Board is charged with making a decision whether or not to confirm a Certificate of Involuntary Admission, the Board will resort to section 20(1.1) of the Mental Health Act which requires the attending physician to consider, inter alia, “the person’s history of mental disorder”. While this is only one of several factors to be considered by the attending physician, the appellant contends that:
a) he is seeking to overturn the Board’s decision based upon a reversible legal error, and
b) in the event the appellant is involuntary admitted in the future, in the absence of the ability to successfully challenge the Board’s decision, that decision will remain “on record” and has now established a new “base line” for the appellant’s history of mental disorder.
[15] The appellant belongs to a vulnerable class of persons subjected to potential involuntary admissions. I do not hesitate in finding that involuntary admissions have the potential to cause recurring issues for these vulnerable people. The issue is whether the appellant’s argument as framed above can fall within the “special circumstances” rationale.
[16] Traditionally, examples of special circumstances include cases which raise an issue of public importance (ie. a resolution is in the public interest), and cases “of a recurring nature but brief duration” which may otherwise evade an appellate review.
[17] In S. (R.M.) v. Wainberg, Justice Sheard relied upon Borowski to find that “the mere fact, however, that a case raising the same point is likely to occur even frequently should not by itself be a reason for hearing an appeal that is moot…appeals of the Board’s decision on any future hearing related to the patient’s status must be determined on the issues involved then.”
[18] In Nasr v. Wong [2007] O.J. No. 5579 (S.C.J.), the patient argued against the application of the doctrine of mootness and relied upon determinations to be made in future proceedings based upon and making reference to the Board’s findings under appeal. In dismissing that argument, Justice Echlin held as follows:
“I find that the determination of the subject appeal is moot. I say so because while Mr. Haber may be contemplating future challenges, the fact remains that at present, Mr. Nasr has been released and there are no outstanding proceedings. Furthermore, I am not convinced that the determinations made by the Board (which are sought to be appealed from) will have any significance in any future proceedings, having regard for the requirement that evidence will be looked at relating to the ‘time of the hearing’. The events of last year can hardly be said to be of utility to the determination which will be sought at a future date.
It would appear that Mr. Nasr’s next challenge will be the outstanding CTO. That issue is not before me. I find it speculative to suggest that the Board determinations appealed from can, in any relevant fashion, impact upon the determination of any relevant as-yet uninitiated proceedings. At present there are no disputes and a future review of the decision would be academic.
I therefore find that this appeal is moot, I decline to exercise my discretion to hear the case in any event.”
[19] I do appreciate the appellant’s concerns that the Board’s decision, if legally incorrect, ought to be “expunged” from any potential future proceedings under the Mental Health Act. However, in the face of the existing jurisprudence I share Justice Echlin’s view that such contemplated future proceedings are, at this moment, simply too speculative to warrant the exercise of my discretion. The appellant’s history of mental disorder is just one of several considerations for an attending physician who may one day assess the appellant anew. The facts which informed the issuance of Form 3 and Form 4 may be completely different from those events which may or may not occur in the future. As such, I do not find the presence of the necessary special circumstances to warrant the exercise of my discretion.
[20] I therefore grant the respondent’s motion and the appeal is dismissed on the ground of mootness.
[21] Neither party sought any costs of this motion, and as such there shall be no costs.
Diamond J.
Released: March 4, 2016
CITATION: Joshua Beckford v. Dr. Shelley Brook, 2016 ONSC 1549
COURT FILE NO.: CV-15-538254
DATE: 20160304
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOSHUA BECKFORD Appellant
– and –
DR. SHELLEY BROOK Respondent
ENDORSEMENT
Diamond J.
Released: March 4, 2016