CITATION: K.F. v. Douziech, 2016 ONSC 2126
COURT FILE NO.: DC15-66023, DC-15-2156
DATE: 2016/03/31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: In the MATTER OF an appeal from a decision of the Consent and Capacity Board, pursuant to the Health Care Consent Act, S.O.1996, c. 2, Schedule A, as amended
AND IN THE MATTER OF K. F., A patient at the ROYAL OTTAWA MENTAL HEALTH CENTRE, Ottawa, ONTARIO
BETWEEN:
K. F.
Appellant
-and -
DR. JEFF DOUZIECH
Respondent
-and-
DR. ALAIN LABELLE
Respondent
BEFORE: Madam Justice Liza Sheard
COUNSEL: Marni D. Munsterman for Appellant
Michelle O’Bonsawin for the Respondents
HEARD: February 12, 2016
ENDORSEMENT
Introduction
[1] The appellant has brought a motion for an order that I admit fresh evidence to be considered on his appeals from the decisions of the Consent and Capacity Board (“the CCB”) made October 8, 2015 and November 9, 2015.
[2] I have not seen the fresh evidence that the appellant seeks to put before me. It was filed with the court but I had not read it prior to the hearing. Counsel agreed that I ought not to look at it prior to deciding whether or not to admit it as fresh evidence.
[3] Counsel for the moving party advises that the fresh evidence consists of an affidavit sworn by the appellant on January 25, 2016 together with exhibits. I understand the exhibits include:
(i) the notes from the appellant’s family doctor, Jane Bruce, that cover the period from May 2008 to August 2015;
(ii) Royal Ottawa Hospital notes from June 2014 to October 27, 2015; and
(iii) a letter sent by the appellant after the November 2, 2015 hearing.
[4] The appellant argues that this evidence is relevant to the decision of the CCB regarding capacity but are even more relevant to the decision of the CCB with respect to the appointment of the appellant’s brother as his sole representative to consent to or refuse all treatment including antipsychotic medications.
[5] Specifically, the appellant argues that the fresh evidence addresses evidence of the appellant’s prior capable wishes with respect to treatment with Clozapine. Counsel for both parties agree that the only evidence that would be relevant is evidence of the appellant’s prior wishes and views, expressed while he was capable, with respect to whether or not he wanted to take Clozapine.
[6] The appellant’s evidence before me on the motion was his seven-paragraph affidavit sworn February 5, 2016. In it, the appellant states that he chose not to testify at either CCB hearings and did not lead evidence regarding his documented prior capable wishes regarding treatment. At paragraph two, the appellant asserts that, despite the fact that the appellant did not give evidence, the CCB made a determination regarding documented prior capable wishes regarding treatment without a full and complete hearing on the issue.
[7] At paragraphs 3 and 4 of his affidavit, the appellant states that the existence of his prior capable wishes “has become a live issue in the determination of the appropriateness of the current appointed Substitute Decision Maker, as well as the determination of who the appointed Substitute Decision Maker should be, … Since the initial hearing of the matter, my mother is no longer willing to act as my Substitute Decision Maker.”
[8] At paragraph 7, the appellant states that, although his hospital records were referred to in testimony, they were not filed as exhibits. He argues that those records are relevant and necessary for the Court to consider when determining the merits of his appeal.
[9] In the course of submissions from counsel for the parties, I understand that the “fresh” evidence that the appellant seeks to introduce could have been obtained and presented at the CCB hearings. To that extent, it is not new or fresh.
[10] Counsel for the responding party also drew my attention to portions of the transcripts of the CCB hearings. Those transcripts show that the appellant was represented at both hearings by the same counsel that represents him today. It also shows that there was a vigorous cross-examination on the issue of the appellant’s wishes with respect to his treatment with Clozapine. Dr. Labelle had been the appellant’s doctor since 2012. His evidence on the hearing was that the appellant had not expressed a “total refusal” to take Clozapine but asked for more information about it, and its side effects.
[11] Counsel for the appellant argues that this evidence could support a conclusion that the appellant did express a wish not to take Clozapine, which would be relevant to the hearing. Without determining whether or not that interpretation of Dr. Labelle’s evidence is correct, I note that the issue was raised at the hearing and that counsel for the appellant conducted a vigorous cross-examination on this evidence. Further, the appellant chose not to give evidence at either CCB hearing.
[12] I conclude that, had the appellant believed his evidence on this issue to be important and relevant to the decision of the CCB, it was within his power and control to give that evidence himself. Further, he could have obtained the medical records of his family doctor. I am not satisfied that this evidence is new or that it could not have been obtained with due diligence.
The Law
[13] Counsel were in agreement with respect to the applicable statutory and case law.
[14] The hearing before the CCB was governed by the Health Care Consent Act, S.O. 1996, c. 2, Sched. A (the “Act”). Section 21.1 of that Act requires a person who is giving or refusing consent on an incapable person’s behalf to do so in accordance with the known wishes of the incapable person, expressed while capable. If there are no known wishes then the decision is made in accordance with the incapable persons best interests.
[15] Section 80 of the Act contains the provisions respecting an appeal to Superior Court of Justice from a decision of the CCB. Subsection 80 (9) permits the court to receive new evidence:
(9)The court shall hear the appeal on the record, including the transcript, but may receive new or additional evidence as it considers just. 1996, c. 2, Sched. A, s. 80 (9).
[16] The appellant argues that I should find that it is just to receive his new evidence.
[17] Counsel referred me to a number of cases on the admissibility of fresh evidence. Both referred me to the Supreme Court of Canada decision of R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. In Palmer, the court set out the following principles to be applied in considering whether or not to admit fresh evidence (p.13):
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) The evidence must be credible in the sense that it is reasonably capable of belief; and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[18] Counsel for the appellant agreed that the test set out in Palmer is a four-part test. I find that the appellant has failed to meet the first part of the test. Counsel for the appellant argues that a less stringent test should be applied in cases of this type.
[19] Counsel for the respondent referred me to the 2013 decision of Puri v. Papatheodorou, 2013 ONSC 2537. That case is an appeal from a CCB decision. That court followed Palmer and did apply the four-part test.
[20] Counsel for the appellant also relied upon the decision in Jacques v. Conway, [1998] O.J. No. 3743 (Gen. Div.). This decision related to an appeal from a decision requiring the appellant to undergo psychiatric treatment. The court did not specifically refer to R. v. Palmer, but did allude to the jurisprudence which, in ordinary circumstances, would apply to refuse new or fresh evidence where such evidence was available at the time of the first hearing. The court in Jacques did admit new evidence. However, in that case, the court was being asked not to receive evidence to improve the evidence given at the original hearing but, rather, to provide evidence where there had been no evidence led on the issue.
[21] That is not the case here.
[22] There are other reasons not to grant the appellant’s motion:
(a) the records of the family doctor that the appellant seeks to put before me, include periods of time during which he was incapable. The Record shows that he was involuntarily hospitalized between September and December 2010. Thereafter he was subject to a Community Treatment Order. I understand that those orders are generally made when a person is incapable.
I do not and will not have enough evidence before me today to determine whether or not the wishes that may or may not be set out in the records of the family doctor were expressed by the appellant at a time during which he was capable. That affects the reliability of the wishes that may be recorded in those notes;
(b) the affidavit sworn by the appellant was prepared after all of the evidence was called and after the decisions were made by the CCB. That allowed him the opportunity to craft an affidavit with the benefit of hindsight. Again, he chose not to give evidence or to put forth his family doctor’s records at the CCB hearings, but he seeks to do so now and to add to it his own views on his prior expressed wishes. The timing of his request to have this evidence considered gives rise to a concern that his affidavit would not be credible or reliable for the purposes of a determination of the merits of his appeals; and
(c) if the affidavit speaks the appellant’s wishes concerning treatment with Clozapine, given the conclusions of the CCB that he is incapable with respect to that particular treatment decision, I am not satisfied that his affidavit would be reliable for the purposes of this appeal.
[23] In conclusion, having reviewed the cases put forth by the appellant and respondent on the motion, the evidence before me, which included portions of the CCB hearing transcripts as well as the Record of Proceedings in both hearings, I am not satisfied that it would be just for me to receive the new evidence put forth by the appellant.
[24] The motion is dismissed.
Madam Justice Liza Sheard
Date: March 31, 2016
CITATION: K.F. v. Douziech, 2016 ONSC 2126
COURT FILE NO.: DC15-66023, DC-15-2156
DATE: 2016/03/31
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: In the MATTER OF an appeal from a decision of the Consent and Capacity Board, pursuant to the Health Care Consent Act, S.O.1996, c. 2, Schedule A, as amended
AND IN THE MATTER OF K. F., A patient at the ROYAL OTTAWA MENTAL HEALTH CENTRE, Ottawa, ONTARIO
B E T W E E N:
K. F.
Appellant
- and -
DR. JEFF DOUZIECH
Respondent
-and-
DR. ALAIN LABELLE
Respondent
endorsement
Sheard J.
Released: March 31, 2016