Salem v. Kantor, 2016 ONSC 7130

CITATION: Salem v. Kantor, 2016 ONSC 7130

COURT FILE NOS.: CV-16-552572, CV-16-552573

DATE: 20161207

ONTARIO

SUPERIOR COURT OF JUSTICE

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 Pursuant to the Mental Health Act, R.S.O. 1990, Chapter M.7

AND IN THE MATTER OF MAURICE SALEM, a resident of Oakville, Ontario

BETWEEN:

MAURICE SALEM Appellant

– and –

DR. DAVID KANTOR Respondent

COUNSEL:

Joanna Weiss, for the Appellant

Kara Smith, for the Respondent

HEARD: September 28, 2016

LEDERER J.:

INTRODUCTION

[1] There are two appeals[^1], both from a decision of the Consent and Capacity Board.

[2] The respondent physician, Dr. David Kantor, found that the appellant, Maurice Salem, did not have capacity “with respect to a treatment”.[^2] The Board conducted a hearing. It confirmed the determination of the doctor. The first of the two appeals is from that finding.

[3] The physician sought to issue a “community treatment order”[^3].

[4] The Mental Health Act sets criteria which must be met before such an order is issued.^4 Maurice Salem believed that the criteria had not been met. In particular, it was his view and that of his counsel, that a rights advisor did not “promptly” consult Maurice Salem who, thus, was not advised of his legal rights (see fn. 4 below, s. 33.1(4)(e)). Following the hearing, the Board concluded that each of the criteria had been met. The second appeal is from that determination.

[5] Both appeals seek to have the decision of the Board set aside or quashed.

BACKGROUND

[6] Maurice Salem was the subject of a Community Treatment Order, dated March 30, 2016. His health care practitioner, Dr. David Kantor, had found him incapable of consenting to treatment with antipsychotic medication and to the Community Treatment Plan^5 that had been prepared. The Community Treatment Plan formed the basis of the Community Treatment Order. The Consent and Capacity Board convened at the request of Maurice Salem to review the findings of both incapacity and the satisfaction of the criteria required for the Community Treatment Order. The hearing took place on May 4, 2016. The panel’s Decisions were released the following day. The written reasons were released on May 9, 2016.[^6]

[7] As described by the Board, Maurice Salem was a 30-year-old man who lived with his mother and three adult siblings in their Oakville family home. He had some college education and had worked as both a trucker and in the family business. At the time of the hearing (May 4, 2016), he was receiving Ontario Disability Support Program benefits.

[8] Maurice Salem was first treated for a mental disorder in 2009. He has been hospitalized at least six times since that time. His first two Community Treatment Orders were issued on May 31, 2012 and December 11, 2012. Subsequent Community Treatment Orders issued on March 7, 2014 and July 23, 2015 were revoked by different panels of the Consent and Capacity Board. The hearing, from which these appeals are taken, was in respect of the capacity of Maurice Salem and the validity of a new Community Treatment Order, the one dated March 30, 2016.[^7]

STANDARD OF REVIEW

[9] The parties differ as to the standard of review that applies in this case. For lawyers who practice in this area, the seminal case considering the standard of review to be applied to an appeal of the Consent and Capacity Board is Starson v. Swayze.[^8] In that case, the judgment of the majority noted:

The interpretation of the legal standard for capacity is a question of law: see Southam, supra, at para. 35. No deference is owed to the Board on this issue. As noted above, the broad statutory right of appeal and adjudicative nature of the proceedings militate against deference. Furthermore, courts clearly have relative expertise on general questions of statutory interpretation. One of the stated purposes of the Act is to provide for the consistent application of its rules: s. 1. Consistency requires courts to ensure that individual panels do not diverge in their interpretation of statutory provisions. Finally, this question of law has broad application and need not be resolved anew on each appeal. A correctness standard of review on this issue will not impede the expeditious treatment of patients.[^9]

[10] The application of the facts to the legal standard was dealt with as follows:

The question under review is the Board’s determination of capacity. This is a question of mixed fact and law: the Board must apply the evidence before it to the statutory test for capacity. In the absence of any error in law, this question is relatively fact-intensive: see Southam, supra, at paras. 35-37. Applying the pragmatic and functional approach to this question, it is clear that reasonableness [as opposed to patent unreasonableness] is the appropriate standard of review.[^10]

[Emphasis added]

[11] The dissenting judgment agreed and, as might be expected, applied a similar deferential standard of review to findings of fact:

I agree with my colleague Major J. that the Board’s interpretation of the law is reviewable on a standard of correctness. On the application of the law to the facts, I agree that the Board’s decision is subject to review for reasonableness. The legislature assigned to the Board the task of hearing the witnesses and assessing evidence. Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts. This means that the Board’s conclusion must be upheld provided it was among the range of conclusions that could reasonably have been reached on the law and evidence.[^11]

[12] The reference to the “pragmatic and functional approach” notes the analytical approach to assessment of the standard of review in place prior to Dunsmuir v. New Brunswick.[^12] That case re-aligned the examination of this issue as it applies, in particular, to judicial review. Housen v. Nikolaisen[^13], decided a little over a year before Starson v. Swayze[^14], considered the issue of standard of review as it applies to appeals. Under its approach, questions of mixed fact and law fall on a spectrum, ranging from matters with precedential value, generally matters of legal principle, tending towards the correctness end, and those reliant on the particular circumstances, generally, questions of fact, falling towards the deferential or palpable and overriding error side.[^15] In the context of the case at hand, the court is being asked to consider questions which are of mixed fact and law. The circumstances of Maurice Salem (the facts) are to be applied to the relevant and applicable legislative provisions (the law). As such, the guidance provided by Starson v. Swayze and Housen v. Nikolaisen applies.

[13] In the factum of the respondent, it is submitted that insofar as an appeal from the Consent and Capacity Board may raise an issue of law, correctness is no longer the test. This flows from the recognition that there is a presumption that reasonableness will apply when a tribunal is applying it home statute or a statute closely connected with its function.

[14] The factum refers to and relies on Ackie v. Manochi.[^16] The case considered an appeal from the Consent and Capacity Board. It dealt with an end-of-life decision: Should a palliative care plan be implemented, allowing life supports to be withdrawn from a woman who the medical profession assessed as being in a permanent vegetative state, in the face of family members, including a substitute decision-maker (the mother), who believed in miracles and that the woman would recover. The judge observed that there is a trend to viewing appeal rights, at best, as “…an indirect indication of the legislature’s intent and not determinative of the analysis”[^17] and concluded that “…[s]uch a right cannot on its own rebut the presumption of reasonableness [in a] review for a tribunal’s application and interpretation of its home statute.”[^18] Despite this, the case does not go so far as to apply the standard of reasonableness to a purely legal question such as the “interpretation of the legal standard for capacity” (see: para. [9], above). The judge concluded that “… the Board is entitled to deference in its findings of fact and weighing of evidence”.[^19] This does not touch on how a question of law should be reviewed. Ackie v. Manochi refers to a decision of the Court of Appeal: T.(I.) v. L.(L.).[^20] It considered an “urgen[t]” circumstance where the individual of concern was “extremely ill and was deteriorating with the passage of time.”[^21] A reasonableness standard was applied. This was done, in part, noting that the issues to be decided were questions of fact and on the concern that removing deference would allow these decisions to be delayed to the detriment of the process and those involved.[^22]

[15] To my mind, this is all consistent with the direction found in Starson v. Swayze and Housen v. Nikolaisen. Matters of fact are to be determined by applying a reasonableness standard. Matters of mixed fact and law are to be determined on a spectrum ranging from “palpable and overriding error” to “correctness”. The fact that it is an end-of-life decision or one where the health of the person of concern is “deteriorating” that is being made would surely influence where on the spectrum the particular matter would fall.

[16] I go through this analysis to make the following point. To my mind, in this situation, we should be careful how quickly or easily we move to a reasonableness standard. Decisions like this one deal with the individual and personal autonomy of those affected by them. Individual autonomy is a basic, even fundamental, value of our society.[^23] Its significance extends beyond a single statute or the interpretation one tribunal may apply to its home statute. If I were required to do so in this case, if a question requiring an interpretation of the legal standard for capacity (found by the Supreme Court of Canada in Starson v. Swayze to be a question of law (see: para. [9], above)) arose, I would continue to apply the standard of review of correctness as Starson v. Swayze directs.

CAPACITY

[17] The legal test to determine capacity asks: (1) whether a person can understand the information relevant to a treatment decision, and (2) whether a person can appreciate the reasonably foreseeable consequences of the decision to refuse or accept treatment.

[18] In this case, only the second prong of the test was at issue before the Consent and Capacity Board.

[19] In order to meet the standard, the person must be able to recognize the possibility that the decision will affect him or her even if he or she does not accept the diagnosis. The relevant inquiry was reviewed in Starson v. Swayze:

Capacity involves two criteria. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information….Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof….

Before turning to an analysis of the reviewing judge’s decision, two important points regarding this statutory test require comment. First, a patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to his own circumstances. Psychiatry is not an exact science, and ‘capable but dissident interpretations of information’ are to be expected: see Weisstub Report, supra, at p. 229. While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental ‘condition’, the patient must be able to recognize the possibility that he is affected by that condition. Professor Weisstub comments on this requirement as follows (at p. 250, note 443):

Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The word condition allows the requirement for understanding to focus on the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations.

As a result, a patient is not required to describe his mental condition as an ‘illness’, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s opinion regarding the cause of that condition. Nonetheless, if the patient’s condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant information to his circumstances, and unable to appreciate the consequences of his decision.[^24]

[Emphasis added]

[20] Similarly, a failure to appreciate the positive effects of treatment or the negative effects of failure to treat will support a finding of incapacity:

As a result of his mental condition, which does not simply include his fixed false belief that he is the rightful King of Canada, the appellant is unable to recognize that he is mentally ill. As a result, he cannot apply the information to his circumstances. He cannot appreciate that without the medication his condition will deteriorate. While the appellant verbalizes that he would rather be in hospital without medication, that is not the same as appreciating the consequences of the failure to treat. For his belief is not that lack of medication will cause his return to hospital. Rather, he believes that he will continue to improve without the medication. The respondent's opinion that the appellant's condition will deteriorate is firmly anchored in the evidence, including evidence of the experience both before and after the appellant began treatment.

The appellant recognizes some of the negative effects of treatment, namely, the side effects. But he has no appreciation of the positive effects of treatment or the negative effects of the failure to treat. To the contrary, as set out above, he believes that his progress is solely the result of his own efforts and that the treatment has retarded his progress. That is manifestly not the case. Moreover, his failure to appreciate is directly related to his mental condition. Because of his false ideas, he does not appreciate that he is ill and does not appreciate that he needs medication. He attributes his hospitalization not to his illness, but to the fact that evil forces are conspiring to keep him from assuming his proper role in this country.[^25]

[Emphasis added]

[21] In this case, the Consent and Capacity Board came to similar conclusions regarding Maurice Salem:

The panel accepted the testimony of Dr. Kantor that MS did not have the ability to appreciate the reasonably foreseeable consequences of a decision with respect to treatment and therefore lacked capacity for such treatment. MS had never accepted that he had a mental disorder. We found on the evidence, however, that his mental disorder, schizophrenia, had foreclosed his ability to appreciate that antipsychotic medication manages his symptoms. Treatment had allowed him to remain in the community for two CTOs and we accepted the testimony of both Dr. Kantor and MS’s mother that failure to adhere to treatment resulted in the lengthy hospitalizations. The panel found that MS did not have the ability to appreciate the consequences of his decision on treatment with antipsychotic medication. [^26]

[22] This finding falls squarely within the second prong of the test. It stands as a detemination that Maurice Salem could not appreciate the reasonably foreseeable consequences of a decision to refuse (or accept) treatment. There was more than sufficient evidence for the Board to come to this conclusion. It heard uncontroverted evidence of Dr. David Kantor and Camelia Salem (the mother of Maurice Salem) which, considered as a whole, would stand to support the findings made by the Board.

THE CRITERIA NECESSARY FOR THE ISSUANCE OF A COMMUNITY TREATMENT ORDER

(a) General

[23] The factum filed on behalf of the appellant points out that, at the outset of the hearing, Dr. David Kantor seemed unaware that there was a concern as to the validity of the Community Treatment Order. Generally, the confusion related to the criteria as a whole but, specifically, concentrated on the alleged failure to recognize the concern that Maurice Salem had not been provided with a proper opportunity to consult with a “rights advisor” and to be advised of his legal rights.[^27] I shall return to this concern shortly. For the moment, I point out only that being unaware of an issue, at the outset, is not determinative of the question whether, at the end of the hearing, the Board had sufficient evidence to satisfy any onus resting with Dr. David Kantor to demonstrate that the criteria found in s. 33.1(4) of the Mental Health Act had been met. At the beginning of the hearing, the Doctor and the Chairperson had the following exchange:

CHAIRPERSON: You weren’t aware, Doctor, that we were going to review the criteria in respect of the Community Treatment?

DR. KANTOR: I’m prepared to do that but no, I wasn’t told that.

[Emphasis added]

[24] The Consent and Capacity Board identified the issue and the standard to be met in considering whether the criteria had been satisfied:

On any review…of the criteria to issue or renew a CTO under the MHA, the onus at a Board hearing is upon the physician who issued the CTO to prove the case. The standard is proof on a balance of probabilities. The Board must be satisfied on the basis of cogent and compelling evidence that the physician’s onus has been discharged. There is no onus on the patient.

The Board must consider all evidence properly before it. Hearsay evidence may be accepted and considered, but it must be carefully weighed.[^28]

(b) The Doctor’s opinion ([s. 33.1(4)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m7/latest/rso-1990-c-m7.html#sec33.1subsec4_smooth) of the [Mental Health Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m7/latest/rso-1990-c-m7.html))

[25] Maurice Salem complains that Dr. David Kantor provided limited evidence with respect to the criteria found in s. 33.1(4)(c)(i-v) of the Mental Health Act. Particular concern was in respect of s. 33.1(4)(iii) and the expressed concern that, absent the Community Treatment Order, Maurice Salem was likely to suffer substantial mental deterioration. The question is not whether the evidence was limited but whether it was sufficient for the Board to make its findings on a balance of probabilities. I point out that these criteria are essentially factual determinations. As such, the standard of review is palpable and overriding error. To the extent that they engage questions of mixed fact and law, such findings would be particular to this case, without much, if any, precedential value and, on that basis, tend to deferential end of the spectrum.

[26] The essential source of the information to be relied on is specified in the Mental Health Act. Section 33.1(4)(c) begins as follows:

… within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that…

[27] The Board, in its reasons, noted that a Form 45 (Exhibit 6, before the Board) contained confirmation that Dr. David Kantor examined Maurice Salem on March 2, 2016. In his Consent and Capacity Board CCB Summary (Exhibit 1, before the Board), Dr. David Kantor confirmed that Maurice Salem entered the Community Treatment Plan on March 4, 2016.

[28] The Board observed that, as he was required to do, Dr. David Kantor went on to form opinions concerning the criteria listed at s. 33.1(4)(c)(i-v). The opinions cited by the Consent and Capacity Board are, as follows:

(i) Was Maurice Salem suffering from a mental disorder such that he needs continuing treatment or care and continuing supervision while living in the community?

In this regard, the Consent and Capacity Board noted the opinion of Dr. David Kantor to be as follows:

Dr. Kantor testified that MS is suffering from mental disorder, namely schizophrenia, and that he needs continuing treatment, care, and continuing supervision to deal with that mental disorder while living in the community. He testified that MS had a long standing diagnosis of the disorder and that when untreated he had suffered substantial mental deterioration that necessitated three very lengthy hospitalizations. We accepted that testimony that there was a direct causal relationship between the failure to adhere to prescribed antipsychotic medication and the substantial mental deterioration and lengthy hospitalizations that ensued.[^29]

(ii) Did MS meet the criteria for psychiatric assessment, given that he was not, at the time, a patient in a psychiatric facility?

In this regard, the Consent and Capacity Board noted the opinion of Dr. David Kantor to be as follows:

At the time of the hearing, MS was not a patient in a psychiatric facility. The criteria for an application for a psychiatric assessment are contained in Section 15 of the MHA… Dr. Kantor gave evidence that the panel accepted as satisfying the criteria contained in Section 15 (1.1) of the MHA. Specifically, the panel accepted the doctor’s uncontroverted testimony that MS had an ongoing mental disorder, namely schizophrenia, for which he had been receiving treatment for many years. When not treated, MS sustained substantial mental deterioration such that he required lengthy hospitalizations. Dr. Kantor confirmed that MS did show clinical improvement as a result of the treatment with antipsychotic medication while in hospital. Dr. Kantor further testified that he had been treating MS for his symptoms of schizophrenia for at least two years, and that his diagnoses had not changed during that time. When MS was non-compliant with treatment he sustained substantial mental deterioration and Dr. Kantor believed that such substantial deterioration would recur without antipsychotic medication. Dr. Kantor determined that MS was incapable with respect to treatment with antipsychotic medication and MS’s mother, his substitute decision-maker, consented to, and supported his treatment with antipsychotic medication.[^30]

(iii) If MS did not receive continuing treatment or care and continuing supervision while living in the community, would there have been serious mental impairment of MS because of mental disorder?

In this regard, the Consent and Capacity Board noted the opinion of Dr. David Kantor to be as follows:

Dr. Kantor, who knew MS and his history (some of which was set out in the Progress Notes which are Exhibit 11), was of the opinion that MS, without continuing treatment and supervision while living in the community, would likely, because of his mental disorder, suffer substantial mental impairment. The panel accepted Dr. Kantor’s testimony that if MS failed to comply with the treatment regime he would sustain those consequences, and that his symptoms would be exacerbated without the treatment, care, and supervision described in the CTP.[^31]

This is one of the criteria to which counsel for Maurice Salem takes particular objection. She complained that the evidence does not establish, on a balance of probabilities, that “but for a CTO, Mr. Salem was likely to suffer from substantial mental deterioration.”[^32] The Board, in putting the question, spoke of “mental impairment”. Counsel and the legislation use the term “mental deterioration”. At face value, these terms can be interpreted differently. To “impair” something, in this case, the mental health of Maurice Salem, is to “weaken” or “damage” it. When something “deteriorates”, it is made “bad” or “worse”.[^33] In this situation, this is a distinction without practical meaning. In substance, the opinion of Dr. David Kantor is that, in the absence of care and treatment being provided while Maurice Salem lives in the community, his mental health will “weaken”, be “damaged”, made “bad” or “worse.” The impact on Maurice Salem of living in the community without treatment, as described by Dr. David Kantor, based on his examination and knowledge of the history of Maurice Salem (some of it found in the Progress Notes), would be “substantial mental deterioration”. His symptoms would be “exacerbated”. This was enough for the Consent and Capacity Board.

In respect of this criteria, counsel for Maurice Salem suggests that the Board failed to consider the evidence that was favourable to her client. It is generally understood that there is no obligation on a decision-maker to refer to each piece of evidence that is provided. The fact that something is not referred to does not mean it was not considered. Having said this, I point out that the fact that Maurice Salem was prepared to take Seroquel and was open to adding another anti-psychotic medication is not helpful. The problem is that Maurice Salem was prepared to take Seroquel because, as he perceived it, it helped him sleep. The evidence before the Board was that this was an indication of his inability to appreciate the consequences of taking this medication.

There is no reason not to accept the opinion of Dr. David Kantor. The foundation for it complies with the requirement of s. 33.1(4)(iii) of the Mental Health Act.

(iv) Was MS able to comply with the Community Treatment Plan contained in the Community Treatment Order?

In this regard, the Consent and Capacity Board noted the opinion of Dr. David Kantor to be as follows:

Dr. Kantor and MS’s mother confirmed their belief that MS could comply with the CTP.[^34]

(v) Was the treatment or care and supervision that MS required under the terms of the Community Treatment Order available in MS’s community?

In this regard, the Consent and Capacity Board noted the opinion of Dr. David Kantor to be as follows:

Dr. Kantor confirmed his opinion that the treatment, care, and supervision that MS requires are available in his community. In particular, the ACCT, Summit Housing and Outreach Programs, the Staff of the CMHA-HRB COAST Program, and the CTO Co-Ordinator are available to provide the assistance that MS requires.[^35]

[29] There is no basis on which to find that any of these opinions of Dr. David Kantor do not comply with the requirements of s. 33.1(4) (i-v) of the Mental Health Act. Each of the criteria was satisfied. There was no error made by the Consent and Capacity Board in relying on the evidence provided to it.

[30] These were not the only complaints made on behalf of Maurice Salem. In the factum filed on his behalf, there is reference to s. 33.1(4)(d) of the Mental Health Act.[^36] It requires the physician to consult with the health practitioners and other persons named in the Community Treatment Plan. It is difficult to understand the foundation of this complaint. The Board, in its decision, refers to the Community Treatment Plan (Exhibit 7, before the Board) which confirms, through the signatures of the affected participants, that they have been involved in the development of the Community Treatment Plan and agreed to the conditions it contains.[^37]

[31] Finally, there is the question of whether Maurice Salem was provided with an opportunity to consult with a “rights advisor” consistent with the requirements of the Mental Health Act, s. 33.1 (4)(e).[^38] This advice is to be provided “promptly.”[^39] Counsel for the appellant submitted that it was not. The Consent and Capacity Board did not agree. It outlined the applicable chronology:

(a) On Wednesday, March 2, 2016, MS was assessed by Dr. Kantor in connection with the prospective issue of a CTO. MS refused to sign the CTP on that occasion. MS’s mother [his substitute decision-maker] signed the CTP;

(b) On Friday, March 4, 2016, Dr. Kantor issued a Form 49 under the MHA (Notice of Intention to Issue a CTO);

(c) On Tuesday, March 8, 2016, both MS and his mother were given a copy of the Form 49, a copy of the CTP, and advised of their right to seek legal counsel and challenge the prospective CTO;

(d) On Wednesday, March 9, 2016, the CTO Co-Ordinator, Sonia McCann, activated rights advice for MS by contacting the Psychiatric Patient Advisory Office (PPAO);

(e) On Friday, March 11, 2016, MS’s mother received her rights advice from Kelly Holden (Exhibit 4);

(f) Between March 9, 2016, and March 16, 2016, Chad Blaauw, the rights advisor for MS, called MS at home, and left at least 3 messages for MS to call him. MS’s mother received 3 messages on voicemail on the home telephone and advised MS to return the calls to the rights advisor. MS did not return the calls;

(g) On Wednesday, March 16, 2016, the CTO Co-Ordinator Sonia McCann, contacted the rights advisor for MS to determine if rights advice had been given yet. She advised that the rights advisor had been unable to contact MS, although he had left telephone messages on MS’s home telephone for MS to contact him;

(h) On Thursday, March 17, 2016 the CTO Co-ordinator secured a cell telephone number for MS, and called the rights advisor to provide that cell telephone number for MS;

(i) Between Thursday, March 17, 2016 and Sunday, March 20, 2016, the rights advisor contacted MS and made arrangements to meet with him over the weekend to provide rights advice;

(j) On Sunday, March 20, 2016, the rights advisor met with MS, and provided him with rights advice (Exhibit 3).[^40]

[32] The Consent and Capacity Board identified the concerns of counsel for the Appellant:

[Counsel for Maurice Kantor] submitted that there was a delay of 17 days in providing rights advice to MS and as a result Dr. Kantor did not prove that the advice was given promptly. She maintained that there was a delay from May 4, 2016, to May 9, 2016, in contacting the PPAO to initiate the rights advice process. She also submitted that the panel should not accept the evidence of MS’s mother that she told MS to return the calls to the rights advisor that had been left on the family home telephone. She submitted that the delays, the failure to prove both the rights advisor had left messages, and that MS’s mother had told MS to return the calls, were factually sufficient for the panel to find that rights advice had not been given promptly.[^41]

[33] The Board went on to address the issues raised:

The panel found no reason to disbelieve the notes of Sonia McCann (Exhibit 12), even though they were hearsay evidence, respecting the chronology of her involvement in the rights advice process. Those notes dovetailed with the other evidence about conferring rights advice to MS and the panel found that evidence to be reliable. We also found the evidence of MS’s mother to be truthful in respect of her involvement. We found no reason to accept counsel’s invitation to disbelieve MS’s mother’s evidence, because she was supportive of the confirmation of the CTO for MS, or otherwise. We found that the parties charged with ensuring that MS secured property rights advice acted reasonably, and did not delay in their responsibilities. The PPAO was contacted soon after the assessment of MS, and made reasonable efforts to reach out to MS, who was not responsive to his mother’s direction to return the rights advisor’s calls. When the CTO Co-ordinator, following up on her responsibilities, realized that MS had not been given advice, she acted quickly to communicate with the rights advisor. He contacted MS on his cell phone almost immediately, and made arrangements to see him over a weekend. We found that Dr. Kantor proved that MS was given prompt rights advice.[^42]

[34] There is no reason to set aside the finding made by the Board. It identified the issues, considered the evidence and applied facts to the law. Regardless of where on the spectrum it is placed, this aspect of the decision of the Board cannot be overturned: there is no palpable and overriding error, it is reasonable and, in my view, correct.

[35] For the reasons reviewed herein, the appeals are dismissed.

[36] No submissions were made as to costs. To my mind, this is a situation where there should be none. If the parties disagree, I may be spoken to.

LEDERER J.

Released: 20161207

CITATION: Salem v. Kantor, 2016 ONSC 7130

COURT FILE NOS.: CV-16-552572

CV-16-552573

DATE: 20161207

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 Pursuant to the Mental Health Act, R.S.O. 1990, Chapter M.7 AND IN THE MATTER OF MAURICE SALEM, a resident of Oakville, Ontario

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MAURICE SALEM Appellant

– and –

DR. DAVID KANTOR Respondent

JUDGMENT

LEDERER J.

Released: 20161207

[^1]: Health Care Consent Act, 1996, S.O. 1996 Ch. 2, Sch. A, s. 80 (1): A party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both.

[^2]: Ibid at s. 4 (1): A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[^3]: Mental Health Act, R.S.O. 1990 Ch. M. 7: 33.1 (1) A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met. (2) The community treatment order must be in the prescribed form. (3) The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility.

s. 33.1(4) A physician may issue or renew a community treatment order under this section if,
(a) during the previous three-year period, the person,
(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or
(ii) has been the subject of a previous community treatment order under this section;
(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;
(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,
(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,
(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1)where the person is not currently a patient in a psychiatric facility,
(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,
(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and
(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;
(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;
(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and
(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the [Health Care Consent Act, 1996](https://www.canlii.org/en/on/laws/stat/so-1996-c-2-sch-a/latest/so-1996-c-2-sch-a.html).

s. 1(1) “community treatment plan” means a plan described in section 33.7 that is a required part of a community treatment order;
s. 33.7 A community treatment plan shall contain at least the following:
1. A plan of treatment for the person subject to the community treatment order.
2. Any conditions relating to the treatment or care and supervision of the person.
3. The obligations of the person subject to the community treatment order.
4. The obligations of the substitute decision-maker, if any.
5. The name of the physician, if any, who has agreed to accept responsibility for the general supervision and management of the community treatment order under subsection 33.5 (2).
6. The names of all persons or organizations who have agreed to provide treatment or care and supervision under the community treatment plan and their obligations under the plan

[^6]: Decision of the Consent and Capacity Board, at pp.1 and 2.

[^7]: Ibid, at p. 4, (Introduction).

[^8]: 2003 SCC 32, [2003] 1 S.C.R. 722.

[^9]: Ibid, at para. 110.

[^10]: Ibid, at para. 84.

[^11]: Ibid, at para. 5.

[^12]: 2008 SCC 9, 2008 S.C.C. 9, [2008] S.C.R.190.

[^13]: 2002 SCC 33, [2002] 2 S.C.R. 235.

[^14]: The decision in Housen v. Nikolaisen is dated March 28, 2002. The decision in Starson v. Swayze was released on June 6, 2003.

[^15]: Housen v. Nikolaisen, supra, (fn. 13), at paras. 28 and 36, referring to and quoting from Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R., at paras. 41 and 45, quoting from para. 37, and referring to Jaegli Enterprises Ltd. v. Taylor, 1981 CanLII 26 (SCC), [1981] 2 S.C.R. 2.

[^16]: 2014 ONSC 669.

[^17]: Ibid, at para. 32, referring to Halliburton Group Canada Inc. v. Alberta, at para. 51; and, generally, D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf (Toronto: Canvasback Publishing, 1998), at 14:2522.

[^18]: Ibid, at para. 32.

[^19]: Ibid, at para. 35, referring to Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 48.

[^20]: 1999 CanLII 19918 (ON CA), 46 O.R. (3d) 284 (C.A.).

[^21]: Ibid, at paras. 1 and 10.

[^22]: Ackie v. Manochi, supra, (fn. 16), at para. 33, quoting from T.(I.) v. L.(L.), supra (fn. 20) at para. 21.

[^23]: The Court of Appeal has concluded that s. 37 of the Health Care Consent Act, which involves a determination of whether a decision made by a substitute decision-maker complies with the principles set by the statute is “constitutional” (see: T.(I.) v. L.(L.), supra, (fn. 20), at para. 3, referring to the “companion appeal” M.(A) v. Benes 1999 CanLII 3807 (ON CA), 46 O.R. (3d) 271, ante).

[^24]: Starson v. Swayze, supra, (fn. 8), at paras. 78 and 79.

[^25]: D’Almeida v. Barron 2010 ONCA 564, at paras. 25-26, leave to appeal ref’d 2011 CanLII 14359 (S.C.C.).

[^26]: Decision of the Consent and Capacity Board, at p. 12.

[^27]: Transcript of the Hearing, at pp. 44-62.

[^28]: Decision of the Consent and Capacity Board, at p. 4.

[^29]: Ibid, at p. 14

[^30]: Ibid, at pp. 14-15.

[^31]: Ibid, at p.15.

[^32]: Factum of the Appellant para. 53

[^33]: For both definitions see The Concise Oxford Dictionary, Ninth Edition, Oxford University Press

[^34]: Decision of the Consent and Capacity Board, at p. 15.

[^35]: Ibid, at pp. 15-16.

[^36]: Factum of the Appellant, at para. 55.

[^37]: Decision of the Consent and Capacity Board, at p. 16.

[^38]: See fn. 4 above.

[^39]: O. Reg. 741 (made under the Mental Health Act), s. 14.3: (1) A physician who is considering issuing or renewing a community treatment order for a person under section 33.1 of the Act shall give notice of his or her intention in the approved form to the person, the person’s substitute decision-maker, if any, and to a rights advisor. (2) A rights advisor who receives notice under subsection (1) shall promptly, (a) provide rights advice to the person unless the person refuses the provision of the rights advice (b) provide rights advice to the person’s substitute decision-maker [Emphasis added]

[^40]: Decision of the Consent and Capacity Board, at pp. 16 – 17.

[^41]: Ibid, at p. 17.

[^42]: Ibid, at pp. 17-18.