Salvitti v. Evans, 2016 ONSC 914

CITATION: Salvitti v. Evans, 2016 ONSC 914

COURT FILE NO.: CV-15-22783

DATE: 20160225

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

J.S.

Appellant

– and –

KIMBERLY EVANS, of the Erie St. Clair Community Care Access Centre

Respondent

Patricia S. Brown, for the Appellant

Gregory Goulin, Counsel for M.S. (Prior to Incapacity Finding)

Darwin E. Harasym, for the Respondent

HEARD: February 1, 2016

CAREY J.

INTRODUCTION

[1] The appellant, J.S., is the son of M.S. He appeals the finding of the Consent and Capacity Board (the “Board”), dated September 29, 2015 and released October 7, 2015. The Board found that the appellant did not satisfy the criteria to be appointed as the representative of his mother, M.S., for the purposes of giving or refusing consent to admit M.S. to a health care facility. The basis for this appeal is that the Board did not properly follow the criteria under s. 33(6) of the Health Care and Consent Act, 1996, S.O. 1996, c. 2 Sch. A, (“H.C.C.A.”). The appeal also asserts an error in the application of s. 42(1) of the H.C.C.A., specifically the principles to permit or refuse consent to admit an incapable person to a care facility.

[2] M.S. turned 81 years of age on February 4, 2016. She is originally from Italy and emigrated when she was about 50. Her primary language is Italian.

[3] At the time of the hearing, M.S. resided at Berkshire Care Centre and had been a resident there since August 5, 2015. On this date she was removed from her home following an allegation of spousal assault, taken to the hospital and then to the Berkshire facility as her spouse, G.S., was still in the home. M.S. was placed in Berkshire pursuant to the “crisis admission” criteria set out in s. 47 of the H.C.C.A. She attended the hearing in a wheelchair and briefly gave evidence.

[4] M.S. is suffering from dementia and has been found incapable with respect to her admission to a care facility, most recently after a second hearing on this issue on Friday, January 29, 2016. G.S. had been the previous substitute decision-maker (S.D.M.) and he no longer is able and/or willing to assume that responsibility. There is a non-contact provision in G.S.’s release conditions that relate to M.S., thus making him ineligible to be a S.D.M. under s. 20(2)(c) of the H.C.C.A.

[5] The appellant, J.S., has prepared a Form C Application wherein he sought to be appointed as a representative for his mother in order to give or refuse consent to admission of a care facility. The Reasons for Decision, released October 7, 2015, found neither the appellant nor his siblings, L.S. and C.S., met the requirements of the H.C.C.A. and refused to appoint a decision-maker. The office of the Public Guardian and Trustee is awaiting this appeal before making a decision on intervention.

[6] The appellant submits that the one person Board made significant errors of law and seeks that the court, pursuant to the powers granted to it under the legislation, substitute its decision for the Board’s decision and appoint J.S. as the S.D.M.

LAW

[7] The purposes of the H.C.C.A. are set out in s. 1:

1. The purposes of this Act are,

(a) to provide rules with respect to consent to treatment that apply consistently in all settings;

(b) to facilitate treatment, admission to care facilities, and personal assistance services, for persons lacking the capacity to make decisions about such matters;

(c) to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive personal assistance services by,

(i) allowing those who have been found to be incapable to apply to a tribunal for a review of the finding,

(ii) allowing incapable persons to request that a representative of their choice be appointed by the tribunal for the purpose of making decisions on their behalf concerning treatment, admission to a care facility or personal assistance services, and

(iii) requiring that wishes with respect to treatment, admission to a care facility or personal assistance services, expressed by persons while capable and after attaining 16 years of age, be adhered to;

(d) to promote communication and understanding between health practitioners and their patients or clients;

(e) to ensure a significant role for supportive family members when a person lacks the capacity to make a decision about a treatment, admission to a care facility or a personal assistance service; and

(f) to permit intervention by the Public Guardian and Trustee only as a last resort in decision on behalf of incapable persons concerning treatment, admission to a care facility or personal assistance services.

[8] The criteria for appointment as a representative for the purpose of giving consent for admission to a care facility is set out in s. 33(6) of the H.C.C.A., which under s. 51(6) applies to a Form C application:

1. The incapable person is not objecting.

2. The representative consents to the appointment, is at least 16 years old and is capable with respect to the treatments or the kinds of treatment for which the appointment is made.

3. The appointment is in the incapable person’s best interests.

[9] Section 41 of the H.C.C.A. states:

Section 20 applies, with necessary modifications, for the purpose of determining who is authorized to give or refuse consent to admission to a care facility on behalf of a person who is incapable with respect to the admission.

[10] Section 20 of the H.C.C.A. lists persons who may give or refuse consent and the requirements of a person in exercising consent:

20(2) A person described in subsection (1) may give or refuse consent only if he or she,

(a) is capable with respect to the treatment;

(b) is at least 16 years old, unless he or she is the incapable person’s parent;

(c) is not prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf;

(d) is available; and

(e) is willing to assume the responsibility of giving or refusing consent.

[11] Section 2(1) defines the word “capable” as meaning mentally capable, and “capacity” having a corresponding meaning; (“capable”, “capacité”).

[12] Section 20(11) defines the word “available” as used in s. 20(2)(d):

20(11) For the purpose of clause (2)(d), a person is available if it is possible, within a time that is reasonable in the circumstances, to communicate with the person and obtain a consent or refusal.

[13] The principles for giving or refusing consent are set out in s. 42(1) of the H.C.C.A. as follows:

42(1) A person who gives or refuses consent on an incapable person’s behalf to his or her admission to a care facility, shall do so in accordance with the following principles:

1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish. (emphasis added)

2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person’s best interests.

[14] Under s. 42(2) of the H.C.C.A., the test to be used by a S.D.M. to determine the best interests of the incapable person is set out:

42(2) In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,

(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;

(b) any wishes expressed by the incapable person with respect to admission to a care facility that are not required to be followed under paragraph 1 of subsection (1); and

(c) the following factors:

1. Whether admission to the care facility is likely to,

i. improve the quality of the incapable person’s life,

ii. prevent the quality of the incapable person’s life from deteriorating, or

iii. reduce the extent to which, or the rate at which, the quality of the incapable person’s life is likely to deteriorate.

2. Whether the quality of the incapable person’s life is likely to improve, remain the same or deteriorate without admission to the care facility.

3. Whether the benefit the incapable person is expected to obtain from admission to the care facility outweighs the risk of negative consequences to him or her.

4. Whether a course of action that is less restrictive than admission to the care facility is available and is appropriate in the circumstances.

(emphasis added)

[15] Section 47 sets out the criteria for “crisis admission” as follows:

47(1) Despite any law to the contrary, if a person is found by an evaluator to be incapable with respect to his or her admission to a care facility, the person’s admission may be authorized, and the person may be admitted, without consent, if in the opinion of the person responsibility for authorizing admissions to the care facility,

(a) the incapable person requires immediate admission to a care facility as a result of a crisis; and

(b) it is not reasonably possible to obtain an immediate consent or refusal on the incapable person’s behalf.

(2) When an admission to a care facility is authorized under subsection (1), the person responsible for authorizing admissions to the care facility shall obtain consent, or refusal of consent, from the incapable person’s substitute decision-maker promptly after the person’s admission.

ISSUES

[16] The following are the issues before the court:

1. In determining the application of the appellant, pursuant to s. 51, did the Board properly apply ss. 33(6) to (8) as they pertained to the s. 51 application? Specifically, should “best interests” in s. 33(6)3 incorporate the criteria listed in s. 42(2)?

2. If the Board was correct in considering s. 42, did the Board err in its conclusions as to the wishes expressed by M.S., while still capable, as to her preferences in regards to admission to a care facility? If the Board erred in its findings in respect to M.S.’s previously expressed wishes, should that have ended the s. 42(2) inquiry into the best interests of M.S.?

3. If the Board was correct in finding the best interests test in s. 42(2) applied to s. 33(6)3, did the Board err in concluding that the appellant and his siblings were incapable of acting in M.S.’s best interests?

4. Did the Board err in its finding that the appellant and his siblings were not “available” as required by s. 20(2)(d) of the H.C.C.A., having regard to the definition of “available” in s. 20(11) of the H.C.CA. and the applicable case law? Did it also demonstrate a misunderstanding of the meaning of “capable” in s. 22(a)?

ANALYSIS

[17] In reviewing the decision of the Board and its application of the law to the facts, I acknowledge that deference is owed to decision-makers at the tribunal level. This is especially true where the tribunal is one of specialized expertise, as in this case. This deference means the Board’s decisions are normally subject to review on a reasonableness standard. However, in Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R.(3d) 481, at para. 33, the Ontario Court of Appeal states that “a reviewing court should not defer to the Board’s findings if the Board has misunderstood the statutory test.” Therefore, when the Board has misunderstood a statutory test the deference normally afforded to that Board is negated. It is under these circumstances that it becomes appropriate for the reviewing court to review the Board’s decision under a standard of correctness: see Gligorevic v. McMaster, 2012 ONCA 115, 109 O.R. (3d) 321, at para. 44.

[18] When considering the proper standard to apply in this case, it is important to determine if the Board was suitably guided by the principles set out in s. 1 of the H.C.C.A. Of particular concern in this case is the principle espoused in s. 1(c) regarding the enhancement of the autonomy of persons for whom admission to a care facility is proposed. Specifically, s. 1(c)(i) requires the person’s wishes be adhered to, s. 1(e) emphasizes that there is a significant role for supportive family members, and s. 1(f) stipulates that intervention by the Office of the Public Guardian and Trustee should be a last resort.

I will canvass the issues in order.

1. Section 51 Appointment and the Application of Subsections 33(6) to (8). Is the s. 42(2) best interests criteria incorporated in s. 33(6)?

[19] In A Guide to Consent & Capacity Law in Ontario,[^1] the following comments appear as footnote 112 on page 186:

“The criteria for the appointment of a representative under s. 33(6) include (a) that the incapable person does not object; (b) that the proposed representative is over 16 and capable with respect to the treatment; and (c) that the appointment is in the incapable person’s best interest. Whether the Board’s role in these applications (Form B is the application to be appointed) is simply to satisfy itself that the proposed representative understands the rules for SDMs’ decision-making set out under s. 21, or whether the Board must ascertain what decision the proposed representative would make and whether the decision itself is in the incapable person’s best interest is still unsettled law. There are Board decisions going both ways...”

Counsel provided no case law on this issue.

[20] In M.(A.) v. Benes (1999), 46 O.R. (3d) 271, a decision dealing with the H.C.C.A., at paras. 21-22 the Ontario Court of Appeal set out two principles for statutory interpretation:

[21] The first of those principles is found in Re Rizzo & Rizzo Shoes Ltd., [1998] 1 s.c.r. 27, 154 D.L.R. (4th) 193, where, at para. 21 [p. 41], Iacobucci J. adopted the following passage from Driedger’s Construction of Statues, 2nd ed. (Toronto: Butterworths, 1983):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

At para. 22 [p. 41] of the same decision, Iacobucci J. went on to state that every Act shall receive “such fair, large and liberal construction and interpretation” as will best attain the objects of the Act.

[22] The second governing principle, enunciated in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078, 59 D.L.R. (4th) 416, per Lamer J., provides that where legislation is open to more than one interpretation, it should be construed in a manner consistent with the Charter: see also Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 544, at pp. 581-82, 100 D.L.R. (4th) 658; Allsco Building Products Ltd. v. U.F.C.W., Local 1288P, [1999] S.C.J. No. 45, at p. 9, 176 D.L.R. (4th) 647; Winko v. British Columbia (Forensic Psychiatric Unit), [1999] 2 S.C.R. 625, at p. 000, 135 C.C.C.(3d) 129, at p. 158.

[21] I conclude that a reading of the purposes of the H.C.C.A., set out in s. 1, make it clear that the autonomy of persons for whom a care facility is proposed is to be enhanced by both allowing those persons to have a representative of their choice assisting with the decision and for there to be a significant role for supportive family members in making those decisions. These purposes are underlined by the expression in s. 1(f) that the Public Guardian and Trustee intervention should be “...only as a last resort in decisions on behalf of incapable persons...”. The role taken by the Board, which respondent’s counsel urged me to accept, was that it was for the Board to decide what was in the best interests of M.S. prior to approving the appellant’s application to be the decision-maker. I believe this is a misreading of s. 42(2) of the H.C.C.A. and an inappropriate application to s. 33(6)3. This supposition, that the H.C.C.A. requires an applicant to prove that he or she will act in what the Board feels is the best interests of the incapable person, is contrary to the expressed purposes of the H.C.C.A. and the mandate imposed on the decision-maker in s. 21(1).

[22] If a decision-maker does not fulfill his or her obligations, s. 33(8) provides remedies for a Board, on any person’s application, to terminate an appointment they had made if they find the appointment is no longer in the incapable person’s best interests. However, the primacy of the previously expressed wishes of the incapable person are underlined by s. 36(1)3, which sets out a procedure for the S.D.M. to apply to the Board to consent to admission despite the previously expressed wishes. Section 36(3) sets out the narrow criteria for permission to be granted.

[23] In its decision, the Board recited the relevant sections that it considered. Having concluded that the Board erred in concluding there was insufficient evidence of M.S.’s wishes expressed while capable, I am of the view that the Board erred in analyzing M.S.’s best interests by using the criteria in s. 42(2). Section 42(2) makes it clear that it would be the duty of M.S.’s representative to make the decision regarding her admission to a care facility in accordance with M.S.’s wishes.[^2] Section 42(2) would be resorted to only if the person giving or refusing consent did not know the wishes of the incapable person. The previously communicated wishes to refuse admission can be overridden by resorting to s. 36(3) or by an application under s. 53(1)(a).

[24] If the Board’s interpretation of s. 33(6), which was urged on this Court by counsel for the respondent, was correct it would mean that the Board is empowered to reject potential S.D.M.’s on the basis that they would not apply the criteria in s. 42(2) if the wishes of the incapable person could not be ascertained. The Board would be requiring that the candidate be able to make the evaluations under s. 42(2)(c) before that person knows whether the admission to a care facility is likely to result in any of the situations described in subclause 42(2)(c)1-3 and whether a course of action that is less restrictive than admission is appropriate.

[25] Given its stated purposes in s. 1, I cannot conclude that the legislation was designed to require an applicant, who was satisfied of the clear wishes expressed by their incapable relative while she was still capable to refuse admission, to have completed the research and make the necessary inquiries to satisfy s. 42(2). It would be unreasonable for such inquiries to take place while the applicant is still bound to s. 42(1), specifically their obligation to refuse admission in accordance with the wishes expressed by the person while they are capable. This is not only contrary to the spirit of the H.C.C.A., as expressed in s. 1(c)(iii) and s. 1(3), but it virtually ensures that it is the Board’s views based on its own application of s. 42(2) that will decide on the admission to the care facility and not the incapacitated person before their incapacity, or their supportive family members.

[26] The clear language of s. 42(2) restricts the consideration of the factors enumerated in subclause 42(2)(c)1-3 to “the person who gives or refuses consent”. If the legislation intended that “best interests” in s. 33(6) was to be interpreted beyond its plain meaning and incorporate the definition from s. 42(2), it could have easily defined “best interests” in the Interpretation Section, s. 2(1), Part I of the H.C.C.A. Alternatively, it could have referenced s. 42(2) in s. 33(6).

[27] I have concluded that the Board erred in this case in considering the best interest analysis under s. 42(2).

[28] What then is the correct test for “best interest”? The Supreme Court of Canada analyzed the definition and meaning of “best interests” in A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] S.C.J. No. 30. Although the SCC was dealing with the meaning of best interests with respect to an adolescent and not someone found to lack capacity, the principles underscoring best interests are nonetheless the same. At para. 84, Abella J. for the majority stated that “the distinction between principles of welfare and autonomy narrows considerably – and often collapses altogether – when one appreciates the extent to which respecting a demonstrably mature adolescent’s capacity for autonomous judgment is ‘by definition in his or her best interests’”. Caution is required considering the distinct nature of the autonomous capability of an adolescent and a person found incapable. However, the fundamental principle is the same: best interests cannot be analyzed absent the wishes, beliefs and desires of that person. When best interests are more difficult to discern because of an issue of capacity, other considerations such as those listed in the H.C.C.A. may be of assistance. Nonetheless, the personal autonomy of that person must not be subsumed by these other considerations, such as those enumerated in s. 42(2). The best interests test for a person lacking capacity should not depart from the general principles of “best interests” for any other individual.

[29] In the A.C. v. Manitoba decision at para. 96, the SCC listed a thorough, but non-exhaustive, list of “best interest” factors to be considered when substituting an adolescent’s decision making capability. The SCC noted that the nature of the proposed treatment as well as its benefits and risks should be considered. The adolescent’s ability to understand the information relevant to making the decision and to appreciate the potential consequences must also be considered. Next, whether the views expressed at the time are “stable and a true reflection of his or her core values and beliefs”. This is especially relevant for M.S. as her core values and beliefs while she was capable are well known. Other factors to consider were the familial and social relationships of the person, whether she has any particular vulnerabilities, and finally any information available from the adults who know the individual.

[30] By applying the circumstances of M.S. to the above “best interest” factors, while aware of the distinctions between an adolescent and an incapable person, I conclude that it is in M.S.’s best interests to have J.S. act as her S.D.M. I place considerable weight on the understanding her family members have for her familial and social values, their familiarity with her wishes made while capable and its consistency with her wishes expressed recently, and finally the consequences of whether or not she is admitted to a facility.

2. M.S.’s Previously Expressed Wishes Under s. 42(1)

[31] The Board had before it the extensive evidence of J.S. and his siblings as to his knowledge of his mother’s values and beliefs held when she was still capable. That included that she would want to be cared for at home as she had cared for her mother. M.S. gave evidence at the first hearing, although unassisted by an interpreter, that she wanted “my town”, “my people” and “I make decisions for myself.” It is reasonable to infer that she is referring to being cared for in her hometown, which was then Amherstburg, and by her family. The Board surprisingly characterized “my town”, “my people” as “...an answer that did not fit the question.”[^3] In my view, while M.S. was not capable when she made these comments, s. 42(2)(b) would require the decision-maker to take them into consideration.

[32] At page 13 of the Consent and Capacity Board’s Reasons for Decision, the Board stated:

“The panel considered this evidence and agreed with Mr. Harasym’s submissions that any comments made by MS were simply made in passing. It was quite evident that MS could never have envisioned that she would be suffering from dementia, would require care 24 hours a day, seven days a week and that she would be confined to a wheelchair.”

[33] The record does not support the conclusions that these comments were made “in passing”. The uncontradicted evidence on M.S.’s wishes came, in the Board’s words, from “simply her family”. I conclude the Board erred in discounting that evidence. Specifically, the evidence supports that M.S. clearly expressed her wish to be cared for by her family “many times” in discussions that took place while caring for her own mother. The evidence supports that J.S. clearly intended to act in accordance with that wish. He was prepared to consider a long term care facility in the future and he “wanted to get her on the list.” Not only was there no evidence that M.S. could not have envisioned herself requiring 24 hour care, it seems implicit in the circumstances of discussions about care facilities and care at home that these discussions would be based on the premise that M.S. was considering a future time when she, like her own mother, would not be able to care for herself. It is especially significant that these discussions took place while M.S. was taking care of her own mother in her own home.

[34] The Board put a great deal of weight on the evidence of Constable O’Brien that the family of M.S. was a family in crisis and that M.S. had been wandering in the community before being taken into the care facility. The Board also emphasized the evidence of Ms. Peer, an employee of the care facility, that M.S. was doing well. This was in contrast to the evidence presented by the appellant and the appellant’s siblings. In concluding that the appellant and his siblings would not act in the best interests of M.S., the Board erred in analyzing M.S.’s best interests without considering the evidence of M.S.’s previously specified wishes. That error was compounded by the Board substituting its opinion of what was in the best interests of M.S. for her expressed wishes and the views of her children. This contributed to the conclusion that the appellant and his siblings would not act in the mother’s best interests. These errors deprive the findings of deference. I find that the evidence of J.S. and his siblings was improperly rejected by the Board. If the Board was entitled to consider s. 42(1), the evidence as to M.S.’s best interests should have ended the enquiry.

3. Best Interests in s. 42(2)

[35] In the alternative, if I am mistaken, and the application of the delineated factors of s. 42(2) to s. 33(6)3 was not made in error, I still conclude that under these factors the appointment of J.S. as the S.D.M. is in M.S.’s best interests. As D’Arcy Hiltz and Anita Szigeti write in their seminal book on consent and capacity law, the jurisprudence is mixed and the law unsettled.

[36] Under s. 42, the wishes of the incapable person is a significant, albeit not the sole, consideration. Per subsections 42 and 43, the values, beliefs, and wishes the person made while still capable are of equal importance to the factors listed in subsection c). I find, on the evidence the Board heard, there is little evidence that M.S. has improved or is improving in her quality of life while in the care facility. Rather there is evidence her life is likely to deteriorate while in the current care facility. I conclude the Board erred in putting undue weight on the observation of Ms. Peer, an employee of the St. Elizabeth House. Her observations of M.S.’s previous circumstances were when she was employed at M.S.’s home at a time when G.S. was M.S.’s S.D.M. and living with her. To begin with, there is no indication that Ms. Peer had any knowledge of the care M.S. was receiving at Berkshire Care Centre. At the time of the hearing she had not seen M.S. for almost two months. She saw her only on the day of the hearing for an unspecified period of time. Further, she is a personal support worker and not a qualified medical expert. The questions put to Ms. Peer by counsel for the CCAC at p. 190, line 8 to p. 192, line 10 were questions typically put to a medical doctor in a hearing considering s. 42(2) factors. She was not qualified to give an opinion in these areas, and there was an inadequate foundation laid for her opinion.[^4]

[37] As the italics in s. 42(2) emphasize, the Act’s language changes from the general: “a care facility” when speaking of the wishes of an incapable person prior to incapacity, to the specific “the” when referring to the factors to be considered by the S.D.M. In my view, this was intentional to allow the S.D.M. to consider the specifics of the care facility for which admission is sought. Here there was un-contradicted evidence that the facility was in Windsor, 45 minutes from M.S.’s home in Amherstburg. She was not in a wheelchair prior to admission and the reasons for the wheelchair were not explained but did not seem connected to the alleged assault on her. There was evidence from her family that since she was admitted her ability to speak English has regressed and she is now only able to communicate in her Italian dialect which her children understand and speak, but which is not spoken at the current care facility.

[38] The observation of J.S. was that his mother was deteriorating in the circumstances of the present facility. He did not, however, close the door on his mother going to another facility, if available, that better fit her needs and was closer to Amherstburg and her family. He stated that she needed structure and a steady routine.

[39] At the time of the hearing of this appeal, the court was told that no other facilities were presently available and all facilities had waiting lists. As well, the charges against G.S. are apparently being resolved with some alternative resolution. G.S. may require some care himself. While the allegations against him have not been proven or disposed of, Ms. Peer’s evidence was summarized at page 16 of the decision:

“Ms Peer indicated that she saw GS assault MS. Because MS refused to remove her clothes to have a shower, GS slapped her face. Ms Peer said that she pulled the two of them apart and when she did so GS reached around her and hit her again. He pushed MS against the wall and was hitting her. At that point, Ms Peer said that she was leaving and LS said ‘I told them this happened before’. Ms Peer said that as she was leaving, GS came out of the house towards her, JS asked her if she felt threatened by him and she replied: ‘yes’. The panel noted that LS reported to the CCAC on August 6, 2015 as follows: ‘her brothers and father have a history of hitting and pushing both her mother and herself.’ ”

[40] While it is not clear whether the circumstances of the assault allegations and its resolution involve an aspect of G.S.’s deteriorating mental capacity, it is not unusual for there to be assaults by both aging caregivers as well as assaults in care facilities. Indeed, it was J.S.’s belief that his mother has been assaulted while in the facility by a patient.

[41] The Board concluded that J.S. was minimizing the problems his mother had when living with his father and had no plan of care for his mother. It is clear from the reasons quoted that the Board weighed J.S.’s view of the assault allegations and his belief that his father was not an abuser against his credibility and suitability as a decision maker. The fact that the Board noted a hearsay report from L.S. that suggests abuse against her and her mother by her father and her brothers is concerning. The report was not confirmed at the hearing. In fact, L.S. gave evidence, according to the decision,[^5] that she had not witnessed the assault or ever witnessed her father hit or assault her mother. The Board noted L.S.’s mental health issues and notes in M.S.’s file that “L.S. was confrontational and always sparking altercations...” yet placed significance on the unconfirmed note attributed to her about the family history of hitting.

[42] The Board concluded that P.C. O’Brien’s assertion that M.S.’s family was “in crisis” “described the situation perfectly.” As a result, the Board concluded that, “None of the proposed representatives had any ability to act in the best interests of M.S. The historical evidence supported that assertion.”[^6]

[43] I have concluded that the Board placed undo weight on the evidence of P.C. O’Brien who clearly had a low opinion of M.S.’s family. The Board did not consider that, in questioning the charges against their father, the family was both allowing him the presumption of innocence and the benefit of the doubt as well as being caught in the middle of a family crisis. The Board equated the family arguments witnessed by the officer as some evidence that the applicant J.S. would have no ability to act in his mother’s best interests. That he had testified to her wishes while she had capacity, his concerns about his mother’s deterioration and his intention to take several months off work to assist in a care plan was given no weight by the panel nor were the purposes of the Act given any apparent consideration. While the family might have had challenges, they all presented as supporting their mother and her wishes. The reality is that regardless of the result of the criminal charges against G.S., it would be unlikely that he would be prohibited from ever seeing his long time spouse again, nor should he, if her safety could be assured. What the “crisis” in this family required was support in finding the best way forward for the family in deciding their mother’s care. It required a recognition that leaving that care decision to strangers in the Public Guardian and Trustee Office should be a last resort. Instead, the Board judged that it knew better for M.S. than her own family members who had received instructions from M.S. while she was still capable.

4. Subsection 20(2)(d), Health Care Consent Act, definition of “available”

[44] The Board looked at whether J.S. was “available” at the time that his mother initially was admitted under s. 47(1) to the care facility. At that time, he was not officially designated as a S.D.M. for M.S. In any event, this application is dealing with decisions to be made in the future. Having said that, J.S.’s evidence was that he was not able to speak on the phone at work regarding this important decision and made himself available as soon as he was finished work. The Board ignored the fact that, in that situation, J.S. did make a decision. He responded that he would not agree to M.S. going to Berkshire. Clearly, J.S. was not able to engage in a discussion for a long period of time at work. The circumstances were such that I conclude he was able to communicate a decision within a reasonable time and would be in the future if appointed the S.D.M.

[45] As well, the Board did not indicate that it considered the definition of “available” in s. 20(11) of the H.C.C.A. If it did, it misinterpreted the definition. The conclusions made by the Board that none of M.S.’s children were available did not accord with the evidence being applied to that definition. In A Guide to Consent & Capacity Law in Ontario[^7], the authors note the following:

“The Meaning of “Available”

In order to qualify as an “available” SDM, the decision-maker does not have to reside in Ontario or Canada, provided it is possible to obtain the necessary consent or refusal within a reasonable time in the circumstances....”

[46] I conclude it was contrary to the definition in s. 20(11) of the H.C.C.A. for the Board to conclude the appellant in particular was not available within the meaning of the Act simply because of his working full time at the time of the application. That interpretation would disqualify many applicants. As well, it was the appellant’s indication that he would be taking a leave of absence, although it is clear that the leave of absence was for the purpose of providing care as opposed to making the decision as to where the care would take place. The Board seems to have confused being available to make a decision with being available to care for M.S. as part of an alternative proposal to a long term care facility.

[47] It is worth noting that the Board similarly did not seem to have considered the definition of “capable” in s. 2(1) of the H.C.C.A. as “mentally capable”. If it had, it is unlikely it would have stated, “The panel did not have to decide whether the proposed representatives were capable based on the findings the panel made when it considered the representatives availability and whether the representatives would act in the best interests for M.S.” There was no evidence to suggest any of the family of M.S. were mentally incapacitated, as defined in the Act. The Board did review L.S.’s mental health and concluded that she minimized her “problem”. The Board concluded she was “not ‘available’ because she needed to attend to her own issues.” The Board appears to have ignored the definition of available and tied it into a capacity analysis, without having any medical evidence of incapacity. L.S. did not appeal and this court is only reviewing J.S.’s application, but the error does serve to illuminate the Board’s decision.

DECISION

[48] For the foregoing reasons, I conclude the decision of the Board refusing the application of J.S. was in error.

[49] Given the nature of the decision appealed from and the time sensitivity of the situation, I choose to, pursuant to s. 80(10)(a) and (b) of the H.C.C.A., quash the decision of the Board and to appoint the appellant, J.S., as his mother M.S.’s representative to give or refuse consent to admission to a care facility.

[50] J.S. is entitled to his costs for this proceeding. The decision of the Board was one urged by the respondent’s counsel and defended on appeal. I have received submissions from both parties and set costs to the appellant at $5,000.

Original signed “Justice Carey”

Thomas J. Carey

Justice

Released: February 25, 2016

CITATION: Salvitti v. Evans, 2016 ONSC 914

COURT FILE NO.: CV-15-22783

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

J.S.

Appellant

– and –

KIMBERLY EVANS, (Erie St. Clair Community Care Access Centre)

Respondent

REASONS FOR JUDGMENT

Thomas J. Carey

Justice

Released: February 25, 2016

[^1]: D’Arcy Hiltz and Anita Szigeti, A Guide to Consent & Capacity Law in Ontario, 2015, (Markham: LexisNexis Canada Inc., 2014) at 186.

[^2]: See: A Guide to Consent & Capacity Law in Ontario, 2015, at 187: “The incapable person’s prior capable wishes must be obeyed.”

[^3]: Page 17 of the Consent and Capacity Board’s Reasons for Decision, dated October 7, 2015

[^4]: Transcript of September 29, 2015 Hearing at page 185, line 1 to page 193, line 2

[^5]: Page 15, ¶ 1, of the Consent and Capacity Board’s Reasons for Decision, dated October 7, 2015

[^6]: Page 17, ¶ 3, of the Consent and Capacity Board’s Reasons for Decision, dated October 7, 2015

[^7]: Supra, note 1.