COURT FILE NO.: 059/17 DATE: 20170316
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Jacqueline Elder, Applicant AND: Dr. John Klukach, Respondent
BEFORE: Kiteley J.
COUNSEL: Ken J. Berger, Amicus Curiae, for the Applicant Michele M. Warner, for the Respondent
HEARD: March 2, 2017
ENDORSEMENT
Introduction
[1] The Applicant seeks leave to appeal from the order dated January 27, 2017 [1] in which Akbarali J. granted the motion on behalf of the Respondent and made an order pursuant to s. 19 of the Health Care Consent Act authorizing the interim treatment decision of the Respondent to administer clozapine pending the appeal from a decision of the Consent and Capacity Board (the Board) scheduled for April 27, 2017. If leave is granted, the Applicant seeks an order staying the order of Akbarali J. pending the appeal.
[2] At the conclusion of the hearing I made an order dismissing the motion for leave to appeal with reasons to follow. These are the reasons.
Motion for appointment of Amicus Curiae
[3] The matter came before me on February 16, 2017 when Mr. Berger brought a motion for the appointment of amicus curiae for purposes of bringing the motion for leave to appeal, for the appeal and for the motion for stay pending the hearing of the appeal. I made the unopposed order requested. He is Ms. Elder’s counsel on the appeal of the Board decision and for that reason it was appropriate to appoint him as amicus curiae in those matters.
Decision from which leave is sought
[4] On August 25, 2016, a finding was made that Ms. Elder was incapable of consenting to or refusing treatment with antipsychotic medication. That same day, Ms. Elder made an application to have the finding of incapacity and her involuntary status reviewed by the Board.
[5] On September 2, 2016, the Board conducted a hearing and released a decision dated September 5, 2016 confirming the finding of incapacity and upholding her involuntary status.
[6] On September 8, 2016, Ms. Elder filed a notice of appeal of the Board’s decision along with a Notice of Constitutional Question in which she sought remedies pursuant to s. 24(1) of the Charter of Rights and Freedoms and a declaration that portions of the Mental Health Act be declared invalid and unconstitutional. At a scheduling conference in December 2016, McEwen J. scheduled the hearing of the appeal on April 27, 2017 and the hearing of the s.19 motion on January 20, 2017.
[7] Ms. Elder had been receiving an antipsychotic medication but Dr. Klukach brought a motion for an order authorizing a change to another antipsychotic medication. On the hearing of the motion on January 20, 2017, the moving party had delivered the affidavit of Dr. Sacha Agrawal, then Ms. Elder’s treating psychiatrist. Ms. Elder and her counsel did not file responding evidence. At the hearing on January 20 Mr. Berger conducted an extensive cross-examination of Dr. Agrawal following which counsel made submissions. The Motions judge reserved and released her reasons for decision on January 27, 2017.
[8] In allowing the motion and authorizing the interim treatment plan, the motions judge was guided by the criteria in s. 19(2) of the Health Care Consent Act namely that the court may make the order if it is satisfied
(a) that (i) the treatment will or is likely to improve substantially Ms. Elder’s condition, and her condition will not or is not likely to improve without the treatment; or (ii) Ms. Elder’s condition will or is likely to deteriorate substantially, or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent the deterioration or to reduce substantially its extent or its rate; (b) the benefit Ms. Elder is expected to obtain from the treatment outweighs the risk of harm to her; (c) the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a) and (b); and (d) Ms. Elder’s condition makes it necessary to administer the treatment before the final disposition of the appeal.
[9] In her reasons for decision the motions judge held that all of the criteria in s. 19(2)(a)(i), (b), (c) and (d) had been met.
Positions taken by Counsel
[10] Mr. Berger takes the position that leave should be granted pursuant to rule 62.02(4)(b) although he made a brief submission that leave should also be granted pursuant to rule 62.02(4)(a). Counsel for the Respondent takes the position that the moving party has failed to meet the two-part test under either ground.
Test for Leave to Appeal
[11] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one.
[12] Under Rule 62.02(4)(a), the moving party must establish that there is a conflicting decision with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts [2]; and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted”.
[13] Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate” [3]. In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice. [4]
Preliminary issue
[14] In support of the motion for leave, Mr. Berger had served and filed an affidavit of Dr. Julian Gojer (Forensic Psychiatrist) sworn February 26, an affidavit of Gilbert Sharpe (former legal Counsel, Ministry of Health and Long Term Care) sworn February 23 and an affidavit of his articling student Olivia Hannigan sworn February 27. He also included Ms. Hannigan’s earlier affidavit that had been filed in support of the amicus motion I heard on February 16, 2017. In her material, Ms. Warner included an affidavit of Dr. Joannou sworn February 15 (filed in response to the amicus motion) and the affidavit of Dr. Lustig sworn March 1, 2017.
[15] At the outset of the hearing of this leave motion, counsel advised that they did not agree on the admissibility of those affidavits. Mr. Berger took the position that all of the affidavits he filed were admissible on the leave motion and on the stay motion. Ms. Warner took the position that none of the affidavits filed in respect of the motion for leave and the motion for stay were admissible and the affidavit of Dr. Lustig was admissible on the stay motion.
[16] After hearing submissions I ruled that only the evidence that was before the motions judge was admissible on the leave motion and the Lustig affidavit was admissible on the stay motion.
Analysis
[17] Mr. Berger’s brief submission on rule 62.02(4)(a) was that the decision of the motions judge was in conflict with the decision in Gunn v. Koczerginski [5]. He argued that the motions judge failed to apply the proper test in s. 19(2)(a)(i) which, as set out in Gunn at paragraph 10 is whether the treatment will or is likely to have any substantial effect prior to the appeal. In other words he argued that the motions judge had applied a long-term outlook rather than the short-term outlook pending appeal.
[18] The motions judge was well aware of the decision in Gunn, having quoted paragraph 8 and referred to paragraph 10. In that case, the evidence at paragraph 9 was that it usually takes from four to eight weeks for the medications to result in any substantial improvement and Molloy J. pointed out that there was “no acceptable reason for the appeal taking much longer than that to be heard”. In this case at paragraph 56, the motions judge noted that the appeal was scheduled to be heard on April 27, 2017 while the evidence was that clozapine was likely to demonstrably improve Ms. Elder’s condition in the first month after treatment is begun. There is no conflict in the sense required in rule 62.02(4)(a) on a question of principle. Rather this is a case where a different result was reached in respect of particular facts.
[19] In any event, Mr. Berger made no submissions specific to the second element of the test namely that it is desirable that leave to appeal be granted.
[20] I am not persuaded that leave should be granted pursuant to rule 62.02(4)(a).
[21] With respect to rule 62.02(4)(b) Mr. Berger’s submission was that the motions judge made errors of law in her application of each of the elements of the four-part test set out in s. 19(2). In his factum and in his submissions, he identified what he submitted were errors of law or errors of mixed fact and law that meant that the correctness of the decision was open to very serious debate.
[22] As amicus curiae, Mr. Berger made forceful submissions as to the reasons to doubt the correctness of the decision including his challenge to the evidence of Dr. Agrawal as to the benefit to Ms. Elder, the risk to her of harm if the treatment was administered, whether it was the least restrictive and least intrusive treatment, and whether it was necessary. He does not accept the affidavit of Dr. Agrawal and cross-examined him at length on each of the four criteria.
[23] Mr. Berger identified various paragraphs of the reasons for decision which he said revealed errors including paragraph 43 which states as follows:
In cross-examination and argument, Ms. Elder’s counsel sought to make something of the fact that Dr. Agrawal did not depose that Ms. Elder’s condition was “likely to improve substantially” with clozapine. Dr. Agrawal indicated in cross-examination that he indeed thinks that her condition is likely to improve substantially with clozapine. In any event, it is not the recitation of a particular phrase that meets this element of the test, but an assessment of whether the evidence led supports a conclusion that Ms. Elder’s condition is likely to improve substantially with clozapine, and is not likely to improve without it.
[24] In his affidavit, Dr. Agrawal did not use the phrase “likely to improve substantially” with clozapine. Having read the transcript of his cross-examination, I agree with Ms. Warner that the evidence of Dr. Agrawal is as described in the second sentence of paragraph 43. I also agree with the observation of the motions judge that the test does not require the “recitation of a particular phrase” so long as the evidence supports the conclusion.
[25] With respect to paragraph 43 and the challenges to other sections of the reasons for decision, I am not persuaded that they demonstrate errors of law or errors of mixed fact and law. The reasons for decision contain a detailed analysis of the evidence and provide a basis for the conclusion the motions judge reached on each element of the four-part test. There is no basis for finding that there is good reason to doubt the correctness of the decision.
[26] Because of my conclusion on the first part of the two-part test in rule 62.02(4)(b), I need not deal with the submissions as to whether the appeal involves matters of such importance that leave to appeal should be granted. As amicus curiae, Mr. Berger made forceful submissions about this element and I will address those submissions briefly.
[27] Relying on paragraph 8 of Gunn, counsel’s submission is that this matter is of great importance to Ms. Elder and other members of society whose liberties are being grossly infringed upon by forced treatment of dangerous medications pending appeal and that it is vital that the jurisprudence of this area of law develops on the basis of correct decisions. Furthermore, throughout his factum and oral submissions, Mr. Berger referred to the unfairness to Ms. Elder of the intrusive treatment plan, unfairness of the hearing on January 20 and of the unfairness of the decision of the Board dated September 5, 2016.
[28] At the conclusion of the hearing on February 16, 2017 I raised with counsel whether, instead of having the hearing of the leave and stay motions on March 2, 2017, that the preferable route was to accelerate the hearing of the appeal of the decision of the Board and advance it from April 27, 2017 to a date that would roughly coincide with the date of the hearing of the appeal from the decision dated January 27, should leave be granted. As Ms. Elder’s counsel on the hearing of that appeal and as amicus curiae on the leave/stay motions, Mr. Berger indicated that the route that was in the best interests of Ms. Elder was to proceed with the April 27 date at which time the constitutional issues would be addressed.
[29] I appreciate that counsel must make strategic decisions designed to maximize the prospects of a successful outcome and that adequate time is required for counsel to prepare an appeal record particularly with constitutional implications. However, having declined to accelerate the hearing of the appeal from the Board, I am not persuaded that granting leave to appeal from the January 27 order involves matters of such importance that leave should be granted. The crucial issues presented on behalf of Ms. Elder apparently relate to her constitutional challenge. As indicated by Mr. Berger, the resources of counsel for Ms. Elder and for the Respondent as well as judicial resources should be focused on those issues. On that basis I would not have found that the appeal involved matters of such importance that leave should be granted.
[30] At the hearing I indicated that I would dismiss the motion for leave to appeal with reasons to follow and that, accordingly, I would not hear the motion for stay pending the appeal.
[31] I then made this observation to counsel. The decision of the Board is dated September 5, 2016. On October 5, 2016, Ms. Elder was discharged from CAMH. On October 17, 2016, Ms. Elder was re-admitted to CAMH. On October 31, 2016, Ms. Elder was again discharged and on November 10, Ms. Elder was re-admitted to CAMH through emergency. The physician signed a Form 1 and then a Form 3 and on November 15, December 23 and February 22, the physician has signed successive Form 4’s. Arguably Ms. Elder has not been subject to the decision of the Board since at least November 15. I queried whether counsel had explored the prospect that the appeal from the decision of the Board was moot.
[32] I further observed that if the decision of the Board no longer applied, then perhaps the motion heard January 20, 2017 was not necessary and perhaps any further motions for interim treatment authorizations were not necessary.
[33] I did not hear submissions from counsel and I make no findings. These issues were not raised before the motions judge on January 20 and do not appear in her reasons for decision. In view of the considerable effort currently focused on preparation for the appeal to be heard April 27, 2017 I urged counsel to consider their respective legal positions and then confer.
ORDER TO GO AS FOLLOWS:
[34] The motion for leave to appeal is dismissed without costs.