COURT FILE NO.: CV-17-572033 DATE: 20170515

ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an application under subsection 37(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, as amended

BETWEEN:

JOAN MURRAY Respondent(Appellant) – and – DR. SHELLY DEV Applicant (Respondent in Appeal) – and – ROBERT MURRAY Respondent(Respondent in Appeal) – and – HORACE FORD HECTOR MURRAY Respondent(Respondent in Appeal)

Counsel: Mercedes Perez, for the Appellant Christine Wadsworth, for the Respondent Dr. Shelly Dev

HEARD: May 11, 2017

REASONS FOR JUDGMENT

Mr. Justice P.J. Cavanagh

Introduction

[1] This is an appeal by Joan Murray (“JM”) from the March 20, 2017 decision of the Consent and Capacity Board (“CCB”) ordering her, as the substitute decision-maker for her husband, Horace Murray (“HM”), to consent to the withdrawal of life support for HM. This treatment plan was proposed by physicians at Sunnybrook Health Sciences Centre (“Sunnybrook”), including the respondent Dr. Shelley Dev (“Dr. Dev”). The withdrawal of life support for HM will most likely end his life.

[2] HM was admitted to Sunnybrook on August 13, 2016. He remains in intensive care at Sunnybrook. At the beginning of October 2016, HM suffered two cardiac arrests within 24 hours and he has neither regained consciousness nor demonstrated any neurologic responsiveness since then. As of the date of the hearing of this appeal, there had been no signs of clinical improvement of HM’s medical condition since the CCB’s decision was released. HM remains in a comatose state, entirely dependent on a mechanical ventilator for respiratory support, with no signs of neurological recovery.

[3] The respondent Robert Murray (“RM”) is the son of JM and HM. He assumed the role of substitute decision-maker (“SDM”) after JM was found unsuitable to act as SDM.

[4] The CCB hearing consisted of three applications.

[5] Dr. Dev brought a “Form G” application under s. 37(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A (“HCCA”) to determine whether RM was making treatment decisions for his father in compliance with s. 21 of the HCCA. Section 21 of the HCCA sets out the principles that a SDM shall follow in making a decision to give or refuse consent to a treatment on an incapable person’s behalf. On such an application, the CCB may substitute its opinion for that of the SDM and if it determines that the SDM did not comply with s. 21, it may give him or her directions and, in so doing, shall apply s. 21.

[6] Subsequently, JM brought a “Form C” application under s. 33(2) of the HCCA to determine whether she should be appointed SDM for her husband.

[7] Dr. Dev had found HM incapable of consenting to medical treatment. Under s. 37.1 of the HCCA, both the Form G application and the Form C application triggered a deemed application under s. 32 of the HCCA with respect to HM’s capacity to consent to the treatment proposed by Dr. Dev (deemed “Form A” application).

[8] The CCB decided to hear the three applications together because of the overlapping nature of the evidence.

[9] Procedurally, the CCB hearing proceeded over six days in February and March 2017. JM was formally added as a party to the Form G application pursuant to a pre-hearing order dated December 12, 2016. JM was represented at the hearing by experienced counsel and she had, and exercised, the same rights as other parties, including to call evidence, cross-examine witnesses and make submissions.

[10] The CCB made four decisions, three of which have not been appealed.

[11] In respect of the deemed Form A application, the CCB decided that HM was incapable with respect to the treatment proposed by Dr. Dev. In respect of the Form C application, the CCB decided that Dr. Dev had not discharged her onus of showing that JM was not willing, available and capable to act as SDM with respect to the treatment proposed by Dr. Dev and JM was restored to the SDM role. As a result, the CCB dismissed the Form C application as unnecessary. The CCB also decided, in connection with the Form G application, that HM, while previously capable, had not expressed a wish applicable to the circumstances according to s. 21(1) 1 of the HCCA. These three decisions have not been appealed.

[12] In its Reasons for Decision released on March 21, 2017, the CCB addressed whether a decision on the Form G application applied to JM who was not the SDM who was making decisions for Mr. Murray at the time the application was made. The CCB concluded that it would not be unjust to render a decision on the Form G application and make it binding on JM as SDM. This conclusion is central to the issues raised on this appeal.

[13] The fourth decision was made by the CCB on the Form G application. The CCB decided that JM, the SDM for HM, has not complied with the principles for substitute decision making set out in s. 21 of the HCCA under which (absent a prior capable wish) the SDM shall act in the incapable person’s best interests. The CCB directed JM to consent to the treatment plan proposed by Dr. Dev. JM has appealed this decision.

[14] For the following reasons, I have concluded that the decision of the CCB on the Form G application was reasonable and deserves deference, and that the appeal should be dismissed.

Factual Background

[15] The following background facts are taken from the Reasons for Decision of the CCB released on March 21, 2017 and do not account for events that may have occurred following the CCB’s decision.

[16] HM is an 81-year old man who had lived with his wife of 60 years, JM, in their house in Toronto. JM is 79 years old. They have four adult children. All four children were in contact with the other family members and very concerned about their father’s health; they could be described as a close knit family. JM is completely deaf and partially blind, and cannot use the telephone they have in their home. She had been reliant on HM as a caregiver.

[17] HM had a history of chronic obstructive pulmonary disease (“COPD”), and rectal cancer which had been diagnosed and treated in 1997. In January 2016, HM had been admitted to Sunnybrook with respiratory failure due to COPD. At that time, tests had raised a suspicion about cancer in his bones and a possible recurrence of his rectal cancer, but he declined further investigations and/or follow-up.

[18] On August 13, 2016, HM’s and JM’s daughter and grand-daughter went to visit and, finding HM unresponsive, called 911. HM was brought by ambulance to Sunnybrook and admitted to a “level II” intensive care unit (“ICU”) and placed on non-invasive ventilation (“NIV”) for stabilization. With NIV, oxygen was delivered to HM via an airtight mask placed over his mouth and nose. Medical investigations revealed that HM also suffered acute kidney injury and acute hepatitis, likely due to weakness of the heart. He had hypertension (high blood pressure) and other heart disease, possibly resulting from his lung disease. CT scans showed that HM had what were referred to as “bony lesions” suggestive of cancer. It was recommended he undergo an abdominal CT scan and sigmoidoscopy to explore whether the bony lesions and rectal abnormalities were in fact cancerous, but his family declined the investigations on the basis that HM had declined similar investigations in January 2016 and would not have wanted invasive tests. HM’s cognitive condition was described as confused or delirious, thus he was incapable of consenting, or refusing to consent, to tests and treatments. HM’s family members agreed that JM was the appropriate SDM for HM. They referred to the existence of a power of attorney document naming JM as HM’s attorney for treatment decisions, but they did not produce the document until October 21, 2016.

[19] On August 19, 2016, HM was transferred out of the ICU to an internal medicine unit referred to as “Orange Team”. His kidney and liver conditions had stabilized and he was able to breathe without assistance from a ventilator for brief periods. His level of consciousness fluctuated between delirium and alertness, because of his inability to exhale properly, causing excess carbon dioxide to accumulate in his blood. Between August 19 and October 3, HM went back and forth between the Orange Team and ICU a few times, depending on the level of intervention required. HM suffered several emergencies, for instance, a seizure, pneumonia, septic shock from a urinary tract infection, and several episodes of complete respiratory failure resulting in endotracheal intubation and mechanical ventilation. Every time he was put back on NIV (as opposed to intubation) his level of consciousness would gradually deteriorate, requiring reintubation with mechanical ventilation in the ICU to regain consciousness.

[20] On October 5, 2016, while in the ICU under Dr. Dev’s care, HM suffered a heart attack and required CPR and reintubation. Less than 24 hours later, on October 6, HM suffered a second heart attack and was revived once again by CPR performed by Dr. Dev. Dr. Dev explained that CPR was extremely invasive and painful to the patient, often resulting in broken ribs. HM never regained consciousness and has been completely dependent on mechanical ventilation for breathing after October 5, 2016. HM also required feeding tubes, intravenous delivery of fluids and medications, frequent suctioning to remove mucus build up in his lungs, and tubes to remove waste products from his body. HM began to develop pressure ulcers at several locations, requiring daily wound care. Eventually he would need a tracheostomy to facilitate mechanical ventilation as intubation was not safe for prolonged periods.

[21] In late September HM’s treatment team had begun breaking the news to HM’s family members that HM would never come off of artificial ventilation, and would likely need a tracheostomy and permanent feeding tubes. They suggested that ongoing life-support may not be the most beneficial path for HM, and offered an alternative course of palliative care, implying the removal of life-supporting mechanisms. The plan of treatment as outlined at the hearing was substantially established on or about October 4. The standing instruction from JM (as SDM) at that time was to continue to provide any intervention required to keep HM alive (sometimes referred to as “full code”). Following HM’s second heart attack and a careful discussion with Dr. Dev, JM consented to a directive refusing CPR in case of another heart attack. However, JM later revoked that directive, resuming the “full code” instruction.

[22] In early October the treatment team grew concerned that JM was not making decisions in accordance with the principles for substitute decision making set out in the HCCA. Following a series of three family meetings on October 4 and 7 with one of the attending doctors, Dr. Amaral, and on October 13 with Dr. Rubenfeld and other members of the treatment team, the treatment team concluded that JM did not meet the requirements of an SDM according to s. 20(2) of the HCCA. The treatment team turned to HM’s children as possible SDMs in place of JM. None of them wished to fill the role, but Robert Murray (“RM”), the son of HM and JM, eventually agreed only to avoid the hospital turning to the default decision maker: the Public Guardian and Trustee (“PGT”).

[23] As SDM, RM made the same treatment decision as JM: maintain full code. Despite receiving neurology reports stating that HM would likely never regain consciousness or be able to return home, RM was not open to discussion about transitioning into palliative care. Because it was not safe or comfortable to prolong indefinitely HM’s intubation for breathing, a tracheostomy was performed on November 16, as a more comfortable means of receiving ventilation and to minimize ongoing oral trauma. Between the time of his cardiac arrests and the hearing, HM developed numerous complications due to his prolonged hospitalization, including: recurrent ventilator-associated pneumonia requiring antibiotic treatment and frequent suctioning; severe pressure ulcers on his sacrum, ankles, elbows and shoulder; and a cavity in his right lung, whose etiology was unknown as the team lacked consent to perform investigation. RM’s last visit to HM’s bedside was in December, 2016. His last phone conversation with any staff at Sunnybrook (a nurse) was in early January, 2017. Because of the impending CCB hearing, RM considered it inappropriate and unnecessary to communicate further with anyone at Sunnybrook.

[24] On November 25, 2016, Dr. Dev, on behalf of the entire treatment team, filed a Form G application, requesting the CCB to review whether RM was complying with the principles of substitute decision-making under the HCCA. At a pre-hearing conference held on December 12, 2016, the CCB added JM as a party to the Form G application. Soon after, JM filed a Form C application seeking to be reinstated as HM’s SDM. A total of six prehearing conferences were convened by the CCB between December 2, 2016 and January 20, 2017, primarily to sort out accommodations for JM, as well as other procedural matters. The hearing convened on February 13, 2017, to consider the Form G and Form C applications together.

[25] In the Sunnybrook ICU there is a rotation of multiple attending physicians and residents who take turns with patient care and on-call duties for seven days at a time. Dr. Dev had been on duty in the ICU during the week in October when HM had his heart attacks, and 3 to 4 additional weeks during his hospitalization, the last time being February 16-23, 2017. HM had been cared for by approximately 15 other ICU attending physicians. The physicians collaborated on the care of all ICU patients, and were interchangeable as far as making treatment decisions. Dr. Dev was chosen to lead the Form G application process and to present evidence at the hearing, representing the consensus of the entire Sunnybrook medical team.

CCB Decisions on Form A, Form C, and Form G Applications

Summary of HM’s Medical Condition

[26] Before proceeding with its analysis regarding the applications before it, the CCB summarized HM’s multiple medical conditions at the time of the hearing. The summary included the following:

a. COPD: HM’s lung function was so severely compromised that he was completely dependent on mechanical ventilation through a tracheal tube. Simply put: his body could no longer breathe on its own, and without artificial ventilation he would die, likely within hours. To receive mechanical ventilation HM had to stay permanently in the ICU; there was no prospect of his ever returning home. b. Septic Shock: Associated with ongoing mechanical ventilation, HM was at high risk of acquiring pneumonia and other hospital-acquired infections requiring treatment with antibiotics. HM had at least four serious infections during his course in hospital, and more were to be expected. With each episode his body would become less resilient in recovery and every dose of antibiotics made HM more susceptible to treatment-resistant bacteria. c. Suctioning: The COPD caused mucus and fluids to accumulate in HM’s lungs, which he could not cough up, requiring suctioning several times per day-this likely caused HM discomfort. In addition, the suctioning caused occasional bleeding from the trachea, observed in February 2017. d. Loss of Neurological Function: HM had been in a deep coma since October 6, 2016. The evidence showed that the longer one remained, comatose, the less likely was the chance of ever awaking. At the time of the hearing, Dr. Dev estimated the chances of HM waking from his unconscious state was less than 0.1 of 1%. And, if he did regain consciousness, he would be severely impaired, mentally and physically, completely unable to communicate or meaningfully interact with his surroundings. e. Pressure Ulcers: HM had severe ulcers (bedsores) resulting from being bedbound for over six months. At the time of the hearing he had nine ulcers, seven of which were stage 4 (the most severe stage), in which the skin and muscle had eroded to the bone. They all required extreme care due to the high risk of getting infected. Every day, nurses had to change all the dressings and cut away infected and/or dead tissue (debridement). They would never heal, only continued to worsen - some of them had already grown 4-5 inches in diameter, and Dr. Dev explained there was further erosion of tissue below the surface that was not visible. The fast progression of these wounds indicated that HM’s body was literally decaying while being kept artificially alive. Dr. Dev believed that these ulcers caused pain, which HM was not able to communicate, especially when the dressings were being changed. f. Cancer: it was suspected, but not confirmed, that HM had cancer in his bones. This put him at risk of developing blood clots, which could also be a source of pain for HM. g. Lung Cavity: this was detected in a CT scan but the reason for it was unknown; it could be the result of lung cancer, pneumonia, or the COPD. This cavity created additional risks and complications with the use of artificial ventilation. h. Feeding and Waste Tubes: HM was given food and fluids through a nasogastric tube. He had a catheter for urine and a rectal tube to eliminate feces. i. Intravenous Line: HM had an intravenous (“PICC”) line going to his vein for delivery of medications. j. Central Diabetes Insipidus: a condition associated with brain injury whereby the body loses too much fluid leading to dangerously high levels of sodium in the blood and dehydration. This condition was managed with medication, but necessitated continuous blood testing several times per week. k. Blood Transfusions: as a consequence of having blood drawn for testing multiple times per week, HM’s red blood count dropped to dangerously low several times, requiring blood transfusions. With each transfusion, the risk of infection or allergic reaction increased. HM had had seven or eight transfusions by the time the hearing took place.

[27] At the hearing of this appeal, counsel for Dr. Dev, with the consent of counsel for JM, provided the court with a clinical update concerning HM’s condition. The court was advised that there was no sign of any clinical improvement for HM. HM remains in a comatose state with no sign of neurological recovery. He is entirely dependent on mechanical ventilation for respiratory support, with no hope that he will ever be liberated from the ventilator. HM’s other complications persist. The bedsores are particularly troubling. HM continues to experience the same side effects as he experienced at the time of the hearing. Dr. Dev describes his condition as “stably unstable”.

Decision on deemed Form A Application

[28] As noted, the CCB decided on the deemed Form A application that HM was incapable of consenting to, or refusing, the treatment proposed by Dr. Dev.

Decision on Form C Application

[29] With respect to the Form C application, the CCB considered it appropriate to place on Dr. Dev the onus of showing why JM did not meet the requirements of s. 20(2) of the HCCA. In support of her decision that JM was unsuitable to continue acting as SDM, Dr. Dev relied principally on clinical notes arising from three family meetings that occurred on October 4, 7, and 13, as well as other evidence. The CCB reviewed the evidence and could find no evidence that showed JM was incapable with respect to HM’s treatment. The CCB found that JM was available as SDM for the purposes of the HCCA. The CCB found that JM was very willing and eager to assume the responsibility of making decisions regarding HM’s care and treatment. The CCB addressed the frustration felt by the doctors in respect of the urgent need to come to a decision and that their repeated conversations with JM were “going nowhere”. The CCB found that the doctors were forgetting that a decision was already in place: that of “full code”, and what they were asking of JM was to change her decision.

[30] The CCB concluded that Dr. Dev had failed to prove that JM did not meet the requirements of fulfilling the role of SDM according to s. 20(2) of the HCCA. The CCB reinstated JM as the appropriate SDM for HM based on the ranking of family members in s. 20(1) and also on the power of attorney reflecting HM’s choice of his wife as SDM. Having done so, the CCB dismissed the Form C application as unnecessary.

Decision on Form G Application

[31] With respect to the Form G Application, the CCB identified the issue as whether JM had made decisions in accordance with the principles of giving or refusing consent set out in s. 21 of the HCCA.

[32] The CCB first addressed the argument made on behalf of JM that, because she was not the SDM when the Form G application was filed on November 25, 2016 (the SDM was RM at that time), a decision on the Form G application could not apply to her. It was argued on behalf of JM that the wording of s. 37(1) of the HCCA implies that the Form G application related to the SDM who is making decisions for the incapable person at the time the application was made. It was argued that JM ought to be given a fair opportunity to fulfil the role of SDM and give or refuse consent in accordance with the principles of substitute decision making. It was argued that if the CCB were to make a decision on the Form G application, this would not only be contrary to the letter and spirit of s. 37(1), it would also deprive JM of her role as SDM once again, and deprive HM of his right to have the SDM of his wish, as expressed in the power of attorney document (discussed below).

[33] The CCB addressed this argument and wrote:

Although there was some merit in Ms. Perez’s submissions, the consequences of ceding to her logic would have been absurd: if JM were once again given the reigns as SDM, and if she did not make a decision in accordance with s. 21, the treatment team would have to file a whole new Form G application, ignoring the six days of evidence and submissions they had already presented. This result would not only be unconscionable towards the treatment team, but more importantly to HM, who would have an indefinite delay in having his best interests respected.

I did not consider it unjust to render a decision on the Form G application and make it binding on JM as SDM, for the following reasons: first, the treatment plan proposed by Dr. Dev at the hearing had been proposed in substantially the same form while JM was still the SDM, as set out in Dr. Amaral’s note of October 4. This treatment plan had been explained to JM at the meetings on October 4, 7 and 13, to which JM had refused to consent, leading to her removal as SDM. HM’s condition had not changed substantially since then, if anything it had grown worse. I felt it was justifiable to evaluate whether JM’s decisions back in 2016 had been made in accordance with the HCCA principles. Second, when RM had assumed the role of SDM he did so reluctantly, saying he would make decisions according to what JM would have decided, out of his respect for his father’s wish that JM be the SDM. Throughout his time as SDM, RM’s direction to the treatment team had not varied from JM’s earlier decision to insist on full life-support. In his testimony RM said he only wanted to follow his father’s wishes, which were the same as his mother’s wishes. It is fair to say that RM was acting as JM’s proxy; in the role of SDM they were one and the same. Hence an analysis of whether RM was acting according to the principles in s. 21 during the period of October 14 to March 10 would apply equally to JM.

I believed it reasonable, logical, and justified to apply my Form G decision to JM at the same time as reinstating her as HM’s SDM. The decision she had made prior to October 14, 2016 remained in place, RM had not varied it at all. In the analysis that follows, I refer to JM’s and RM’s decision-making as interchangeable, depending on the time frame under analysis.

[34] The CCB also addressed in its Reasons for Decision submissions made on behalf of JM concerning the accommodations provided in respect of communications to her by hospital staff:

A note about accommodations provided when hospital staff communicated with JM: Ms. Perez argued that at no time were the accommodations provided by Sunnybrook staff sufficient to properly communicate with JM, thus the evidence about her alleged incapacity was of no value. Although Ms. Perez did not extend the argument to the Form G evidence, I considered whether JM’s dual disability caused her to be misunderstood, and thus discriminated against, as SDM. Dr. Dev and Ms. Herschman explained that great care had been taken at all times to communicate with JM using the methods recommended by family members: simple words written in large letters using black ink on paper. JM’s responses were written down to make sure they had been properly understood, and important questions were asked repeatedly for confirmation. When family members were present, lip reading was used to supplement the writing. JM carried a magnifying glass which she had used to read printed material. RM confirmed that JM had read and understood the letter she had signed dated October 21, 2016. There was no request for accommodation that had been refused by Sunnybrook and the evidence did not show that JM could had (sic) trouble understanding conversations due to her disability. JM claimed to understand the information she was told. At no time did JM or any other family member complain to the Sunnybrook team that JM was not being properly accommodated. I found that the accommodations provided by the staff at Sunnybrook were sufficient for the purpose of communicating HM’s treatment needs and best interests.

The CCB then addressed whether there had been compliance with s. 21 of the HCCA which sets out the principles for giving or refusing consent to a treatment on an incapable person’s behalf.

[35] Section 21(1) 1 of the HCCA provides that if the SDM knows of a wish applicable to the circumstances that the incapable person expressed while capable, the person shall give or refuse consent in accordance with the wish. Therefore, the CCB first addressed whether JM acted in accordance with a wish expressed by HM while he was capable that was applicable to the circumstances. In doing so, the CCB considered the evidence relating to four references to a wish expressed by HM, while still capable, that might be applicable to the circumstances.

[36] First, the CCB considered a conversation that HM had several years ago with his daughter, Donna, in which he stated that one should always hold onto life and not give up, but fight for it. The context of the conversation was that Donna had stated if she were ever on life support with no chance of recovery, she would want to die peacefully rather than be kept alive artificially. JM was also present at the time. The CCB found that it was unclear whether HM’s remark was intended to mean that Donna or JM, specifically, should hang onto life, or that he would hang onto life, or, generally, any person in that situation should hang onto life. The CCB found that the sentiment expressed by HM in this conversation was too vague and uncertain to comprise a prior capable wish under s. 21(1) of the HCCA.

[37] Second, the CCB considered evidence relating to HM refusing recommended surgery and chemotherapy for rectal cancer, but accepting radiation therapy. The CCB considered that these decisions did not amount to a clearly expressed wish applicable to either staying on, or refusing, life-support measures.

[38] Third, the CCB considered the power of attorney document (“POA”) by which, in 2008, HM had named JM as his sole attorney for making decisions about his care in case he were not able to do so for himself due to mental incapacity. On page 3 of the POA was a clause entitled “Living Will” that reads:

I further state that I have seriously considered the issue of life support systems. I empower my Attorney appointed in this document to make any final decisions regarding the withdrawal of artificial life support systems. If the situation should arise in which there is no reasonable expectation of my recovery from physical or mental disability, then I request that medication be mercifully administered to me to alleviate suffering and that I be allowed to die and not be kept alive by artificial means.

This POA was not produced and provided to the treatment team until October 21, 2016, after the treatment team had replaced JM as SDM. There was evidence given at the CCB hearing by Susan Schell, HM’s lawyer who prepared the POA, that she had advised the couple at the time they signed the document that nothing in the clause diminished the Attorney’s power to decide when to withdraw life support. The CCB held that HM’s wish ought to be enforced in the way that he had understood it, in other words, that his wife JM would retain discretion about when to withdraw life support, not that the decision would be made by his doctors or anyone else. The CCB recognized that JM would still be bound by the provisions of the HCCA and thus required to act in HM’s best interests.

[39] Fourth, the CCB considered evidence concerning a conversation between HM, during a period of lucidity, and one of his doctors, Dr. Cuthbertson, in which HM expressed his inclination not to stay on mechanical ventilation. In this conversation, HM said that he wanted to discuss this with his wife before making a final decision. HM lost consciousness before speaking with JM. The CCB concluded that this conversation did not amount to a capable wish that should absolutely determine HM’s death, but it was to be considered as one of the factors in determining HM’s best interests.

[40] The CCB concluded that the evidence did not establish that HM had clearly and unequivocally expressed a capable wish that was applicable to the present circumstances. The CCB then addressed HM’s best interests according to the principles set out in s. 21(1) 2 and s. 21(2) of the HCCA.

[41] The CCB held that the role of the SDM is to weigh all of the factors set out in s. 21(2) of the HCCA and make a decision that is objectively in the best interests of the incapable person, not a decision based on what she wants for the incapable person. The CCB wrote that its role was to determine whether JM’s (and RM’s) decision to maintain full life support for HM aligned with his best interests, according to the factors set out in s. 21(2).

[42] The CCB did not find any definitive direction arising out of HM’s values and beliefs, either in favour of, or against, HM’s continued survival on life support. The CCB considered the evidence of wishes expressed by HM that were relevant to the criterion of his best interests. These included:

a. HM’s wish for JM to make decisions for him in case of his incapacity. b. The wish expressed in the Living Will clause of the POA that, the CCB wrote, “begged to be considered”. c. The wish expressed to Dr. Cuthbertson, in the presence of another doctor, on September 27, 2016, when HM lucid, in which he indicated that he would prefer to die than remain on mechanical ventilation in a hospital environment indefinitely. The CCB also considered evidence from RM that HM was still semi-delirious when this statement was made and he really did not mean what he said to Dr. Cuthbertson.

[43] With respect to the factors set out in s. 21(2)1 and s. 21(2)2 in relation to HM’s condition or well-being, the CCB addressed in its Reasons for Decision the following evidence from Dr. Dev:

a. Dr. Dev’s proposed treatment plan was to remove all life-support systems and administer pain medication to keep HM comfortable, accepting the natural course of dying. Dr. Dev stated that the ethical use of life-support systems was to maintain life in the hope of recovery from an illness or trauma, or to preserve quality of life if any such quality exists. When all hope of recovery was gone, when any quality of life had disappeared, when the person was clearly dying, it became unethical to prolong suffering and delay death. In such a case, the machines were not extending HM’s life, but rather prolonging a slow, painful, and undignified death. Dr. Dev felt deeply that she was violating the Hippocratic Oath to “do no harm” by keeping HM alive in his condition. b. Dr. Dev believed that HM was suffering while remaining alive by artificial means. She believed he could feel pain during suctioning procedures and when having his dressings changed, as indicated by facial grimaces. Dr. Dev stated that HM would eventually die in hospital of an infection or organ failure despite the team’s best efforts to keep him alive. There was no hope of recovery, and his body was slowly decaying as it was being kept alive. There was absolutely no benefit to prolonging his death; implementing her treatment plan would allow her to maximize his relief from pain and discomfort well letting nature take its course. The entire treatment team was unanimous that the proposed plan would mercifully end HM’s suffering, thus improving his well-being. c. JM and RM both seemed to dismiss the medical information which had been confirmed to them over and over by numerous physicians from early October and on. They shared an unrealistic hope that HM would somehow awaken and recover enough faculties to enjoy life once again. They distrusted the prognosis and advice of the Sunnybrook team.

[44] The CCB found the medical evidence very compelling in establishing that the proposed treatment plan would improve HM’s well-being by ending his suffering and accepting the natural course of death. The CCB found that without the plan, HM’s body would continue to waste away, and more and more interventions would be required, until at last his body would give way to infection or massive organ failure that even medical technology could not prevent.

[45] The CCB held that, having regard to all of the evidence presented over six days of hearing, implementing Dr. Dev’s proposed treatment plan was in the best interests of HM.

Analysis

[46] Section 80(1) of the HCCA provides that a party to a proceeding before the CCB may appeal the CCB’s decision to the Superior Court of Justice on a question of law or fact or both. Section 80(10) provides that on the appeal, the court may (a) exercise all the powers of the CCB; (b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the CCB; (c) refer the matter back to the CCB, with directions, for rehearing in whole or in part.

[47] JM, through her counsel, makes two main submissions on this appeal.

[48] First, JM submits that she was deprived of the opportunity to act as her husband’s SDM, and that the CCB erred in law and exceeded its jurisdiction in deciding the Form G application in the absence of a decision from her.

[49] Second, JM makes the alternative submission that the CCB unreasonably weighed the evidence in determining that cessation of life supports was in HM’s best interests.

What is the applicable standard of review?

[50] In order to address JM’s first submission, it is necessary to decide what the applicable standard of review is on this appeal.

[51] JM, through her counsel, submits that:

a. The CCB has no jurisdiction except as expressly provided by its enabling legislation, and that questions of jurisdiction are questions of law subject to a correctness standard of review. b. At a Form G hearing, the CCB’s jurisdiction is restricted to determining compliance with s. 21 of the HCCA “if consent to a treatment is given or refused on an incapable person’s behalf” by the SDM. c. Information required for informed consent and for understanding s. 21 of the HCCA was not made available to JM and, therefore, she made no decision that the CCB could review on the Form G application. d. The CCB exceeded its jurisdiction by determining that it could, nonetheless, decide the Form G application, thereby erring in law.

[52] Dr. Dev, through her counsel, submits that:

a. The standard of review that applies to all aspects of the CCB’s decision at issue on this appeal is reasonableness. b. The CCB is a specialized expert tribunal which is entitled to deference on matters within its expertise, and the findings of the CCB should stand provided they were among the range of conclusions that could reasonably have been reached: L.E. v. Desai, at para. 18. c. The CCB has the power to determine its own procedures and practices: Statutory Powers Procedure Act, s. 25.01. The CCB was entitled to hear both the Form C and Form G applications at the same time and to render a decision on both. This decision should not be interfered with on appeal. d. The CCB’s decision was reasonable and rooted in the voluminous evidence before it. The CCB was well positioned to weigh the evidence and make the findings it did. The Court should not interfere with the CCB’s decision.

[53] The Supreme Court of Canada has held that a standard of review of reasonableness presumptively applies to a tribunal’s interpretation of its home statute. In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, the Supreme Court of Canada wrote at paras. 30, 33 and 34:

There is authority that “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (Dunsmuir, at para. 54; Smith v. Alliance Pipeline Ltd. [citations omitted], at para. 28, per Fish J.). This principle applies unless the interpretation of the home statute falls within one of the categories of questions to which the correctness standard continues to apply, i.e., “constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator’s expertise, … ‘[q]uestions regarding the jurisdictional lines between two or more competing specialized tribunals’ [and] true questions of jurisdiction or vires” [citations omitted].

I reiterate Dickson J.’s oft-cited warning in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, that courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” [citations omitted]. As this Court explained in Canada (Canadian Human Rights Commission), “Dunsmuir expressly distanced itself from the extended definition of jurisdiction” [citation omitted]. Experience has shown that the category of true questions of jurisdiction is narrow indeed. Since Dunsmuir, this Court has not identified a single true question of jurisdiction [citations omitted].

The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir, this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, interpretation by the tribunal of “its own statute or statutes closely connected to its function, within which it will have particular familiarity” should be presumed to be a question of statutory interpretation subject to deference on judicial review.

[54] In Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722 the Supreme Court of Canada considered the applicable standard of review on an appeal from a decision of the CCB under the HCCA confirming a finding by a patient’s attending physician that the patient lacked capacity. On appeal to the Ontario Superior Court of Justice, the CCB’s decision was reversed on the basis that it was unreasonable and that the CCB had erred in its application of the statutory test for capacity. The question under review was held to be one of mixed fact and law. With respect to the standard for review, the Supreme Court of Canada considered that there were factors that counseled against and for a deferential standard of review and concluded that, applying the pragmatic and functional approach to the question, it is clear that reasonableness is the appropriate standard of review, a standard that involves respectful attention, though not submission, to the board’s decision. An unreasonable decision is one that is not supported by any reasons that can stand up to a somewhat probing examination: Starson, at paras. 84-88, citing Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 49 and Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 982, at para. 56.

[55] Bearing these principles in mind, the question before me on this appeal with respect to the jurisdiction of the CCB is, in my view, one of mixed fact and law that must be reviewed on the standard of reasonableness. My reasons for reaching this conclusion follow.

[56] Whether the CCB had jurisdiction to make the decision that JM had not complied with the principles for giving or refusing consent set out in the HCCA and ordering JM to consent to the proposed treatment plan turns, in my view, on whether, when the application was brought, JM had made a decision to refuse to consent to the proposed treatment plan for HM. Section 37(1) does not specify that the determination of the CCB on a Form G application must, in all cases, be restricted to a determination of whether the SDM at the date the application was made did not comply with s. 21 of the HCCA. If JM, when she was SDM for HM, had refused treatment on behalf of HM that did not comply with s. 21 then, in my view, under the HCCA, it would be open to the CCB to conclude on a Form G application, even one brought when JM was no longer the SDM for HM, that it had jurisdiction to decide the Form G application as it did.

[57] Although JM was not the SDM when the application was brought, she was added as a party to the Form G application with all of the rights of a party, and she exercised these rights during the course of the hearing. There was no objection by JM to proceeding with the Form G application and the Form C application together when this procedural decision was made. It would have been apparent to the parties from the time that this procedural decision was made that one possible outcome could be that the CCB could decide, as it did, that (i) JM be restored as SDM for HM, (ii) there was a decision taken by JM and, when he became the SDM for HM, followed by RM, that was not in compliance with s. 21 of the HCCA, and (iii) because of this non-compliance, JM be ordered to consent to the proposed treatment plan.

[58] The procedural decision taken by the CCB to add JM as a party was, in my view, one that allowed JM full rights to participate in the hearing at which the question of whether the withdrawal of life supports for HM was in his best interests was central. Counsel for Dr. Dev emphasized in her submissions that HM is the person at the centre of the CCB hearing and this appeal, that it is his interests that the CCB was required to consider, and that I should keep HM’s interests in the forefront of my mind on this appeal.

[59] Counsel for JM submitted at the hearing of this appeal that, if the CCB lacked jurisdiction because no decision had been made by JM to refuse consent to the proposed treatment on behalf of HM that could be the subject of a Form G application, no steps taken by or on behalf of JM to accept the procedural decision made by the CCB to hear the two applications together could operate to confer jurisdiction on the CCB. I accept this submission but, in my view, the question that JM identifies as one of jurisdiction and, therefore, one of law, is not properly identified as such. This is because whether the CCB had jurisdiction would depend on the factual determination of whether, before the Form G application was brought, JM made a decision to refuse to consent to the proposed treatment plan on behalf of HM. This, in turn, would depend on the factual determination of whether JM understood the requirements of s. 21 of the HCCA before she was asked to consent, or refuse to consent, to the proposed treatment. These factual determinations would have to be made based upon the evidence tendered at the CCB hearing, including the evidence in relation to actions taken by the medical team at Sunnybrook to accommodate for JM’s deafness and significant visual impairment.

[60] Counsel for JM referenced in her submissions on the appeal an exchange with the presiding member of the CCB in closing submissions at the hearing that, counsel submits, was an acknowledgment that there was no “current treatment decision” from JM that was necessary to form the jurisdictional foundation for an order against JM on the Form G application. The exchange concerned the submission made that JM ought to be given an opportunity to fulfill the role of SDM and give or refuse consent to the proposed treatment. The presiding member acknowledged in comments made during closing submissions that it was a mistake to have conducted the Form C application and the Form G application together and that, if she was beginning again, she would have separated the applications.

[61] In its Reasons for Decision, the CCB specifically addressed the decision to proceed with both applications together and concluded that it was not unjust to have proceeded with the two applications together, and the CCB gave reasons for this conclusion that are quoted above (para. 33). The CCB squarely confronted the circumstance that would have arisen if, having found that HM’s best interests are served by withdrawal of life supports, the CCB did not make a decision directing JM as the SDM for HM to consent to the proposed treatment plan. The CCB observed that if it did not do so, and if JM then refused to consent to the proposed treatment, this would necessitate a new hearing and significant additional delay which would not only be “unconscionable towards the treatment team, but more importantly to HM, who would have an indefinite delay in having his best interests respected”.

[62] I do not regard the comments of the presiding member of the CCB during closing submissions to constitute an acknowledgment of any lack of jurisdiction of the CCB to make the decision that was made. The CCB’s procedural decisions concerning how the applications would proceed were made having regard to the nature of the applications, where the entire treatment team supported the proposed treatment plan as one that would mercifully end HM’s suffering, thus improving his well-being. At the same time, the interests of JM, who wished to be restored as SDM for HM, were before the CCB on the Form C application. The CCB acted reasonably to reconcile the interests of the treatment team and those of JM, in the context of proceedings involving the primary interests of HM, by giving JM party status on the Form G application and by having the two applications heard together.

[63] The HCCA itself recognizes the importance of achieving finality in respect of decisions directed to the best interests of incapable persons without delay. Under the HCCA, the hearing of an application shall begin within seven days after the CCB receives the application and the CCB is required to render its decision within one day after the hearing ends with reasons, if requested, to be issued within four business days after the request: HCCB, s. 75. These time periods were not followed by the CCB because of the need to ensure fairness for all parties involved, including by ensuring that accommodation was made at the hearing for JM’s deafness and significant visual impairment.

[64] I therefore conclude that the question of whether the CCB exceeded its jurisdiction by directing JM to comply with the proposed treatment involving withdrawal of life supports is one of mixed fact and law and that the standard of review is reasonableness.

Was the CCB’s decision that JM’s communications disabilities were sufficiently accommodated reasonable?

[65] JM submits that the CCB erred in determining that JM had received adequate accommodation for her deafness and near blindness. Counsel submits that the evidence was clear that JM was never properly accommodated by the treatment team, and that resources, such as CNIB intervenors (who participated at the CCB hearing), were never requested. HM provided detailed submissions concerning the evidence at the hearing in relation to the October meetings and the steps taken by the treatment team to communicate with JM. JM submits, among other things, that the evidence shows that intervenors for deaf-blind persons were never utilized by the Sunnybrook team when communicating with JM, that notes showing communications with JM (by her daughter at one meeting, by a social worker at another meeting and by Dr. Rubenfeld at the third meeting) were not available at the hearing, and that no treatment plan was offered at the meetings.

[66] JM also made submissions concerning the duty of medical practitioners to obtain informed consent from persons with communication related disabilities and the professional and legal duties of medical practitioners in such circumstances to provide adequate accommodation to a person with a communications related disability in a manner that respects the dignity and autonomy of the person. JM submits that, while accommodation does not need to be perfect, appropriate accommodation is one that most responds to a person’s individualized needs and allows for full participation, and that the fact that a person with disabilities may not request a particular accommodation does not obviate the duty to accommodate.

[67] Counsel for Dr. Dev submits that the evidence of Dr. Dev was that the treatment team tried to mirror JM’s regular forms of communication, and that she described the various steps that the clinical team took to ensure that JM understood the medical information they were relaying. Information would be written out using a black marker on white paper in large font. Dr. Dev described CPR as “press the chest” and acted it out. During meetings with JM, the clinical team would ask questions repeatedly and ask JM to confirm her understanding. RM acknowledged in his testimony that the clinical team had never refused an accommodation request made by JM or the family. The CCB also found that there was no request for accommodation that had been refused by Sunnybrook, and that neither JM nor any other family member complained to Sunnybrook that JM was not being properly accommodated. Dr. Dev submits that Sunnybrook cannot be faulted for not employing the strategies put into place at the CCB hearing (after an assessment process that took close to 1.5 months to complete) involving specially trained intervenors and the use of a computer with large font. There was testimony at the hearing that a witness from CNIB had acknowledged that, in her 17 years of work at CNIB, she has never been contacted by physicians to assist with communicating with a SDM.

[68] I have considered the submissions of counsel concerning the evidence at the CCB hearing as well as the findings made by the CCB and recorded in the Reasons for Decision according to the approach directed in the majority decision of Major J. in Starson, one that involves respectful attention, but not submission, to the decision of the CCB. The CCB is a specialized expert tribunal that has heard the evidence and is better able to make a finding on this question than is a reviewing court. The CCB gave reasons for its finding that show careful consideration of the evidence. I have concluded that the finding by the CCB that the accommodations provided by the staff at Sunnybrook were sufficient for the purpose of communicating HM’s treatment needs and best interests is one that is well within the range of findings that could reasonably have been made and that this finding stands up to a somewhat probing examination. This finding is owed deference.

Was the CCB’s decision that JM made a decision to require full life support intervention for HM (and to refuse to consent to the proposed treatment) reasonable?

[69] The CCB found that from the start of HM’s admission it had been understood by the entire treatment team that JM’s standing instructions were to do everything to keep HM alive. The CCB addressed in considerable detail in the Reasons for Decision the evidence concerning three meetings held on October 4, 7 and 13, 2016. The meetings on October 4 and 7 were attended by Dr. Amaral with JM, one of her daughters, and RM (by telephone). The October 13, 2016 meeting was attended by Dr. Rubenfeld and by JM, along with a social worker, the hospital ethicist, and a chaplain. JM’s children were notified of the meeting, but none elected to attend. The CCB found that the treatment plan was explained to JM at these meetings, to which JM refused to consent, leading to her removal as SDM.

[70] JM submits that the CCB found that her capacity with respect to HM’s treatment plan had not been assessed and that such an assessment would necessarily require that all material information about HM’s condition and treatment options had been explained to JM. JM submits that Dr. Dev took the position at the hearing that JM was either incapable, unwilling or unavailable to make a treatment decision and, therefore, no decision had been made by JM that the CCB could review on the Form G application.

[71] I do not accept this submission. The CCB found that there was never a proper capacity assessment and that there was never a valid finding of JM’s incapacity. The CCB found that the evidence did not establish that JM was not capable with respect to any of HM’s treatment. The fact that JM’s capacity with respect to HM’s treatment plan was not assessed does not lead to the conclusion that no decision was made by JM that the CCB could review on the Form G application. The CCB found that JM did not, on the evidence, lack capacity, and went on to find that JM’s standing instructions, before and after the October meetings, were to do everything to keep HM alive and to refuse to consent to the proposed withdrawal of life supports. In my view, there is no inconsistency between these two findings.

[72] Counsel for JM submits that the CCB resolved the dilemma presented by the absence of a decision by JM to refuse to consent to the proposed treatment by determining that RM was acting as his mother’s “proxy”. Counsel submits that this finding was not available to the CCB in law and was unsupported by the evidence.

[73] I do not accept this submission. The CCB referred to testimony from RM in which he said that he only wanted to follow his father’s wishes, which were the same as his mother’s wishes. The CCB found that throughout his time as SDM, RM’s direction to the treatment team had not varied from JM’s earlier decision to insist on full life support. Counsel for Dr. Dev referenced other evidence in which RM said that his mother should be the substitute decision maker, and that he would do what his mother wants him to do. Dr. Dev also gave evidence that RM was adamant that his mother be the decision maker and that these decisions go to his mother. In my view, it is fully open to the CCB to find that JM’s standing orders were to insist upon full life support for HM, and that RM, upon becoming SDM for HM, followed his mother’s wishes.

[74] In addition to the evidence concerning the October meetings, there was evidence that JM signed a letter dated October 21, 2016 to the treatment team. This letter followed a letter dated October 20, 2016 written by Dr. Dev to JM and her children that stated that JM lacked capacity to be the SDM for HM. The October 21, 2016 letter signed by JM reads, in part, as follows:

I am the power of attorney for my husband. I clearly understand my husband’s condition. I simply want to make the decision that my husband would make if he was able. He had a conversation with my daughter, Donna, in which he communicated what his wishes were in just such a situation a little while back.

I believe the decision that my husband would make if he was able to would be to do a Full Code. As a result, that is my decision for treatment.

The evidence at the CCB hearing was that this letter was written with the assistance of RM. His evidence at the hearing was that he and his mother agreed to send the letter, and that she told him what she wanted. He testified that her wishes were to “do everything”, so he said he would put that in a letter. His mother read the letter with her magnifying glass and she said “it’s good” and she signed it. RM’s evidence was that he felt that she was able to understand the letter that she signed.

[75] Counsel for JM referred to other evidence from Sunnybrook staff to the effect that they suspected that JM did not write or understand the contents of the letter, and they never asked her about it, acknowledging at the hearing that “that’s not fair to Mrs. Murray” and “we could have done better”. Counsel for JM submits that this letter would have provided instructions limited to HM’s medical condition at the time the letter was signed, and that JM’s knowledge would have been limited by the lack of information shared with her by the treatment team and by the lack of accommodation.

[76] However, the CCB found that the instructions in the October 21, 2016 letter were “clear and unmistakeable”. This finding is reasonable.

[77] The CCB found that the treatment team, in the October meetings, felt the urgent need to come to a decision on the proposed treatment for HM. The CCB found that a decision was already in place when those meetings were held, and that what the treatment team was asking of JM was to change her decision, based upon the new circumstances that differed from those when HM was first admitted. The CCB found that JM was not unwilling to make a decision - she had expressed her decision repeatedly up to October 13.

[78] In my view, CCB’s finding that JM made a decision while she was still the SDM for HM to require full life support for HM also falls well within the range of findings that could reasonably have been made. This finding is owed deference.

Did the CCB unreasonably weigh the evidence in determining that cessation of life supports was in HM’s best interests?

[79] JM, through counsel, submits that the CCB’s decision that cessation of life supports and palliative treatments were in HM’s best interests was unreasonable. Counsel submits that the withdrawal of life support would likely end HM’s life, and this might be a painful process despite palliative care, and the duration of the dying process could not be accurately predicted. She submits that there was evidence that HM had a chance, albeit a small one, of awakening from the coma and that RM noted that persons with disabilities are still “useful” and have lives of value.

[80] Dr. Dev, through counsel, submits that the CCB’s decision that HM’s SDM did not comply with s. 21 of the HCCA by acting in HM’s best interests with respect to the proposed withdrawal of life supports is reasonable and is entitled to deference. She submits that the CCB’s weighing of the factors set out in s. 21(2) falls within its jurisdiction and is entitled to deference. Counsel submits that Dr. Dev testified for hours about the serious complications that HM has suffered during his hospital admission and the grim prognosis he faces, and that the evidence presented at the hearing amply supported the decision made by the CCB.

[81] In its Reasons for Decision, the CCB described the factors that it weighed in deciding that JM and RM had made treatment decisions that were not in accordance with HM’s best interests. It is clear from these reasons that the CCB well understood the emotional turmoil that was experienced by HM’s family members in these difficult circumstances. Nevertheless, the CCB correctly wrote that its obligation under the HCCA was to weigh all of the factors and make a decision that is objectively in the best interests of the incapable person, not a decision based on what the SDM wants for the incapable person, citing Cuthbertson v. Rasouli, 2013 SCC 53, at para. 88.

[82] The CCB addressed all of the relevant factors, and its decision that JM and RM made decisions that were not in accordance with HM’s best interests, objectively determined, is reasonable, and entitled to deference.

Disposition

[83] JM’s appeal is therefore dismissed.

[84] At the conclusion of the hearing of this appeal, counsel for JM submitted that, if the appeal were to be dismissed, JM, given her communications disabilities, would need more than the three day period of time requested by Dr. Dev for withdrawal of life support for HM in order for JM to fairly and fully receive and review the appeal decision as well as for her children, three of whom live far away, to receive and review it. When the decision of the CCB was made on March 10, 2017, the CCB required compliance with its directions by March 19, 2017, nine days later. Counsel for JM submitted that an equal period of nine days should be given for compliance with the CCB’s directions in the event that the appeal is dismissed.

[85] Counsel for Dr. Dev submitted that, if the appeal were to be dismissed, the direction of the CCB to JM to consent to the treatment plan the proposed involving withdrawal of life supports should be complied with quickly. Counsel for Dr. Dev pointed to the length of time that HM had been in a comatose state and suffering from an upsetting list of complications. She submitted that HM should not be forced to continue in this state any longer, and that the period of time for compliance with the directions of the CCB should be no more than a few days.

[86] In the circumstances, I will grant the timing accommodation requested by JM for the same reasons as were expressed by the CCB. This additional time will allow counsel for JM to explain the decision to her with appropriate accommodations in place, and it will allow family members to gather from across the country if they so wish. JM is directed to comply with the directions given by the CCB in its March 10, 2017 Decision by 5:00 p.m. on May 24, 2017 If JM does not comply with such directions by this date and time, she shall be deemed not to meet the requirements for substitute decision making as they are set out in section 20(2) of the HCCA.

[87] I may be spoken to concerning costs, if necessary.

Mr. Justice P.J. Cavanagh

Released: May 15, 2017