CITATION: Estwick v. Younker, 2017 ONSC 3153
COURT FILE NO.: CV-16-562090
DATE: 20170525
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board, pursuant to the Mental Health Act, R.S.O. 1990, c. M.7, as amended
AND IN THE MATTER OF Heather Estwick, a resident of Etobicoke, Ontario
BETWEEN:
HEATHER ESTWICK
Appellant
– and –
DR. MARIKA YOUNKER
Respondent
Felicitas Nkiru Agbakwa for the Appellant
Christine Wadsworth for the Respondent
HEARD: May 19, 2017
PERELL, J.
REASONS FOR DECISION
[1] On April 28, 2016, Heather Estwick (age 49) had a heart attack that injured her brain. She was diagnosed with anterograde amnesia; she is unable to retain new memories. She also suffers from “frank confabulation,” and unintentionally fabricates information that she believes to be true.
[2] On June 30, 2016, Ms. Estwick was transferred from the medical unit to the psychiatric unit at St. Joseph’s Health Centre in Toronto as an involuntary patient. Dr. Marika Younker, a psychiatrist, began treating Ms. Estwick on July 4, 2016.
[3] On July 13, 2016, during Ms. Estwick’s admission to the psychiatric unit, pursuant to the Mental Health Act, R.S.O. 1990, c. M.7, and the Substitute Decisions Act, 1992, S.O. 1992, c.30, Dr. Younker found that Ms. Estwick was incapable of managing her property.
[4] The test for incapacity to manage property is set out in s. 6 of the Substitute Decisions Act:
- A person is incapable of managing property if the person is not able to understand the information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[5] Ms. Estwick appealed the finding of incapacity to the Consent and Capacity Board, which in a decision dated July 22, 2016, upheld Dr. Younker’s decision. As a result of the findings of incapacity, the Public Guardian and Trustee assumed control of Ms. Estwick’s property.
[6] On August 8, 2016, Dr. Younker, as well as an occupational therapist, assessed Ms. Estwick’s capacity to manage property. They determined that Ms. Estwick was unable to identify her bank, where it was located, and her account PIN number. Ms. Estwick was unable to accurately report her sources of income and the amount of her expenses. At times, she was unable to give her own address or phone number. Ms. Estwick, who is impoverished and receiving social assistance, confabulated assertions that she was wealthy from lottery prizes and inheritances. The therapist and Dr. Younker found that Ms. Estwick was incapable of managing property.
[7] As a result of these assessments, on August 8, 2016, Dr. Younker issued a Certificate of Continuance with respect to the finding of incapacity.
[8] On August 11, 2016, Ms. Estwick was discharged from the Health Centre.
[9] Ms. Estwick appealed the finding of incapacity to the Board, which held a hearing on September 27, 2016.
[10] Dr. Younker and Ms. Estwick's partner, John Stephenson, testified at the hearing. Numerous exhibits were entered into evidence including an Occupational Therapy In-Patient Functional Report dated August 8, 2016 and Dr. Younker's detailed discharge summary dated August 19, 2016.
[11] At the hearing, Dr. Younker testified that Ms. Estwick’s condition and cognition had not improved during her admission to the Health Centre and, given the nature of the brain injury, improvement was not to be expected. Dr. Younker was unequivocal that Ms. Estwick did not have capacity to manage her property.
[12] On September 27, 2016, the Board confirmed Dr. Younker’s finding of incapacity (Reasons for Decision dated October 3, 2016). The Board found that Dr. Younker had proven that at the time of the hearing Ms. Estwick was incapable of managing property. The Board noted that Dr. Younker's finding that Ms. Estwick had significant memory impairment and that she confabulated was corroborated by a neurologist and two occupational therapists who had seen Ms. Estwick. The Board found that Ms. Estwick was unable to understand the information relevant to making a decision about the management of property. The Board concluded that Ms. Estwick's symptoms left her without the ability to understand relevant information about making decisions because she could not retain information long enough to evaluate it and she believed her fabrications to be true.
[13] Ms. Estwick appeals the Board’s decision to this court.
[14] Reasonableness is the standard of appellate review that applies to the decisions of an administrative tribunal like the Consent and Capacity Board, including its decisions interpreting its home statute. The Board is a specialized tribunal entitled to deference on matters within its expertise including factual determinations on capacity issues. See: Ackie v. Manocha, 2014 ONSC 669; McLean v. British Columbia (Securities Commission), 2013 SCC 67; Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61; L.E. Desai, [2006] O.J. No. 3381 (S.C.J.); Starson v. Swayze, 2003 SCC 32.
[15] In my opinion, the Board properly considered the evidence before it, and it reasonably concluded that Ms. Estwick was incapable of managing property. There is no merit to Ms. Estwick’s arguments that the Board relied on stale information and that incapacity was not proven at the time of the hearing. There is no merit to Ms. Estwick’s arguments that the Board failed to consider or failed to give proper weight to the evidence of Mr. Stephenson and that it erred in concluding that his evidence did not refute Dr. Younker’s conclusion that Ms. Estwick was incapable of managing property.
[16] Relying on Khan v. St. Thomas Psychiatric Hospital (1992), 1992 CanLII 7464 (ON CA), 7 O.R. (3d) 303 (CA), leave to appeal to SCC refused [1992] S.C.C.A. No. 319, Ms. Estwick argues that the Board erred by failing to take into account that given her poverty, the management of her property was not complex. In the Khan case, the patient refused to inquire about the extent of her property, and the court did not address the significance, if any, of the extent of a person’s property to his or her ability to manage it, and rather addressed whether the Board applied the proper test to determine the patient’s capacity to manage the property. More to the point, in the immediate case, the Board was manifestly aware that Ms. Estwick had no property to speak of and that she had extremely modest sources of income. The Board came to the reasonable conclusion that whether the property was negligible or great, Ms. Estwick was incapable of managing it.
[17] The Board’s decision to confirm Dr. Younker’s finding of incapacity was reasonable and supported by the evidence. I dismiss the appeal without costs.
Perell, J.
Released: May 25, 2017
CITATION: Estwick v. Younker, 2017 ONSC 3153
COURT FILE NO.: CV-16-562090
DATE: 20170525
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HEATHER ESTWICK
Appellant
– and –
DR. MARIKA YOUNKER
Respondent
REASONS FOR DECISION
PERELL J.
Released: May 25, 2017