Court File and Parties

COURT FILE NO.: CVA-16-0664 DATE: June 20, 2017

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, chapter M.7 as amended

AND IN THE MATTER OF M.B. A patient at the BROCKVILLE MENTAL HEALTH CENTRE BROCKVILLE, ONTARIO

BETWEEN: M.B. Appellant – and – DR. BRAD BOOTH Respondent

COUNSEL: Meaghan McMahon, for the Appellant Michelle O’Bonsawin, for the Respondent

HEARD: In Brockville on May 17, 2017

RULING ON APPEAL

PEDLAR J.

Background

[1] This is an appeal from the decision of the Consent and Capacity Board (hereinafter referred to as “the Board”), dated October 24, 2016, with reasons dated November 8, 2016, wherein the Board confirmed the Appellant’s incapacity to manage his property.

[2] At the time of the hearing, the Appellant (hereinafter referred to as “M.B.”) was seeking an order that the matter be sent back for a new hearing before a fresh panel of the Board on the grounds that the Board erred in law in its assessment of the evidence. The Appellant is no longer submitting that the decision was unreasonable, as a grounds of appeal.

[3] The background of M.B., as contained in the record of proceedings from the Board and summarized in the factums of the Appellant and Respondent herein, that is relevant to these proceedings, includes that in January, 1996, at the age of 23, M.B. was involved in a serious car accident. He suffered a head injury with damage to his right frontal, parietal and temporal lobes. Testing conducted at Ottawa Civic Hospital determined that he had suffered a marked reduction in intellectual functioning as a result of brain injury. M.B.’s reading and spelling were recorded as being at a grade 5 level with his mathematic abilities at grade 3 level. His visual and memory and concentration were severely impaired and he had begun to experience difficulties with aggression that were not present before the accident.

[4] M.B. was referred to the Royal Ottawa Mental Health Centre where, from September 1996 to May 1997, he was assessed by Dr. John Bradford on an out-patient basis. During that time, he was diagnosed with dementia, amnestic disorder and personality change, resulting from head trauma. He was also diagnosed with alcohol abuse disorder.

[5] From 1996 to 2003, M.B. suffered mood dyscontrol and neurocognitive difficulties. In January, 2003, M.B. was admitted to hospital with psychotic ideation of a grandiose and bizarre nature. By June, 2004, M.B. was diagnosed with schizophrenia (paranoid type), acquired brain injury and substance abuse disorder. He had previously been diagnosed with bipolarity by Dr. DeAlberto in 2002.

[6] During his 2003 admission, M.B. suffered periods of deterioration in which he expressed delusional beliefs, including that he had several unrelated children in the community that were his, that important or famous individuals were communicating with him via indirect means, that he was either Elvis or a relative of Elvis, that he was the son of Jesus, and that he was romantically involved with a number of Hollywood celebrities.

[7] M.B. has a significant history of drug and alcohol use beginning at the age of 15. He is currently age 44. He frequently consumed cocaine and marijuana in the past and reported using heroin during his federal incarceration. In spite of numerous run-ins with the law stemming from alcohol consumption including the 1996 car crash which had resulted in two deaths, M.B. denied having any problems with substance abuse.

[8] In October, 2005, he was charged with breach of probation, driving while disqualified and dangerous operation of a motor vehicle and driving while his ability was impaired. At that time, he expressed a belief that singer, Shania Twain, had been telepathically guiding and directing him. M.B. was referred to Brockville Mental Health Centre for an in-custody psychiatric assessment and he was found not criminally responsible on March 27, 2006, and placed on a detention order by the Ontario Review Board.

[9] Following a new round of psychological testing, M.B. was found to have a number of psychological conditions that included manic elements, generalized anxiety disorder and depressive personality disorder with borderline and narcissistic features. During his hospitalization, M.B. continued to believe that he was married or otherwise romantically engaged with numerous celebrities, including Shania Twain. He also believed he had been somehow involved with Osama Bin Laden and the destruction of the World Trade Centre, that he possessed supernatural powers, that he was telepathically connected to every woman on earth, that he fathered several of his cousins and that Shania Twain controls his toothaches.

[10] M.B. characterized his psychological issues as spiritual or telepathic disease unique to him and denied that medication could help in treating his condition because of its supernatural nature.

[11] M.B. was first found financially incapable on September 24, 2012. The Public Guardian and Trustee was his guardian for property until his father, at the request of M.B., took over as his guardian on October 30, 2012. His father, B.B., had acted as his Power of Attorney since the car crash in 1996. B.B. has maintained regular contact with M.B.’s treatment team and has established a weekly budget for his son, which has been increased over time.

[12] In March, 2013, M.B., who had been putting some of his weekly budgeted money aside, managed to abscond from the hospital and he consumed alcohol. On May 21, 2013, he acquired a new bank card, credit card and replacement personal identification, all of which he later agreed to return.

[13] Even while under close supervision, M.B. was able to withdraw a sum of money in December, 2013. M.B. states he had withdrawn around $800.00, although his guardian of property reported the amount being closer to $1,400.00. M.B. lost this money after being exploited as part of a phone scam.

[14] In February, 2014, a collection agency was seeking $934.00 that M.B. owed for a Bell Canada invoice.

[15] In the fall of 2016, M.B. sought to challenge his incapacity finding and requested a hearing before the Board. In preparation for that hearing, he met with Dr. Brad Booth on October 17, 2016 to review his financial capacity. Dr. Booth observed that M.B. was unaware of how much money he had in any of his accounts or how much money he had received as settlement from his insurer from the original accident. Around the time of that assessment, M.B. had once again acquired a bank card and eloped to Ottawa for three days. He was uncertain how much he had spent during that time but thought it was perhaps around $1,000.00 on clothing, food and cigarettes.

[16] When asked if he had ever given money to anyone, he informed Dr. Booth he had invested around $1,600.00 with a man named Daniel Duke who had contacted him and promised to double his money. As of the date of hearing of the appeal, there is no evidence that he had yet heard back from Daniel Duke although M.B. had previously indicated he would probably hear back from Mr. Duke soon and that he had likely made money on the investment.

[17] Part of the assessment of M.B. by Dr. Booth was a clinical test used to assess mental function by serially subtracting seven from 100. M.B. was unable to complete the test on his own, but was eventually able to get the appropriate numbers with the aid of a cell phone calculator and some prompting from Dr. Booth.

[18] M.B. stated to Dr. Booth that he currently received $700.00 per month through CPP and that his father puts about $200.00 into his account at the hospital each month. He also informed Dr. Booth that he believe he was in a relation with Shania Twain and that, as a result, he could access as much money as he wanted at any time, including amounts in the millions.

[19] The test for making a finding of incapacity to manage property is set out at Section 6 of the Substitute Decisions Act, 1992, S.O. 1992, CHAPTER 30, and reads as follows:

6. A person is incapable of managing property if the person is not able to understand 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. 1992, c.30, s.6.

[20] A clear reading of that section indicates that it is a two-fold test involving either being “not able to understand 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”. A finding on either grounds set out in the section can meet the test and both grounds do not need to be found in order to make a finding that a person is incapable of managing property.

[21] The specific grounds for appeal are set out in paragraphs 28 and 29 of the Appellant’s Factum at pages 10 and 11 and they are stated as follows:

[28] The appellant submits that the Board misconceived the purpose of cross-examining an expert: the purpose of cross-examination is to undermine the expert’s opinion, not to convert the expert to the cross-examiner’s side. The Board was obligated to consider whether counsel’s cross-examination of Dr. Booth exposed significant weaknesses in the doctor’s opinion, which in turn undermined his opinion. The appellant submits that counsel’s cross-examination of Dr. Booth, coupled with Dr. Gosselin’s Neuropsychological Assessment and M.B.’s evidence, highlighted the following weaknesses in Dr. Booth’s opinion:

a. M.B.’s knowledge and appreciation of his finances and assets (or lack thereof), including what his father manages for him. b. Dr. Gosselin’s conclusion that M.B. has “realistic” insight into his actual functioning, and notation that M.B. has developed “good cognitive remediation strategies”. c. M.B.’s ability to pay his own cell phone bill, and the lesson he learned when his account went into collections, forcing him to save up to be able to pay off the bill. d. M.B.’s foresight to discuss allowance increases with his father to purchase more cigarettes. e. The fact that M.B., on his own initiative, provided his new bank card and credit card to his social worker despite obtaining the cards improperly. f. The fact that M.B. was able to identify that, in hindsight, he was scammed by the telephone investment opportunity from the UK. g. M.B.’s risk evaluation of “low, general, not immediate” with respect to exploitation by others on the Interdisciplinary Risk Assessment Checklist.

[29] Whether Dr. Booth changed his opinion based on counsel’s cross-examination was not the issue for the Board to determine. Rather, the Board had to evaluate Dr. Booth’s evidence in light of counsel’s cross-examination and all other evidence presented to the Board in order to determine whether Dr. Booth’s evidence rebutted the presumption that M.B. is capable of managing his finances. The Board’s failure to do this constitutes an error of law.

[22] Counsel for the Respondent points out that Dr. Booth’s evidence is not contradicted. The Appellant relies largely on portions of the Reasons for Decision that are contained at the last two paragraphs on pages 6 and 8 of those reasons and read as follows:

(Page 6): Mr. Preston cross-examined Dr. Booth at length and canvassed various financial issues such as the value of Mr. BB’s heavy equipment company and his casino winnings and various information about MB in social worker, Michael Whelan’s progress notes and in the neuropsychological assessment by Dr. A. Gosselin in March 2014. He went over her comparisons with a previous neuropsychological assessment by Dr. Horton in May 2011 while at the Royal Ottawa Health Care Group, both part of Ex. 2. In addition, counsel filed Exhibits 3 and 4 because each contained some information favourable to MB if not directly addressing the question of competency to manage property.

Suffice it to say that counsel appropriately canvassed every paragraph or entry in these documents that were even minimally helpful to MB’s objective of regaining financial control over his income and expenses. No stone was left unturned. At the conclusion of this entirely appropriate cross-examination, Dr. Booth had not modified his opinion as expressed above.

(Page 8): Analysis – While the panel was sympathetic to MB’s desire to regain control of his account, we are of the view that his history of making poor financial decisions is the better indicator of his inability to manage his property in the future. These poor financial decisions occurred while MB was under financial management by his father. MB has had his property voluntary managed by his mother and father by way of a Power of Attorney since 1996, well before Dr. Bradford’s finding of September 24, 2012. Independently of Dr. Bradford’s assessment, Dr. Booth assessed MB on October 17, 2016 and came to the same finding.

The panel accepted Dr. Booth’s evidence and the reasons which he advanced for making his finding. MB was rather easily “scammed” by this individual in the UK. In addition, his delusions about a relationship to Shania Twain and other personalities and his belief that this allows him access to large sums of money make it clear that MB does not understand this relationship and is not able to understand information that is relevant to making a decision in the management of his property.

Result – The panel was unanimously of the view that the evidence of incapacity to manage property was clear, cogent and compelling and met the required threshold of proof on a balance of probabilities.

[23] It should be noted that the Reasons for Decision included reference not only to the oral evidence of Dr. Booth and M.B., but also seven exhibits listed at page 2 of those reasons and then from page 3 through 6 a summary of evidence on which the decision is being made, based on the evidence of Dr. Booth and the exhibits which are the source of information which Dr. Booth consulted in preparing his report, filed as Exhibit 1.

[24] It is clear from reading the decision in its entirety that the Board considered all the evidence, including the extensive cross-examination by counsel and any answers from Dr. Booth under oath during that cross-examination, in arriving at their decision. Their ruling was not limited to their comment that Dr. Booth did not modify his opinion.

[25] I find no basis for concluding that the Board misconstrued the purpose of cross-examination. Most often cross-examination of expert witnesses is intended to demonstrate that assumptions made by the expert witness are not valid, insofar as they relate to essential elements of any opinion expressed. Again, there is no evidence that Dr. Booth misunderstood or misconstrued any essential facts in forming his opinion in this matter. Dr. Booth answered questions about every factual issue raised in this appeal and the Board found his answers credible and supportive of his opinion.

[26] In reading the decision of the Board as a whole, it is clear that they understood their role in applying the facts of this case to the test spelled out in Section 6 of the Substitute Decisions Act and did not simply conclude that because Dr. Booth’s opinion did not change that it must be accepted on those grounds alone. They clearly made the comment about his opinion being unchanged after extensive cross-examination in the context of having considered the totality of the evidence in this case.

[27] The appeal is therefore denied. I thank counsel for their assistance in dealing with this matter.

The Honourable Mr. Justice K. E. Pedlar Released: June 20, 2017