REASONS FOR DECISION

Nature and background of the motion

[1] The respondent, Dr. Karen Shin (“Dr. Shin”), brings a motion to dismiss the appeal of the appellant, Maria Christoforou (“Maria”) from the decision of the Consent and Capacity Board (“CCB”) of September 20, 2016 (the “CCB Decision”),[^1] on the basis of mootness and delay. In its decision, the CCB confirmed Dr. Shin’s finding on September 13, 2016 that Maria was incapable of consenting to or refusing treatment with respect to all forms of antipsychotic medication.

[2] Dr. Shin scheduled this motion to be heard at the same time as Maria’s appeal of the CCB Decision. However, at the initial attendance on January 18, 2018, Dr. Shin advised the court that she intended to withdraw the motion to dismiss although it was filed with the court. The parties advised the court at the outset that they were prepared to argue the appeal without addressing the mootness or delay issues raised in Dr. Shin’s motion.

[3] However, the court raised concerns as to its inherent jurisdiction to consider an appeal which might be moot. Given that Maria had not prepared responding materials for Dr. Shin’s motion to dismiss (in light of being advised on December 20, 2017 that Dr. Shin would withdraw her motion), the court asked the parties to reattend to address the mootness and delay arguments. It was on this basis that the present motion was considered.

Positions of the parties

[4] There are three issues before the court on this motion: (i) whether the appeal of the CCB Decision is moot, (ii) if moot, whether the court should exercise its discretion to hear the appeal, and (iii) whether the appeal should be dismissed for delay.

[5] Dr. Shin submits that the appeal is moot since Maria was discharged from her care, and, as such, (i) there is currently no “live controversy” between them and (ii) a decision on the appeal would have “no practical effect” on Maria’s rights, based on the governing principles to determine mootness as set out in Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] S.C.J. No. 14 (“Borowski”).

[6] Maria submits that her appeal is not moot, as she is currently subject to a finding by Dr. Denise Sum (“Dr. Sum”) that she is incapable of consenting to or refusing treatment with respect to all forms of antipsychotic medication. Maria submits that (i) if the appeal of the CCB Decision is granted and Maria is found to have been capable when she refused treatment with antipsychotic medication in September 2016, and (ii) if the current finding of incapacity by Dr. Sum is maintained on review by the CCB or on appeal,[^2] then (iii) the decision by Maria to refuse treatment with antipsychotic medication in September 2016 would be a “wish applicable to the circumstances that the incapable person expressed while capable”[^3] under s. 21 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (the “HCCA”).

[7] Maria submits that there is a live issue affecting her rights since (i) her brother, Nick Christoforou (“Nick”) is her substitute decision-maker and if Dr. Sum’s finding of incapacity is maintained, Nick is prepared to require Maria to undergo treatment with antipsychotic medication; and (ii) Dr. Sum is ready to require Maria to take the medication given her current conclusion of Maria’s incapacity. Maria submits that the appeal of the CCB Decision must be heard, since if she is found to have made a prior capable wish in September 2016, neither Nick nor Dr. Sum could compel Maria to take the medication, even if Maria were found to be incapable. Under s. 21(1) 1 of the HCCA, Nick and Dr. Sum would be required to follow Maria’s “prior capable wish”, subject to either of them bringing an application to the CCB under s. 36 of the HCCA to depart from those wishes.

[8] Dr. Shin further submits that if the appeal is moot, the court should not exercise its discretion under Borowski to hear the appeal. Dr. Shin submits that Maria will not be prejudiced by a finding of mootness since she can appeal the current finding of incapacity of Dr. Sum.

[9] Maria submits that even if her appeal is moot, the court should exercise its discretion to hear the appeal. Maria submits that she is not protected by a review or appeal of Dr. Sum’s current finding. Maria submits that if Dr. Sum’s current finding of incapacity is upheld, Maria will be at imminent risk of treatment with antipsychotic medication, unless she is found (as a result of the appeal of the CCB Decision) to have a prior capable wish to refuse treatment in September 2016.

[10] Maria submits that if the appeal is successful, her prior capable wish would be the only means to protect her from treatment to which she did not consent when capable, if she is found to be currently incapable.

[11] Consequently, Maria submits that hearing the appeal raises “special circumstances” to “justify the expenditures of scarce judicial resources” with no risk that the court would act outside its “adjudicative” function, as those factors are considered in Borowski.

[12] Dr. Shin submits that the appeal should be dismissed for delay since Maria “has done nothing to move her appeal forward” except for filing a notice of appeal on September 29, 2016.

[13] Maria submits that any delay was not inordinate, inexcusable, nor gives rise to any risk that a fair hearing could not proceed. Maria submits that the “severe remedy” of a dismissal is not appropriate when she acted with reasonable diligence and there is no evidence that Dr. Shin cannot properly respond to the appeal based on the full record before the court.

Facts

[14] There is a detailed record before the court on the appeal. However, I limit my review of the facts to those relevant to the issues before the court on this motion.

a) The CCB Decision

[15] On August 31, 2016, Maria was involuntary brought to Scarborough Hospital, now Scarborough and Rouge Hospital (the “Hospital”) by police on the basis of a Form 2 (Order for Examination) filed by her brother, Nick.

[16] On September 13, 2016, Dr. Shin found Maria incapable of consenting to or refusing treatment with all forms of antipsychotic medication. Maria requested a review by the CCB of (i) Dr. Shin’s finding of incapacity and (ii) Maria’s involuntary status at the Hospital.

[17] On September 20, 2016[^4] the CCB unanimously upheld both (i) the finding that Maria was incapable of making treatment decisions and (ii) her involuntary status as a patient in the Hospital. The CCB released reasons for the decision on September 25, 2016.

[18] By notice of appeal dated September 29, 2016, Maria appealed the CCB Decision only on the finding of incapacity.

b) Discharge and subsequent treatment by Dr. Glatzer

[19] Following the CCB Decision, Maria applied to the CCB to review the renewals of her involuntary status at the Hospital. The CCB rescinded the Certificate of Renewal of her involuntary status as a result of issues surrounding procedural fairness. Consequently, Maria was discharged from the Hospital on November 21, 2016.

[20] From her discharge until August 2017 (a period of nine months), Maria followed up with another psychiatrist, Dr. Gratzer, on an out-patient basis, visiting approximately once a month. Due to the pending appeal of the CCB Decision, Maria was not treated with any medication.

[21] In or around May 2017, Maria brought another application before the CCB. She sought a review of the finding that she was incapable to consent to or refuse treatment with antipsychotic medication. On May 9, 2017 the CCB refused to hear or process the application as there had been no new finding of incapacity and there still remained the unresolved appeal before this court. The CCB decision to refuse to process the application referenced both Dr. Shin and Dr. Gratzer as attending physicians.

c) Involuntary hospitalization and new finding of incapacity by Dr. Sum

[22] In the subsequent months, Nick sought another Form 2 (Order for Examination) due to concerns surrounding Maria’s aggressive behaviour and lack of self-care. The Form 2 (Order for Examination) was granted. On November 6, 2017 the police again apprehended and brought Maria to the Hospital.

[23] The attending physician, Dr. Sum, found that Maria was incapable to consent to or refuse treatment with antipsychotic medication. After being admitted to the Hospital on November 6, 2017 on the Form 2, Maria was maintained as an involuntary patient on a Form 3 (Certificate of Involuntary Admission) and then a Form 4 (Certificate of Renewal).

[24] Additional hearings took place before the CCB, with respect to Maria’s most recent involuntary status (and renewals), on November 21, 2017, December 7, 2017, and January 4, 2018. Maria contested her Form 4 (Certificate of Renewal). The Form 4 was rescinded by the CCB on the basis of a breach of the Hospital’s protocol.

[25] As a result of the rescinding of the Form 4, Maria was made a voluntary patient as of January 4, 2018. Maria then discharged herself from the Hospital against medical advice.

d) Current intentions of Dr. Sum and Nick with respect to Maria’s treatment

[26] The current intentions of Dr. Sum and Nick are to treat Maria with antipsychotic medication if she is found to be incapable to consent to or refuse treatment.

[27] In her “Progress Note”, dated December 14, 2017, Dr. Sum states:

(i) Until the court addresses the appeal, Maria “cannot be treated, although she has responded quite well to treatment in the past, which is well documented”;

(ii) “If she is able to be treated in the future, her brother Nick Christoforou would act as her SDM.[^5] He has acted as her SDM during the most recent admission in 2016. …Information about treatment was already given during multiple previous discussions with Nick, however the same information was once again reviewed. Nick was provided information about antipsychotic medication, both oral and long-acting injectable”;

(iii) “Given the difficulties with insight and adherence, [Dr. Sum] and Nick agreed that a [sic] injectable antipsychotic would provide Ms. Christoforou the best chance of recovery. Potential benefits and potential side effects were discussed … Consequences of no treatment and alternatives were also reviewed”; and

(iv) “At this point, Nick not only consents to his sister receiving treatment, he is strongly advocating that she receives longstanding regular antipsychotic treatment and has been trying to do so for years”. [Emphasis added.]

[28] In her discharge summary dated January 4, 2018, Dr. Sum reiterated her intention to treat Maria with antipsychotic medication if the appeal of the CCB Decision was unsuccessful. Dr. Sum stated:

(i) Because Maria was appealing the CCB Decision, “she could not be started on any standing medication”;

(ii) “She has been in the community psychotic for the past year, and her brother has hesitated to complete a Form 2 knowing that, once in hospital, she cannot be treated given this appeal of incapacity”;

(iii) “The Form 4 was rescinded based on a technicality… Therefore, she was made a voluntary patient. She was encouraged to stay in hospital. While we have not been treating her, the appeal she made to the Superior Court is scheduled to be heard on January 18, 2018. Therefore, the team’s intention was to keep her in the hospital with the hopes that she would be eventually able to be treated if the appeal is dismissed. However, because the Form 4 was rescinded, Ms. Christoforou chose to sign herself out against medical advice. However, she agreed to follow up with outpatient care”;

(iv) “Therefore, I have given her an appointment to see me on January 23, 2018 at 3:30p.m. At that time, if there has been a decision with regard to dismissing her appeal and if she can be treated, then, at that time, I will assess her in my office, and if there is this ongoing paranoia then she may be certified under a Form 1 under box B criteria. Her brother is also aware that he can bring her back to the hospital and/or complete a Form 2 if there is any imminent safety concern that he is aware of”; and

(v) “[I]t was not thought to be feasible to keep her in hospital indefinitely with this outstanding appeal as the hospital is not able to treat her”. [Emphasis added.]

[29] In her affidavit filed in support of the motion to dismiss the appeal, Dr. Sum stated:

(i) “In my opinion, she is currently incapable to consent to or refuse treatment. There is considerable evidence that Maria is suffering from schizophrenia of a nature or quality that will likely result in serious bodily harm to another person and she is likely to suffer substantial mental deterioration. In the past, when treated, Maria’s condition transformed quite dramatically, and her condition improved”; and

(ii) “If Maria does not agree with my current finding that she is incapable to consent to or refuse treatment, she can appeal that finding to the CCB”. [Emphasis added.]

e) Evidence as to Maria’s prior capable wish

[30] With respect to the decision of Dr. Shin in September 2016, there is evidence that Maria strongly opposed being treated with antipsychotic medication at that time based on a long-standing view.[^6]

[31] For approximately six to seven months in 2012 and 2013, Maria was treated with some antipsychotic medication based on her own consent, while living in the community. In July 2013, she again took some antipsychotic medication, and was found by the attending psychiatrist to have capacity to consent to that treatment. There was evidence that this decision was based on what Maria’s counsel described as a “contract” between Maria and her attending physician at the time to try the proposed treatment. Nonetheless, Maria at that time was resistant and had strong views about that treatment.

[32] There is evidence that Maria suffered from adverse side effects caused by her antipsychotic medications. Maria reported those side effects as including “drooling”, “cognitive impairment”, and “slow motor skills”. Maria testified that “it was disgusting what happened to me” as a result of the medications. Nick understood that Maria’s “big goal” was not to be on antipsychotic medication.

[33] Also, after being discharged from the Hospital in 2014, Maria lived independently in the community for at least two years without psychiatric treatment, hospitalizations, or apprehensions under the Mental Health Act, R.S.O. 1990, c. M. 7.

Analysis

[34] There are three issues on this motion: (i) mootness, (ii) discretion to hear the appeal despite mootness, and (iii) delay. I address each of these issues below.

Issue 1: Mootness

[35] I will first review the law and then apply it to the facts of the present case.

[36] In addressing the applicable law, I consider (i) the general principles of mootness and the court’s discretion to hear moot matters,[^7] (ii) the autonomy of the individual and the importance of a prior capable wish on treatment by a substitute decision-maker, and (iii) the law of mootness as applied to CCB decisions.

a) The applicable law – general principles on mootness and discretion

[37] The general principles with respect to mootness are set out in Borowski. Sopinka J. held that the courts may decline to decide “merely a hypothetical or abstract question”, which “will have no practical effect” on the rights of the parties, in the absence of “a present live controversy”. Sopinka J. held (Borowski, at para. 15):

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter. [Emphasis added.]

[38] Sopinka J. applied a two-step approach. First, the court must assess whether the hearing is moot based on the principles discussed above. Second, if the hearing is moot, the court must consider whether to exercise its discretion to hear the matter. Sopinka J. held (Borowski, at para. 16):

The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.

[39] The above approach was summarized by Doherty J.A. in Tamil Co-Operative Homes Inc. v. Arulappah, 2000 5726 (ON CA), [2000] O.J. No. 3372 (C.A.), at para. 13:

Courts exist to resolve real disputes between parties and not to provide opinions in response to hypothetical or academic problems. Courts will, however, on occasion address the merits of an appeal even where the dispute giving rise to the appeal has dissolved. Where a question of mootness is raised, the court must first decide whether the appeal is moot. If the appeal is moot, the court must then decide whether it should nonetheless hear the merits of the appeal. The discretion to hear a moot appeal is intended to address those exceptional cases where the circumstances are such that the general rule against hearing appeals where there is no live controversy between the parties should not be followed. [Emphasis added.]

[40] In Jane Doe v. Canada (Attorney General), 2005 18839 (ON CA), [2005] O.J. No. 2216 (C.A.) (“Jane Doe”), the Court of Appeal summarized the relevant factors to exercise discretion to hear a matter which is moot. LaForme J.A. held (endnotes omitted) (Jane Doe, at paras. 26-28):

Because the general rule is that a court should not hear a case where there is no live controversy between the parties, the discretion to hear such a case is limited to exceptional situations. The appellant had the onus of convincing the application judge that it should make an exception to the application of the general rule in this case.

Borowski provides direction and sets out three factors to be considered when deciding whether to exercise judicial discretion and hear a case that has become moot. The three factors are:

(1) Whether an adversarial relationship still exists between the parties.

(2) Whether special circumstances exist in the case so as to justify the expenditure of scarce judicial resources.

(3) Whether there is a need for the Court to be sensitive to its role as the adjudicative branch in our political framework.

Any one, or a combination, of these factors, may supersede the absence of another to support a court's decision to hear or refuse to hear a case that is moot. And, the discretion to hear moot cases is not constrained by a rigid application of pre-established criteria. Each case should be decided on its own circumstances and with careful regard to the usual practice to decline to decide the merits of moot cases. [Emphasis added.]

[41] Other factors which the courts have considered to exercise its discretion to hear a moot matter include:

(i) lack of clarity in the law on the point in question and the possibility of the court giving guidance (Tremblay v. Daigle, 1989 33 (SCC), [1989] 2 S.C.R. 530, at para. 77); and

(ii) whether the question at issue is “evasive of review” such that the subject at hand will ordinarily become moot by the time it can be adjudicated in court (see New Brunswick (Minister of Health and Community Services v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, at para. 47).

b) The applicable law – the autonomy of the individual and the importance of a prior capable wish on treatment by a substitute decision-maker

[42] In the seminal case on capacity to treatment, Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722 (“Starson”), Major J. held that a finding of capacity by the CCB may have an important effect on future treatment decisions, since a “prior capable wish” would govern treatment decisions by a substitute decision-maker if the person later becomes incapacitated.[^8] Major J. stated (Starson, at para. 118):

A patient's capacity may fluctuate over time. The Board's decision is specific to the patient's capacity at the time of the hearing. A finding that Professor Starson is capable may have an important effect on future treatment decisions. If he subsequently becomes incapacitated, the attending physician needs consent to treatment from his substitute decision-maker: see s. 10(1)(b) of the Act. If the substitute decision-maker knows of a prior capable wish that is applicable to the circumstances, consent must be given or refused in accordance with that wish: s. 21. Consequently, the Board's previous determination that Professor Starson was capable may be relevant to whether he had expressed wishes that are applicable to future circumstances. If so, he has the right to have that capacity recognized in law, so that sufficient recognition may be accorded to any wishes expressed at that time. [Emphasis added.]

[43] The protection of personal autonomy through a prior capable wish was considered by Robins J.A. in Fleming v. Reid (1991), 1991 2728 (ON CA), 4 O.R. (3d) 74 (C.A.) (“Fleming”). The court reversed the lower court decision and enforced a prior capable wish when the appellant was later found to be incapacitated. Robins J.A. set out the issue as follows (Fleming, at p. 77):

The central issue in these two appeals is whether the state may administer neuroleptic drugs in non-emergency situations to involuntary incompetent psychiatric patients who have, while mentally competent, expressed the wish not to be treated with such drugs.

[44] Robins J.A. affirmed the importance of a prior capable wish to refuse treatment when a patient is later incapable of consent. I cite the following passage at length as it is a powerful assertion of the process which is at issue before a court when faced with a prior capable wish. Robins J.A. held (Fleming, at pp. 85-87):

The right to determine what shall, or shall not, be done with one's own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law. This right underlies the doctrine of informed consent. With very limited exceptions, every person's body is considered inviolate, and, accordingly, every competent adult has the right to be free from unwanted medical treatment. The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self-determination. The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care. It is the patient, not the doctor, who ultimately must decide if treatment -- any treatment -- is to be administered.

A patient, in anticipation of circumstances wherein he or she may be unconscious or otherwise incapacitated and thus unable to contemporaneously express his or her wishes about a particular form of medical treatment, may specify in advance his or her refusal to consent to the proposed treatment. A doctor is not free to disregard such advance instructions, even in an emergency. The patient's right to forgo treatment, in the absence of some overriding societal interest, is paramount to the doctor's obligation to provide medical care. This right must be honoured, even though the treatment may be beneficial or necessary to preserve the patient's life or health, and regardless of how ill-advised the patient's decision may appear to others.

These traditional common law principles extend to mentally competent patients in psychiatric facilities. They, like competent adults generally, are entitled to control the course of their medical treatment. Their right of self-determination is not forfeited when they enter a psychiatric facility. They may, if they wish, reject their doctor's psychiatric advice and refuse to take psychotropic drugs, just as patients suffering other forms of illness may reject their doctor's advice and refuse, for instance, to take insulin or undergo chemotherapy. The fact that these patients, whether voluntarily or involuntarily, are hospitalized in a mental institution in order to obtain care and treatment for a mental disorder does not necessarily render them incompetent to make psychiatric treatment decisions. They may be incapacitated for particular reasons but nonetheless be competent to decide upon their medical care. The Act presumes mental competency, and implicitly recognizes that a mentally ill person may retain the capacity to function competently in all or many areas of everyday life.

Before psychiatric treatment can be administered without the consent of the patient, the Act requires a finding of incompetency, which is made on the basis of the patient's ability to understand (1) the nature of the illness for which the psychiatric treatment is proposed; (2) the nature of the treatment proposed; and (3) the patient's ability to appreciate the consequences of giving or withholding consent. More particularly, involuntary patients, including those who, like the appellants, are being held pursuant to the Criminal Code, are taken to have the capacity to decide for themselves whether or not to receive antipsychotic drugs. Until they are found incompetent, they hold the same rights as any other competent patient in the facility. Indeed, they hold the same rights as competent persons elsewhere in the province whose consent must be obtained before they can be the subject of medical treatment. Mentally ill persons are not to be stigmatized because of the nature of their illness or disability; nor should they be treated as persons of lesser status or dignity. Their right to personal autonomy and self-determination is no less significant, and is entitled to no less protection, than that of competent persons suffering from physical ailments.

[45] Consequently, a decision as to whether a person had capacity to consent or refuse treatment, and, as such, expressed a prior capable wish, can have a critical impact on treatment if that person is subsequently incapacitated.

c) The applicable law – application of mootness to appeals from CCB decisions

[46] I find that there is some uncertainty in the law as to the application of the above principles to appeals from CCB decisions when a patient is discharged prior to the hearing of the appeal.

[47] Some courts, relying on the comments in Starson and Fleming, have applied the above principles to find that an appeal of a CCB decision is not moot once a finding of incapacity is made.

[48] Other courts have held that a discharge, on its own, renders an appeal from a CCB decision of incapacity moot, concluding that the result of the appeal would not have a practical effect.

[49] Other courts have considered the circumstances following the discharge in their discussion of mootness, although in some of those cases, the parties agreed that the appeal was moot so the issue was not directly before the court.

[50] I now review the cases relied upon by the parties.

i) Cases which hold that an appeal is not moot once a finding of incapacity is made

[51] Maria relies on the decisions in Neto v. Klukach, [2004] O.J. No. 394 (“Neto”) and in Doherty v. Horowitz, 2016 ONSC 4457 (“Doherty”). Those cases hold that an appeal from a CCB decision is not moot once a finding of incapacity is made.

[52] In Neto, the patient appealed a decision of the CCB determining that she was incapable of consenting to treatment in relation to the administration of several medications to treat bipolar affective disorder. At the date of hearing for the appeal, (i) Ms. Neto had been discharged from the Centre for Addiction and Mental Health; and (ii) Ms. Neto was under the care of a different physician at the same hospital on an outpatient basis with a different treatment regime (Neto, at paras. 1, 3-5, and 18).

[53] Day J. took a broad approach to preserving a patient’s ability to rely on a prior capable wish in the event of a subsequent finding of incapacity. Day J. held (Neto, at para. 19):

There is still a live issue that will potentially affect Ms. Neto. If she is ever judged to be incapable in the future, having been found capable at the time of her hearing would result in mandating that her capable expression of her wishes regarding the treatment prescribed by Dr. Klukach would have to be respected by her substitute decision maker. [Emphasis added.]

[54] While Day J. did not refer to paragraph 118 in Starson,[^9] his decision is consistent with the passage cited at paragraph 42 above and provides a broad scope to hearing appeals based on the concerns raised in Starson. Under Neto, even if at the hearing of the appeal there is no evidence of similar treatment proposed or any concern about the immediate effect of an incapacity finding by the CCB, the risk of possibly negating a prior capable wish which would be binding on a substitute decision-maker at a subsequent finding of incapacity is sufficient to hear the appeal.

[55] In Neto, the appellant was being treated at the same hospital, but on an outpatient basis and under a different treatment regime. Consequently, the decision that the appeal was not moot was not based on the proposed treatment at the date of the appeal, but rather more broadly on preserving a patient’s right to rely on a prior capable wish in the event of a subsequent finding of incapacity.

[56] A similar approach was taken by Lederer J. in Doherty. In that case, the appellant, Mr. Doherty, sought to quash a decision of the CCB upholding a finding of incapacity with respect to treatment. Mr. Doherty had been admitted to the Centre for Addiction and Mental Health as an involuntary patient after being apprehended by the police. Upon examination, he was found to be incapable of consenting to treatment with antipsychotic medication and other treatments.That decision was upheld by the CCB (Doherty, at paras. 1-3).

[57] Mr. Doherty appealed that CCB decision to the superior court, and as a result, any proposed treatment could not be initiated until the conclusion of the appeal. Mr. Doherty was transferred to the care of another doctor, resulting in his discharge from the Centre for Addiction and Mental Health. His new attending physician recommended a treatment plan that focused on “follow-up, monitoring and psycho-education, rather than forcing Stephen Doherty to take medication”. His outpatient care was to be assumed by a different physician, a psychiatrist with Toronto East General Hospital. The discharge plan did not include the classes of medication that had been proposed (Doherty, at paras. 4-5).

[58] Lederer J. set out the three values raised in Starson for the court to consider in addressing appeals from CCB decisions on the capacity to consent to treatment. He held (footnotes omitted) (Doherty, at para. 13):

The leading case concerned with these questions is said to be Starson v. Swayze. In that case, the Supreme Court of Canada defined the problem:

The HCCA confronts the difficult problem of when a mentally ill person may refuse treatment. The problem is difficult because it sets in opposition fundamental values which we hold dear. The first is the value of autonomy -- the ability of each person to control his or her body and consequently, to decide what medical treatment he or she will receive. The second value is effective medical treatment -- that people who are ill should receive treatment and that illness itself should not deprive an individual of the ability to live a full and complete life. A third value -- societal protection -- comes into play in some cases of me[n]tal illness [sic]. Where the mentally ill person poses a threat of injury to other people or to him -- or herself, it may be justified to impose hospitalization on the basis that this is necessary in the interests of public safety...[Emphasis added.]

[59] Lederer J. relied upon Neto and the passages cited above from Starson and Fleming. He held that an appeal from a CCB decision is not moot since not hearing the appeal could negate a prior capable wish which could be binding on a substitute decision-maker upon a subsequent finding of incapacity. He held (footnotes omitted) (Doherty, at paras. 19-20):

This leaves the first of the three values referred to in Starson v. Swayze. This is the value of personal autonomy […]

To apply the doctrine of mootness and to fail to deal with the merits of this appeal would ignore this significant value. It would follow that the answer to the first of the two questions raised in Borowski (see para. [7], above) would be in the negative. As it is, the issues have not become academic. There is a concrete dispute which remains extant. It arises from the observation in Neto v. Klukach that the potential impact on a substitute decision- maker, at some future time, is reason enough to find that an appeal is not moot. This is a confirmation of a statement found in Starson v. Swayze which could be where the idea originates …[^10] [Emphasis added.]

[60] Consequently, the approach in Neto and Doherty renders a discharge irrelevant to mootness. Under these decisions, the “live” issue of whether there was capacity to consent to treatment has a practical effect on the appellant, given the potential impact of a prior capable wish on a substitute decision-maker if there is a subsequent finding of incapacity. This concern exists even if there is no subsequent finding of incapacity at the date of the appeal. Under this approach, any appeal from a finding of incapacity (whether upheld by the CCB or by appeal to the superior court) would not be moot.

ii) Cases which hold that an appeal is moot once a patient is discharged

[61] In K.M. v. Shammi, 2012 ONSC 1102 (“K.M.”), relied upon by Dr. Shin, the court held that an appeal from a CCB decision was moot. Grace J. held (K.M., at para. 21):

I was satisfied that K.M.’s discharge constituted an event which terminated the relationship between K.M. and Dr. Shammi. That chapter of K.M.’s treatment seemed to me to have ceased to have any practical significance. [Emphasis added.]

[62] In K.M., the appellant had been the subject of the CCB decision in August 2010. When she appeared for the November 2011 hearing of the appeal, the appellant was an involuntary patient at a different hospital (K.M., at para. 10). The court noted that her current treating doctor “sought leave to intervene in the appeal and an order which would result in K.M. receiving antipsychotic medication” (K.M., at para. 19).

[63] Consequently, there appears to have been an actual risk (as opposed to the potential risk in Neto and Doherty) that a prior capable wish could be important to the subsequent treatment sought by the appellant’s current treating doctor.

[64] Grace J. held that the appeal was moot. He stated (footnotes omitted) (K.M., at paras. 28-29):

I also considered the second stage to the inquiry. Generally the court will refuse to hear cases which have become moot. However, the Court retains jurisdiction to hear such matters and may do so in special circumstances. Those include cases involving issues which are important to the parties in some collateral proceeding or which advance an issue of significance to the public.

Those factors were not present here. Dr. Shammi no longer treated K.M. K.M. was no longer a patient of Shores. The issues to be resolved between the parties to the appeal were entirely academic.

[65] The court in K.M. does not refer to Starson or Fleming (nor to Neto). The court relied on the general principles in Borowski to find that the discharge renders the appeal to have no practical significance. Consequently, under K.M., every discharge could render an appeal moot.

iii) Cases which have considered the circumstances following the discharge

[66] The parties provided the court with three other authorities in which the court addressed mootness in the context of an appeal from either a CCB decision or a superior court decision on the appeal from a CCB decision. In those cases, the court considered the circumstances following the discharge.

[67] Maria submitted that if the court chose not to follow the approach in Neto and Doherty, then this third group of cases would support her position that the court in the present case should consider (i) Dr. Sum’s current finding that Maria is incapable of consenting to or refusing treatment with antipsychotic medication and (ii) the intention of Nick and Dr. Sum to treat Maria with antipsychotic medication, as factors to find that her appeal was not moot. I address these cases below.

[68] In Conway v. Darby, 2013 ONCA 538 (“Conway”), the parties agreed that the appeal was moot (Conway, at para. 8). Consequently, the issue of the appropriate approach to follow was not argued before the court.

[69] In a brief endorsement, the court noted that (i) the appellant had been transferred out of the hospital in which the finding of incapacity was made; (ii) the appellant was being treated by a new treatment team; (iii) no new treatment with antipsychotic medication was being proposed; and (iv) it was unlikely that such treatment would be imposed. The court held (Conway, at para. 7):

Mr. Conway has been transferred out of CAMH and is currently a patient at St. Joseph's Health Care in Hamilton under the care of a different treatment team. The medical professionals now assisting Mr. Conway have introduced a new treatment program for him that does not involve pharmacology. Mr. Conway is cooperating with this new program and the evidence is overwhelming that the program is having a positive effect on him. No one is proposing any treatment that involves Mr. Conway's being medicated. And, given the improvement in Mr. Conway's condition, it is unlikely that any antipsychotic medication will be recommended in the near future. It follows that Mr. Conway's capacity to consent to medication is no longer in issue. [Emphasis added.]

[70] In Conway, the court stated that the appellant would not suffer prejudice since he could appeal any subsequent finding of incapacity (Conway, at para. 10). However, the mootness issue was not before the court, and there was no discussion of Starson or Fleming, nor of the analysis in Neto or Doherty as to the effect on the appellant upon a subsequent finding of incapacity if prevented from establishing a prior capable wish at the date he refused treatment (if found to be capable on an appeal).

[71] While the court in Conway relied on the decision in K.M. for the proposition that a finding of mootness was not a “final disposition” of an appeal under s. 32(5) of the HCCA (Conway, at para. 10), it did not limit its analysis on mootness only to the fact of the discharge. To the contrary, the court’s analysis of the circumstances as of the date of the appeal, and in particular, the importance of the same treatment not being required, is shown by its comment that “given the change in Mr. Conway’s circumstances relating to his treatment plan, [the concerns raised] have become academic” (Conway, at para 12).

[72] In Dickey v. Alexander, 2016 ONCA 961 (“Dickey”), it was the treating physician who appealed to the Court of Appeal. In that case, the superior court judge reversed the CCB decision and held that the respondent patient was capable of consenting to or refusing treatment with antipsychotic medication (Dickey, at paras. 2-3). The respondent patient had been discharged after the commencement of the appeal (Dickey, at para. 4).

[73] As in Conway, the parties before the court in Dickey agreed that the appeal was moot (Dickey, at para. 7). The only issue before the court was whether the court should exercise its discretion to hear the matter.

[74] In a brief endorsement, the court held (Dickey, at paras. 7-8):

It is common ground that there is no longer a live controversy that requires resolution. The Board's decision determined the capacity of the respondent for the purposes of consent to treatment as of the date of its hearing -- that is, as of June 3, 2013, a date long-past. The Board's decision and the appeal from that decision were premised on an NCR order that no longer exists.

As noted above, the respondent is no longer at Waypoint. In these circumstances, a decision from this court would have no practical effect on the rights of the parties. The appeal is moot.

[75] The court did not accept the physician’s submission that the appeal should be heard because the superior court decision (if left as the final decision) would establish a prior capable wish which might preclude the administration of relevant medication if the patient later became incapable. That submission was made not to support a mootness argument, but instead for the exercise of the court’s discretion for an appeal agreed to be moot. The court held (Dickey, at paras. 10-12):

The appellant submits that we should hear the appeal because if the Superior Court judge's decision is allowed to stand, it may be used in support of an argument that the respondent expressed a "prior capable wish" that binds future substitute decision makers under s. 21 of the Health Care Consent Act 1996, S.O. 1996, c. 2, Schedule A, as amended, and so may preclude the administration of the relevant drugs without the respondent's consent.

It is enough for present purposes to reiterate that the decision under appeal concerns the respondent's capacity at the time the Board's decision was made. The Superior Court judge's decision may be evidence relevant to determining the respondent's capacity in a future case, but it is not clear that it would be determinative. In any event, s. 36 of the Act establishes a procedure pursuant to which a substitute decision maker and a healthcare practitioner can obtain permission for consent to treatment despite a prior capable wish.

We are not persuaded that this is an appropriate case to exercise our discretion to hear the appeal. Not only would a decision of this court have no practical effect on the rights of the parties, it would have no broader application beyond the parties. Moreover, as noted above, the concern relating to a prior capable wish is specifically addressed by s. 36 of the Act. In any event, our decision not to hear the appeal is not to be taken as a comment on the merits of the order under appeal. [Emphasis added.]

[76] Dr. Shin submits that the effect of Dickey is that (i) a discharge alone is sufficient to render an appeal from a CCB decision moot and; (ii) as such, the s. 36 process under the HCCA should be used instead of hearing an appeal to address a prior capable wish. I do not agree.

[77] First, the parties in Dickey agreed that the appeal was moot, so the issue of the effect of a discharge alone was not argued before the court. As in Conway, there was no discussion in Dickey of Starson or Fleming, nor of the analysis in Neto or Doherty. That issue is not raised in the decision.

[78] The only issue before the court in Dickey was the exercise of the court’s discretion under the second aspect of the Borowski test.

[79] Second, in Dickey, the patient was found by the superior court judge to have the capacity to consent to or refuse treatment. Consequently, the patient would not be prejudiced if the appeal was heard, as his prior capable wish could stand. There was no issue of a patient losing protection against personal autonomy by not being able to rely on a prior capable wish. Unlike the physician in Dickey, who could submit a s. 36 application (albeit in the face of a prior capable wish), a patient would have no such recourse if a finding of incapacity was not overturned.

[80] Consequently, Dickey can be read as consistent with not exercising discretion unless there are exceptional circumstances, when a proceeding under s. 36 of the HCCA could have addressed some of the physician’s concerns if incapacity was assessed at a later date (albeit without any discussion of the mootness issue based on the principles in Starson and Fleming or on the decisions in Neto or Doherty).

[81] The last case before the court is the recent decision of Morgan J. in Giannoylis v. McIntyre, 2018 ONSC 547 (“Giannoylis”). In that case, the appellant challenged a finding of the CCB that she was incapable of consenting to or refusing treatment with antipsychotic medication and mood stabilizing medication (Giannoylis, at para. 1).

[82] At the date of the appeal, the appellant had been discharged from the Centre for Addiction and Mental Health. Further, the appellant was no longer under treatment (either as an in-patient or an out-patient) and the physician who found her incapable was no longer responsible for her medical care. Morgan J. stated that as a result, “although the Board confirmed the Respondent's decision as to her incapacity, this has had no consequence for Appellant since that time” (Giannoylis, at paras. 4-5).

[83] Morgan J. noted that the appellant relied on the “prior capable wish” argument, based on the passage from Starson and the decisions in Neto and Doherty (Giannoylis, at paras. 8-9). Morgan J. considered the circumstances of the case before him and held that the appeal was moot since the appellant “was (and here is) no longer subject to the course of treatment that was proposed at the time of the Board's decision, either on an out-patient basis or any other basis” (Giannoylis, at paras. 10-11).

[84] Morgan J. commented that the decision in Dickey “favours application of the mootness doctrine in circumstances such as those before me” and that (Giannoylis, at para. 13):

the preferred procedure in the event of any uncertainty about the Appellant's capacity on a prior occasion should go through the statutory procedures for bringing the matter back before the Board. As in Carty, the mere possibility of a future event which makes the Appellant's prior capacity relevant is not sufficient to bring the matter alive for the purposes of an appeal before this Court. There are procedures in place so that a determination can be made if and when such an event were to transpire. [Emphasis added.]

[85] Given the analysis of the changed circumstances of the appellant patient in Giannoylis, I do not take the decision of Morgan J. (nor that of the court in Dickey) to find that an appeal would be moot on evidence that a patient would lose a right to rely on a prior capable wish (if an appeal was heard and granted) in the face of the same intended treatment based on an existing subsequent finding of incapacity. Unlike in Dickey, the patient in such circumstances could not apply under the s. 36 HCCA procedure, and would be faced with an imposed treatment in a situation which is not a “mere possibility of a future event which makes the Appellant’s prior capacity relevant”, but instead one in which the same treatment will be imposed as a result of an existing subsequent finding of incapacity.

iv) Summary of the applicable law for the application of mootness to appeals from CCB decisions

[86] As I indicated at the outset of this analysis, there is some uncertainty arising from the above case law. I will attempt to summarize the competing theories.

[87] The decisions in Neto and Doherty constitute a first group of cases, relied upon by Maria. These cases provide broad support to hear appeals from findings of incapacity by the CCB (or arising from appeals to the superior court), based on the discussion in Starson and Fleming as to the importance of a prior capable wish on a substitute decision-maker if there is a subsequent finding of incapacity. Those cases result in an approach that where incapacity is found, an appeal is not moot, given that not hearing the appeal would deprive the appellant of the opportunity to rely on a prior capable wish to respond to a subsequent finding of incapacity.

[88] Conversely, a second category of cases is reflected by the decision in K.M., which appears to provide that whenever there is a discharge, an appeal would be moot. Such a narrow approach appears to be inconsistent with Neto and Doherty (as well as with the principles in Starson and Fleming).

[89] The third group of decisions I discuss above also raise uncertainty, as they either do not consider the cases in the first or second groups, arise in situations where the issue of mootness was not challenged, or raise factual situations different from the present appeal. However, at a minimum, these cases address the evidence as to the changed circumstances at the date of the appeal in their consideration of mootness (to the extent that the issues were before the court).

[90] By way of example, unlike in K.M., the court in Conway, while referring to K.M. for the proposition that quashing the appeal renders the CCB finding as the final disposition (Conway, at para. 10), did not rely on the mere discharge as sufficient, expressly referring to “the change in Mr. Conway’s circumstances relating to his treatment plan” as the reason why the issues raised by Conway and amicus were “academic” (Conway, at para. 12).

d) Analysis – application to the facts of this case

[91] Given the above analysis, I do not find that there is a settled test to be derived from the case law.

[92] I would not follow the approach in K.M. since it appears to result in mootness each time a patient is discharged. In my view, such an approach would not address the significant risks to a patient of not being able to rely on a prior capable wish at a subsequent finding of incapacity, as expressed in Starson and Fleming.

[93] I prefer and adopt the Neto and Doherty analysis, as I find it consistent with the principles in Starson and Fleming.

[94] I do not find that the Court of Appeal decisions provided to the court on this motion directly address the facts of the present case, as the issues of mootness were not contested, and the comments of the courts in the endorsements as to discretion and other matters can either be seen as supportive of considering the particular facts of the case (as in Conway), or only addressing the exercise of discretion (as in Dickey).

[95] Nevertheless, I do not find it necessary for the purposes of my reasons to rely solely on the approach in Neto or Doherty. In my view, even if the third group of cases are seen to take a different approach by considering the evidence as to what transpired after discharge (which would not be required under the Neto or Doherty approach), the result would be the same. On the facts of the present case, I would still find that there is a live issue on the appeal which affects Maria’s interests.

[96] Dr. Sum and Nick will seek to impose treatment on Maria by antipsychotic medication if the appeal is dismissed for mootness and the CCB Decision upholding Dr. Shin’s finding of incapacity in September 2016 is maintained as the final disposition. While Dr. Shin submits that such a concern would be addressed through an appeal by Maria of Dr. Sum’s current finding of incapacity, I do not agree.

[97] If Maria is unsuccessful on a proposed appeal of the current finding by Dr. Sum that Maria is incapable to consent to or refuse treatment by antipsychotic medication, Maria’s prior capable wish (if the appeal of the CCB Decision is successful) would be her only protection against treatment with medication, which Nick acknowledges was her “big goal” to avoid. Otherwise, nothing would stop the treatment if Maria is unsuccessful on the review or appeal from Dr. Sum’s finding.

[98] The preservation of Maria’s ability to refuse treatment based on a prior capable wish is the basis behind the strong policy statements in Starson and Fleming cited above.

[99] If Maria was capable in September 2016, she would be entitled to rely on a prior capable wish.[^11] Consequently, either Nick or Dr. Sum would have to meet the requirements of s. 36 of the HCCA. In particular, they would need to satisfy the CCB under s. 36(3) that “the incapable person, if capable, would probably give consent because the likely result of the treatment is significantly better than would have been anticipated in comparable circumstances at the time the wish was expressed”. That onus could be very high, particularly as the prior capable wish would have been expressed in the context of Dr. Shin explaining the benefits and side effects of the treatment to Maria in September 2016 under similar circumstances.

[100] In the present case, Dr. Sum now proposes the same treatment with antipsychotic medication for Maria. Nick takes the same position now that he has taken throughout that such treatment should be imposed. If the appeal is found to be moot, then the CCB finding of incapacity will be the final disposition of the matter (as per Conway), and Maria will have no protection based on what could be a prior capable wish (if the appeal is heard and resolved in her favour).

[101] There is strong evidence (as I discuss at paragraphs 31 to 33 above) of Maria’s wish not to be treated with antipsychotic medication as of September 2016. The issue if the appeal is heard will be whether Maria had capacity to express that wish. Consequently, this is a live issue for Maria’s personal autonomy.

[102] For these reasons, whether based on the particular facts of this case, or relying on the approach in Neto and Doherty, I conclude that the appeal is not moot.

Issue 2: Discretion to hear the matter even if moot

[103] I have addressed at paragraphs 37 to 41 above the applicable law with respect to the discretion to hear an appeal, even if moot. Applying the test in Jane Doe, even if the appeal was moot (which I do not find), I would exercise my discretion to hear the appeal.

[104] In particular, the evidence I discuss above constitutes “special circumstances [that] exist in the case so as to justify the expenditures of scarce judicial resources”. Further, there is no risk that the court would act outside its “adjudicative branch”.

[105] To not hear the matter would directly affect the personal autonomy of Maria, contrary to the concerns in Starson and in Fleming. Without hearing the appeal, Maria would lose her last possible defence against imposed medication if the finding of current incapacity is upheld.

[106] Consequently, even if Dr. Shin’s finding of incapacity or the evidence of the current proposed treatment by Dr. Sum is not sufficient to find mootness, the facts of the case raise “special circumstances” (unlike those in the cases cited by the parties) which I rely upon to exercise my discretion to allow the appeal. Even if moot, a decision on the appeal will directly affect whether Nick can consent to treatment on Maria’s behalf, or whether Nick (or Dr. Sum) would be required to seek permission of the CCB under s. 36 of the HCCA in light of a prior capable wish (if Maria’s appeal of the CCB Decision is granted).

[107] The evidence from Dr. Sum’s discharge summary is that:

(i) at Maria’s next appointment after the appeal is disposed of, “if there is this ongoing paranoia then [Maria] may be certified under a Form 1 under box B criteria”;[^12]

(ii) Maria was discharged only because “it was not thought feasible to keep her in hospital indefinitely with this outstanding appeal as the hospital is not able to treat her”; and

(iii) Nick “not only consents to his sister receiving treatment, he is strongly advocating that she receives longstanding regular antipsychotic treatment and has been trying to do so for years”.

[108] Consequently, not hearing the appeal puts Maria’s personal autonomy directly at risk.

[109] For all of the above reasons, I would exercise my discretion, if required, to hear the appeal even if moot.

Issue 3: Dismissal for delay

[110] Dr. Shin provided no case law as to the applicable test to dismiss an appeal for delay. Dr. Shin relies on the evidence that after filing the notice of appeal, Maria took no steps to perfect it for over a year after the September 2016 CCB Decision.

[111] Maria relies on the test of the Court of Appeal in Langnecker v. Sauvé, 2011 ONCA 803 (“Langnecker”), in which the court held that civil claims cannot be dismissed for delay unless the “severe remedy” of dismissal is “the only order that can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair to a defendant”. Doherty J.A. held (Langnecker, at para. 3):

An order dismissing an action for delay is obviously a severe remedy. The plaintiff is denied an adjudication on the merits of his or her claim. Equally obviously, however, an order dismissing an action for delay is sometimes the only order that can adequately protect the integrity of the civil justice process and prevent an adjudication on the merits that is unfair to a defendant.

[112] Doherty J.A. reviewed the settled law that a dismissal for delay requires a finding of inordinate or inexcusable delay, giving rise to a substantial risk that a fair trial will not be possible. He held (Langnecker, at paras. 6-7):

The first type of case described by Lord Diplock refers to those cases in which the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process. In dismissing cases which fall within this category, the court effectively declares that a continuation of the action in the face of the plaintiff's conduct would constitute an abuse of the court's process. These cases, thankfully rare, feature at least one, and usually serial violations of court orders. This case does not fall into that category.

The second type of case that will justify an order dismissing for delay has three characteristics. The delay must be inordinate, inexcusable and such that it gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay: see De Marco, at paras. 22, 26; Armstrong, at paras. 11-12.

[113] I agree with Maria’s submission that given that the Langnecker test applies at a minimum to the dismissal of a civil action, at least the same threshold must be required for an appeal where the personal autonomy of an individual is at stake.

[114] On the facts of this case, there is no evidentiary basis for any of the criteria required to dismiss the appeal for delay. The CCB Decision was rendered in September 2016 with a notice of appeal filed forthwith. Maria did not have counsel at that time and it is reasonable to expect that time would be required for Maria to obtain her counsel and funding through the legal aid system.[^13]

[115] The requirement under s. 80(5) of the HCCA that Maria deliver her appeal factum 14 days after being served with the record and transcript by the CCB (which was on November 15, 2016) is also unreasonable and unrealistic. It cannot be expected that a self-represented appellant can write and file a factum 14 days after receiving the record.[^14]

[116] Further, the uncontested affidavit evidence is that “[b]etween March 2017 and May 2017, and in November 2017, counsel for both parties engaged in without prejudice discussions and efforts in an attempt to resolve this appeal”.

[117] Also, there is no evidence that delay in the case caused any prejudice to Dr. Shin. The appeal is based on the record before the CCB. The passage of time has not affected Dr. Shin’s ability to respond to the appeal.

[118] The notice of appeal was served and filed in Maria’s name only. She was at the time self-represented and detained as an involuntary patient on a locked psychiatric ward with limited, if any, means of advancing her appeal at that time. She remained detained and unrepresented when the record was served by the CCB.

[119] Finally, the appeal moved promptly as soon as its status became an issue in November 2017 when Dr. Sum proposed treatment with antipsychotic medication but was prevented from doing so without leave of the court under s. 18 of the HCCA since the matter was under appeal.

[120] Consequently, the delay in this case was not significant, inordinate or inexcusable, nor did it prejudice Dr. Shin in any way.

[121] For these reasons, I would not dismiss the appeal for delay.

Order and costs

[122] I dismiss Dr. Shin’s motion. I now address the process on a going forward basis.

[123] The appeal of the CCB Decision was confirmed with the motions office as a two-hour matter that would have otherwise been heard on the regular list. Given the additional motion to dismiss, which was scheduled for an hour,[^15] the motions were collectively scheduled as a long motion on the list.

[124] In ordinary circumstances, I would remain seized of this matter for the purposes of hearing the appeal. However, I am not able to hear motions until mid to late June as a result of other scheduling commitments. This matter is of considerable urgency, both from the perspective of Dr. Shin and Maria, as there will be significant consequences to Maria depending on the result of the appeal. Counsel raised the timing issue with the court at the hearing.

[125] Consequently, the appeal must be heard expeditiously, and counsel have agreed to do so. I order that this matter be placed on a regular motions list on an expedited and immediate basis, to be scheduled with the motions office. Counsel will argue the appeal on the first available date provided on which they can attend, so that Maria’s treatment can be determined. I will not be seized of the matter for the reasons I discuss above.

[126] Dr. Shin did seek to dismiss the appeal at the present hearing. However, the hearing was required at the court’s request to address mootness issues despite Dr. Shin’s withdrawal of the motion. Consequently, I order no costs of this motion.

[127] I thank counsel for their thorough and superb written and oral submissions which were of great assistance to the court. Also, the courtesy and co-operation of counsel both with each other and towards the court set an example that ought to be followed in all cases.

GLUSTEIN J.

Date: 20180405

[^1]: (amended on September 21, 2016 with reasons released September 25, 2016)

[^2]: (Maria has not yet sought a review by the CCB of Dr. Sum’s finding of incapacity given the current appeal of the CCB Decision.)

[^3]: (a term I refer to as a “prior capable wish” based on the use of that term in Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 118)

[^4]: (amended on September 21, 2016)

[^5]: (substitute decision-maker)

[^6]: The issue on the appeal before this court, if heard, would be whether Maria had the capacity to refuse that treatment, and, as such, whether she expressed a “prior capable wish” at the date of the proposed treatment in September 2016.

[^7]: I consider the applicable law for the issues of mootness and discretion collectively as they are generally discussed concurrently in the case law. I address the application of the law of discretion to the facts of this case in my analysis of that particular issue later in my reasons.

[^8]: (subject to the right of the substitute decision-maker or a health practitioner to seek to override that prior capable wish under the applicable legislation)

[^9]: Day J. relies on Starson throughout his reasons but does not refer to paragraph 118 of the decision when he addresses the mootness issue.

[^10]: (Lederer J. then cites the passage from paragraph 118 in Starson)

[^11]: (assuming there is no evidence that Maria’s wish changed after September 2016)

[^12]: (i.e. there is a previous finding of incapacity and the substitute decision-maker agrees to the process)

[^13]: The court was advised of Maria’s legal aid retainer at the hearing and that fact is not in dispute.

[^14]: It may not be reasonable to even expect that standard from counsel, although that issue is not before me as Maria was self-represented at that date.

[^15]: (and heard for almost three hours)

Christoforou v. Shin, 2018 ONSC 2184

Case Summary