COURT FILE NO.: CV-17-576642

DATE: 20180406

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Vera Manu Applicant

– and –

Dr. Tapan K. Banik Respondent

O. Benjamin Vincents, for the Applicant

Nada Nicola-Howorth and David E. Litwin, for the Respondent

HEARD: February 22, 2018

FERGUSON J.

REASONS FOR JUDGMENT

[1] The appeal on the issue of capacity was abandoned at the start of the motion. As unanticipated submissions were received, I asked for written submissions on three points. These were received from Dr. Banik on March 5, 2018, Ms. Manu on March 14, 2018 and Dr. Banik on March 29, 2018.

Issue 1: Was the Community Treatment Order (the “CTO”) stayed pending the outcome of this appeal?

[2] On February 22, 2018, I inquired whether the CTO was stayed following Ms. Manu’s appeal of the board’s May 3, 2017 decision. In his written submissions of March 29, 2018, Dr. Banik accepts that the Mental Health Act (MHA) does not specifically stay the enforcement of a CTO pending the decision of the board or the appeal court. This issue is separate from the mootness analysis and not relevant to determining whether the criteria for issuing the CTO were met.

Issue 2: Are the issues presented on this appeal moot?

[3] Ms. Manu submits that a motion was required to deal with this issue of mootness.

[4] Dr. Banik submits that the issue of mootness need not be made on a motion to the appeal court. In Borowski v. Canada (AG), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 the respondent claimed the matter on appeal was moot, but did not bring an application to quash the appeal on that basis. In spite of that fact, the court heard submissions on the mootness issue and ultimately dismissed the appeal as moot. Further, I asked for submissions on this issue.

[5] Dr. Banik acknowledges there is no evidence before the court with respect to whether the subject CTO was renewed. However, he submits that even if Ms. Manu’s CTO was renewed, it has no bearing on a consideration of whether this appeal is moot.

[6] In order for a CTO to be renewed, all of the criteria set out in section 33.1(4) of the MHA must be satisfied, including section 33.1(4)(a). which states:

(4) A physician may issue or renew a community treatment order under this section if,

(a) during the previous three‑year period, the person,

(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three‑year period, or

(ii) has been the subject of a previous community treatment order under this section.

[7] Dr. Banik submits that for a physician to have renewed the subject CTO, they would have had to do so within 7 months of April 25, 2017 (i.e. within one month after it expired). At its latest, the CTO had to have been renewed by November 25, 2017. Even assuming the CTO was renewed on November 25, 2017, the issuing physician would not have been required to rely on the fact that Ms. Manu had been subject to the CTO at issue for renewal, since by that time Ms. Manu had been a patient in a psychiatric facility for a cumulative period of 30 days or more during the previous three‑year period. Ms. Manu was admitted to hospital from March 18-29, 2017 and again from March 30-Aprl 30, 2017. I accept this submission and agree that the subject CTO would have had no impact on whether a subsequent CTO may have been renewed for Ms. Manu.

[8] In Borowski v. Canada, the Supreme Court of Canada set out the following principles regarding moot issues on appeal:

The general principle [of mootness] 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.

Reference: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342

[9] The reasoning in Borowski has been applied to render appeals relating to expired CTO’s moot. In Carty v. Levy, the court heard an appeal from a board decision confirming the validity of a CTO. By the time the appeal was heard, the CTO had expired, and it had not been renewed. The court determined that there was no longer any live controversy between the parties and held that the court’s adjudication of the validity of the expired CTO would have no practical effect on the parties. Ms. Manu’s CTO has expired and has not been renewed. Adjudication on the validity of the expired CTO would have no practical effect on her. The issue is moot.

Reference: Carty v. Levy, 2015 ONSC 2200

[10] Once a finding of mootness has been made, the court must determine whether to exercise its discretion to hear the appeal. The court must consider whether there are collateral consequences to the parties based on the outcome of the issue such that it ought to be heard, such as when criminal proceedings are ongoing and relate directly to the questions sought to be determined on appeal. The court must consider the concern for judicial economy. There is a need to ration scarce judicial resources to hear those matters which involve a live controversy between the parties. In addition, the court must be sensitive to its adjudicative role. Pronouncing judgments in the absence of any real dispute affecting the parties’ rights may be viewed as an intrusion into the role of the legislature.

Reference: Borowski v. Canada, supra

[11] During his submissions, Ms. Manu’s counsel raised section 33.1(4)(a)(ii) as a purported collateral consequence of a finding of mootness. Section 33.1(4) sets out the criteria for a valid CTO. One of these criteria requires that during the previous three-year period the person was either:

a. a patient of a psychiatric facility on two or more separate occasions;

b. a patient for a cumulative period of 30 days or more; or

c. the subject of a previous CTO.

[12] I accept that in the event that a CTO is considered in the next approximately two years, section 33.1(4)(a)(ii) would be met on the basis of Ms. Manu’s two separate admissions to the hospital in March and April 2017, as well as the 30 days of admission in April of 2017. The fact that a previous CTO was issued on April 25, 2017 would have little, if any, practical effect on any future CTO that could possibly be issued in the next two years. At most, it may extend the treatment providers authority to issue a possible future CTO by 25 days, and that is only if the balance of the criteria set out in Section 33.1(4) are met. In addition, this presupposes that between April 2017 and April 2020 Ms. Manu will have had no other psychiatric admissions and no other CTOs issued.

[13] In Carty v. Levy, the court addressed the issue of potential future events when considering if an issue was moot. The court held that a speculative potential event was not enough to warrant the court exercising its decision to hear a moot issue. In Gianoylis v. McIntyre the court held that the mere possibility of a future event is not sufficient to create a live controversy between parties which warrants adjudication of a moot issue.

Reference: Carty v. Levy, supra; Gianoylis v. McIntyre, 2018 ONSC 547

[14] I agree that any argument that the validity of the April 25, 2017 CTO has future consequences that justify an exercise of judicial discretion in the face of a finding of mootness is not supported. The mere possibility of a speculative, potential, future CTO being issued sometime between April 1 and April 25, 2020 does not warrant the hearing of a moot issue. The CTO did not render Ms. Manu as being more vulnerable to a CTO renewal. The appeal is dismissed as moot.

Issue 3: Was the Board’s decision with respect to the validity of the CTO reasonable?

[15] Counsel for Ms. Manu submitted that the board’s May 3, 2017 decision confirming the validity of the CTO was invalid insofar as the board did not specifically reference the element of “continuing supervision” in its reasons for decision.

[16] The standard of review applicable to a decision of the board confirming the validity of a CTO is reasonableness.

Reference: Micah v. Cavanagh, 2016 ONSC 7924; J.S. v. Legault, 2016 ONSC 3098

[17] An appeal on the basis of insufficient reasons will only be allowed where the reasons are so deficient that they foreclose meaningful appellate review.

Reference: Neinstein v. Law Society of Upper Canada, 2015 ONSC 7909 (Div. Ct.)

[18] Reasons do not need to address each and every argument made by the parties, or all the statutory provisions, jurisprudence or other details that the reviewing judge would have preferred, so long as the reasons permit the reviewing court to understand why the tribunal made its decision and to determine whether the conclusion was within a range of reasonable outcomes. Reasons are reviewed in the context of the evidence and neither need be perfect nor comprehensive. The board is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion.

Reference: Neinstein, supra; Nurses’ Union v. Newfoundland and Labrador, 2011 SCC 62

[19] There was sufficient evidence before the board for it to make a finding on a balance of probabilities that Ms. Manu required continuing treatment or care and continuing supervision in the community. The law is clear that in considering this issue, the board was not required to explicitly state that Ms. Manu required continuing supervision.

Reference: Salem v. Kantor, 2016 ONSC 7130;

Nurses’ Union v. Newfoundland and Labrador, 2011 SCC 62

[20] The purpose of a CTO is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. By necessity it includes supervision.

[21] The CTP was tendered evidence before the board. I agree that the CTP is, effectively, the heart of the CTO as it is the comprehensive plan of community-based treatment or care and supervision for the patient.

[22] The CTP states that Dr. Banik or a delegate is responsible for the general supervision and monitoring of the CTO while it is in effect over the six month period. It states that Dr. Banik or a delegate is to see Ms. Manu every four weeks for an appointment, and that the visits may change in frequency as deemed clinically appropriate. The CTP also states that the CTO case manager or a delegate is to meet with Ms. Manu once per week in a community location at the discretion of the case manager for assessment, monitoring of medication compliance, psychosocial rehabilitation and linking to appropriate resources.

[23] In its reasons, the board specifically noted that Dr. Banik had developed the CTP for Ms. Manu which addressed Ms. Manu’s proposed treatment. There is no merit to an argument that the board was unaware that the CTP for Ms. Manu included supervision.

[24] The board specifically notes in its decision the questions it was tasked with answering, including whether the evidence established that Ms. Manu suffered from a mental disorder such that she needed continuing treatment or care and continuing supervision while living in the community, which it answered the question in the affirmative. The board stated:

Did the evidence establish that VM suffered from a mental disorder such that she needed continuing treatment or care and continuing supervision while living in the community?

Yes.

[25] It was not necessary for the board to include anything further in its reasons.

[26] The appeal is dismissed. The decision of the board dated May 3, 2017 is upheld.

Ferguson J.

Date: April 6, 2018

COURT FILE NO.: CV-17-576642

DATE: 20180406

ONTARIO

SUPERIOR COURT OF JUSTICE

VERA MANU

– and –

DR. TAPAN K. BANIK

REASONS FOR JUDGMENT

J.E. Ferguson J.

Released: April 6, 2018