COURT FILE NO.: CV-17-581998

DATE: 20180628

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF AN APPEAL under s. 48(1) of the Mental Health Act, R.S.O. 1990, c. M. 7

AND IN THE MATTER of J.B., Toronto, Ontario

BETWEEN:

J.B.

Respondent in appeal

– and –

Dr. Darina de Souza

Appellant

D’Arcy J. Hiltz for the Respondent in Appeal

Colin Johnston for the Appellant

HEARD: June 19, 2018

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] The Appellant, Dr. Darina de Souza, was the attending physician for the Respondent, J.B., who was an involuntary patient at a psychiatric facility, Halton Healthcare – Oakville Trafalgar Memorial Hospital in Oakville, Ontario. Dr. de Souza prescribed J.B.’s continued detainment at the hospital as an involuntary patient. In doing so, Dr. de Souza relied on the consent to treatment of J.B.’s mother as a substitute decision maker under the Substitute Decisions Act, 1992[^1] and the Health Care Consent Act, 1996,[^2] J.B.’s mother was acting under a 2006 Power of Attorney (the “2006 POA”).

[2] There, however, was a problem. The problem was that J.B., while an involuntary patient under Dr. de Souza’s care, had revoked the 2006 POA, which revocation, if valid and effective, would have made Ms. S.K., J.B.’s estranged wife, the ranking substitute decision maker - not J.B.’s mother. Although under s.2 of the Substitute Decisions Act, 1992, J.B. was presumed to have the legal capacity to revoke his 2006 POA, relying on the exception to the presumption, Dr. de Souza concluded that she had reasonable grounds to believe that J.B. was incapable of making the revocation. J.B. had signed the revocation during his admission as an involuntarily patient, and in these circumstances, Dr. de Souza believed that the revocation was ineffective and that J.B.’s mother and not Ms. S.K. was the ranking substitute decision maker.

[3] J.B. appealed the continuation of his detention to the Consent and Capacity Board, and he raised a preliminary objection that there was no valid consent to his treatment. By a decision dated August 28, 2015, the Board held that J.B.’s revocation of the 2006 POA must be taken as valid, and, therefore, his legal substitute decision maker was Ms. S.K. Given that Dr. de Souza had obtained consent for J.B.’s continued admission from his mother and not from Ms. S.K., the Board concluded that the consent requirement in s. 20(1.1) of the Mental Health Act, 1996[^3] had not been met and, therefore, J.B.’s detention as a involuntary patient should be terminated.

[4] On this appeal, Dr. de Souza seeks to have the Board’s decision set aside, and she seeks a declaration that the consent of J.B.’s substitute decision maker was obtained in accordance with s.20(1.1) of the Mental Health Act, 1996. Dr. de Souza submits that the Board erred in law in deciding that the J.B.’s revocation was presumptively valid unless there was a determination to the contrary under the Substitute Decisions Act, 1992. Dr. de Souza submits that she had a professional obligation to determine who was J.B.’s substitute decision maker and in the urgency of the circumstances, it would not have been feasible to have the court resolve who was J.B.’s ranking substitute decision maker. Dr. de Souza submitted that she had reasonable grounds to conclude that the revocation was ineffective. Dr. de Souza submits that the Board’s decision of August 28, 2015 was both unreasonable and incorrect.

[5] In response to this appeal, J.B. submits that the Dr. de Souza’s appeal is moot and should be dismissed. He further submits that should the court exercise its discretion to hear the appeal notwithstanding its mootness, the standard of appellate review is reasonableness and the Board’s decision was reasonable. Alternatively, J.B. submits that if the standard of review is correctness then, in any event, the Board’s reasonable decision was also a legally correct one. Therefore, J.B. submits that the appeal should be dismissed.

[6] For the reasons that follow, it is my opinion that the appeal is moot, but because the issues raised by the appeal are vitally important to the operation of the Mental Health Act, 1996 and do affect the responsibilities of physicians treating patients under the Mental Health Act, 1996, the court should exercise its discretion to hear the appeal in the interests of justice. On the appeal, the standard of review is correctness. The Board’s decision was correct. Accordingly, Dr. de Souza’s appeal should be dismissed.

B. Statutory Background

1. Health Care Consent Act, 1996

[7] Section 10 of the Health Care Consent precludes a physician from administering treatment unless the patient or the patient’s substitute decision maker consents to the treatment. Section 10 provides:

10(1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or,

(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person's substitute decision-maker has given consent on the person's behalf in accordance with this Act.

Opinion of Board or court governs

(2) If the health practitioner is of the opinion that the person is incapable with respect to the treatment, but the person is found to be capable with respect to the treatment by the Board on an application for review of the health practitioner’s finding, or by a court on an appeal of the Board’s decision, the health practitioner shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless the person has given consent.

[8] Section 4 of the Act stipulates the criteria for determining whether a person is “capable with respect to a treatment.” Section 4 states:

Capacity

4. (1) A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Presumption of capacity

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.

Exception

(3) A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be.

[9] The fact that a patient has a mental condition does not preclude the patient having the capacity to make a decision about medical treatment.[^4] The question on a capacity assessment with respect to treatment is not whether the patient’s decision is reasonable; the question is whether the patient has the capacity to make a decision.[^5] In Starson v. Swayze,[^6] Justice Major, writing for the majority, explained the two criteria for capacity to consent to treatment as follows:

78. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information [...] Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.

[10] For capacity to consent to treatment, the Health Care Consent Act, 1996 does not require the patient to actually appreciate the consequences of his or her decision; rather, it requires the patient to have the ability to appreciate the consequences of the decision. At para. 80 of his decision in Starson v. Swayze, Justice Major explained that while the Act requires a patient to have "the ability to appreciate the consequences of a [treatment] decision", it does not require "actual appreciation of those consequences." If the patient has an appreciation of the nature and purpose of the proposed treatment, the foreseeable benefits and risks of treatment, the alternative courses of action available, and the expected consequences of not having the treatment, then he or she has the ability to appreciate the decision made, even if the patient disagrees with his or her physician's treatment recommendation.[^7]

[11] The law presumes a person is capable to decide to accept or reject medical treatment and at a capacity hearing, the onus is on the attending physician to prove that the patient is incapable, to the civil standard of a balance of probabilities. The Consent and Capacity Board must avoid the error of equating the presence of a mental disorder with incapacity; the presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity to consent to treatment.[^8]

[12] Sections 20 to 24 and 32 to 37.1 of the Health Care Consent Act, 1996 set out a scheme for consent to be given by a substitute decision maker and for applications to the Consent and Capacity Board for, among other things, a review of a finding of incapacity to consent to treatment, as set out below:

Consent

List of persons who may give or refuse consent

20 (1) If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described in one of the following paragraphs:

1. The incapable person’s guardian of the person, if the guardian has authority to give or refuse consent to the treatment.

2. The incapable person’s attorney for personal care, if the power of attorney confers authority to give or refuse consent to the treatment.

3. The incapable person’s representative appointed by the Board under section 33, if the representative has authority to give or refuse consent to the treatment.

4. The incapable person’s spouse or partner.

5. A child or parent of the incapable person, or a children’s aid society or other person who is lawfully entitled to give or refuse consent to the treatment in the place of the parent. This paragraph does not include a parent who has only a right of access. If a children’s aid society or other person is lawfully entitled to give or refuse consent to the treatment in the place of the parent, this paragraph does not include the parent.

6. A parent of the incapable person who has only a right of access.

7. A brother or sister of the incapable person.

8. Any other relative of the incapable person.

Requirements

(2) A person described in subsection (1) may give or refuse consent only if he or she,

(a) is capable with respect to the treatment;

(b) is at least 16 years old, unless he or she is the incapable person’s parent;

(c) is not prohibited by court order or separation agreement from having access to the incapable person or giving or refusing consent on his or her behalf;

(d) is available; and

(e) is willing to assume the responsibility of giving or refusing consent.

Ranking

(3) A person described in a paragraph of subsection (1) may give or refuse consent only if no person described in an earlier paragraph meets the requirements of subsection (2).

Same

(4) Despite subsection (3), a person described in a paragraph of subsection (1) who is present or has otherwise been contacted may give or refuse consent if he or she believes that no other person described in an earlier paragraph or the same paragraph exists, or that although such a person exists, the person is not a person described in paragraph 1, 2 or 3 and would not object to him or her making the decision.

No person in subs. (1) to make decision

(5) If no person described in subsection (1) meets the requirements of subsection (2), the Public Guardian and Trustee shall make the decision to give or refuse consent.

Conflict between persons in same paragraph

(6) If two or more persons who are described in the same paragraph of subsection (1) and who meet the requirements of subsection (2) disagree about whether to give or refuse consent, and if their claims rank ahead of all others, the Public Guardian and Trustee shall make the decision in their stead.

Meaning of “spouse”

(7) Subject to subsection (8), two persons are spouses for the purpose of this section if,

(a) they are married to each other; or

(b) they are living in a conjugal relationship outside marriage and,

(i) have cohabited for at least one year,

(ii) are together the parents of a child, or

(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act.

Not spouse

(8) Two persons are not spouses for the purpose of this section if they are living separate and apart as a result of a breakdown of their relationship.

Meaning of “partner”

(9) For the purpose of this section,

“partner” means,

(a) Repealed: 2004, c. 3, Sched. A, s. 84 (5).

(b) either of two persons who have lived together for at least one year and have a close personal relationship that is of primary importance in both persons’ lives.

Meaning of “relative”

(10) For the purposes of this section, a relative includes a person related to another person by marriage or adoption.

Meaning of “available”

(11) For the purpose of clause (2) (d), a person is available if it is possible, within a time that is reasonable in the circumstances, to communicate with the person and obtain a consent or refusal.

Principles for giving or refusing consent

21 (1) A person who gives or refuses consent to a treatment on an incapable person’s behalf shall do so in accordance with the following principles:

1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, the person shall give or refuse consent in accordance with the wish.

2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the incapable person’s best interests.

Best interests

(2) In deciding what the incapable person’s best interests are, the person who gives or refuses consent on his or her behalf shall take into consideration,

(a) the values and beliefs that the person knows the incapable person held when capable and believes he or she would still act on if capable;

(b) any wishes expressed by the incapable person with respect to the treatment that are not required to be followed under paragraph 1 of subsection (1); and

(c) the following factors:

1. Whether the treatment is likely to,

i. improve the incapable person’s condition or well-being,

ii. prevent the incapable person’s condition or well-being from deteriorating, or

iii. reduce the extent to which, or the rate at which, the incapable person’s condition or well-being is likely to deteriorate.

2. Whether the incapable person’s condition or well-being is likely to improve, remain the same or deteriorate without the treatment.

3. Whether the benefit the incapable person is expected to obtain from the treatment outweighs the risk of harm to him or her.

4. Whether a less restrictive or less intrusive treatment would be as beneficial as the treatment that is proposed.

Information

22 (1) Before giving or refusing consent to a treatment on an incapable person’s behalf, a substitute decision-maker is entitled to receive all the information required for an informed consent as described in subsection 11 (2).

Conflict

(2) Subsection (1) prevails despite anything to the contrary in the Personal Health Information Protection Act, 2004.

Ancillary treatment

23 Authority to consent to a treatment on an incapable person’s behalf includes authority to consent to another treatment that is necessary and ancillary to the treatment, even if the incapable person is capable with respect to the necessary and ancillary treatment.

Admission to hospital, etc.

24 (1) Subject to subsection (2), a substitute decision-maker who consents to a treatment on an incapable person’s behalf may consent to the incapable person’s admission to a hospital or psychiatric facility or to another health facility prescribed by the regulations, for the purpose of the treatment.

Objection, psychiatric facility

(2) If the incapable person is 16 years old or older and objects to being admitted to a psychiatric facility for treatment of a mental disorder, consent to his or her admission may be given only by,

(a) his or her guardian of the person, if the guardian has authority to consent to the admission; or

(b) his or her attorney for personal care, if the power of attorney contains a provision authorizing the attorney to use force that is necessary and reasonable in the circumstances to admit the incapable person to the psychiatric facility and the provision is effective under subsection 50 (1) of the Substitute Decisions Act, 1992.

APPLICATIONS TO BOARD

Application for review of finding of incapacity

32 (1) A person who is the subject of a treatment may apply to the Board for a review of a health practitioner’s finding that he or she is incapable with respect to the treatment.

Exception

(2) Subsection (1) does not apply to,

(a) a person who has a guardian of the person, if the guardian has authority to give or refuse consent to the treatment;

(b) a person who has an attorney for personal care, if the power of attorney contains a provision waiving the person’s right to apply for the review and the provision is effective under subsection 50 (1) of the Substitute Decisions Act, 1992.

Parties

(3) The parties to the application are:

1. The person applying for the review.

2. The health practitioner.

3. Any other person whom the Board specifies.

Powers of Board

(4) The Board may confirm the health practitioner’s finding or may determine that the person is capable with respect to the treatment, and in doing so may substitute its opinion for that of the health practitioner.

Restriction on repeated applications

(5) If a health practitioner’s finding that a person is incapable with respect to a treatment is confirmed on the final disposition of an application under this section, the person shall not make a new application for a review of a finding of incapacity with respect to the same or similar treatment within six months after the final disposition of the earlier application, unless the Board gives leave in advance.

Same

(6) The Board may give leave for the new application to be made if it is satisfied that there has been a material change in circumstances that justifies reconsideration of the person’s capacity.

Decision effective while application for leave pending

(7) The Board’s decision under subsection (5) remains in effect pending an application for leave under subsection (6).

Application for appointment of representative

33 (1) A person who is 16 years old or older and who is incapable with respect to a proposed treatment may apply to the Board for appointment of a representative to give or refuse consent on his or her behalf.

Application by proposed representative

(2) A person who is 16 years old or older may apply to the Board to have himself or herself appointed as the representative of a person who is incapable with respect to a proposed treatment, to give or refuse consent on behalf of the incapable person.

Exception

(3) Subsections (1) and (2) do not apply if the incapable person has a guardian of the person who has authority to give or refuse consent to the proposed treatment, or an attorney for personal care under a power of attorney conferring that authority.

Parties

(4) The parties to the application are:

1. The incapable person.

2. The proposed representative named in the application.

3. Every person who is described in paragraph 4, 5, 6 or 7 of subsection 20 (1).

4. The health practitioner who proposed the treatment.

5. Any other person whom the Board specifies.

Appointment

(5) In an appointment under this section, the Board may authorize the representative to give or refuse consent on the incapable person’s behalf,

(a) to the proposed treatment;

(b) to one or more treatments or kinds of treatment specified by the Board, whenever a health practitioner proposing that treatment or a treatment of that kind finds that the person is incapable with respect to it; or

(c) to treatment of any kind, whenever a health practitioner proposing a treatment finds that the person is incapable with respect to it.

Criteria for appointment

(6) The Board may make an appointment under this section if it is satisfied that the following requirements are met:

1. The incapable person does not object to the appointment.

2. The representative consents to the appointment, is at least 16 years old and is capable with respect to the treatments or the kinds of treatment for which the appointment is made.

3. The appointment is in the incapable person’s best interests.

Powers of Board

(7) Unless the incapable person objects, the Board may,

(a) appoint as representative a different person than the one named in the application;

(b) limit the duration of the appointment;

(c) impose any other condition on the appointment;

(d) on any person’s application, remove, vary or suspend a condition imposed on the appointment or impose an additional condition on the appointment.

Termination

(8) The Board may, on any person’s application, terminate an appointment made under this section if,

(a) the incapable person or the representative requests the termination of the appointment;

(b) the representative is no longer capable with respect to the treatments or the kinds of treatment for which the appointment was made;

(c) the appointment is no longer in the incapable person’s best interests; or

(d) the incapable person has a guardian of the person who has authority to consent to the treatments or the kinds of treatment for which the appointment was made, or an attorney for personal care under a power of attorney conferring that authority.

Application with respect to place of treatment

34 (1) A person may apply to the Board for a review of a decision to consent on the person’s behalf to the person’s admission to a hospital, psychiatric facility or other health facility referred to in section 24 for the purpose of treatment.

Exception

(2) Subsection (1) does not apply to a decision to consent on the person’s behalf to the person’s admission to a psychiatric facility as an informal patient, as defined in the Mental Health Act, if the person is at least 12 years old but less than 16 years old.

Admission and treatment despite application

(3) The decision to admit the person to the hospital, psychiatric facility or health facility may take effect, and the treatment may be administered, even if the person indicates that he or she intends to apply to the Board under subsection (1) or under subsection 13 (1) of the Mental Health Act and even if the application to the Board has been made and has not yet been finally disposed of.

Parties

(4) The parties to the application are:

1. The person applying for the review.

2. The person who consented to the admission.

3. The health practitioner who proposed the treatment.

4. Any other person whom the Board specifies.

Considerations

(5) In reviewing the decision to admit the person to the hospital, psychiatric facility or health facility for the purpose of treatment, the Board shall consider,

(a) whether the hospital, psychiatric facility or health facility can provide the treatment;

(b) whether the hospital, psychiatric facility or health facility is the least restrictive setting available in which the treatment can be administered;

(c) whether the person’s needs could more appropriately be met if the treatment were administered in another place and whether space is available for the person in the other place;

(d) the person’s views and wishes, if they can be reasonably ascertained; and

(e) any other matter that the Board considers relevant.

Order

(6) The Board may,

(a) direct that the person be discharged from the hospital, psychiatric facility or health facility; or

(b) confirm the decision to admit the person to the hospital, psychiatric facility or health facility.

Restriction on repeated applications

(7) If the decision to admit the person is confirmed on the final disposition of an application under this section, the person shall not make a new application for a review of the decision to admit within six months after the final disposition of the earlier application, unless the Board gives leave in advance.

Same

(8) The Board may give leave for the new application to be made if it is satisfied that there has been a material change in circumstances that justifies reconsideration of the decision to admit.

Application under Mental Health Act

(9) For the purpose of subsection (7), a final disposition of an application made under section 13 of the Mental Health Act shall be deemed to be a final disposition of an application under this section.

Application for directions

35 (1) A substitute decision-maker or a health practitioner who proposed a treatment may apply to the Board for directions if the incapable person expressed a wish with respect to the treatment, but,

(a) the wish is not clear;

(b) it is not clear whether the wish is applicable to the circumstances;

(c) it is not clear whether the wish was expressed while the incapable person was capable; or

(d) it is not clear whether the wish was expressed after the incapable person attained 16 years of age.

Notice to substitute decision-maker

(1.1) A health practitioner who intends to apply for directions shall inform the substitute decision-maker of his or her intention before doing so.

Parties

(2) The parties to the application are:

1. The substitute decision-maker.

2. The incapable person.

3. The health practitioner who proposed the treatment.

4. Any other person whom the Board specifies.

Directions

(3) The Board may give directions and, in doing so, shall apply section 21.

Application to depart from wishes

36 (1) If a substitute decision-maker is required by paragraph 1 of subsection 21 (1) to refuse consent to a treatment because of a wish expressed by the incapable person while capable and after attaining 16 years of age,

(a) the substitute decision-maker may apply to the Board for permission to consent to the treatment despite the wish; or

(b) the health practitioner who proposed the treatment may apply to the Board to obtain permission for the substitute decision-maker to consent to the treatment despite the wish.

Notice to substitute decision-maker

(1.1) A health practitioner who intends to apply under clause (1) (b) shall inform the substitute decision-maker of his or her intention before doing so.

Parties

(2) The parties to the application are:

1. The substitute decision-maker.

2. The incapable person.

3. The health practitioner who proposed the treatment.

4. Any other person whom the Board specifies.

Criteria for permission

(3) The Board may give the substitute decision-maker permission to consent to the treatment despite the wish if it is satisfied 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.

Application to determine compliance with s. 21

37 (1) If consent to a treatment is given or refused on an incapable person’s behalf by his or her substitute decision-maker, and if the health practitioner who proposed the treatment is of the opinion that the substitute decision-maker did not comply with section 21, the health practitioner may apply to the Board for a determination as to whether the substitute decision-maker complied with section 21.

Parties

(2) The parties to the application are:

1. The health practitioner who proposed the treatment.

2. The incapable person.

3. The substitute decision-maker.

4. Any other person whom the Board specifies.

Power of Board

(3) In determining whether the substitute decision-maker complied with section 21, the Board may substitute its opinion for that of the substitute decision-maker.

Directions

(4) If the Board determines that the substitute decision-maker did not comply with section 21, it may give him or her directions and, in doing so, shall apply section 21.

Time for compliance

(5) The Board shall specify the time within which its directions must be complied with.

Deemed not authorized

(6) If the substitute decision-maker does not comply with the Board’s directions within the time specified by the Board, he or she shall be deemed not to meet the requirements of subsection 20 (2).

Subsequent substitute decision-maker

(6.1) If, under subsection (6), the substitute decision-maker is deemed not to meet the requirements of subsection 20 (2), any subsequent substitute decision-maker shall, subject to subsections (6.2) and (6.3), comply with the directions given by the Board on the application within the time specified by the Board.

Application for directions

(6.2) If a subsequent substitute decision-maker knows of a wish expressed by the incapable person with respect to the treatment, the substitute decision-maker may, with leave of the Board, apply to the Board for directions under section 35.

Inconsistent directions

(6.3) Directions given by the Board under section 35 on a subsequent substitute decision-maker’s application brought with leave under subsection (6.2) prevail over inconsistent directions given under subsection (4) to the extent of the inconsistency.

P.G.T.

(7) If the substitute decision-maker who is given directions is the Public Guardian and Trustee, he or she is required to comply with the directions, and subsection (6) does not apply to him or her.

Deemed application concerning capacity

37.1 An application to the Board under section 33, 34, 35, 36 or 37 shall be deemed to include an application to the Board under section 32 with respect to the person’s capacity to consent to treatment proposed by a health practitioner unless the person’s capacity to consent to such treatment has been determined by the Board within the previous six months.

[13] Pursuant to s. 80 of the Health Care Consent Act, 1996, a party to a proceeding before the Board may appeal the Board’s decision to the Superior Court. Section 80 states:

Appeal

80 (1) A party to a proceeding before the Board may appeal the Board’s decision to the Superior Court of Justice on a question of law or fact or both.

Time for filing notice of appeal

(2) The appellant shall serve his or her notice of appeal on the other parties and shall file it with the court, with proof of service, within seven days after he or she receives the Board’s decision.

Notice to Board

(3) The appellant shall give a copy of the notice of appeal to the Board.

Record

(4) On receipt of the copy of the notice of appeal, the Board shall promptly serve the parties with the record of the proceeding before the Board, including a transcript of the oral evidence given at the hearing, and shall promptly file the record and transcript, with proof of service, with the court.

Powers of court on appeal

(10) On the appeal, the court may,

(a) exercise all the powers of the Board;

(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;

(c) refer the matter back to the Board, with directions, for rehearing in whole or in part.

[14] For the purposes of the immediate case, it is important to keep in mind sections 21 and 39 of the Health Care Consent Act, 1996, which provide that if consent to treatment is given or refused by a substitute decision maker, if the health practitioner is of the opinion that the substitute decision maker did not comply with the best interests principles of s. 21, the health practitioner may apply to the Board for a determination as to whether the substitute decision maker complied with s. 21. On an application under s.39 of the Health Care Consent Act, informally known as a Form G application, the Board may substitute its opinion for that of the substitute decision-maker. If the Board determines that the substitute decision-maker did not comply with s. 21, it may give him or her directions and shall specify the time within which its directions must be complied with. If the substitute decision-maker does not comply with the Board’s directions he or she shall be deemed not to meet the requirements of s. 20 (2), and any subsequent substitute decision-maker shall comply with the directions given by the Board on the application within the time specified by the Board

2. The Substitute Decisions Act, 1992

[15] The Substitute Decisions Act, 1992 empowers attorneys under powers of attorney and establishes guardianships. The Act establishes two types of power of attorney: (1) the continuing power of attorney for property, which authorizes a substitute decision maker to make financial and property decisions for a mentally capable or a mentally incapable person; and (2) the power of attorney for personal care, which authorizes a substitute decision maker to make decisions about health care, nutrition, shelter, clothing, hygiene, or safety for a mentally incapable person.[^9] The Substitute Decisions Act, 1992 establishes two types of guardianship of the person: (1) the Public Guardian and Trustee as temporary guardian of the person; (2) the court-appointed guardian of the person. Guardians of the person are substitute decision makers empowered to make decisions about health care, nutrition, shelter, clothing, hygiene, or safety for a mentally incapable person

[16] The Substitute Decisions Act, 1992 uses several different tests, to measure legal capacity. Under the Substitute Decisions Act, 1992, “capable” means mentally capable and capacity has a corresponding meaning, and under the Substitute Decisions Act, 1992, “incapable” means mentally incapable and “incapacity” has a corresponding meaning.[^10] Capacity and incapacity are legal concepts and are determined in accordance with the tests provided by the Substitute Decisions Act, 1992.

[17] Section 47 of the Substitute Decisions Act, 1992 specifies the legal capacity of the grantor necessary to create or to revoke a power of attorney for personal care. Section 47 states:

Capacity to give power of attorney for personal care

47 (1) A person is capable of giving a power of attorney for personal care if the person,

(a) has the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and

(b) appreciates that the person may need to have the proposed attorney make decisions for the person.

Validity

(2) A power of attorney for personal care is valid if, at the time it was executed, the grantor was capable of giving it even if the grantor is incapable of personal care.

Capacity to revoke

(3) A person is capable of revoking a power of attorney for personal care if he or she is capable of giving one.

Capacity to give instructions

(4) Instructions contained in a power of attorney for personal care with respect to a decision the attorney is authorized to make are valid if, at the time the power of attorney was executed, the grantor had the capacity to make the decision.

[18] The tests for capacity under the Substitute Decisions Act, 1992 are based on a person’s capabilities rather than on how he or she functionally exercises those capabilities. Thus, in determining whether a person has capacity, his or her ability to understand what is involved in making a decision is the important factor and not the factor of whether the person has been making the soundest decisions.[^11]

[19] In a point that will be significant to the discussion below, it should be kept in mind that there are different legal tests for legal capacity. Some of the tests are statutory and some have been developed by the common law. There are thus different legal tests about the capacity: to make a contract, to marry, to make a will, to grant a power of attorney for personal care, and to grant a power of attorney to make financial and property decisions. In a given circumstance, a person may be able to satisfy all, some, or none of the tests. Thus, for an example pertinent to the immediate case, a person may not have the capacity to consent to treatment, but he or she may have the capacity to make or revoke a power of attorney for personal care - the test for which is less cognitively demanding than the test for having the capacity to make personal care decisions about medical treatments.

[20] In Knox v. Burton,[^12] an elderly woman granted a power of attorney for property, then revoked it, and subsequently granted a power of attorney to her nephew. The son argued that his power of attorney was valid but that his mother did not have the capacity to revoke and replace it with a power of attorney to the nephew. The court, however, disagreed and concluded that the presumption that the elderly woman had the capacity to contract had not been overcome. In contrast, in Cates v. Forbes,[^13] a daughter applied for guardianship of her mother but was opposed by her sister who already had a power of attorney from their mother. The court, however, concluded that the sister’s power of attorney was invalid because at the relevant time, the mother did not have the capacity to grant a power of attorney.

[21] The Substitute Decisions Act, 1992 imposes a presumption that a person who is eighteen years of age or more is capable of entering into a contract[^14] and that a person who is sixteen years of age or more is capable of giving or refusing consent in connection with his or her own personal care.[^15] The Act provides that a person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or giving or refusing consent. Section 2 of the Act states:

Presumption of capacity

2 (1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract.

Same

(2) A person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care.

Exception

(3) A person is entitled to rely upon the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable of entering into the contract or of giving or refusing consent, as the case may be.

Onus of proof, contracts and gifts

(4) In a proceeding in respect of a contract entered into or a gift made by a person while his or her property is under guardianship, or within one year before the creation of the guardianship, the onus of proof that the other person who entered into the contract or received the gift did not have reasonable grounds to believe the person incapable is on that other person.

[22] A power of attorney for personal care is terminated in a variety of ways. A power of attorney is terminated when revoked[^16] or if the grantor executes a new power of attorney, unless the grantor provides that there shall be multiple powers of attorney.[^17] Unless another attorney is authorized to act (joint attorneys) or the power of attorney provides for the substitution of another person and that person is able and willing to act, a power of attorney is terminated when the attorney resigns,[^18] dies, or becomes incapable of performing his or her duties.[^19] A power of attorney for personal care is terminated when the court appoints a guardian for the person.[^20]

[23] Pursuant to s. 68 of the Substitute Decisions Act, 1992, an attorney under a power of attorney may apply to the court for directions arising out of the power of attorney.

[24] Pursuant to s. 79 of the Substitute Decisions Act, 1992, if a person’s capacity is in issue in a proceeding and the court is satisfied that there are reasonable grounds to believe that the person is incapable, the court may, on motion or on its own initiative, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person’s capacity.[^21] The Substitute Decisions Act, 1992 does not provide a free-standing jurisdiction for a court to order that a person be assessed by an assessor; an order for an assessment requires a proceeding under the Act.[^22] Section 79 states:

Order for assessment

79 (1) If a person’s capacity is in issue in a proceeding under this Act and the court is satisfied that there are reasonable grounds to believe that the person is incapable, the court may, on motion or on its own initiative, order that the person be assessed by one or more assessors named in the order, for the purpose of giving an opinion as to the person’s capacity.

Same

(2) The order may require the person,

(a) to submit to the assessment;

(b) to permit entry to his or her home for the purpose of the assessment;

(c) to attend at such other places and at such times as are specified in the order.

Place of assessment

(3) The order shall specify the place or places where the assessment is to be performed.

Same

(4) If possible, the assessment shall be performed in the person’s home.

Health facility

(5) An order that specifies a health facility as the place where the assessment is to be performed authorizes the person’s admission to the facility for the purpose of the assessment.

[25] An “assessor” is a member of a class of persons who are designated by the regulations under the Substitute Decisions Act, 1992 as being qualified to do assessments of capacity.[^23] Subject to satisfying certain conditions, assessors are members of: the College of Physicians and Surgeons of Ontario; the College of Psychologists of Ontario; the Ontario College of Social Workers and Social Service Workers and holding a certificate of registration for social work; the College of Occupational Therapists of Ontario; and the College of Nurses of Ontario and holding a general certificate of registration as a registered nurse or an extended certificate of registration as a registered nurse.[^24]

3. The Mental Health Act

[26] Under the Mental Health Act, a “patient” is defined as a person who is under observation, care and treatment in a psychiatric facility. A “psychiatric facility” means a facility for the observation, care and treatment of persons suffering from mental disorder, and designated as such by the Minister of Health and Long-Term Care. “Mental disorder” means any disease or disability of the mind. An “attending physician” means a physician to whom responsibility for the observation, care and treatment of a patient has been assigned.

[27] There are four kinds of admitted patients. One of these is the “involuntary patient,” a person who is detained in a psychiatric facility under a certificate of involuntary admission, a certificate of renewal, or a certificate of continuation. Pursuant to s. 20 (4) of the Mental Health Act, an involuntary patient may be detained in a psychiatric facility for not more than two weeks under a certificate of involuntary admission that is completed and filed with the officer in charge. The detention, however, may be extended by what are described in the Act as a “certificate of renewal” or a “certificate of continuation.”

[28] Section 20 of the Mental Health Act sets out the test for involuntary patient admission. The conditions for admission as an involuntary patient are known as the Box A criteria for the s. 20 (5) criteria and as the Box B criteria for the s. 20 (1.1) criteria, because they appear in Boxes A and B respectively of Form 3 and Form 4 for admission as an involuntary patient. Sections 20 (1.1) and 20 (5) of the Mental Health Act state:

Conditions for involuntary admission

20 (1.1) The attending physician shall complete a certificate of involuntary admission, a certificate of renewal or a certificate of continuation if, after examining the patient, he or she is of the opinion that the patient,

(a) has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person;

(b) has shown clinical improvement as a result of the treatment;

(c) is suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;

(d) given the person’s history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment;

(e) has been found incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained; and

(f) is not suitable for admission or continuation as an informal or voluntary patient.

Conditions for involuntary admission

(5) The attending physician shall complete a certificate of involuntary admission, a certificate of renewal or a certificate of continuation if, after examining the patient, he or she is of the opinion both,

(a) that the patient is suffering from mental disorder of a nature or quality that likely will result in,

(i) serious bodily harm to the patient,

(ii) serious bodily harm to another person, or

(iii) serious physical impairment of the patient,

unless the patient remains in the custody of a psychiatric facility; and

(b) that the patient is not suitable for admission or continuation as an informal or voluntary patient.

[29] Pursuant to s. 39 of the Mental Health Act, an involuntary patient may apply to the Board to inquire into whether or not the prerequisites set out in the Mental Health Act for admission or continuation as an involuntary patient are met. In addition, the involuntary patient may apply to the Board: (a) when a certificate of involuntary admission respecting the patient comes into force; (b) when any certificate of renewal respecting the patient comes into force; or (c) when any certificate of continuation respecting the patient comes into force. Section 39 states:

Application for review by patient, etc.

39 (1) An involuntary patient, or any person on his or her behalf, may apply to the Board in the approved form to inquire into whether or not the prerequisites set out in this Act for admission or continuation as an involuntary patient are met.

When application may be made

(2) In addition to the applications under subsection (4), an application under subsection (1) may be made,

(a) when a certificate of involuntary admission respecting the patient comes into force;

(b) when any certificate of renewal respecting the patient comes into force; or

(c) when any certificate of continuation respecting the patient comes into force.

Application for review by Minister, etc.

(3) An application under subsection (1) may be made at any time by the Minister, the Deputy Minister or the officer in charge of the psychiatric facility in respect of any involuntary patient.

Where notice deemed to have been given

(4) On the completion of a patient’s first certificate of continuation and on the completion of every fourth certificate of continuation thereafter, the patient shall be deemed to have applied to the Board in the approved form under subsection (1) unless he or she has already applied under clause

Waiver

(5) A waiver by an involuntary patient of an application or of the right to an application mentioned in subsection (4) is a nullity.

Procedure

(15) Clause 73 (3) (a), subsection 73 (4) and sections 74 to 80 of the Health Care Consent Act, 1996 apply to an application under this section, with necessary modifications.

[30] Pursuant to s. 41 of the Mental Health Act, on the hearing of an application, the Board shall promptly review the patient’s status to determine whether or not the prerequisites set out in the Act for admission as an involuntary patient continue to be met at the time of the hearing of the application. On a review application, the Board shall rescind the certificate if the Board determines that the prerequisites set out in the Mental Health Act for admission as an involuntary patient were not met at the time of the hearing of the application. Section 41 states:

Review of admission or renewal

41 (1) On the hearing of an application, the Board shall promptly review the patient’s status to determine whether or not the prerequisites set out in this Act for admission as an involuntary patient continue to be met at the time of the hearing of the application.

Confirming order

(2) The Board by order may confirm the patient’s status as an involuntary patient if the Board determines that the prerequisites set out in this Act for admission as an involuntary patient were met at the time of the hearing of the application.

Rescinding order

(3) The Board by order shall rescind the certificate if the Board determines that the prerequisites set out in this Act for admission as an involuntary patient were not met at the time of the hearing of the application.

Application of order

(4) An order of the Board confirming or rescinding a certificate applies to the certificate of involuntary admission, the certificate of renewal or the certificate of continuation in force immediately before the making of the order.

[31] Pursuant to s. 48 of the Mental Health Act, a party to a proceeding before the Board may appeal the Board’s decision or order to the Superior Court of Justice on a question of law or fact or both. Section 48 states:

Appeal to court

48 (1) A party to a proceeding under this Act before the Board may appeal the Board’s decision or order to the Superior Court of Justice on a question of law or fact or both.

Same

(3) Section 80 of the Health Care Consent Act, 1996 applies to the appeal.

Extension of discontinued certificate

(5) Where an appeal is taken against a decision by the Board to discontinue a certificate of involuntary admission, a certificate of renewal, a certificate of continuation or an extension of a certificate, the certificate shall continue in effect for a period of three clear days excluding Saturday and holidays, following the decision of the Board.

Extension of certificate for appeal

(6) Where, before a certificate of involuntary admission, a certificate of renewal, a certificate of continuation or an extension of a certificate expires, a party to the appeal other than the patient or the person acting on the patient’s behalf makes a motion to the court for an extension of the certificate beyond the time period for the certificate under subsection 20 (4), the court may by order extend the effectiveness of the certificate.

Authority of extension

(7) An extension of a certificate under subsection (6) is effective,

(a) for the next period of time provided for renewal of the certificate under subsection 20 (4) or any shorter period set by the court;

(b) until the certificate is rescinded;

(c) until the party appealing withdraws the appeal; or

(d) until the attending physician confirms under subsection (12) that the patient does not meet the criteria set out in subsection 20 (1.1) or (5),

whichever first occurs.

Renewal of certificate

(8) Subject to subsection 20 (1.1) and (5), when a patient or a person acting on the patient’s behalf withdraws an appeal, a physician may complete and file a renewal of the certificate of involuntary admission, the certificate of renewal or the certificate of continuation that was under appeal.

Authority of certificate

(9) A renewal of a certificate of involuntary admission, a certificate of renewal or a certificate of continuation under subsection (8) is effective for the next period of time provided for under subsection 20 (4).

Evidence for extension

(10) The court shall not grant an extension of the certificate under subsection (6) to a party other than the patient or the person acting on the patient’s behalf unless the court is satisfied that there are reasonable and probable grounds to believe that the patient’s condition would justify the completion and filing of a certificate of renewal or a certificate of continuation.

Effectiveness of certificate

(11) Where an appeal is taken from a decision of the Board to confirm a certificate of involuntary admission, a certificate of renewal or a certificate of continuation, the certificate is effective until,

(a) the certificate is confirmed or rescinded by the court;

(b) the certificate is rescinded by the attending physician;

(c) forty-eight hours after notice is given to the attending physician that the party appealing has withdrawn the appeal; or

(d) the attending physician confirms under subsection (12) that the patient does not meet the criteria set out in subsection 20 (1.1) or (5).

Examination

(12) Despite subsections (1) to (10), the attending physician shall examine the patient at the intervals that would have applied under section 20 and shall complete and file with the officer in charge a statement in writing as to whether or not the patient meets the criteria set out in subsection 20 (1.1) or (5).

C. Facts

[32] For over 20 years, J.B., a 40-year-old man who has degrees in fine arts, visual arts, computers, and marketing, has suffered from Bipolar 1 Disorder, which when it flairs up manifests in symptoms of mania and psychosis, with increased energy, agitation, anger, impaired judgment, recklessness, and aggression. He has been admitted to the hospital on numerous occasions, usually involuntarily.

[33] Bipolar 1 Disorder is treatable with a combination of mood stabilizers and antipsychotics, and when J.B. is on medication, his mania disappears and he is able to function well. However, J.B. does not accept the seriousness of his condition, and he has a history of rejecting his medication regimen with the attendant return of mania, psychosis and reckless and dangerous conduct.

[34] On April 4, 2006, J.B. signed a power of attorney for personal care. The 2006 POA appointed A.Z., J.B.’s first wife, as his primary attorney. If A.Z. was unable or unwilling to act, then the 2006 POA designated J.B.’s mother or father as his alternative attorneys.

[35] In 2012, J.B. and A.Z. divorced, and J.B.’s mother became his attorney under the 2006 POA.

[36] In November 2016, J.B. married S.K. It should be noted that J.B.’s marriage did not invalidate the 2006 POA.

[37] In February 2017, J.B. and Ms. S.K. separated. Ms. S.K., who was pregnant, returned to her home country of Israel.

[38] On June 10, 2017, J.B.’s parents, served him with a notice to immediately vacate the premises that he rented from his parents because the lease agreement had expired and it was not being renewed.

[39] J.B. did not quit the premises, and on June 12, 2017, after a report from his mother, police brought him to the emergency room (“ER”) of Oakville-Trafalgar Memorial Hospital. J.B. was suffering a manic episode with emerging psychotic features. He had deliberately tapered himself off Olanzapine (his antipsychotic). The attending ER physician, Dr. Michael Shaytzag, requested a psychiatric assessment, and J.B. was admitted as an involuntary patient.

[40] On June 14, 2017, Dr. de Souza conducted the assessment, and she confirmed J.B.’s involuntary admission under s. 20 of the Mental Health Act. She became J.B.’s attending physician. Thus, on June 15, 2017, J.B was admitted as an involuntary patient pursuant to a Form 3 Certificate of Involuntary Admission that had been completed by Dr. de Souza. Further, she made a determination that J.B. was not capable of consenting to treatment for a mental disorder.

[41] J.B. applied to the Consent and Capacity Board for a review of his involuntary patient status and of the finding of incapacity to consent to treatment.

[42] On June 27, 2017, the Board heard J.B.’s application, and it confirmed his involuntary patient status under the Box A criteria, for a person who poses a danger to himself or others.

[43] On June 28, 2017, a Form 4 Certificate of Renewal detaining J.B. until July 27, 2017 was issued on both Box A and Box B grounds. Box B provides for admission based on the consent of the substitute decision maker for the patient.

[44] On June 29, 2017, J.B. filed a Notice of Appeal from the Board’s decision upholding the finding that he was not capable of consenting to treatment. The same day, J.B. applied to have the Form 4 Certificate of Renewal reviewed.

[45] On July 3, 2017, A.Z., J.B.’s first wife, send an email message to Dr. de Souza confirming that she would not act as his attorney for personal care; i.e., she would not act as his substitute decision maker.

[46] While in the hospital, J.B. exhibited delusions, paranoia, and impaired judgment. He insisted that he did not suffer from a mental illness. He believed he merely suffered a sleep disorder. He believed that his mother was trying to kill him. He believed that his mother had issued an “executive order”, and that hospital staff had acted on this order by injecting him with rattlesnake venom while he slept. He cut himself with a razor to drain the poison from his body. He phoned the police to report the conspiracy to poison him. He tried to escape the hospital by climbing the glass wall of the courtyard, following which he was found on the roof. He explained that he was attempting to reach a poison control medical centre. J.B. told hospital staff that he planned to have his mother removed as his substitute decision maker. He said that would find another girl on Tinder (a social media site) to act in that role. A consulting psychiatrist, Dr. Ken Handelman diagnosed J.B. as psychotic.

[47] In July J.B. and Ms. S.K. spoke by telephone, and they reconciled. She wrote a letter dated July 12, 2017 confirming the reconciliation and indicating that she was willing to act as J.B.’s substitute decision maker.

[48] On July 13, 2017, J.B. authored a handwritten Revocation of the 2016 POA. He signed the Revocation, and it was witnessed by two fellow psychiatric patients at the hospital. He told hospital staff that he no longer wished his mother to be involved in his care. He wanted his second wife, Ms. S.K., to serve as his substitute decision maker. He provided staff with the July 12, 2017 letter signed by Ms. S.K. indicating that they had reconciled. J.B. said that he planned to leave the Hospital and fly to Israel, where he would raise his children with Ms. S.K. and write a movie script.

[49] Dr. de Souza was concerned about these developments. Both J.B. and his family had reported that Ms. S.K. was physically abusive and manipulative.

[50] On July 13, 2017, the Board heard J.B.'s application to review his involuntary status. The letter from Ms. S.K. and the Revocation were tendered as evidence at the hearing.

[51] On July 14, 2017, a majority of the Board upheld J.B.'s detention on the Box A grounds of serious physical impairment. The majority did not rely on the Box B criteria. One member of the Board dissented. This Board Member did not feel the Box A criteria were met. Given that the Board confirmed J.B.’s involuntary status on Box “A” criteria, it did not go on to consider the Box “B” criteria, which would have required the consent of J.B.’s substitute decision maker.

[52] On July 14, 2017, Dr. de Souza met with J.B. to discuss again the revocation of the POA. J.B. said that he no longer believed that Ms. S.K. was manipulating him, and he blamed his mother for deliberately breaking up his relationship to maintain her status under the 2006 POA. He continued to believe that his mother was involved in injecting him with snake venom. Dr. de Souza advised J.B. that he was expressing delusional beliefs that were interfering with his ability to make decisions regarding his 2006 POA.

[53] On July 25, 2017, Dr. de Souza spoke with Ms. S.K. by telephone. Ms. S.K. said that there had been a reconciliation and that she wanted J.B. to come to Israel. She said she wrote her letter of July 12, 2017 after speaking to J.B. by telephone. She advised Dr. de Souza that she could be contacted on her mobile phone. Dr. de Souza did not discuss the possibility of Ms. S.K. being the substitute decision-maker because Dr. de Souza believed that the 2006 POA remained valid and that J.B’s mother was the ranking substitute decision maker.

[54] Oddly, in my view, Dr. de Souza did not ask Ms. S.K. what her position was on continuing J.B.’s involuntary patient status. I shall return to the significance of Dr. de Souza not making this inquiry in the discussion section of these Reasons for Decision below.

[55] Dr. de Souza’s opinion was that J.B. was incapable of revoking the 2006 POA. She formed this opinion based on her observations of J.B. She, however, did not ever perform a proper assessment in accordance with the Substitute Decisions Act, 1992 as to J.B.'s capacity to revoke his 2006 POA. J.B. was not told an assessment of his capacity was being conducted in respect of the Revocation or that he had the right to refuse an assessment in the absence of a court order compelling the assessment.

[56] On July 25 and 26, 2017, counsel for Dr. de Souza wrote J.B.’s counsel and advised that Dr. de Souza’s clinical opinion was that J.B. did not possess the necessary capacity to revoke a power of attorney for personal care. J.B.’s counsel responded that the Revocation document was absent a judicial or tribunal order to the contrary the Revocation was valid, and that J.B. was not required to undergo a formal capacity assessment in order to revoke the 2006 POA.

[57] On July 27, 2017, Dr. de Souza believed that J.B. met the “Box B” Criteria for continued involuntary admission under s. 20(1.1) of the Mental Health Act. This required Dr. de Souza to obtain consent from J.B.’s substitute decision maker to continue his involuntary admission. On July 28, 2017, Dr. de Souza signed a Form 4 Certificate of Renewal extending J.B.’s involuntary admission until September 26, 2017. Dr. de Souza did not rely on the Box “A” grounds. J.B.’s mother consented to this continuation, acting pursuant to the 2006 POA.

[58] On July 28, 2017, pursuant to s. 39 of the Mental Health Act, J.B. commenced a review application before the Consent and Capacity Board of the continuation of his involuntary patient status. By letter dated August 3, 2017, J.B.’s counsel advised Dr. de Souza’s counsel that J.B. would be bringing a preliminary motion for an order revoking his involuntary status on the basis that a mandatory condition for detaining him had not been fulfilled, i.e. s. 20(1) of the Mental Health Act required the consent of J.B’s ranking substitute decision maker. It was J.B.’s position that Ms. S.K. was his substitute decision-maker and that her consent to his detention and treatment in a psychiatric facility had not been obtained. It was J.B.’s position that the 2006 POA had been revoked and the Board did not have the jurisdiction to determine whether J.B. had the capacity to revoke the 2006 POA.

[59] On August 4, 14 and 15, 2017, the Board heard the review application. Dr. de Souza, who was represented by counsel, testified that, in her opinion, J.B. lacked capacity to revoke his 2006 POA, both at the time when he had signed the revocation and on the date of the hearing before the Board. Dr. de Souza testified that J.B. was unable to identify an individual who actually has his welfare and the genuine concern for his welfare, at heart. She testified that it was her clinical opinion that J.B. lacked capacity to sign the Revocation. She believed that J.B.’s mother remained his substitute decision maker. Dr. de Souza testified:

To be quite honest this has never happened to me, I have never had to deal with this situation where a patient has revoked their power of attorney after they’ve been found incapable, while they’re in a constant observation unit. I found out about the document after the fact. I had great concerns that this happened and I had concerns as I see J.B. as being unwell currently and not capable and in a vulnerable position.

[60] J.B., who was represented by counsel, attended the hearing and gave evidence.

[61] The Board granted J.B.’s application. The Board held that J.B.’s Revocation must be taken as valid, and his legal substitute decision maker was Ms. S.K.. Given that Dr. de Souza had obtained consent for J.B.’s continued admission from his mother and not from Ms. S.K., the Board concluded that the consent requirement in s. 20(1.1) of the Mental Health Act had not been met. It rescinded Dr. de Souza’s certificate of continuation based on two main findings: (a) the Board held that it had no jurisdiction to consider a patient’s capacity to make or revoke a power of attorney in the context of an involuntary admission review under s. 39 of the Mental Health Act; and (b) the Board held that Dr. de Souza did not have “reasonable grounds” under the Substitutes Decision Act, 1992 to doubt J.B.’s capacity to revoke his 2006 POA in the absence of a formal assessment and court order under the Act.

[62] The Board found as a fact that while Dr. de Souza testified that it was her opinion that J.B. was incapable of revoking his 2006 POA, none of the clinical notes reflected that an assessment in accordance with the Substitute Decisions Act, 1992 had been conducted. The Board found as a fact that the clinical notes did not reflect a formal finding of JB's incapacity to revoke the 2006 POA. The Board reasoned that given that there was no formal assessment and no formal finding of incapacity; therefore, the presumption of J.B. having the capacity to revoke applied. The Board stated in its Reasons for Decision:

Notwithstanding the application of s. 2(3) [of the Substitute Decisions Act, 1992 (“SDA”)] to the facts of this case, the panel was not convinced that Dr. de Souza's opinion regarding JB's capacity to revoke the POA met the threshold required to rebut the presumption of capacity and it was not persuaded that Dr. de Souza was entitled to simply disregard the validity of the POA without a court order confirming that JB was incapable in that regard. As noted above, there was no formal finding of incapacity made by an assessor in respect of JB's capacity to revoke the POA in accordance with s.78 of the SDA. JB should not bear the onus of establishing his capacity before the Revocation is considered legally valid. That is not the requirement set out in the SDA. The abrogation of a person's right to self-determination should not be lightly interfered with even if there is good reason to believe that there is substance to the allegation of incapacity. Dr. de Souza may have had good reason to believe there was substance to her opinion of JB's incapacity, but she was not entitled to unilaterally disregard the Revocation and determine that it was invalid at law without something more substantial to support her own allegation.

[Dr. de Souza’s counsel] argued that requiring a physician to rely upon a patient's POA (or the revocation of a POA) when it is their opinion that the patient was incapable of granting or revoking a POA would effectively force physicians to breach their professional obligation to ascertain the correct SDM. He submitted that Dr. de Souza's decision as to the identity of the SDM must be left to stand, even if the Board had no jurisdiction to determine the capacity of JB. He submitted that were the Board to rule otherwise, that would have concerning implications and would, in effect, be saying that any POA or revocation must be taken at face value so long as it is the most recent document signed, regardless of how serious and well-founded a physician's concerns may be about that patient's capacity to sign that document. The panel found Dr. de Souza's argument in this regard compelling and accepted that this was a valid concern.

However, the panel also considered the risk to vulnerable patients if doctors were entitled to simply assert "reasonable grounds" to believe that their patient is incapable to justify their wholesale disregard of a written POA or revocation. The implications of this are particularly troubling given there are no procedural safeguards in place to protect the patient in those circumstances. There is no requirement that a patient be given any notice whatsoever of the doctor's "belief' that they are incapable, whether or not the grounds for that belief are "reasonable," and there is no requirement that a patient be given rights advice about the impact that this "belief' might have on his or her fundamental right to self-determination. The parties did not provide case law to assist the panel in determining what constitutes "reasonable grounds" under s. 2(3) of the Substitute Decisions Act, 1992, but, in circumstances such as this where there are no other procedural safeguards in place for a vulnerable individual involuntarily detained in hospital, the panel found that something more than the treating physician's own opinion is required to constitute such "reasonable grounds" under s.2(3). A formal assessment of the person's capacity would need to be completed and a determination made by the court pursuant to the provisions of the SDA. This is a necessary procedural safeguard to ensure that the rights of vulnerable individuals like JB are respected. Absent a formal assessment and order of the court, the panel found that the presumption of JB's capacity to revoke the POA applies.

The panel also decided that it did not have implied authority to make a determination in respect of JB's capacity to revoke the POA since it remained able to fulfil its statutory mandate. In this case, the panel decided that Dr. de Souza had not made a formal finding that JB was incapable of revoking the POA nor had she complied with the requirements for an assessment under s. 78 of the SDA. Accordingly, there was no finding of incapacity to revoke the POA that could be subject to review, even if the Board did have jurisdiction to do so. In no circumstance does the Board have the jurisdiction to make a finding of incapacity. The Board only has jurisdiction to review certain findings of incapacity made in accordance with the applicable legislation and subject to the requisite procedural protections.

Even if Dr. de Souza's opinion of J.B.'s incapacity to revoke the POA was sufficient to be considered a finding of incapacity subject to review, which the panel in this case determined it was not, the SDA specifies the procedure available to anyone with reasonable grounds to believe the person is incapable of making or revoking a POA. An attorney under a POA, or any other person with leave of the Court, may apply to the Court for directions on any question arising from a POA under s. 68 of the SDA. J.B.'s parents also had the option to apply to court for Guardianship of J.B. pursuant to s.55 of the SDA if they believed he was incapable of revoking his POA.

Finally, the panel noted that if the doctor or J.B.'s parents were not satisfied with TB's wife in her role as J.B.'s SDM under the HCCA, there were avenues to address those concerns quickly and efficiently without resorting to the courts. For example, the parents could commence a Form G application [sections 21 and 39 of the Health Care Consent Act, 1996] with the Board to be appointed as JB's representatives. Alternatively, if Dr. de Souza believed that J.B.'s wife was not making decisions in accordance with the requirements for substitute consent under the MHA, she could initiate a Form G application asking the Board to make that determination.

Given there was no formal assessment completed and no formal finding made that J.B. was incapable of revoking the POA and given there was no court order confirming a finding of incapacity to revoke the POA, Dr. de Souza and the panel were both required to rely upon the presumption of capacity and proceed on the basis that J.B. was capable of revoking the POA.

Accordingly, the panel unanimously decided that J.B.'s wife was the SDM for the purposes of s.20(1.1)(e) of the MHA, and that her consent was not obtained. Therefore, the prerequisites for J.B.'s admission as an involuntary patient were not met at the time of the hearing of the application.

[63] The Board rescinded the Certificate of Renewal, and on August 15, 2017, J.B. was discharged from the hospital.

[64] On September 1, 2017, Dr. de Souza delivered a Notice of Appeal from the Decision of the Board.

[65] J.B. is no longer an involuntary patient at Oakville Trafalgar Memorial and Dr. de Souza is no longer his attending physician.

D. Discussion

1. Is the Appeal Moot?

[66] A case is said to be moot when the dispute between the parties has been resolved, has vanished or faded away. With some exceptions, a court will not hear or decide a case that is moot.[^25] The general rule of mootness is that courts will not decide hypothetical or academic questions and will decline to hear a case where the outcome has no practical effect.

[67] There are exceptions to the mootness rule, and the court has a jurisdiction to hear a moot proceeding in the interests of justice.[^26] Where there is no live dispute between the parties but there is the prospect that the contentious legal issue that prompted the proceedings will repeat itself and remain unresolved and evasive of review, then the court may hear the matter notwithstanding its mootness. In circumstances where the court is in a position to make a fully informed decision and it is strongly in the public interest for the court to express an opinion on a legal issue that is uncertain but likely to recur, a court may decide to hear a case that is moot.[^27]

[68] While no single factor is dispositive, important factors that govern the court’s discretion to hear a moot matter are: (1) whether, despite the absence of a live controversy, the matter will be fully argued and the court will be able to make a fully informed decision; (2) whether the influence of the judgment on the disputed issue will have practical value in other cases; (3) whether the issue in the case is a matter of public importance of which a resolution would be in the public interest; and (4) whether, the court’s activism in deciding the issue is appropriate having regard to its role and the role of the other branches of government.[^28]

[69] In my opinion, the immediate case, J.B. is no longer an involuntary patient, and the disputed issue, which concerns the validity of the Form 4 certificate of renewal is moot.[^29]

[70] It is nevertheless in the interests of justice to hear the appeal. The Board acknowledged in its Reasons for Decision that Dr. de Souza’s concerns about her professional obligations and about the operation of the Mental Health Act, the Substitute Decisions Act, 1992, and the Health Care Consent Act, 1996 were valid and compelling concerns. The Board’s decision has significant consequences to operation of the Mental Health Act and to the distribution of jurisdiction between the Board and the courts. These are matters of public interest and importance worthy of appellate review. The issues were fully and very capability argued by J.B.’s and Dr. de Souza’s counsel. I, therefore, shall hear the appeal notwithstanding its mootness.

2. Standard of Appellate Review

[71] Pursuant to s. 48 (1) of the Mental Health Act, a party to a proceeding before the Consent and Capacity Board may appeal the Board’s decision or order to the Superior Court of Justice on a question of law or fact or both. Pursuant to s. 48 (3) of the Mental Health Act, s. 80 of the Health Care Consent Act, 1996 applies to the appeal. Section 80 (10) of the Health Care Consent Act, 1996 provides as follows:

80. (10) On the appeal, the court may,

(a) exercise all the powers of the Board;

(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;

(c) refer the matter back to the Board, with directions, for rehearing in whole or in part.

[72] The case law establishes that on an appeal, the decision of the Board applying the law to the evidence is subject to review on a standard of reasonableness;[^30] however, the Board’s interpretation of the law is reviewable on a standard of correctness.[^31] In Starson v. Swayze,[^32] Chief Justice McLachlin (in dissent, but not on this point) stated at para. 5:

5. I agree with my colleague Major J. that the Board's interpretation of the law is reviewable on a standard of correctness. On the application of the law to the facts, I agree that the Board's decision is subject to review for reasonableness. The legislature assigned to the Board the task of hearing the witnesses and assessing evidence. Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts. This means that the Board's conclusion must be upheld provided it was among the range of conclusions that could reasonably have been reached on the law and evidence. As Binnie J. states in R. v. Owen, [2003] 1 S.C.R. 779, 2003 SCC 33 (released concurrently), at para. 33: "If the Board's decision is such that it could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the applicable law, the court should in general decline to intervene." The fact that the reviewing court would have come to a different conclusion does not suffice to set aside the Board's conclusion.

[73] Thus, an appellate court reviews the findings of fact of the Board and the Board’s application of the law to the facts to the standard of reasonableness. To be reasonable, a decision must withstand a probing examination. It must satisfy the requirements for justification, transparency, and intelligibility within the decision-making process.[^33] A reasonable decision must fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.[^34]

[74] The reasonableness standard shows deference to the relative expertise of the Board members who are likely to have acquired experience over the course of their appointments in dealing with assessments of capacity and are uniquely positioned to hear the viva voce evidence of the parties. If the Board’s decision, however, is unreasonable, then it should be set aside. An unreasonable decision is one that is not supported by any reasons that can stand up to a somewhat probing examination. If the Board’s decision is within the range of conclusions that could reasonably have been reached on the law and evidence, the decision should be affirmed.

[75] Decisions of the Board on questions of law are reviewed on a standard of correctness.[^35]

[76] In the immediate case, the Board’s decision raised two questions of law; namely: (1) the Board interpreted the “reasonable grounds” threshold in s. 2(3) of the Substitute Decisions Act, 1992 as requiring both a formal capacity assessment and a court order; and (2) the Board decided that s. 39 of the Mental Health Act does not provide it with jurisdiction to consider whether a patient has capacity to give or revoke a power of attorney because the Substitute Decisions Act, 1992 confers the courts with exclusive jurisdiction over this matter.

[77] In deciding these questions of law, the Board interpreted legislation that has application inside and outside the Board’s specialized regulatory domain and the Board purported to delineate the bounds of its own statutory jurisdiction in relation to that of the courts. The Board considered these legal questions to have profound implications generally and beyond J.B.’s case.

[78] I conclude that the standard of review for the immediate review is the correctness standard.

3. Did the Board Make a Reviewable Error?

[79] J.B. pointed out that in several decisions, the Board has addressed its jurisdiction to consider a patient’s capacity to revoke a power of attorney. The Board has consistently held that this jurisdiction is exclusively the court’s jurisdiction.[^36] In these cases, the Board has concluded that as a creature of statute, it has no jurisdiction other than that which is expressly conferred by legislation, and since there is no provision in any of the relevant statutes that grants the Board jurisdiction to review powers of attorney, the Board concluded that it does not have this jurisdiction. The Board concluded that there is a complete code with procedural safeguards for all concerned in the Substitute Decisions Act, 1992 to address questions about a power of attorney and that a person who wants to challenge the revocation of a power of attorney can only do so through the courts.

[80] I agree with these decisions by the Board. Further, applying the correctness standard to the immediate case, I see no error in the Board’s decision or in its Reasons for Decision. I agree with its reasoning it its entirety. These conclusions are enough to dispose of the appeal.

[81] By way of augmentation to the Board’s reasoning, Dr. de Souza’s essential argument is that both she and the Board must have the ability or jurisdiction to make an assessment of whether or not the grantee of a power of attorney that designates a substitute decision maker had the legal capacity to make or to revoke the power of attorney, notwithstanding that this ability or jurisdiction is assigned to the court under the Substitute Decisions Act, 1992.

[82] In other words, Dr. de Souza’s main argument is that there is of necessity a jurisdiction arising from the Mental Health Act for the Board to decide whether a POA designating a substitute decision maker is valid and binding. Dr. de Souza argued that although this jurisdiction is not expressly assigned to the Consent and Capacity Board under the Mental Health Act or the Health Care Consent Act, 1996, as a matter of statutory interpretation, it is necessity that the Board have this jurisdiction to perform its function.

[83] The Board was correct in rejecting this argument. In interpreting the three statutes, it is important not to conflate the physician’s concerns with the involuntary patient’s rights. Indeed, because of the policy concerns the Board identified about the risk to vulnerable patients if physicians were entitled to make their own assessment of whether there are reasonable grounds to doubt the patient’s capacity to make or revoke a power of attorney, the Board was correct in concluding that while a physician must inquire and determine who is the ranking substitute decision maker, the physician should take at face value any POA or any revocation of a POA.

[84] Dr. de Souza’s concern was that she needed the consent of the ranking alternative decision maker to endorse her treatment decision that J.B. should be admitted and detained as an involuntary patient. However, in the immediate case and having regard to what is necessary for the operation of the Mental Health Act, there was no necessity for Dr. de Souza to second guess the presumptions that J.B. had the capacity to make and to revoke the 2006 POA. In the circumstances of the immediate case, there was no need to encroach on the court’s jurisdiction under the Substitute Decisions Act.

[85] Dr. de Souza should have asked Ms. S.K., who was the ranking substitute decision maker, whether she consented to the continuation of J.B.’s involuntary patient status.

[86] If Ms. S.K. consented, then the Board’s review of J.B.’s involuntary patient status would have proceeded in the normal course.

[87] If Ms. S.K. refused her consent, then in terms of what was necessary for the operation of the Mental Health Act, what was required - and what was already available to Dr. de Souza with adequate procedural protections to all concerned – was a Form G application under s.39 of the Health Care Consent Act.

[88] Dr. de Souza’s decision to second guess the results of her inquiry into who was the ranking substitute decision maker is a recipe for a dysfunctional operation of the three statues.

[89] Visualize, without conducting a proper assessment under the Substitute Decisions Act, Dr. de Souza doubted J.B.’s capacity to revoke the 2006 POA because J.B. was manifesting symptoms of a mental health condition that pre-existed the 2006 POA. But given the twenty-year duration of J.B.’s bipolar diagnosis, Dr. de Souza might also have reason to doubt J.B.’s capacity when he signed the 2006 POA designating his parents as substitute decision makers. Had Dr. de Souza doubted J.B.’s capacity both to make and to revoke the 2006 POA, then by virtue of her status as his spouse, Ms. S.K. would be the ranking decision maker and the analysis would come full circle with Dr. de Souza having the remedy of a Form G application if Ms. S.K. refused to consent to the continuance of J.B.’s status as an involuntary patient.

[90] Keeping her eye on the target, there was no need for Dr. de Souza to second guess the 2006 POA or its revocation. Thus, her arguments about the urgency of the matter and the delay of court proceedings under the Substitute Decisions Act, 1996 are of no moment. There was no practical necessity to interpret any of the Acts in the way proposed by Dr. de Souza.

[91] While it is perhaps more a matter governed by the reasonableness standard than by the correctness standard, I also see no error in how the Board decided that if Dr. de Souza had the right to make her own assessment of J.B.’s capacity to revoke the 2006 POA that she had not properly made that assessment.

[92] In this regard, it should be recalled that a person may have legal capacity notwithstanding that he or she is suffering a mental illness, and that there are different tests of legal capacity depending on what is at issue. In the case at bar, J.B. would have capacity to revoke the 2006 POA if he had the ability to understand that Ms. S.K. had a genuine concern for his welfare and that he needed her to make decisions for him. On the facts of this case, it was reasonable and correct for the Board to conclude that Dr. de Souza's opinion regarding JB's capacity to revoke the POA did not meet the threshold required to rebut the presumption of his having the capacity.

E. Conclusion

[93] For the above reasons, the appeal is dismissed.

Perell, J.

Released: June 28, 2018

COURT FILE NO.: CV-17-581998

DATE: 20180628

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

J.B.

Respondent in appeal

– and –

Dr. Darina de Souza

Appellant

REASONS FOR DECISION

PERELL J.

Released: June 28, 2018

[^1]: S.O. 1992, c. 30. [^2]: S.O. 1996, c. 2, Sched. A. [^3]: R.S.O. 1990, c. M.7. [^4]: Neto v. Klukach, [2004] O.J. No. 394 at para. 12 (S.C.J.). [^5]: Neto v. Klukach, [2004] O.J. No. 394 at para. 11 (S.C.J.); Bartoszek v. Ontario (Consent and Capacity Board), [2002] O.J. No. 3800 at para. 20 (S.C.J.). [^6]: 2003 SCC 32 at para. 68. [^7]: Gligorevic v. McMaster, 2012 ONCA 115 at para. 8. [^8]: Starson v. Swayze, 2003 SCC 32 at para. 77. [^9]: Substitute Decisions Act, 1992, s. 46. [^10]: Substitute Decisions Act, 1992¸ s. 1 (1). [^11]: See: Re Koch (1997), 1997 12138 (ON SC), 33 O.R. (3d) 485 (Gen. Div.); Knox v. Burton, [2004] O.J. No. 1267 (S.C.J.); Starson v. Swayze, [1999] O.J. No. 4483 (S.C.J.). Quinn, J. made the point memorably in Re Koch (1997), 33 O.R. (3d) 485 (Gen. Div.) where he stated at p. 512: “The right to be foolish is an incident of living in a free and democratic society.” [^12]: [2004] O.J. No. 1267 (S.C.J.). [^13]: [2003] O.J. No. 2154 (S.C.J.). [^14]: Substitute Decisions Act, 1992, s. 2(1). [^15]: Substitute Decisions Act, 1992, s. 2 (2). [^16]: Substitute Decisions Act, 1992, s. 53 (1)(d). A person is capable of revoking a power of attorney for personal care, if he or she is capable of giving one: Substitute Decisions Act, 1992, s. 47 (3). A revocation shall be in writing and executed in the same way as the original power of attorney: Substitute Decisions Act, 1992, s. 53 (2). [^17]: Substitute Decisions Act, 1992, s. 53 (1)(c). [^18]: Substitute Decisions Act, 1992, s. 52. [^19]: Substitute Decisions Act, 1992, ss. 46 (5), 53 (1)(a). [^20]: Substitute Decisions Act, 1992, s. 53 (1)(b), 55; Wright v. Wright, [2000] O.J. No. 3858 (S.C.J.). [^21]: Substitute Decisions Act, 1992, s. 79; Fenn v. Strongman, [2006] O.J. No. 1095 (S.C.J.). In Butler v. Brown, [2004] O.J. No. 1481 (S.C.J.). [^22]: Neill v. Pellolio, 2001 6452 (ON CA), [2001] O.J. No. 4639 (C.A.). [^23]: Substitute Decisions Act, 1992, s. 1 (1). [^24]: O. Reg. 460/05, s. 2. [^25]: Schaeffer v. Ontario (Provincial Police), 2011 ONCA 716 at para. 44, var’d (sub nom. Wood v. Schaeffer) 2013 SCC 71; Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819 (2008), 2008 ONCA 265, 90 O.R. (3d) 451 (C.A.); Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 3 at para. 17 [^26]: Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342; Doherty v. Horowitz, 2016 ONSC 4457; Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, (2008), 2008 ONCA 265, 90 O.R. (3d) 451 (C.A.); Neto v. Klukach, [2004] O.J. No. 394 (S.C.J.). [^27]: Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342; New Brunswick (Minister of Health and Community Services v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46 (S.C.C.); Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 5726 (ON CA), 49 O.R. (3d) 566 (C.A.). [^28]: Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342; Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7; Fraser v. Canada (Treasury Board, Department of National Revenue), 1985 14 (SCC), [1985] 2 S.C.R. 455; J.H. v. Alberta Health Services, 2017 ABQB 477; R. v. Jackson, 2015 ONCA 832; Ontario Provincial Police Commissioner v. Mosher, 2015 ONCA 722; Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197; Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 5726 (ON CA), 49 O.R. (3d) 566 (C.A.). [^29]: Beckford v. Dr. Brook, 2016 ONSC 1549; Masih v. Siekierski, 2015 ONSC 2877; E.S. v. Joannou, 2015 ONSC 1316; Retief v. Dr. Ganjavi and Cronje, 2013 ONSC 2654; Nasr v. Wong, [2007] O.J. No. 5579 (S.C.J.); R.M.S. v. Wainberg, [1997] O.J. No. 4933 (Gen. Div.); Caparelli v. Sirman, [1988] O.J. No. 951 (Dist. Ct.). [^30]: Giecewicz v. Hastings, 2007 ONCA 890, leave to appeal refused [2008] S.C.C.A. No. 97; M.M. v. De Souza, 2016 ONCA 155. [^31]: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 45- 49; Duarte v. Kingston General Hospital, [2000] O.J. No. 3238 at paras. 10-11 (S.C.J.); I.T. v. L. L. (1999), 1999 19918 (ON CA), 46 O.R. (3d) 284 at pp. 290-292 (C.A.); Hajgato v. London Health Association (1982), 36 O.R. (2d) 669 (H.C.J), aff’d (1984) 1983 1687 (ON CA), 44 O.R. (2d) 264 (C.A.). [^32]: 2003 SCC 32. [^33]: Dunsmuir v. New Brunswick, 2008 SCC 9 at para 47; Giecewicz v. Hastings, 2007 ONCA 890 at para 13; Jemmison v. Ohene-Darkoh 2016 ONSC 3549 at para 10; P.(D.) v. Betlen, 2015 ONSC 4442 at para. 12. [^34]: Dunsmuir v. New Brunswick, 2008 SCC 9 at para 47. [^35]: Starson v. Swayze, 2003 SCC 32 at paras. 5, 10; Salem v. Kantor, 2016 ONSC 7130 at paras. 9-16; Doherty v. Horowitz 2016 ONSC 4457 at paras. 27-30; R.J. v. Zalan, 2016 ONSC 2337 at para. 89; Gajewski v. Wilkie, 2014 ONCA 897 at para. 33; Puri v. Papatheodorou 2013 ONSC 2537 at paras. 54-58. [^36]: J.G. (Re), 2012 48963 (Ont. CCB); D.D. (Re), 2011 20992 (Ont. CCB); R.V. (Re), 2003 25699 (Ont. CCB)