REASONS ON APPEAL

Court File and Parties

Court File No.: CV-18-165 Ontario Superior Court of Justice

Appellant: TANYA NIXON, the officer in charge, NORTH BAY REGIONAL HEALTH CENTRE Counsel: Paul E. Trenker, for the Appellant

Respondents: PETER ARMSTRONG, a patient at WAYPOINT CENTRE FOR MENTAL HEALTH CARE – PROVINCIAL PROGRAMS, DR. N. CORRIVEAU and CAROL LAMBIE Counsel: James P. Thomson, for the Respondents Dr. N. Corriveau and Carol Lambie Counsel: Mercedes Perez, for the Respondent Peter Armstrong

Heard: February 28, 2019

[1] The Appellant, Tanya Nixon, Officer in Charge of the North Bay Regional Health Centre [“North Bay”] appeals from a Decision of the Consent and Capacity Board [“the Board”], dated the 26th day of September 2018, wherein the Respondent Peter Armstrong was ordered to be transferred to North Bay from the Waypoint Centre for Mental Health [“Waypoint”], pursuant to section 41.1 of the Mental Health Act.

[2] Mr. Armstrong, an involuntary civil patient, came before the Board for a Hearing pursuant to the provisions of section 39 of the Mental Health Act, which allows civil patients to challenge their involuntary detention status. Mr. Armstrong, his detention being found to be necessarily continued by the Board, then sought a transfer pursuant to Section 41.1(2) of the Mental Health Act, which allows civil patients to seek certain ancillary Orders, including transfers to other psychiatric facilities, should their civil detention be continued. Mr. Armstrong sought transfer into North Bay’s forensic program.

[3] The Appellant contends that the Board erred in making the order to transfer and seeks that the Decision of the Board be reversed, and this Court should decline to order the transfer. In the alternative, the Appellant seeks that this Court quash the Decision and remit the matter back to the Board, with Directions that it consider section 41.1(3) 2. of the Mental Health Act in relation to its determination.

[4] The basis of the appeal is that North Bay considers that in order to manage Mr. Armstrong safely he would have to be housed on a forensic unit, while North Bay has a policy of not placing civilly committed patients in forensic beds. The evidence of North Bay, which it submits was uncontradicted by any other evidence, was that North Bay’s policy did not allow for the admission of civil patients into its forensic program. Notwithstanding that Mr. Armstrong was a civil patient, and that the Board derived its jurisdiction to order transfers pursuant to provisions of the Mental Health Act, that were referably exclusive to civil patients, the Board ordered Mr. Armstrong into North Bay’s forensic program, determining that “the Mental Health Act order provisions do not exclude transfer to a forensic setting and furthermore Armstrong’s situation was an exceptional circumstance”. The Board, in its Reasons, had determined that Mr. Armstrong could not be appropriately managed and cared for in North Bay’s civil programs.

[5] The Appellant submits that in its Reasons, the Board made no reference to section 41.1(3) of the Mental Health Act, notwithstanding that North Bay did not place civil patients in forensic programs, which provides that one of the factors to be considered in the transfer request is as follows:

41.1(3) Factors to consider. – In making an order under this section, the Board shall take into account the following factors: 1. 2. the ability of the psychiatric facility or facilities to manage and provide care for the patient and others.

[6] The Appellant submits that the present Appeal raises the following issues:

(a) The Court’s jurisdiction on Appeal, its powers on Appeal, and the standard of review applicable to the Board. (b) Did the Board err in concluding that Section 41.1(2) of the Mental Health Act provided it with jurisdiction to order a civil patient into a forensic program? (c) Given the evidence before the Board that North Bay did not accept civil patients into its forensic program, did the Board err in failing to consider the provisions of Section 41.1(3) 2. “the ability of the psychiatric facility or facilities to manage and provide care for the patient and others” in reaching its Decision?

[7] The Respondents submit that the following issues are also raised in this appeal:

(d) The designation of psychiatric facilities and the statutory test for transfer. (e) Whether the Board’s Decision ordering Mr. Armstrong’s transfer to North Bay was reasonable in the circumstances?

[8] With respect to issue (a), this Court’s power on appeal is set out in section 80 of the Health Care Consent Act, 1996 (“HCCA”) which provides:

(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. (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.

[9] In Starson v. Swayze, 2003 SCC 32, the Supreme Court of Canada considered the standard of review applicable to decisions of the Board. That case dealt with a determination of an individual’s capacity with respect to treatment under s. 4 of the HCCA. This case deals with a determination of an individual’s suitability for transfer from one psychiatric facility to another. The Supreme Court has ruled that the determination of an individual’s capacity with respect to a treatment is a question of mixed fact and law and that the Board must apply the evidence before it to the statutory test for capacity set out in s. 4 of the HCCA. I am of the view here that the determination of an individual’s suitability for transfer is also a question of mixed fact and law and that the Board must apply the evidence before it to the statutory test set out in s. 41.1 of the MHA.

[10] The appropriate standard of review in the absence of any error of law is reasonableness. An error of law is reviewable on the correctness standard. Although in Starson v. Swayze the Chief Justice and two other Justices dissented, on the issue of the standard of review the panel of nine Justices was unanimous. There are only two standards of review of an administrative tribunal’s decision: correctness and reasonableness. Reasonableness is a deferential standard animated by the principle that certain questions that come before administrative tribunals do not lend themselves to one particular, specific result. Instead, they may give rise to a number of possible reasonable conclusions. Deference requires respectful attention, but not submission, to the reasons offered or which could be offered in support of a decision. A Court will often be forced to accept that a decision is reasonable even if it is unlikely that the reviewing Court would have reasoned or decided as the tribunal did at first instance.

[11] Subsequent to its decision in Dunsmuir v. New Brunswick [2008] SCC 9, the Supreme Court has ruled that the reasons for a decision need not include all the arguments or details a reviewing Court might have preferred. “…Even if the reasons in fact do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them ”. (emphasis in the original) Reasons need not be perfect or even comprehensive. The reviewing Court may look to the evidentiary record for the purpose of assessing the reasonableness of the outcome. If the reasons allow the reviewing Court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62.

[12] An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. The standard of reasonableness basically involves asking the following question: “After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?” Where as here the standard of review is reasonableness, a court must not interfere unless the Appellant has positively shown that the decision was unreasonable. Accordingly, this Court must look to see whether any reasons support the decision.

[13] A decision is unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. A decision may satisfy the reasonableness standard if it is supported by a tenable explanation, even if the explanation is not one which the reviewing court finds compelling. The reasons are taken as a whole: a reviewing court is not to seize upon one or more mistakes or elements of the decision which do not affect the decision as a whole; Law Society of New Brunswick v. Ryan, 2003 SCC 20.

[14] The Supreme Court has ruled that the Board is an expert tribunal and is uniquely positioned to hear the viva voce testimony of the parties. In Starson v. Swayze, the Supreme Court ruled that determinations of treatment capacity should generally be entrusted to the relative expertise of the Board. I am of the view here that the same is true of a determination of the suitability for transfer.

[15] With respect to issue (b), in December 2014 the Ontario Court of Appeal released its decision in P.S. v. Ontario, 2014 ONCA 900, a successful constitutional challenge to the Mental Health Act’s involuntary detention scheme as it applied to long-term detainees such as Mr. Armstrong (those detained for 6 months or more). In response to P.S. v. Ontario, the Ontario Legislature amended the Mental Health Act in 2015 to grant the Board broader remedial powers. The net effect of these amendments to the Mental Health Act is an increase in procedural and substantive safeguards for persons involuntarily detained for more than 9 months.

[16] The Mental Health Act gives the Board the authority to transfer an individual to another psychiatric facility having regard to the factors set out in s. 41.1(3) of the Mental Health Act, including the safety of the public. North Bay is designated under both Part XX.1 of the Criminal Code and Schedule 1 of the Mental Health Act, with no distinction drawn between the forensic and non-forensic programs. The legislative scheme clearly provides for that facility to accept either forensic or civilly committed patients. All of the facilities designated under the Criminal Code are also Schedule 1 facilities under the Mental Health Act. Any facility that is designated under both the Mental Health Act and the Criminal Code is expected to admit and manage both civilly committed and forensic patients.

[17] The legislative scheme now provides the Board with the jurisdiction that it lacked before the P.S. v. Ontario case, namely to “supervise the security level, privileges, therapy and treatment of long-term detainees and to craft orders that would ensure an appropriate balance between public protection and the protection of detainees’ liberty interests”. It would defeat the legislative intent if a Hospital could overcome it by adopting an internal policy. If the legislature had wished to make the consent of the facility a prerequisite to transfer, this could have been done, as was done in the case of s. 23 of the Mental Health Act and s. 672.62 of the Criminal Code.

[18] Further support for that interpretation is found in the case of R.N. which involved a long-term civilly committed patient at Waypoint who wanted to be transferred to Royal Ottawa Hospital, and that Hospital did not want to accept him. The Board ordered the transfer. In the matter of R.N., Reasons for Decision of the Board, July 12, 2018, that panel had to consider whether R.N. should be placed in Royal Ottawa Hospital’s secure Forensic Assessment Unit, secure Forensic Rehabilitation Unit or the general psychiatric unit. The panel did not consider that the general psychiatric unit was a realistic option for R.N. and concluded that he should be detained, at least initially, in the Forensic Assessment Unit.

[19] With respect to issue (c), the Appellant submits that while there existed evidence that Waypoint had a policy that allowed for the admission of a civil patient into its forensic program, the evidence, uncontradicted, was that North Bay’s policy precluded such a practice. It is suggested that, on the evidence before the Board, given its policy North Bay had no “ability to manage and provide care” for Mr. Armstrong and accordingly, the Board’s Decision does not meet the reasonableness standard. The Appellant argues that the Board failed to make reference to s. 41.1(3)2, namely “the ability of the psychiatric facility or facilities to manage and provide care for the patient and others”.

[20] This issue was addressed by the Board at pages 20 to 21 of its Amended Reasons for Decision. The Board noted that Mr. Armstrong had been successfully managed at North Bay for over two years and had obtained community privileges during that time. The Panel also referred to the evidence of Dr. Julian Gojer given at the Ontario Review Board hearing which led to his transfer to North Bay. The Panel found that Dr. Gojer, who was Mr. Armstrong’s attending psychiatrist at North Bay and familiar with him, is of the opinion that if Waypoint considered that Mr. Armstrong was ready for a transfer back to North Bay, North Bay would be able to provide for his and other persons’ care at that facility.

[21] With respect to issue (d), as indicated earlier, following P.S. v. Ontario, the Mental Health Act was amended. The Board now has authority to override discretionary Hospital decisions respecting transfer, security levels, privileges, leaves of absence, access to the community, and access to vocational and rehabilitative programming. To restate it succinctly, a designated Schedule 1 psychiatric facility, like North Bay, cannot opt out of the Mental Health Act detention and the Board’s review scheme by enacting an internal Hospital policy.

[22] With respect to issue (e), the three issues raised by the Appellant do not attract a de novo review on appeal. No true questions of jurisdiction or legal error are raised here. Instead, the ground of appeal raised is subject to a reasonableness standard of review. The question on appeal is whether the Board’s decision to order Mr. Armstrong’s transfer to the North Bay Hospital was reasonable on the evidence.

[23] In detailed and thorough reasons for its Decision, the Board carefully weighed the evidence against the applicable statutory criteria and exercised its discretion to order Mr. Armstrong transferred to the North Bay Hospital. In particular, the Board carefully considered the North Bay Hospital’s objection to accepting Mr. Armstrong as a transfer patient as well as its internal Hospital policy of not using designated “forensic” beds for “non-forensic” patients. In recognition of the North Bay Hospital’s concerns, the Board limited its transfer order to the North Bay Hospital as a facility, rather than to a specific unit noting that this would allow the North Bay Hospital to retain “authority to determine the specific unit that best addresses the safety to the public”. The Board explained its decision to order Mr. Armstrong’s transfer at length as follows:

“The panel acknowledged that it was North Bay’s policy not to place civil (MHA) patients in their forensic beds. The panel found however, this is an exceptional situation where one might consider deviating from policy, given PA was a former forensic patient there and had he been a forensic patient at this time, he would likely be subject to an ORB request from Waypoint for a return to North Bay. If he had been transferred to Waypoint maximum as an MHA patient, he would have been subjected to a repatriation agreement and returned to some unit at that facility given the Waypoint opinion that he was ready for such transfer.

PA cannot leave Waypoint due to his change in legal states. Ms. Waddell suggests that if the change in status had happened at North Bay, they would have turned him over to the police. The Board did not hear evidence on what authority they would have done so and what that would accomplish, given the revocation of the NCR finding and his current need for hospitalization. PA has not changed, aside from improvement particularly in his psychotic process, only his legal status has changed. We find this is an exceptional circumstance. Furthermore, this is an exchange of one maximum secure bed for a secure forensic bed.

The MHA was amended to provide for patients to make transfer requests as there was a chance of lingering in a more restrictive or geographical or inappropriate facility. It did not in it’s first introduction as a Form 9 or with the later more extensive section 41.1 orders applications for long term patients, exclude transfer to a forensic bed. We find a request for transfer with the intention that it may be to a forensic bed is contemplated by the legislation. The principle of cascading through the system is contemplated both under the Criminal Code and the MHA.

The panel found that the Mental Health Act orders provisions do not exclude transfer to a forensic setting and further that PA’s situation is an exceptional circumstance.

The panel considered the request for transfer in the context that North Bay has secure forensic beds that a civil patient such as PA could occupy and has the ability to have a patient cascade through the system at that facility to the community.”

[24] The Board also acknowledged that the transfer order might affect the North Bay Hospital’s ability to manage and provide care for Mr. Armstrong. In addition to considering the impact of the proposed transfer on the North Bay Hospital’s ability to manage and provide care for Mr. Armstrong and others, the Board also carefully considered all of the other statutory criteria for transfer.

[25] The Board’s reasons for decision conclude as follows: “The fact the next recommended step is back to the secure setting he came from and that setting does not have civil patients, as he now is, should not in this panel’s opinion be a bar to his transfer.”

[26] From my review on this appeal, the Board’s Decision to transfer Mr. Armstrong was reasonable. When the legislation is read as a whole, and the North Bay policy is considered in context, the Board’s conclusion fell within a range of reasonable outcomes. The Board’s Decision was entitled to deference. The Board’s reasons were detailed, intelligible and justified the conclusion.

[27] For all of these reasons, the appeal is therefore dismissed.

Released: March 21, 2019 The Honourable Mr. Justice David J. Nadeau