Court File and Parties

COURT FILE NO.: CV-19-79305 DATE: 2019/07/10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Dr. David Attwood, Appellant – and – Nico Euteneier, Respondent

COUNSEL: Marie-Pierre T. Pilon, for the Appellant Meaghan McMahon, for the Respondent

HEARD: June 25, 2019 at Ottawa

Reasons on Judicial Review

KERSHMAN, J.

Introduction

[1] The Appellant, Dr. Attwood appeals a decision of the Consent and Capacity Board (“CCB”) dated January 30, 2019 (with reasons of decision dated February 5, 2019) in which the CCB revoked the Community Treatment Order (“CTO”) dated November 29, 2018 issued by Dr. Attwood.

[2] Dr. Attwood brings his appeal against the determination that the Community Treatment Plan (“CTP”) requirements set out in the Mental Health Act and the Healthcare Consent Act were not met at the time of the hearing. He argues that the Board determined that the CTP was written in a way that rendered it overly broad, vague and inconsistent with Mr. Euteneier’s right to make autonomous treatment decisions.

Factual Background

[3] The factual background is set out in both the Appellant’s and Respondent’s factums. There does not seem to be any argument as to the facts.

Issues

[4] Both parties raised a number of issues. In the Court’s view the issue that has to be dealt with first is the question of mootness.

Issue: Is this Appeal Moot because a Second CTO has been Issued?

Respondent’s Position

[5] The Respondent submits that because the Appellant is treating the Respondent pursuant to a second CTO issued on March 5, 2019, that the CTO of January 30, 2019 which was rescinded by the Board and which is subject matter of this appeal no longer presents a live issue and as such, the Court should dismiss the appeal on the basis of that it is moot.

[6] The Respondent argues that the issue of mootness has been applied in the Ontario Court of Appeal to dismiss appeals from the Consent and Capacity Board: Roberts v. Wong, 2016 ONCA 540; K.M. v. Shammi, 2012 ONSC 1102; Nasr v. Wong, 2007 CarswellOnt 9612 (SCJ).

[7] The Respondent argues that this is not a case where the Court ought to exercise its discretion to hear a moot issue. It submits that there are no collateral consequences to either party if the Court decides this case on its merits because the Appellant has issued a new CTO for the Respondent.

[8] Furthermore, the Respondent argues that the issues raised by the Appellant are settled in the Board’s jurisprudence and this is not a case that requires the use of scarce judicial resources or for the Court to extend itself beyond its adjudicative functioning. It relies on the three factors set out in Borowski v. Canada (Attorney General), [1989] CarswellSask 241 (SCC - Paragraphs 15, 16, 17, 30-42).

[9] The Respondent submits that the balance tips in favour of dismissing the appeal as moot based on the factors set out in the Borowski case.

Appellant’s Position

[10] The Appellant argues that he knew that a new CTO was issued after the original CTO was rescinded on January 30, 2019. The new CTO was issued on March 5, 2019 has not been revoked.

[11] The Appellant argues that the patient has not filed a new application for review which is now into its approximately fourth month. The CTO has a life span of 6 months.

[12] The Appellant relies on the case of Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197 Paragraphs 36, 39, 41 and 42.

[13] The Appellant argues that the Court has the discretion to hear this matter even if it is moot and that it should because of its importance.

Analysis

[14] In the case of Mental Health Centre Penetanguishene v. Ontario 2010 ONCA 197 (“MHC”), Watt JA on behalf of the Court said the following at paras 35 and 36:

[35] The doctrine of mootness is one aspect of a general practice of courts to decline deciding a case that raises only a hypothetical or abstract question: see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353. This general principle applies when the court’s decision will not, in effect, resolve some controversy that affects or may affect the rights of the parties: Borowski at p. 353. Courts decline to decide cases in which their decision will have no practical effect on the rights of the parties. This essential ingredient, a lis inter partes, must exist at the commencement of the proceeding and persist when the court is assigned the task of reaching a decision: Borowski at p. 353.

[36] The courts enforce this general policy in moot cases. But the general rule is not unyielding. A court may exercise its discretion to depart from its policy or practice by considering two questions:

i. Has the tangible and concrete dispute disappeared, leaving only academic issues? ii. If the answer to the above question is “yes”, should the court exercise its discretion to hear the case?

The answer to the first question, whether a live controversy exists, determines the issue of mootness. The answer to the second question is only required where mootness has been established: Borowski at p. 353.

[15] In the present case, at the time that the Board rescinded on the CTO on January 30, 2019 there was a real live issue. However, once the new CTO was issued on March 5, 2019, the issue in question was no longer live. It now became a hypothetical or abstract question. In other words, the tangible, concrete dispute disappeared with the issuance of the new CTO on March 5, 2019 leaving an academic issue. Therefore, the Court finds the issue moot.

[16] While the Court in the MHC case said that even where a tangible and concrete issue had disappeared, a Court may exercise its discretion and still hear the case.

[17] As to exercising its discretion to decide the case in any event, the Court does not find that the adversarial relationship has survived at the end of this controversy.

[18] Furthermore, the principle of judicial economy must be considered. The Court does not find that this academic effort should attract scarce judicial resources.

[19] This Court finds that this is an academic debate which can occur elsewhere.

[20] Therefore, the Court finds that the motion is moot and furthermore declines to exercise its discretion to decide the matter.

[21] Therefore, the Court dismisses the appeal.

Costs

[22] Neither parties sought costs. Accordingly there will be no order as to costs.

[23] Order accordingly.

Mr. Justice Stanley Kershman Released: July 10, 2019