Court File and Parties

COURT FILE NO.: CV-18-0384-000 DATE: 2020-01-09 ONTARIO SUPERIOR COURT OF JUSTICE

AND IN THE MATTER OF an appeal from decision of the Consent and Capacity Board Pursuant to the Health Care Consent Act, S.O. 1996, chapter 2, schedule A, As amended

AND IN THE MATTER OF J.W. A patient at the THUNDER BAY REGIONAL HEALTH SCIENCES CENTRE THUNDER BAY, ONTARIO

B E T W E E N:

J.W. No-one appearing Appellant

• and -

Dr. Wadhwa J. Szabo, for the Respondent Respondent

HEARD: December 9, 2019, at Thunder Bay, Ontario Mr. Justice W. D. Newton

Decision On Appeal

Overview

[1] On July 25, 2018, the Consent and Capacity Board (the “Board”) confirmed Dr. Wadhwa’s finding that J.W. was incapable of consenting, or refusing to consent to treatment of her mental disorder with both oral and injectable antipsychotic medication.

[2] A Notice of Appeal was delivered on J.W.’s behalf on July 26, 2018. J.W. has not taken any steps to advance her appeal and was not in attendance in Court for her appeal.

[3] Dr. Wadhwa asks the Court to hear this appeal to ensure finality of this matter and allow treatment to continue, if necessary. Section 18(3)(d)(ii) of the Health Care Consent Act, 1996 S.O. 1996, c.2 (“HCCA”) provides that treatment must not begin “until the appeal of the Board’s decision has been finally disposed of.”

Appeal Procedure

[4] Section 80 of the HCCA sets out the procedure for appeals and the power of this Court on the appeal:

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.

Time for filing appellant’s factum

(5) Within 14 days after being served with the record and transcript, the appellant shall serve his or her factum on the other parties and shall file it, with proof of service, with the court.

Time for filing respondent’s factum

(6) Within 14 days after being served with the appellant’s factum, the respondent shall serve his or her factum on the other parties and shall file it, with proof of service, with the court.

Extension of time

(7) The court may extend the time for filing the notice of appeal, the appellant’s factum or the respondent’s factum, even after the time has expired.

Early date for appeal

(8) The court shall fix for the hearing of the appeal the earliest date that is compatible with its just disposition.

Appeal on the record, exception

(9) The court shall hear the appeal on the record, including the transcript, but may receive new or additional evidence as it considers just.

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.

[5] In the absence of J.W.’s attendance on this appeal after being paged and waiting for her to attend, and in consideration of the new evidence set out below, I elected to proceed with the appeal.

Motion for Fresh Evidence

[6] Dr. Wadhwa sought leave to adduce further evidence on this appeal – evidence of the steps the respondent has taken to fulfill its obligations and to assist the appellant in advancing the appeal. Leave was also sought to file a summary of the appellant’s attendances at the hospital emergency unit since the appeal was filed. I concluded that, in the interests of justice, it would be appropriate to receive this evidence to determine whether it was appropriate to proceed with the appeal in J.W.’s absence.

[7] The evidence indicated that J.W. had presented at emergency on at least seven occasions. When she presented on March 3, 2019, her treating physician was unable to proceed with treatment because of this outstanding appeal. The new evidence also sets out that the Board provided a record of proceeding and transcript of the oral evidence as required. Counsel for the respondent has attempted to contact J.W. at her last known address, but correspondence addressed to that address has been returned undelivered. Contact with J.W.’s former counsel has continued, but J.W.’s former counsel has had no further contact with J.W. As recently as November 4, 2019, counsel for the respondents sent correspondence to J.W. at her last known address indicating that the respondent intended to proceed with the appeal.

The Appeal

[8] Since the legislature has provided for an appeal of the Board’s decision to a court, appellate standards of review are to be applied. The standard of review for an error in law is correctness. Where the scope of statutory review includes questions of fact, the appellate standard of review is palpable and overriding error: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paragraph 37.

[9] In reaching the conclusion to confirm the doctor’s finding of incapacity, the Board heard testimony from the physician, J.W.’s mother, brother and J.W. Dr. Wadhwa testified that J.W. was able to articulate and understand the nature and treatment of the illness but denied that she was suffering from any illness and, as such, unable to appreciate the reasonably foreseeable consequences of decisions with respect to the proposed treatment. J.W.’s brother and mother testified about J.W.’s behaviour and J.W.’s belief that it was they, and not her, who suffered from the paranoia. J.W. testified and although she was articulate and responsive, her position was that it was others, and not her, who were paranoid. She described most observations of other health care providers as false.

[10] A careful review of the evidence before the board discloses evidence to support the Board’s conclusion and, accordingly, I discern no palpable and overriding error.

[11] Therefore, this appeal is denied.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: January 9, 2020