Court File and Parties

COURT FILE NO.: CV-18-00601961-0000

DATE: 20201026

ONTARIO

SUPERIOR COURT OF JUSTICE

AND IN THE MATTER OF an appeal from a 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 ROALD ALLEN a patient at ST. MICHAEL’S HOSPITAL, TORONTO, ONTARIO

BETWEEN:

ROALD ALLEN Appellant

– and –

DR. SHELLEY BROOK Respondent

Counsel: Ken Berger, for the Appellant Nada Nicola-Howorth for the Respondent Kendra A. Naidoo and Kathleen B. MacDougall, for the Intervenor, Dr. Jason Joannou

HEARD: July 31, 2020

Reasons for Judgment

Papageorgiou J.

[1] Mr. Roald Allen (“RA”) brings this appeal to set aside a decision of the Consent and Capacity Board (“the Board”) dated June 14, 2018, (the “Board Decision”) confirming him as incapable of providing consent to antipsychotic medication, mood stabilizers, anti-hypertensive medication, diabetes medication, and ancillary treatment for side-effects and anxiety (the “Proposed Treatments”).

[2] When the Board made its original decision, Dr. Brook was RA’s treating physician and testified before the Board. Dr. Brook is no longer RA’s treating physician and has no clinical relationship with him. RA’s current treating physician is Dr. Jason Joannou. On consent, Dr. Joannou was granted leave to intervene in this matter on June 30, 2020 (hereinafter referred to as “the Intervenor”).

[3] Section 80 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A (“HCCA”) provides as follows:

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.

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

(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.

[4] Although he initially appealed both the finding that he should be held on an involuntary basis and the finding that he was incapable of consenting to treatment, RA only argued the issue of his capacity to consent to treatment and withdrew the appeal with respect to his involuntary status. Counsel advised that depending upon the outcome of this appeal, he would consider future proceedings with respect to RA’s involuntary status.

[5] For the reasons that follow, pursuant to section 80(10)(c) of the HCCA, I am setting aside the Board Decision and referring the issue of RA’s capacity to consent to treatment back for a rehearing.

[6] In arriving at this decision, I have considered the following legal and factual issues:

a. What is the test for capacity under the Health Care Consent Act?

b. What was the basis for the Board’s decision?

c. What are the grounds of appeal?

d. What is the standard of review?

e. Did the Board err in law or make a palpable and over-riding mixed error of law and fact by failing to take expressly into account Charter values in finding that the appellant lacked capacity to consent to treatment?

f. Was there sufficient corroboration for the Board’s finding that the appellant lacked capacity?

The Test for Capacity

[7] The test for capacity is set out in section 4 of the HCCA:

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 a decision.

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

[8] In Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, (“Starson”), the Court explained that s. 4 has two essential criteria:

a. The person must be able to understand the information which is relevant to making a treatment decision; and

b. The person must have the ability to recognize the reasonably foreseeable consequences of his or her treatment decision.

[9] Major J., speaking for the majority, at para. 80 stated:

In practice, the determination of capacity should begin with an inquiry into the patient’s actual appreciation of the parameters of the decision being made: 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. If the patient shows an appreciation of these parameters—regardless of whether he weighs or values the information differently than the attending physician and disagrees with the treatment recommendation—he has the ability to appreciate the decision he makes.

[10] Note, the test does not require that the person actually appreciate the reasonable consequences of a treatment decision. What is required is the ability of the person to appreciate the reasonable consequences of a treatment decision: Anten v. Bhalerao, 2013 ONCA 499, 366 D.L.R. (4th) 370, at para. 22 (“Anten”). Put another way, the test is not whether the person is refusing to conduct a risk/benefit analysis of the treatment, but whether he is unable: E.P. (Re), 2015 CanLII 32546 (Ont. C.C.B.), at pp. 15-16 (“E.P.”).

[11] It must be kept in mind that the finding that someone lacks capacity has grave consequences. The individual can lose his freedom, lose his ability to make his own decisions about his health, and be subject to some of the most significant and forcible incursions on his bodily integrity. In Starson, at para. 75, the Court cautioned:

The right to refuse unwanted medical treatment is fundamental to a person’s dignity and autonomy. This right is equally important in the context of treatment for mental illness: see Fleming v. Reid (1991), 1991 CanLII 2728 (ON CA), 4 O.R. (3d) 74 (C.A.), per Robins J.A., at p. 88:

Few medical procedures can be more intrusive than the forcible injection of powerful mind-altering drugs which are often accompanied by severe and sometimes irreversible adverse side effects.

Unwarranted findings of incapacity severely infringe upon a person’s right to self-determination. Nevertheless, in some instances the well-being of patients who lack the capacity to make medical decisions depends upon state intervention: see E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388, at p. 426. The Act aims to balance these competing interests of liberty and welfare.

[12] At the hearing, RA made repeated reference to the forcible measures which had been taken with him and the impact which they have had on him:

He has come to my home, like, about four or five times to fix the plumbing over the past several years. The toilet breaks down. It’s an apartment issue. It’s not my fault. I was told that, the police told me, I was going to be just up the street to eat some food for about one day. To—to—to make sure my toilet gets fixed so I don’t have to have my toilet broke and I can’t use it. So they came, they brought me to the hospital. Next thing I know, they took they injected me with two—two and half um, needles, basically. When I first came, I was, like, why am I being injected with needles against my will? They brought security guards in, they grabbed me, and they held me down. They injected me with needles. I said why I—I don’t even go to this hospital. This is not allowed. This is against my rights. They say they’re allowed to do this because they’re some kind of medical professional or something like that. I said, how the heck do I thrown into a hospital where I get injected against my will because my toilet breaks down.

Transcript of Proceedings, p. 63, lines 2-25.

My admission at the hospital has been horrible because [they’re] trying to take away my rights to govern my own self. Saying stuff that doesn’t even make sense.

Transcript of Proceedings, p. 66, lines 14-15.

The Board’s Decision

[13] Just prior to the Board hearing the appellant was 34 years old, receiving benefits under the Ontario Disability Support Program and living in subsidized housing. He was admitted to St. Michael’s hospital on May 3, 2018 after plumbers at his apartment telephoned police alleging aggressive behavior. At that time, he had been living independently for approximately 5 years but according to some of the medical records there were attendances at various mental health institutions from time to time. RA’s evidence before the Board was that he believed that the medication sought to be administered was poison and that it is more healing to eat healthy food and listen to calm soothing music. He was adamant that he has no wish to take any medication and was upset that he had been forcibly taken from his home where he had been living without incident for many years, and forcibly medicated against his will “because of a broken toilette”.

[14] With respect to the first criterion in section 4 of the HCCA, Dr. Brook testified, and the Board concluded, that RA was able to understand the information relevant to making a decision about the treatment proposed for him.

Transcript of Proceedings, p. 23, lines 8-11

[15] With respect to the second criterion, Dr. Brooks, in her evidence emphasized RA’s fixed religious delusional beliefs and indeed, his religiosity is a significant theme in the medical records. The Board summarized Dr. Brook’s evidence regarding RA’s delusions as follows:

In her evidence, Dr. Brook said that RA suffered fixed delusional beliefs, in his case being his references to witchcraft and his special relationship with God to remove witchcraft. She said that RA had zero insight into his condition, and that his delusional beliefs rendered him incapable of recognizing that something was wrong with his behavior: Board Decision, at p. 9.

[16] The Board concluded that RA was unable to appreciate the reasonably foreseeable consequences of making a decision or not making a decision about the treatment proposed for him:

In this case, the panel accepted the cogent and compelling evidence of Dr. Brook which was amply corroborated by RA’s own evidence. As noted above, the panel found that, at the time of the hearing RA was unable to acknowledge that he might have symptoms of mental disorder and further found as a fact that RA was unable to apply the information concerning the risks and benefits of the proposed treatment to himself. Because of his mental condition that exhibited fixed delusional beliefs, RA was unable to recognize the risks and benefits of treatment. This finding applied not only with respect to the proposed treatment for RA’s mental disorder but to the proposed treatment for RA’s medical conditions, which he continued to deny. In her evidence of her discussions with RA about treatment, Dr. Brook told the panel that RA said that he did not need medications because his body was different. Because of these fixed delusional beliefs which were unrecognized manifestations of his mental disorder, RA was therefore unable to appreciate the consequences of a treatment decision or lack of decision: Board decision, at p. 11

[17] In my view, a significant basis for the Board’s conclusion that RA could not appreciate the reasonably foreseeable consequences of a treatment decision was its determination, in reliance on Dr. Brook’s testimony, that he had fixed delusional religious beliefs.

[18] I note that when it considered whether he should be held on an involuntary basis, the Board concluded that the evidence did not establish that RA’s mental disorder, if not treated, was of a quality that likely would result in serious bodily harm to another person. The Board concluded that the incident involving the plumbers was not proven to a sufficient level as it was third hand hearsay and in any event, there was no evidence in the records that RA had been violent in his encounter with the plumbers: Board Decision, at p. 14. As well, the Board also concluded that the evidence did not establish that RA’s mental disorder, if not treated, was of a nature or quality that would likely result in RA’s physical deterioration: Board Decision, at pp. 16-17. However, the Board did conclude that the evidence established that RA’s mental disorder, if not treated, would “probably” result in substantial mental deterioration: Board Decision, at p. 15.

The Grounds of Appeal

[19] Although the Notice of Appeal was broadly drafted, and there was some confusion over the correct standard of review, ultimately, the two arguments made by RA were:

a. The Board erred by failing to properly take into account RA’s religious beliefs in making its decision, thus violating the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c.11 (the “Charter”);

b. The Board erred by relying on uncorroborated and unreliable evidence.

The Standard of Review

[20] In accordance with W.S. v. Dr. Bismil, 2020 ONSC 173, at para. 17 (“W.S.”), J.G. v. Dr. Vukin, 2020 ONSC 142, at para. 9 (“J.G.”), and J.W. v. Dr. Wadhwa, 2020 ONSC 172, at para. 8 (“J.W.”), the standard of review is as follows:

a. For questions of law the standard is correctness; and

b. The determination that someone lacks capacity is a question of mixed law and fact and reviewable on the standard of palpable and overriding error.

[21] As noted above, one of RA’s grounds of appeal is with respect to the alleged breach of his Charter rights and there is no issue that the Board as a statutory tribunal has an obligation to bear in mind Charter values when making capacity decisions. In Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at para. 24 (“Doré”), Justice Abella J. wrote:

[24] It goes without saying that administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values.

See also Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 56 (“Baker”).

[22] The Court in Doré explained that administrative bodies should approach Charter values in the following manner in the exercise of their statutory discretion:

[55]…He or she balances the Charter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives….

[56] Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives. …

Freedom of religion

[23] Section 2(a) of the Charter states:

Everyone has the following fundamental freedoms:

(a) Freedom of conscience and religion.

[24] The law surrounding freedom of religion protected by the Charter is a complex body of law. In Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, at paras. 39-40 (“Syndicat”), the Supreme Court of Canada described “religion” as follows:

In order to define religious freedom, we must first ask ourselves what we mean by “religion”. While it is perhaps not possible to define religion precisely, some outer definition is useful since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion. Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

What then is the definition and content of an individual’s protected right to religious freedom under the Quebec (or the Canadian) Charter? This Court has long articulated an expansive definition of freedom of religion, which revolves around the notion of personal choice and individual autonomy and freedom. In Big M, supra, Dickson J. (as he then was) first defined what was meant by freedom of religion under section 2(a) of the Canadian Charter, at pp. 336-37 and 351:

A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon section 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means much more than that.

[25] The essence of freedom of religion is the protection of deeply and sincerely held personal beliefs:

The emphasis then is on personal choice of religious beliefs. In my opinion, the decisions and commentary should not be construed to imply that freedom of religion protects only those aspects of religious belief or conduct that are objectively recognized by religious experts as being obligatory tenets or precepts of a particular religion. Consequently, claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make… In fact, this Court has indicated on several occasions that, if anything, a person must show “[s]incerity of belief” (Edward Books, supra, at p. 735) and not that a particular belief is “valid”: Amselem, at para. 43.

[26] In E.P., the Board considered the interplay between freedom of religion, schizophrenia and strongly held religious beliefs in a capacity application. The Board concluded that the tests for deciding the matter under the Charter or under the HCCA were the same and that the test under the HCCA could be applied in the spirit of the Charter. Notably, in a subsequent decision, R.C. (Re), 2020 CanLII 23179 (Ont.C.C.B.) (“R.C.”), in the absence of a Charter application, the Board specifically undertook a thorough analysis of whether the patient had sincere religious beliefs as opposed to delusions as part of its analysis, where religiosity was part of the basis for R.C.’s lack of capacity, at p. 11:

In finding on the balance of probabilities that RC suffered from a mental disorder, we were mindful that caution must be exercised when distinguishing between sincerely held religious beliefs and beliefs, that, although sincerely held, are manifestations of mental illness. [Emphasis added]. Notably, RC’s belief system was inconsistent with his cultural and/or religious upbringing and he also experienced other symptoms of a disorder, including psycho-social decline, disorganized thoughts, circumstantial speech, as well as paranoid delusions regarding the devil, Masons, and Illuminati. Despite RC’s contention that he followed the Karaite religion, his mother testified that she knew of no one else who followed RC’s “religion”, an assertion that was also endorsed by RC’s father. (Exhibit 12). On RC’s own admission, he had no association with other Karaites, and had not sought direction from any of Karaite religious leaders. Contrary to his testimony, many of RC’s views did not appear to be endorsed by others or rooted in any organized religion or a system of beliefs and practices based on certain religious precepts.

Also relevant was that RC’s belief system seemed to be idiosyncratic, ever shifting, expanding in severity and conviction over time, and coexisted with other manifestations of disorder outlined above. The doctor also observed that the decline in RC’s functioning noted by his parents was consistent with the trajectory of his untreated illness. In the panel’s view, the evidence, fully corroborated by his own testimony and demeanor, established that RC was suffering from mental disorder, the diagnosis and/or symptoms of which were endorsed by Dr. Raghunath, at least three other physicians during this admission, collateral reports from his parents, his mother’s evidence and the documentation filed as exhibits.

[27] During the hearing before me the Intervenor argued that:

a. While the Board did not directly address Charter values in its reasons the factual matrix before it at the hearing did not rise to the level of requiring any explicit consideration of whether RA’s beliefs were sincere religious beliefs as opposed to manifestations of a mental illness;

b. The Board implicitly took into account Charter values in its decision; and

c. In any event, the explicit application of the test previously used by the Board to distinguish between sincerely held religious beliefs protected by the Charter, and religious delusions which are not, would have nevertheless, resulted in the same outcome. The factors which the Intervenor asserts are relevant and have previously been used by the Board in analyzing this issue are as follows:

i. Whether the patient displays other non-religious delusions or symptoms;

ii. Whether the belief system is connected to any known religious practices; and

iii. Whether the onset and intensity of the belief covaries with the other symptoms.

R.C., at p. 11

E.P., at pp. 10-11.

Did the issue of RA’s religious freedom arise sufficiently on the record for the Board to have specifically considered it?

[28] Religiosity is a repeated theme in the medical records but I note that there is nothing in the record to suggest that RA’s religious beliefs pose a threat to the public or to himself. His religious beliefs essentially involve him praying against evil. The transcript of the proceeding shows that RA repeatedly raised the issue of his sincere religious beliefs and that he disputed the fact that his religious beliefs were delusions. Here are some examples:

I’m a Christian or a Christian. I pray against witchcraft and sorcery. A—a—woman at the hospital asked me about that. I tell them, I pray against witchcraft because I’m a Christian. It. Means I pray against the things that I hear binds people to evil. And it’s, like, I say that then the next thing I know it’s about delusions and psychosis and I’m like, where did you get this delusion and psychosis stuff from? I’m a Christian. It says in the Book of Acts that Peter burned the books of witchcraft and sorcery in the Bible.

Transcript of Proceedings, p. 65, lines 15-25, p. 66, lines 1-5

I’m a Christian. I pray against stuff that hurts people.

Transcript of Proceedings, p. 70, lines 7-8

I don’t see why a doctor can say I have no communication skills or that I can’t talk or that I don’t know what I’m doing. I don’t have the wherewithal, or I have no insight, that does not make sense. I know what I’m saying. I know how I speak, and I know—I’m respectful, I won’t yell at no one. I talk with a strong voice but I’m a strong man of religion. And I speak to try to support people. I requested a clock and instead of getting a clock I get dragged down and held down in my room and security guards inject me with a needle. I’ve been injected eight times in four days for absolutely nothing.

Transcript of Proceedings, p. 72, lines 7-21

[29] In his factum, RA refers to text from the Bible in support of his argument that his beliefs are part of an established religion. In my view, the issue was sufficiently raised before the Board such that it ought to have considered and taken into account whether his religious beliefs were sincere and protected by the Charter or manifestations of an illness.

Did the Board implicitly take into account RA’s right to religious freedom?

[30] Counsel for the Intervenor argued that the Board implicitly took into account Charter values and implicitly determined that RA’s beliefs were manifestations of a mental illness as opposed to sincerely held religious beliefs, even though they did not say so. In my view, the record does not support this conclusion:

a. There was no discussion in the reasons or questions asked during the hearing which supports the view that anyone considered whether RA’s beliefs were sincere as opposed to delusional;

b. The Board did not consider the test it has applied in other cases, like E.P. or R.C. nor did it make all the findings of fact which would be necessary to support that test;

c. The jurisprudence on freedom of religion is very complex and particular. I am not satisfied that the Board can implicitly apply this jurisprudence without turning its mind to it;

d. The reasons cite the legislation that was considered by the Board to be the Mental Health Act, R.S.O. 1990, c. M.7, and the HCCA, but not the Charter.

In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 96 & 97 (“Vavilov”), the Court emphasized the importance of an administrative body’s obligation to “justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion.” RA raised the issue of his religious beliefs, the Board concluded that they were delusions and there are no reasons for why the Board did not accept RA’s assertion of his religious beliefs as being sincere.

Does the application of the test in E.P. and R.C. to RA support the conclusion that RA’s beliefs were delusional as opposed to sincere beliefs?

[31] The Intervenor encouraged me to simply review the record and apply the factors which the Board has previously applied to examine whether beliefs are sincere religious beliefs or delusions, set out in E.P. and R.C.. It relied upon the decision of Newfoundland and Labrador Nurse’s Union v. Newfoundland and Labrador (Treasury Board), [2011 SCC 62 708 (“Newfoundland Nurses”) as authority for that proposition. In Vavilov, at paras. 96-97, the Court cautioned that reviewing courts should not engage in this kind of endeavor and indicated that Newfoundland Nurses did not stand for such a proposition:

Where, even if the reasons given by the administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision. Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines, at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion… To the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken.

…We agree with the observations of Rennie J. in Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th) 267, at para. 11:

Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it license to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head….

[32] In my view, it would be inappropriate for this Court to engage in a reweighing of the evidence suggested by the Intervenor for many reasons including the fact that it is the Board who has expertise in matters of capacity. The Board is tasked with the delicate task of balancing various interests, and weighing evidence which may include hearsay. Much of the evidence in the record which the Intervenor urges me to rely upon and apply the test set out in E.P. and R.C., includes uncorroborated hearsay which was not even relied upon anywhere in the Board’s decision. I am not in a position to say how the Board would have weighed this evidence.

[33] I am not satisfied that had the Board applied the test set out in E.P. and R.C. it would have weighed this evidence in the same manner as the Intervenor did at the hearing before me, or that it would have considered this evidence sufficiently corroborated or that it would have arrived at the same conclusion regarding RA’s capacity to consent to treatment. I note again that the Board rejected Dr. Brook’s argument that RA’s mental condition, if not treated, was of a nature or quality that would likely result in serious bodily harm to another person or to himself. Accordingly, I am not satisfied that, had the Board specifically applied the test in R.C. and E.P., it would have reached the same result.

[34] In my view, the Board made an extricable error of law by failing to take into account Charter values on the question of his capacity to consent to treatment as defined and interpreted in the jurisprudence and/or by failing to provide reasons as to why it considered RA’s expressed religious beliefs to constitute delusions as opposed to sincere religious beliefs entitled to constitutional protection.

Corroboration

[35] The parties agree that there is a requirement that evidence upon which the Board makes its decision be corroborated: Evidence Act, R.S.O. 1990, c. E.23; Farquhar-Lockett v Jones 2016 ONSC 346, at paras. 68-72. RA argued that there was insufficient corroboration because Dr. Brook was the only witness apart from RA, had only just begun treating RA, did not present the evidence accurately in respect of the issues of whether RA was a danger to the public and/or had hypertension and diabetes; accordingly, the Board should not have relied upon her evidence and should have given greater weight to RA’s evidence. RA also argued that the record was thin, with only two medical records from prior admissions. As I am referring this matter back to the Board for a rehearing I need not consider this issue.

Conclusion

[36] I am referring this matter to a tribunal properly constituted to reconsider the issue of RA’s capacity to consent to treatment and to consider the issue of the RA’s religious beliefs and the impact of Charter values on the question of his capacity to consent to treatment as defined and interpreted in the jurisprudence. This matter involves important questions as to RA’s liberty and treatment decisions which are time sensitive and the hearing of the Board should take place as soon as possible.

Papageorgiou J.

Released: October 26, 2020