COURT FILE NO.: CV-20-636377
DATE: 20201106
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board, pursuant to the Mental Health Act, R.S.O. 1990, chapter M.7, as amended,
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,
BETWEEN:
A.N.
Appellant
– and –
DR. MARIE-CLAUDE GUIMOND
Respondent
Eyitayo F. Dada, for the Appellant
Barbara Walker-Renshaw and Naveen Hassan, for the Respondent
IN WRITING: November 6, 2020
PINTO J.
REASONS FOR DECISION
A. Overview
[1] The Appellant appeals from two decisions of the Consent and Capacity Board dated February 1, 2020 (the "Decisions"), following a Board hearing on January 31, 2020.
[2] In the Decisions, the Board confirmed the findings by the Appellant's treating psychiatrist, the Respondent Dr. Guimond, that the Appellant met the criteria for involuntary admission and that she lacked capacity to consent to or refuse treatment.
[3] After the appeal was filed, the Respondent brought a motion to admit fresh evidence and argues that the appeal is moot. The fresh evidence relates to the fact that, post-hearing, the Appellant was discharged from Hospital, regained capacity, and had her Community Treatment Order ("CTO") terminated.
[4] For the reasons that follow, I allow the Respondent's fresh evidence motion and find that the appeal is moot. As there is no reason to exercise my discretion to hear the matter, the appeal is dismissed.
[5] If I am wrong on the issue of mootness, I would have dismissed the appeal on its merits. I would have found the standard of review of the Board's Decisions to be reasonableness, and I would have found the Board's Decisions to be reasonable.
B. Background
[6] I have anonymized the Appellant's name considering the personal nature of the evidence.
[7] A.N., a 20-year old woman, was admitted to North York General Hospital on October 27, 2019 and later transferred to the Psychiatric Intensive Care Unit, where she was made subject to a Certificate of Involuntary Admission, on or about January 23, 2020.
[8] On January 23, 2020, Dr. Guimond also found A.N. incapable of consenting to nutritional treatments with respect to an eating disorder. A.N. applied to the Board to review Dr. Guimond's findings concerning A.N.'s involuntary admission and incapacity. The Board confirmed Dr. Guimond's findings on February 1, 2020.
[9] A.N. filed a Notice of Appeal dated February 13, 2020.
[10] A.N. was discharged from hospital on March 17, 2020. She was then made the subject of a CTO issued on April 14, 2020. On or about July 30, 2020, Dr. Guimond cancelled the finding of incapacity to consent to treatment of an eating disorder, and on August 5, 2020 terminated the CTO.
C. Respondent's Motion for Fresh Evidence
[11] On September 1, 2020, the Respondent brought a motion to admit fresh evidence. The fresh evidence consists of the Respondent's affidavit affirmed August 31, 2020 and relates to A.N.'s health progress and the Respondent's decisions after the January 31, 2020 hearing. The Respondent argues that, by its very nature, the evidence could not have been adduced at the hearing: Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, p. 205; Sengmueller v. Sengmueller, 1994 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), at para. 10.
[12] The Respondent argues that the issue of the Appellant's involuntary admission is moot because "the Appellant was discharged from the Hospital on March 17, 2020 and is not currently an involuntary in-patient at the Hospital." Also, "the appeal of the Appellant's incapacity is also moot because subsequent to the patient's discharge, on or about July 30, 2020, the Appellant was found capable with respect to the nutritional treatments (feeds in Hospital) that were the subject of the incapacity finding. Further, the treatments are no longer being proposed for AN by Dr. Guimond as the patient is managing her own nutrition orally, without a feeding tube."
[13] The Appellant questions the motive of the Respondent, suggesting her post-hearing conduct was specifically taken to make the appeal moot. I disagree and find no evidence of this. The Appellant also argues that the fresh evidence, which includes a stamped Certificate of Involuntary Admission - Form 3, should not be included because it "prejudices the Appellant's rights to test that evidence." Once again, I disagree. If the Appellant wished to cross-examine the Respondent on her motion to adduce the fresh evidence, she could have done so. In response, the Respondent submits that the stamped Form 3 existed at the time of the hearing but was not produced at the hearing as she was not put on notice by the Appellant, who subsequently filed an appeal. I am satisfied that, overall, the Respondent's fresh evidence should be admitted. It could not have been produced at the hearing and its admission is just: Health Care Consent Act, S.O. 1996, c. 2, Sched. A, s. 80(9); Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(4)(b); and Palmer v. The Queen.
D. Should the Appeal be dismissed on the basis of mootness?
[14] The Respondent argues that, since the appeal is directed at A.N.'s involuntary admission and the Appellant is out of hospital, the outcome of the appeal will have no practical effect: Elder v. Klukach, 2017 ONSC 2637 at para. 9; E.S. v. Joannou, 2017 ONCA 655 at paras. 27, 35-36. The same can be said regarding the appeal directed at the Respondent's finding of incapacity. Since A.N. was subsequently found to have regained capacity, the appeal will serve no useful purpose and is accordingly moot.
[15] In Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, at para. 15, the court stated that an "appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties." A court may nevertheless exercise its discretion to address otherwise moot appeals but will be guided by three underlying rationales (paras. 29 to 48):
(1) Whether despite the cessation of a live controversy, an adversarial relationship will continue between the parties;
(2) Whether "special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it", such as an important question of a recurring nature that might evade review or if the matter raises an issue of public importance; and
(3) Whether "[p]ronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch."
[16] The Appellant argues that the appeal is not moot because the Appellant's rights continue to be affected even after the Respondent discharged A.N., cancelled the finding of incapacity and terminated the CTO. The Appellant points to section 33.1(4)(a) of the Mental Health Act and argues that the effect of the Board's Decisions is to make the Appellant an eternal candidate for a CTO, and only a successful appeal of the Board Decisions would make them void ab initio and then section 33.1(4)(a) would cease to apply.
[17] Section 33.1(4) states:
(4) A physician may issue or renew a community treatment order under this section if,
(a) during the previous three-year period, the person,
(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or
(ii) has been the subject of a previous community treatment order under this section;
[18] I understand the Appellant to be arguing, in the alternative, that if I find the appeal is moot, its section 33.1(4)(a) argument falls under one of the discretionary reasons why the court should nevertheless consider the appeal.
[19] I am not persuaded by the Appellant's arguments.
[20] First, there is nothing eternal about the section in question. As the Respondent points out, "the criterion is focused only on the three-years immediately prior to the time that a CTO is being considered."
[21] Second, the outcome of an appeal would make no difference since, under section 33.1(4)(a)(ii), a physician would still be able to issue or renew a CTO because A.N. will continue to be the subject of a previous CTO until the three-year period ends. The Appellant's appeal is not directed against the CTO. A successful appeal would only affect section 33.1(4)(a)(i), since the legal effect of reversing the involuntary admission would mean that A.N. should not have been admitted in the first place. The Appellant resists this conclusion by tying the "now terminated CTO" to the purportedly illegal involuntary admission. However, this appears to be just another way of claiming that this court should review the involuntary admission. I agree with the Respondent that the involuntary admission issue is moot: Elder v. Klukach; E.S. v. Joannou.
[22] Accordingly, focusing on the Appellant's section 33.1(4)(a) argument, the Appellant's rights do not continue to be affected, and the appeal is moot. I would also reject the Appellant's alternative argument since I do find the section 33.1(4)(a) point is evidence of an adversarial relationship existing between the parties, or constituting "special circumstances" justifying ongoing judicial attention.
[23] The Appellant also argues, relying on three cases (Shin, Neto and Doherty), that there is some uncertainty in the law as to the application of the "live controversy" test to Consent and Capacity Board appeals: Christoforou v. Shin, 2018 ONSC 2184; Neto v. Klukach, [2004] O.J. No. 394 (S.C.); and Doherty v. Horowitz, 2016 ONSC 4457. In these cases, the Superior Court held that an appeal of a Board decision is not moot once a finding of incapacity is made, even though a patient has subsequently been discharged from hospital, because the outcome of an appeal may be relevant to a substitute decisionmaker's potential future decisions. The Appellant argues that, despite her no longer being under admission and/or treatment of the Respondent, I should look at the future impact or consequences of the Respondent's actions as endorsed by the Board.
[24] I find that while the Appellant has invited this court to consider the future impact of the Respondent's actions, she has not made out a sufficient case that her situation falls in line with the three cases relied upon. In those cases, the appeal was not considered moot because the outcome of the appeal may have been relevant to a substitute decision-maker's potential future decision. On the material before me, that is not the case here.
[25] I find that the appeal should be dismissed on the basis of mootness. I also find that there are no grounds (adversarial relationship, special circumstances) upon which I should exercise my discretion to permit the hearing of an otherwise moot appeal.
E. Appeal dismissed on its merits
[26] In the event that I am wrong on the issue of mootness, I would have dismissed the appeal on its merits. The appellate standards of review apply because there is a statutory right of appeal from decisions of the Board: Almeida v. Morgan, 2020 ONSC 5066 at paras. 23 to 27; also see Shahwan v. Harrigan, 2020 ONSC 5477 at para. 6, applying Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37. As the appeal is based on alleged errors of mixed fact and law, I would need to find that the Board committed a palpable and overriding error in its findings before setting aside the decision.
[27] Here, the Board gave careful and cogent reasons for its decisions, including why it did not rescind the Form 3 (the Board rejected A.N.'s evidence that the required conversation and consent did not occur; the Board exercised its discretion and presumed the regularity of hospital procedures in admitting A.N. as a voluntary patient). There was overwhelming evidence from health practitioners as to A.N.'s incapacity, compromised mental health condition and dire prognosis without ongoing treatment. The Board noted that A.N. was in denial of having an eating disorder even though this is what the objective medical evidence indicated. A.N. blamed the hospital for her dramatic weight loss and did not want to stay. The Board ruled that this rendered her unsuitable to be a voluntary patient. A standard of reasonableness calls for deference to the administrative actor's decision unless a palpable and overriding error can be found. I can find none here and would dismiss the appeal on its merits.
F. Conclusion
[28] The appeal is dismissed on the basis of mootness and, in the alternative, on its merits. The Respondent did not seek costs and there will be no costs awarded.
Pinto J.
Released: November 6, 2020
COURT FILE NO.: CV-20-636377
DATE: 20201106
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board, pursuant to the Mental Health Act, R.S.O. 1990, chapter M.7, as amended,
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,
BETWEEN:
A.N.
Appellant
– and –
DR. MARIE-CLAUDE GUIMOND
Respondent
REASONS FOR JUDGMENT
Pinto J.
Released: November 6, 2020