Court File and Parties

COURT FILE NO.: CV-20-00000155-00AP (Kingston) DATE: 20210212 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KUNAL TIPU, Appellant -and- DR. SIMON O’BRIEN, Respondent

BEFORE: Mr. Justice Pierre E. Roger

COUNSEL: James P. Coulter, for the Appellant Naveen Hassan, for the Respondent

HEARD: February 10, 2021

Endorsement

[1] Mr. Tipu appeals the decision of the Consent and Capacity Board (“the Board”) of May 14, 2020. In that decision, the Board confirmed the Community Treatment Order (“the CTO”) reissued by Dr. O’Brien on February 4, 2020.

[2] In his Notice of Appeal, Mr. Tipu alleges unspecified factual and legal errors. In his factum and during his lawyer’s oral arguments, he argued:

1. that the Board erred in implicitly concluding that the CTO was properly renewed in the required statutory timeframe; and

2. that the Board erred in not considering the impact of the Covid-19 pandemic on Mr. Tipu’s ability to comply with the CTO.

Factual Overview

[3] Dr. O’Brien was Mr. Tipu’s attending psychiatrist. Mr. Tipu was 36 years old at the time and resided at home with his parents. He worked in the family business of managing a motel.

[4] Mr. Tipu has a diagnosis of schizophrenia and had been found incapable with respect to treatment; his father was his substitute decision-maker. He was also found incapable of managing property, with the public guardian and trustee managing his property. His psychiatric history dates back to 2003 and he has about nine admissions for psychiatric hospitalizations since 2013.

[5] Mr. Tipu has been subject to previous CTOs, made under s. 33.1 of the Mental Health Act, R.S.O. 1990, c. M.7. Prior to February 4, 2020, Mr. Tipu had been subject to CTOs issued or renewed on the following dates:

• May 12, 2015
• November 9, 2015
• November 7, 2016
• May 3, 2017
• November 7, 2017
• January 15, 2019
• July 19, 2019

[6] In January 2020, Dr. O’Brien provided notice that he intended to renew the CTO of July 2019. After sending out required notices, on February 4, 2020, Dr. O’Brien renewed the CTO.

[7] The Board conducted a hearing on May 13, 2020. At the hearing, the Board considered documentary evidence filed by the parties and heard oral evidence from Dr. O’Brien, Mr. Tipu’s brother, and Mr. Tipu. The Board examined the criteria set out in s. 33.1 (4) of the Mental Health Act and determined that they had been met. Whether the Board made a palpable and overriding error in so finding is essentially the subject of this appeal.

Issues

[8] Did the Board err in confirming the CTO, particularly did it err in concluding that the CTO was properly renewed in the required statutory timeframe and did it err in failing to consider the impact of the Covid-19 pandemic on Mr. Tipu’s ability to comply with the CTO?

Legal Principles and Analysis

[9] The applicable standard of review of a palpable and overriding error is not disputed. Indeed, s. 80 of the Health Care Consent Act, S.O. 1996, c. 2, Sched. A creates a statutory right of appeal to the Superior Court and the parties agree that the Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, is applicable. The parties also agree that the issues to be decided on this appeal involve questions of mixed fact and law and that according to the Vavilov framework, the applicable appellate standard of review to the issues raised on this appeal is that of palpable and overriding error.

[10] It is also not disputed that a palpable error is an error that is clear to the mind or plain to see, and that there is no meaningful difference between the terms clearly wrong, unreasonable and palpable and overriding error.

[11] As well, it is not disputed that before the Board, Dr. O’Brien had the onus of establishing, on a balance of probabilities, that the various criteria set out in the legislation for the CTO had been established.

[12] The appellant argues that the CTO before the Board and now before the court was renewed without proper statutory authority, and therefore, that it ought to have been considered terminated. He argues that failure to consider the provenance of the CTO constituted a palpable and overriding error in the implicit finding of the board that the CTO was renewed in accordance with the proper statutory procedures.

[13] Section 33.1 (11) of the Mental Health Act provides that a CTO expires six months after the date it is made unless it is renewed in accordance with ss. 12, or it is terminated in accordance with ss. 33.2. Section 33.1 (12) dictates that a CTO may be renewed for a period of six months at any time before its expiry and within one month after its expiry.

[14] Mr. Tipu points out that the gap between the CTO issued on November 7, 2017, and the CTO of January 15, 2019, is more than the permitted seven months. He argues that as it is noted in the summary provided to the Board that Dr. Millson “reissued” the CTO, it creates sufficient ambiguity about the provenance of the renewed CTO before this Court such that the CTO is suspect because the term “reissued” or “reissue” is not contemplated in the legislation, which provides for a renewal, issuance, or termination. He argues that the November 2017 CTO was terminated as a matter of law, because outside of seven months, and that a new CTO could not subsequently be “reissued”, it should have been “issued” in accordance with the statutory requirements. He argues that the Board’s failure to consider the provenance of the CTO was a palpable and overriding error in the implicit finding that the CTO was properly executed in accordance with the provisions of the Mental Health Act.

[15] I note that this point was not raised before the Board and that there is no evidence before this Court that the CTO of November 7, 2017 was improperly renewed or, stated differently, that the CTO of January 15, 2019 was improperly issued. I therefore find that it is not plainly visible that the CTO of January 15, 2019 was improperly issued. On the contrary, I find that the evidence reasonably supported a finding that the CTO of January 15, 2019 had been properly issued; that is apparent when you consider the chronology of the CTO which rather supports the arguments of the respondent. Indeed, when one considers pages 30 and 31 of the Appeal Record, we see that the word “issued” was used for an initial issuance, “renewed” for a renewal made within the statutory timeframe, and “reissued” was used for the issuance of a CTO when outside of the statutory timeframe. In addition, I note that it made no difference whether a CTO was issued or renewed or reissued because the statutory test was and is the same for either a CTO being issued or renewed. Moreover, I note that, in any event, the evidence reasonably supported this finding by the Board because from page 57 of the Appeal Record, we see that Mr. Tipu had been hospitalized from at least November 21, 2018 to January 15, 2019, which is more than the required 30 days within the last three years. This ground of appeal is therefore dismissed.

[16] Mr. Tipu also argues that the board erred by not considering the impact of Covid-19 on his ability to comply with the community treatment plan contained in the CTO, as required by s. 33.1 (4) (c) (iv) of the Mental Health Act. Again, this was not raised before the Board, and I have no evidence that Mr. Tipu was not able to comply or that he had difficulties related to the pandemic. Mr. Tipu testified in May 2020, during some of the worst of the pandemic and did not raise issues or difficulties related to the pandemic. We must remember that the CTO was renewed by Dr. O’Brien on February 4, 2020, just before the pandemic but that the hearing before the Board was heard on May 14, 2020, right in the midst of the pandemic. Dr. O’Brien testified on May 14, 2020, and at page 46 of the transcript, we see his evidence that the treatment plan was working, and that Mr. Tipu was able to comply. We also see that the Assertive Community Treatment Team (“the ACTT”) would bring the medication to Mr. Tipu. As well, when we consider the treatment plan, at page 44 of the Appeal Record, we see that flexibility was built into the plan in that the location could be as mutually agreed upon, and that adjustments in the frequency of contacts could be made based on the clinical assessment of Dr. O’Brien or his designate. This flexibility, as well as the fact that this occurred in the area of Kingston are important factual distinctions from the case relied upon by the appellant, as is the evidence that the ACTT would travel to Mr. Tipu (see Eden v. Kantor, 2020 ONSC 4729). As a result, I find that the evidence reasonably supported the finding made by the Board that Mr. Tipu was able to comply with the treatment plan and CTO during the pandemic.

[17] I find that the Board stated the proper test and made reasonable findings when it concluded that it had been met. There was clear, cogent and compelling evidence before the Board on which it was entitled to rely. I see no palpable and overriding error.

[18] Therefore, this appeal is dismissed.

[19] On the issue of the costs of this appeal and the costs of the motion before Justice Mew, I note that both lawyers indicated that they did not believe that their respective client was seeking costs. I will therefore assume that both this appeal and the motion before Justice Mew, where he reserved the costs to the judge hearing the appeal, have been dismissed on a without costs basis unless written submissions, not exceeding 5 pages, are filed with the Court by a party within the next ten days. If submissions are filed, then the other party shall file responding submission within five days after the first submissions were filed. As indicated above, if no submissions on costs are filed with this Court within the next 10 days, then both matters are dismissed on a without costs basis.

Mr. Justice Pierre E. Roger Date: February 12, 2021