Court File and Parties
COURT FILE NO.: CV-20-00000155-00AP
DATE: 20210111
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: K.T., Appellant (Responding Party)
AND:
Dr. Simon O’Brien, Respondent (Moving Party)
BEFORE: Mr. Justice Graeme Mew
COUNSEL: James Coulter, for the Appellant (Responding Party)
Naveen Hassan, for the Respondent (Moving Party)
HEARD: In writing, at Kingston: 11 January 2021
ENDORSEMENT
[1] The respondent (moving party), Dr. Simon O’Brien, brings a motion seeking the dismissal of K.T.’s appeal from a decision of the Consent and Capacity Board dated 14 May 2020, on the grounds that the appeal is moot. Dr. O’Brien also seeks leave to file additional evidence on this appeal beyond that already contained in the record of proceedings before the Board.
[2] K.T. is a resident of Kingston. Dr. O’Brien is his attending psychiatrist.
[3] On 23 January 2020, K.T., his substitute decision maker, and the Rights Adviser provided through the Psychiatric Patient Advocate Office, received a Notice of Intention to Issue or Renew an Existing Community Treatment Order for K.T. That renewed Community Treatment Order (“C.T.O.”) was issued on 4 February 2020, and its issuance triggered a mandatory review by the Board. A review hearing took place on 13 May 2020, following which the Board determined that the criteria for renewing the C.T.O. set out in the Mental Health Act, R.S.O. 1990, c.M.7, had been met, and confirmed the renewal of the C.T.O. The Board subsequently released reasons for its decision on 21 May 2020.
[4] On 26 May 2020, K.T. filed a notice of appeal of the Board’s 14 May 2020 decision with the Court.
[5] The hearing of the appeal is scheduled for 10 February 2021.
[6] The additional evidence which Dr. O’Brien seeks to introduce sets out events that have occurred since the Board decision under review.
[7] The authority for an appellate court to receive further evidence is conferred by section 143(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Rule 61.16(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg.194, provides that a motion to receive further evidence shall be made to the panel hearing the appeal [emphasis added]. Because an appeal such as this is heard by a single judge, it is that judge who should be considering the motion to admit further evidence.
[8] The final assignment of the judge who will hear this appeal has not yet been made. I therefore decline at this time to make any determination on the admission of further evidence in connection with the appeal itself. However, to the extent that the proposed further evidence is relevant to the other issue raised on this motion, namely that the appeal is moot, I am prepared to admit the additional evidence, for the limited purpose of the motion.
[9] K.T. also seeks the admission of further evidence in the form of notices to the profession issued by the Chief Justice of the Superior Court in respect of changes in court services and procedures arising from the COVID-19 Pandemic (K.T.’s factum incorrectly refers to “court closures”, yet the Superior Court has remained open and serving the public throughout the pandemic). In my view, the court can properly take judicial notice, not only of the notices issued by the Chief Justice, but, also, regional notices issued by a Regional Senior Justice or local notices issued by a Local Administrative Justice.
[10] The mootness issue arises from the fact that on 29 July 2020, K.T. and his substitute decision maker were put on notice that the 4 February 2020 C.T.O. would be renewed. The Rights Adviser’s advice was provided to K.T. on 31 July 2020 and to K.T.’s substitute decision maker on 4 August 2020. The C.T.O. was then renewed by Dr. O’Brien on 7 August 2020, and remains in effect to date (although it is set to expire on 7 February 2021).
[11] K.T. did not request a hearing before the Board to challenge the 7 August 2020 C.T.O.
[12] The issue of mootness arises because the February 2020 C.T.O. is no longer in effect. Rather, K.T. is currently subject to the 7 August 2020 C.T.O. (which itself expires three days before K.T.’s appeal of the Board’s 14 May 2020 decision is scheduled to be heard).
[13] Dr. O’Brien relies on this court’s decision in Attwood v. Euteneier, 2019 ONSC 4211. In that case, the attending psychiatrist appealed a decision of the Board which had revoked a C.T.O. made by him. After the Board’s decision, however, a second C.T.O. was issued. The court held that the appeal was moot.
[14] In an ideal world, an appeal such as this would be heard and decided before the C.T.O. which is the subject of the appeal has expired or been renewed. The implication emanating from the submissions made by K.T. is that this did not occur because of scheduling challenges associated with the pandemic, although he offers no direct evidence to that effect (in Kingston, appointments were, in fact, available for the hearing of long applications (two hours or more) in late June and throughout July 2020).
[15] Be that as may, the central issue on this motion is whether the court should hear an appeal from a C.T.O. which has been superseded.
[16] Relying on Attwood, Dr. O’Brien argues that any determination by the court of any appeal would have no practical impact on the parties, the required tangible and concrete dispute between them having disappeared. Furthermore, although a court may exercise its discretion to address an otherwise moot appeal, it should decline to do so in this case, having regard to the guidance provided by the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342. That case put forward three factors which a court should consider when determining whether to exercise its discretion, namely:
Whether despite the cessation of a live controversy, an adversarial relationship will continue between the parties;
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
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.”
[15] K.T. argues that the logical conclusion of Dr. O’Brien’s argument would enable an attending physician to circumvent the appellant process simply by issuing a new C.T.O.
[16] I agree. I am not persuaded that K.T.’s appeal is moot. It appears that K.T. has been the subject of a series of rolling C.T.O.’s of six months’ in duration. Without having delved deeply into the record to consider the merits of the C.T.O., it seems to me that as a matter of common sense, it is highly likely that each renewal of the C.T.O. is influenced by the predecessor C.T.O. Accordingly, it is more than a merely academic exercise to review whether one of the C.T.O.’s in a chain was, in fact, valid.
[17] Even if I am wrong on the issue of mootness, it seems to me that this is the sort of circumstance that the Supreme Court had in mind in Borowski when it referred to “special circumstances”, such as an important question of a recurring nature. The appellant should not be precluded from having a C.T.O. that is one of a running series of such orders merely because by the time the appeal is heard the C.T.O. in question has been superseded by another one in the series.
[18] Furthermore (and perhaps this is the same point put a different way), I agree with K.T. that it would warrant a substantial injustice on him to be denied the opportunity to seek appellate review of the Board’s decision because the appeal was not heard and decided between 14 May 2020, when the Board made its decision (and its reasons were not released until a week after that) and 7 August 2020, when the further renewal of the C.T.O. occurred.
[19] Nor do I find the Attwood decision on all fours. In that case the Board had rescinded a C.T.O. There was, in that case, no longer a live issue between the parties once the C.T.O. was rescinded. The appeal was taken from a C.T.O. which had been revoked. The mootness arose from the fact that after revocation of the first C.T.O., a second C.T.O. was issued. The cases was not one where there was a renewal of an existing C.T.O. The entirely new C.T.O. rendered the revocation of its predecessor academic.
[20] For the foregoing reasons, Dr. O’Brien’s motion is dismissed, insofar as it seeks to have K.T.’s appeal dismissed at this stage.
[21] Dr. O’Brien’s motion seeking leave to introduce further evidence is reserved to the judge hearing the appeal.
[22] The costs of this motion are also reserved to the judge hearing the appeal.
[23] If, as a result of the disposition of this motion, either party requires further assistance from the court, by way of directions or otherwise, prior to the hearing of the appeal, the Trial Coordinator can be spoken to about arranging a further case conference with me.
Graeme Mew J.
Released: 11 January 2021