ONTARIO SUPERIOR COURT OF JUSTICE (TORONTO REGION)
CIVIL ENDORSEMENT FORM
(Rule 59.02(2)(c)(i))
BEFORE
Judge/Case Management Master
Court File Number:
Myers J
CV-20-00647669-000
Title of Proceeding:
. SEAN SEXTON
Plaintiff(s)
-v-
DR. NEELY BAKSHI
Defendants(s)
Case Management:
Yes
If so, by whom:
X No
Participants and Non-Participants:(Rule 59.02(2)((vii))
Party
Counsel
E-mail Address
Phone #
Participant (Y/N)
Appellant
O. Benjamin Vincents
Y
Respondent
Jessica L Laham
Y
Date Heard: (Rule 59.02(2)(c)(iii))
March 22, 2021
Nature of Hearing (mark with an “X”): (Rule 59.02(2)(c)(iv))
Motion
X
Appeal
Case Conference
Pre-Trial Conference
Application
Format of Hearing (mark with an “X”): (Rule 59.02(2)(c)(iv))
In Writing
Telephone
X
Videoconference
In Person
If in person, indicate courthouse address:
Relief Requested: (Rule. 59.02(2)(c)(v))
Quashing the decision of the Consent and Capacity Board dated July 22, 2021 confirming the CTO renewed by the respondent.
Disposition made at hearing or conference (operative terms ordered): (Rule 59.02(2)(c)(vi))
The appeal is dimissed.
Costs: On a
N/A
indemnity basis, fixed at $
are payable
by
to
[when]
Brief Reasons, if any: (Rule 59.02(2)(b))
There is a very narrow issue on this appeal. It is more semantic than real.
The CCB held that in assessing the requirements of a CTO under s. 33.1 (4)(c)(ii) of the Mental Health Act, RSO 1990, c M. it “reads into the statute” a requirement that the statutory condition is assessed as if the patient was not currently being treated under a CTO. Mr. Vincents argues that the CCB has no jurisdiction to read words into the statute.
In Ontario (Attorney General) v. Patient, 2005 3982, at para. 35, the Divisional Court held that the CCB does not have authority to determine questions of law under the Mental Health Act. Its role is to make mixed findings of whether the facts fit the applicable statutory tests. There is a neat question as to whether the CCB is entitled to interpret the applicable legal standards in order to perform that role. However, I assume for the purposes of this appeal, that it has purported to resolve an extricable question of law in determining an interpretation of the statute which it says is required to make the section consonant with the statutory purpose and scheme. In doing so, it seems to have exceeded its authority as established by the Divisional Court.
I am concerned to ensure that I am not reintroducing the concept of “jurisdictional review” that has been so conclusively put to rest by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Rather, as this is a statutory appeal, I am assessing a question of law (or an extricable question of law that arose in an assessment of mixed fact and law) on a correctness standard. Moreover, I recognize that even in a reasonableness review of an administrative tribunal’s findings of law, the SCC held:
Reasonableness review does not allow administrative decision makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it.
Nothing turns on the precise reason for review. In any event the outcome is the same. Even if, despite Vavilov, the CCB Is not authorized to make express findings of law, properly analyzed, it does not need to do so to implement the statute as they see it.
The problem is this. Subsection 33.1 (4)((c)(ii) requires that for a CTO to issue, a patient must “meet” the criteria for a psychiatric assessment under s. 15 (1) or (1.1) of the statute. The treating doctor must assess the patient within 72 hours of making her or his decision and the subsection uses the word “meet” which is present tense.
Under the prior CTO, Mr. Sexton was well-treated. Because he is taking his meds under an existing CTO, he does not today display symptoms making him an imminent risk to commit an act of violence or to suffer substantial mental or physical deterioration or impairment. These two criteria are the relevant ones used by Dr. Bakshi to continue the CTO against Mr. Sexton. The CCB says that it “reads in” the requirement that the assessment be made “but for the CTO” or as if the CTO was not in place today. It says that a CTO is justified if, but for the existing CTO, Mr. Sexton would be at imminent risk of committing an act of violence or to suffer substantial mental or physical deterioration or impairment.
I do not accept that it is proper to read-in words to the statute that are not there. The statute says what it means and should be applied as it is written. Having said that, I would still find that the criteria in s. 15 (1.1) are met in this case. I just interpret the statute slightly differently than the CCB.
The words of statute are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the act, the object of the act, and the intention of the Legislature. Rizzo & Rizzo Shoes Ltd., Re, 1998 837 (SCC).
The statute tells us the purpose of a CTO expressly in s. 33.4(3):
(3) Purposes. - The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community- based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person's condition changes and, as a result, the person must be re-admitted to a psychiatric facility.
The whole point of a CTO then it to avoid the risk of the patient’s condition deteriorating to the point of needing re-admission to the hospital (or in the case of Mr. Sexton, likely arrest).
Section 15 (1.1) provides:
(1.1) Where a physician examines a person and has reasonable cause to believe that the person,
(a) has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person; and
(b) has shown clinical improvement as a result of the treatment, and if in addition the physician is of the opinion that the person,
(c) is apparently suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;
(d) given the person's history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment; and
(e) is incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained, the physician may make application in the prescribed form for a psychiatric assessment of the person.
Mr. Vincents focuses on subsection (d) and points to the words “given the person's history of mental disorder and current mental or physical condition”. He argues that this means that the treating doctor and the CCB may not rely only on the patient’s past malady or misbehaviour to find the existence of current risk. They are expressly required to take into account the patient’s “current mental or physical condition”. As Mr. Sexton is not today showing risk of committing a serous act of violence or suffering serious deterioration, he cannot be subject to a continuing CTO.
The difficulty with this submission is it ignores the express purpose of the CTO. Mr. Vincents would have every patient who improves while in treatment to then be released from the CTO only to then suffer completely foreseeable decline. As set out in s. 34.1 (3), CTOs are designed to prevent that very yo-yoing of apparent wellness and then illness.
In my view, finding that s. 15 (1.1) covers this situation does not require anything to be “read in” to its words. I start with s. 15 (1.1)(a). That subsection defines the type of illness that a CTO patient must be found to suffer. For a CTO to be considered, the patient must suffer “mental disorder of an ongoing or recurring nature that, when not treated… likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration…”.
So, in the subsequent subsections of s. 15 (1.1) we are only dealing with those types of illnesses which when left untreated have the listed outcomes. Subsection (a) requires an assessment of what may happen to the patient if he or she is not treated. One does not need to read-in “but for the CTO” into (d) to consider the result of non-treatment.
Under subsection 15 (1.1)(b) it must be proven that the patient has shown clinical improvement. Again, it is implicit that the symptoms that occur when the patient is not treated will have abated to some degree before a CTO is considered.
Under subsection 15 (1.1)(c) the patient must still suffer the same or a similar mental disorder – one that when not treated results in the listed risks.
Then, subsection 15 (1.1)(d) requires that “given the person's history of mental disorder and current mental or physical condition” he or she is likely to cause serious bodily harm or likely to suffer deterioration. Before (d) is reached, we know that the patient has already been found to suffer from an illness which causes the listed issues if left untreated and we know that his clinical presentation has improved.
Subsection (d) then specifically incorporates the “history of mental disorder” which under this subsection means that he or she suffers from a disorder that will cause the listed risks when not treated. The look-back or consideration of what would happen but for the CTO is already in subsection (d). It is there expressly by using the words “history of mental disorder” that refer back to the definition of the applicable mental disorder in subsection (a). It does not have to be read in.
What then does one make of the requirement to assess the patient’s “current mental condition”? Mr. Vincents rightly says that history cannot be enough to continue a CTO. If all that matters is the history of one bad episode, once someone is subject to a CTO, it would never end.
That is where the current status comes in. We know that the patient cannot be showing current risks of violence or deterioration because of subsection (b). He must have shown improvement already.
In my view, the reference to the patient’s current status considers whether the patient today continues to be at the same risk as he has displayed historically. Under subsection (c) he or she must still suffer from the same disorder. But, in Mr. Sexton’s case, is he still non-compliant with his medications? Does he still lack insight into his illness and not understand that the medicines are what has substantially improved his mood? Is there currently still reason to believe that the patient will leave his illness untreated? These are all present facts, involving his current condition, that show the continuation of the risk presented by the mental disorder which is already defined to be one that will cause serious issues if not treated.
In my view, looking at the words of s. 15 (1.1)(d) in the context of the other subsections of s. 15 (1.1) and interpreted to achieve the statutory purpose of the CTO to avoid the patient’s roller coaster of admission, remission, re-admission, the assessment of “the person's history of mental disorder” incorporates the definition of mental disorder from subsection (a) and brings with it the understanding that the disorder will cause the listed symptoms if left untreated. Then, the assessment of “current mental or physical condition” looks at whether there are currently any reasons to find that the expected outcomes of non-treatment is more or less likely to occur.
It is clear on the facts, that the CCB found that Mr. Sexton’s current state of non-compliance and lack of insight remains the same as it ever was. It also found that his mental disorder is one that will cause the listed outcomes if left untreated under subsection 15 (1.1)(a). The findings in terms of subsection 15 (1.1)(d) flow these findings which are well-grounded in the evidence without any words being read in to either s. 33.1 (4)((c)(ii) or s. 15 (1.1)(d).
It follows that I dismiss the appeal.
Additional pages attached:
Yes
X
No
March 22,
, 20
21
Date of Endorsement (Rule 59.02(2)(c)(ii))
Signature of Judge/Case Management Master (Rule 59.02(2)(c)(i))