REASONS FOR DECISION

[1] This is an appeal by Roald Allen (“R.A.”) from a decision of the Consent and Capacity Board dated November 19, 2020, with amended reasons dated December 3, 2020 (the “2020 Decision”), confirming that he is incapable of consenting to treatment with antipsychotic medication under s. 4(1) of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”).

JURIDICAL HISTORY

[2] R.A. is a 37-year-old man who is an involuntary patient at the Centre for Addiction and Mental Health.

[3] R.A. was initially found to be incapable to consent to antipsychotic and its ancillary medications and medications for hypertension and diabetes by his former psychiatrist, Dr. Brook. On June 14, 2018, the Board confirmed Dr. Brook’s finding of incapacity (the “2018 Decision”) following a hearing on June 13, 2018 (the “2018 Hearing”). On August 8, 2018, R.A. was discharged by Dr. Brook, and by St. Michael’s Hospital on July 25, 2018, before R.A.’s appeal from the 2018 Decision was heard. Dr. Brook is no longer R.A.’s psychiatrist.

[4] R.A. was then admitted to the Centre for Addiction and Mental Health on September 17, 2019, under the care of the Respondent, Dr. Joannou, who was granted intervenor status in the appeal of the 2018 Decision.

[5] The appeal of the 2018 Decision was heard on July 31, 2020, by Papageorgiou J.

[6] On October 26, 2020, in Roald Allen v. Dr. Shelley Brook, 2020 ONSC 6506, at para. 36, Papageorgiou J. set aside the 2018 Decision and sent the matter back to the Board on the following basis:

I am referring this matter to a tribunal properly constituted to reconsider the issue of [R.A.]’s capacity to consent to treatment and to consider the issue of [R.A.]’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 [R.A.]’s liberty and treatment decisions which are time sensitive and the hearing of the board should take place as soon as possible.

[7] The Board convened a hearing on November 6 and 12, 2020 (the “2020 Rehearing”), for the purposes of carrying out Papageorgiou J’s order.

[8] At the outset of the 2020 Rehearing, R.A.’s lawyer raised preliminary issues regarding the scope of the hearing and the admissibility of some of Dr. Joannou’s proposed evidence. Identical to the issues raised on this appeal, Mr. Berger submitted that the scope of the 2020 Rehearing should be limited to determining R.A.’s capacity to consent to treatment as at the date of the 2018 Hearing.

[9] As a corollary to that submission, Mr. Berger also submitted that therefore Dr. Joannou:

(a) could not rely on any evidence predating the 2018 Hearing that Dr. Brook had not placed before that Board; and

(b) could only tender evidence post-dating the 2018 Hearing to the extent it was offered to corroborate Dr. Brook’s finding of incapacity to consent to treatment, but could not tender any evidence relevant to an assessment of R.A.’s capacity as at the date of the 2020 Rehearing.

[10] In the 2020 Decision, at pp. 6-8, the Board ruled that the purpose of the 2020 Rehearing was to assess R.A.’s capacity to consent to treatment as at the date of the rehearing, and that therefore all of Dr. Joannou’s proposed evidence was admissible. At pp. 9-11 of the 2020 Decision, the Board denied Mr. Berger’s request that it stay its proceeding to permit him to seek instructions to bring a judicial review application. In so doing, the Board relied on well-established jurisprudence affirming that administrative proceedings should not be interrupted, and put on hold, pending an application for judicial review because this would be counterproductive to the Legislature’s intention that administrative proceedings, such as the 2020 Rehearing, be expeditious. R.A. would have his opportunity to bring the appropriate judicial review or appellate proceeding following the conclusion of the administrative proceeding.

[11] The Board proceeded with the 2020 Rehearing and affirmed Dr. Joannou’s finding that R.A. was incapable of consenting to treatment with antipsychotic medication.

ISSUES

[12] R.A. appeals the Board’s 2020 Decision on the basis that the Board erred in conducting a new hearing of this matter instead of the “rehearing” ordered by Papageorgiou J. and by admitting Dr. Joannou’s “new” evidence at this rehearing which was either not led by Dr. Brook in the 2018 Hearing, or was proffered to support his finding that R.A. presently lacked capacity to consent to treatment as at the 2020 Rehearing date.

[13] In essence this appeal raises the issue of the Board’s jurisdiction to convene a new hearing with fresh evidence under s. 80(10)(c) of the HCCA. At the heart of this argument is the meaning of the term “rehearing” as that term is used in s. 80(10)(c) of the HCCA (and in the decision of Papageorgiou J). R.A. alleges that the Board’s 2020 Rehearing was ultra vires its jurisdiction. R.A. was clear in his Notice of Appeal and reiterated in submissions that he is not challenging the 2020 Decision on the merits, but rather has restricted his appeal to the jurisdiction issue and the related issue concerning the Board’s admissibility of “new” evidence from Dr. Joannou.

STANDARD OF REVIEW

[14] R.A.’s appeal is being brought as a right under s. 80(1) of the HCCA. The HCCA allows for an appeal from a decision of the Board to this court on a question of law, fact, or both.

[15] On appeal, this court may exercise all the powers of the board; substitute its opinion for that of the health practitioner, an evaluator, the substitute decision maker, or the board; or refer the matter back to the board, with directions, for a rehearing in whole or in part, pursuant to s. 80(10) of the HCCA.

[16] In accordance with Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37, the appellate standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 apply. As this appeal involves an error of law, the standard is that of correctness.

ANALYSIS

[17] This appeal raises an issue of statutory interpretation of s. 80(10)(c) of the HCCA:

Powers of court on appeal

80 (10) On the appeal, the court may,

(c) refer the matter back to the Board, with directions, for rehearing in whole or in part. [Emphasis added.]

[18] The parties agree that Papageorgiou J. referred the matter back to the Board, with her directions, for a rehearing of the matter in its entirety.

[19] The parties further agree that there is no jurisprudence that interprets what a “rehearing” is comprised of under s. 80(10)(c) of the HCCA. Therefore, this is a case of first impression.

[20] However, R.A. submits that the “rehearing” ordered by Papageorgiou J. was a rehearing of the original subject matter that was before the Board at the 2018 Hearing (i.e., his capacity in 2018); namely, a rehearing of the issue of R.A.’s capacity as at the date of the 2018 Hearing and not an assessment of R.A.’s capacity to consent to treatment to be determined as at the date of the 2020 Rehearing.

[21] R.A. further submits that the evidence of Dr. Joannou relating to his capacity to consent to treatment as at the 2020 Rehearing was therefore not relevant and should not have been admitted. Furthermore, as the 2018 Hearing had a fixed evidentiary record, Dr. Joannou ought not to have been able to adduce any evidence predating the 2018 Hearing, that was not already before the Board. The only evidence Dr. Joannou ought to have been permitted to adduce was evidence post-dating the 2018 Decision in the nature of corroboration of Dr. Brook’s 2018 finding of incapacity.

[22] Dr. Joannou disagrees and submits that rehearing means a new hearing on the merits of R.A.’s capacity to consent to treatment assessed as at the date of the 2020 Rehearing.

[23] R.A. refers to p. 1 of the 2020 Decision in which the Board states that it was convening a “new hearing” in front of a differently constituted Board. R.A. alleges that this “new hearing” amounts to an excess of jurisdiction and contrary to the order of Papageorgiou J., rendering the hearing ultra vires the powers of the Board.

[24] In support of his position, R.A. referred to s. 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, by analogy. That subsection sets out the powers on appeal available to a court, and includes the power to order a new trial. R.A. submits that the rehearing conducted by the Board was analogous to ordering a new trial. R.A. reasons that as the HCCA does not permit a “new hearing” but rather a “rehearing”, “new” hearings are not an available option to the Board when a matter is sent back for a rehearing by the court.

[25] R.A. also referred me to s. 686(1) of the Criminal Code, R.S.C., 1985, c. C-46 by analogy. This subsection relates to hearings of an appeal against convictions or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of a mental disorder. This subsection provides that the Court of Appeal may order a new trial under s. 686(2).

[26] R.A.’s rationale appears to be that a new hearing is synonymous with a new trial, and therefore a rehearing must mean something different.

[27] R.A. also referred me to plain language meanings of “re”. R.A. submitted that the prefix “re” means “again”, and “redo” means do again, by way of examples. Therefore, R.A. reasoned, “rehear” means to hear again and “reconsider” means to consider again the same subject matter in time and substance as was originally heard or considered.

[28] I am not persuaded by R.A.’s argument or logic.

[29] First, and contrary to R.A.’s submission, Papageorgiou J did not order a rehearing at large, nor did Her Honour order that the rehearing be directed, temporally, to a retroactive assessment of R.A.’s capacity as at the 2018 Hearing Her Honour ordered a rehearing regarding the issue of R.A.’s capacity pursuant to the HCCA, at para. 5 of her reasons:

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 [R.A.]’s capacity to consent to treatment back for a rehearing.

[30] Second, R.A.’s argument when extended to its logical conclusion is that a rehearing means that the newly constituted panel must essentially take the evidentiary record as it existed, supplementing the record only to the extent possible to corroborate the patient’s capacity as it then existed (i.e., with respect to subsequent clinical observations and other evidence post-dating the original hearing). This means that the rehearing is more akin to an appellate review than a new hearing.

Statutory Interpretation Principles and Analysis

[31] As stated at the outset, this matter must be resolved on principles of statutory interpretation.

[32] The “modern approach” to statutory interpretation “requires a court to consider the words of a statute ‘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 Parliament’”: Belwood Lake Cottagers Association Inc. v. Ontario (Environment and Climate Change), 2019 ONCA 70, 431 D.L.R. (4th) 318, at para. 39, citing Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at paras. 9-12.

[33] While the ordinary meaning of the words employed in a statute is informative, Iacobucci J., in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 34, cautioned:

The grammatical and ordinary sense of the words employed in s. 70(1)(b) is not determinative, however, as this Court has long rejected a literal approach to statutory interpretation. Instead, s. 70(1)(b) must be read in its entire context. This inquiry involves examining the history of the provision at issue, its place in the overall scheme of the Act, the object of the Act itself, and Parliament’s intent both in enacting the Act as a whole, and in enacting the particular provision at issue.

[34] In Ayr Farmers Mutual Insurance Company v. Wright, 2016 ONCA 789, at paras. 28-29, the Court of Appeal characterized the modern approach as follows:

The modern approach to statutory interpretation involves a textual, contextual and purposive analysis of the statute or provision in question.

Three factors must be examined: “the language of the provision, the context in which the language is used and the purpose of the legislation or statutory scheme in which the language is found”: Blue Star Trailer Rentals Inc. v. 407 ETR Concession Co., 2008 ONCA 561, 91 O.R. (3d) 321, at para. 23.

[35] Finally, a court will not adopt an interpretation of a statutory provision that will lead to an absurdity: Belwood Lake, at para. 40.

[36] The purposes of the HCCA are set out in s. 1:

(a) to provide rules with respect to consent to treatment that apply consistently in all settings;

(b) to facilitate treatment, admission to care facilities, and personal assistance services, for persons lacking the capacity to make decisions about such matters;

(c) to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive personal assistance services by,

(i) allowing those who have been found to be incapable to apply to a tribunal for a review of the finding,

(ii) allowing incapable persons to request that a representative of their choice be appointed by the tribunal for the purpose of making decisions on their behalf concerning treatment, admission to a care facility or personal assistance services, and

(iii) requiring that wishes with respect to treatment, admission to a care facility or personal assistance services, expressed by persons while capable and after attaining 16 years of age, be adhered to;

[37] The following provisions are relevant to a contextual understanding of s. 80(10)(c) of the HCCA:

No treatment without consent

10 (1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or

(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act.

Capacity depends on time

15 (2) A person may be incapable with respect to a treatment at one time and capable at another.

[38] Also of relevance to a contextual understanding of s. 80(10)(c) of the HCCA, is s. 18(3) of the HCCA. Subsection 18(3) directs a health practitioner to delay treatment, when the patient has informed the health practitioner that they intend to appeal the Board’s decision of incapacity, until either the appeal period has lapsed or the appeal of the Board’s decision has been disposed of.

[39] Finally, s. 32(5) of the HCCA provides:

If a health practitioner’s finding that a person is incapable with respect to a treatment is confirmed on the final disposition of an application under this section, the person shall not make a new application for a review of a finding of incapacity with respect to the same or similar treatment within six months after the final disposition of the earlier application, unless the Board gives leave in advance.

[40] The purposes and scheme set out in the HCCA clarify that the capacity of a patient is determined in a contemporaneous manner. Therefore, a rehearing, within the meaning of s. 80(10)(c), must also mean that a determination of capacity must be made as at the date of the rehearing, and not with reference to an initial determination made at an original hearing some time earlier. This temporal interpretation of the term “rehearing” is consistent with the purposes of the HCCA, and is harmonious with the statute when read as a whole and within the context of the relevant provisions.

[41] Furthermore, an “absurd” conclusion would result if a patient was ostensibly forced to be treated for a condition from which they may have recovered in the period between the original Board decision and a rehearing ordered by the court from that original determination. This is because an outdated finding of incapacity would be in place pending a further hearing to determine the patient’s contemporaneous capacity. This situation would place the patient’s personal autonomy and integrity in jeopardy, contrary to the very purpose of the HCCA.

[42] The courts have also clarified that the legislative intent as reflected by the HCCA requires that the relevant time period relating to the assessment of the patient’s capacity or incapacity is at the time of the hearing: see, for example, L.W. v. Kantor, 2016 ONSC 3228, at paras. 24-25, 29; Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, at para. 118.

[43] Dr. Joannou has offered a great deal of case law in which the conduct of a rehearing meant a new hearing into the patient’s capacity, assessed as at the date of the new hearing and before a differently constituted panel. For example, in Gligorevic v. McMaster, 2012 ONCA 115, at para. 114, the Court of Appeal, in ordering a rehearing under s. 80(10)(c), characterized the rehearing as follows: “I would allow the appeal, set aside the Board’s incapacity decision and remit the matter to the Board for a new capacity review hearing” (emphasis added).

[44] The Board has also uniformly treated “rehearing” as a new hearing to assess the capacity of the patient as at the date of the rehearing: see ZG (Re), 2012 CanLII 36029 (Ont. C.C.B.); LC (Re), 2015 CanLII 43759 (Ont. C.C.B.); RJ (Re), 2015 CanLII 88882 (Ont. C.C.B.); and LEJ (Re), 2012 CanLII 38986 (Ont. C.C.B.).

[45] Dr. Joannou also points out that there have been several appeals from Board decisions made at rehearings in which the impugned finding of incapacity was clearly made in reference to the patient’s capacity as it existed at the date of the rehearing. Appellate courts, reviewing decisions rendered on rehearings under the HCCA, have not taken the approach that it was an error for the Board to have made a finding based on evidence of the patient’s contemporaneous capacity, or lack thereof, to consent to treatment as at the date of the rehearing: see, for example, LC (Re); Coburn v. Wilkie, 2016 ONCA 876.

[46] On the other hand, R.A. offered no case law to support his interpretation of “rehearing” within the context of s. 80(10)(c) of the HCCA.

[47] If R.A.’s definition of “rehearing” was correct then it would lead to a result that is inconsistent with the legislative scheme and intent insofar as the patient’s capacity may have significantly changed since the date of the original hearing before the Board. For example, in Gligorevic, several years had passed between the original hearing and the order of a new hearing under s. 80(10)(c) of the HCCA. If a new Board on a rehearing found that the patient lacked capacity at the date of the original hearing, but at the date of the rehearing the patient had capacity, the patient would be prejudiced and required to request a further hearing to determine their current capacity. To do so, the patient would either have to wait six months or seek leave of the Board to commence the review sooner.

[48] In R.A.’s case, had the Board “redone” the 2018 Hearing and found that R.A. had capacity in 2018, he would still have been subject to Dr. Joannou’s subsequent finding of incapacity.

[49] As stated above, the court will avoid an interpretation of a statutory provision that would lead to an absurd result.

[50] I agree with the views of the Board in the present matter which were stated as follows at pp. 5-6 of the 2020 Decision:

The HCCA makes a point of recognizing that a person’s capacity may fluctuate over time and may vary from one treatment to another. This principle requires the Board, at every Form A hearing, to evaluate whether a person remains incapable at the time the hearing takes place, as opposed to simply looking at whether the person was incapable when the health practitioner assessed capacity and made the finding. There is usually a period of one or two weeks (or longer) between a health practitioner’s assessment of capacity and the date the hearing takes place, during which period the person might regain capacity for any number of reasons. For the Board review to ignore such potential return to capacity as of the day of the hearing would be illogical and prejudicial to the allegedly incapable person. The only meaningful interpretation of the HCCA is for the Board to require evidence to support the health practitioner’s finding of incapacity at the time the assessment was performed and up to the day the hearing takes place (this interpretation has been endorsed by the courts, see for example, L.W. v. Kantor, 2016 ONSC 3228, particularly paras. 24, 25 and 29, and Starson v. Swayze 2003 SCC 32, para. 118. L.W. states at para. 24: “A person is presumed capable with respect to treatment. The onus of proving incapacity is on the person alleging it. Further, capacity can fluctuate over time – the relevant time is the time of the hearing.” Starson, at para. 118: “A patient’s capacity may fluctuate over time. The Board’s decision is specific to the patient’s capacity at the time of the hearing.”)

It would be impractical and illogical to review Dr. Brook’s 2018 finding of incapacity, which was by now irrelevant and had in fact been cancelled. To do so would be a waste of everybody’s time and could lead to absurd results. Although the Court decision did not so specify, the only reasonable interpretation of Justice Papageorgiou’s order for a “rehearing” was to conduct a review of [R.A.]’s capacity as of the day of the hearing, in the context of Dr. Joannou’s fresh capacity assessment of October 2019 and ongoing finding of incapacity. I interpreted the word “rehearing” to mean a “new hearing” and not necessarily a hearing of the exact same subject matter as the original hearing. (emphasis in original)

[51] As a result of this finding that the Board had jurisdiction under s. 80(10)(c) to hold a rehearing to assess the capacity of the patient as at the date of the rehearing, it necessarily flows that evidence that is relevant to an assessment of the patient’s capacity to consent to treatment as at the date of the rehearing is also admissible by the Board: see Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15(1). Accordingly, there was no error in the Board’s decision to admit Dr. Joannou’s evidence relating to his assessment of R.A.’s capacity as at the date of the rehearing.

[52] Furthermore, since the rehearing was not an “appeal” of the 2018 Hearing, there was no error committed by the Board in permitting Dr. Joannou to adduce evidence that predated the 2018 Hearing but was not part of the evidentiary record before the Board in 2018. Therefore, I also reject R.A.’s argument that any “new” evidence adduced by Dr. Joannou that had not been presented at the 2018 Hearing had to meet the admissibility criteria of admitting “fresh evidence” on an appeal.

CONCLUSION

[53] The appeal is dismissed.

[54] I understand that costs are not being sought. If I am mistaken, then counsel may contact me to arrange for the delivery of costs submissions.

Justice S. Vella

Released: July 2, 2021

COURT FILE NO.: CV-20-00652851-0000

DATE: 20210702

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROALD ALLEN

Appellant

– and –

JASON JOANNOU

Respondent

REASONS FOR JUDGMENT

Vella J.

Released: July 2, 2021

Allen v. Joannou, 2021 ONSC 4730

Case Summary

REASONS FOR DECISION

JURIDICAL HISTORY

ISSUES

STANDARD OF REVIEW

ANALYSIS

Statutory Interpretation Principles and Analysis

CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 5