COURT FILE NO.: CV-21-00660977-0000

DATE: 20210826

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board

Pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A as amended and the Mental Health Act, R.S.O. 1990, c. M.7

BETWEEN:

KM

Appellant

• and -

DR. SACHA AGRAWAL

Respondent

Mercedes Perez for the Appellant.

Kathleen B. MacDougall for the Respondent.

HEARD: August 11, 2021

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION.. 2

B. PROCEDURAL BACKGROUND.. 3

C. FACTS. 4

1. KM’s Mental Health History. 4

2. Evidence at the Consent and Capacity Board Hearing. 6

D. THE BOARD’S DECISION.. 9

E. GROUNDS FOR THE APPEAL.. 12

F. LAW... 14

1. Capacity to Consent to Treatment 14

2. Issuance and Renewal of Community Treatment Orders. 20

3. Standard of Appellate Review of the Decisions of the Consent and Capacity Board. 23

G. ANALYSIS AND DISCUSSION.. 24

1. Capacity to Consent to the Treatment of a Community Treatment Plan. 24

2. Re Ohenhen. 27

3. Community Treatment Orders. 30

H. Conclusion. 32

A. INTRODUCTION

[1] The Respondent, Dr. Sacha Agrawal, is the psychiatrist for the Appellant, KM, whose name I have anonymized.

[2] On February 4, 2021, pursuant to the Health Care Consent Act, 1996[^1] and the Mental Health Act,[^2] Dr. Agrawal found KM incapable of consenting to the following two treatments: (a) antipsychotic medications; and (b) a Community Treatment Plan (“CT Plan”).

[3] On February 24, 2021, Dr. Agrawal issued a Community Treatment Order (“CT Order”).

[4] KM applied to the Consent and Capacity Board for a review of the finding that he was incapable of consenting to the CT Plan and the finding that the conditions for a CT Order had been satisfied.

[5] It is to be noted - and this point is of fundamental importance to what follows in these Reasons for Decision - that KM did not appeal the decision that he was incapable of consenting to the treatment of antipsychotic medications. He did not dispute that he did not have the capacity to consent to the treatment of antipsychotic medications. He, however, asserted that he did have the capacity to consent to the treatment of a CT Plan that required him to be treated with antipsychotic medications.

[6] On March 22, 2021, with the lawyer member of the Board (the Chair) dissenting, the Consent and Capacity Board upheld Dr. Agrawal’s decisions.

[7] KM appeals the decision of the Board to the Superior Court of Justice.

[8] KM’s appeal raises two issues that are matters of first instance for the Superior Court.

[9] The first issue is whether the test for capacity to consent to a CT Plan must focus only on the patient’s ability to understand the administrative or procedural consequences of the CT Plan (the liberty interests) isolated from the therapeutic consequences of the CT Plan.

[10] In other words, on this appeal, KM submitted that since the evidence established that he understood that if he failed to comply with a CT Plan there would be consequences that affected his liberty interests, therefore, he had the capacity to consent to the CT Plan notwithstanding that he did not have the capacity to consent to the treatment of antipsychotic medications that was incorporated into his CT Plan.

[11] The second issue of first instance is: Does the precondition to the issuance of a CT Order that the person is likely because of a mental disorder to suffer substantial mental deterioration require the likelihood of the deterioration to occur within the six-month duration of the CT Order. Put somewhat differently, the question of first instance is: Does s. 33.1 (4)(c) (iii) of the Mental Health Act require a precise temporality of within six months for the likelihood that the patient will suffer substantial mental deterioration if he or she does not receive continuing treatment or care or continuing supervision while living in the community?

[12] For the reasons that follow, I conclude that the therapeutic aspects of a CT Plan cannot be ignored in the test for capacity to consent to a CT Plan and it is not the case that the test for capacity to consent to a CT Plan must focus only on the patient’s ability to understand the administrative or procedural consequences of the CT Plan (the liberty interests) isolated from the therapeutic consequences of the CT Plan. I conclude that s. 33.1 (4)(c) of the Mental Health Act does not require a precise temporality of within six months for the likelihood of the risk of a substantial mental deterioration.

[13] Further, I conclude that the conclusions of the majority of the Consent and Capacity Board were legally correct and that the majority of the Board made no palpable and overriding error with respect to KM’s capacity to consent to the CT Plan and no palpable and overriding error with respect to the preconditions for the CT Order in the immediate case. I therefore dismiss the appeal.

B. PROCEDURAL BACKGROUND

[14] On February 4, 2021, Dr. Agrawal found KM incapable of consenting to: (a) being treated with antipsychotic medication; and (b) a CT Plan for antipsychotic medications and appointments with a mental health care team.

[15] On February 24, 2021, Dr. Agrawal issued a CT Order to replace a series of Orders that had lapsed. The CT Order includes monthly appointments with various members of KM’s treatment team, as well as KM taking injectable antipsychotic medication.

[16] KM applied to the Consent and Capacity Board for review of: (a) the finding of incapacity with respect to the CT Plan; and (b) whether the criteria for issuing the CT Order had been met. These applications were heard by telephone conference call on March 22, 2021.[^3]

[17] At the hearing, counsel to KM clarified that the treatment at issue was only the CT Plan. As already mentioned above, this purportedly limited review is an important point to keep in mind. At the hearing, KM did not appeal the finding with respect to his incapacity to consent to the treatment of antipsychotic medication.

[18] At the hearing, Dr. Agrawal and KM testified. In addition to their testimony, the evidence consisted of Mental Health Act forms, a clinical summary prepared by Dr. Agrawal, notes from KM’s clinical record, and an Agreed Statement of Facts.

[19] On March 28, 2021, the Board released its written Decision. The majority of the panel members upheld the finding that KM was incapable of making decisions regarding the CT Plan. The lawyer member of the panel dissented. The Board upheld the CT Order.

C. FACTS

1. KM’s Mental Health History

[20] KM is a 60-year-old man with schizoaffective disorder, bipolar type. He has suffered and is suffering from a mental disorder that is continuous and ongoing and that requires treatment and supervision in the community. He lives independently in Toronto, Ontario. He is a former professional musician. He is unemployed and supported by the Ontario Disability Support Program. His common law spouse passed away in 2018. Their son was apprehended at birth by the Children’s Aid Society, and KM has had no contact with his son. KM remains in regular contact with his sister and mother who both reside in British Columbia, as well as with two siblings who reside in Ontario. The Public Trustee and Guardian is KM’s substitute decision-maker.

[21] KM’s psychiatric history began when he was 17-years old. In the following years, he had at least ten admissions to CAMH (Centre for Addiction and Mental Health) and an admission to UHN (University Health Network). When unwell, he has presented with significant weight loss, paranoid delusions, auditory hallucinations, disorganization, pressured speech, and behaviourally there is poor hygiene, poor housekeeping, bizarre behaviour, increased agitation, hostility, and aggression.

[22] In late 2009, from December 22, 2009 to February 23, 2010, KM was admitted to CAMH after a period of no treatment with medications. He was floridly psychotic. He was treated with olanzapine and divalproex sodium, with which he made a slow but uneventful recovery, and was discharged back to the care of the Interact Team (KM’s mental health care team).

[23] In 2012, from June 10, 2012 to August 23, 2012, KM was admitted after another period of no treatment with medications. He was admitted involuntarily and found incapable, both findings were upheld by the Consent and Capacity Board. He improved with olanzapine and divalproex and was discharged to the care of the Interact Team, with a CT Order.

[24] Soon after his discharge in August 2012, he stopped the oral medication. The attending team decided to enforce regular appointments but not a medication regime, and after a six-month period during which there was no sign of mental deterioration, the CT Order was allowed to lapse at KM’s request. His care was transferred to the Archway program, which is closer to his house.

[25] However, after many months of mild psychotic symptoms, KM’s mental status substantially deteriorated, which led to his involuntary admission in 2013 from September 9, 2013 to November 11, 2013. He presented with pressure of speech, suspiciousness, hostility, paranoia and objective evidence of auditory hallucinations. He threatened to kill all the psychiatrists in the world. He required locked seclusion and chemical restraint on account of aggressive behaviour.

[26] KM improved with risperidone LA, and in November 2013, he was discharged on a CT Order to the care of the team at Archway, with his mother providing substitute consent.

[27] In December 2013, KM’s mother stated she no longer wished to be the substitute decision-maker, and, as no other family member was available or willing, the Public Guardian and Trustee became the substitute decision-maker.

[28] Under the CT Order, KM received treatment with various anti-psychotic medications. At his request, a second opinion was obtained about the merits of maintenance treatment with antipsychotic medications. In August 2019, Dr. Pablo Diaz, a senior psychiatrist at CAMH, opined:

KM [who] has a well-documented history of schizoaffective disorder bipolar type has responded low dose of antipsychotic medication; however, he has complained of periods side effects (akathisia, sexual dysfunction, sedation, many other nonspecific symptoms). It is my impression that the benefits of the medication continues to outweighed its side effects. It is very likely he will relapse if he is unmedicated. More than 50% of patients that have similar diagnosis will relapse without treatment within 12 months and we [sic] will recheck [sic relapse] 100% within 3 years.

[29] In November 2019, while he was in hospital for a suspected aortic arch clot (later ruled out), KM revealed that he had not taken the paliperidone 3 mg oral for approximately one month due to side effects. His medication was changed to lurasidone 40 mg oral.

[30] In April 2020, it came to light that KM was not taking his oral medications consistently. A plan was put into place to have his medication administration observed by a nearby pharmacy on a daily basis, but he did not adhere to the plan, and subsequently, KM was brought to UHN by police after causing a disturbance at a condo building lobby.

[31] From May 5, 2020 to June 11, 2020, KM was involuntarily admitted after presenting in the UHN Emergency Department as disorganized, suspicious, and hostile toward hospital staff and co-patients. He was re-started on paliperidone sustenna and his symptoms improved, though he developed akathisia, which was treated first with propranolol and then mirtazapine.

[32] In 2020, the CT Order was renewed while he was in hospital, and the CT Order was upheld by the Consent and Capacity Board.

[33] Since his last admission to hospital, KM’s symptoms have been well-controlled. The dose of his medication has been slowly reduced to target the side effects that he experiences, most prominently, akathisia. He now receives paliperidone sustenna 50 mg IM every four weeks and there is a plan in place to try reducing it to five weeks. He accepts the medication but often requires outreach from his community nurse to receive it.

[34] The CT Order expired on November 6, 2020, and although there was always an intention to continue a CT Order, a new CT Order was not issued until February 24, 2021. During this period of time, when he was not under any actual legal compulsion to comply with the CT Plan, KM continued to comply with regular appointments with the outpatient team and with the administration of injectable antipsychotic medication.

[35] During the more than eight years that KM has been subject to successive CT Orders, Dr. Agrawal has not had to resort to having him arrested and re-hospitalized, although this has occurred.

[36] KM told Dr. Agrawal that he does not benefit from medications and prefers not to be on them. It was Dr. Agrawal’s opinion that KM is unable to appreciate that not taking the medications will result in a full-blown relapse. Dr. Agrawal believes that the CT Order enables KM to receive ongoing medication treatment and support and thereby prevent relapse into psychosis. It was Dr. Agrawal’s opinion that given the repeated pattern of discontinuing medications, without a CT Order, KM is likely to discontinue treatment again and suffer substantial mental deterioration.

[37] KM met with Dr. Agrawal on February 4, 2021. On February 4, 2021, Dr. Agrawal found KM incapable with respect to the CT Plan and with respect to antipsychotic medication. The current CT Plan requires KM to take injectable antipsychotics as prescribed and includes monthly visits with various members of KM’s treatment team and a meeting with his case manager at least once per week. These terms are similar to previous CT Plans.

[38] On February 24, 2021, Dr. Agrawal reissued KM’s CT Order.

[39] KM applied for a review of the finding of incapacity and whether the criteria for issuing the CT Order had been met. These applications were heard on March 22, 2021.

2. Evidence at the Consent and Capacity Board Hearing

[40] Dr. Agrawal testified that KM suffers from a mental condition that has resulted in many hospitalizations over the past forty years. Dr. Agrawal testified that KM’s symptoms are currently in remission. Dr. Agrawal said that KM is presently on the lowest possible dose of a long-acting injectable antipsychotic medication.

[41] Dr. Agrawal acknowledged that KM had the ability to understand and did appreciate that if he stopped complying with his obligations under the CT Plan, he could be arrested by police and detained in hospital. Dr. Agrawal recounted a conversation in which KM discussed how he did not like this threat and thought it was unnecessary because he would take his medication even if he was not under a CT Order.

[42] It was Dr. Agrawal’s opinion that KM’s illness demonstrates a pattern of behaviour that is likely to recur absent a CT Order. Dr. Agrawal stated that when KM reduces or stops his medication, he experiences substantial deterioration, and requires more than a month of hospitalization to stabilize sufficiently for discharge. It was Dr. Agrawal’s opinion that KM has and will exhibit a pattern of substantial mental deterioration without psychiatric medication.

[43] It was Dr. Agrawal opinion that KM is not able to recognize the manifestations of his illness, and thus was not able to acknowledge benefits of hospitalization, medication, or the CT Plan.

[44] Dr. Agrawal agreed that there was uncertainty about when it might occur, but it was his opinion that it was likely that because of mental disorder KM would suffer substantial mental deterioration if he stopped taking his prescribed medications and it was on this basis that the conditions for a CT Order were satisfied. Thus, Dr. Agrawal testified:

What I can say is that in 2020, he experienced substantial mental deterioration to the point where he was brought in by police, not because I called them, but because someone in the community called the police, and he had a one-month stay in hospital and that was – I’d have to go through the dates exactly, but my recollection is that was within a year of switching to oral medications from injectable.

So, you know, that was only last year. So, it is possible that KM would stay on his medication and not experience deterioration, absolutely it’s possible, but in 2013 something every similar happened, he left hospital in 2012. He stopped his medications promptly after leaving the hospital and by the next year, he was back in the hospital and had a two month stay in hospital.

So, to me the uncertainty mostly has to do with how long KM would stay on the treatment without the CTO […] maybe there’s truth to this, that KM is saying he would stay on his medications even if a CTO – I don’t know the answer.

What I can say is that if KM chooses to stop the medication, which I think is highly likely based on what I’ve seen before in terms of his perspective … that the time between stopping the medicine and relapsing would be less than a year.

[45] Dr. Agrawal said that although KM was aware that police may bring him into the hospital if he does not take his medication, he does not identify the range of other potential consequences, including mental deterioration.

[46] Dr. Agrawal noted that although KM stated that he would continue to take medication without a CT Order, KM could not provide a rationale for why he would do so. Dr. Agrawal opined that KM was not able to recognize the manifestations of his illness, and thus was not able to acknowledge benefits of hospitalization, medication, or the CT Plan.

[47] Dr. Agrawal testified that without a CT Order, KM would likely stop treatment with antipsychotic medication, and eventually withdraw from all support of the treatment team. Dr. Agrawal explained that KM requires encouragement and support from his treatment team to adhere to the CT Plan. Dr. Agrawal testified that, because of KM’s denials about his mental condition and his need for medication, he is likely to discontinue meeting with the treatment team and taking medication absent a CT Order.

[48] Based on KM’s history of noncompliance, his inability to appreciate the nature of his mental condition, his inability to appreciate the benefits of the treatment, his perspective on medication, and its impact on his life, it was Dr. Agrawal’s opinion that KM was at high risk of relapsing absent a CT Order. Dr. Agrawal submitted that the CT Order is the least onerous option to adequately support KM.

[49] During the hearing, during his cross-examination by Mr. Procope, KM’s counsel, there was the following exchange with Dr. Agrawal, (with my emphasis added as it pertains to the issue of KM’s capacity to consent to the CT Plan):

Q. So your finding with respect to capacity with respect to the Community Treatment Plan it sounds like it only relates to essentially ongoing treatment with the antipsychotics and your meetings which support that. You're not considering a Community Treatment Plan at all as a separate topic from the antipsychotic medication, is that fair to say? You haven't carved out his consideration of the need for the plan supported by a CTO as opposed to his appreciation of the consequences of not taking the medication?

DR. AGRAWAL: So, if I'm understanding the question correctly, Mr. Procope, for this particular situation, so for KM and this renewal, I agree that the essence of the Community Treatment Plan is for KM to say, supported with his use of antipsychotic medication, that that is the main thrust of it and that was the focus of my assessment in terms of the CTO, the purposes of it being to support his adherence to the medication, am I understanding your question correctly?

Q. I think so. […] I want to know what the consequences are of his not having a Community Treatment Plan which is usually something we have to consider when we're looking at capacity to consent to a Community Treatment Plan, […] It doesn't relate to just ongoing treatment with antipsychotic medication. Is there a consequence to not having a Community Treatment Plan separate and apart from medication?

DR. AGRAWAL: Not really. I mean, I think not having the Community Treatment Plan, the risk from my perspective is that it would facilitate KM in choosing to not take medication or see us even, which has happened before. […] So, to me the risk of not being on medicine, not being on a Community Treatment Order is not just about not being on the medication but also to do with us not --

Q. Okay. And so your view is that he just generally needs ongoing treatment with medication now, and because I guess you're connecting the CTO with that ongoing treatment, that's why without the CTO the form 1 criteria are in place, is that accurate?

DR. AGRAWAL: Yes.

Q. Okay. So, in your mind it's essentially inevitable that without a CTO he would not take medication, is that right?

DR. AGRAWAL: I wouldn't say inevitable because I think that's not fair enough to KM, but I would say that the risk is very, very high based on both his position about the medication and it's impact on him and also his past behaviours. I think there the risk is very high that KM would not continue his medication absent the CTO.

Q. So, I mean it's his preference not to take it but he understands he's being forced to and that's been pretty consistent since his discharge last summer, right?

DR. AGRAWAL: Yes. I think your earlier question, to that point, I think KM is well-aware that if he doesn't follow through with the Community Treatment Plan terms meaning connect with Franklin roughly around when his injection is due then there's a distinct possibility that we would have the police bring him to the hospital for it.

[50] During the hearing, there was the following exchange between, Dr. Agrawal, the Chair, and Mr. Procope (once again with my emphasis added for the purposes of this appeal).

THE CHAIR: […] So, Dr. Agrawal, let me ask you this, at the outset of this hearing I had asked Mr. Procope some questions about the CTP and the antipsychotic medications, and I understood from what Mr. Procope had indicated was that […] they weren't challenging the finding of incapacity with respect to antipsychotic medications at this hearing. Is that your understanding and were you aware of that prior to this hearing?

DR. AGRAWAL: You know Mr. Chair, not being a lawyer the subtlety around that question I don't think I fully grasp. What I would say is that as I answered in my evidence that for me this particular Community Treatment Plan is largely to do with supporting use of an antipsychotic medication and so it's difficult for me to separate consent and capacity to the CTP from capacity to making decisions about antipsychotics. So in preparing for this hearing I'm thinking about the question about capacity with respect to antipsychotics because to me that's the most germane part of the CTP but whether there's a legal nuance to those distinctions I defer to you to maybe help me understand.

THE CHAIR: So let me -- and thank you. Let me just take this moment, and it's not a really large job to do but sometimes it's helpful for everybody so we're sort of -- so there is a distinction between writing a decision related to the class of medications antipsychotics and the Community Treatment Plan differently. So, when I write a decision based on hearings as you both will know often in the decision it can be written antipsychotic medications, CTP and so CTP is it's own modality of treatment. So, this is why I'm asking this question because if Mr. Procope is indicating that they don't want to challenge the finding of incapacity with respect to antipsychotic medications we as The Board are still being asked to review a finding with respect to the Community Treatment Plan which is a distinct form, very different as you know. So we may need to render two decisions or one decision, need to decide on both. So that's why I'm just asking your understanding at this point and I think you've given evidence but you said that you made a finding with respect to both the antipsychotic medications and the CTP, right, Dr. Agrawal, in your opinion?

DR. AGRAWAL: I made both of those findings and I would -- I guess I would say to your question that I was not aware either way whether the question of capacity for antipsychotics would be formally contested or reviewed by the Panel because for me the arguments for the CTO are so highly contingent on the question about capacity for antipsychotics that although I appreciate they're separate things and if you make a finding about the CTO and not about the antipsychotic it reserves KM's right to have the Panel review capacity around the antipsychotics; even understanding all that for me the evidence and the argumentation is essentially the same one way or the other so that's why I gave the evidence that I did.

THE CHAIR: Okay. And let me just clarify with you, Mr. Procope, as I took what you said at the outset and this is why I ask these question at the outset, I just want to make sure because -- make sure we're getting the evidence we need to make the decision. Is it the case that at this hearing your client does not challenge the finding of incapacity for antipsychotic medication?

MR. PROCOPE: Yes, correct.

THE CHAIR: He is challenging the finding with respect to the Community Treatment Plan, is that correct?

MR. PROCOPE: Yes. And, you know, just like Dr. Agrawal has his overlap there's so much overlap between the criteria for the CTO and the capacity that in my submission it's difficult to separate the capacity with respect to the Community Treatment Plan from the criteria for the CTO as well.

THE CHAIR: I understand what both of you are saying. It's just that The Board has it decide on the application that's before us. So even if Dr. Agrawal has made a finding of incapacity to both the antipsychotic medications and the CTP if the applicant appears before The Board and says look, I'm only challenging the one, the CTP, then, you know, it would not -- we're not really deciding on the antipsychotic medications and that's why I remain incapable to the antipsychotic medications because nobody has brought an application for it and that's why I'm trying to get clarification. If what we're really deciding here is just with respect to the CTP then we need to know that. So that's your understanding?

MR. PROCOPE: That's my understanding.

D. THE BOARD’S DECISION

[51] For present purposes the pertinent portions of the Board’s decision are set out below:

ANALYSIS

The panel had two issues to decide. The first issue was to determine whether to uphold the health practitioner’s finding that KM was incapable to consent to the CTP. The second issue was to determine whether the criteria for the CTO had been met.

1. Capacity to Consent to Treatment

Did the evidence establish that KM was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment?

The majority of the panel, the nurse member and public member, both found that the evidence had established that KM was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about treatment regarding the CTP. However, the lawyer member dissented and adopted the minority position that the evidence had not established that KM had failed this second branch of the statutory test with respect to KM’s ability to appreciate consequences of a decision regarding the CTP.

Dr. Agrawal’s evidence was that KM suffered from schizoaffective disorder – bipolar type (Exhibit 1). There was a history of several hospitalizations where KM manifested decompensatory behavior including in 2009, 2012, and 2013 (Exhibit 2). These hospitalizations reflected that when KM was treated with antipsychotic medications he would improve and was discharged back into the community. Dr. Agrawal stated that he took over KM’s care around 2012 as the MRP. Dr. Agrawal added that in the early days, KM would report that he was fine without antipsychotic medications but would relapse and start to manifest mental deterioration when he did not take the medications.

When KM did not take his antipsychotic medications, the evidence revealed that he would become floridly psychotic (Exhibit 2). At the same time, however, it appears that KM continued taking his medications consistently from 2012 to 2020 while on a CTO. Dr. Agrawal stated that around 2020, KM persuaded him to switch his long-acting injectable (LAI) of antipsychotic medications to an oral dose of Lurasidone. Dr. Agrawal stated that because KM did not take the oral dose of medication regularly his mental state deteriorated to the point that he needed to be hospitalized (Exhibit 7). KM was later restarted on a LAI of paliperidone, and his symptoms improved but at the time of the hearing these were in remission, according to Dr. Agrawal.

Dr. Agrawal’s opinion was that if KM were not on a CTO, and therefore on a CTP, it was unlikely he would continue taking antipsychotic medications because the CTP would not be in force mandating him to take the proposed medications. Dr. Agrawal stated that the CTP was in place to ensure relapse prevention. Dr. Agrawal stated that KM told him that he could go a long time without medications. KM disagreed with this and stated that he would continue to take the antipsychotic medications. KM stated that he just did not believe he required the CTP to “force” him to take the medications.

Dr. Agrawal was of the opinion that KM was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding the proposed treatment of the CTP. Dr. Agrawal conceded that KM was able to appreciate that the doctor could have the police bring him to hospital if he were non-compliant with his CTO. Dr. Agrawal added that KM would tell him that he disagreed that the reason he previously ended up in hospital was due to mental disorder; instead, KM would report that his hospitalization was due to other reasons such as individuals calling the police to have him admitted. Dr. Agrawal stated there was essentially no room for KM to believe that he may have been hospitalized previously due to mental disorder.

Dr. Agrawal’s opinion was that if KM were not on the CTP, this would facilitate KM choosing not to see him for antipsychotic medications. Dr. Agrawal’s opinion was there was a high likelihood that KM would stop taking the treatment if not on a CTP. Dr. Agrawal acknowledged that if KM were not on the CTP, and if KM suddenly stopped attending an appointment for the LAI, he would know right away. Dr. Agrawal added that if this happened, he believed KM would decompensate mentally within one year or less. […]

[…] Dr. Agrawal stated that he never had to threaten KM with a Form 47 to ensure that he complied with the requirements of the CTP.

KM also stated that he would continue to see the nurse and Dr. Agrawal even if he were not on the CTP. When KM was asked if he believed he had a mental disorder, he did not answer the question directly but rather began talking about the euphoria he received when performing music in front of large crowds.

The evidence showed there was a period where KM was not on a CTO from approximately November 2020 to February 2021, and yet KM continued to attend appointments and take the antipsychotic medications during that period. […]

Dr. Agrawal’s opinion was that KM would likely choose to distance himself from taking medications if not on the CTP, and the risk of relapse in these circumstances would be high. Dr. Agrawal added that being on a CTP was the least restrictive option for KM.

[…] KM’s counsel argued that KM essentially complied with taking antipsychotic medications even when he was not followed on a CTP over a few months from November 2020 to February 2021. KM’s counsel indicated that even if KM were not on the CTP, he would remain incapable to antipsychotic medications and be followed in the community; therefore, if KM stopped taking the medications KM knew that Dr. Agrawal could just re-issue the CTP. KM’s counsel argued that KM’s treatment team would still be following him in the community, but from KM’s perspective he simply did not want the coercive element of a CTP to force him to take medications.

The majority of the panel, the public member and nurse member, both found that KM did not have the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision. The majority found there was a history of KM being non-compliant with antipsychotic medications that suggested he was unable to appreciate the consequences of what may occur if he stopped the antipsychotic medications. The majority found if KM were not on a CTP it was likely he would stop taking the antipsychotic medications over time. The majority also placed weight on Dr. Agrawal’s evidence that there would be a 50% likelihood of deterioration in his mental status over one year and a 100% likelihood of deterioration over three years. The majority were not convinced that KM would follow up with his treatment team if not on a CTP.

The dissenting opinion by the lawyer member found that KM did have the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision if not on the CTP. The lawyer member found that KM had a clear ability to appreciate the reason why he was on a CTP and what those consequences may be if he was no longer on it. There were statements authored by Dr. Agrawal that suggested that KM knew what could occur if not on a CTO, and by extension the CTP. The lawyer member found KM’s testimony and expressions were reasonable that he wanted an opportunity to take antipsychotic medications without having a CTP in place to force him do so. The ability to think through these consequences reflected some degree of appreciation, according to the lawyer member. […]

The lawyer member also found KM to be credible in his testimony that he would not suddenly discontinue all support from his treatment team and discontinue taking any LAI. The lawyer member did not find that Dr. Agrawal’s evidence that KM would suffer a likelihood of 50% relapse in less than one year constituted a “reasonably foreseeable consequence.” The possibility that this would occur was remote and distant, in the lawyer member’s opinion. Again, however, this decision related to the CTP, not antipsychotic medications, which KM would have remained incapable to. At the end of the day, the lawyer member found that KM had the ability to appreciate what the role of the CTP was to keep him out of hospital. The lawyer member found that KM’s personal values of not being forced to take antipsychotic medications through the mechanism of a CTP arose from an educated and well-informed position. As a result, the lawyer member decided that KM had the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding the CTP.

Based on the majority opinion of the public member and nurse member, KM was found incapable to consent to the CTP.

2. Community Treatment Order

[…] If KM did not receive continuing treatment or care and continuing supervision in the community, he was likely because of mental disorder to suffer “substantial mental deterioration”;

Yes. The panel found that the evidence did support that if KM did not receive continuing treatment or care and continuing supervision while in the community, he was likely to “suffer substantial mental deterioration.”

Dr. Agrawal’s opinion was that KM’s mental status would deteriorate substantially if KM did not continue receiving treatment or care and continuing supervision in the community. Dr. Agrawal had referred KM to another psychiatrist at CAMH, Dr. Diaz, who provided an opinion that the risk of relapse for KM would be 50% within one year and 100% within three years if he were not on antipsychotic medications (Exhibit 6). It was Dr. Agrawal’s opinion that if it were not for the CTO, KM would relapse.

The panel was not examining the issue of whether KM was capable to consent to treatment for antipsychotic medications, but it was clear from the evidence that if KM were to stop such medications there was a likelihood he could suffer substantial mental deterioration as had occurred to him previously. There was also evidence that when KM was admitted to UHN from May 5, 2020 to June 11, 2020 this had occurred in the context of switching KM’s medications from oral paliperidone to lurasidone, with poor compliance, and due to a disturbance that occurred at his condo (Exhibit 2; Exhibit 7). KM began manifesting bizarre behaviors, becoming disorganized, irritable, and paranoid (Exhibit 7).

Although the lawyer member found KM was capable to consent to the CTP, he nonetheless still found that KM required ongoing care, supervision, and treatment in the community. KM also stated he was willing to receive such ongoing support and care from his treatment team and to continue taking the antipsychotic medication. As a result, the panel found that this criterion had been met.

[52] As appears from the above excerpt, the majority found that KM failed the second branch of the test for capacity because he was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about his treatment. The majority found that: (a) he was unable to appreciate that he was suffering from a serious mental health condition; (b) there was a history of KM being non-compliant with antipsychotic medications and he was unable to appreciate the consequences of discontinuing treatment; and (c) if KM were not subject to the CT Plan, it was likely he would stop taking his medication and his mental status would deteriorate over time.

[53] The dissenting board member found that KM was likely aware that he suffered from a mental disorder and that he had the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision about his CT Plan because he was able to appreciate that the role of the CT Plan was to prevent readmission to hospital.

[54] The dissenting lawyer member did not expressly consider the CT Order criteria because his finding that KM was capable of consenting to the CT Plan would have invalidated the CT Order.

E. GROUNDS FOR THE APPEAL

[55] KM argues that the Consent and Capacity Board made two legal errors with respect to KM’s capacity to consent to the CT Plan.

[56] First, relying in large part on the Court of Appeal’s decision in Re Ohenhen,[^4] KM submits that the Board conflated his incapacity to make a decision about the treatment of antipsychotic medication, which incapacity was not challenged, with his capacity to consent to the treatment of a CT Plan.

[57] KM submits that the majority of the Board conflated the requisite ability to appreciate the reasonably foreseeable consequences of a CT Plan decision, which might entail a loss of liberty, with an “ability to appreciate” the reasonably foreseeable consequences of antipsychotic decisions. To quote from KM’s factum:

3. The majority of the CCB made two significant legal errors in concluding that KM was incapable. First, the issue at the hearing was whether KM was capable of making decisions respecting the CTP. A finding of treatment incapacity respecting antipsychotic medication was not challenged. The Public Guardian and Trustee (PGT) would remain as KM’s substitute decision-maker for antipsychotic treatment regardless of the outcome of the hearing. In the circumstances, the CCB majority applied the wrong legal test, conflating the requisite “ability to appreciate” the reasonably foreseeable consequences of a CTP decision with an “ability to appreciate” the reasonably foreseeable consequences of antipsychotic decisions. At the time of the CCB hearing, KM had the ability to appreciate, as conceded by Dr. Agrawal and accepted by the dissenting senior lawyer member, that if he failed to comply with the CTP, he could be arrested and detained in a psychiatric facility, and again made the subject of a CTO.

[58] KM submits that in the circumstances of the immediate case, he was not required to have the ability to appreciate the reasonably foreseeable consequences of refusing antipsychotic treatment as an aspect of determining whether he had the capacity to consent to a CT Plan that required him to be treated with antipsychotic medicines.

[59] Second, KM submits that the majority of the Board applied the incorrect legal standard in concluding that “substantial mental deterioration” would likely occur in the next 1 to 3 years and that this constituted a “reasonably foreseeable consequence”. He submits that “reasonably foreseeable consequences” must be interpreted in light of the legislative scheme and given the liberty interests at stake, within a context of temporal proximity. Thus, he submits that “reasonably foreseeable consequences” should be interpreted within the lifespan of a CT Order, which is six months. To quote from KM’s factum:

4. Second, the CCB majority applied the incorrect legal standard in concluding that “substantial mental deterioration” would likely occur in the next 1 to 3 years and that this constituted a “reasonably foreseeable consequence”. The term “reasonably foreseeable consequences” must be interpreted in light of the legislative scheme and, given the liberty interests at stake, within a context of temporal proximity to avoid vagueness. In this case, “reasonably foreseeable consequences” should be interpreted within the lifespan of a CTO, which is six months.

[60] KM also submits that the majority of the Board erred in confirming the CT Order because the majority: (a) misapprehended the evidence based on speculative evidence that KM would become noncompliant with injectable antipsychotic medication and would “likely” suffer substantial mental deterioration as a result; and (b) disregarded evidence of significant periods of nontreatment and mental wellness and KM’s evidence that he would continue to comply with injectable antipsychotics and psychiatric care absent the CT Order. In these circumstances, KM submits that the majority failed to properly construct the word “likely”, which is a question of statutory interpretation. Once again, KM submitted that the word “likely” incorporates a temporal proximity element which, in the context of this particular CT Plan, should be interpreted with reference to the lifespan of the CT Order itself, which is six months.

F. LAW

1. Capacity to Consent to Treatment

[61] To understand the questions to be answered on this appeal, it is necessary to understand the consent to treatment provisions of the Health Care Consent Act and the provisions of the Act for the administration of treatment when a person is found incapable to give consent to treatment. For present purposes, the pertinent sections of the Act are sections 1, 2, 4, 8, 10, 11, 12, 13, 15, and 32 set out below:

PART I - GENERAL

Purposes

1. The purposes of this Act are,

(a) to provide rules with respect to consent to treatment […];

(b) to facilitate treatment […] for persons lacking the capacity to make decisions about such matters;

(c) to enhance the autonomy of persons for whom treatment is proposed […] by,

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

Interpretation

2. (1) In this Act,

“capable” means mentally capable, and “capacity” has a corresponding meaning;

community treatment plan” has the same meaning as in the Mental Health Act;

“incapable” means mentally incapable, and “incapacity” has a corresponding meaning;

“mental disorder” has the same meaning as in the Mental Health Act;

“plan of treatment” means a plan that,

(a) is developed by one or more health practitioners,

(b) deals with one or more of the health problems that a person has and may, in addition, deal with one or more of the health problems that the person is likely to have in the future given the person’s current health condition, and

(c) provides for the administration to the person of various treatments or courses of treatment and may, in addition, provide for the withholding or withdrawal of treatment in light of the person’s current health condition;

“treatment” means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment, plan of treatment or community treatment plan, but does not include,

Capacity

4. (1) A person is capable with respect to a treatment, […] if the person is able to understand the information that is relevant to making a decision about the treatment […] and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

Presumption of capacity

(2) A person is presumed to be capable with respect to treatment […].

PART II – TREATMENT

GENERAL

Application of Part

8 (1) Subject to section 3, this Part applies to treatment

CONSENT TO TREATMENT

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.

Elements of consent

11. (1) The following are the elements required for consent to treatment:

12. The consent must relate to the treatment.

13. The consent must be informed.

14. The consent must be given voluntarily.

15. The consent must not be obtained through misrepresentation or fraud.

Informed consent

(2) A consent to treatment is informed if, before giving it,

(a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and

(b) the person received responses to his or her requests for additional information about those matters.

Same

(3) The matters referred to in subsection (2) are:

1. The nature of the treatment.

2. The expected benefits of the treatment.

3. The material risks of the treatment.

4. The material side effects of the treatment.

5. Alternative courses of action.

6. The likely consequences of not having the treatment.

Express or implied

(4) Consent to treatment may be express or implied.

Included consent

12. Unless it is not reasonable to do so in the circumstances, a health practitioner is entitled to presume that consent to a treatment includes,

(a) consent to variations or adjustments in the treatment, if the nature, expected benefits, material risks and material side effects of the changed treatment are not significantly different from the nature, expected benefits, material risks and material side effects of the original treatment; and

(b) consent to the continuation of the same treatment in a different setting, if there is no significant change in the expected benefits, material risks or material side effects of the treatment as a result of the change in the setting in which it is administered.

Plan of treatment

13. If a plan of treatment is to be proposed for a person, one health practitioner may, on behalf of all the health practitioners involved in the plan of treatment,

(a) propose the plan of treatment;

(b) determine the person’s capacity with respect to the treatments referred to in the plan of treatment; and

(c) obtain a consent or refusal of consent in accordance with this Act,

(i) from the person, concerning the treatments with respect to which the person is found to be capable, and

(ii) from the person’s substitute decision-maker, concerning the treatments with respect to which the person is found to be incapable.

CAPACITY

Capacity depends on treatment

15. (1) A person may be incapable with respect to some treatments and capable with respect to others.

Capacity depends on time

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

APPLICATIONS TO BOARD

Application for review of finding of incapacity

32. (1) A person who is the subject of a treatment may apply to the Board for a review of a health practitioner’s finding that he or she is incapable with respect to the treatment.

[62] As may be noted, s. 10 (1) of the Act precludes a physician from administering treatment unless certain conditions are satisfied. Under s. 10, a physician shall not administer treatment unless: (a) the patient is capable of consenting and consents to the treatment; or (b) the patient is incapable of consenting and his or her substitute decision-maker consents to the treatment. As may be noted, s. 4 of the Act stipulates the criteria for determining whether a person is capable with respect to a treatment.

[63] Capacity is treatment specific, and the question is the patient’s capacity to consent to the proposed treatment in question.[^5]Capacity is temporal, and a person can be capable with respect to a specific treatment at one time and not another and a person can be incapable at the time of being assessed by a physician but capable at the time of the hearing.[^6]

[64] The law presumes a person is capable to decide to accept or reject medical treatment, and at a capacity hearing, and where the consent has been given by a substitute decision-maker, the onus is on the attending physician to prove that the patient is incapable, to the civil standard of a balance of probabilities.

[65] Section 4(1) of the Health Care Consent Act establishes a two-branch test for determining a person's capacity to consent to treatment. A person is capable with respect to a treatment if the person is able to: (a) understand the information that is relevant to making a decision about the treatment; and (b) appreciate the reasonably foreseeable consequences of a decision or lack of decision.[^7]

[66] In Starson v. Swayze,[^8] Justice Major, writing for the majority, explained the two criteria for capacity as follows:

78. First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information ... Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.

[67] The fact that the patient has a mental condition does not preclude the patient having the capacity to decide about medical treatment.[^9] The Board must avoid the error of equating the presence of a mental disorder with incapacity; the presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity.[^10]

[68] To determine that a person is capable with respect to a treatment, the Board must be satisfied that there is evidence that the person is able to appreciate the consequences of a decision or lack of decision in respect of treatment beyond mere verbalization of an understanding and that the person is able to apply the information about the proposed treatment to his or her own situation. If the person cannot apply the information to his or her own situation, then he or she does not have the ability to appreciate the reasonably foreseeable consequences of a decision or a lack of decision in respect of treatment.[^11]

[69] For capacity to consent, the Health Care Consent Act does not require the patient to actually appreciate the consequences of his or her decision; rather, it requires the patient to have the ability to appreciate. Justice Major explained, at para. 80 of his decision in Starson v. Swayze, that while the Act requires a patient to have "the ability to appreciate the consequences of a [treatment] decision", it does not require "actual appreciation of those consequences."

[70] If the patient has an appreciation of the nature and purpose of the proposed treatment, the foreseeable benefits and risks of treatment, the alternative courses of action available, and the expected consequences of not having the treatment, then he or she has the ability to appreciate the decision made, even if the patient disagrees with his or her physician's treatment recommendation.[^12]

[71] A patient need not agree with the diagnosis of his or her attending physician to be able to apply the information relevant to a treatment decision to his or her own circumstances; however, if it is established that the patient in fact has a mental condition, the patient must be able to recognize the possibility that he or she is affected by that condition.[^13] If it is demonstrated that the person is being affected by a mental condition in the broad sense that he or she is manifesting the symptoms of an illness, then to pass the test of capacity, the person must be able to recognize the possibility that he or she is affected by that condition. The question is: does the patient recognize, which is to say appreciate, that the symptoms affect his or her behaviour and thinking.[^14] In Conway v. Darby,[^15] Justice D.M. Brown, described this ingredient of the test for capacity as follows:

24. Put another way, where it is demonstrated that a patient displays objectively discernible manifestations of an illness, a Board should ask: does the patient recognize that he is affected by such manifestations or that his mental functioning was not normal? If a person's disorder causes them to be unable to recognize that they are affected by its manifestations, then they will be incapable of applying the relevant treatment information to his or her circumstances and will as a result be unable to appreciate the consequences of their decision.[^16]

[72] The patient must demonstrate the ability to appreciate the positive effects of treatment or the negative effects of a failing to engage in treatment.[^17] If he or she does not, then the patient may be unable to apply the relevant information to his or her circumstances and may be unable to appreciate the consequences of his or her decision.

[73] In D'Almeida v. Barron,[^18] the Court of Appeal emphasized that under s. 4(1) of the Health Care Consent Act, 1996, the focus is the patient's capacity to consent to treatment. In D'Almeida v. Barron, the patient could not appreciate the consequences of non-treatment due to the nature of his mental illness. The patient recognized some of the negative effects of treatment, namely the side effects, but he had no appreciation of the positive effects of treatment or the negative effects of non-treatment. The patient believed that his healing was due to his own efforts and had nothing to do with the medication he had received.[^19] In the result, the Court of Appeal upheld the reviewing judge's decision and the Consent and Capacity Board's finding that the patient lacked the capacity to make treatment decisions.

[74] A patient does not have to act in his or her own best interests and if the patient is capable of consenting to treatment, he or she has a right to refuse treatment, even if the treatment is from a medical perspective in their best interest.[^20] The question on a capacity assessment is not whether the patient’s decision is reasonable; the question is whether the patient has the capacity to make a decision.[^21] The Board is tasked with making decisions on the question of capacity, not on the advisability of a proposed treatment regime from a medical perspective.[^22]

2. Issuance and Renewal of Community Treatment Orders

[75] To understand the questions to be answered on this appeal, it is also necessary to understand the provisions of the Mental Health Act with respect to the issuance and renewal of Community Treatment Orders. For present purposes, the pertinent sections of the Act are sections 1, 33.1, 33.7, 39.1, and 48 set out below:

Definitions

1. (1) In this Act,

“community treatment plan” means a plan described in section 33.7 that is a required part of a community treatment order;

“plan of treatment” has the same meaning as in the Health Care Consent Act, 1996;

“treatment” has the same meaning as in the Health Care Consent Act, 1996.

Community treatment order

33.1. (1) A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (3) if the criteria set out in subsection (4) are met.

Purposes

(3) 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.

Criteria for order

(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;

(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;

(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,

(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,

(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;

(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996.

Content of order

(6) A community treatment order shall indicate,

(a) the date of the examination referred to in clause (4) (c);

(b) the facts on which the physician formed the opinion referred to in clause (4) (c);

(c) a description of the community treatment plan referred to in clause (4) (b); and

(d) an undertaking by the person to comply with his or her obligations as set out in subsection (9) or an undertaking by the person’s substitute decision-maker to use his or her best efforts to ensure that the person complies with those obligations.

Expiry of order

(11) A community treatment order expires six months after the day it is made unless,

(a) it is renewed in accordance with subsection (12); or

(b) it is terminated earlier in accordance with section 33.2, 33.3 or 33.4.

Renewals

(12) A community treatment order may be renewed for a period of six months at any time before its expiry and within one month after its expiry.

Community treatment plans

33.7. A community treatment plan shall contain at least the following:

1. A plan of treatment for the person subject to the community treatment order.

2. Any conditions relating to the treatment or care and supervision of the person.

3. The obligations of the person subject to the community treatment order.

4. The obligations of the substitute decision-maker, if any.

5. The name of the physician, if any, who has agreed to accept responsibility for the general supervision and management of the community treatment order under subsection 33.5 (2).

6. The names of all persons or organizations who have agreed to provide treatment or care and supervision under the community treatment plan and their obligations under the plan.

Application for review by person subject to community treatment order

39.1. (1) A person who is subject to a community treatment order, or any person on his or her behalf, may apply to the Board in the approved form to inquire into whether or not the criteria for issuing or renewing a community treatment order set out in subsection 33.1 (4) are met.

Review of community treatment order

(6) On the hearing of an application, the Board shall promptly review whether or not the criteria for issuing or renewing the community treatment order set out in subsection 33.1 (4) are met at the time of the hearing of the application.

Confirm or revoke order

(7) The Board may, by order, confirm the issuance or renewal of the community treatment order if it determines that the criteria mentioned in subsection (6) are met at the time of the hearing, but, if the Board determines that those criteria are not met, it shall revoke the community treatment order.

Appeal to court

48. (1) A party to a proceeding under this Act before the Board may appeal the Board’s decision or order to the Superior Court of Justice on a question of law or fact or both.

Same

(3) Section 80 of the Health Care Consent Act, 1996 applies to the appeal.

[76] On any review of a CT Order under the Mental Health Act, the onus is on the physician who issued or renewed the Order to prove on a balance of probabilities that the prerequisite for a Community Treatment Order have been satisfied.

3. Standard of Appellate Review of the Decisions of the Consent and Capacity Board

[77] Pursuant to s. 48 (1) of the Mental Health Act, a party to a proceeding before the Consent and Capacity Board may appeal the Board’s decision or order to the Superior Court of Justice on a question of law or fact or both.

[78] Section 80 of the Health Care Consent Act, 1996 which is incorporated by s. 48 (3) of the Mental Health Act, specifies the powers of the Superior Court on the appeal. Section 80 (10) of the Health Care Consent Act, 1996 provides as follows:

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

(a) exercise all the powers of the Board;

(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;

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

[79] The standard of judicial review applicable to administrative tribunals is reasonableness with two exceptions: (a) where the legislation expressly states the applicable standard of review or provides for an appeal mechanism from an administrative tribunal to a court; or (b) where the rule of law requires that the correctness standard be applied; for example, constitutional questions that require a determinate answer, general questions of law of central importance to the legal system as a whole, or questions regarding jurisdictional boundaries between two or more administrative bodies.[^23]

[80] The Consent and Capacity Board’s decision on questions of statutory interpretation is a question of law and these decisions are reviewed on a correctness standard without deference to the opinion of the Board.[^24] If a discrete question of law can be extracted from the issue of mixed fact and law, the correctness standard will apply.[^25]

[81] The Consent and Capacity Board’s decision on issues of fact and on issues of mixed fact and law are reviewed on a standard of palpable and overriding error.[^26] A question of mixed fact and law is one that involves the application of a legal standard to a set of facts.[^27]

[82] The word “palpable” means “clear to the mind or plain to see”[^28], and “overriding” means “determinative”[^29] in the sense that the error “affected the result”.[^30] The Supreme Court has held that other formulations capture the same meaning as “palpable error”: “clearly wrong”, “unreasonable” or “unsupported by the evidence”.[^31] The standard of palpable and overriding error requires that a reviewing court to move from the process of verifying that inferences made by the trier of fact can be reasonably supported by the evidence to identifying precisely the imputed error and determining whether that error affected the result.[^32]

[83] The issue of whether a person has the capacity to consent to treatment, including a Community Treatment Plan, is a question of mixed fact and law reviewable on the deferential standard of palpable and overriding error absent an extricable question of law in the Board’s analysis.[^33]

[84] Appeals regarding the validity of a CT Order raise issues of mixed fact and law.[^34]

G. ANALYSIS AND DISCUSSION

1. Capacity to Consent to the Treatment of a Community Treatment Plan

[85] On this appeal, the first issue to address is KM’s capacity to consent to the Community Treatment Plan prescribed by Dr. Agrawal. In addressing this issue, I shall ignore the Court of Appeal’s decision in Re Ohenhen,[^35] which, as noted above, was relied upon by KM in advancing his appeal. In the next part of the Reasons for Decision, I shall explain why Re Ohenhen is not pertinent to this appeal because it is all of distinguishable and inapplicable even by analogy to the circumstances of the case at bar.

[86] I begin the analysis of KM’s capacity to consent to the CT Plan by repeating the circumstance that there was no challenge to Dr. Agrawal’s finding that KM did not have the capacity to consent to the treatment of antipsychotic medications that was incorporated into and which was the purpose of his CT Plan. Therefore, the Board had to determine how to approach determining whether Dr. Agrawal had met the onus of proving that KM did not have the capacity to consent to a Community Treatment Plan that incorporated a treatment that had been approved by KM’s substitute decision-maker because KM did not have the capacity to consent.

[87] I agree with KM that the Board’s determination of the appropriate approach for these circumstances is a matter of interpreting the Health Care Consent Act, 1996 and the Mental Health Act, which is a legal issue, and, therefore, the standard of appellate is that of correctness. In my opinion, the majority of the Board was legally correct in the approach that it took, and the minority represented by the Chair of the Board was legally incorrect in the approach that he took.

[88] The majority and the minority of the Board were correct in interpreting the statutes to require that separate determinations be made about KM’s capacity to consent to what are the separate treatments of: (a) the course of antipsychotic medicines; and (b) the CT Plan. However, the Chair of the Consent and Capacity Board erred in his analysis by hermetically separating the therapeutic aspects of the CT Plan from the liberty aspects of the CT Plan.

[89] The Health Care Consent Act defines “treatment” to include a course of treatment, a plan of treatment, or a community treatment plan. Section 15 of the Health Care Consent Act provides that a person may be incapable with some treatments and capable with respect to others. Thus, the Board was correct in approaching KM’s capacity to consent to antipsychotic medications as separate from his capacity to consent to the community treatment plan.

[90] The Health Care Consent Act defines “treatment” to mean anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose. A CT Plan is treatment, which is to say that it is meant to be therapeutic. Dr. Agrawal and the majority of the Board, but not KM and the Chair, correctly understood that a fundamental aspect of a CT Plan is its therapeutic ingredient. That the therapeutic is an inseparable fundamental aspect of a plan of treatment is made clear by the definition of plan of treatment, which is set out above, but which I repeat here with emphasis added:

“plan of treatment” means a plan that,

(a) is developed by one or more health practitioners,

(b) deals with one or more of the health problems that a person has and may, in addition, deal with one or more of the health problems that the person is likely to have in the future given the person’s current health condition, and

(c) provides for the administration to the person of various treatments or courses of treatment and may, in addition, provide for the withholding or withdrawal of treatment in light of the person’s current health condition;

[91] However, the undisclosed premise of KM’s argument, which was adopted by the Chair, is that a CT Plan is legalistic or administrative and connected only to the liberty aspects of KM’s decision-making autonomy.

[92] Taken in by KM’s argument that the therapeutic parts of the plan of treatment were not before the Board, the dissenting Chair of the Board concluded that since KM understood the legal consequences of a CT Plan (which were that he might be apprehended and detained as an involuntary patient), KM had the capacity to consent to the CT Plan notwithstanding that he did not have the capacity to consent to the purely therapeutic part of the CT Plan.

[93] In my opinion, this approach of hermetically separating the therapeutic aspects of the CT Plan from the liberty aspects of the CT Plan was an error in interpreting the Health Care Consent Act, 1996 and the Mental Health Act. The Board is tasked with making decisions on the question of capacity from a medical perspective. The error of focusing only on the liberty aspects of the CT Plan, however, was not made by the majority of the Board.

[94] The majority of the Board correctly analyzed KM’s capacity to consent to the CT Plan having regard to his ability to appreciate the nature and purpose of the CT Plan, which included its therapeutic aspects, the foreseeable benefits and risks of the CT Plan, the alternative courses of action available, and the expected consequences of not having a CT Plan.

[95] Dr. Agrawal opined that KM was not able to recognize the manifestations of his illness, and thus was not able to acknowledge benefits of medication or the CT Plan. Dr. Agrawal opined that although KM is aware that police may bring him into the hospital if he does not take his medication, he did appreciate that there were other potential consequences including mental deterioration if he did not adhere to the CT Plan.

[96] Based on the evidence before the Board, the majority of the Board made no errors in concluding that KM did not recognize that he was mentally ill and that KM was not able to appreciate the reasonably foreseeable consequences of the CT Plan. KM was unable to recognize the therapeutic benefits of a CT Plan regime and how an administered plan improved his mental health. Based on the evidence, the Board was correct in concluding that KM was not able to understand that he probably would mentally deteriorate if he was not subject to the regime of a CT Plan.

[97] The approach of the majority does not negate that KM’s capacity to consent to the CT Plan should be analyzed separately from his capacity to consent to the course of treatment of antipsychotic medications, which capacity (incapacity) was technically not before the Board to review. That technicality, however, did not relieve the Board from analyzing whether or not KM had the capacity to consent to all of the aspects of a CT Plans, including the therapeutic and the administrative aspects of the plan which are connected to the therapeutic aspects of the treatment.

[98] Granted it was cunning for KM not to appeal Dr. Agrawal’s finding that KM did not have the capacity to consent to the therapeutic treatment incorporated into the CT Plan, but this approach was too clever by a half. Had KM appealed both of Dr. Agrawal’s findings and it was determined that KM did have the capacity to consent to the administration of the course of treatment of antipsychotic medications, then the Board would have had to consider whether or not KM had the capacity to consent to the CT Plan. A successful appeal on the course of treatment might have refocused the analysis on the liberty aspects of a CT Plan, but in all the circumstances, KM’s capacity to consent to a CT Plan cannot be confined just to his capacity to understand the liberty aspects of his treatment for a mental health condition.

[99] In short, in the immediate case, the issue of whether KM has the capacity to consent to a Community Treatment Plan was a question of mixed fact and law reviewable on the deferential standard of palpable and overriding error absent an extricable question of law in the Board’s analysis. There was an extricable question of law, but the majority of the Board was correct in answering that question of law. The majority made no palpable and overriding error in concluding that KM did not have the capacity to consent to the CT Plan.

[100] For these reasons, the appeal of the Board’s decision about the CT Plan should be dismissed.

2. Re Ohenhen

[101] I turn now to the matter of the Court of Appeal’s decision in Re Ohenhen.

[102] The facts of this case were that Mr. Ohenhen and Mr. Kalra were accused persons who had been found not criminally responsible on account of a mental disorder. For present purposes, it is only necessary to describe Mr. Kalra’s circumstances, which were as follows:

a. Mr. Kalra was found not criminally responsible on account of mental disorder. He was detained in hospitals, where pursuant to the Health Care Consent Act, 1996, he was found incapable of consenting to medical treatment. His father served as his substitute decision-maker.

b. In 2014, Mr. Kalra appealed to the Ontario Court of Appeal a detention order made by the Consent and Capacity Board, and the Court of Appeal substituted a conditional discharge.[^36] The Court held that while it was it was reasonable for the Consent and Capacity Board to find that Mr. Kalra posed a significant threat to the safety of the public, the Board should have considered whether those safety concerns could be addressed through the terms and conditions of a conditional discharge pursuant to s. 672.55(1) of the Criminal Code.[^37]

c. In its 2014 decision, the Court of Appeal held that the Consent and Capacity Board had to take into account Mr. Kalra’s willingness and the willingness of Mr. Kalra’s substitute decision-maker (his father) to consent to a term in the Conditional Discharge Agreement.

d. In its 2014, conditional discharge order, the Court of Appeal included the following treatment conditions: (a) Mr. Kalra will consent, to the extent that he can consent, to take the psychiatric treatments as prescribed at the Brockville Mental Health Centre; and (b) to the extent that Mr. Kalra’s consent is ineffective, the substitute decision-maker will consent to any treatment prescribed.

e. In the next two reviews of Mr. Kalra’s detention, the Consent and the Capacity Board imposed a Conditional Discharge and Mr. Kalra complied.

f. However, in 2015, Mr. Kalra appealed the Board’s detention order disposition. In response to Mr. Kalra’s appeal, the Crown challenged the legality of imposing a treatment condition on an individual who was incapable of consenting to medical treatment. The Crown based its challenge on s. 672.55(1) of the Criminal Code, which provides that conditions regarding treatment under s. 672.54 may only be included "where the accused has consented to the condition". It was the Crown’s argument that the accused and not a substitute decision-maker must have the capacity to consent for a condition to be included.

g. In 2016, the Court of Appeal dismissed Mr. Kalra’s appeal on its merits without deciding the Crown’s objection.[^38] In 2016, the Court of Appeal said it was unable to decide the issue raised by the Crown and that it was for the Board to decide at the next review.

h. At Mr. Kalra’s next review, the Consent and Capacity Board split 3-2. The majority found that a treatment condition was not allowed under s. 672.55(1) of the Criminal Code with the accused’s consent. The majority held that s. 672.55 of the Criminal Code, required the accused to consent to the inclusion of a treatment condition in a conditional discharge but if the accused is incapable of providing such consent, the Board cannot include such a condition in its disposition. In the result, the Board did not issue a conditional discharge; rather it imposed a detention order with community living.

i. The Board minority's decision was that the Board could include a treatment condition, even though Mr. Kalra was incapable of consenting to medical treatment himself.

j. Mr. Kalra appealed, and the matter reached the Court of Appeal. On the appeal, Mr. Kalra argued that in consenting to the condition of a conditional discharge order, the accused is not consenting to the medical treatment to which the condition relates, and the accused should be able to consent to a s. 672.55(1) condition provided the accused is able to understand the operation of the condition and appreciate the consequences of abiding or failing to abide by it.

[103] Because the Court of Appeal had decided a series of cases in which it upheld the Crown’s argument, it empaneled a five-member court to decide Mr. Kalra’s (and Mr. Ohenhen’s appeal, which raised the identical issue).

[104] Justice Tulloch (Justices Watt, Pardu, Benotto, and Roberts concurring) wrote the judgment of the court. In the result, the Court of Appeal disagreed with the Crown’s argument and agreed with Mr. Kalra’s. Justice Tulloch stated at paragraphs 57-60 of his Reasons for Decision:

57. […] After reviewing the impugned provision in its entire context, I agree with the appellants that this section does not require that an accused, him or herself, have the capacity to consent under the relevant provincial law to the treatment referred to in the condition. Rather, the section presumes that valid consent to treatment has been, or will be, otherwise obtained.

58. Instead, to consent to the condition, the accused must understand all information relevant to the operation of the condition and appreciate the reasonably foreseeable consequences of agreeing to the condition. Generally, this would not require the accused to have insight into his or her medical condition, although that could possibly factor into the Board's assessment of whether the condition is reasonable. In the end, the main point of the condition is that the accused commit to cooperate with otherwise approved treatment plans while appreciating the consequences this commitment, and any breach of the commitment, however that may come about, will have on his liberty.

59. I come to this conclusion for the following reasons:

• The text does not specify a specific threshold for capacity, nor does it use the language 'consent to treatment', but rather 'consent to a condition regarding psychiatric or other treatment';

• This specific language is significant and should be reflected in the interpretation of s. 672.55(1) (or, in other words, we should not rush to incorporate the threshold of capacity for 'consent to treatment' when Parliament has specifically chosen different language);

• Generally, the threshold for capacity to make a decision (including to consent to something) takes its form from the context of the decision at issue;

• Threshold for capacity is generally narrowly tailored to the decision at issue to infringe on individuals' rights to self-determination as little as possible;

• The nature of the condition at issue in this appeal is, essentially, one where the accused commits to cooperate with an otherwise valid treatment plan in exchange for an increase in liberty;

• For the proper operation of this condition, an individual need not understand the same information or appreciate the same reasonably foreseeable consequences required for consenting to the treatment itself;

• Anything that is unnecessary should not form part of the threshold for consenting to the condition;

• Parliament has put in place appropriate safeguards that address concerns relating to this condition;

• The appellants' interpretation supports the purpose of the provision and Part XX.1 of the Criminal Code by maximizing the accused's liberty while appropriately managing risk to public safety;

• The respondents' interpretation would tend to defeat the purpose of the provision and Part XX.1 of the Criminal Code by limiting the accused from accessing a condition that has otherwise been found to be reasonable and necessary, with little or no benefit to the accused or to the public; and

• Each province has the statutory authority to adopt its own legislation regarding consent to treatment. It cannot be that the meaning of s. 672.55(1) will vary among the provinces.

60. As I agree with the appellants' main submission -- that an accused may be able to consent to the condition even if they are unable to consent to the treatment referred to within that condition -- I need not consider the alternative argument that a substitute decision-maker could consent to the condition and will not do so.

[105] In the immediate case, KM relies on Re Ohenhen by analogy to argue the point that since he understood the legal consequences of a CT Plan i.e., the administrative conditions for the therapies of the CT Plan, he had the capacity to consent to the CT Plan notwithstanding that he did not have the capacity to consent to the purely therapeutic part of the CT Plan.

[106] With respect, this purported analogy from Re Ohenhen does not assist KM’s argument at all. The statutory framework for the Criminal Code’s required consent to the terms of a conditional discharge order is not analogous to the statutory framework for a patient’s consent to a CT Plan, which for the reasons set out above, focuses on the therapeutic aspects of the CT Plan.

[107] Unlike the case at bar, in Re Ohenhen the Court of Appeal could isolate the elements of the accused’s consent exclusively to the administrative conditions of the conditional discharge order because, to quote Justice Tulloch, the Criminal Code provision “presumes that valid consent to treatment has been, or will be, otherwise obtained.”

[108] In Re Ohenhen, the Court of Appeal interpreted the Criminal Code to formulate what capacity the accused must have to consent to the conditions of a conditional discharge under the Criminal Code. Unsurprisingly, that formulation is different from the interpretation of the Health Care Consent Act, 1996 and the Mental Health Act by the Supreme Court of Canada, the Ontario Court of Appeal, and the Superior Court in the cases leading up to and following Starson v. Swayze. The Court of Appeal’s interpretation of the Criminal Code provisions about consent to conditions of a conditional discharge is of no assistance to interpreting the consent to treatment provisions of the Health Care Consent Act, 1996 and the Mental Health Act.

[109] Re Ohenhen does not overrule the jurisprudence about the Health Care Consent Act, 1996 and the Mental Health Act, and for the reasons set out above, the Consent and Capacity Board did not err in upholding Dr. Agrawal’s decision that KM did not have the capacity to consent to the CT Plan.

3. Community Treatment Orders

[110] The last issue to consider is the Consent and Capacity Board’s decision with respect to the Community Treatment Order.

[111] The analysis may begin by noting that pursuant to s. 1 (1) of the Mental Health Act, a CT Plan is a required part of a CT Order. On any review of a CT Order under the Mental Health Act, the onus is on the physician who issued the Order to prove on a balance of probabilities that the prerequisites for a CT Order have been satisfied. Typically, this is an issue of mixed fact and law.

[112] However, in the immediate case, KM submits that there is an extricable legal issue about whether there is a temporal aspect to the prerequisite set out in s. 33.1 (4)(c)(iii) of the Mental Health Act, the condition which was relied upon by Dr. Agrawal to issue a CT Order in the immediate case.

[113] More precisely, pursuant to s. 33.1 (4)(c)(iii) of the Mental Health Act, within the 72-hour period before imposing the community treatment plan, Dr. Agrawal examined KM. Dr. Agrawal’s opinion based on the examination and any other relevant facts communicated to him was that if KM “does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, … to suffer substantial mental … deterioration of the person …”. On this appeal, KM submits that the Consent and Capacity Board erred in its interpretation of the Mental Health Act by not infusing s. 33.1 (4)(c)(iii) of the Act with a temporal aspect connected to the six-month term of the CT Order. In other words, KM argues that in the immediate case, since there was no evidence or insufficient evidence that he would suffer substantial mental deterioration within six months of the issuance of the CT Order, the Board erred in concluding that the conditions for a CT Order had been satisfied.

[114] This ground of appeal, however, fails for two reasons.

[115] First, accepting that there is a temporal aspect to condition s. 33.1 (4)(c)(iii) of the Mental Health Act, the satisfaction of the condition then becomes an issue of mixed fact and law, and the Consent and Capacity Board made no palpable and overriding error in concluding that the condition had been satisfied in the immediate case. In other cases, while not specifying a precise period, various panels of the Consent and the Capacity Board have found that the word “likely” refers to anticipated risks that need not be immediate, but which must be risks that could occur on the basis of a reasonable temporal proximity.[^39]

[116] The Mental Health Act does not impose a temporal limit on the likelihood of a substantial mental deterioration. The panels of the Consent and Capacity Board that have considered the matter have concluded that it is not necessary for the physician prescribing a CT Order to prove that the patient will suffer substantial mental deterioration immediately or within a specific time period.[^40]

[117] KM’s history of noncompliance, Dr. Agrawal’s clinical opinion, the expert opinion of Dr. Diaz about the likelihood of relapse in patients with schizophrenia, and KM’s own testimony substantiated that the likelihood of KM’s relapse would occur within a reasonable temporal proximity.

[118] Dr. Agrawal’s opinion was that it was highly likely that KM would stop taking antipsychotic medication, and that should he stop taking medicine, the time between the stopping and the substantial mental deterioration would be less than a year. Dr. Agrawal noted that in 2012, in late August 2012 after his discharge from an involuntary admission, KM promptly discontinued his medication and after months of mild psychotic systems was involuntarily admitted by September 9, 2013; i.e., within a year his mental deterioration was so substantial that he was involuntarily admitted from September 9, 2013 to November 11, 2013. KM’s involuntary admission from May 5, 2020 to June 11, 2020 occurred after noncompliance with his CT Plan and partial adherence to medication.

[119] Dr. Diaz’s diagnostic note was that more than 50% of patients that have similar diagnosis to KM would relapse without treatment within twelve months which is to say that some of those patients are likely to relapse within six months which obviously is also within twelve months. It is to be noted that although the evidence revealed that KM could go off his medications and not suffer a relapse, the evidence also established that KM relapsed on at least three occasions, when he went off or decreased his medications. Although the precise temporal aspect of these relapses was unclear, the relapses appear to have been within months and not years of KM’s partial or full withdrawal from antipsychotic medicines.

[120] Thus, accepting that there is a temporal aspect to condition s. 33.1 (4)(c)(iii) of the Mental Health Act, I see no palpable and overriding error in the immediate case that the likelihood of KM’s relapse would occur within a reasonable temporal proximity.

[121] Turning to the second reason, why KM’s appeal with respect to the CT Order fails and again accepting that there is a temporal aspect to s. 33.1 (4)(c)(iii) of the Mental Health Act, that temporal aspect would not be precise and would depend on the circumstances of each case.

[122] As a matter of statutory interpretation, there is no precise temporal aspect to the likelihood prerequisite condition found in s. 33.1 (4)(c)(iii) of the Mental Health Act. The Consent and Capacity Board’s approach that the risk of a relapse must be reasonably likely within a reasonable temporal proximity was the correct interpretation of the condition.

[123] KM’s interpretation would privilege the pro-liberty aspects of a CT Order and the CT Plan to the exclusion and to the detriment of the pro-therapeutic aspects of the CT Order and the CT Plan. For the reasons expressed above with respect to the CT Plan, imposing a fixed time for the likelihood of a relapse would be contrary to the purposes of what is essentially a therapeutic regime for the CT Order.

[124] For the reasons already expressed above, if anything should be privileged, it is the pro-therapeutic aspects of the CT Order and the CT Plan. In this regard, it should be recalled that the purpose of the imposition of a CT Plan and a CT Order is to minimize the alternative of involuntary admissions and detentions in psychiatric facilities and to promote living in the community notwithstanding a serious mental health problem. Moreover, as demonstrated by Dr. Agrawal’s answers at the hearing in the immediate case, imposing a precise fixed period for the likelihood of a substantial relapse is unworkable and inimical to the task and training of physicians who must make a medical prognosis of the likelihood of a substantial mental deterioration.

[125] In short, the approach of the Consent and Capacity Board in the immediate case and in prior cases that the risk of a relapse must be reasonably likely within a reasonable temporal proximity was the correct interpretation of s. 33.1 (4)(c)(iii) of the Mental Health Act.

H. Conclusion

[126] For the above reasons, the appeal is dismissed without costs.

Perell, J.

Released: August 26, 2021.

COURT FILE NO.: CV-21-00660977-0000

DATE: 20210826

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board

Pursuant to the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A as amended and the Mental Health Act, R.S.O. 1990, c. M.7

BETWEEN:

KM

Appellant

• and -

DR. SACHA AGRAWAL

Respondent

REASONS FOR DECISION

PERELL J.

Released: August 26, 2021

[^1]: S.O. 1996, c. 2. [^2]: R.S.O. 1990, c. M.7. [^3]: Daniel L. Ambrosini, senior lawyer and presiding member, Hilary Alexander, public member, and Donna Andrade, nurse, extended class member. [^4]: 2018 ONCA 65. [^5]: Almeida v. Morgan, 2020 ONSC 5066 at para. 31; Z. (Z.) v. Shafro, 2016 ONSC 6412 at para. 60. [^6]: Almeida v. Morgan, 2020 ONSC 5066 at para. 30; G., (Re), 2009 CarswellOnt 5267 (CCBd). [^7]: B.L. v. Pytyck, 2021 ONCA 67, aff’g 2020 ONSC 3766; K.M. v. Banik, 2020 ONSC 4829, aff’d 2021 ONCA 481; Starson v. Swayze, 2003 SCC 32. [^8]: 2003 SCC 32, at para. 78. [^9]: [2004] O.J. No. 394 at para. 12 (S.C.J.). [^10]: Starson v. Swayze, 2003 SCC 32 at para. 77. [^11]: Khan v. St. Thomas Psychiatric Hospital (1992), 1992 CanLII 7464 (ON CA), 7 O.R. (3d) 303 at pp. 314-5 (C.A.). [^12]: Gligorevic v. McMaster, 2012 ONCA 115 at para. 8. [^13]: Starson v. Swayze, 2003 SCC 32 at para. 79. [^14]: B.L. v. Pytyck, 2021 ONCA 6 at para. 26, aff’g 2020 ONSC 3766; Murray v. Alatishe, 2019 ONCA 596; Armstorng v. Coleman, 2015 ONSC 2919; Masih v. Siekierski, 2015 ONSC 2877; Gajewski v. Wilkie, 2014 ONCA 897; D'Almeida v. Barron, 2010 ONCA 564, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 511; Giecewicz v. Hastings, 2007 ONCA 890. leave to appeal refused, [2008] S.C.C.A. No. 97. [^15]: [2008] O.J. No. 4205 at para. 24 (S.C.J.), aff’d 2009 ONCA 437. [^16]: See also: K.M. v. Banik, 2020 ONSC 4829, aff’d 2021 ONCA 481; Edem v. Kantor, 2020 ONSC 4729; Woods v. Chatterjee, 2018 ONSC 73; Pararajasingham v. Druss, 2016 ONSC 1135; M.M. v. De Souza, 2016 ONCA 155; Masih v. Siekierski, 2015 ONSC 2877; Starson v. Swayze, 2003 SCC 32 at para. 79; Khan v. St. Thomas Psychiatric Hospital (1992), 1992 CanLII 7464 (ON CA), 7 O.R. (3d) 303 (C.A.). [^17]: K.M. v. Banik, 2020 ONSC 4829, aff’d 2021 ONCA 481; Edem v. Kantor, 2020 ONSC 4729 at para. 17; D'Almeida v Barron, 2010 ONCA 564 at paras. 25-26. [^18]: 2010 ONCA 564, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 511. [^19]: See A.S. v. Sum, 2021 ONSC 4296 at para. 38. [^20]: S.S. v. Mottaghian, 2021 ONSC 137 at para. 15; Starson v Swayze, 2003 SCC 32 at para. 19. [^21]: Neto v. Klukach, [2004] O.J. No. 394 at para. 11 (S.C.J.); Bartoszek v. Ontario (Consent and Capacity Board), [2002] O.J. No. 3800 at para. 20 (S.C.J.). [^22]: M.M. v. De Souza, 2016 ONCA 155 at para. 18; Giecewicz v. Hastings, 2007 ONCA 890 at para. 43, leave to appeal refused [2008] S.C.C.A. No. 97. [^23]: Canada (Minister of Citizenship and Immigration) v Vavilov. 2019 SCC 65 at paras 16-17. [^24]: B.L. v. Pytyck, 2021 ONCA 67, aff’g 2020 ONSC 3766; S.S. v. Mottaghian, 2021 ONSC 137; Canada (Minister of Citizenship and Immigration) v Vavilov. 2019 SCC 65. [^25]: S.S. v. Mottaghian, 2021 ONSC 137; K.M. v. Banik, 2020 ONSC 4829, aff’d 2021 ONCA 481; Housen v. Nikolaisen, 2002 SCC 33; Canada (Director of Investigation and Research) v. Southam, 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 39. [^26]: A.S. v. Sum, 2021 ONSC 4296; B.N. v. Beder, 2021 ONSC 3046; Neill v. Chawla, 2021 ONSC 1406; Tipu v. O’Brien, 2021 ONSC 1101; Christoforou v. Toews, 2021 ONSC 722; K.M. v. Banik, 2020 ONSC 4829, aff’d 2021 ONCA 481; Edem v. Kantor, 2020 ONSC 4729; Starson v Swayze, 2003 SCC 32 at para 5. [^27]: Housen v. Nikolaisen, 2002 SCC 33 at para. 27. [^28]: Housen v. Nikolaisen, 2002 SCC 33 at para. 5. [^29]: Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254 at para. 35. [^30]: Salomon v. Matte-Thompson, 2019 SCC 14 at para. 33; Benhaim v. St-Germain, 2016 SCC 48 at paras. 36-40; HL v. Canada (Attorney General), 2005 SCC 25 at para. 55 [^31]: HL v. Canada (Attorney General), 2005 SCC 25 at paras. 55, 56. [^32]: B.N. v. Beder, 2021 ONSC 3046; Nelson (City) v. Mowatt, 2017 SCC 8 at para 38; HL v. Canada (Attorney General), 2005 SCC 25; Housen v. Nikolaisen, 2002 SCC 33. [^33]: B.L. v. Pytyck, 2021 ONCA 67, aff’g 2020 ONSC 3766; A.S. v. Sum, 2021 ONSC 4296; B.N. v. Beder, 2021 ONSC 3046; Neill v. Chawla, 2021 ONSC 1406; Tipu v. O’Brien, 2021 ONSC 1101; Christoforou v. Toews, 2021 ONSC 722; K.M. v. Banik, 2020 ONSC 4829, aff’d 2021 ONCA 481; Gajewski v. Wilkie, 2014 ONCA 897; Starson v. Swayze, 2003 SCC 32. [^34]: Edem v. Kantor, 2020 ONSC 4729; SS v Kantor, 2017 ONCA 828 at para. 39. [^35]: 2018 ONCA 65 [^36]: Kalra (Re), 2014 ONCA 233 [^37]: R.S.C. 1985, c. C-46. [^38]: Kalra (Re), 2016 ONCA 390. [^39]: DL (Re), 2021 CanLII 50119 (Ont. CCB); BS (Re), 2021 CanLII 39446 (ON CCB); SM (Re), 2021 CanLII 14597 (Ont. CCB); MA (Re), 2018 CanLII 57687 (Ont. CCB); BK (Re) 2016 CanLII 26033 (Ont. CCB); LE (Re), 2006 CanLII 52789 (Ont. CCB). [^40]: SM (Re), 2021 CanLII 14597 (Ont. CCB); LE (Re) 2006 CanLII 52789 (Ont. CCB); BK (Re), 2016 CanLII 26033 (Ont. CCB).