COURT FILE NO.: CV-20-652696

DATE: 20210201

ONTARIO SUPERIOR COURT OF JUSTICE

RE: Ducharme v Hudson

BEFORE: F.L. Myers J.

COUNSEL: J. Lefebvre, for Dr. Hudson

Mr. Ducharme in person

HEARD: February 1, 2021

CASE CONFERENCE ENDORSEMENT

[1] Mr. Ducharme is appealing one or more orders made by the Consent and Capacity Board declaring that he lacks capacity and requiring that he be held and treated on an involuntary basis.

[2] The appeal has not yet been scheduled for hearing. The Board delivered its record last week. Mr. Ducharme is unhappy with his former legally aided counsel and prefers to argue the appeal himself.

[3] I advised Mr. Ducharme that I would be asking for the appointment of amicus. He had no objection.

[4] I also advised him that for his appeal, he can file a factum or a written statement of the factual and legal basis for his appeal. In addition, he needs to schedule a date for the appeal in conjunction with Ms. Lefebvre. I advised Ms. Lefebvre that she may contact my office to book the appeal once she and Mr. Ducharme have discussed dates.

[5] In addition, Dr. Hudson has scheduled a motion on February 18, 2021 for permission to treat Mr. Ducharme against his will prior to the hearing of his appeal. This a serious and important motion.

[6] Mr. Ducharme advises that in light of his confinement, he does not have facilities to allow him to deliver an affidavit for the motion. On consent, Mr. Ducharme may give live testimony at the return of the motion. He may file a factum if he can but he does not have to do so. He can make any arguments that he wishes at the return of the motion.

[7] In Lewis v. Dr. Karen Ng, 2019 ONSC 4980, Firestone J. considered the process for the appointment of amicus in a case in which the appellant had applied for legal aid for an appeal from the Consent and Capacity Board:

[2] Counsel for the Respondent Dr. Karen Ng (the “Respondent”) makes a request that amicus curiae be appointed in this matter as the Appellant, who is self-represented, has not taken any steps to perfect the appeal or move it forward.

[3] In reviewing the evidentiary record before me, I am satisfied that the appointment of amicus curiae as a friend of the court is appropriate and in the interest of justice in order that the necessary assistance can be provided and all remaining steps as they relate to this appeal, can be completed.

[4] I therefore direct that a period of 15 days be provided to allow Legal Aid Ontario (“LAO”) to investigate the Appellant’s legal aid status. In the event that the Appellant does not have a legal aid certificate or that a certificate can not be issued expeditiously, I direct that amicus curiae be appointed for this appeal pursuant to Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194 (the “Rules”) and the inherent jurisdiction of the Superior Court: R v. Imona-Rusell, 2013 SCC 43, 2013 S.C.C. 43.

[5] I further direct that counsel for the Respondent and appropriate representative from LAO, consult with one another in order to determine who is to be appointed as amicus curiae.

[8] Like Firestone J., I view it as appropriate, in fact vital, that amicus be appointed for the upcoming motion. I do not have to decide the issue for the appeal proper yet. But given that I am asking Legal Aid Ontario to review the matter now, it is efficient to do both proceedings at once.

[9] I therefore direct that a period of 15 days be provided to allow Legal Aid Ontario to investigate the appellant’s legal aid status. This is a formality to accommodate Legal Aid Ontario given that the appellant has not applied for Legal Aid for the appeal and wishes to represent himself. I direct that amicus curiae be appointed for this appeal and the upcoming motion pursuant to Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194 (the “Rules”) and the inherent jurisdiction of the Superior Court: R v. Imona-Rusell, 2013 SCC 43, 2013 S.C.C. 43.

[10] Finally, I wish to note that Mr. Ducharme alleges that he is being held illegally. He says that the respondent deliberately induced him to have a breakdown before his hearing with the Board and kept him in that state for the hearing. He also says that he was forcibly injected with tranquilizers by nurses prior to his last review board hearing. He has reported the respondent to the police and to the College of Physicians and Surgeons. Mr. Ducharme believes that no one in authority is investigating his serious allegations.

[11] I did not call on Ms. Lefebvre to respond because I was dealing only with scheduling today. But I have recorded Mr. Ducharme’s allegations so they will be known and expected at the hearing of the upcoming motion and then at the appeal.

[12] Dr. Hudson is granted leave to give oral evidence in response to Mr. Ducharme’s evidence at the hearing of the motion on February 18, 2021 if so advised

[13] Ms. Lefebvre is requested and directed to provide a copy of this endorsement to Mr. Ducharme and to Legal Aid Ontario.

F.L. Myers J.

Date: February 1, 2021