COURT FILE NO.: CV-20-651426
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ALLISON MYRAH, Appellant
-and-
ALAN KAHN, Respondent
BEFORE: FL Myers J
COUNSEL: Ken Berger, for the Appellant
Kendra A. Naidoo, for the Respondent
HEARD: November 26, 2021
ENDORSEMENT
1Allison Myrah appeals from the decision of the Consent and Capacity Board dated October 14, 2020 upholding Dr. Kahn’s finding that Allison Myrah was incapable of consenting to treatment with antipsychotic medication and benzodiazepines.
2This is an appeal and not a fresh hearing of the evidence. The parties agree that the court can only intervene if the board made a “palpable and overriding error” in its findings of fact and questions of mixed fact and law. No errors of law are asserted.
3In Waxman v. Waxman, 2004 CanLII 39040 (ON CA), at para. 296, the Court of Appeal describes a palpable error as follows:
A “palpable” error is one that is obvious, plain to see or clear: Housen at 246. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.
4Mr. Berger submits that the board made a palpable and overriding error in expressing its conclusion in a very short and seemingly bald finding:
The Board found on a balance of probabilities that AM was unable to recognize that he was affected by the manifestations of psychosis.
5This submission ignores the evidentiary findings recited by the board two paragraphs earlier:
Dr. Khan gave evidence that AM was not able to appreciate the possible benefits of taking antipsychotic and benzodiazepine medication or of not taking the medication. Dr. Khan explained that AM refused or was unable to discuss benefits and consequences of treatment or to appreciate the consequences of refusing treatment. AM repeatedly insisted on being discharged to the street and did not appreciated [sic] that he had to return to the TSDC following this hospital admission. Due to AM's inability to understand the possibility of having a mental illness, Dr. Khan felt that AM was unable to sufficiently predict the outcome of taking medication or refusing it.
6The board cited the appropriate paragraph from the leading authority, Starson v. Swayze, 2003 SCC 32 and made its finding thereafter. As the finding was anchored in evidence properly before the board, there can be no palpable and overriding error.
7Mr. Berger submits that the board made a palpable and overriding error in finding that Allison Myrah was incapable of appreciating the risks and benefits of the medications proposed for her. The evidence before the board was that Allison Myrah denies any manifestations of her illness such as the assaults, throwing urine, screaming, and other symptoms reported in the file and testified to by Dr. Khan. Allison Myrah made conspiracy allegations including a very unusual allegation against the police to explain her situation.
8Mr. Berger characterizes as “behaviours” the manifestations of illness (using the word from Starson) or the vernacular “symptoms” to interpret a statement made by Allison Myrah in her evidence before the board:
Q. And do you, do you -- if you did have a condition that required treatment, which you, which you say you don't, do you feel that there would be a benefit to receiving medication ....
A. If I was worried about being ill and there was a potential for the medication, I would be potentially interested in it as a maybe thing. I am smart to realize that I am not ill and I do not want to be medicated with a bunch of medication that is for false medications for something that isn't happening. I don't want to put my body with medications that I don't need, for things that I don't have. If there was a condition that I actually had, I would be interested in contemplating potential things. I am not some stupid -- I don't think behaviours are 100 percent controlled from medication, so I would not think that I could cure behaviours from medication. I would consider potentially, if I did have a mental illness such as -- say that they might be able to help, I'm smart, but I don't have one and that's why I most definitely do not want to consider medication and I most definitely want to appeal this situation if the (indiscernible) testimony and inappropriate testimony may be at false put forward by Dr. Khan. If they make the wrong decision based on his testimony, I want an appeal. [Emphasis added.]
9Mr. Berger argues that in this evidence, Allison Myrah acknowledges that she has certain “behaviours” that she attributes to causes than mental illness. In doing so, he submits, she showed that she has capacity to weigh the risks and benefits of the medication decisions being proposed by Dr. Khan.
10Ms. Naidoo submits that Mr. Berger is mis-reading the evidence. Throughout the record, Allison Myrah denies the manifestations of her illness – the symptoms – that she needs to be able to acknowledge in order to assess the risks and benefits of medication proposed for her. All she said above was that in her view medications do not totally control behaviour. This is a general statement that does not display any acceptance of her own symptoms nor any capacity to weight the risks and benefits of the medications proposed for her.
11In my view, both on an assessment of the words used and an assessment in the context of the evidentiary record as a whole, the appellant did not say the things attributed to her by Mr. Berger. Accordingly, there is no palpable and overriding error on this issue.
12Mr. Berger submits that the board made a palpable and overriding error in attributing Allison Myrah’s symptoms to psychosis. Allison Myrah denies being mentally ill. Mr. Berger submitted that Allison Myrah believes that her “behaviours” are due to her substance abuse and addictions, the cruel treatment she receives in CAMH, and abuse related to her being transgender.
13Apart from denying being mentally ill, there is no evidence in the record supporting Mr. Berger’s submission as to what Allison Myrah might believe about any behaviour or the causes of such behaviour.
14Mr. Berger says that the evidence on prior brief admissions to mental health facilities was that Allison Myrah’s symptoms were likely caused by her substance abuse rather than mental illness. He did not mention Dr, Khan’s evidence that since Allison Myrah’s current symptoms have persisted while she was jailed and at CAMH free of illicit drugs, she is not likely suffering drug-induced psychosis. Dr. Khan testified that symptoms of drug-induced psychosis resolve within a few days of the patient stopping the drugs. He said twice that psychosis was the primary diagnosis. On this issue too, as the board had ample evidence before it supporting its decision, it did not make a palpable and overriding error.
15Mr. Berger submits that the board made a palpable and overriding error in failing to find that Allison Myrah’s behaviour may be caused by the fact that she is being held in high security conditions including being chained to her bed. He pointed to Allison Myrah’s complaints about pain in her ankle. However, Mr. Berger did not mention that Allison Myrah’s did not attribute her ankle pain to the security conditions. Rather, she referred to old sports injuries that resulted in surgery. In addition, Mr. Berger did not make reference to the evidence of Dr. Khan in which he considered this very allegation and testified that the security conditions were not material contributors to the symptoms demonstrated by Allison Myrah due to her psychosis.
16On all of these arguments, Mr. Berger has pointed to a theory and argued that the board’s failure to accept it amounts to palpable and overriding error. That is not how an appeal works. The issue for proving a palpable error is whether the board had evidence before it, that it accepted, to support the finding that it made. An error is palpable when a board makes a tangible, clear, almost obvious error such as by making a finding on a complete absence of evidence, or in conflict with accepted evidence, or based on a misunderstanding of the evidence, or based on speculation. It is not a palpable error for a board to make a finding on the evidence before it even if the appellant disagrees. It is certainly not a palpable error for the board to make a finding without considering facts postulated by counsel that are not in evidence.
FL Myers J
Date: November 26, 2021