ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of the Consent and Capacity Board pursuant to the Mental Health Act, R.S.O. 1990, c. M.7, as amended

AND 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, Sch. A, as amended

AND IN THE MATTER OF R.J., a resident of North York, Ontario

BETWEEN:

R.J.

Appellant

– and –

Dr. Regina Liu

Respondent

Eyitayo Dada, for the Appellant

Hilary Chung, for the Respondent

HEARD: May 12, 2022, with additional authorities delivered on May 16, 2022

REASONS FOR JUDGMENT

VERMETTE J.

[1] The Appellant, R.J., appeals from a decision of the Consent and Capacity Board (“CCB”) dated January 7, 2022 (with Reasons for Decision dated January 14, 2022) confirming the validity of a community treatment order issued by the Respondent, Dr. Regina Liu, against the Appellant on November 26, 2021 (“CTO”).

[2] The Appellant requests that: (1) the CCB’s decision finding the Appellant incapable of consenting to the proposed treatment be set aside; and (2) the CCB’s decision confirming the CTO be set aside and that the CTO be revoked.

[3] As set out below, I dismiss the appeal with respect to the issue of capacity, but I grant the appeal with respect to the CTO as I find that the CCB erred in finding that one of the statutory requirements to issue a community treatment order had been met.

1. FACTUAL AND EVIDENTIARY BACKGROUND

[4] R.J. is a 48-year-old woman who lives with her 84-year-old mother. She was diagnosed with schizophrenia in 2007. Since 2008, she has had multiple hospitalizations as a result of untreated schizophrenia, including an admission at North York General Hospital spanning 15 months in 2015-2016. R.J. has been subject to other community treatment orders in the past, during which time she had periods of stability and wellness.

[5] Dr. Liu is a psychiatrist with North York General Hospital and is R.J.’s most responsible physician.

[6] R.J.’s most recent admission to hospital was from October 27 to December 1, 2021 at North York General Hospital. On October 28, 2021, she was found to be incapable with respect to antipsychotic medications. This finding of incapacity was upheld by the CCB on November 5, 2021. The CTO that is the subject matter of this appeal was issued on November 26, 2021 while R.J. was in hospital.

[7] On November 18, 2021, Dr. Liu issued a Notice of Intention to Issue or Renew Community Treatment Order (“Notice”). The Notice stated, among other things, that a determination was made on November 18, 2021 that R.J. was incapable with respect to giving or refusing consent to a proposed community treatment plan.

[8] The Notice attached a community treatment plan (“CTP”) which reads as follows:

1. Dr. R. Liu (or delegate) of North York General Hospital (NYGH) will issue [R.J.]’s Community Treatment Order (CTO).

2. Dr. R. Liu (or delegate) [of] North York General Hospital (NYGH) will monitor [R.J.]’s Community Treatment Order (CTO).

3. [R.J.’s mother] agrees to act as [R.J.]’s substitute decision maker (SDM) regarding this CTO. [R.J.’s mother] will be available to discuss any treatment and/or related issues that arise throughout the duration of this CTO. [R.J.’s mother] will contact Dr. R. Liu (or delegate) and inform her of any concerns regarding [R.J.]’s compliance with the details of this treatment plan.

4. [R.J.] will attend all scheduled appointments with Dr. R. Liu (or delegate) at designated appointment times for ongoing psychiatric follow-up and support. These appointments will occur a minimum of once per month for the duration of this CTO, or more frequently if clinically indicated.

5. [R.J.] will continue to take oral and/or injectable antipsychotic as prescribed by Dr. R. Liu (or delegate). The medications will be monitored by Dr. R. Liu (or delegate) and adjusted as indicated by [R.J.]’s mental status and/or the presence of medication side effects.

6. A referral has been made for [R.J.] to participate in the intake and referral process of the Canadian Mental Health Association (CMHA). If accepted into the agency, [R.J.] agrees to meet with a worker from Canadian Mental Health Association (CMHA), a minimum of once per week at a mutually agreeable time and place for assessment and ongoing clinical work/rehabilitation. Frequency of contact with CMHA and types of services provided will be renegotiated on an ongoing basis; these will be based on [R.J.]’s needs and mutually agreed upon by CMHA representative and [R.J.]. CMHA representative will also assist [R.J.] with meeting the obligations of this CTO and may attend [R.J.]’s appointments as required.

7. The Community Mental Health Services Coordinator (CMHSC) of the Centre for Addiction and Mental Health (CAMH) will be available to all members named in the plan as necessary. The CMHSC will follow-up with appropriate parties to assist with implementation of this CTO.

8. Should [R.J.] fail to adhere to the Community Treatment Plan, an order for examination may be issued as per the Mental Health Act.

9. Throughout the duration of this CTO, all named parties in this plan will communicate as necessary to facilitate the ongoing provision of psychiatric outpatient treatment and support to [R.J.]. Parties will notify Dr. R. Liu (or delegate) of any clinical concerns with respect to [R.J.].

[9] The CTP was signed on November 18, 2021 by Dr. Liu, R.J.’s mother (verbal consent obtained by Dr. Liu) and the Community Mental Health Services Coordinator (“CMHSC”) of the Centre for Addiction and Mental Health (“CAMH”). The CTP was not signed by a representative of the Canadian Mental Health Association (“CMHA”).

[10] Dr. Liu’s progress note dated November 18, 2021 states the following, among other things:

Following that I met with the patient directly. I reviewed with her the community treatment plan. Although I attempted to discuss each point with her, she was simply speaking over me with psychotic delusions. She continues to remain paranoid, and was having active hallucinations with lawyers from the British intelligence system, the “European Supreme Court”, and was referencing different nurses and their father as being responsible for the deaths of the residential school children. She continues to report that she does not have schizophrenia, and does not require any medications. She was angry that treatment is being forced on her. She continues to remain incapable of making psychiatric treatment decisions given her poor insight and currently with her cognitive impairments due to her untreated illness. She is incapable of consenting to antipsychotic medications as well as the CTO.

[11] On November 18, 2021, R.J. received rights advice with respect to the Notice. On November 21, 2021, R.J.’s mother received rights advice as R.J.’s substitute decision-maker.

[12] As stated above, the CTO was issued on November 26, 2021. The CTP was attached to the CTO. Dr. Liu wrote the following in the CTO with respect to the facts supporting the issuance of the CTO:

The patient has a long history of schizophrenia. She has had periods of wellness when treated with antipsychotic medications and subject to a CTO. When off medications, she becomes mentally unwell – with auditory hallucinations, paranoid delusions, disorganization. All of these symptoms are absent when treated. She has a history of nonadherence to treatment and insight is chronically poor.

[13] In the written summary that she prepared for the hearing before the CCB (“CCB Summary”), Dr. Liu stated, in part:

Since her most recent admission on October 27. 2021, Ms. [J.] presented as psychotic. It has been difficult to have any meaningful conversation or engagement with her as she is actively responding to internal stimuli during our visits. She is having parallel conversations with multiple hallucinations, and repeatedly reports she does not have schizophrenia and will not take any medications. A finding of incapacity with respect to antipsychotic medications was made on October 28, 2021, and upheld on [sic] by the CCB on November 5. 2021. Since then, ongoing attempts at discussion, both verbal and written to discuss schizophrenia, paliperidone and a CTO have all been dismissed by Ms. [J.].

Ms. [J.] has the intelligence to understand information but while she is acutely unwell, her ability to process and understand information appears to be impaired given her persecutory delusions, disorganization of thoughts and behaviour, in keeping with cognitive deficits of her illness. Furthermore, Ms. [J.] has repeatedly stated that she is not unwell, is not psychotic, and does not want an antipsychotic medication. She refuses to discuss the consequences of taking or not taking antipsychotic medications, and has shown poor insight into her current condition and the need for treatment. She has also rejected the idea of a CTO. Attempts that were made to have any meaningful discusion [sic] around her treatment and CTO have been challenged by the patient’s psychotic state. This has been a repeated pattern in her behaviour over the course of her illness. At this time, her mother as the Substitute Decision Maker provided verbal and written consent for antipsychotic medications and a CTO.

As the CTO was issued, it was felt that Ms. [J.] could be discharged home, and to have care contniued [sic] on an outpatient basis. She was discharged on Dec 1, 2021 and returned to live with her mother. At our last phone meeting on Decemeber [sic] 17, 2021, mother had reported Ms. [J.] was still psychotic, speaking to herself at home, hostile towards neighbours. She reluctantly came to receive her injection that day but refused to stay for an in-person meeting with me. I am scheduled to see her in person for her next injection on January 14, 2022.

[14] At the hearing, Dr. Liu was asked questions with respect to her finding that R.J. was incapable to consent to the CTP. Her evidence on this point was the following:

THE LAWTER PRESIDING MEMBER: […] So you have made a finding of incapacity to consent to the Community Treatment Plan; is that correct?

DR. LIU: Yes.

THE LAWYER PRESIDING MEMBER: And you made that determination on your examination of her of November the 18th; is that correct?

DR. LIU: That’s correct.

THE LAWYER PRESIDING MEMBER: And have you had any meetings with her since?

DR. LIU: She was discharged from hospital December 1st and subsequent to that there was a CCB hearing on December the 17th; so there was some phone contact there. And I spoke with her briefly on the phone yesterday.

THE LAWYER PRESIDING MEMBER: Do you find that she is still incapable of consenting to the Community Treatment Plan as of today’s date?

DR. LIU: I couldn’t have a full assessment around the CTO yesterday, but in my experience with [R.J.] […] is that she continues to have no insight into her illness. I have been speaking with her mother by phone so she would still meet the criteria to be subject to a CTO; she’s not capable of making that decision.

[15] Dr. Liu also stated that R.J. was assessed on a daily basis while she was in the hospital (i.e. until December 1, 2021) and that she was “acutely psychotic throughout the admission”. She noted that R.J. interjected throughout the December 17, 2021 hearing and that she could observe at that time the same symptoms that were observed while R.J. was on the unit. Dr. Liu acknowledged that R.J.’s ability to understand information improves when she is better as a result of treatment, but she noted that R.J.’s complete lack of insight into her condition, illness and necessity for treatment has been consistent throughout Dr. Liu’s treatment of R.J., whether R.J. is on or off medications.

[16] R.J. read a statement at the hearing and answered some questions asked by her lawyer. She stated that she was not psychotic and did not need medications, and she did not believe that she had a mental illness. She expressed the view that there was no benefit whatsoever of being on a CTO, “just abuse, and bullying”. R.J. further stated that she was locked in a pedophilia ring since the 70’s and held against her will in a prison, and that the ring extended to residential schools. She accused a number of organizations and people – including the CCB – of being involved in this ring and of killing people with an “aneurism machine”.

2. LEGAL FRAMEWORK

[17] In order to put the discussion that follows in its proper context, it is important to review the relevant legal framework and the applicable statutory provisions.

[18] Sections 33.1 to 33.9 of the Mental Health Act, R.S.O. 1990, c. M.7 (“MHA”) deal with community treatment orders. Sections 33.1, 33.5 and 33.7 provide as follows:

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.

Same

(2) The community treatment order must be in the prescribed form.

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.

Obligations of person

(9) If a person or his or her substitute decision-maker consents to a community treatment plan under this section, the person shall,

(a) attend appointments with the physician who issued or renewed the community treatment order, or with any other health practitioner or other person referred to in the community treatment plan, at the times and places scheduled from time to time; and

(b) comply with the community treatment plan described in the community treatment order.

To whom copies of order and plan to be given

(10) The physician who issues or renews a community treatment order under this section shall ensure that a copy of the order, including the community treatment plan, is given to,

(a) the person, along with a notice that he or she has a right to a hearing before the Board under section 39.1;

(b) the person’s substitute decision-maker, where applicable;

(c) the officer in charge, where applicable; and

(d) any other health practitioner or other person named in the community treatment plan.

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.

Subsequent plans

(13) Upon the expiry or termination of a community treatment order, the parties may enter into a subsequent community treatment plan if the criteria set out in subsection (4) are met.

Accountability

33.5 (1) A physician who issues or renews a community treatment order, or a physician who is appointed under subsection (2), is responsible for the general supervision and management of the order.

Appointment of other physician

(2) If the physician who issues or renews a community treatment order is absent or, for any other reason, is unable to carry out his or her responsibilities under subsection (1) or under section 33.2, 33.3 or 33.4, the physician may appoint another physician to act in his or her place, with the consent of that physician.

Responsibility, names providers

(3) A person who agrees to provide treatment or care and supervision under a community treatment plan shall indicate his or her agreement in the plan and is responsible for providing the treatment or care and supervision in accordance with the plan.

Responsibility of other persons

(4) All persons named in a community treatment plan, including the person subject to the plan and the person’s substitute decision-maker, if any, are responsible for implementing the plan to the extent indicated in it.

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.

[19] Subsection 39.1 of the MHA provides that “[a] person who is subject to a community treatment order, or any person on his or her behalf, may apply to the [CCB] 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.” If such an application is made to the CCB, the CCB may confirm the issuance or renewal of the community treatment order if it determines that the criteria set out in subsection 33.1 (4) are met, but the CCB must revoke the community treatment order if it determines that those criteria are not met.

[20] A community treatment plan is a “treatment” for the purposes of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”) as it is specifically included in the definition of “treatment” in section 2(1) of the HCCA.

[21] The test for capacity to consent to treatment is set out in section 4 of the HCCA:

A person is capable with respect to a treatment, admission to a care facility or a personal assistance service if the person is able to understand the information that is relevant to making a decision about the treatment, admission or personal assistance service, as the case may be, and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

[22] Subsection 4(2) of the Act provides that a person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services. The presence of a mental disorder cannot be equated with incapacity: Starson v. Swayze, 2003 SCC 32 at para. 77 (“Starson”).

[23] In Starson , the Supreme Court of Canada made the following points with respect to the second criterion in section 4(1) of the HCCA, i.e. the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision (at paras. 78-80):

a. It requires the patient to be able to apply the relevant information to their circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.

b. The HCCA requires a patient to have the ability to appreciate the consequences of a decision, but it does not require actual appreciation of those consequences.

c. In practice, the determination of capacity should begin with an inquiry into the patient’s actual appreciation of the parameters of the decision being made: 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. If the patient shows an appreciation of these parameters — regardless of whether they weigh or value the information differently than the attending physician and disagree with the treatment recommendation — they have the ability to appreciate the decision they make.

d. However, a patient’s failure to demonstrate actual appreciation does not inexorably lead to a conclusion of incapacity. The patient’s lack of appreciation may derive from causes that do not undermine their ability to appreciate consequences. For instance, a lack of appreciation may reflect the attending physician’s failure to adequately inform the patient of the decision’s consequences. Accordingly, it is imperative to inquire into the reasons for the patient’s failure to appreciate consequences. A finding of incapacity is justified only if those reasons demonstrate that the patient’s mental disorder prevents them from having the ability to appreciate the foreseeable consequences of the decision.

e. A patient need not agree with the diagnosis of the attending physician in order to be able to apply the relevant information to their own circumstances.

f. While a patient need not agree with a particular diagnosis, if it is demonstrated that they have a mental “condition”,[^1] the patient must be able to recognize the possibility that they are affected by that condition.

g. A patient is not required to describe their mental condition as an “illness”, or to otherwise characterize the condition in negative terms. Nor is a patient required to agree with the attending physician’s cause of that condition.

h. Nevertheless, if the patient’s condition results in them being unable to recognize that they are affected by its manifestations, the patient will be unable to apply the relevant information to their circumstances, and unable to appreciate the consequences of their decision.

[24] Section 15 of the HCCA provides that a person may be incapable with respect to some treatments and capable with respect to others, and that a person may be incapable with respect to a treatment at one time and capable at another.

[25] Subsection 32 of the HCCA provides that “[a] person who is the subject of a treatment may apply to the [CCB] for a review of a health practitioner’s finding that he or she is incapable with respect to the treatment.” In an application to the CCB, the CCB may confirm the health practitioner’s finding or may determine that the person is capable with respect to the treatment and, in doing so, may substitute its opinion for that of the health practitioner: subsection 32(4) of the Act. At a capacity hearing, the onus is on the attending physician to prove on a balance of probabilities that the patient is incapable: Starson at para. 77.

3. REASONS OF THE CCB

[26] The issue of the validity of the CTO was first before the CCB on December 3, 2021. At that time, the matter was adjourned to December 17, 2021 at the request of counsel for R.J. On December 17, 2021, the matter was adjourned again to January 7, 2022. The hearing finally took place on that date.

[27] The evidence at the hearing before the CCB consisted of the oral testimony of R.J. and Dr. Liu, as well as two exhibits: (1) the CCB Summary and CCB Forms; and (2) Dr. Liu’s progress note of November 18, 2021. R.J. was represented by counsel at the hearing.

[28] The CCB first dealt with two preliminary issues raised by R.J. The first issue was whether R.J. was able to comply with the CTP contained in the CTO, as required by section 33.1(4)(c)(iv) of the MHA. R.J. argued that section 6 of the CTP could not be complied with and was vague and overbroad. The CCB ruled against R.J. on this point. It stated the following:

It was Ms. Dada [counsel for R.J.]’s contention that even though a referral had been made to the CHMA [sic], it was impossible to comply with the CTP and accordingly the CTP was vague and overbroad. Ms. Dada cited Re SB, 2020 942843 (ON CCB), where the CTP was revoked as there was no reciprocal obligation placed on the person subject of the CTP. In this instance, there was no obligation placed upon RJ in section 6 of the CTP. This is clear in the permissive language of section 6 where RJ “agrees to meet” with the CMHA.

Dr. Liu provided an explanation why section 6 was not an obligation. The CTO was signed while RJ was in the hospital as an involuntary patient. The process takes time to engage the services of CMHA and Dr. Liu did not wish to keep RJ in the hospital as an involuntary patient pending RJ’s acceptance into the CMHA program. Providing the services of the CMHA was an added layer of support for RJ. Dr. Liu added that RJ would not be brought into the hospital under a Form 47 (Order for Examination) as, again, section 6 was not an obligation but an opportunity for additional support.

Further, Dr. Liu testified that there were no barriers in RJ’s ability to comply with the remainder of the CTP. RJ had been on an earlier CTO where she had shown that she was able to comply with the CTP. In fact RJ had already complied with the current CTO, attending the hospital to receive her long acting injectable medication.

The panel found that section 6 was not vague. There was no obligation to comply with the section. That section was added for the benefit of RJ. Further, the panel found that Dr. Liu discharged her onus by establishing that RJ was indeed able to comply with the CTP. Accordingly, this issue was dismissed.

[29] The second preliminary issue was in relation to: (a) section 33.1(4)(d) of the MHA, i.e. whether the physician had consulted with the health practitioners or other persons proposed to be named in the CTP; and (b) section 33.7(6), i.e. whether the CTP named all persons or organizations who have agreed to provide treatment or care and supervision under the CTP and their obligations under the CTP. R.J. argued that the CTP was not signed by a CMHA representative. The CCB rejected R.J.’s argument on this point:

The CTP was signed by Dr. Liu, [R.J.’s mother], the substitute decision maker, and Ms. Luk with the CAMH but there was no signature from someone with the CMHA. Again, Dr. Liu’s comment was valid; she did not want to hold up RJ’s discharge to wait for the signature from the person from the CMHA. The signature page of the CTP displayed the persons with whom Dr. Liu would work. Ms. Dada was of the view that if the CTP did not comply with section 33.7(6), it offended RJ’s constitutional right to life and liberty of the person. The panel did not agree with Ms. Dada in that RJ’s rights to life and liberty would have been offended if Dr. Liu had kept RJ in the hospital longer than what was needed in order to obtain the signature from a representative of the CMHA. In fact, keeping RJ in the hospital simply to obtain the signature of a representative of the CMHA could be seen as violating RJ’s rights. Accordingly, the panel dismissed Ms. Dada’s motion.

[30] R.J. also argued before the CCB that Dr. Liu had not met her onus of establishing that R.J. was incapable of consenting to the CTP and that, as a result, the presumption of capacity should be restored. R.J. also pointed out that she was last formally assessed on November 18, 2021 and that she had not been assessed since her discharge from the hospital on December 1, 2021. Given that over one month had elapsed between the last assessment and the hearing on January 7, 2022, R.J. submitted that the presumption of capacity should be restored.

[31] The CCB found that R.J. was incapable to consent to the CTP. It stated:

Dr. Liu testified that she had formally assessed RJ for her capacity to consent to the CTP on November 18, 202 [sic]. Dr. Liu testified on November 18, RJ was clearly psychotic, was responding to internal stimuli about unseen entities and so could not hear or process the information. Dr. Liu found it challenging to conduct the assessment as she could not have a meaningful conversation with RJ. She testified that she provided RJ with written material and reviewed each clause found in the CTP. Further, she testified that she reviewed with RJ the risks and benefits of the medication.

Dr. Liu’s testimony was corroborated by her evidence submitted during her testimony. Exhibit 2 was entered as an exhibit. It was a progress note dated November 18, 2021. In it she wrote: [see paragraph 10 above].

Dr. Liu advised that she assessed RJ for her capacity to consent to treatment daily until her discharge of December 1, 2021. Further, she had an opportunity to make observations during a CCB hearing held December 17, 2021. At that time RJ interrupted the hearing and displayed the same symptoms on the unit noted above and her consistent denial that she had schizophrenia.

RJ read a statement at the hearing. While she was able to remain silent during Dr. Liu’s testimony, RJ’s testimony exhibited some of the delusional thinking found by Dr. Liu. She went on at length about delusional ideas, that the CCB was part of the killings and that the persecutions by the CCB had to be stopped. She stated that she did not need treatment.

The panel found that RJ was incapable under both branches of the capacity test. Dr. Liu testified that RJ was unable to understand the information relevant to making a decision due to her significant cognitive deficits. Further, as she was acutely unwell, as noted during her own testimony, RJ was unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision. As she denied that she had schizophrenia and did not need treatment, she was unable to apply the relevant information to herself and consequently unable to appreciate the reasonably foreseeable consequences of a decision not to comply with the CTP. The panel found Dr. Liu’s testimony and documentation to be clear, cogent and compelling and was supported by RJ’s testimony.

[32] The CCB reviewed the applicable legal principles with respect to community treatment orders, including section 33.1 of the MHA. The CCB analyzed the evidence in relation to the criteria set out in section 33.1(4) and concluded that the requirements for issuing the CTO were met at the time of the hearing. The CCB made the following findings:

a. R.J. was suffering from mental disorder at the time of the hearing such that she needed continuing treatment and care and continuing supervision while living in the community. The CCB noted that R.J. had a history of medication noncompliance as she had no insight into her condition and that without treatment, R.J. would continue to be psychotic.

b. If R.J. did not receive continuing treatment or care and continuing supervision while in the community, she would be likely, because of her mental disorder, to suffer substantial mental deterioration. The CCB found that when not treated, R.J. decompensated and experienced substantial mental deterioration. However, based on the evidence, the CCB did not find that there was a risk of serious bodily harm towards another person or a risk of serious physical impairment.

c. R.J. was able to comply with the CTP (with reference to the CCB’s ruling on the first preliminary issue raised by R.J.).

d. Dr. Liu consulted with the health practitioners or other persons proposed in the CTP (with reference to the CCB’s ruling on the second preliminary issue raised by R.J.).

e. The remaining technical requirements to issue a CTO under subsection 33.1(4) had been met.

[33] Accordingly, the CCB confirmed the CTO.

4. ISSUES RAISED ON THIS APPEAL

[34] R.J. submits that the CCB erred in law and in fact when it made the following findings:

a. R.J. was incapable of consenting to the CTP.

b. Sections 6 and 7 of the CTP were not vague and overbroad, and the CTP did not violate sections 33.1(4)(c)(iv) and 33.7(3) of the MHA.

c. Dr. Liu consulted with the health practitioners or other persons proposed to be named in the CTP and the CTP did not violate sections 33.1(4)(d) and 33.7(6) of the MHA.

d. The condition in section 33.1(4)(c)(iii) was met and the evidence established that Dr. Liu was of the opinion that if R.J. did not receive continuing treatment or care, she would be likely to suffer substantial mental deterioration.

5. STANDARD OF REVIEW

[35] Section 80 of the HCCA sets out the statutory right of a party to a proceeding before the CCB to appeal to this Court on a question of law, fact, or both. On appeal, this Court may exercise the powers of the CCB, substitute its opinion for that of the health practitioner, the substitute decision-maker, or the CCB, or refer the matter back to the CCB with directions for a rehearing in whole or in part.

[36] The parties agree that because the legislature has provided for an appeal from the decision of the CCB to this Court, the appellate standards of review apply to the CCB’s decision: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37. Thus, as set out in Housen v. Nikolaisen, 2002 SCC 33, the standard of correctness applies to questions of law (including questions of statutory interpretation and those concerning the scope of a decision-maker’s authority) and the standard of palpable and overriding error applies to questions of fact and questions of mixed fact and law, unless an error of law can be extricated from the mixed question of fact and law, in which case the standard of correctness applies.

[37] In my view, the CCB correctly articulated the applicable legal tests, i.e. the test for capacity to consent to treatment as set out in section 4(1) of the HCCA and the test for issuing a community treatment order as set out in section 33.1(4) of the MHA. The issues in this appeal pertain to the application of the law to the facts and are questions of mixed fact and law. As a result, with one exception discussed below, the standard of review is palpable and overriding error. This standard was described as follows by the Court of Appeal in Farsi v. Da Rocha, 2020 ONCA 92 at para. 35:

A palpable and overriding error is one that is clearly wrong, unreasonable, or not reasonably supported on the evidence: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 110. The Supreme Court recently explained in Salomon v. Matte‑Thompson, 2019 SCC 14, 432 D.L.R. (4th) 1, at para. 33, “[w]here the deferential standard of palpable and overriding error applies, an appellate court can intervene only if there is an obvious error in the trial decision that is determinative of the outcome of the case.”

[38] The fact that an alternative factual finding could be reached based on a different ascription of weight does not mean that a palpable and overriding error has been made: see Nelson (City) v. Mowatt, 2017 SCC 8 at para. 38 and Salomon v. Matte‑Thompson, 2019 SCC 14 at para. 33.

6. DISCUSSION

a. Whether the CCB made a palpable and overriding error in finding that R.J. was incapable of consenting to the CTP

[39] R.J. submits that the CCB made a palpable and overriding error when it held that, at the time of the hearing: (1) she was unable to understand the information relevant to her treatment decisions (first branch of the capacity test); and (2) she was not able to appreciate the reasonably foreseeable consequences of her treatment decisions (second branch of the capacity test).

[40] R.J. argues that there was no evidence before the CCB that Dr. Liu gave her the relevant information that she needed to make an informed decision at the time of the hearing. She also argues that the CCB failed to recognize that capacity fluctuates over time, and failed to take into account: (a) Dr. Liu’s evidence that R.J. had improved and was better on the day of the hearing, and might be able to understand the relevant information; (b) the fact that R.J.’s last formal assessment was on November 18, 2021, i.e. 50 days before the hearing; and (c) the fact that her discharge from the hospital was 37 days before the hearing.

[41] In my view, it is unnecessary to deal with both branches of the capacity test on this appeal. Given that the test is a conjunctive one, if the CCB’s conclusion on either branch of the test is confirmed, the finding that R.J. was incapable of consenting to the CTP will be upheld. In other words, an error with respect to only one branch of the test would not constitute a palpable and overriding error as such an error would not be determinative of the outcome of the case. Consequently, I will only deal with the second branch of the test.

[42] The CCB held that Dr. Liu’s testimony and documentation on the issue of incapacity was clear, cogent and compelling, and supported by R.J.’s testimony. The CCB found, based on R.J.’s own testimony, that R.J. was acutely unwell. As stated above, R.J. stated before the CCB that she was not psychotic, she did not need medications, and she did not believe that she had a mental illness. She also expressed the view that there was no benefit whatsoever of being on the CTO. R.J.’s own evidence at the hearing showed that she was not able to recognize the possibility that she was affected by a mental condition and was not able to appreciate the foreseeable benefits and risks of treatment or the absence of treatment: see Starson at paras. 79-81.

[43] A review of the CCB’s decision in the context of the evidence that was before it satisfies me that the CCB’s analysis is reasonably supported by the evidence and reflects an application of the proper legal principles to that evidence. In light of all the evidence, including the evidence that R.J. was unable to recognize that she was affected by a mental condition, I see no palpable and overriding error with the CCB’s conclusion that R.J. was unable to apply the relevant information to her circumstances and unable to appreciate the reasonably foreseeable consequences of a decision or lack of a decision: see Starson at para. 79.

[44] In my view, there is no basis for R.J.’s argument that the CCB failed to recognize that capacity can fluctuate over time. It is clear from the CCB’s reasons that it was aware that it had to determine R.J.’s capacity at the time of the hearing, and this is what it did. R.J.’s arguments based on the dates of her last formal assessment and discharge were considered and ultimately rejected by the CCB, based on the entirety of the evidence before it. It was open to the CCB to accept Dr. Liu’s evidence on the issue of assessment of capacity, which was supported by R.J.’s testimony.

[45] I also reject R.J.’s argument that there was no evidence before the CCB that Dr. Liu gave her the relevant information that she needed to make an informed decision at the time of the hearing. Dr. Liu’s CCB Summary and progress note of November 18, 2021, which were before the CCB, outline the steps that Dr. Liu took to provide the relevant information to R.J. when she was in hospital, including a review of each clause of the CTP. Dr. Liu testified at the hearing that in addition to having discussions with R.J., she provided written information to her with regards to her diagnosis and medication.

[46] In any event, as the Court of Appeal stated in Giecewicz v. Hastings, 2007 ONCA 890 at para. 42, “[t]his was not a case where it could be suggested that the appellant’s lack of appreciation of the risks and benefits reflected the ‘physician’s failure to adequately inform the patient of the decision’s consequences’”, which is a possibility discussed in Starson at paras. 81 and 111. Rather, in the present case, R.J.’s lack of appreciation of the risks and benefits flowed from her inability, as a result of her condition, to appreciate consequences and perform a risk/benefit analysis of taking or not taking the medications and of being or not being subject to the CTO.

[47] Thus, I find that the CCB did not make a palpable and overriding error in finding that R.J. was incapable of consenting to the CTP.

b. Whether the CCB made a palpable and overriding error in finding that sections 6 and 7 of the CTP were not vague, overbroad and uncertain, and that the CTP did not violate [sections 33.1(4)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m7/latest/rso-1990-c-m7.html)(c)(iv) and [33.7(3)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m7/latest/rso-1990-c-m7.html) of the [MHA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m7/latest/rso-1990-c-m7.html)

[48] R.J. argues that section 6 of the CTP is overbroad, vague and uncertain as it holds R.J. “responsible to obligations of a non-existent relationship”. She repeats the submissions that she made before the CCB on this point.

[49] In my view, the CCB did not make a palpable and overriding error on this issue. Based on the language used in section 6 of the CTP, it was open to the CCB to conclude that section 6 did not impose any obligation on R.J. Section 6 contains the following words, among others:

a. “If accepted into the agency”;

b. R.J. “agrees to meet with”;

c. “at a mutually agreeable time and place”;

d. “Frequency of contact with CMHA and types of services provided will be renegotiated on an ongoing basis; these will be based on [R.J.]’s needs and mutually agreed upon by CMHA representative and [R.J.]”

[50] In light of the language in section 6, if R.J.’s referral was not accepted, then section 6 would become moot. If the referral was accepted by CMHA, then it was open to R.J. to “renegotiate” and, arguably, to refuse to meet or to receive services if she did not agree to do so. This is a possible interpretation of section 6 based on its language.

[51] If, as found by the CCB, section 6 does not impose any obligation on R.J., then there can be no issue with R.J.’s ability to comply with section 6 of the CTP, as there is no obligation with which to comply. Therefore, there is no violation of the criterion in section 33.1(4)(c)(iv) of the MHA. Further, if section 6 does not impose any obligation on R.J., section 8 of the CTP cannot be triggered in relation to section 6 because section 6 cannot be breached by R.J.

[52] R.J. also argues that section 6 conflicts with the legal concept of incapacity as it assumes that R.J. is able to agree to do certain things, e.g., to meet with a worker from CMHA at a mutually agreeable time and place. She submits that section 6 compels her to be subject to a treatment with respect to which she has not been found incapable.

[53] I reject this submission. I agree with Dr. Liu that since the CCB found that section 6 of the CTP did not impose an obligation on R.J., there is no need to consider this argument. Given that section 6 does not impose an obligation on R.J., it does not compel R.J. to be subject to a treatment.

[54] Further, as set out above, I have found that the CCB did not make any palpable and overriding error in finding that R.J. was incapable with respect to the CTO. The test for capacity to consent to treatment is set out in section 4 of the HCCA and the fact that R.J. may be able to agree to meet with a worker from CMHA at a certain place and time does not mean that she is capable to consent under the two-part test set out in section 4. As explained by Dr. Liu in her evidence, for a case manager to work with a person, there has to be some degree of cooperation, and that is why the language found in section 6 of the CTP was used.

[55] While, on the one hand, R.J. argues that the CCB erred in holding that section 6 did not impose an obligation on her with which she had to comply, she also argues, on the other hand, that the CCB erred in not finding that section 6 of the CTP was vague, overbroad and uncertain because it did not create an obligation or restriction for R.J., contrary to section 33.7(3) of the MHA. R.J. makes the same argument with respect to section 7 of the CTP.

[56] R.J. relies on the case S.B. (Re), 2020 94283 (Ont. C.C.B.), where a community treatment plan was found to be vague and was revoked. In that case, the community treatment plan conferred an obligation on a case manager to meet with S.B., but there was no corresponding obligation on S.B. to meet with the case manager. The same cannot be said of section 6 of the CTP in the present case. Section 6 does not impose an obligation to meet on the CMHA case manager – meetings have to be mutually agreed upon. While section 6 states that “CMHA representative will also assist [R.J.] with meeting the obligations of this CTO and may attend [R.J.]’s appointments as required”, this refers to obligations of R.J. that are set out in other provisions of the CTP. Therefore, there are corresponding obligations on R.J. with respect to these obligations imposed on the CMHA representative.

[57] R.J.’s argument appears to be based on the premise that every single section of the CTP must impose an obligation on R.J. However, this is not what section 33.7 of the MHA requires. Section 33.7 requires that a community treatment plan contain the obligations of the person subject to the community treatment order. The CTP has to be considered as a whole to determine whether this requirement is met.

[58] As stated above, R.J. also argues that section 7 of the CTP is vague, overbroad and uncertain. She submits that section 7 creates a vague obligation for the CMHSC of CAMH “to be available to all members named in the plan as necessary” and to follow up with appropriate parties to assist in the implementation of the CTO. R.J. also points out that section 7 does not impose any obligation on her.

[59] In my view, the CCB did not make any palpable and overriding error in failing to find that section 7 of the CTP was vague, overbroad or uncertain. An obligation on the CMHSC of CAMH to assist with the implementation of the CTO does not require any specific corresponding obligation on the part of R.J. R.J.’s obligations are set out elsewhere in the CTP. Further, it was open to the CCB to conclude that the obligations of the CMHSC under the CTP were not vague.

[60] In light of the foregoing, I find that the CCB did not make a palpable and overriding error in finding that sections 6 and 7 of the CTP were not vague, overbroad and uncertain, and that the CTP did not violate sections 33.1(4)(c)(iv) and 33.7(3) of the MHA.

c. Whether the CCB erred in finding that the physician consulted with the health practitioners or other persons proposed to be named in the CTP and that the CTP did not violate [sections 33.1(4)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m7/latest/rso-1990-c-m7.html)(d) and [33.7(6)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m7/latest/rso-1990-c-m7.html) of the [MHA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m7/latest/rso-1990-c-m7.html)

[61] R.J. submits that it is clear on the face of the CTP that Dr. Liu did not comply with sections 33.1(4)(d) and 33.7(6) of the MHA. She states that at the time the CTP was signed, CMHA had not agreed to provide treatment or care and supervision under the CTP, and CMHA did not sign the CTP. R.J.’s position is that there was a legal obligation on Dr. Liu to consult with and get the agreement of the parties included in the CTP and Dr. Liu failed to meet this obligation.

[62] In my view, the standard of review that applies to this question is correctness. While the CCB did not discuss in its reasons the issue of the statutory interpretation of section 33.1(4)(d) of the MHA and, in particular, the meaning of the word “consulted” in this subsection, the issue of statutory interpretation can be extricated from the question of mixed fact and law raised by R.J., i.e. whether the consultation requirement set out in section 33.1(4)(d) was met in this case. Further, a reviewing court should not defer to the CCB’s findings if it misunderstood the statutory test: see Gajewski v. Wilkie (2014), 2014 ONCA 897, 123 O.R. (3d) 481 at para. 33 (C.A.).

[63] Statutory interpretation involves reading the words of a provision in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[64] Looking first at the ordinary sense of the words, the introductory words of section 33.1(4) of the MHA (“A physician may issue or renew a community treatment order under this section if”) clearly require that the criteria or conditions that follow be met before a community treatment order is issued or renewed. Thus, the consultation referred to in section 33.1(4)(d) must take place before the physician issues or renews a community treatment order. In other words, the consultation with the health practitioners and other persons proposed to be named in the community treatment plan is a precondition to the issuance or renewal of a community treatment order.

[65] The verb “consult” means to “seek information or advice from (someone, especially an expert or professional)” or “have discussions with (someone), typically before undertaking a course of action”: see Oxford Dictionary of English. These definitions show that a consultation is a two-way process, not a one-way process. Sending a written referral without receiving any communication in response is not a “consultation”, based on the ordinary sense of this word.

[66] Turning now to the statutory context, other provisions of the MHA are relevant to the interpretation of the requirement to consult with the health practitioners or other persons proposed to be named in the community treatment plan contained in section 33.1(4)(d). In particular:

a. Section 33.5(3) provides that “[a] person who agrees to provide treatment or care and supervision under a community treatment plan shall indicate his or her agreement in the plan and is responsible for providing the treatment or care and supervision in accordance with the plan.”

b. Section 33.5(4) provides that “[a]ll persons named in a community treatment plan, including the person subject to the plan and the person’s substitute decision-maker, if any, are responsible for implementing the plan to the extent indicated in it.”

c. Section 33.7(6) states that a community treatment plan shall contain 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.”

[67] These provisions of the MHA support the following rationale for the consultation requirement: the persons who are proposed to be named in the community treatment plan must be aware of their obligations under the plan and must be prepared to accept and fulfill those obligations: see L.G. v. Pityk, 2017 ONSC 6863 at para. 22 (“Pityk”) and C.B. (Re), 2016 22549 (Ont. C.C.B.) (“C.B.”).

[68] The consultation requirement must also be interpreted in light of the purpose of community treatment orders, which 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: see section 33.1(3) of the MHA. In both Pityk and C.B., it was stated that the imposition on a physician of a requirement to consult is intended to ensure that a meaningful process is followed when a community treatment order is issued. However, this does not mean that the consultative process should be interpreted so narrowly that the purpose of the CTO is frustrated and the liberty of the person who would otherwise be subject to the order is further jeopardized by the prospect of another involuntary detention: see Pityk at para. 22 and C.B.

[69] Dr. Liu relies on both C.B. and Pityk in support of the CCB’s finding that she consulted with the health practitioners and other persons named in the CTP.

[70] C.B. stands for the proposition that the required consultation does not have to be conducted by the physician personally but can be done by someone else on behalf of the physician. In C.B., the hospital’s community treatment order coordinator (not the physician) communicated with the executive director of a community health agency on behalf of the physician with respect to the community treatment plan in that case. The executive director verbally agreed to provide the services of a case manager pursuant to the community treatment plan. Before the CCB, C.B. argued that the community treatment order should be rescinded because the physician had not personally consulted with the community health agency and the consultation was done through the community treatment order coordinator. The CCB rejected this argument.

[71] In Pityk, the CCB found that the physician had consulted with the two health practitioners proposed to be named in the community treatment plan in question. While the physician had sent a formal written referral to one of the health practitioners, an important factor supporting the CCB’s conclusion that consultation had taken place was the working relationships between the physician and the two health practitioners. On appeal, Justice Ryan Bell concluded that the CCB’s finding on this issue was reasonable. She stated the following:

[21] The Board’s conclusion on the consultation issue expressly recognized the necessity of discussion with other care providers (and the substitute decision-maker) prior to entering into the community treatment plan. The Board stated that the consultation and agreement was, to a large extent, implied by the working relationships among Dr. Pityk, Dr. Tempier and Ms. Reid as colleagues at the Montfort Hospital.

[23] The standard of reasonableness also applies to the Board’s finding that Dr. Pityk consulted with Dr. Tempier and Ms. Reid. In its reasons, the Board referred to Dr. Pityk’s working relationship at the Montfort Hospital with Dr. Tempier and Ms. Reid, Dr. Pityk’s discussion with Ms. Reid and his referral to Dr. Tempier. The Board referred to the necessity for the consultation to take place before the community treatment plan was entered into to ensure that the individuals expected to carry out the terms of the plan or support its enforcement have been consulted and have agreed to be involved. The Board’s finding that Dr. Pityk consulted with Dr. Tempier and Ms. Reid is supported by the evidence and the Board’s reasons. Its finding that consultation with the health practitioners occurred is reasonable.

[24] As for the timing of the consultations with Dr. Tempier and Ms. Reid, the Board’s reasons disclose that the Board members were aware of the need for the consultations and the agreement to take place prior to the community treatment plan being entered into: “[t]hese points related to the necessity of discussion with other care providers and the SDM [substitute decision-maker] prior to entering into the CTP.” The Board was satisfied that the intent of the legislation was respected and concluded that “[t]his consultation” was to a large extent implied by the working relationships. In my view, read in context, the consultation referred to can only be Dr. Pityk’s consultations with Dr. Tempier and Ms. Reid, which the Board had inferred occurred prior to the community treatment plan being entered into. I find no error by the Board in this regard.

[72] In this case, contrary to the situation in C.B., there is no evidence that the CMHA agreed to provide the services set out in section 6 of the CTP prior to the issuance of the CTP or the CTO, verbally or otherwise. In fact, the language of section 6 indicates that the CMHA did not provide its agreement before the issuance of the CTP: after mentioning that a referral had been made for R.J. to participate in the intake and referral process of the CMHA, section 6 states: “If accepted into the agency, […].”

[73] Further, contrary to the situation in Pityk, there was no evidence before the CCB of a relationship between CMHA and Dr. Liu from which consultation could be inferred or implied. In fact, aside from a written referral to CMHA, there is no evidence of any other communications between Dr. Liu (or anyone on her behalf) and CMHA or any response received by Dr. Liu from CMHA. The evidence of Dr. Liu on this point was that the process to engage the services of CMHA took time, and CMHA typically tried to connect with the patient in the community after discharge. However, this approach is not consistent with the interpretation of the consultation requirement in Pityk, which includes the necessity of discussion with other care providers prior to entering into the community treatment plan to ensure that the individuals expected to carry out the terms of the plan or support its enforcement have been consulted and have agreed to be involved. As stated above, there is no evidence of any discussion with CMHA and no evidence that CMHA agreed to be involved prior to the issuance of the CTP or the CTO.

[74] After the hearing, the parties provided me with a number of additional cases, which I have reviewed. Two of the additional cases sent by Dr. Liu were Paspalovski v. Agrawal, 2016 ONSC 4805 (“Paspalovski”) and S.S. v. Kantor, 2017 ONCA 828 (“Kantor”). These two cases state that, in order for a community treatment order to be valid, there is no requirement that all participants in a community treatment plan sign the plan within 72 hours of the physician’s examination of the patient referred to in section 33.1(4)(c). In both cases, however, all participants had signed the community treatment plan before the community treatment order was issued, even though not all participants had signed the community treatment plan within 72 hours of the examination. Neither of these cases stand for the proposition that, despite the introductory words of section 33.1(4), consultation can take place and consent can be obtained after a community treatment order is issued. These cases only deal with the timing of the signature of the community treatment plan.

[75] In my view, both Paspalovski and Kantor support the conclusion in Pityk that there must be a discussion with the persons proposed to be named in the community treatment plan prior to entering into the plan to ensure that the individuals expected to carry out the terms of the plan or support its enforcement have been consulted and have agreed to be involved. In Paspalovski, Justice Goldstein stated the following at para. 48:

When s. 33.5(3) is read with s. 33.1(4) all that it means is that a physician is required to satisfy him or herself that the criteria contained in s. 33.1(4)(c)(i) to s. 33.1(4)(c)(v) have been met. In essence, that means that the physician need only be satisfied that treatment is available and that the health care providers have agreed to provide care. There is no indication that anyone other than the physician and the patient are required to “enter into” the CTP. Everyone else simply indicates agreement. The 72 hour requirement is there to ensure that the capacity assessment is current when health care providers indicate their agreement in the plan. [Emphasis added.]

See also Kantor at para. 26.

[76] Here, CMHA was not properly consulted and did not indicate its agreement to the CTP before the CTO was issued. I note that there was more than one week between the signature of the CTP on November 18, 2021 and the issuance of the CTO on November 26, 2021.

[77] The CCB did not explain in its reasons how the referral to the CMHA in this case met the consultation requirement set out in the MHA. Instead, it focused on the delay that would have occurred had CMHA been required to sign the CTP, and the potential impact of such delay on R.J.’s constitutional rights to life and liberty.

[78] The fact that Dr. Liu did not want to hold up R.J.’s discharge to wait for a response from CMHA is not a proper justification for not complying with a statutory requirement. Further, Dr. Liu’s evidence on this point was not fully substantiated. As noted above, there was more than one week between the signature of the CTP and the issuance of the CTO. Further, R.J. remained in hospital for an additional five days after the issuance of the CTO, i.e. until December 1, 2021.

[79] While the CCB and both sides have referred to R.J.’s constitutional rights to life and liberty, there has been no formal challenge to sections 33.1(4)(d) or 33.7(6) or any other section of the MHA. Further, Charter values such as liberty have a limited role to play in statutory interpretation. As stated by the Supreme Court of Canada in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 62:

Statutory enactments embody legislative will. They supplement, modify or supersede the common law. More pointedly, when a statute comes into play during judicial proceedings, the courts (absent any challenge on constitutional grounds) are charged with interpreting and applying it in accordance with the sovereign intent of the legislator. In this regard, although it is sometimes suggested that “it is appropriate for courts to prefer interpretations that tend to promote those [Charter] principles and values over interpretations that do not” (Sullivan, supra, at p. 325), it must be stressed that, to the extent this Court has recognized a “Charter values” interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible, interpretations. [Emphasis in the original.]

See also Ontario Nurses’ Association v. Participating Nursing Homes, 2021 ONCA 148 at para. 142.

[80] In light of the ordinary meaning of the word “consult”, the provisions of the MHA pertaining to community treatment orders and community treatment plans, the rationale for the consultation requirement, and the manner in which this requirement has been interpreted in the case law, the CCB’s conclusion that the evidence established that Dr. Liu had consulted with the health practitioners or other persons proposed to be named in the CTP (here, CMHA) was not based on any plausible interpretation of the word “consulted” in section 33.1(4)(d) of the MHA. Therefore, the conclusion reached by the CCB cannot be justified by resorting to Charter values.

[81] In my view, it cannot be said that any consultation – let alone any meaningful consultation – took place between Dr. Liu and CMHA before the CTO was issued. Among other things, as stated above, there is no evidence of any answer or information provided by CMHA to Dr. Liu after the written referral was made, and there is no evidence that CMHA indicated its agreement to be in involved in the CTP before the CTO was issued.

[82] Thus, I find that the CCB’s conclusion that the requirement set out in section 33.1(4)(d) of the MHA was met is incorrect. In the alternative, if the standard of review is palpable and overriding error, I am of the view that the CCB made such an error on this issue.

[83] While I have found that the CCB did not make any palpable and overriding error with respect to the validity of section 6 of the CTP, I note that the far-from-ideal language of this section and the issues discussed above that stem from the use of such language are the direct result of the lack of consultation with, and the absence of an indication of agreement on the part of, CMHA.

d. Whether the CCB made a palpable and overriding error in finding that the criterion in section 33.1(4)(c)(iii) of the [MHA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m7/latest/rso-1990-c-m7.html) was met and the evidence established that Dr. Liu was of the opinion that if R.J. did not receive continuing treatment or care, she was likely to suffer substantial mental deterioration

[84] R.J. submits that the evidence adduced at the hearing did not support a finding that she was likely to suffer substantial mental deterioration if she did not receive continuing treatment. She also argues that the evidence did not show that any deterioration would be substantial, i.e. “considerable, consequential, ample, significant, sizeable”.

[85] I reject this submission. I can see no palpable and overriding error in the CCB’s conclusion that, when not treated, R.J. decompensated and experienced substantial mental deterioration. This conclusion is reasonably supported by the evidence that was before the CCB, including R.J.’s medical history and Dr. Liu’s evidence. As noted by the CCB. Dr. Liu had first-hand knowledge of R.J.’s wellness when she was subject to a community treatment order and of R.J.’s condition when she was non-compliant with her treatment.

[86] I note that in making submissions on this point, R.J. was selective in her references to Dr. Liu’s evidence and omitted, among other things, Dr. Liu’s evidence that when R.J. is unwell, “she is experiencing auditory hallucinations quite actively all through the day” and “you can observe her talking to herself constantly to unseen entities.” Further, Dr. Liu stated the following in response to a question regarding her expectation as to what would happen in the absence of the CTO:

She would certainly discontinue treatment; she wouldn’t follow-up with me; gradually symptoms would return, I suspect much faster than they had before because she hadn’t had much treatment this time. And, again, the concern will be, now moving forward, of subsequent episodes of psychosis that she’s becoming more treatment resistant.

Certainly I notice this time it’s taking a little bit longer for her to recover from this acute episode than she did last time, and that would be the primary concern and of course all of the symptoms would return in full force.

[87] Thus, I conclude that the CCB did not make any palpable and overriding error in finding that the criterion in section 33.1(4)(c)(iii) of the MHA was met in this case.

7. CONCLUSION

[88] For the reasons set out above, I dismiss the appeal with respect to the CCB’s finding that R.J. was incapable of consenting to the treatment of the CTP, but I grant the appeal with respect to the CTO. The CTO is set aside.

[89] Neither party is seeking costs of this appeal. As such, I make no order as to costs.

Vermette J.

Released: June 6, 2022

COURT FILE NO.: CV-22-00675741-0000

DATE: 20220606

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

R.J.

Appellant

– and –

Dr. Regina Liu

Respondent

REASONS FOR JUDGMENT

VERMETTE J.

Released: June 6, 2022

[^1]: Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology: see Starson at para. 79.