COURT FILE NO.: CV-20-642556 DATE: 20221121

ONTARIO SUPERIOR COURT OF JUSTICE

RE: DELORES GREY, Appellant

-and-

DR. SERGE LEBLANC, Respondent

BEFORE: FL Myers J (orally)

COUNSEL: Delores Grey, in person, the appellant

Nicole Fielding and John McIntyre, for the respondent

Joanna Weiss, amicus curiae

HEARD: November 21, 2022

ENDORSEMENT

[1] On September 10, 2020 the Consent and Capacity Board confirmed the respondent’s decision to hold Ms. Grey as an involuntary patient at CAMH.

[2] On September 23, 2020, CAMH discharged Ms. Grey. She is not under the respondent’s care today.

[3] In this appeal, Ms. Grey challenges the lawfulness of the board’s order upholding the respondent’s decision to hold her as an involuntary patient. But, she has not been an involuntary patient of CAMH or the respondent for more than two years. Time has passed and events have changed. The parties no longer have anything to do with each other.

[4] Courts do not usually decide cases where there is no live controversy between the parties. The case is said to be “moot”. The Supreme Court of Canada has explained why an existing controversy is usually required for a court to become involved. The reasons have to do with the way in which our adversarial system works. There is also an important need to preserve scarce court resources for live cases especially now with the court so under-staffed and under resourced. See: Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC).

[5] A judge is entitled to hear a moot case if she or he finds there are valid reasons to do so. Ms. Weiss, as amicus curiae submits that it is important for the court to hear this appeal to "clarify the law and provide guidance to the courts below." She points out that if the discharge of a patient ends her appeal, then the right of appeal will be lost in all but the lengthiest of admissions. But the whole purpose of the right of appeal is for the patient to make submissions to end her involuntary detention. If she has been discharged, then the purpose of the appeal has already been achieved.

[6] Amicus curiae submits that this outcome is fraught with the risk of abuse as a doctor may discharge a patient right before an appeal to prevent an illegal detention from being reviewed by the court. But, even in that case, the purpose of the appeal is achieved by the discharge. If the appellant wishes to contest the lawfulness of the doctor’s conduct there may be other civil causes of action available. Moreover, where the facts support a submission that the appellant’s discharge was a bad faith effort to avoid court scrutiny of a doctor’s actions, the court can be asked to exercise the discretion to hear the moot case on that basis. That is not the case before me today.

[7] The appellant and amicus curiae submit that it is important for the appeal to be heard because the grounds for involuntary admission in this case include the appellant’s history of treatments. Each event can then become a ground for a future proceeding.

[8] Ms. Grey challenges the sufficiency of the evidence upon which the board concluded in this case that her history of illness and treatment met the criteria for involuntary admission. Success on appeal may therefore assist her to avoid a future case based on similar grounds that could rely on the errant findings in this case.

[9] Amicus curiae submits that in the case of Beckford v Brook, 2016 ONSC 1549 Diamond J. of this court found that, “involuntary admissions have the potential to cause recurring issues for these vulnerable people”. Despite that finding however, Diamond J. held that this “potential” was too speculative to amount to a valid reason to hear the moot appeal. Moreover, Diamond J. relied upon two cases that also found the same “potential” and both found that it was an insufficient basis to hear moot appeals. See: S. (R.M.) v. Wainberg, [1997] O.J. No. 4933 (Gen. Div.) and Nasr v. Wong, [2007] O.J. No. 5579 (S.C.J.). In the latter case, Echlin J. wrote:

I find that the determination of the subject appeal is moot. I say so because while Mr. Haber may be contemplating future challenges, the fact remains that at present, Mr. Nasr has been released and there are no outstanding proceedings. Furthermore, I am not convinced that the determinations made by the Board (which are sought to be appealed from) will have any significance in any future proceedings, having regard for the requirement that evidence will be looked at relating to the ‘time of the hearing’. The events of last year can hardly be said to be of utility to the determination which will be sought at a future date.

It would appear that Mr. Nasr’s next challenge will be the outstanding CTO. That issue is not before me. I find it speculative to suggest that the Board determinations appealed from can, in any relevant fashion, impact upon the determination of any relevant as-yet uninitiated proceedings. At present there are no disputes and a future review of the decision would be academic.

[10] Like Diamond J., I agree with Echlin J. If a future board is called upon to make findings about the appellant’s past treatments, the appellant will have all the same arguments available to her about the sufficiency and quality of the evidence on which that future board may act.

[11] I also do not accept the submission by amicus curiae that appeals from involuntary status are rare or require guidance in this moot case because there may not be many other cases of this type. I have cited three above. The respondent and amicus curiae cite more in their factums. Of greater note, amicus curiae cites the recent decision of the Court of Appeal in Thompson v. Ontario (Attorney General), 2016 ONCA 676 that gives guidance concerning with the Box “B” criteria for involuntary admission that is in issue in this appeal.

[12] The two real issues raised by the appellant in this case do not involve a need for appellate guidance. The first concerns procedural fairness. The second concerns the adequacy of the evidence on which the board made its findings. The law underlying both issues is not in doubt. The questions of whether this particular hearing was unfairly abbreviated or whether the board made a palpable and overriding error in making its finings of fact or mixed fact and law do not extend beyond this case.

[13] In R.C. v. Klukach, 2018 ONSC 7415, Perell J. exercised his discretion to hear a moot appeal on a question of procedural fairness. But the issue in that case was not one of fact. It was an issue of law. Perell J. found that the board had made an error in concluding that because a patient exercised his right to represent himself, the board was precluded from appointing amicus curiae to assist it. Perell J. wrote:

[66] In my opinion, in no circumstance is the Board precluded from appointing an amicus curiae, if that is what is required for the proceeding before the Board to be conducted in a procedurally fair manner. In the immediate case, R.C. was constitutionally entitled to represent himself regardless of the fact that it was a virtual certainty that he would not be an effective advocate. But that entitlement did not preclude the Board from discharging Mr. Hirtz as R.C.'s legal representative but then appointing him amicus curiae to complete the hearing on August 10, 2017.

[14] In correcting the board’s error of law, Perell J. was assuring that future cases would not make the same error. Here, no one doubts the board’s authority to control its own process and impose time limits in its discretion. The appellant and amicus curiae submit that on the facts of this case the board exercised its authority too stringently with the result that the appellant was denied a procedurally fair process.

[15] There is no erroneous or unclear principle of law with universal application in issue in this appeal as there was in Klukach. While it is always possible that some generalizations for future use might be available from a decision on the factual issues in this appeal, in my judgment, it is best to assess factual elements of fairness in a case in which there is a live controversy. In that way, the significance of the factual issues on the fairness of the process can be assessed in a proper adversarial environment with concrete rather than hypothetical outcomes.

[16] I have read the transcript and understand that the appellant told the board that she wanted her day in court as discussed in her factum by amicus curiae. Ms. Grey submits that the diagnosis made by CAMH doctors has had and continues to have ongoing and serious negative effects on her. She says that she has been denied optimal medication for her real health issues because they are contra-indicated for patients who suffer the illness with which she has been wrongly diagnosed at CAMH. She has concerns that her future educational opportunities, work opportunities, and immigration opportunities will all be negatively affected by the continuation in her record of the wrongful diagnosis reached by the respondent and others at CAMH.

[17] Unfortunately, the court has no ability or jurisdiction to give Ms. Grey the type of day in court that she seeks.

[18] In an appeal under s. 48 (1) of the Mental Health Act, R.S.O. 1990, c. M.7 and s. 80 (1) of the Health Care Consent Act, 1996, SO 1996, c 2, Sch A, the court does not conduct a new trial or re-hear testimony using different rules of evidence than those used by the board. Rather, the court is sitting on appeal from an existing decision of the board. The court assesses the correctness of the board’s decision in accordance with a limited standard of review. See: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16- 17 and B.L. v. Pytyck, 2021 ONCA 67 at para 22.

[19] I agree with Ms. Fielding that hearing this appeal will not affect the medical diagnoses reached by Dr. LeBlanc or others at CAMH. If the court hears the appeal, the issues will be procedural fairness and whether the board made palpable and overriding errors of fact in finding the existence of the Box “B” criteria for holding and medicating Ms. Grey against her will. The court does not sit in appeal of the professional judgment of the medical specialists.

[20] I understand Ms. Grey is trying to take the proceedings available to her. She wants to be able to tell her family physician and others that the decision that was made based on the diagnosis with which she disagrees was overruled. That does not overrule the diagnosis per se but Ms. Grey believes that it will give power or credibility to her argument that she was wrongly diagnosed so as to lessen the risk of harms that could come from other doctors, pharmacists, employers, and others acting on the diagnosis with which she disagrees.

[21] I sympathize with Ms. Grey’s concerns. She may not have practical alternatives to authoritatively rid herself of the diagnosis with which she disagrees. But hearing the appeal will not do so as well. Whether it will help add credibility to her arguments is wholly speculative and not a basis to clothe the court with jurisdiction to make findings beyond its statutory authority. The validity of prior diagnoses is a medical question best left to Ms. Grey’s current and future doctors. It is not a basis to hear a moot appeal.

[22] I therefore decline to exercise my discretion to hear this moot appeal. Two years have passed since the order under appeal has ceased to apply. None of the factors discussed in Borowski satisfies me that it is in the interest of justice to hear this appeal.

[23] I thank Ms. Grey and all counsel for making helpful and cogent submissions. I am not finding that anything said by Ms. Grey about her diagnosis or the conduct of the respondent or CAMH was wrong. By finding the appeal moot, I am declining to hear the appeal and I make no findings at all on the underlying issues or diagnosis.

[24] The appeal is dismissed without costs.

FL Myers J

Date: November 21, 2022