Superior Court of Justice - Ontario
COURT FILE NO.: CV-21-660027
DATE: 2022-01-31
RE: ROBERT BOWMAN, Appellant -and- DR. VICTOR UWAIFO, Respondent
BEFORE: FL Myers J
COUNSEL: Ken J. Berger, for the Appellant Robin McKechney, for the Respondent
HEARD: January 28, 2022
ENDORSEMENT
The Appeal
[1] Mr. Bowman appeals from the decision of the Consent and Capacity Board dated February 20, 2021. The board upheld the determination of the respondent, Dr. Uwaifo, that Mr. Bowman lacked capacity to consent to proposed treatment.
[2] For the reasons that follow the appeal is dismissed
The Appeal Hearing and Standard of Review
[3] The right to appeal to the court from the decision of the board is provided by s. 80 of the *Health Care Consent Act, 1996*, SO 1996, c 2, Sch A.
[4] Subsection 80 (8) of the statute provides, that appeals are to be heard as quickly as possible.
(8) The court shall fix for the hearing of the appeal the earliest date that is compatible with its just disposition.
[5] As the file history is not uploaded to Caselines by court administration and judges do not have ready access to the court’s computer system, I do not know why it took a year to have this appeal heard. With treatment decisions in issue for a patient whom the board has found to be in ill and in need of medication, delays like this are to be avoided if at all possible.
[6] Subsection 80 (9) of the statute directs:
(9) The court shall hear the appeal on the record, including the transcript, but may receive new or additional evidence as it considers just.
[7] This means that on an appeal, the court looks at the board’s decision in light of the record before it to determine if the board made any reviewable errors. The appeal is not a re-hearing or a hearing de novo. The court is not called upon to make the decision afresh as if it were the board.
[8] What kind of errors allow the court to intervene? The parties agree that the standard of review is set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 56. In that case, the Supreme Court directed that on statutory appeals from an administrative tribunal, like this one, the appellate court may intervene to correct any errors of law made by the board or any palpable and overriding errors of fact or mixed fact and law.
[9] The standard of review means that the board must be correct when it determines the applicable legal tests. However, the court is deferential to the tribunal on its assessment of facts or how the law applies to the facts in the particular circumstances of the case before the tribunal. The court only intervenes on questions of fact or mixed fact and law when the tribunal makes an error that is both clear on the record and very important to the outcome.[^1]
[10] In approaching an appeal, it is important for the appellant to identify with clarity the errors that he or she submits entitle the court to intervene. Although the court is given broad remedial authority in s 80 (10) of the statute, those powers are only available if the court first finds that the board made an error of sufficient import and impact to meet the standard of review.
[11] It follows that an approach of simply taking the court through the evidence that was heard by the board to re-argue the outcome is neither helpful nor appropriate on an appeal under this statute.
The Errors Alleged by Mr. Bowman
[12] The appellant submits that the board made four reversible errors:
a. It made an error of law by finding that Mr. Bowman lacked capacity to consent to treatment because he refused to take the treatment offered;
b. It made an error of law by finding that Mr. Bowman lacked capacity because he disagreed with the diagnosis made by Dr. Uwaifo;
c. It made an error of law or an error of fact in fixating on the diagnosis that Mr. Bowman suffered from delusions rather than from multiple chemical sensitivity (also called idiopathic environmental intolerance); and
d. It made an error of law concluding that Mr. Bowman lacked capacity without corroborating evidence required by s. 14 (1) of the *Evidence Act*, RSO 1990, c E.23.
The Key Background Facts
[13] Mr. Bowman is a 70-year old man. He lives alone. He was admitted to hospital in St. Catherines in January, 2021. Dr. Uwaifo diagnosed Mr. Bowman as suffering from a delusional disorder. The doctor also found that Mr. Bowman was incapable of making the decision of whether to treat his disorder with antipsychotic medications prescribed by Dr. Uwaifo.
[14] Mr. Bowman’s admission to the hospital came on his third visit within a few days because he was bleeding from a varicose vein in his left leg. He was found by paramedics in his apartment. He had a plastic bag around his left foot that was filled with blood. The first responders reported that there were odd things hanging from the ceiling of the apartment and black garbage bags on the windows.
[15] Mr. Bowman told the paramedics that there were fumes in his apartment that were causing him to blackout and that he believed he was being poisoned by his neighbours. He told the emergency room doctor that fumes were constantly seeping into his apartment and people were doing it purposefully. He believes unnamed neighbours are poisoning him. He has covered his walls with vinyl plastic to avoid contamination.
[16] The board recited the report of the attending physician who initially admitted Mr. Bowman:
Dr. Somal stated "RB became irritable when I asked him about other aspects of his health and well-being. He stated the most important issue is the fumes and that I did not let him complete his description of his concerns about the fumes This is despite spending a lot of time trying to understand them. He noted I was not getting ‘all the information that is important.’ This is when I asked about his low blood pressure. According to RB his [BP] is not a [sic] important issue to discuss. Only the fumes are. He took off his mask to show me the tissues in his nose, He put them there to stop the fumes getting into his nose. RB was overly fixated on his delusional beliefs, Difficult to interrupt his train of thought, He states he is 'chemically sensitive and cannot stay anywhere else' He does not belief [sic] he is safe in his apartment. I asked RB about suicide ideation. His response was 'there is a third chemical that is causing depression.’ He clarified he does not want to die. But he will hang himself if he has to return to his apartment ‘and the chemicals are there, I will definitely do it.’" (Exhibit 2) Dr. Somal noted that RB's thought process was disorganized; he was focused on delusional beliefs, he described both visual and auditory hallucinations connected to delusional beliefs; and he was suicidal. As a result, he was admitted to the psychiatric unit. (Exhibit 2)
[17] The board continued:
In the CCB summary dated January 26, 2021, Dr. Uwaifo stated that RB "still intermittently pushes tissue paper in nose, wears gloves and puts on socks on legs to reduce contact with the chemical. He is reluctant to drink hospital water because of his suspicion that it is contaminated. He accuses unspecified street gangs of pumping these noxious chemicals into his apartment. He said the chemicals come in various smells such as garlic, battery acid, perfume. He self-diagnosed as ‘multiple chemical sensitivity." He refuses antipsychotics. He has been followed up closely by the hospitalist with respect to general medical concerns. " (Exhibit 3) In oral evidence, Dr. Uwaifo confirmed that during this admission, RB's delusional beliefs continued and had not subsided as at the date of the hearing. As an example, Dr. Uwaifo described that RB accused him with tampering with the hot water in his room and that Dr. Uwaifo had colluded with management to somehow interfere with the hot water in his room. When questioned, RB was very guarded and told Dr. Uwaifo that he knew what he had done. On January 19, 2021, RB told a nursing staff that gangs were responsible for poisoning him with garlic scented air
[18] Mr. Bowman believes he suffers from multiple chemical sensitivity. His daughter agrees that he is sensitive to substances. She also reports that she was concerned because he had become increasingly obsessed and agitated by his sensitivities to the point where it had become all consuming.
[19] Mr. Bowman’s family doctor believes that the hospitalization of Mr. Bowman is a “significant violation of his human rights.” The doctor says that Mr. Bowman believes that he is suffering from multiple chemical sensitivity syndrome. The doctor referred Mr. Bowman to Women’s College Hospital for further assessment.
[20] Mr Bowman’s family doctor wrote about conflicts Mr. Bowman has had with his landlord and neighbours and said,
When Robert is paranoid, his belief in multiple somatic symptoms caused by chemical sensitivity may become a belief that fumes are poisoning him, and his conflict with his neighbours and landlord may become a belief that people are monitoring him or deliberately exposing him to fumes. I suspect this paranoid ideation waxes and wanes over time and is exacerbated by stress. He has told me he knows he sounds crazy when he says certain things, and agreed with me today on the phone that he can understand why some people think he is delusional, though he disagrees…
He doesn't believe he has delusional disorder, but understands that an antipsychotic might help him fixate less on his chemical exposures and improve his quality of life.
[21] Mr. Bowman’s evidence was much along this lines. He does not believe that he suffers delusions. He wants to be diagnosed for multiple chemical sensitivity. But he ostensibly allowed for the possibility that if he did not have that syndrome, then he may be delusional and may benefit from anti-psychotic medications.
The Board’s Decision
[22] The board recited the correct legal test and burden from the Supreme Court of Canada’s decision in Starson v. Swayze, 2003 SCC 32. As in most appeals from this board, the issue before it was narrow. Like most patients in contested cases, Mr. Bowman is capable of understanding the medical information presented to him. The question to be decided by the board was whether Mr. Bowman can recognise that he is affected by a mental condition so that he can then appreciate the information being provided by the doctors and the consequences of the treatment decision he has to make.
[23] This is not a simple assessment to make. Patients are allowed to disagree with their doctors’ diagnoses of course. The art or judgment call is to determine if the patient’s disagreement is knowing or whether it is itself a function of the mental illness from which he or she suffers. The board quoted the key passage from Starson, in which the Supreme Court of Canada expressed the issue in this way:
While a patient need not agree with a particular diagnosis, if it is demonstrated that he has a mental "condition", the patient must be able to recognize the possibility that he is affected by that condition .... As a result, a patient is not required to describe his 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 opinion regarding the cause of that condition. Nonetheless, if a patient's condition results in him being unable to recognize that he is affected by its manifestations, he will be unable to apply the relevant. information to his circumstances, and unable to appreciate the consequences of his decision. [Emphasis in the board’s decision.]
[24] The board made no error of law in setting out the task before it. Is Mr. Bowman capable of recognizing that he is affected by symptoms of mental illness so he can apply the medical information provided by Dr. Uwaifo to his circumstances and appreciate the consequence of the decision that he faces?
[25] The board’s decision is expressed in three paragraphs:
In a letter dated February 17th, 2021, [Mr. Bowman’s family doctor] stated that RB "doesn't believe he has delusional disorder, but understands that an antipsychotic might help him fixate less on his chemical exposures and improve his quality of life." (Exhibit 11) This was not clear nor compelling in RB's oral evidence at the hearing. RB was inconsistent and difficult to follow regarding the possibility he had mental disorder and the proposed treatment with antipsychotic medication. RB ultimately stated that he had not been taking antipsychotic medication because he did not need it. The evidence of Dr. Uwaifo was more credible consistent, and cogent. While there might have been some partial insight into the possibility that he had mental disorder, the panel found that he did not have the full appreciation necessary lo properly weigh the risks and benefits of antipsychotic medications. The panel did not accept that RB understood that antipsychotic medication might help him fixate less. He had consistently refused antipsychotic medication and indicated in the hearing that he had not taken any because he did not need it. RB had been in hospital since January 14th, 2021; he was offered antipsychotic medication on multiple occasions and he consistently refused antipsychotic medication.
At the hearing, RB was difficult to follow. At one point, RB stated that he would stay in hospital to get the correct diagnosis provided proper testing was done. He did not believe he had been correctly diagnosed and spoke about getting an independent diagnosis. At one point, RB said he would take antipsychotic medication in oral format if he believed the diagnosis was credible. It was clear RB did not believe he had been correctly diagnosed during this admission or in 2017 and as such was not prepared to take antipsychotic medication.
It was clear from the evidence at the hearing that RB lacked sufficient insight into his mental disorder and the need for antipsychotic medication. The Board found that there was clear and cogent evidence on balance of probability that at the time of the hearing that RB was unable to understand the reasonably foreseeable consequences of making a decision or not making a decision about the treatment proposed for him. [Emphasis added.]
[26] The board did not believe Mr. Bowman’s evidence on the key point. It found Dr. Uwaifo’s evidence more credible, consistent, and cogent. It found that Mr. Bowman’s testimony was difficult to follow and it was inconsistent with his prior statements and behaviour that pointed toward him being unable to understand that he may be affected by mental illness and therefore unable to “recognize that he is affected by its manifestations”.
[27] The board applied Starson based principally on the rejection of the credibility of the testimony of Mr. Bowman and the inconsistency of the evidence before the board with the family doctor’s view.
Assessment of the Grounds of Appeal
(i) Error of Law – Finding that Mr. Bowman lacked capacity because he refused to take the antipsychotic mediation
[28] The board did not find that Mr. Bowman lacked capacity because he had not taken the prescribed antipsychotics. In the third of the three key paragraphs above, it stated its finding on the correct legal test.
[29] In rejecting the credibility of Mr. Bowman’s professed understanding of the nature and impact of the symptoms from which he was suffering, the board said that Mr. Bowman’s refusal to take the medications was inconsistent with him saying that he understood that the medications could help reduces his fixation on his chemical sensitivity including what the family doctor referred to as his “paranoid ideation”. That is, it went to credibility.
[30] In the highlighted words emphasized above, the board found:
The panel did not accept that RB understood that antipsychotic medication might help him fixate less.
[31] That is a finding of fact.
[32] The board ultimately found more force in Mr. Bowman’s clear rejection of his need for medications for delusions than in his oral evidence purporting to show greater openness and understanding of his situation. The board found that Mr. Bowman does not believe or accept that he suffers from delusions. Whether he is suffering from multiple chemical sensitivities or not, he believes people are trying to poison him with fumes and this has become the central preoccupation of his life.
[33] The board was entitled to reject Mr. Bowman’s testimony where it was inconsistent with his behaviour, his statements to doctors for weeks while hospitalized, and the evidence of his daughter and his family doctor concerning the manifestations of illness from which Mr. Bowman suffers. To hold otherwise would mean that a patient could just be coached to say the magic words and the outcome would be determined.[^2]
[34] The board recognized that the burden lay on Dr. Uwaifo to prove the case for incapacity within the test set out in the statute as interpreted in Starson. It made no error of law in rejecting Mr. Bowman’s testimony and finding the evidence of Dr. Uwaifo more credible.
(ii) Error of Law – Finding that Mr. Bowman lacked capacity because he disagreed with the diagnosis made by Dr. Uwaifo
[35] Like the first ground of appeal, this too is not what the board did. The board did not find that Mr. Bowman lacks capacity because he thinks he has multiple chemical sensitivity rather than delusions. Rather, it recognized that he disagreed with the diagnosis, but found that he was incapable of appreciating that medication may assist in reducing his fixation on delusions. Despite what he said at the hearing, he cannot accept the possibility that he may be suffering from delusions at all.
[36] Like the first ground of appeal, this ground resolves to a credibility assessment that was anchored in the evidence before the board and is entitled to deference on appeal.
(iii) Error of Law or Fact - Fixating on the diagnosis that Mr. Bowman suffered from delusions rather than from multiple chemical sensitivity
[37] In the period between the board’s decision and the appeal, Mr. Bowman has been assessed at Women’s College. The doctor there found that Mr. Bowman’s self-reported symptoms, “meet criteria for the clinical diagnosis of multiple chemical sensitivity syndrome”.
[38] Counsel for the respondent did not object to the admission of this report under s. 80 (9) of the statute set out above.
[39] Mr. Berger included in the appellant’s filed materials articles from medical literature about multiple chemical sensitivity and he made some submissions with his own views of the state of medical knowledge and how the syndrome may affect Mr. Bowman. Although Mr. Berger is also a doctor, he was not a qualified expert witness here or below. None of this is admissible on appeal and without supporting evidence.
[40] Mr. Berger argues that the board should have accepted that Mr. Bowman could suffer from multiple chemical sensitivity so that his request for a proper diagnosis before deciding on a course of treatment was credible and sensible.
[41] I agree with Mr. McKechney that the issue before the board did not turn on whether Mr. Bowman suffered from multiple chemical sensitivity or whether such a syndrome exists. The issue before the board was not whether Mr. Bowman was susceptible to smells and injury from exposure to chemicals. Rather, the issue before the board concerned Mr. Bowman’s beliefs and behaviour arising from his sensitivities whether they are real, imagined, caused by a recognized syndrome, or otherwise. As noted above, Mr. Bowman’s daughter accepted that he has sensitivities. Her concern was expressed as alarm as to how it dominates and impairs his quality of life.
[42] It is Mr. Bowman’s fixed belief in things like, that he is being poisoned by neighbours, gangs, his doctors, nurses, and hospital management that drove the diagnosis of delusions (rather than the lesser paranoid ideation). His beliefs lead him to regularly plug his nose with paper and live in a frigidly cold apartment during the Ontario winter.
[43] The finding that Mr. Bowman is not able to fully appreciate the possibility that his beliefs are the product of delusion that may be assisted with medication is what drove the finding of incapacity. Whether Mr Bowman’s sensitivities amount to a diagnosis of multiple chemical sensitivity syndrome is quite beside the point.
[44] The board made no error of law or fact in fixating on the diagnosis of delusions. The issue before the board was whether Mr. Bowman suffers from a delusion disorder and lacks capacity in relation to it. The board made no error of law by declining to focus on whether Mr. Bowman may also suffer from multiple chemical sensitivity syndrome.
(iv) Error of Law - Concluded that Mr. Bowman lacked capacity without corroborating evidence
[45] This ground can be disposed of readily. The clinical file, the facts surrounding Mr. Bowman’s prior admissions in the hospital in 2017 and earlier, the reports by the paramedics, Dr. Somal’s report, and the references in the letters submitted by Mr. Bowman’s daughter and family doctor to his paranoid behaviour all readily corroborate Dr. Uwaifo’s evidence.
Outcome
[46] The appeal is dismissed. No costs are sought.
A Word about Caselines – “Presentation” Mode
[47] This was the first time counsel utilized the Presentation features of Caselines in a hearing before me. Mr. McKechney took over all of our computers and took us to pages on Caselines as he was making his submissions. It was as if I was watching a PowerPoint presentation on my computer being controlled by Mr. McKechney.
[48] The use of Presentation mode freed me from having to manage Caselines to find documents referred to by counsel. It allowed me to concentrate solely on the merits of counsel’s arguments and to see the documents quickly and with no effort or distractions.
[49] Mr. Berger chooses not to utilize the functionality of Caselines in his submissions to the court. He referred me to documents by page numbers in a motion record and sometimes by PDF pages in a large PDF document. When Mr. Berger mentioned a document, I had to find the sub-folder in which it was located on Caselines, and then scroll through documents in that sub-folder manually to find the pages of transcripts, pages of the board’s record of proceedings, pages of the parties’ factums or books of authorities, to which he was referring.
[50] Often I was still scrolling to find a page well after Mr. Berger had finished his submissions on that document and had moved on to another.
[51] Imagine a lawyer going into court before the pandemic and not numbering the pages of the motion record. That is the equivalent of not using Caselines today.
[52] Caselines allows users to navigate directly to a precise page. All you have to do is tell the judge, “please go to page A100” or “B-1-189” and the judge can open the correct page in seconds with no scrolling through long PDFs.
[53] Section C.4.3 of the Notice to Profession – Toronto; Toronto Expansion Protocol for Court Hearings During COVID-19 Pandemic specifically requires:
Counsel and self-represented parties are expected to refer the court to documents using the page numbering on CaseLines.
[54] Preparation for a hearing in this division of the court in this region necessarily now includes ensuring that counsel has Caselines page numbers available for all references to documents.
[55] If counsel choose to be a bit more helpful, they can use the “Direct to Page” facility in Caselines and actually send everyone else a pop-up window that lets them just click “yes” to be taken to the right page.
[56] Or, if you want to manage your presentation and control the technical issues so that the judge can focus solely on the contents and merits of your arguments, counsel can use the “Presentation” facility as was done by Mr. McKechney in this case.
[57] As advocacy is the art of persuasion, is it not obvious that efforts by an advocate to assist the judge to focus on the argument and see the evidence will increase the chances of comprehension by the judge and therefore the persuasiveness of the presentation? In addition, it is also likely to garner some appreciation for the effort to simplify cumbersome and distracting technical tasks.
[58] In my view, and subject always to judges’ discretion in their own courts, this branch of the court in this region should no longer accept oral submissions from counsel who do not use Caselines any more than we would have accepted an unnumbered motion record or an untabbed book of authorities before the pandemic. There are ample resources available to teach counsel how to use Caselines if anyone needs assistance. Clients and the court are entitled to expect and require counsel to be technologically competent to attend court remotely.
FL Myers J.
Date: January 31, 2022
[^1]: See: Waxman v. Waxman, 2004 CanLII 39040 (ON CA),:
> [296] The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. 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.
>
> [297] An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does not automatically mean that the error is also “overriding”. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, [1996 CanLII 217 (SCC)](https://www.canlii.org/en/ca/scc/doc/1996/1996canlii217/1996canlii217.html), [1996] 1 S.C.R. 254 at 281.
[^2]: I hasten to add that there is no suggestion that anything like that occurred in this case. Counsel before the board was not Mr. Berger.