Court File and Parties
Barrie Court File No.: CV-22-487 Date: 2023-03-03
Ontario Superior Court of Justice
Between: Dr. Craig Hudson, Appellant – and – Barron Jenner, Respondent
Counsel: Julia L. Lefebvre, for the Appellant Nicholas G. Gehl, for the Respondent
Heard: December 15, 2022 (by videoconference)
Reasons for Decision Fraser J.
I. Nature of the Proceeding
[1] This is an appeal from a decision of the Consent and Capacity Board (“the Board”) dated April 9, 2022, brought under s. 80 of the Health Care Consent Act, 1996, S.O. 1996, c.2 Sched. A., as amended (“the HCCA”). The Board overturned a finding made by the Appellant that the Respondent is incapable with respect to treatment, namely antipsychotic medication.
[2] The HCCA permits an appeal on a question of fact or law or both.
[3] The Appellant is a psychiatrist at the Waypoint Centre for Mental Health Care. He is assigned to treat the Respondent who is detained at Waypoint under the jurisdiction of the Ontario Review Board. He is the most responsible psychiatrist to the Respondent.
[4] The Respondent has been in the forensic mental health system for approximately 18 years and has received a number of diagnoses including schizophrenia, obsessive-compulsive disorder, and a personality disorder. He has been a patient at Waypoint since 2016. The Respondent does not wish to take antipsychotic medication and has declined this proposed treatment September 2021.
[5] At Waypoint, he has acted violently, threatening, and has self-harmed. He has been in seclusion for the majority of his time at Waypoint.
[6] The Appellant also seeks leave to introduce new evidence on this appeal under ss. 80(9) of the HCCA.
[7] The Appellant submits that the Board erred it two ways. He asserts: a. that the Board made a legal error by applying the wrong legal test to determine the Respondent was incapable to consent to treatment; and b. that the Board also made palpable and overriding errors of mixed law and fact arguing that the Board misapprehended or failed to consider crucial medical evidence supporting Mr. Jenner’s incapacity.
[8] For the reasons set out below, I dismiss the appeal as I find, on the correctness standard, that the Board made no legal error. I also find that the Board committed no palpable and overriding error.
II. Issues
[9] This appeal raises the following issues: a. Should the fresh/new evidence be received? b. What is the standard of review? c. Did the Board err in law? d. Did the Board make a reviewable error of mixed fact and law?
III. Analysis
A. Should the Fresh Evidence be Received?
[10] Subsection 80(9) of the HCCA allows this Court to receive new evidence on appeal. It provides that “[t]he court shall hear the appeal on the record, including the transcript, but may receive new or additional evidence as it considers just.”
[11] The Appellant proposes to tender an affidavit of the Appellant to which the most recent reasons for disposition of the Ontario Review Board are appended, as well as nursing notes, clinical notes regarding the Respondent’s behaviour, including self-harming behaviour, and clinical notes made about the Respondent’s refusal of medication.
[12] The Appellant describes the proposed evidence as fresh evidence and submits that it is properly admissible on appeal under the criteria set out in R. v. Palmer, [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212.
[13] The Respondent submits that the evidence is properly characterized as new evidence relying on Barendregt v. Grebliunas, 2022 SCC 22, and that the Palmer analysis is engaged when considering new evidence.
[14] In Barendregt, the Supreme Court of Canada considered whether a legal distinction should be drawn between admitting “fresh evidence” (concerning events that occurred before trial) and “new evidence” (concerning events that occurred after trial). At para. 30, the Court held that the Palmer test applies when evidence is tendered on appeal “for the purpose of asking the court to review the proceedings in the court below”. This means that the Palmer analysis is engaged whether the evidence is new or fresh. The Respondent correctly characterized the additional evidence sought as new evidence and acknowledges that whether characterized as fresh or new, the Court must engage in the Palmer analysis.
[15] The Supreme Court of Canada also addressed new or additional evidence in the leading case on capacity to consent to treatment Starson v. Swayze, 2003 SCC 32, [2003] 1 SCR 722. In Starson, the Court was asked to review a decision by the Court of Appeal to reject new evidence. The proposed new evidence was about Professor Starson’s condition at the time of the appeal as well as disposition of the Ontario Review Board made after the hearing under appeal.
[16] The Court held at para. 119 that, as the Board’s task is to determine capacity at the time of the hearing, new evidence about the patient’s deterioration after the hearing is irrelevant to that determination.
[17] The Palmer test requires an examination of four criteria. The overarching consideration is what is in the interests of justice. The proposed evidence succeeds on the due diligence and credibility considerations. However, given the focus of this review of the Board’s decision at the time of the hearing, together with the finding in Starson that evidence about the patient’s condition after the hearing is irrelevant, I do not find a basis to admit it. The proposed evidence is also not likely to affect the result because of my decision on relevance.
B. Standard of Review
[18] It is well-settled that the standard of review on a question of law decided by the Board is correctness. To set aside a question of mixed fact and law, the Court must find that the Board committed a palpable and overriding error (see B.L. v. Pytyck, 2021 ONCA 67, at paras. 20-22 citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37).
[19] In addition, the task of the Court is to review the Board’s findings at the time of the hearing (Starson v. Swayze, supra, at para. 119).
C. Did the Board Err in Law?
[20] The Appellant submits that while the Board accurately set out the test for capacity, it did not use the test in its analysis.
[21] Subsection 4(1) of the HCCA sets out the test for capacity with respect to treatment: 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] The test is considered a two-step test where first there must be an examination of the person’s ability to understand information relevant to the decision which is to be made. The second branch of the test requires the person to be able to appreciate the reasonably foreseeable consequences of their decision either to take or decline treatment (Starson, supra, at paras. 78-79).
[23] The Appellant asserts that the Board did not identify and analyze the reasonably foreseeable consequences of the decision and therefore missed a step of the analysis.
[24] The Board properly set out the test and acknowledged the presumption of capacity set out in ss. 4(2) of the HCCA.
[25] On this branch of the test, the Board clearly focused on understanding what the reasonable consequences were of taking medication and whether the Respondent was able to appreciate them. The proper application of the test by the Board is demonstrated by the Board’s review of these factors and the Respondent’s evidence in connection to them. The Board’s ultimate articulation of this is the Respondent demonstrated capacity to weigh the pros and cons of treatment. I accept that by these words the Board engaged in assessing whether the Respondent was able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
[26] The Board recognized that it required clear and cogent evidence to disrupt the presumption of capacity. It also instructed itself not to be swayed by best interests concerns and put those aside to conclude that the Respondent is capable.
[27] I find no legal error.
D. Did the Board Make a Palpable and Overriding Error?
[28] The Appellant submits that the Board committed a palpable and overriding error by ignoring evidence, by accepting the evidence of the Respondent without resolving contradictions in its evidence, and by failing to address the reasonably foreseeable consequences of a decision advanced in the Appellant’s evidence that taking treatment would likely result in the Respondent coming out and becoming calmer and less impulsive.
(i) The Standard
[29] A palpable and overriding error is one that is plainly seen (Hydro-Québec v. Matta, 2020 SCC 37 at para. 33; Housen v. Nikolaisen, 2002 SCC 33, at para. 6). Deference is owed to the Board and the Court must not re-weigh the evidence.
(ii) Analysis of Decision
[30] I see no error in the Board’s analysis.
[31] The Board is not obliged to recite each piece of evidence that it considered. The reasons reflect that the Board was concerned with the Respondent’s ability to appreciate the consequences of a decision or lack of decision.
[32] Such an error is not plainly seen in a review of the decision. Rather the reasons reflect that the Board considered the Respondent’s understanding of what were said to be the positive aspects of medication including the potential of a transfer to a less secure setting and other improvements in his quality of life.
[33] The Appellant also submits that the Board erred by finding that there was insufficient evidence to connect the Respondent’s behavioural issues to the discontinuance of medication. In my view, this is a conclusion that the Board was entitled to reach on the evidence and it is entitled to deference.
[34] The full passage on this point is set out below: I was also not satisfied that there was clear, cogent and compelling evidence that BJ’s recent behavioural issues were directly associated to him discontinuing antipsychotic medications. It may well have been the case that BJ was incorrigible, or was bitter, or was unable to articulate remorse for his behaviour. The incidents referenced in the materials occurred in the February and March of 2022, and there was no indication that BJ had acted violently at all in April 2022 or for that matter since he discontinued antipsychotic medication in 2021. Even so, I could not conclude that BJ’s behaviour was not attributable to other causes, the principal one being frustration from being incarcerated for such a lengthy period of time. It was noted that BJ had been brought to Waypoint in 2016 purportedly on account of him acting aggressively at the prior institution-but I had no information, even assuming there was an increase in aggressive behaviour, whether that was causally linked to him taking or not taking antipsychotic medication. The word “aggressive” could encompass a variety of types of behaviours that could be open to different subjective interpretations.
[35] The Appellant suggests that there were instances of violence during this period in the clinical record. However, this evidence must be understood in the context of what occurred at the hearing. The Appellant’s counsel was clearly directed by the Board to provide the Respondent with the opportunity to agree or disagree with the clinical note before asking him whether taking medication would stop those things from happening.
[36] The Appellant’s hearing counsel did not follow that direction and did not put the individual incidents to the Respondent in cross-examination. Rather, she globally described these as aggressive incidents. She chose not to put these individual incidents to the Respondent and it was fair for the Board to not address them. In its reasons, the Board found that aggression “encompasses a variety of behaviours that could be open to different subjective interpretations”.
[37] Despite that finding that there had not been an increase in aggression, the Board went to assess the situation assuming that there had been. The Board found that there was no evidence an increase in violence was causally linked to the discontinuation of antipsychotic medication. Read in context, both contemplated that there had been an increase in violence and understood that correlation and causation are not the same.
[38] In my view, the Board’s approach to this issue does not reveal a palpable and overriding error.
IV. Decision
[39] The Appellant has demonstrated neither a legal error nor a palpable and overriding error on the part of the Board. The onus was on the Appellant at the hearing to demonstrate incapacity. The Board’s finding that he did not meet the onus is entitled to deference absent an error of law or a palpable and overriding error.
[40] The appeal is dismissed.
[41] The parties sought no costs, and none are ordered.
[42] I thank both counsel for their cooperation in this matter and their helpful written and oral submissions.
Justice S.E. Fraser Date: March 3, 2023