Court File and Parties

Court File No.: CV-22-00689662-0000 Date: 2023-03-14 Superior Court of Justice - Ontario

Re: STEVEN BRAINI, Appellant – and – DR. MINA HUSEIN, Respondent

Before: Justice E.M. Morgan

Counsel: Ikenna Aniekwe, for the Appellant Nicole Fielding, for the Respondent

Heard: March 13, 2023

APPEAL FROM CONSENT AND CAPACITY BOARD

Endorsement

[1] This is an appeal from a decision of the Consent and Capacity Board (the “Board”) with respect to the Appellant’s status as an involuntary patient at the Centre for Addiction and Mental Health (“CAMH”). The Board confirmed the finding by the Respondent that the Appellant was incapable of consenting to treatment with antipsychotic medications.

[2] Counsel for the Respondent submits that the Board did not make a palpable and overriding error in finding that the “Box B” criteria under s. 20(1.1) of the Mental Health Act were met at the hearing before the Board. The Respondent led cogent evidence that the Appellant was likely to suffer substantial mental deterioration if he were not in a psychiatric facility. The record before the Board contained evidence of the Appellant’s history of recurrent psychiatric admissions and his mental deterioration following non-adherence to treatment since his previous admission.

[3] Perhaps more to the point, the Respondent has submitted an affidavit dated February 16, 2023, containing new evidence with respect to the Appellant’s present status. The evidence provided by the Respondent in her affidavit is highly relevant to the appeal, could not have been adduced at an earlier stage of the matter, and it is credible and can be expected to influence the result of this appeal. It therefore meets all of the criteria for admission set out by the Supreme Court of Canada in Palmer v. The Queen, [1980] 1 SCR 759. I am admitting the Respondent’s affidavit as new evidence.

[4] The Respondent makes the point in her affidavit that she has personal knowledge of the Appellant’s involuntary status certificates at CAMH. She deposes that the Appellant is no longer subject to the certificate at issue in this appeal. He was discharged from CAMH on November 14, 2022, at which time his involuntary status terminated.

[5] The Respondent goes on to depose that to the best of her knowledge, the Appellant has not engaged with CAMH, including as an out-patient, since his discharge. None of this evidence could have been adduced at the October 17, 2022 hearing before the Board or in the appeal materials filed on October 2, 2022.

[6] Counsel for the Respondent submits that the Appellant’s discharge from CAMH renders the appeal moot. There is no longer any special relationship or live controversy between the parties: Borowski v. Canada (Attorney General), [1989] 1 SCR 342. This court has held that “once a patient is discharged from hospital, an appeal of the commitment decision can no longer be entertained as there is no longer a live controversy between the parties”: Elder v. Klukach, 2017 ONSC 2637, at paras 6-7, 9, quoting ES v. Joannou, 2015 ONSC 1316.

[7] In Grey v. LeBlanc, 2022 ONSC 6538, at para 10, the Superior Court indicated that each subsequent decision whether or not to admit a patient is to be made on its own terms and by assessing the patient as of the date of the next admission decision. A past admission does not determine the issue. If the Appellant is found in the future to meet the criteria for involuntary status, a new certificate would be issued on the then-relevant criteria, which could then be challenged accordingly.

[8] In Borowski, at 360-361, the Court identified situations where “special circumstances” may make it worthwhile to hear the case regardless of whether mootness applies. Specifically, the Court mentioned that there are occasions where there is an important question that might independently evade review if the appeal is dismissed other than on the merits. The special circumstances could also include cases where issues of public importance are raised, or cases where the decision not to hear the case has some practical effect on the rights of the parties.

[9] In Beckford v. Brook, 2016 ONSC 1549, at para 19, the Court acknowledged that involuntary admissions have the potential to cause ongoing issues for some individuals. However, it reasoned that this possibility does not rise to the level of “special circumstances”.

[10] Rather, the Court held that the Appellant’s medical history was just one of a number of considerations for assessment and the issuance of a certificate of involuntary detention. In fact, the Court in Beckford noted that the facts that formed the basis of admission this past time may be completely different from the facts that prevail next time. The fact that a future issue may arise with respect to the Appellant cannot be used to keep previous decisions open for review indefinitely. Otherwise, there could be no closure to any challenge to an involuntary admission under the Mental Health Act.

[11] Respondent’s counsel submits that any future move to involuntarily admit the Appellant is speculative at this point. One cannot know today what criteria might be raised in respect of any future involuntary admission of the Appellant. Prior admissions are only one of multiple factors to be considered at that stage. As Respondent’s counsel put it in oral argument, one cannot peer into the future to determine what may or may not transpire down the road.

[12] In my view, there do not exist special circumstances that would prompt me to exercise my discretion not to dismiss the appeal for mootness.

[13] The appeal is dismissed.

Released: March 14, 2023 Morgan J.