Court File and Parties

COURT FILE NO.: CV-22-00689169-0000 DATE: 2023-06-08 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF AN APPEAL FROM A DECISION OF THE CONSENT AND CAPACITY BOARD, PURSUANT TO SECTION 80 OF THE HEALTH CARE CONSENT ACT, 1996, S.O. 1996, C. 2, SCH.A, AND PURSUANT TO SECTION 48 OF THE MENTAL HEALTH ACT, R.S.O. 1990, C. M.7

AND IN THE MATTER OF JJ, A PATIENT AT GRAND RIVER HOSPITAL CORPORATION – KITCHENER-WATERLOO SITE

RE: JJ, Appellant AND: Dr. Cletus Okonkwo, Respondent

BEFORE: Justice A.P. Ramsay

COUNSEL: Matthew M.A. Stroh, for the Appellant Trevor S. Fisher, for the Respondent

HEARD: January 6, 2023

Endorsement

A. Overview

[1] The appellant was a patient at the Grand River Hospital in Kitchener (“the hospital”). He had initially been involuntarily admitted to the hospital based on a Form 2 (Order for Examination under s. 16 of the Mental Health Act), obtained by his mother. On four separate occasions, the appellant sought a review before the Consent and Capacity Board (the “Board”) of his involuntary admission and the finding that he was not capable of consenting to treatment with antipsychotic medication.

[2] At the first three hearings, the panel, differently constituted, found the appellant capable of consenting to treatment with antipsychotic medication and rescinded his involuntary status. Following each of those decisions, the appellant’s responsible physician recommenced the certification process. The first two applications were heard on their merits. The Board determined the preliminary question raised by the appellant, at the third hearing, without considering the matter on the merits, in favour of the appellant concluding that there had been an abuse of process.

[3] In turn, a new certification form was issued leading to the fourth review application and ensuing decisions which form the basis for this appeal. The appellant raised, as a preliminary issue, the argument that the recommencement of the certification process was an abuse of process and res judicata. The Board first determined whether the appellant met the prerequisites for admission as an involuntary patient at the time of the hearing before considering if it would exercise its discretion to rescind the appellant’s involuntary status and restore the presumption of capacity. The respondent, Dr. Cletus Okonkwo, advised the Board that the finding of incapacity related to treatment with antipsychotic mediation. The respondent relied primarily on the commonly referred to “Box B criteria” pursuant to s. 20(1.1) of the Mental Health Act, R.S.O. 1990, c. M.7, in support of the finding of the appellant’s incapacity as related to treatment with antipsychotic medication and that the appellant was unsuitable for voluntary status.

[4] After reviewing the procedural history and the evidence on the substantive criteria, as well as the preliminary issues raised by the appellant, the Board released its decision on October 5, 2022. A unanimous panel confirmed the appellant’s involuntary status and the finding that he was incapable of consenting to treatment with antipsychotic medication. The Board declined to exercise its discretion to find the recommencement of the certification process an abuse of process and res judicata.

B. Nature of the Appeal

[5] The appellant, JJ, whose name I have anonymized, appeals from the two decisions of the Board, dated October 5, 2022, pursuant to s. 80 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, and s. 48 of the Mental Health Act. The Board determined that the prerequisites contained in s. 20(1.1) of the Mental Health Act, the “Box B” criteria for involuntary admission of an individual as a patient, were met at the time of the hearing, and found that the appellant was incapable of consenting to treatment with antipsychotic medication. The Board exercised its discretion pursuant s. 41(2) of the Mental Health Act to confirm the appellant’s status as an involuntary patient and declined to exercise its discretion to find that the application was an abuse of process or res judicata. The respondent, Dr. Okonkwo, who was the appellant’s responsible treating physician for a period, requests that the appeal be dismissed.

C. Facts

[6] The following facts are not in dispute.

[7] The appellant, JJ has a prior history of mental illness. The appellant is 40 years old and lives with his mother. Since 2019, he has been on the Ontario Disability Support Program. The appellant had been admitted to the hospital on three prior occasions between December 2020 and June 2021 and had also been subject to a community treatment order (“CTO”). The first admission was due to psychosis, cannabis use, and reported violence to police officers and uttering threats to his uncle. He was treated with antipsychotic medication and discharged. The second admission was reportedly because of psychosis, not eating or taking care of himself, paranoid delusions with spiritual elements, and bizarre behavior and excessive cleaning. He was discharged after four days without the use of medication, which he had declined. The appellant had reportedly started eating while in hospital. The third admission resulted in a six week stay in the hospital. He was treated with antipsychotic medication, improved, and was discharged to community care on a CTO with case management. The appellant was under the care of Dr. Okonkwo in the community while he was on the CTO. The appellant was stable on the antipsychotic medication, but experienced certain side effects including weight gain, tiredness, and pain at the injection sight. As such, the dosage of his antipsychotic medication was reduced. He remained stable. He was reportedly active and engaged in the community. In December 2021, the appellant challenged the CTO, which was rescinded by Board. Thereafter, the appellant stopped taking his medication and discharged himself from psychiatric care.

[8] On August 10, 2022, a Form 2 was obtained on information from the appellant’s mother. The appellant had broken a window, injuring his right hand and elbow, and was found covered in blood. He insisted that his injuries were the result of a spiritual attack.

[9] On August 16, 2022, the appellant was apprehended and brought to the hospital. The appellant is not clear on whether he was placed on a Form 1.

[10] On August 19, 2022, the appellant was admitted involuntarily to the hospital under a Form 3 (Certificate of Involuntary Admission), completed by Dr. Vinodkumar Gangolli. Dr. Gangolli relied on Box A criteria, specifically risk of “serious bodily harm to another person". Dr. Gangolli subsequently determined that the appellant was incapable of consenting to treatment on August 24, 2022, under the Health Care Consent Act and issued a Form 33 (Notice to Patient – Incapacity).

[11] On September 1, 2022, a Form 16 (review of involuntary status) and Form A (review of finding of incapacity) application proceeded (“the first hearing”). Dr. Gangolli provided evidence on the substantive criteria. The Board found that the appellant was capable of consenting to treatment with antipsychotic medication and it rescinded the appellant’s involuntary status.

[12] On September 2, 2022, Dr. Gangolli issued a new Form 1 (Application by Physician for Psychiatric Assessment).

[13] On September 5, 2022, Dr. Okonkwo issued a Form 3 (Certificate of Involuntary Admission) under s. 20(1.1) and (5) of the Mental Health Act, as well as a Form 33 under the regulation made under the Mental Health Act. Dr. Okonkwo relied on both Box A and B criteria in the Form 3, specifically a risk of serious bodily harm to another; serious physical impairment of the patient; and substantial mental or physical deterioration of the patient.

[14] On September 12, 2022, a Form 16 application to review the appellant’s involuntary status under the Mental Health Act and a Form A, review of finding of incapacity under the Health Care Consent Act, application was heard by a different panel of the Board (“the second hearing”). Dr. Gangolli again presented evidence on the substantive criteria. The second hearing was heard on the merits. Once again, the Board found that the appellant was capable of consenting to treatment with antipsychotic medication and rescinded the appellant’s involuntary status.

[15] On September 13, 2022, Dr. Gangolli issued another Form 1.

[16] On September 14, 2022, Dr. Okonkwo became the appellant’s most responsible physician. On September 16, 2022, Dr. Okonkwo issued a new Form 3 Box B criteria, relying on "substantial mental or physical deterioration of the patient", he also issued a Form 33.

[17] On September 23, 2022, a differently constituted Board presided on the application to review the appellant’s involuntary status and finding of incapacity (“the third hearing”). The appellant raised preliminary issues of abuse of process and res judicata. The Board dealt with the preliminary issue only and determined that there had been an abuse of process. The matter was not heard on its merits. The Board issued Decisions finding the appellant capable of consenting to treatment with antipsychotic medication and rescinded the appellant’s involuntary status. The Board suggested that Dr. Okonkwo should seek legal advice.

[18] Dr. Okonkwo tried but was ultimately not able to obtain legal advice in a timely manner. He arranged for colleagues to provide a second opinion. On September 23, 2022, Dr. Olufemi Banjo assessed the appellant and issued a new Form 1.

[19] On September 25, 2022, the Board released reasons for decision on the issue of abuse of process with respect to the second hearing, finding that there had been an abuse of process based on the certification process being recommenced immediately after both the release of the September 1 Decisions and the September 12 Decisions.

[20] The Board released its decision with respect to the second hearing on September 26, 2022. The Board concluded that there had been an incomplete capacity assessment and therefore no means to determine whether the appellant failed either branch of the test for capacity. The Board also determined that Dr. Gangolli had not met the onus of establishing that the criteria for involuntary status under Box A were present at the time of the hearing, and the appellant’s presumption of capacity was restored.

[21] On September 26, 2022, Dr. Williams issued a Form 3 relying on Box B criteria as well as a Form 33.

[22] On October 4, 2022, the Board reviewed, on its merits, the appellant’s involuntary status and finding of capacity. The Board released its Reasons for Decisions on October 5, 2022, and a unanimous panel confirmed the appellant’s involuntary status and finding of incapacity to consent to treatment with antipsychotic medication.

[23] On October 8, 2022, Dr. Okonkwo issued a Form 4 (Certificate of Renewal) under s. 20(4)(b)(i) of the Mental Health Act and later issued a Form 7 under s. 48(12) of the Mental Health Act.

[24] On October 25, 2022, the Board determined that it had no further jurisdiction over the appellant’s detention at the hospital.

D. Issues raised on appeal

[25] The following issues are raised on this appeal:

i. What is the applicable standard of review? ii. Did the Board err in finding that the appellant was incapable of consenting to treatment with antipsychotic medication? iii. Did the Board err in confirming the appellant’s involuntary status? iv. Did the Board err in not exercising its discretion in connection with the preliminary issues raised of abuse of process and res judicata?

E. Disposition

[26] The appeal is dismissed for the reasons which follow:

i. The appellate standard of review applies. ii. The Board made no palpable and overriding error in finding that the appellant was incapable of consenting to treatment with antipsychotic medication. iii. The Board made no palpable and overriding error in confirming the appellant’s involuntary status. iv. The Board made no error in deciding not to exercise its discretion regarding the preliminary issues of abuse of process and the issue of res judicata.

F. Analysis

i. Standard of Review

[27] The appellant has a statutory right of appeal from a decision of the Board to the Superior Court of Justice on questions of law, fact, or both. Section 48(1) of the Mental Health Act provides that a party to a proceeding under the Act before the Board may appeal the Board’s decision or order to the Superior Court of Justice on a question of law or fact or both. Subsection (48)(3) of the Mental Health Act indicates that s. 80 of the Health Care Consent Act applies to the appeal as well.

[28] Pursuant to section 80(1) of the Health Care Consent Act, any party to a proceeding before the Board may appeal a decision of the Board to the Superior Court of Justice on a question of law or fact or both.

[29] Where the legislature provides for a statutory appeal mechanism from an administrative decision maker to a court, the appellate standard of review applies: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 33 and 36-52; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at para 27. The standard of review is correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, 463 D.L.R. (4th) 567, at paras. 24-25.

ii. Did the Board err in finding that the appellant was incapable of consenting to treatment with antipsychotic medication?

[30] The appellant submits that the Board erred by concluding that Dr. Okonkwo met the onus under s. 4(1) of the Health Care Consent Act in establishing that the appellant was incapable of making decisions with respect to treatment with antipsychotic medication.

[31] The appellant argues there were no intervening events from the time of the Board’s decisions to the time the Forms 1 and 3 were issued respectively. The appellant submits that the Board made palpable and overriding errors of fact in determining that, at the time of the hearing, Dr. Okonkwo had met his onus to rebut the presumption that the appellant was capable with respect to treatment and admission as a patient at a psychiatric care facility.

[32] When Dr. Okonkwo issued the new Form 3 and Form 33, the criteria relied upon were those provided for in Box B, specifically, "substantial mental or physical deterioration of the patient". This was the primary ground relied upon by the physician at the fourth hearing.

[33] The appellant submits that in arriving at its decision that the appellant met the statutory criteria for involuntary admission at the time of the hearing, specifically under the “substantial mental deterioration” criterion of the Box B criteria, and in finding that the appellant was incapable of making decisions about the proposed psychiatric treatment under s. 4(1) of the Health Care Consent Act, it does not appear that the Board fully considered the prior decisions in making that determination. In my view, this position is not supported by the Board’s very thorough review and chronology of the proceedings and its repeated references to the earlier decisions.

[34] The appellant submits that none of the intervening incidents had any bearing on the appellant’s capacity to consent to treatment, and to the extent that the Board found otherwise, the findings are inconsistent with previously accepted evidence and findings drawn from previously rejected evidence, and therefore constitute palpable and overriding error.

[35] The test for capacity to consent to treatment is set forth in subsection 4(1) of the Health Care Consent Act. The Board correctly identified that under the Health Care Consent Act, the onus was on the attending physician to satisfy the Board that the condition for involuntary status continued to be met at the time of the review of admission or renewal application hearing. The Board noted that a person is presumed to be capable to consent to treatment (see s. 4(2) of Health Care Consent Act), and the onus to establish otherwise lies with the health practitioner. The Board also correctly articulated that if the onus was not discharged, the Board is required by law to rescind the Certificate.

[36] As noted above, the test for capacity to consent to treatment is set forth in subsection 4(2) of the Health Care Consent Act. This section provides that a person is presumed to be capable to consent to treatment or care facility. Pursuant to subsection 4(3) of the Health Care Consent Act, a person is entitled to rely on the presumption of capacity. The relevant provisions read as follows:

Capacity

4 (1) 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.

Presumption of capacity

(2) A person is presumed to be capable with respect to treatment, admission to a care facility and personal assistance services.

Exception

(3)A person is entitled to rely on the presumption of capacity with respect to another person unless he or she has reasonable grounds to believe that the other person is incapable with respect to the treatment, the admission or the personal assistance service, as the case may be.

[37] Whether the appellant possessed the requisite capacity to consent to treatment with antipsychotic medication is a question of mixed fact and law, and as such is reviewed on a standard of palpable and overriding error, absent an extricable question of law in the Board’s analysis: B.L. v. Pytyck, 2020 ONSC 3766, aff’d 2021 ONCA 67; Christoforou v. Toews, 2021 ONSC 722; K.M. v. Banik, 2020 ONSC 4829, aff’d 2021 ONCA 481; Gajewski v. Wilkie, 2014 ONCA 897, 123 O.R. (3d) 481; Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722; K.M. v. Agrawal, 2021 ONSC 5748 at para. 83.

[38] Capacity relates to specific types of proposed treatment: Agrawal, at para. 63; Almeida v. Morgan, 2020 ONSC 5066, at para. 31; Z. (Z.) v. Shafro, 2016 ONSC 6412, at para. 60. Capacity is temporal in that an individual can be capable with respect to a specific treatment at one time and not another: Agrawal, at para. 63; Almeida, at para. 30. Section 15 of the Health Care Consent Act also provides that capacity depends on the treatment and time. The relevant section reads as follows:

15 (1) A person may be incapable with respect to some treatments and capable with respect to others. (2) A person may be incapable with respect to a treatment at one time and capable at another.

[39] An individual’s consent must relate to the treatment, be informed, be given voluntarily, and must not be obtained through misrepresentation or fraud: Health Care Consent Act, s. 11(1). Subsection 11(2) of the Health Care Consent Act, sets out the elements of informed consent, as follows:

(2) A consent to treatment is informed if, before giving it, a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and b) the person received responses to his or her requests for additional information about those matters.

Same

(3) The matters referred to in subsection (2) are:

1. The nature of the treatment.
2. The expected benefits of the treatment.
3. The material risks of the treatment.
4. The material side effects of the treatment.
5. Alternative courses of action.
6. The likely consequences of not having the treatment.

[40] Dr. Okonkwo’s evidence was that the appellant could understand the information provided to him about antipsychotic medication. Dr. Okonkwo’s evidence was that the reasonably foreseeable consequences of a decision or lack of decision about the proposed treatment included: harm to himself (he had broken his arm and wounded the palm of his hand); potential for retaliation due to intrusiveness; property violence (he had broken a window and punched a wall); harm to others (he had threatened police and his uncle); and self-neglect (he had not been eating due to barcodes or excessive cleaning; functional impairment). The Board referred to Dr. Okonkwo’s “Incapacity Summary” regarding the appellant’s inability to appreciate the consequences, as follows:

Patient does not believe that he has any mental illness, not psychotic, has spiritual attacks, medication is hindering his spirit, will not take medication whether oral or injection…He refuses to accept that he may be ill. He does not believe he benefitted from medication in the past. He therefore fails the ‘appreciation’ portion of the legal test for treatment The panel was satisfied that these statutory criteria had been established. Incapacity.

[41] The Board referred to Dr. Williams Progress Note dated September 26, 2022, whereby Dr. Williams found that the appellant did not pass the second branch of the capacity test related to appreciation. Dr. Williams indicated that she believed the appellant’s illness had affected his ability to see that he was affected by its manifestations. The Board reviewed the evidence from both Dr. Okonkwo and Dr. Williams regarding the appellant’s belief that he did not have a mental illness, there was no need for medication, and there would be no consequences if he did not take the medication.

[42] The Board referred to the controlling Supreme Court of Canada decision of Starson v. Swayze, which is the leading case setting out the test with respect to a patient’s capacity to consent to treatment in relation to s. 4 of the Health Care Consent Act. Starson laid down a two-pronged test for determining whether a patient has the requisite capacity to consent to treatment. The test is as follows: first, that the person be able to understand the information relevant to making a treatment decision, and second, that the person be able to appreciate the reasonably foreseeable consequence of his or her decision: Starson, at para. 78.

[43] In arriving at its decision that the appellant was not able to consent to treatment, the Board referred to the following passage from Starson, at para. 79:

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.... 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 the 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. (at pp. 761-762, emphasis in in original Reasons for Decision).

[44] The Board referred to the definition of “mental disorder” in the Mental Health Act, noting that it is defined broadly as to “any disease or disability of the mind”. The Board found “that there was clear, compelling and uncontradicted evidence that JJ was suffering from mental disorder.” The Board referred to conclusions made by a number of different psychiatrists who had assessed the appellant. Implicit in the Board’s reasons is the distinction between the condition and the symptoms or manifestations. The Board noted the appellant had “history of psychiatric admissions with similar diagnoses and symptoms and continued to demonstrate these at the time of the hearing.”

[45] The Board noted that the appellant refused to admit that he had a mental illness. While not expressly stated, the Board appeared alive to the fact that the appellant need not agree with the diagnosis of Dr. Okonkwo or any of the other the attending physician. However, the test goes further. The appellant must be able to recognize the possibility that he is affected by that condition (Starson, at para. 79). In this case, the Board found that the appellant did not believe that he suffered from a mental condition. The Board stated in its Reasons for Decisions:

There was clear, cogent, and compelling evidence from Dr. Okonkwo’s testimony, and the documentary evidence, that JJ was not capable of consenting to treatment. JJ clearly did not believe that he suffered from symptoms of a mental condition and did not appreciate that without continuing treatment he was likely to suffer substantial mental deterioration and be readmitted to hospital as had happened in the past.

[46] While the attending physicians repeatedly indicated that the appellant insisted that he did not have any mental illness, and while the Board referred to this evidence, it does not appear that this was a factor, at all, in the Board arriving at its conclusion. In any event, it was not a determinative consideration or a factor that affected the result.

[47] The Board found that there was insufficient evidence to find that the appellant was unable to process, retain and understand the relevant information about the proposed treatment. However, the Board found that the appellant did not pass the second branch of the capacity test related to appreciation of the reasonably foreseeable consequences of a decision or lack of decision about the proposed antipsychotic treatment. The Board found that because of his mental condition, the appellant was not able to recognize that he was affected by the manifestations of a mental condition, including paranoid delusions and aggressive and bizarre behaviours. The Board stated:

The panel concluded that as a result of his mental condition, JJ was unable to recognize that he suffered from the manifestations of a mental condition, including paranoid delusions and aggressive and bizarre behaviours. JJ was also unable to appreciate that he had improved with treatment in the past and had been able to function in the community. JJ was therefore unable to apply the relevant information or evaluate information concerning any proposed types of medications or treatment as it related to his own circumstances. For these reasons, the panel found that JJ was unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision about the proposed psychiatric treatment.

[48] In Starson, at para. 80, the Supreme Court of Canada set out the elements to be satisfied under the Health Care Consent Act, in deciding if a patient has the ability to appreciate the consequences of a decision. That Court noted that actual appreciation of those consequences is not required. In the case before me, it is evident that the Board expressly or implicitly dealt with the elements identified in Starson. While not expressly setting out the elements, it is apparent that the Board applied them to the facts as the Board found them. The Board found that the appellant was also unable to appreciate that he had improved with treatment in the past and had been able to function in the community. While the Board did not expressly address whether the appellant appreciated alternative courses of available treatment or action, it was implicit in its reasons that he did not. The Board referred several times to comments by attending physicians that the appellant had no insight into his mental illness. The Board therefore found that the appellant did not appreciate the expected consequences of not having the treatment.

[49] The Board indicated that the appellant “clearly did not believe that he suffered from symptoms of a mental condition and did not appreciate that without continuing treatment he was likely to suffer substantial mental deterioration and be readmitted to hospital as had happened in the past.” There was ample evidence before the Board to arrive at the facts underlying this conclusion. The Board concluded that the appellant was unable to apply the relevant information or evaluate information concerning any proposed types of medications or treatment as it related to his own circumstances. In the result, the Board found that the appellant was unable to appreciate the reasonably foreseeable consequences of a decision, or lack of decision, about the proposed psychiatric treatment. I find that the Board correctly applied the elements as articulated in Starson to the facts, as the Board found them, in determining whether the appellant was able to appreciate the consequences of a decision.

[50] The Board also found that the appellant “was also unable to appreciate that he had improved with treatment in the past and had been able to function in the community”. There was ample evidence to support the Board’s finding from the appellant himself. This is consistent with the guidance by the Supreme Court in Starson, which, as noted above, made clear that the Health Care Consent Act requires a patient to have the ability to appreciate the consequences of a decision. It does not require actual appreciation of those consequences.

[51] The Board reviewed the appellant’s denials that he had experienced any improvement with prior treatment and claimed this was “fabricated” by his family; a point contradicted by Dr. Okonkwo, who treated him and followed him on the CTO. There was a body of evidence before the Board to support the conclusion that the appellant was unable to recognize that his condition required treatment, that he had improved in the past, with treatment. The respondent’s diagnoses and opinion that the appellant was unable to consent to treatment with antipsychotic medication was echoed by other attending psychiatrists in the days leading up to the fourth hearing. These psychiatrists also indicated that the appellant denied experiencing symptoms of psychosis and denied any improvement following treatment with antipsychotic medication, insisting that this was “fabricated” by his family. The appellant reportedly indicated that there was no benefit to antipsychotic medication and stated that he was “allergic” to serial numbers. He indicated that if he were released from the hospital, he would likely return to his mother’s house but stated that he could “have his hands to protect himself”. He admitted to hearing kids’ voices trying to “bribe” him. The evidence came not only from attending physicians, but also from the appellant himself, other physicians, his mother and other family members. The respondent’s evidence that the appellant is incapable of consenting to treatment must be corroborated: see Anten v. Bhalerao, 2013 ONCA 499, 366 D.L.R. (4th) 370, at para. 28; Evidence Act, R.S.O. 1990, c. E.23, s. 14(1). In an appropriate case, the physician’s evidence can be corroborated by the patient’s own evidence: Anten, at para. 30. Hearsay evidence at these proceedings may be admissible pursuant to the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 15, but there must be some basis for finding that the evidence is sufficiently reliable: Starson, at para. 115 and Anten, at para. 32. The corroborating information came from the clinical notes of the attending doctor (though admittedly, statements attributable to others are hearsay but nonetheless can be accepted as being said), the social worker, and nursing staff, among others. The social worker’s notes September 29, 2022 indicate that he spoke to the appellant’s mother, uncle and sister, and all three were afraid to be the appellant’s substitute decision maker due to prior incidents.

[52] The Board found that the appellant was unable to apply the relevant information or evaluate information concerning any proposed types of medications or treatment as it related to his own circumstances. There was ample evidence to support this finding. The Board noted that that there was clear, cogent, and compelling evidence from Dr. Okonkwo’s testimony, and the documentary evidence, that the appellant was not capable of consenting to treatment. I find no palpable or overriding error in the findings of facts underlying this conclusion and, in the result, I find no error in the conclusion drawn from the evidence and the legal effect of those findings made by the Board.

[53] In the alternative, I note that the Board inquired into the reasons that the appellant was unable to appreciate the consequences and found, as a fact, that “as a result of his mental condition, JJ was unable to recognize that he suffered from the manifestations of a mental condition, including paranoid delusions and aggressive and bizarre behaviours.” Both Dr. Okonkwo and Dr. Williams were of the opinion that the appellant’s illness affected his ability to see that he is affected by its manifestation. The Board appears to have accepted their view. In Starson, the Supreme Court of Canada indicated that if the patient’s condition results in the patient 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. Keeping this direction in mind, based on the Board’s finding that the appellant was unable to recognize that he suffered from the manifestation of his illness, the Board made no error in finding that he was unable to appreciate the consequences of his decisions.

[54] I find that the Board made no error in finding that Dr. Okonkwo had discharged the onus at the time of the hearing to rebut the presumption that the appellant was capable of consenting to treatment with respect to antipsychotic medications.

[55] In Starson, at para. 79, the Supreme Court of Canada indicated that:

Condition refers to the broader manifestations of the illness rather than the existence of a discrete diagnosable pathology. The word condition allows the requirement for understanding to focus on the objectively discernible manifestations of the illness rather than the interpretation that is made of these manifestations.

[56] At the review application under appeal, the Board had the evidence of Dr. Okonkwo, which was corroborated by the appellant and others. According to Dr. Okonkwo, the appellant was suffering from symptoms of psychosis, paranoid persecutory delusions, passivity phenomenon (he believed external forces or spiritual attacks were causing harm to his body), excessive intrusive cleaning behaviours, and aggression towards co-patients and staff. The appellant had been treated on an emergency basis and transferred to the psychiatric intensive care unit (“PICU”) transitional room.

[57] At the time of the hearing, the Board had evidence of the appellant’s “significant mental deterioration”. The nursing staff reported that: the appellant believed other patients were possessed; the appellant believed he was being spiritually attacked by his roommates and other patients; he refused the admission of other patients to a shared room; he interfered with other patients; and his roommates reported being fearful of him. The Board also had evidence before it of safety risks created by the appellant’s actions and including the appellant’s other obsessive-compulsive actions. He refused to eat food or take medication because the containers had bar codes.

[58] The Board concluded that Dr. Okonkwo had satisfied the test set out in s. 20(1.1) of the Mental Health Act, being the Box-B criteria. In doing so, the Board found that that there was “clear, cogent, and compelling evidence”. They made this finding based on the testimony of Dr. Okonkwo, the documentary evidence, including the assessment by Dr. Williams which detailed the explanation given regarding his illness, symptoms, proposed treatment and his responses. I find no palpable and overriding error in the Board’s finding that the appellant clearly did not believe that he suffered from symptoms of a mental condition, rather that the medication is hindering his spirit, that he did not believe that he benefited from medication in the past, that he believed he was allergic to serial numbers and that the appellant did not appreciate that, without continuing treatment, that he was likely to suffer substantial mental deterioration and be readmitted to hospital. I also find no palpable and overriding error in the Board’s finding that the appellant believed that there were no consequences to not taking the medication and that he was well.

[59] The Board noted that the appellant refused to admit that he had a mental illness. I am satisfied that on the evidence, the Board made no error in concluding that Dr. Okonkwo had discharged the onus in establishing that the appellant was unable to appreciate the reasonably foreseeable consequences of his treatment decisions was due to his mental condition.

[60] The Board found that the appellant was unable to recognize that he suffered from manifestations of the mental condition or appreciate that he improved with treatment. This conclusion was supported by the evidence, and I find no palpable and overriding error in the Board’s finding of fact.

[61] The Board concluded that the appellant was therefore unable to apply the relevant information or evaluate information concerning any proposed types of medications or treatment as it related to his own circumstances. On the facts found, the Board was entitled to arrive at this conclusion, and I find no error.

iii. Did the Board err in confirming the appellant’s involuntary status?

[62] In its Reasons for Decisions, the Board noted that “A patient may be certified as involuntary either under subsection 20(5) or under subsection 20(1.1), or both. There must be a causal connection between the existence of mental disorder and the likelihood of the feared consequence. ‘Likely’ in this context has been found to mean ‘probably’. ‘Serious’ bodily harm means more than trifling.”

[63] The Board upheld the Certificate of Involuntary Admission under the Box B criteria. The Board found that there was clear, compelling and uncontradicted evidence that the appellant was suffering from a mental disorder for which he had previously received treatment.

[64] The appellant submits that the Board erred in concluding that Dr. Okonkwo had met his burden of satisfying the onus that the conditions for involuntary status continued to be met at the time of the hearing, pursuant to s. 41(1) of the Mental Health Act. The appellant submits that the Board erred in law in determining that it had the discretion under s. 41(2) of the Mental Health Act to confirm the appellant’s involuntary status, notwithstanding that the respondent, Dr. Okonkwo, his colleagues, and his employer, Grand River Hospital, had repeatedly and egregiously violated the appellant’s statutory rights resulting in the appellant’s indefinite and prolonged unlawful detention.

[65] Pursuant to s. 41(2), if the onus is discharged, the Board may make an order confirming the patient’s involuntary status. Pursuant to s. 41(3) of the Mental Health Act, “if the Board determines that the prerequisites set out in the Act for admission as an involuntary patient were not met at the time of the hearing of the application”, the Board must rescind the certificate.

[66] Subsection 20(5)(a) of the Mental Health Act sets out what are commonly referred to as the “Box A Criteria” as these statutory conditions for involuntary admission of a patient are also contained in Box A of certain forms including a Forms 3 (Certificate of Involuntary Admission).

[67] Section 20(5) of the Mental Health Act provides as follows:

(5) The attending physician shall complete a certificate of involuntary admission, a certificate of renewal or a certificate of continuation if, after examining the patient, he or she is of the opinion both, (a) that the patient is suffering from mental disorder of a nature or quality that likely will result in, (i) serious bodily harm to the patient, (ii) serious bodily harm to another person, or (iii) serious physical impairment of the patient unless the patient remains in the custody of a psychiatric facility; and (b) that the patient is not suitable for admission or continuation as an informal or voluntary patient.

[68] Section 20(1.1)(a) and (e) of the Mental Health Act set out the factors or conditions to be decided in determining whether to admit an individual involuntarily. Section 20(1.1) states:

(1.1) The attending physician shall complete a certificate of involuntary admission, a certificate of renewal or a certificate of continuation if, after examining the patient, he or she is of the opinion that the patient (a) has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person; (b) has shown clinical improvement as a result of the treatment; (c) is suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one; (d) given the person’s history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment; (e) has been found incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision–maker has been obtained; and (f) is not suitable for admission or continuation as an informal or voluntary patient.

[69] The relevant provisions of the Mental Health Act applicable to a review of admission or renewal provides as follows:

41 (1) On the hearing of an application, the Board shall promptly review the patient’s status to determine whether or not the prerequisites set out in this Act for admission as an involuntary patient continue to be met at the time of the hearing of the application.

Confirming order

(2) The Board by order may confirm the patient’s status as an involuntary patient if the Board determines that the prerequisites set out in this Act for admission as an involuntary patient were met at the time of the hearing of the application.

[70] The appellant argues that: “The Board also concluded that Dr. Okonkwo had satisfied the test set out in s. 20(1.1) of the Mental Health Act the so-called Box-B criteria, in upholding the September 26 Form 3.” The appellant argues that it appears that the Board relied largely on Dr. Okonkwo’s evidence that the appellant simply did not want to stay at the hospital and that he did not believe that he had a mental illness. I disagree. The Board meticulously reviewed each of the statutory requirement to be satisfied for admission under s. 20(1.1) of the Act. The Act itself contains conditions which are more expansive than the Box-B criteria.

[71] A unanimous panel concluded that Dr. Okonkwo had met the onus of proving the appellant satisfied the requirements of s. 20(1.1) of the Mental Health Act, (which implicitly satisfies the “Box B” criteria for involuntary detention). In making its determination, the Board first considered whether the appellant was suffering from a mental disorder, and after considering the working diagnosis of chronic psychotic disorder, most likely late onset schizophrenia, the Board found, as a fact, that the appellant was suffering from a mental disorder.

Section 20(1.1)(a) of the Mental Health Act

[72] The Board concluded that the evidence established that the appellant had previously received treatment for mental disorder of an ongoing or recurring nature, which when not treated is of a nature or quality that likely will result in one or more of serious bodily harm to the appellant or to another person, substantial mental or physical deterioration of the appellant, or serious physical impairment of the appellant.

[73] In doing so, the Board considered the appellant’s prior admission to hospital with similar symptoms in December 2020, March 2021, and June 2021. The Board considered how the appellant fared after discharge, when placed on the CTO, and when the CTO was revoked, and when he stopped medication and psychiatric follow up. The Board noted that: “The evidence presented by Dr. Okonkwo demonstrated that JJ had repeatedly exhibited symptoms of mental disorder in the absence of treatment.” The Board was satisfied that the appellant had previously received treatment for mental disorder of an ongoing or recurring nature, which when not treated is of a nature or quality that likely will result in substantial mental deterioration. I find no palpable or overriding error in the board’s finding of fact.

Section 20(1.1)(b) of the Mental Health Act

[74] The Board next considered whether the appellant had shown clinical improvement as a result of the treatment and concluded that “there was clear and compelling evidence to find that JJ had shown clinical improvement as a result of treatment both in hospital and on a CTO in the community”. The Board was entitled to make this finding based on the evidentiary record. The Board noted that the appellant had previously been treated with antipsychotic medication and he “settled down quickly and psychotic symptoms improved”. In November 2021, Dr. Okonkwo indicated that the appellant was doing very well on the CTO. Dr. Okonkwo’s notes included information from the appellant’s mother who indicated that since he had been on the medication, he was pleasant and there were no altercations. His family also reported improvement and that he was active and engaged in the community. I find no error in the Board’s finding that the appellant had shown clinical improvement as a result of treatment.

Section 20(1.1)(c) of the Mental Health Act

[75] As for the Board’s finding that the appellant was suffering from the same or similar mental disorder for which he had previously received treatment, there was ample evidence to support this finding including The Discharge Note dated July 21, 2021, stating that it was the appellant’s third admission in six months, and that he had a similar presentation in all of them.

Section 20(1.1)(d) of the Mental Health Act

[76] The Board was satisfied that the evidence established that given the appellant’s history of mental disorder and current mental or physical condition, that the appellant was likely to cause serious bodily harm to himself or another person or suffer substantial mental or physical deterioration or suffer serious physical impairment. There was ample evidence to ground support this finding.

[77] The Board noted that Dr. Okonkwo relied on the ground of substantial mental deterioration. The Board had referred to evidence of his attending doctor of his recent rapid deterioration, obsessive behavior, and increased aggression. Dr. Okonkwo chronicled assessments between September 14 to 16 whereby the appellant was noted to be “quite psychotic”. He thought “a large wound in the center of right palm and right elbow joint were caused by spiritual attacks” and thought a healing found on his right toe “from pieces of glass door he admitted to breaking during a spiritual attack”. The appellant denied having any mental illness. The notes indicate the “nursing staff reported intimidation of staff and other patients.” Dr. Okonkwo indicated in an Involuntary Status (“Involuntary Summary”) that the appellant’s psychosis was initially believed to be caused by marijuana use, however after a lengthy stay in hospital with no access to cannabis, the appellant’s psychotic symptoms had persisted and were worsening. The appellant denied experiencing symptoms of psychosis and denied any improvement following treatment with antipsychotic medication. He indicated that there was no benefit to antipsychotic medication and stated that he was “allergic” to serial numbers. The appellant indicated that if he were released from the hospital, he would likely return to his mother’s house and would “have his hands to protect himself”. He indicated he was hearing kids voices trying to “bribe” him.

[78] In the week after September 26, 2022, the appellant experienced significant mental deterioration. He annexed the TV lounge area preventing access to other patients, he did so alleging that the there was an evil spirit in the unit. He was aggressive towards staff. He was involved in physical altercations with other patients.

[79] Dr. Okonkwo’s evidence was that the appellant’s mental condition had continued to deteriorate while he was untreated in hospital. It was noted that the appellant’s “paranoid delusions had become more vivid, he continued to believe he was the subject of spiritual attacks, and he demonstrated increased compulsive intrusive cleaning behaviours to the point where he was forgetting to eat because he was so distracted.” Dr. Okonkwo testified that JJ’s mental condition had deteriorated more rapidly over the past two weeks and noted that JJ was more intrusive and aggressive.

[80] The Board further found that the appellant suffered substantial mental deterioration without treatment. The Board noted that the appellant has a history of being non-adherent to medication in the community and deteriorating to the point where he was readmitted to hospital. The Board found that his symptoms were progressively worsening without treatment in hospital, and he continued to adamantly and repeatedly deny that he suffered from a mental condition that required treatment. The Board determined that the trajectory of deterioration would continue if the left the hospital and that there was a clear causal connection between the existence of mental disorder and the deterioration. Dr. Okonkwo pointed to the recent rapid deterioration in the previous two weeks, which was substantiated by the evidence before the Board. The Board found “a clear causal connection between the existence of mental disorder and the likelihood of the feared consequences.” I find no palpable and overriding errors of these findings of facts, which were supported by the evidence.

[81] On September 23, 2022, after the third hearing, at the request of Dr. Okonkwo, the appellant was seen by Dr. Banjo, in the presence of a nurse, at the request of Dr. Okonkwo. Dr. Okonkwo attempted to seek legal advice as directed by the Chair of panel. Dr. Banjo noted that the appellant reported that there was an evil spirit on the unit and indicated “that people are screaming at night because they are possessed by the evil spirit".

[82] The Mental Health and Addiction Notes of Dr. Okonkwo on September 26, 2022 were before the Board. Dr. Okonkwo saw the appellant in the presence of his social worker and the nursing team. As noted above, the appellant had apparently “now annexed the TV lounge area …preventing other patients to access it, apparently for their own safety or his own safety because of the concern about an evil spirit in the unit”. He had made a threatening gesture toward an elderly patient and pulled socks off another patient’s feet. In his notes, which were also before the Board, Dr. Okonkwo noted that the “patient continued to present with significant paranoid persecutory delusions, compulsive cleaning behaviour, believed that she (sic) is under spiritual attack.” He had been cleaning another patient’s room, at one stage was cleaning his mouth with the hand sanitizer, was reported to be fixated on barcodes on any food material, and reportedly advised Dr. Okonkwo that he had not been eating. Dr. Okonkwo noted the appellant “has no insight to his illness”. He requested a second opinion from another psychiatrist, Dr. L. Williams.

[83] The appellant was seen by the other psychiatrist, Dr. L. Williams, on September 26, 2022, at the request of Dr. Okonkwo. Dr. Williams signed a Form 3 and a Form 30 checking off that that the appellant suffers from a substantial mental or physical deterioration and was not mentally capable to consent to treatment of a mental disorder”. Dr. Williams noted: “He reports that spiritual attacks sometimes got too aggressive, and he could not focus on eating and felt very bothered”. Dr. William’s assessment was “unspecified psychosis-given the length of stay in hospital with ongoing psychotic symptoms very likely a primary psychotic disorder Cannabis use”. She indicated that he was not capable of consenting to treatment of antipsychotics. She indicated that she believed he could understand the information being provided to him about antipsychotic medication but noted that his illness has affected his ability to see that he is affected by its manifestation. She indicated that the appellant would be at likely risk of mental/physical deterioration if discharged. Dr. Williams also issued a Form 3 continuing the involuntary admission.

[84] On September 30, 2022, the appellant was observed on CCTV footage pushing another patient to gain access to his room as he suspected that the patient was stealing his property.

[85] A note dated September 30, 2022, of Dr. Okonkwo was also before the Board. The appellant was apparently seen at the time with his nurse and a medical practitioner student. Dr. Okonkwo indicated that the appellant “continued to present with paranoid persecution delusions, excessively intrusive ruminating and compulsive cleaning behaviour interfering with other patients’ activities”. A nursing staff had reported he was paranoid and fixated on another patient, accusing him of stealing and trying to remove the stocks from the other patient’s feet. The nursing staff reported that the appellant would go into other patients’ rooms, grab things and clean the place. Dr. Okonkwo reported that while he was seeing the appellant, another patient came by and reported that the appellant had taken a swing at him. Dr. Okonkwo noted that “He continued to report paranoid persecutory delusions especially with barcodes. The appellant continued to present with passivity phenomenon of being attacked spiritually. He does not believe he has any mental illness, and he has no insight.” Dr. Okonkwo’s assessment was psychosis, chronic psychotic disorder, probably late onset schizophrenia, rule out schizoaffective disorder, rule out affective disorder.

[86] A note dated October 2, 2022, notes that Dr. Okonkwo was briefed by the nursing staff that the appellant “became aggressive and violent towards a co-patient”. He noted: “The patient is escalating in his behavior; on Friday another patient accused him of taking a swing on (sic) him”. He went on to state: “The patient does not have insight and continues to insist that he does not have any mental illnesses and is not going to take any medication”.

[87] Dr. Okonkwo’s assessment again was psychosis, chronic psychotic disorder probably late onset schizophrenia, rule out schizoaffective disorder, rule out affective disorder.

[88] The appellant was assessed by Dr. Okonkwo on October 3, 2022, a day before the review hearing, and the presence of a social worker. The appellant reported having body checked another patient to gain access to his room. “The patient denied that he had any mental illness, that he does not require any treatment, that medication was hindering his spirituality being. He reported there is no consequences for not taking any medication. That he is well. When I asked him about the injury to his hand, he told me that he was not the one that did it and nobody would have done it to him when he is awake. He did not see the connection between inflicting that injury and his psychosis.”

[89] I therefore find no palpable or overriding error in the Board’s conclusion that the appellant met this condition of the statutory requirement.

Section 20(1.1)(e) of the Mental Health Act

[90] At the time of the hearing, the Board was satisfied that the appellant’s uncle had been and was once again his substitute decision maker. The Board noted that the evidence was not challenged at the hearing, and the Board was satisfied that this statutory criterion had been met. I see no error in the Board’s finding.

Section 20(1.1)(f) of the Mental Health Act

[91] I find no error in the Board’s conclusion that the appellant was unsuitable for voluntary status. The Board set out the evidence upon which this conclusion was based, including the appellant’s own evidence that he did not have an illness and did not want to stay in the hospital.

[92] In the result, I find no palpable and overring error made by the Board in declining to exercise its discretion. In my view, the Board reviewed the evidence before it to determine whether the appellant met the prerequisites for admission as an involuntary patient at the time of the hearing, and concluded that he did. The Board was satisfied that the evidence presented by Dr. Okonkwo confirmed that the statutory conditions were met, and it correctly applied the test in the controlling authority, being Starson.

iv. Did the Board err in not exercising its discretion re: the preliminary issues of abuse of process and res judicata?

[93] The appellant submits that the Board erred in failing to exercise its discretion under s. 41(2) of the Mental Health Act based on the abuse of process and res judicata issues raised again by the appellant. The appellant argues that the Decisions were procedurally unfair and offensive to basic principles of natural justice.

[94] The appellant argues the respondent has engaged in conduct amounting to procedural unfairness, which includes refusal to accept the Board’s previous decisions confirming the appellant’s capacity and alleges an abuse of process instituted by a team of psychiatrists resulting in the prolonged and unlawful detention of the appellant.

[95] The appellant submits that at the first and second hearing, the Board rejected the testimony of Dr. Gangolli and determined that the appellant was capable consenting to treatment with the use of antipsychotic medication. The appellant argues that once the Board first rescinded the certificate of involuntary status, the appellant became a voluntary patient and his detention beyond September 1, 2022 and beyond was unlawful. The appellant argues that there was a pattern of abuse of process which led to the appellant’s unlawful detention on three different occasions whereby the hospital failed to comply with the statute. The appellant relies upon s. 14 of the Mental Health Act which provides that: “Nothing in this Act authorizes a psychiatric facility to detain or to restrain an informal or voluntary patient.” The appellant submits that the only two options available to the hospital at that time was to either release the appellant or file a notice of appeal under s. 80 of the Health Care Consent Act and s. 40 of the Mental Health Act.

[96] Black’s Law Dictionary (6th ed., 1994), defines, “Abuse of process” as “The improper and tortious use of legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope”.

[97] In Abrametz, the Supreme Court of Canada clarified that whether there has been an abuse of process is a question of law and the applicable standard of review is correctness.

[98] Abuse of process is a broad concept that applies in various contexts: Abrametz, at para. 34; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 36; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at para. 39. The doctrine is characterized by its flexibility: Abrametz, at para. 35.

[99] In the context of an administrative proceeding, abuse of process is a question of procedural fairness: Abrametz, at para. 38; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paras. 105-107 and 121; Guy Régimbald, Canadian Administrative Law, 3rd ed. (LexisNexis, 2021), at pp. 344-350; Patrice Garant and Jérôme Garant, Droit administrative, 7th ed. (Éditions Yvon Blais, 2017), at pp. 766-67).

[100] The appellant relies on the decision of Myers J. in Kanama v. Weinroth, 2022 ONSC 2748. In that case, Mr. Kanama’s Community Treatment Order expired, and he was subjected to a capacity assessment without being told of either. Justice Myers underlined the unfairness of surreptitiously having Mr. Kanama attend so Dr. Weinroth could conduct the examination necessary to reissue his CTO after his CTO had expired, and he therefore had no legal obligation to do so. Justice Myers indicated that he would deal only with the procedural issue. He noted that although the appellant challenged the findings of incapacity, there was evidence before the tribunal to support the findings made. It is noted that while Mr. Kanama may disagree with the board’s assessment of the evidence, his counsel was not able to show any palpable and overriding error of fact or mixed fact and law in that regard. Justice Myers noted, at para. 6:

Even the dissenting board member would have upheld the doctor’s findings of incapacity. Moreover, procedural safeguards are really not relevant to the substantive issues. That is, even if Mr. Kanama was subjected to a horribly unfair process, he still needs treatment. Overruling his CTO may leave him untreated in the community with a risk of untoward results. That does not seem like a good outcome.” [Emphasis added].

[101] In the current case, in its Reasons for Decisions, the Board stated:

This panel was of the view that the abuse of process and res judicata issues were ones that would require the panel to exercise its discretion (arising from the use of the word “may” in subsection 41(2) of the MHA) if the arguments were successful. The panel was therefore first required to determine whether or not the prerequisites for admission as an involuntary patient were met at the time of the hearing, before considering if it would exercise its discretion to rescind JJ’s involuntary status and restore the presumption of capacity. This process allowed for evidence to be received on both the substantive merits of the applications as well as the preliminary issue in an efficient manner, and also took into consideration the extensive history involved with this matter.

[102] The Board carefully considered what it called the “complex history of these matters” in deciding whether to confirm the claimant’s status as an involuntary patient under subsection 41(2) of the Mental Health Act. The Board noted the “complicated” history and determined that it would not exercise its discretion in the “unique circumstances of this case”. The Board further noted that it’s “discretion should only be used in exceptional circumstances”. The Board extensively referred to Dr. Okonkwo’s Progress Note dated September 23, 2022 which set out what happened that day. Although the Board noted that the panel did not think there had to be new information or intervening events before the issuance of the Form 1 on September 23rd, it did find that there was in fact a deterioration of the appellant’s condition and that information had not been available at the second hearing. The Board noted that on the evidence, the appellant had done well in the community in the past with treatment, and that he continued to deteriorate in hospital without treatment. With respect to the second hearing, the Board found that “there was clear evidence” of the appellant’s mental deterioration in hospital that was not available at the September 12, 2022. The Board considered “that the merits of the applications had not been heard since September 12, 2022, Box B had never been considered by the Board, and Dr. Okonkwo’s findings as JJ’s MRP had not been tested.”

[103] The Board noted that Dr. Okonkwo had requested a second opinion from psychiatrists, Dr. Williams and Dr. Banjo. The Board noted that the merits of the applications were not heard on September 23, 2022. The Board noted the previous remedy of abuse of process by the prior Board but focused on the more recent series of events and certification. The Board noted “Dr. Okonkwo had continuing concerns about JJ’s mental status and was cognizant that the applications had not been heard on the merits on September 23. He therefore referred JJ to another physician for an “assessment.” The Board found that Dr. Okonkwo understood the seriousness of the abuse of process finding and had done everything he could in the circumstances to ensure that the next steps taken were appropriate and fair. Given that he did not have access to legal advice, he arranged for another physician to assess the appellant to ensure an independent and objective assessment. After considering the complicated history of the case, the Board concluded that “the recommencement of the certification process had been done thoughtfully and fairly”. In arriving at its conclusion, the Board noted:

The panel carefully considered the evidence, the submissions, and the law in concluding that it would not exercise its discretion in the unique circumstances of this case. The panel that considered these matters on September 23rd considered the history up until that time. That panel found that the circumstances were sufficiently egregious that there had been an abuse of process, and rescinded JJ’s involuntary status and found him capable with respect to treatment as a result. It was clear that the merits of the applications were not heard at that time.

[104] There was a substantial evidentiary record upon which the Board could determine whether or not to exercise its discretion. The Board found that Box B criteria had never been tested. The Board noted that the merits had not been considered by the panel on September 23rd. That panel had found that the circumstances were sufficiently egregious to conclude that there had been an abuse of process. The Board noted Dr. Okonkwo’s continued concerns about the appellant’s mental status and awareness that the application had not been heard on its merits. It noted Dr. Okonkwo’s attempts to seek legal advice and the Board implicitly accepted what it called “Dr. Okonkwo’s best attempt to ensure that there was an independent and objective assessment of JJ at that time.” The Board found that “this recommencement of the certification process had been done thoughtfully and fairly”.

[105] The Supreme Court of Canada has indicated that “the concept of procedural fairness is eminently variable, and its content is to be decided in the specific context of each case”: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682. Canada’s highest court has indicated that all the circumstances must be considered in order to determine the content of the duty of procedural fairness: Knight, at pp. 682-83; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 654; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170.

[106] The appellant also relies on decision of the Board in BM (Re) in which the Board, observed, on the facts in that case, that permitting the physician to start the recertification process to present evidence that ought to have been presented at the previous hearing would allow doctors to return to the Board until they received a decision they were happy with, thereby circumventing the protections provided by the Mental Health Act vulnerable individuals detained in a psychiatric facility. That decision is distinguishable.

[107] The Board indicated that as the September 23 decision had been made on the basis of a preliminary motion, and not on the merits, the panel did not think that there had to be new information or intervening events before the issuance of the Form 1 on September 23, however, the Board noted: “In any event, the panel found that there was clear evidence of JJ’s mental deterioration in hospital (as discussed earlier in these Reasons) that was not available at the September 12th hearing (which was the last time the matter was heard on the merits).”

[108] In determining that “revoking JJ’s involuntary admission and finding him capable once again (solely on the grounds that there had been a prior abuse of process finding during the same hospitalization) would not further the spirit of the legislation and would not provide JJ with a meaningful remedy that had a nexus to the alleged wrongdoing”, the Board also considered the overarching spirit and purposes of the Mental Health Act, which is to detain persons suffering from a mental condition where there is a likelihood that they are going to cause harm to others or suffer harm to themselves. The Board also considered the purpose of Health Care Consent Act to facilitate treatment for persons who are unable to make treatment decisions for themselves. The Board had the benefit of Dr. Okonkwo’s testimony that the appellant had become more aggressive to staff; and the knowledge that a nurse had to be reassigned as a result of his targeting behaviour. Various practitioners pointed out that the appellant lacked insight into his mental illness. The Board noted that the appellant had done well in the in the community in the past with treatment, and that he continued to deteriorate in hospital without treatment. The Board had evidence before it to determine whether the appellant presented a risk of harm to others and himself. There was ample evidence before the panel to support this finding. In their Reasons for Decision, the Board indicated that:

Dr. Okonkwo became his MRP on September 14, 2022. Since Dr. Okonkwo took over JJ’s care, his mental condition had continued to deteriorate. Dr. Okonkwo testified that JJ’s paranoid delusions had become more vivid, and he demonstrated increased compulsive intrusive cleaning behaviours (he was exhausting the hospital’s supply of hand sanitizer and paper towel). JJ was also paranoid about bar codes and refused to eat food that was in containers with bar codes. JJ expressed concerns about negative energies from other patients and they became afraid of him. More recently, JJ had become intrusive, aggressive, and was targeting some co-patients and staff. JJ had to be treated on an emergency basis and transferred to the psychiatric intensive care unit (“PICU”) transitional room.

[109] The Board also noted: “As was discussed above in these Reasons, the panel concluded that there was clear and compelling evidence presented by Dr. Okonkwo that the prerequisites for involuntary admission had been met and that JJ was incapable of making decisions about his psychiatric treatment.” I find no palpable and overriding error in the Board’s finding of fact.”

[110] The jurisprudence has noted that when faced with a proceeding that has resulted in abuse, the court or tribunal must ask itself whether going ahead with the proceeding would result in more harm to the public interest than if the proceedings were permanently halted.

[111] The Board considered the question of its discretion under s. 41(2) by appreciating the context within which the request was made to find an abuse of process and res judicata. The Board balanced the procedural rights of the appellant with its discretion under s. 41(2) of the Mental Health Act.

[112] The Board considered the challenging and complicated history and the circumstances of this case in determining whether to exercise its discretion to confirm the appellant’s involuntary status.

[113] I disagree with the appellant that the Board did not fully consider the September 1 Decisions, the September 12 Decisions, and the September 23 Decisions in making that determination. On a review of the materials, the Board made at least three findings of facts which distinguishes these two cases. First this Board found that the appellant’s mental condition, without treatment, while in the hospital, had deteriorated. Second, the Board found that the Box B criteria was not previously considered. And third, the Board found that the third hearing was not heard on its merits. It is noteworthy that the panel in BM (Re) acknowledged that there may be circumstances where it is appropriate to start the recertification process immediately after a Board hearing, if for example there were technical flaws in the Form 3 or 4 leading to a rescission of the involuntary status, or if there was an intervening event after the hearing that would significantly affect the patient’s certifiability, and found that neither of these scenarios applied to BM. As noted by the appellant, the Board found for the first time in the Decisions under Appeal, that the statutory criteria for involuntary admission had been met at the time of the Hearing under the “substantial mental deterioration” criterion under the Box B criteria under s. 20(1.1) of the Mental Health Act, and that the appellant was incapable of making decisions about the proposed psychiatric treatment under s. 4(1) of the Health Care Consent Act. In the case before me, the Board in fact rejected the appellant’s arguments, which it was entitled to do, as there were intervening events.

[114] The Board found that the prerequisites for admission as an involuntary patient were met at the time of the Hearing and therefore decided not to exercise its discretion under s. 41(2) of the Mental Health Act, recognizing that there was discretion in the use of the word “may”. I find no error with the Board’s decision, in this case, to determine the substantive question of capacity first, and, in the circumstances of this case, to confirm the appellant’s involuntary status, and decline to exercise its discretion to decide whether the recommencement of the certification process was an abuse of process or res judicata. I agree with the Board that this was a challenging case, and it was open to the Board to determine whether there had been an improper and tortious use of the process to obtain a result that is “unlawful” or “beyond the process’s scope”. It is not clear to me that this was the case here. As the Board noted, the Board was not asked to consider the Box-B criteria at the first two hearings, and the third was not heard on its merits. In fact, with respect to the second hearing, the Board indicated that there had been an incomplete capacity assessment and therefore no means to determine whether the appellant failed the either branch of the test for capacity. It was only at the fourth hearing that the Board, with a more complete record, was able to consider whether the respondent had discharged the onus of rebutting the presumption of capacity. Having found that the appellant lacked capacity at the time of the fourth hearing, it was open to the Board to determine whether it should exercise its discretion in the circumstances of this case to confirm the appellant’s involuntary status. For the meticulous reasons given, I find no error.

E. Costs

[115] Counsel for the parties may contact my assistant in the next fifteen (15)days to schedule a conference to address costs.

A.P. Ramsay J. Date: June 8, 2023