Court File and Parties

Court File No.: CV-21-00674034-0000 Date: 2023-05-12 Superior Court of Justice - Ontario

Re: Rebecca Adsett, Appellant – and – Alain Labelle, Respondent

Before: Justice E.M. Morgan

Counsel: Ken Berger, for the Appellant Hilary Chung, for the Respondent

Heard: May 11, 2023

Appeal from Consent and Capacity Board

[1] The Appellant seeks to set aside a decision of the Consent and Capacity Board (the “Board”) dated May 7, 2021, which confirmed her incapacity to consent to treatment. The Respondent was at the time, and remains, the Appellant’s attending psychiatrist.

[2] On October 20, 2020, the Appellant was found to be incapable of consenting to the recommended course of treatment of her mental condition with antipsychotic medication. In its decision released May 18, 2021, the Board confirmed this finding. A Notice of Appeal was delivered on the Appellant’s behalf on December 5, 2021.

[3] Appellant’s counsel and Respondent’s counsel both preface their responses to the Appeal with a motion to admit new evidence, although they do so for different purposes. That new evidence is contained in the Appellant’s updated medical records as well as in the Respondent’s affidavit dated March 15, 2023, which sets out the chronology of events since the May 7, 2021 Board hearing.

[4] The package of new evidence from both sides demonstrates that the Appellant has, subsequent to the decision of the Board, regained her capacity to consent to the proposed treatment. That renewed capacity was confirmed by the Respondent on June 28, 2021, and is restated in his affidavit submitted in this Appeal.

[5] The new evidence includes not only the Respondent’s finding that the Appellant has regained her capacity to consent to treatment, but a hospital discharge summary confirming that the Appellant has been discharged since June 28, 2021. The discharge documentation, in turn, is submitted along with patient progress reports from June 28, 2021 to February 22, 2022 indicating that the Appellant has continued to attend follow-up appointments at the Schizophrenia Clinic at the Royal Ottawa Mental Health Centre for medication injections.

[6] The evidence submitted to me by both sides therefore confirms that the Appellant’s medical situation has undergone a marked improvement since the time of the hearing before the Board. She continues to attend at regular appointments with the Respondent and continues to be capable with respect to the proposed treatment.

[7] On the facts before me, the new evidence is admissible. In Palmer v. the Queen, [1980] 1 S.C.R. 759, at 205, the Supreme Court held that in deciding whether to allow a party to adduce fresh evidence, the overriding consideration is the interests of justice. This analysis is to take into account that: (a) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; (b) the evidence must be relevant in that it bears upon a decisive or potentially decisive issue at trial; (c) the evidence must be credible; and (d) if believed, it could reasonably be expected to have affected the result of the case.

[8] It is self-evident that where the evidence did not exist at the time of the original hearing, it should be admitted where it is necessary to deal fairly with the issues on appeal. This is particularly the case where declining to admit the evidence could lead to a substantial injustice: Sengmueller v. Sengmueller, at para 10.

[9] The proposed new evidence sets out events which have occurred since the Board decision under appeal. By definition, it could not have been adduced at the hearing before the Board. Moreover, the evidence is potentially decisive in considering the issue raised here and may determine the outcome of the Appeal. In addition, I note that “[h]ospital records have routinely been admitted as evidence for more than 30 years as prima facie proof of the truth of their contents under the hearsay exception for business records”: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779 at para 58, citing Ares v. Venner, [1970] S.C.R. 608, at 626.

[10] I see no reason not to admit the new evidence. The question is: to what result does the new evidence lead?

[11] Appellant’s counsel submits that the evidence of the Appellant’s current decision-making capacity should lead to a quashing of the Board’s decision under appeal. He argues that this is the logical result of admitting the evidence, and is what the legislature was getting at in enacting section 80(9) of the Health Care Consent Act, 1996, SO 1996, c. 2, Sched. A (“HCCA”), which provides:

The court shall hear the appeal on the record, including the transcript, but may receive new or additional evidence as it considers just.

[12] It is Appellant’s counsel’s view that in allowing new evidence on the basis of what the Court “considers just”, the HCCA authorizes a retroactive revisiting of the Board’s decision as part of the Appeal. Appellant’s counsel submits that this retroactive authority that is also embodied in section 80(10) of the HCCA, which sets out the powers of the appeal court:

On the appeal, the court may, (a) exercise all the powers of the Board; (b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board; (c) refer the matter back to the Board, with directions, for rehearing in whole or in part.

[13] According to Appellant’s counsel, the retroactive quashing of the Board’s decision in light of newly emerged evidence is how the Court is to approach the question of what it “considers just”. In this way, he argues, the legal system is equipped to take account of the fact that, “[a] patient’s capacity may fluctuate over time”, and that at any given time there is a presumption of capacity with the onus on the physician to prove otherwise: Starson v. Swayze, [2003] 1 S.C.R. 772, at paras 105, 118.

[14] Respondent’s counsel, on the other hand, submits that the appeal is now moot, relying on the Respondent’s affidavit evidence. In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at para. 15-16, the Supreme Court of Canada confirmed that a court will not generally hear appeals where “the required tangible and concrete dispute has disappeared and the issues have become academic”.

[15] While a court has leeway to address otherwise moot appeals, it is to be guided by the underlying rationales of the doctrine of mootness. As the Court explained in Borowski, these are: (a) whether despite the fact that there is no longer being a live controversy between the parties, their adversarial relationship will continue; (b) whether special circumstances make this particular use of judicial resources appropriate; and (c) whether opining on rights where there is no dispute left between the parties amounts to the court engaging in a legislative rather than an adjudicative function.

[16] Respondent’s counsel submits that the present Appeal is moot because there is no longer a live controversy between the parties. It is her view that justice requires an appeal court to correct an error the Board may have made, potentially on the basis of new evidence that it considers just, but not to re-litigate the matter on the basis of evidence that did not exist at the time of the Board’s decision. That approach would potentially reduce every Board decision to a less-than-final decision.

[17] I agree with that submission. The new evidence does not correct any error that might have been made by the Board made. As Justice Lederer observed in Doherty v. Horowitz, 2016 ONSC 4557, at para 45, “[T]he Consent and Capacity Board is not asked to peer into the future.”

[18] Appellant’s counsel points out that despite what might appear to be the present lack of controversy between the parties, the Appeal should be adjudicated as the Board’s decision may impact future assessments of the Appellant’s mental capacity. Citing Neto v. Klukach, [2004] O.J. No. 394 (SCJ), counsel for the Appellant argues that if the Board’s finding were overturned, the fact that the Appellant was capable and did not want to be treated could be deemed to be a “prior capable wish” that would impact on a substitute decision maker should the patient be found incapable in the future.

[19] Respondent’s counsel responds that this “prior capable wish” argument has been rejected by the Court of Appeal in Dickey v. Alexander, 2016 ONCA 961, at paras 10-11:

The appellant submits that we should hear the appeal because if the Superior Court judge's decision is allowed to stand, it may be used in support of an argument that the respondent expressed a “prior capable wish” that binds future substitute decision makers under s. 21 of the Health Care Consent Act 1996, S.O. 1996, c. 2, Schedule A, as amended, and so may preclude the administration of the relevant drugs without the respondent’s consent.

It is enough for present purposes to reiterate that the decision under appeal concerns the respondent’s capacity at the time the Board’s decision was made. The Superior Court judge’s decision may be evidence relevant to determining the respondent’s capacity in a future case, but it is not clear that it would be determinative. In any event, s. 36 of the Act establishes a procedure pursuant to which a substitute decision maker and a healthcare practitioner can obtain permission for consent to treatment despite a prior capable wish.

[20] Following the Court of Appeal’s decision in Dickey, several appeals from Board decisions have been determined to be moot upon a patient’s discharge from hospital. This Court has held that “the mere possibility” of a speculative, potential future event or collateral consequences which makes the Appellant’s prior capacity relevant is not sufficient to render the matter “live” for the purpose of an appeal before the Court: Manu v. Banik, 2018 ONSC 2247, at para. 14:

I agree that any argument that the validity of the April 25, 2017 [Board decision] has future consequences that justify an exercise of judicial discretion in the face of a finding of mootness is not supported. The mere possibility of a speculative, potential, future [Board decision] being issued sometime between April 1 and April 25, 2020 does not warrant the hearing of a moot issue.

[21] To reiterate the Court of Appeal’s view in Dickey, the focus of the Court in this Appeal is on the Respondent’s “capacity at the time the Board’s hearing was made.” Any suggestion that the Board’s decision may impact on a future substitute decision-maker for the Appellant is speculative and, given her present capacity to make decisions on her own, well beyond the currently visible horizon.

[22] Accordingly, I consider the present Appeal to be moot. The tangible and concrete dispute between the parties has disappeared: A.N. v. Guimond, 2020 ONSC 6751 at para 22.

[23] In the alternative, and in the event that I am wrong about the Appeal being moot, it is my view that the Board correctly articulated the legal test for capacity to consent to treatment and correctly applied that test to the evidence before it. The Board’s decision was supported by the evidence and contained no palpable and overriding error. There would be no basis for me to interfere with the Board’s decision even if the point was not moot.

[24] Section 4 (1) of the HCCA provides that: “(1) A person is capable with respect to a treatment... if the person is able to understand the information that is relevant to making a decision about the treatment ... and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.” The present appeal concerns the second part of the test for capacity – that is, whether the Appellant was able to appreciate the reasonably foreseeable consequences of her decision or lack thereof.

[25] This branch of the test requires that the patient be able to apply information about the proposed treatment to their own situation. In particular, the patient must be able to recognize that she is affected by the manifestations of a mental condition; and while she does not necessarily have to agree with the Respondent’s diagnosis, she must be able to recognize the possibility that she is affected by a mental condition.

[26] As Chief Justice McLachlin put it in Starson, at para 79 (dissenting on other points): “…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.”

[27] This reasoning was also re-articulated by the Court of Appeal in Giecewicz v. Hastings, 2007 ONCA 890, at para 21:

Commentators have identified three ‘common clinical indicators’ of a person’s ability to appreciate the consequences of accepting or declining treatment: ‘whether the person is able to acknowledge the fact that the condition for which the treatment is recommended may affect him or her; whether the person is able to assess how the proposed treatment and alternatives, including no treatment, could affect his or her life or quality of life; [whether] the person’s choice is not substantially based on a delusional belief. … These indicators provide a useful framework for identifying what “ability to appreciate’ means in concrete terms.

[28] In my view, the Board correctly articulated the test for capacity to consent to treatment, as set out in section 4(1) of the HCCA. Furthermore, the issue before me in the present appeal is whether the Board applied the correct legal test for capacity to the evidence before it. That is a question of mixed fact and law.

[29] Accordingly, the standard of review to be applied here is that of palpable and overriding error: Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para 37. To meet this standard, an error would have to be identified that is “clear to the mind or plain to see”, and that is “so obvious that it can easily be seen or known”: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para 5.

[30] The record before the Board established that the Appellant at the time met none of the three clinical indicators of a person’s ability to appreciate the consequences of accepting or declining treatment. As summarized by Respondent’s counsel in her factum [citations omitted]:

• [The Appellant] did not recognize that she had a mental illness, or the manifestations of her symptoms. She did not appreciate the nature of her psychiatric illness. She attributed her racing thoughts and difficulty with concentration to her medication as opposed to her mental illness.
• She did not to appreciate the benefit of the proposed treatment or the benefit she had gained from the proposed treatment. She did not appreciate the potential consequences of stopping her treatment and continued wishing to stop the treatment despite the increased risk of psychiatric decompensation.
• She held a significant delusional belief regarding the proposed treatment, mainly that it was an experiment by the province, the legal system and the medical system, against her.

[31] Although the Appellant did attempt to explain her rejection of the prescribed medication at the hearing, the record before the Board supported these findings. The Appellant has not identified any significant or overriding error “in the sense that it discredits the result” of the Board’s decision: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para 69. The applicable standard of review has not been met.

[32] For all of the above reasons, the Appeal is dismissed.

Date: May 12, 2023 Morgan J.